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1^41

THE LIBRARY

THE UNIVERSITY

OF CALIFORNIA

LOS ANGELES

SCHOOL OF LAW

LAW Lie

i^S4WG£l£S v.JAITV
LONG BEACH BRANCH

yH^-:%o.^-^

*.."•

THE CRIMINAL LAW

INCLUDING

THE FEDERAL PENAL

CODE

PARTS III

A General Treatise on the Criminal Law

PART lU

A Compilation of the Criminal Statutes of
the LTnited States of a General Nature up
to and including 41 Statutes at Large

JAMES E. GRIGSBY

OF THE ALBUQUERQUE, NEW MEXICO BAR

¥.: : ' '.AWN

L. A. CO. L. L

CHICAGO

BURDETTE J. SMITH & COMPANY

PUBLISHERS

1922

BY
JAMES E. GRIGSBY

PREFACE

>^ . In this age of books and especially law books, there is
/^ some explanation due the profession and those who read
this book, why it has been written. The object has been
to find a mean between too much prolixity and too much
brevity. It has occurred to me that if there was a work
on the criminal law which could find a place between
these extremes, some benefit might be contributed to the
profession as well as the student of the law. I have
thought that it would be of some benefit to include in the
discussion of the subject a chapter on presumptions, con-
fessions and contempts, because of the intimate relation
sustained by these subjects to common principles of the
criminal law. The discussion of specific offenses has
been confined to common law crime and those statutory
offenses which have something like uniformity of con-
stniction in all of our states. Since this work is general
in its scope, I have not deemed it advisable to discuss, ex-
cept in a general way, that class of offenses which come
under the police power of the state. This class of laws
is to a great extent governed by local conditions and
to some extent no uniformity of enactment and con-
struction is possible. My purpose has been to gather
together as briefly as consistent with the proper under-
standing of the matters discussed, the principles of the
criminal law in general. Amid the vast number of re-
ported cases it is sometimes very difficult to reconcile
the contentions of the particular case with the governing
principles. New conditions and new surroundings have
created new rights to be maintained and new wrongs
to be redressed, and through the expansive force of

• • •

729910

iv Peeface

logic the courts have extended and applied principles
so as to embrace such new conditions and surroundings.
At least to this extent it may be said that there has been
an advance in the science of the criminal law, and to
keep a pace with this advance has in a sense been the
moving object of this work. My highest hope shall be
realized if I succeed in part.

Again it has been my object to give to the reader the
law as I have thought was sustained by the authorities.
I have not obtruded my own opinions except where I
have thought that the rules were so flagrantly against
principle that it was required, and even in such instances,
I have always endeavored to give the rules as sustained
by the courts. I am conscious of many errors of judg-
ment — that many things have been overlooked. I have
tried to reduce them to a minimum, and for these I ask
the indulgence of the reader. There is no juster critic
than the lawyer. His business teaches him the fallibil-
ity of his fellows; his liability to err. His broad view
and dispassionate way of looking at the short-comings
of others make him a just critic.

I have not attempted any special arrangement of sub-
jects in Part One, but in Part Two, "Specific Crimes,"
I have arranged the subjects in alphabetical order. This
arrangement I believe possesses some convenience. I
have endeavored to cover in one volume the criminal
law entire for the subjects treated, being careful not to
confound the discussion with "Procedure."

What I have intended has been to epitomize in one
volume the law of the subjects treated, and thus aid the
busy lawyer without imposing upon him the burden
and the lr()ul)le of reading a lot of unimportant mat-
ter; to the student, that he may get the "core" without
the necessity of devouring the "rind."

J AS. E. Grigsby.

INTRODUCTION

Law in its comprehensive sense includes those rules
of action and conduct which are uniform and universal.
The laws of nature are of this class. Considered in this
sense, law is not within the reach of human control,
and as we are taught bends only to the Will of Infinity.
All things animate, inanimate, material or immaterial
respond in hannonious accord throughout the Universe
Law then is a rule of action governing the existence and
the functions of any given thing to which it must con-
form. Based upon this reflection Deity itself may be re-
stricted to this Universal principle. This law is every-
where. This is God 's law. These we must all obey. They
are inexorable and cannot be escaped. The violation
of any of them brings sure and speedy punishment. It is
impossible to imagine the existence of a law without at
the same time recognizing the right to administer pun-
ishment for its violation. Without this no law could
exist.

In a more limited sense, and as applied to political
society, laws are mere rules of right found by experi-
ence and dictates of natural justice to be due to every
member of society. These rules are more or less com-
plex in proportion as the wants are few or many. In the
earliest stages of the development of the human race,
man's wants were few and the range of his abilities to
gratify them proportionately large. The occasion was
wanting producing conflicts of interest. His actions were
not confined to any limited territory, and his desires were
circumscribed by the simplest necessities, which he sup-
plied from the wild flocks and herds, and from the fruits

Vi IXTEODUCTION

of the wilderness. Each man drew from these sufficient
to supply his immediate wants, and in turn abandoned to
any other who might capture.

Following the creation of man, came the right — the in-
herent law, to supply his wants from the abundance
of nature. This was the primal rule of man's action.
Ever^^ man had this right. Each had the right to pro-
tect himself from the severities of heat and cold and to
this end, could appropriate the skins of animals to make
clothing; his hunger he appeased with their flesh and
from the fruits of the forest. The right to life, the
right to personal security and the right to seek his hap-
piness, came also as the absolute law of his existence.
Originally to maintain these rights, intact to each per-
son, presented no problem of great difficulty. Few or
no violations could occur, as long as there were no con-
flicts of interests. But by steady stages, population has
increased and wants have multiplied; nature's source of
supply diminished, and hence came the clash of contend-
ing interests. Nature has implanted within every man
a conscientiousness of these inherent rights, as well as
the right to maintain them, and the right to punish an-
other for their violation.

In the light of historic disclosures, during the past and
present centuiy, there is no good reason to suppose that
man's existence is confined to a few thousand years, as
heretofore commonly conceded. For a long period sub-
seciuent to his creation, if he had any laws, they must
have been of tlu! nidest character. This period of his
existence is cast in the night of tlie past, and we can
only conjecture liis condition. His development into the
rudest barl)arisni was accomplished, no doubt, after a
long lai)se of time. Tlie first we know of him as a social
creature, is when lie foniied into conimunal bands and
intermarrying gn)ni)s. As up to tliis time we are left
to conjecture, we might really suppose that the- popu-
lation was so sparse that in jollowiiig the dictates of these

Introduction vii

natural rights, there were few or no conflicts of interests.
But as population grew and many persons came to claim
their natural rights in the same thing, then came the ne-
cessity of forming themselves into communities, with
the object of maintaining their common interests. These
first notions of government were crude, but the principle
involved was the same then as now, the object the same —
the protection of each in his rights.

It is in the nature of things impossible for two persons
to have a right in the same thing, and yet at the same
time each enjoy the full benefit of it. In order to reach
the highest degree of enjoyment, one or the other must
relinquish his right. If this cannot be done, then, there-
of necessity must be constant conflict and anarchy, unless
such persons can come to some equitable understanding
between themselves as to the proper enjoyment of the
thing. Thus men having common natural rights — rights
that are guaranteed by nature's laws, in and to all
things of the material universe — must agree among them-
selves how they may be enjoyed. Hence the creation of
governments as the instruments for maintaining these
rights. Whether these rights are justly maintained to all
alike, depend upon the notions entertained by the par-
ticular government. A government may be good or bad
in proportion as it is just. Whether it is just depends
largely upon the notions respecting the rights of the
people.

The association of men in some kind of government, to
which the power is delegated for the purpose of protect-
ing, adjusting and extending their rights, is absolutely
necessary for the promotion of harmony and happiness
among them. Hence we conclude that governments are
God-given, and are the result of those natural laws, which
adjust themselves, to the conditions and necessities of
the human family. At different periods of the race, many
forms of government have prevailed. Some of them have
not guaranteed a very high degree of security to life and

viii Introduction

protection of property. But it is believed that all gov-
ernments of whatever kind, in one way or another, as-
sume to punish for the interference with the life or per-
sonal security of their subjects, as well as to grant re-
di'ess for the infringement of property rights.

As we have previously remarked, we cannot imagine
a condition of society, which would not somewhere lay
the power to punish its members for violation of its laws.
In some barbarous nations in cases of homicide, this
power was granted to the immediate relatives of the de-
ceased, who out of pure revenge, might take the life of
the slayer. In the Germanic nations a murderer was per-
mitted to acquit himself by paying a fine, a portion go-
ing to the deceased's relatives, and the balance to the
king's revenues. This seems to have been the law of
England prior to the battle of Hastings, for we read
that this fine — weregeld — crime money — was propor-
tioned as follows: The king paying six times as much
as the thene, and the thene four times as much as the
ceorl or slave. The distinction between the degrees, or
whether the homicide was blameless, seems not to have
entered into the consideration of such laws. Homicide
committed, in the absence of organized government, in a
mere state of nature, could no doubt be justifiably pun-
ished by any person out of revenge for the life of the
slain. There is high authority for this proposition, the
most venerable being Sir William Blackstone, who rea-
sons that authority necessarily rests somewhere. This
view is further sustained by the Scriptures in the case of
Cain: the consciousness rested upon him that whoso
should find him might slay him. The securitj^ to life is
the foundation to all other rights, for without life no
other right can exist. The primaiy object of government
is to protect life, and those rights which are incident to
tiic enjoyment of it. 'i'lie pi'imary law that all rights
pertaining to the individual might be maintained by
force caimot in the very nature of the case have applica-

Introduction ix

tion to the redress for the loss of life. Life being gone,
the power individually to seek revenge or redress is
gone. All other rights not aifecting the life, may, to a
limited degree, be maintained by force. In the very na-
ture of things, it becomes necessary to delegate the power
of punishment to some one. The power should not be
delegated to the injured person, for because of ties of
kinship, interest or mere wantonness or cinielty he might
unjustly condemn, where excuse or justification were
present. Hence in all forms of government, the power
has been delegated to the govenmient to punish for
crime. It is believed to be true that all governments
in one form or another, either perfectly or imperfectly
assume to enforce such niles and regulations.

Punishment is the correlative of law, and as a natural
sequence follows its violation, and it would be impos-
sible for law to exist without the accompanying power
to inflict punishment. The power exists as a natural
right; otherwise law could not exist and chaos and dis-
order would prevail in everything and everyw^here. The
establishment of government is the outgrowth of neces-
sity, because it maintains among men the highest degree
of happiness, and a uniformity of rights and privileges.
This object cannot obtain unless all persons are forced
to observe the rights of others. This power of the gov-
ernment to enforce respect for the rights of others, seems
not to have been denied, but upon the contraiy to have
been admitted by all writers upon political economy.
But the manner and extent to which the power may be
exercised has been a fruitful source of contention, and
many are found who advocate severe punishment as the
surest means of enforcing the law, while others insist
upon tempering the punishment with brevity as well as
with mercy. There can be no doubt about the govern-
ment having the absolute right to inflict punishments.
Penalties should be uniform, and in proportion to the
enormity of the crime. It may well be doubted whether

X Introduction

a government has the right to inflict capital punishment
for the violation of municipal laws, but it is generally-
admitted by all that a government has the right to in-
flict death in cases of murder. Sir William Blackstone,
as we have already had occasion to refer, justifies the
right of the government to inflict the death penalty in
cases of murder, for the reason that in a state of nature,
every person would have the right to do so, and since
any person would have this right in the absence of gov-
ernment, that a fortiori the government would have the
right as the delegated agent of the individual.

Every person has the right to life, but may in some
instances forfeit it, at least this is the conceded doc-
trine. Under the old English law which had its founda-
tion in the usages and customs of the Anglosaxons, in
certain cases, the criminal became an outlaw, and in this
sense was beyond the pale of govermnental protection,
being regarded as an enemy to the human family, and
as such had no right to life, and it was no crime for any
person to kill him. No such doctrine has been recognized
in the American states, but the death penalty for the vio-
lation of law is recognized and enforced in quite all the
states in other than murder cases. It is hardly the
province of a writer of text law to indulge in speculation
as to what would under certain conditions be the proper
theory of govermnent, but his duty is to record what the
law is. The living law is what the student as well as
the casual reader wants. Hence we say that whatever
our individual view might be in regard to the infliction
of the death penalty for the violation of municipal law,
could add but little for or against the fact that all gov-
ernments, both ancient and modem, we believe, without
an exception, assume the right to punish crime by in-
flicting death. The prevailing idea is that governments
assume the right to inflict punishments for the mere pur-
pose of reforming the offender, and to deter others from
committing like offenses. This theoiy is humane, but

Introduction xi

experience teaches that punishment, especially severe
and rigid penalties, do not reform the offender. Every
person has the inalienable right to life, liberty and the
right to hold and acquire property, and governments are
created for the pui-pose of protecting these rights, and
this power to protect them is an absolute one. The power
to inflict penalties in protecting the rights of the people
is derived from the Creator or from the laws of nature
and is an inalienable attribute.

The administration of criminal law does not sustain the
same relation to the government as that of civil law. That
side of the government which seeks to make certain acts
and omissions penal derives its authority from the ne-
cessity of protecting the community from the aggres-
sions of those who violate those rights possessed by
each individual, which aggressions by reason of their
enormity and evident tendency to disturb the public
peace come under the immediate supervision of the gov-
ernment. Because of the high rights so invaded, instead
of estimating the injury to the individual from a com-
pensatory view, the government lends a penal sanction.
Although these rights are the most sacred and in many in-
stances may be personal to individuals, yet the commu-
nity as an entity representing each individual possesses
the higher and better right to have such acts suppressed.
Such cases give no right of private redress to any one.

So, that men may live together in peace and harmony,
and that the highest degree of happiness may be reached
and enjoyed by all, it becomes necessary for each to re-
linquish certain of his rights to which he might other-
wise be entitled.

These introductory observations would be incomplete
without recalling the unifonn tendency of the human
race to free itself from the thraldom of its environment.
The oft recurring attempt to fonn rules and regulations
for its guidance, clearly demonstrates that the object has
always been to correct the evils imposed upon itself — to

xii Inteoduction

set up at least a semblance of justice — a justice founded
upon self presen-ation. In the appendix to this work
may be found examples of some of the oldest attempts
to establish law, the oldest concepts, now extant, marking
the powers of government. Although, in the main, these
attempts are free from veneer, yet, on the whole, very
much the shadow of our own enlightened society. The
principles are the same, and an effort to punish each,
for the self imposed encroachments of the other. Our
laws are but a reflex of these early efforts to establish
justice among men.

Such is a general outline of government and the power
to protect the rights of the people under them, and to
give redress and inflict punishment for the violation of
law.

TABLE OF CONTENTS

PART ONE
General Principles

INTRODUCTION

CHAPTER I.

SOURCES OF OUR CRIMINAL LAWS. PAGE

2. Laws of the parent country 2

3. Original settlers 2

4. The derivation of our criminal law 2

5. Under the constitution common law may be resorted to for

definition and description of crime 3

6. No authority for common law jurisdiction in the United States

courts ^

7. Fundamental law of the land 4

8. Extracts from the Constitution 5

9. Prohibitions to the states 6

10. Bills of attainder 7

11. Includes bills of pains and penalties 7

12. Ex post facto law 8

13. Further instances and explanations 8

14. Of law which alter the rules of evidence 9

15. Under the provisions of the Texas statute 12

16. Bill of rights 12

17. Illustrations 14

18. Divisions of Government 14

19. Legislatures restricted by the Constitution 15

20. Legislatures are conducted under their own rules 15

21. Distinction between judicial and legislative powers 16

22. Court made laws 17

CHAPTER IL

DIVISIONS OF CRIMES IN GENERAL.

§ 24. Division of crimes at common law 19

§ 25. Petit treason and its incidents 20

• • •

Xlll

27,

28,

29,

30,

31,

32,

33,

34,

xiv Table of Contents

PAGE

Difference between treasons and felonies at common law 21

Overt act necessary to be shown in treason 21

Misprisions 22

As to what required in indictment 23

Important distinctions 23

The right to kill to prevent felony 23

What is compounding of felony 23

Doctrine as applied to misdemeanors 24

No misprision of misdemeanors 24

FELONIES.

§ 35. Forfeiture of goods and estates at common law 25

MISDEMEANOaS.

§ 36. All crime below felonies misdemeanors 26

§ 37. Police regulations, cities, state, etc 27

§ 38. Of the classes of police regulations 28

§ 39. Misdemeanors mala prohibita ; what are 28

§ 40. Nuisances possess both civil and criminal character 28

CHAPTER III.

OF THE MILITARY LAWS.

§ 41. Laws of every nation necessarily divided into two departments 31

§ 42. Eesponsibility to two laws at the same time 32

§ 43. Military rules and regulations are not in a strict sense a part

of the criminal law 33

§ 44. Military power inlierent in every government 34

§ 45. Of the law martial 35

§ 46. Crimes committed in the army and navy 37

§ 47. Of court martial 38

§ 48. Who may convene a court martial 39

§ 49. Of the territorial jurisdiction of tlu> military 39

§ 50. No power in the civil courts to review proceedings in a court

martial, except for a want of jurisdiction 40

§ 51. Conviction in the military courts no bar to prosecution in the

state court, or in the Federal courts 41

§ 52. Intornalional comity 42

S 53. .luri.sdiction is confined over all persons in the service 43

8 54. Jurisdiction attaches when 44

8 55. Who iH subject to military duty 45

8 56. State militia under supervision of United States when 45

CHAPTER IV.

INTEKNATIONAL LAW AS APFKCTINQ CRIMES.

8 57. OfTcnHes ngninut nations 47

§ 58. Internxitionnl law 48

59.

60.

61.

62.

63.

64.

Co.

66.

67.

68.

69.

70.

79.

80.

81.

82.

83.

84.

85.

86.

87.

88.

89.

90.

91.

92.

93.

94.

Table of Contents xv

PAGE

Each nation is sovereign 48

Comity of nations 49

Allegiance of the citizen 49

Of piracy 49

Jurisdiction •''0

Laws of the United States •)!

The laws of the United States as to foreigners .32

Slave trade ^-

Ambassadors 53

Surrender of fugitives from justice 54

Between the states 54

Trial for crime other than the crime extradited 55

CHAPTER V.

JURISDICTION.

71. Territorial jurisdiction of the United States 57

72. Every nation has jurisdiction over the high seas 58

73. United States has jurisdiction of piracy over high seas 59

74. Maritime and admiralty jurisdiction 59

75. Out of the jurisdiction of any particular state 60

76. State and counties bordering on sea coast 60

77. Criminal jurisdiction of the United States, in the circuit and

district courts 61

78. The jurisdiction of the state is commensurate with its boun-

daries 62

Of the validity of judgments 63

Judgment in courts of general jurisdiction 64

A judge has no jurisdiction to render judgment where in-
terested 65

Consent of parties cannot confer jurisdiction 65

Courts must be held where law provides 66

Courts of concurrent jurisdiction 67

As to superior and inferior courts 67

Presumption of courts of record, judgments of 68

Jurisdiction conferred by constitutions and laws 69

Courts have no jurisdiction over mere political questions 69

State courts have no jurisdiction over places ceded to United

States ••• 70

Generally courts may not interfere in the performance of

duties of officers • • • • • • • • • • 70

Larceny, jurisdiction of at common law, as to different coun-
ties 71

Difference of larceny committed in foreign state and states

of Union i 72

Jurisdiction as to larceny continued 73

Jurisdiction of larcenv continued and discussed 74

xvi Table of Contents

PAGE

§ 95. Jurisdiction as to conspiracies 75

§ 96. Jurisdiction of homicide on border of state 76

§ 97. Jurisdiction as to false pretenses, cheats, etc 76

§ 98. Where a crime is committed in two jurisdictions 77

§ 99. Same, continued 78

§ 100. Same, continued 79

§ 101. Same, continued 79

CHAPTEK VI.

PERSONS EXEMPT FROM CRIME.
IDIOTS.

§ 103. Idiots and lunatics freed from responsibility 82

§ 104. Lucid interval 83

§ 105. Different species of insanity 84

§ 106. The decision in the McNaughton case 84

§ 107. The rule in insane delusion, as to supposed and unreal facts. . 87

§ 108. The riglit and wrong theory of insanity 88

§ 109. The burden is on the defendant to show incapacity 89

§ 110. Not in accord with doctrine of irresistible impulse 89

MORAL INSANITY.

§ 11 1. Defined 90

IRRESISTIBLE IMPULSE.

§ 112. Defined 91

§ 113. Must be act of diseased mind 92

INTOXICATION.

§ 114. Intoxication may be shown as a mitigation of the crime and

to negative malice 93

§ 115. Where one imbibes liquor to nerve himself to commit crime. . 95

§ 116. Result of experience as to those who commit crime 95

§ 117. The result of voluntary intoxication in homicide 96

§ 119. Application of the rule to hypnotic influences 97

§ 120. Involuntary intoxication, what is 98

§ 121. The defendant in criminal case is presumed to be sane 99

§ 122. Further discussion 99

§ 123. Pleadings of the defendant in 100

§ 124. Of the amount and extent of proof, etc 1""

S 125. Proof of malice in criminal cases must be beyond reasonable

doubt KM

§ 126. Tn.sanily Hhown is presumed to continue 104

§ 127. Dissenting opinions of judges 107

8 128. Non-expert witnesses 108

Table of Contents xvii

PAGE

§ 129. Expert witnesses 109

§ 130. Where the defendant became insane after conviction 110

INFANTS.

§ 131. Infants under seven years of age Ill

§ 132. Persons under the age of fourteen 112

§ 133. Eule in the southern states 113

MARRIED WOMEN.

§ 134. Presumption as to married women 113

§ 135. Presumption does not extend to felonies 114

§ 136. Common law rule modified by statute 115

§ 137. Is a prima facie presumption only 116

DURESS.

§ 138. Defendant not responsible if he is forced to commit 116

§ 139. Fraud or subterfuge duress 118

§ 140. Guilt always follows those who have the intent 120

CORPORATIONS.

§ 141. Corporations held for crime mala prohibita 120

§ 142. Early histoi-y of corporations 122

§ 143. For what acts a corporation may be indicted 123

§ 144. Where the common law cannot reach, the legislature may. . . . 124

IGNORANCE OF THE LAWS.

§ 145. Ignorance of the law excuses no man 125

§ 146. Justice requires that general rule have exceptions 125

§ 147. Exception to the rule that all persons are presumed to know

the law 126

§ 148. Exceptions in the case of larceny 126

§ 149. Further discussion 127

§ 150. Where the laws are plain and beyond doubt 128

IGNORANCE OF FACTS.

§ 151. Ignorance of facts excuses crime 129

§ 152. Mistake 130

§ 153. Homicide committed under misconception of facts, excusable. 131

CHAPTER VII.

CRIMINAL INTENT.

§ 154. Criminal intent precedes criminal act 133

§ 155. A purpose to commit a specific crime 133

xviii Table of Contents

PAGE
§ 156. A purpose to commit a specific crime and through mistake, a

diflferent crime is committed 134

§ 157. Accident or mistake where act does not amount to crime 134

§ 158. The criminality or noncriminality of crime of an evil intent. . 135

§ 159. Eule where the intent is to commit a specific crime 136

§ 160. Malignity of the intent is measured by the crime intended. . . 137

§ 161. Further discussed 138

§ 162. Where one by his -wrongful act causes another to injure a

third person 139

§ 163. Where there are reckless, cruel and wanton acts 140

§ 164. Innocent purpose, but act characterized by carelessness 141

§ 165. Rule where one is in the pursuit of lawful business 142

MALICE.

§ 166. What constitutes 143

MURDEE.

§ 167. Defined and explained as to elements of malice 143

§ 168. Common rule in the perpetration of rape, etc 144

§ 169. Same under statute 145

§ 170. Malice is shown by the manner and the means, etc 146

§ 171. Consequences of reckless and wanton acts 147

ARSON.

§ 172. Of the quality of malice 148

MALICIOUS MISCHIEF.

§ 173. Ill will must be shown against the owner of property 148

LIBEL,

§ 174. What is libel, per se, etc 149

§ 175. Malice in the foregoing crime different in degree only 150

PARENT AND CHILD.

§ 176. Of the duties and obligation of parent 150

§ 177. Mutual obligations of parent and child 151

§ 178. Duty tlic strong owe to the weak 152

§ 179. Parent has no right to enforce obedience to illegal act 153

§ 180. Punislinicnt must be administered free from malice 154

§ 181. The parent may under some circumstances kill to protect the

child 154

HUSBAND AND WIFIC.

S 18li. A« to the intent of the wife while under the cocrs'.on of the

hiiHband 154

^ 18.1. Wife 's defense 155

Table of Contents xix

TEACHERS AND INSTRUCTORS. TAQ^

§ 184. The teacher's intent in correcting child pupil 155

§ 185. Guardian and ward 157

CHAPTER VIII.
PRINCIPALS AND ACCESSORIES.

§ 186. Principals and accessories distinguished 158

§ 187. Principals of the first and second degree 159

§ 188. All persons engaged in the commission of a crime, principals. 159

§ 189. Difference between accessories and principals in second degree. 160

§ 190. Offenses at common law having no accessories before the fact. 161

§ 191. Accessories before the fact defined 162

§ 192. Principal actor must do the thing agreed upon 163

§ 193. Accomplice defined 164

§ 194. Government may discharge accomplice on agreement to testify. 164

§ 195. What must be done by the informer to establish immunity. . 165

§ 196. Testimony of accomplice must be corroborated 166

§ 197. What constitutes accessory after fact 167

CHAPTER IX.

FORMER JEOPARDY.

This is a law of universal conscience 168

As to state and Federal governments 169

Constitutional provisions 169

State and Federal governments distinct 170

As to the administration of military laws 170

Courts of concurrent jurisdiction 171

One criminal cannot atone for his brother in crime 172

All participators in crime punished 173

Jeopardy is applicable to offenses of common elements 174

Different crime proceeding from same facts 175

Minor offenses included in greater 176

Same, continued 177

WHAT CONSTITUTES JEOPARDY.

As to indictment 179

Variance between indictment and proof 179

Court of the indictment must have jurisdiction 180

Different counts 181

New trial and arrest of judgment 182

Further considered 183

State in a criminal case has no right to appeal 183

Two offenses committed bv the same act 184

198.

199.

200.

201.

202.

203.

204.

205.

206.

207.

208.

209.

210.

211,

212,

213.

214,

215.

216,

217,

218

219,

220,

221.

222.

223.

224.

225.

226.

227.

228.

229.

230.

231.

232.

XX Table of Contents

PAGE

Larceny from different persons at the same time 185

Passing forged paper, etc 186

Cardinal doctrine of jeopardy, what is 187

Test of the rule 187

Arraignment 188

Discharge of jury 189

Failure of jury to agree 190

WAIVER OF RIGHTS.

What is 190

At common law 191

In American states 192

Eights that cannot be waived 192

Implied consent to waiver sufficient 193

The authority of council to waive 193

Summary 194

Nolli prosequi 194

CHAPTER, X.

CRIMINiVX, PRESUMPTIONS.

Presumptions part of the criminal law 196

What are presumptions of law 197

Presumptions how created 198

Criminal trial 199

Presumption defined 199

Rebuttable presumptions 200

The burden of proof 200

Of the primia facie case 200

Presumptions of fact 201

All persons presumed to do those things required by law 201

Corpus delicti 202

Defendant 's duties 202

Presumptions as to conspirators 203

Presumptions as to possession of recently stolen property.... 204

Further considered 205

Presumptions as to those absenting themselves beyond the

state 205

Presumption of continuance of life 207

Presumptions as to married women 208

Sanity is presumed 209

All persons arc presumed to be normal in tluir physical condi-

t ion 209

Presumption of the probal)le results of a man's act 210

Presumption as to persons under the ago of seven years 211

233

234,

235,

236,

237,

238,

239

240,

241,

242,

243,

244.

245.

246.

247.

248,

249.

250.

251.

252.

253.

254.

255.

256.

257.

258.

259.

260.

261.

262.

263.

264.

265.

266.

267.

268.

269.

Table of Contents xxi

PAGE

Presumptions as to females under the age of ten 212

Taking property openly and notoriously 212

All persons are presumed to know the law 213

Malice is presumed from the use of a deadly weapon 214

Presumption where one dies more than a year and day from

wound 2^^

Defendant is presumed to be of good character 216

Conflict of presumptions 217

Defendant fleeing country, presumption of 218

Defendant 's right to explain 219

Presumption from the fabrication of evidence 220

Courts are presumed to take notice, etc 220

Presumption of guilt from judicial confession 221

Dying declaration presumed to be true 221

Presumption as to the testimony of an accomplice 222

Presumption as to officers, etc 223

CHAPTER XI.

CONFESSIONS.

270. Admissions and confessions 224

271. Confessions, the effect of 225

272. Classes of confessions 226

272a. The effect of a plea of guilty in open court 227

273. Confessions facts to be proven 227

274. Confession defined 228

275. Admissibility is for the court 229

276. Inducement 230

277. Persons in authority 230

278. Excluding confessions 231

279. Must be voluntary 232

280. Proof of admonition 233

281. The test 234

282. Threats of a mob 235

283. Confessions at common law 235

284. At the time of arrest demeanor given in evidence 236

285. Silence as a confession 237

286. Confession only binds the person making it 238

287. Confession of principal, accessory, etc 239

288. As to second confession 240

289. No examining courts at common law, as confession 240

290. Confession obtained through fraud 241

291. Confession while drunk 242

292. Confession by persons incapacitated 242

293. Confession of defendant voluntarily testifying in his own be- ; ;

half 243

xxii Table of Contents

PAGE

§ 29-4. Inadmissible confession cannot be used for impeachment 244

§ 295. Admission of former marriage, confession 244

§ 296. Confession by third parties 245

CHAPTER Xn.

PARDONING POWER.

Pardoning power in the Crown 246

The power to grant pardons in the American states is with

the executive 247

Cases where the Crown had no power to grant pardons 247

The power is in the president and congress cannot abridge it. 248

Of the definitions, and the divisions of pardons. .' 250

The effect of an unconditional pardon 251

Conditional pardon, what must contain 253

General pardon, amnesty, etc 254

Imposition practiced upon pardoning power vitiates it 255

The pardon must be delivered and accepted 256

The right to exercise pardoning power is one purely of dis-
cretion 257

Courts will take judicial knowledge of the granting 258

The president of the United States cannot pardon impeach-
ment 258

Contempts and crimes may be pardoned 259

The effect of a pardon 259

CHAPTER XIII.

SENTENCE AND PUNISHMENT.

§ 312. Punishment at common law 261

§ 313. Punishment of felonies 261

§ 314. Other consequences follow conviction for crime 262

§ 315. Punishment in the absence of statute 263

§ 316. .Some of the punishments of common law obsolete 264

§ 317. Punishment of common scolds 264

§ 318. Benefit of clergy 265

§ 319. In the absence of statute, common law punishment may be

used 266

§ 320. Punishment at common law was of two fold character 266

§ 321. Sentence when imposed 267

§ 322. Sentence must be in conformity to law 267

g 323. Cruel and unu.sual punishments 268

§ 324. Modification of sentence 269

g 325. Punishment must be inflicted as the statute provides 272

§ 326. Cuiiiul.'itive Htatutes ■ • • : ^73

8 326n. DifTcrent punishment for dififcrent sexes 274

297.

298.

299.

300.

301.

302.

303.

304.

305.

306.

307.

308.

309.

310.

311.

Table of Contents xxiii

PART TWO
Specific Crimes

CHAPTER XIV.

ADULTERY. PAGE

327. Was not a crime at common law 27fi

§ 328. Definition 277

§ 329. Common, Roman and Canon law 278

§ 330. Under statutes 279

§ 331. As to whether in the commission of the crime of incest,

bigamy, adultery may be committed in the same act 280

§ 331a. Indictment 281

CHAPTER XV.

AFFRAY.

§ 332. Definition 283

§ 333. Gravamen of the crime 283

§ 334. What constitutes 284

§ 335. May be committed short of blows, when 284

§ 336. Compared to riot, rout 285

§ 337. Fighting iu self defense 286

CHAPTER XVI.

AKSON.

§ 338. Definition 287

§ 339. What includes 287

§ 340. Barns in the fields 288

§ 341. Extensions of statutes 289

§ 342. Owner of house 289

§ 343. Wife 's house 291

§ 344. Total destruction not necessary 291

§ 345. Of the attempt 292

§ 345a. Attempt at arson, substantive crime 293

§ 345b. Intent 293

CHAPTER XVn.

ASSAULTS AND BATTERY.

346. Definition and illustration 295

347. Present ability must be taken from standpoint of defendant. 296

348. Distinction between assault and battery 298

349.

350.

351.

352.

353.

354.

355.

356.

357.

358.

359.

360.

361.

362.

363.

xxiv Table of Contents

PAGE

Physical force necessary 299

Intent and ability must concur 300

Specific intent not necessary 300

The means used 301

Of the consent of the assailed 302

Simultaneous language in explanation of assault 303

Under what circumstances violence may be inflicted 305

Violence inflicted in the defense of property 305

As to the right of those who frequent hotels 307

The degree of force hotel proprietor may use 308

Of those occupying particular relations to each other 309

Special duty towards oihers 309

Act of the assailant to be viewed from standpoint of assailed. 310

Division of assaults under statutes 311

Preventing unlawful acts 312

CHAPTER XVIII.

ATTEMPTS.

§ 364. Definition 314

§ 365. Preparatory acts 316

§ 366. Solicitations 316

§ 367. Solicitations when an attempt 317

§ 368. Misdemeanors at common law 319

§ 369. No attemjit in some crimes 319

§ 370. As to perjury 320

§ 370a. As to routs, riot, etc 321

§ 371. As to assaults 321

§ 372. Doctrine of attempts applied to misdemeanors 322

§ 373. Solicitations in .some crimes attempts 323

§ 374. Extent of the intent 324

§ 375. The intent and an overt act must concur 324

§ 376. Voluntary abandonment of intent 325

§ 377. Where tlie crime is impossible of commission. . . . .' 326

S 378. The extent of the act 327

CHAPTER XIX.

BARRATRY.

8 379. Defined 328

S 380. Is an ofTen.so in the American states 328

§ 381. A misdemeanor at common law 329

8 382. WfiH indictaljle us a common nuisance nl coninKin law 329

8 383. Champerty and mainten.inee 330

Table of Contents xxv

PAGE

§ 384. Are offenses which interrupt the course of justice 330

§ 385. Further discussed 332

§ 386. As criminal offenses in the states 332

CHAPTER XX.

BIGAMY.

§ 387. Defined 334

§ 388. Exceptions under the statutes 334

§ 389. What facts the indictment must contain 335

§ 390. How the marriage may be proven 330

§ 391. Under what circumstances may the defendant be convicted?.. 337

§ 392. Manner of performance of marriage ceremony 338

§ 393. What is competent evidence against the defendant 338

§ 394. At common law, wife not competent to testify 339

§ 395. Incestuous marriage, etc 339

§ 396. What is a good defense 340

§ 397. Where the right to remarry is upon contingency, etc 340

§ 398. As to the place of the marriage 342

§ 399. No defense to show the former marriage is voidable 343

§ 399a. Contract of marriage must be solemnized 344

CHAPTER XXI.

BRIBERY.

§ 400. Defined and described 346

§ 401. The crime as considered by our ancestors 347

§ 402. The thing accepted must have some value 349

§ 403. Offering and accepting, substantive crimes 349

§ 404. Offering to bribe another to control vote 350

§ 405. Candidate offering to fill office witliout compensation 351

§ 406. The oft"ering to bribe in the nature of an attempted crime. . . . 352

§ 406a. Soliciting bribe 352

§ 407. Common law embracery, bribery under statute 353

CHAPTER XXII.
BURGLARY.

408. Definition 354

409. Dwelling house defined 354

410. Common law, as to buildings enlarged 356

411. Breaking defined 357

412. Entering the house with the consent of the owner not burglary. 359

xxvi Table of Contents

PAGE

§ 413. Collusion with owner to catcli burglar 360

§ 414. Consent obtained by fraud or trick 360

§415. Entry 361

§ 416. As to the intent 362

§ 417. As to the time 363

CHAPTER XXIII.

CONSPIRACY

Conspiracy is not an attempt to commit a crime 364

Conspiracies, as to acts indictable per se 365

No strict rule constituting 366

Are substantive offenses 367

Conspiracies merged into the consummated offense 368

Defined 369

Mere willingness and tlie intent do not constitute 370

Conspiracies to defraud another of his property 371

Partners may be guilty of conspiracy 372

Some other circumstances, the offense may be committed 373

To satisfy ill will 373

Agreements to commit acts of immorality, conspiracies 374

To defeat public justice 375

Of and concerning the wages of workmen 375

A boycott is an unlawful conspiracy 376

Skill of the workingman, and labor is capital 378

Combination of dealers to lower or to raise prices is 379

Combinations to effect legal ends by illegal means is 379

Allegation of indictment 380

Same, continued 380

Illegal acts by illegal means, indictment 381

Allegations where the crime has been consummated 381

Rule as to principals and accessories 382

Where there are two persons to the unlawful agreement 383

Where the minds are inflamed by speeches 383

Acts and declarations 384

Agreements made before or after consummation 385

Making a prima facie case of conspiracy, old rule 386

CHAPTER XXIV.

COUNTKBFEITINQ. -

§ 445, Definition 387

8 446. Englisli Stntutes 388

418.

419.

419a

420.

421.

422.

423.

424.

425.

426.

427.

428.

429.

430.

431.

432.

433.

434.

435.

436.

437.

438.

439.

440.

441.

442.

443.

444.

Table of Contents xxvii

PAGE

447. Constitution of the United States does not limit the states in

prosecuting 2^"

448. Custom cannot legalize a coin 391

448a. As distinguished from forgery 393

CHAPTER XXV.

CONTEMPTS OP COURT.

Contempts are a sort of quasi criminal offense 395

Powers of legislatures 396

As to powers of other assemblies 397

Legislatures are possessed of the same rights as courts 397

Powers of the English Parliament 398

Powers of inferior legislatures, city councils 398

The power of the courts to protect themselves is inherent. . 398

Has been the law of England for centuries 399

Contempt committed in one court cannot be interfered with in

another *^^

The writ of habeas corpus may be resorted to 402

Conflict of authorities as to right of appeal 403

As to the power of the legislature to abridge the common

law 404

What is necessary for judgment to show 406

As to the powers of a court not of record 407

Appeals may be allowed by statute 408

The right to pardon for contempts 409

Contempts as criminal offenses 409

Comments concerning cause pending 410

As to the intent of the contemnor 411

Summary judgment of the court where committed in its

presence '^^^

Procedure in the matter of constructive, contempts 412

In the absence of statute, punishment at the pleasure of court. 413

Contempts may be also crimes against the general laws 414

As to constitutional courts, etc 414

CHAPTER XXVI.

EXTORTION.

473. Definition 416

474. Officers of the Government 417

475. Extortion by de facto officer 417

476. As to usurpers • 418

477. Of the intent • 418

449.

450.

451.

452.

453.

454.

455.

456.

457.

458.

459.

460.

461.

462.

463.

464.

465.

466.

467.

468.

469.

470.

471.

472.

xxviii Table of Contents

CHAPTEE XXVII.

EMBEZZLEMENT. PAGE

§ 478. Definition -1-^

§ 479. At common law -vvas not a crime 421

§ 480. Distinctly a statutory offense 423

§ 481. Eule as to clerks, servants and the like 426

§ 482. Of the kind of property 428

§ 483. Property illegally acquired by principal, agent may embezzle. 428

§ 484. Relation of trust, explanation 429

§ 485. Further considered 430

§ 486. As to the class of persons 431

§ 487. Explanation of the terms of statutes 432

§ 488. The relation of trust is not dependent upon compensation.. 434

ij 489. Part owner not subject to for joint property 434

§ 489a. To borrow money for specific purposes, failure to do so not

embezzlement 435

§ 490. Employment when of special nature 436

§ 491. The intent must exist at the time of taking the property... 437

§ 492. Offering to restore may be shown in mitigation 439

CHAPTER XXVIII.

FALSE PRETENSES.

Common law cheats 441

English statutes 442

Protenscs must relate to some existing or past fact 443

How strong shall the pretense be 444

How shall the pretense be effected 446

As to the promise and the expression of opinion 447

Both sellers and purchasers may be guilty of 449

Difference between false pretenses and iion criiiiiii;!! lie 450

Representation by act and by silence 452

Of wliat elements composed 452

The intent must be to defraud 453

Defendant must liave knowledge of the falsity of the state-
ment 454

Tlio intent of the prosecutor 455

CHAPTKR XXIX.

FOKQERY.

S 506. Definition 457

§ 507. Tlic crime how committed 458

S 508. Same, confinued 460

m 509. Si({niiiK the nnnie of anotlier as the agent 461

493.

494.

495.

496.

497.

498,

499,

500.

501,

502.

503.

504

505

Table of Contents xxix

PAGE

§ 510. Subsequent ratification of the act by principal 462

§ 511. Falsely personating another 462

§ 512. Altering the original entries of books of account is 464

§ 513. Antedating instrument is, when 46u

§ 514. Falsifj-ing records is, when 466

§ 515. Falsely reading instrument to another who cannot read 467

§ 516. Instrument must affect property 469

§ 517. Of the statutes of the states 470

§ 518. Specific intent to defraud 472

§ 519. Recording instrument is sufficient publication 472

§ 520. Instrument must be set out in words and figures 473

§ 521. What instrument is the basis of 474

§ 522. Following the language of the statute is sufficient 475

§ 523. Indictment may contain count for passing and for the forgery. 475

§ 524. As to evidence ^'^^

§ 525. Laws of Scotland ^77

§ 526. Passing is not proved till it is shown that it passed to another. 479

§ 527. The attempt 4'^^

CHAPTER XXX.

HOMICIDE.

§ 528. Divisions of "^^l

§ 529. Murder defined 48

§ 530. Malice need not be against the person killed 483

§ 531. Presumptions as to acts 484

§ 532. Ex|3ress malice, how proved 484

§ 533. Presumption from proof of corpus delicti 486

§ 534. Presumption as to continuance of malice 48 1

§ 535. Ignorance and negligence of physician 487

§ 536. Presumption as to first wound 489

§ 537. Murder by other than physical means 490

§ 538. Person must be alive ' 490

§ 539. Dueling ^^91

§ 540. Definition 492

§ 541. At common law no degrees of murder 493

§ 542. Murder by lying in wait, poison, etc 494

§ 543. Specific intent to kill necessary, when 496

§ 544. Under Federal statutes no degrees of murder 497

§ 545. Manslaughter defined 498

§ 545a. Cause for jury ^^^

§ 546. Presumption that defendant acted upon new provocation, when. 501

§ 547. Insulting word to female relative 502

§ 548. What is cooling time 503

§ 549. Killing officer while making arrest '...... 505

XXX Table of Contents

PAGE

§ 550. Peace officer must act in conformity to law 507

§ 551. Killing an officer in resistance to arrest, malice presumed.... 509

§ 552. Involuntary manslaughter defined 510

§ 553. Misdemeanors merely mala prohibita 511

§ 554. Negligent acts 511

§ 555. Self defense, illustrations 512

§ 556. Apprehension of danger 513

§ 556a. Cowardice, fear, etc., different views 515

§ 557. Threats to take life 517

§ 558. Nonfelonious assaults 517

§ 559. Assault upon habitation 519

§ 560. Attack upon property other than habitation 519

§ 561. Homicide committed in the prevention of felony justifiable. . 521

§ 562. The right of the members of the family to defend each other. 522

§ 563. The degree of force used 524

§ 564. Nonfelonious assaults 524

§ 565. Wrongful act contributing to the necessity to kill 525

§ 566. Eetreat and pursuit 526

§ 567. Spring guns 527

§ 568. Assault to murder, misdemeanors at common law 629

§ 569. As to the intent 530

CHAPTER XXXI.

LARCENY.

§ 570. Definition and description 532

§ 571. At the common law the property must not savor of the soil.. 533

§ 572. Severing from the soil and aspotation at the same time is not. 534

§ 573. Wild animals at the common law were not subject to 535

§ 574. At common law dogs and cats were not subject to 53G

§ 575. Chores in action, at common law not 538

§ 576. Further discussion 539

§ 577. Of the title and possession of property 540

§ 578. One with the bare possession of property not a bailee 542

§ 579. Conversion of property after term of bailment, is 544

§ 580. Larceny of goods of a deceased person luid in tlio adminis-
trator 545 •

§ 58L Rule as to lost property 546

§ 582. Allegation of property when in corporation 547

§ 5f*3. Acquiring the possession of property I'v irick or fraud 548

§ 584. Larceny where the property is delivered for a special purpose. 551

§ 585. Wife 's possession 552

§ 586. Larceny involves two questions of possessions 554

§ 587. Where one has the right and the title to tlic property 555

§ 588. Property need not be taken lucri causa 557

§ 589. No rcpcfntance is a defense 558

Table of Contents xxxi

PAGE

§ 590. Rule in estimating the value of property 658

§ 591. Eule as to minors and deceased persons 560

§ 592. As to the consent, etc 561

§ 593. Entrapping the thief 562

§ 594. Of the attempt 563

RECEIVERS.

§ 595. Substantive offense 564

§ 596. English statutes 665

§ 597. The receiver need not have the actual manual possession of

property 565

§ 598. Receivers need not intend to acquire an interest in the prop-
erty 566

§ 599. Stolen goods restored to owner 567

§ 600. English statutes 568

55 601. Theft bote 568

CHAPTER XXXII.

LIBEL.

Definition 569

Justification 570

Tendency to bring on a breach of the peace 571

Libel per se, what is 572

What is indictable libel 572

Publication of the proceedings of court 674

What matters are privileged in court proceedings 575

As to legislature 575

Communications between persons in interest 575

Inquiries as to another's character 576

Reports of mercantile agencies 576

Candidates for office 676

Public oliicers 577

Elements of the offense 578

What constitutes publication 578

Criminal slander 579

CHAPTER XXXIIL

KIDNAPPING AND FALSE IMPRISONMENT.

§ 619. Definition 580

§ 620. Kidnapping and false imprisonment 580

§ 621. Of false imprisonment 581

§ 622. The person must be taken against his will 582

§ 623. Indictment 583

§ 624. Form of indictment of false imprisonment held to be good . . . 583

602.

603.

604.

605.

606.

607.

608.

609.

610.

611.

612.

613.

615.

616.

617.

618.

xxxii Table of Contexts

CHAPTER XXXIV.

MALICIOUS MISCHIEF.

§ 625. The offense at coninion law 584

§ 626. The intent 585

CHAPTER XXXV.
MAYHEM.

§ 627. Defined 587

§ 628. Early English statutes 587

§ 629. What was included at common law 588

§ 630. What included under the statutes 588

§ 631. As to the intent 590

§ 632. The indictment 590

CHAPTER XXXVI.

MISPRISIONS.

§ 633. At common law 592

§ 634. What constitutes 593

CHAPTER XXXVII.

MONOPOLIES — FORESTALLING, REGRATING AND ENGROSSING.

S 635. Old statutes of England may be common law here 594

CHAPTER XXXVIII.

NUISANCES.

§ 636. Subdivisions 596

§ 637. Bawdy and disorderly houses defined 596

S 638. Gossip, scandal, etc 597

§ 639. Married women 598

S 640. Common scolds 598

§ 641. Offensive trades 599

S 642. I'ii»)lic health 599

8 643. Eavesdropping •. . . . 600

S 644. Exposing the person 600

§ 645. Exposure in private place 601

§ 646. Htatulos 601

§ 647. (iaming and gaming houses 602

§ 648. Obstruction to highways, necessity justifies 602

§ 649. Custom will not justify 603

8 650. Public shows 603

§ 651. Drunkenness, punished as a nuisance 604

Table of Contents xxxiii

CHAPTER XXXIX.

PERJURY. PAQE

Defined ^^^

Was anciently a misdemeanor 606

An oath must have been administered in accordance with the

established form or substance of the law ti<J7

Corjjoreal oaths distinguished from others 608

Oath must be properly administered 609

Must be administered in conformity to the law 609

No difference whether witness voluntarily or involuntarily

appear and testify 610

Administering oath, statute must be followed 610

Oath must be administered by one authorized to do so 611

Who was empowered at common law to administer oaths. . . . 611

Oath must be administered in the officers' jurisdiction 612

Court must have jurisdiction of the person, subject matter. . . 613

Must be prosecuted in the federal court, when 614

Testifying to fact believed to be true, is not perjury 61.5

Testimony must have been willful and corrupt 615

Must have been matter material to issue 616

Witness compelled to testify against himself not perjury 617

Eule as to corroboration 617

CHAPTER XL.

PREVENTIVE JUSTICE.

§ 670. The law as at common law 619

§ 671. Security may be required after conviction 620

§ 672. At common law was confined to gross misdemeanors 621

§ 673. At common law was not regarded as punishment 622

§ 674. Considered under the statutes 622

§ 675. The extent of the threat and the probable cause of injury... 623

CHAPTER XLI.

PRISON BREACH, ESCAPE AND RESCUE.

§ 676. Defined 625

§ 677. What the indictment must show 625

§ 678. Officers neglect of duty 627

§ 679. Prisoners escaping "- '

§ 680. Defendant may break, when 627

§ 681. Prisoner must be held by legal warrant 627

§ 682. When a prisoner may be discharged 628

§ 683. Voluntary escapes defined 629

§ 684. Resisting the service of legal process 629

652.

653.

654.

655.

656.

657.

658.

659.

660.

661.

662.

663.

664.

665.

666.

667.

668.

669.

xxxiv Table of Contents

CHAPTER XLII.

PAGE

§ 685. Definition 631

§ 686. The character of force necessary 632

§ 686. Application of the doctrine of force 633

§ 687. Consent, resistance, the extent thereof 634

§ 688. By whom committed 636

§ 689. Of the force necessary to assault to rape 637

§ 690. Assault to rape under the statutory age 639

§ 691. Assault may be committed by husband upon wife, when 641

§ 692. Boy under age of fourteen may commit assault 641

§ 692a. At common law emission and penetration necessary 642

CHAPTER XLIIL

EOBBERY.

§ 693. Definition 643

§ 694. Taking property from a debtor 643

§ 694a. Nature of the force 644

§ 695. Of the degree of fear 645

§ 696. Sodomy, charge of sufficient fear 646

§ 697. Property from whom taken 64(5

§ 698. Value and the amount thereof 647

§ 699. The intent must be fraudulent 647

§ 700. Proof 648

§ 701. Of the assault 649

CHAPTER XLIV.

SEDUCTION.

§ 702. At the common law 650

§ 703. Definition 650

§ 704. Of the promise of marriage 651

§ 705. Previous chaste character 653

§ 705a. Burden of proof — Conflict of decision 655

CHAPTER XLV.

SODOMY.

§ 706. Defined 657

§ 707. As to the assault 657

§ 707a. Per oh 658

CHAPTER XLVI.
SUNDAY LAWS AND OFFENSES AGAINST RELIGION.

§ 708. Christianity aH a part of the common law 659

§ 709. No punishment for nonobservnnce of religion 660

Table of Contents xxxv

PAGE

§ 710. Divisions of the offense 661

§ 711. Definition of Blackstone 661

§ 712. Profane swearing a public nuisance 662

§ 713. Single instances of swearing not punishable 662

§ 714. Non-observance of religion, whether common law 663

§ 715. Sustained upon what grounds 664

§ 716. Municipal regulations 664

§ 717. Sunday laws constitutional 665

§ 718. Same continued 666

§ 718a. Power conferred upon city governments 666

§ 719. As to the statutes 666

§ 720. Exceptions to labor 667

§ 721. As to those persons who observe a day other than Sunday... 667

§ 722. As to the intent ■ 668

CHAPTEE XLVII.

TREASON.

§ 724. Not indictable as a common law offense in this country 669

CHAPTER XLVIII.

UNLAWFUL ASSEMBLIES.

§ 725. Definition and explanation 671

§ 726. Is in the nature of the disturbance of the peace 672

PART THREE

CHAPTER XLIX.
OFFENSES RELATING TO AGENTS ABROAD.

§ 727. Making false oath or account by consular officer, perjury 674

§ 728. Consular officers must account for all moneys, penalty, em-
bezzlement 675

§ 729. Consul or commercial agent must perform duties; neglect,

penalty 675

§ 730. False certificate by consul, vice consul or agent as to property,

punishment 676

§ 731. Perjury may be committed before a Secretary of Legation and
Consular officer and may be prosecuted in any district of

U. S 676

§ 732. Assaulting public minister of the U. S.— Penalty, void 677

§ 733. Writ or process sued out against foreign minister 677

§ 734. Person suing out process against public foreign minister

deemed violator of public peace, punishment 678

737.

738.

739.

740.

741.

742.

743.

744.

745.

xxxvi Table of Contents

CHAPTER L.

PROVISIONS RELATING TO BIRDS. „.„„

PAGE

§ 735. Migratory and insectivorous birds shall be under the protec-
tion of the Government and unlawful to kill, punishment. . 679

§ 736. Migratory bird treaty act, Acts relating to migratory birds,

unlawful 680

Eegulation allowing hunting 681

Shipments contrary to state laws, prohibited 681

Arrest for violations 682

Punishments for violations 682

Open season 683

Taking, etc., for scientific or breeding purposes 683

Invalidity of any clause 684

Inconsistent laws repealed 684

Breeding on farms not prohibited 684

CHAPTER LI.

ADMIRALTY AND MARITIME JURISDICTION.

Offenses Within the Admiralty and Maritime and the Territorial Jurisdiction

of the United States. Penal Code, Act March 4, 1909.
§ 746. Places within or waters upon which sections of this chapter

shall apply 685

§ 747. Murder 686

§ 748. Manslaughter 686

§ 749. Punishment for murder; for manslaughter 687

§ 750. Assault with intent to commit murder^ rape, robbery, etc.... 687

§ 751. Attempt to commit murder or manslaughter 687

§ 752. Rape 688

§ 753. Having carnal knowledge of female under sixteen 688

§ 754. Seduction of female passenger on vessel 688

§ 755. Payment of fine to female seduced; evidence required; limita-
tion on indictment 688

8 756. Loss of life by misconduct of officers, etc., of vessels 689

§ 757. Maiming 689

§ 750. Robbery 689

S 759. Arson of dwelling house 690

§ 760. Ar.son of otlicr buildings, etc 690

§ 7(71. Larceny 690

§ 702. Receiving, etc., stolen goods 691

§ 763. Laws of States adopted for punishing wrongful acts, etc 091

CHAPTER LIT.

VIOLATION OK THE CENSUS LAWS.
§ 764. All per.ions ovor 18 years 1o answer (]iiestions by ccnsua

enumerator, punishment for inaccurate information 692

765.

766.

767.

768.

769.

770.

771.

772.

773.

774.

775.

776.

Table of Contents xxxvii

PAGE

Unlawful use of frank census matter, punishment 694

Wilfully withhold information by officer religious organization,

etc., to census taker 694

Census mail frank, illegal use of, punishment 695

Punishment for securing pay for appointment of census em-
ployee, etc 695

Census employee neglecting duty without cause. False swear-
ing, false returns, etc 69G

Consideration or fee for appointment under census act illegal,

punishment ^97

OIKcers and employees failing to perform duty under census

act. Punishment 697

Persons over twenty-one years of age required to give informa-
tion to census taker, refusal, punishment 698

Refusing information to census director relative to hides, etc.

Punishment 699

Penalty for bribing officer 701

Officers neglecting to perform official duties, penalty 701

Persons over twenty-one years must answer questions of census
taker, penalty 702

CHAPTER LIII.

civil rights.

Offenses Against the Elective Franchise and Civil Rights

OF Citizens.

§ 778. Conspiracy to injury, etc., persons in the exercise of civil

rights ''^'^

§ 779. Depriving citizens of civil rights 704

§ 780. Conspiring to prevent officer from performing duties 705

§ 781. Unlawful presence of troops at elections 705

§ 782. Intimidation of voters by officers, etc., of Army or Navy. . 706

§ 783. Officers of army or navy prescribing qualifications of voters.. 706
§ 784. Officers, etc., of army or navy interfering with officers of

elections, etc ' "6

§ 785. Persons disqualified from holding office; when soldiers, etc.,

may vote 706

CHAPTER LIV.
violations by common carrier.

§ 787. Maliciously opening or breaking car, Act July 14, 1870,

punishment ' "^

§ 788. Wilful failure of carrier subject to interstate regulations to

comply with law, punishment 709

§ 789. Common carrier not allowed to transport diseased plants.. 711

xxxviii Table of Contents

PAGE

§ 790. Officers of corporations engaged in commerce as a common
carrier who embezzles, etc.; punishment, conviction in State

court a bar 711

§ 791. Penalties and punishment to common carriers for violation of

laws relating to common carriers 712

§ 792. Making false entries by common carrier in accounts, penalty 715
§ 793. Wlio, with intent to defraud, makes or utters false bill of

lading, etc., punishment 717

§ 794. Illegal act of common carrier by water 718

§ 795. Common carrier and its agent must not disclose information

concerning shipment, etc 719

§ 796. Eefusal to carry mail by water-carrier, punishment 720

§ 797. Unlawful to be oflficer of more than one carrier, punishment . . 720

CHAPTER LV.

COPYRIGHTS AND PATENTS.

§ 799. Inserting or impressing any notice of copyright upon any

uncopyrighted article w'ith fraudulent intent, punishment.. 722

§ 800. Any person who shall wilfully and for profit infringe any
copyright secured by act March 4, 1909, guilty of
misdemeanor 723

§ 801. Criminal prosecutions under copyright Act, March 4, 1909, must
be instituted within three years after cause of action
arose 723

§ 802. False affidavit to claim to copyright 723

§ 803. In case copyright of a book, officers showing that it has been

printed from type set in U. S 724

PATENTS.

§ 804. Any person who marks upon anything made, used or sold
by him, for which he has no patent, the name of the real
patentee, is subject to a penally 724

§ 805. In contests over patents, witnesses who refuse to testify in

disobedience to subpoena, guilty of contempt 725

CHAPTER LVI.

CURRENCY AND COINAGE,

OlTcnscB against the Currency, Coinage, etc. Penal Code, Act

March 4, 1009.

§ 807. "Obligation or other security of the United States" defend. . 727

§ 808. Forging or rountrrfoiting United States securities 727

g 809. Counterfeiting national hank notes 727

§ 810. Using plnteH to print notrs without authority, etc 728

8 811. PnHsing, selling, concealing, etc., forged obligations 729

Table of Contents xxxix

PAGK

Taking impressions of tools, implements, etc 730

Having in possession unlawfully such impressions 730

Buying, selling, or dealing in forged bonds, notes, etc 731

Secreting or removing tools or material used for printing

bonds, notes, stamps, etc 731

Counterfeiting notes, bonds, etc., of foreign governments.... 732

Passing such forged notes, bonds, etc 732

Counterfeiting notes on foreign banks 733

Passing such counterfeit bank notes 733

Having in possession such forged notes, bands, etc 733

Having unlawfully in possession or using plates for such notes,

bonds, etc 734

Connecting parts of diflFerent instruments 735

Counterfeiting gold or silver coins or bars 735

Counterfeiting minor coins 736

Falsifying, mutilating, or lightening coinage 736

Debasement of coinage by officers of the Mint 737

Making or uttering coins in resemblance of money 737

Making or issuing devices of minor coins 738

Counterfeiting, etc., dies for coin of United States 738

Counterfeiting, etc., dies for foreign coins 738

Making, importing, or having in possession tokens, prints,

etc., similar to United States or foreign coins 739

§ 832, Counterfeit obligations, securities, coins, or material for

counterfeiting, to be forfeited 740

§ 833. Issue of search warrant for suspected counterfeits, etc. ;

forfeiture 740

§ 834. Circulating bills of expired corporations 741

§ 835. Imitating national bank notes with printed advertisements

thereon 742

§ 836. Mutilating or defacing national-bank notes 742

§ 837. Imitating United States securities or printing business cards

on them 743

§ 838. Notes of less than one dollar not to be issued 743

CHAPTER LVII.

OFFENSFS RELATING TO CUSTOMS AND DUTIES.

§ 840. Locks and fastenings may be put on vessel by inspector, if

locks are broken master is responsible 745

§ 841. Master of any vessel who intentionally obstructs officer law-
fully going on board shall be punished 745

§ 842. Officers collecting imports under authority of U. S. shall own

vessel punishment 746

§ 843. Entering goods for transportation with intent to draw back

the duties and same landed in U. S. unlawful punishment. . 746

812.

813,

814,

815,

816.

817.

818.

819.

820,

821,

822.

823.

824.

825,

826.

827.

828.

829.

830.

831.

xl Table of Contents

PAGE

§ 844. Obliteration of any marks put on packages by revenue officer

penal 746

§ 845. Importer or proprietor of warehoused goods guilty of crime

if warehouse fraudulently opened 747

§ 846. Fraudulently concealing goods from public or private ware-
house guilty as under section 2986 R. S 747

§ 847. It is a felony for failure of owner or master not to proceed

to port of destination 747

§ 848. Fraudulently and knowingly importing goods that is contrary

to law, punishment 748

§ 849. Refusing to assist officers in making search or seizure mis-
demeanor 748

§ 850. Unlawful for any officer of U. S. to receive any portion of

informer's compensation penalty 749

§ 851. Officer under custom laws rebating any fine or penalty guilty

of felony 750

§ 852. Any person knowingly and wilfully with intent to defraud
U. S. smuggle any goods into U. S., under Act Feb. 27,
1877. Penalty 750

§ 853. Unauthorized person breaking, etc., seal car or vessel guilty of

felony 751

§ 854. A vessel must discharge the cargo in day time unless licensed

to do otherwise 751

§ 855. Unloading vessel in violation Sec. 25, Act June 26, 1884,

penalty 752

§ 856. Under Act Oct. o, 1913, protest may be filed against the
decision of the collector as to the rate of custom duties as to
contingent fee in respect to recovery. Unlawful. Punish-
ment 752

§ 857. Under Act Oct. 3, 1913, the general appraisers of merchan-
dise authorized to administer oaths to witnesses 754

§ 858. Wilfully and corruptly swearing falsely l)y any person in ex-
amination before general appraiser of mercliandise 754

§ 859. Giving or offering to give a bribe to employee of the U. S.

Act Oct. 3, 1913. Punishment 755

§ 860. Any officer or employee accepting lirilx' under Act Oct. 3,

1913. Punishment 756

CHAPTER LVIU.

OFFICIAL DUTIES.

Onen.ses Relating to Ollicial Duties. Penal Code, Act March 4, 1909.

8 862. Officer, etc., of the United States guilty of extortion 758

8 863. Hercipting for larger sums than arc j)ai(l 75H

8 864. DisbufHing offirr-r unlawfully converting, etc., i)ulilic money.. 758

8 865. Failure of treiiHurcr, etc., to safely keep public money 759

(j 866. f'uHtodian of puJilic money failing to snfely keep, etc 759

Table of Contents xli

PAGE

Failure of officer to render accounts, etc 759

Failure to deposit as required 760

Provisions of the five preceding sections, to whom applicable. . 760

Kecord evidence of embezzlement 760

Prima facie evidence 761

Evidence of conversion 761

Banker, etc., receiving deposit from disbursing officer 761

Embezzlement by internal-revenue officer, etc 762

Officer contracting beyond specific appropriation 762

Officer of United States court failing to deposit moneys, etc. 762

Eeceiving loan or deposit from officer of court 763

Failure to make returns or reports 763

Aiding in trading in obscene literature 763

Collecting and disbursing officers forbidden to trade in public

property 764

Certain officers forbidden to purchase, etc., witness, etc., fees 764

Falsely certifying, etc., as to record of deeds, etc 764

Other false certificates 765

Inspector of steamboats receiving illegal fees 765

Pension agent taking fee, etc 765

Officer not to be interested in claims against the United

States 765

Member of Congress, etc., soliciting or accepting bribe, etc... 766

Offering, etc., member of Congress bribe, etc 766

Member of Congress taking consideration for procuring con-
tract, office, etc; offering member consideration, etc 767

§ 890. Member of Congress, etc., taking compensation in matters

to which United States is a party 768

§ 891. Member of Congress not to be interested in contract 768

§ 892. Officer making contracts with member of Congress 769

§ 893. Contracts to which two preceding sections do not apply 769

§ 894. United States officer accepting bribe 770

§ 895. Political contributions not to be solicited by certain officers. 770

§ 896. Political contributions not to be received in public offices 771

§ 897. Immunity from official proscription 771

§ 898. Giving money to officials for political purposes prohibited 771

§ 899. Penalty for violating provisions of four preceding sections. . . . 771
§ 900. Governmental officer, etc., giving out advanced information

respecting crop reports 772

§ 901. Government officer, etc., knowingly compiling or issuing false

statistics respecting crops 772

CHAPTEE LIX.

ESPIONAGE ACT.

§ 903. Espionage Act, detailing circumstances made criminal against

Government. Punishment for Violation 774

867.

868.

869.

870.

871.

872.

873.

874.

875.

876.

877.

878.

879.

880.

881.

882.

883.

884.

885.

886.

887.

888.

889.

xlii Table of Contents

PAGE
§ 904. Espionage Act amended by act of May 16, 1918. Approved

June 15, 1917 776

§ 905. Making false statement, wilfully to interfere with national

forces 778

§ 907. Punishment for concealing offenders, etc 779

§ 908. Communication foreign government, plans defense, punish-
ment 779

§ 909. Designation of prohibited places 780

§ 910. Court martial, etc., jurisdiction not affected 780

§ 911. All possessions of the United States included, offenses on the

high seas, etc 780

§ 912. Former act repealed 781

§ 913. Vessels in ports of United States 781

§ 914. Forfeiture of vessel if owner refuses to obey rules, etc 781

§ 915. Injury, etc., of vessels by owner, etc., unlawful 782

§ 916. Enforcement by the President 78IJ

§ 917. Injuring vessels engaged in foreign commerce. Punishment. . 783

§ 918. Interference with foreign commerce by violent menus 783

§ 919. Enforcement of neutrality, maintenance of neutrality, clear-
ance or departure withheld, from vessel carrying arms, etc.

To a belligerent when the United States is neutral 784

§ 920. Detention of private war-like vessel to prevent use, against

friendly nation 784

§ 921. Sending out armed vessel for delivery to belligerent nation

at peace with the United States, unlawful 785

§ 922. Clearances, etc., manifests to be delivered before the depar-
ture of vessels 785

§ 923. Eefusal of clearance, etc., if statements believed to be false

etc 786

§ 924. Punishment for unlawful departure, etc 787

§ 925. Interned belligerent aliens, leaving limits, etc., without permis-
sion, to be arrested, etc 787

§ 926. Or)/anizing expeditions against friendly powers 788

§ 927. Enforcement by the President 788

§ 928. Compelling foreign vessels to depart 788

§ 929. Former resolution and conflict of laws repealed 789

§ 930. Seizure of arms and otlier articles intended for export 789

§ 931. Further detention, etc., application to court for warrant.... 790

8 932. Petition of owner for restoration 790

8 933. T.ibe] proceedings for condemnation and sale of seized prop-
erly 791

§ 934. Admirjllty procedure to govern trial 791

§ 935. Lawful export trade not interfered with 792

§ 936. Discrelionary release of property 792

8 D37. Enforcement by the President 793

9 938. Certain exports in time of war unlawful 793

Table of Contents xliii

PAGE

Punishment for violation 793

Clearance refused vessel carrying prohibited articles 794

Disturl)ance of foreign relations 79-1

Punishment for falsely assuming to be a foreign official. . . . 795
Punishment for acting for foreign government, without

recognition 79o

"Foreign Government" use of term construed 795

Punishment for conspiracy in the United States to injure

property in foreign country, at peace therewith 796

Passports '^^

Punishment for false statements in application 797

Illegally using passport of another 797

Punishment for counterfeiting, forging, etc., passports 798

Counterfeiting Government seal 798

Punishment for forging, etc., any Government seal 798

Punishment for forging, etc., naval, military, or official passes

or permits 799

Use of mails, matter violating provisions of this Act, non-
mailable 799

Letters, etc., advocating treason, resistance to law, etc., non-
mailable 800

Punishment for violations 800

General provisions, prior offenses, etc., subject to former laws 801

Alien anarchists, etc., excluded, admission 801

Deportation after entry, if member of excluded classes.... 802

Punishment for returning after deportation 802

Foreign travel, act of, made unlawful during time of war. . . . 802
Passports required for all entries, and departures of citizens 804

Punishment for violation 804

Meaning of terms "United States," and "person" 804

An Act to regulate further the entry of aliens into the United
States 805

CHAPTER LX.

OFFENSES AG.A.INST GOVERNMF,NT.

Offenses against the existence of Government Penal Code, Act March

4, 1909.

§ 966. Treason 807

§ 967. Punishment of treason 807

§ 968. Misprision of treason 807

§ 969. Inciting or engaging in rebellion 808

§ 970. Criminal correspondence with foreign Governments 808

§ 971. Seditious conspiracy 809

§ 972. Eecruiting soldiers or sailors to serve against the United

States 809

§ 973. Enlistment to serve against the United States 809

939.

940.

941.

942.

943.

944.

945.

946.

947.

948.

949.

950.

951.

952.

953.

954.

955.

956.

957.

958.

959.

960.

961.

962.

963.

964.

xliv Table of Contents

CHAPTEE LXI.

OFFENSE AGAINST THE OPiaiATIONS OF THE GOVERNMENT.

§ 975. Forgery of letters patent 811

§ 976. Forging bids, public records, etc 811

§ 977. Forging deeds, powers of attorney, etc 812

§ 978. Having forged papers in possession 813

§ 979. False acknowledgments 813

§ 980. Falsely pretending to be United States officer 814

§ 981. False personation of holder of public stock 814

§ 982. False demand on fraudulent power of attorney 814

§ 983. Making or presenting false claims 815

§ 984. Embezzling arms, stores, etc 816

§ 985. Conspiracy to commit offense against the United States; all

parties liable for acts of one 817

§ 986. Delaying or defrauding captor of claimant, etc., of prize

property 817

§ 987. Bribery of United States officer 817

§ 988. Unlawfully taking or using papers relating to claims 818

§ 989. Persons interested not to act as agents of the Government. . . . 819

§ 990. Enticing desertions from the military or naval service 819

§ 991. Enticing away workmen 819

§ 092. Injuries to fortifications harbor defenses, etc 820

§ 993. Unlawfully entering upon militnry reservation, fort, etc.... 820

§ 994. Robbery or larceny of personal property of the United States 820

§ 995. Embezzling, stealing, etc., public property 821

§ 996. Receivers, etc., of stolen public property 821

§ 997. Timber depredations on public lands 821

§ 998. Timber, etc., depredations on Indian and other reservations.. 822

§ 999. Boxing, etc., timber on public lands for turpentine, etc 822

§ 1000. Setting fire to timber on public lands 823

§ 1001. Failing to extinguish fires 823

§ 1002. Fines to be paid into school fund 823

§1003. Trespassing on Bull Run National Forest, Oregon 823

§ 1004. Breaking fence or gate inclosing reserved lands, or driving

or permitting live stock to enter upon 824

§ 1005. Injuring or removing posts or monuments 824

§ 1006. Interrupting surveys 825

§ 1007. Agrocmcnt to prevent bids at sale of lands 825

§ 1008. In.iuries to United States telegraph, etc., linos. 825

S 1009. Counterfeiting weather forecasts 825

§1010. Interfering with employees of Bureau of Animal Industry,. 826

§1011. Forgery of certificate of entry 826

§ 1012. Concealment or destruction of invoices, etc 826

§1013. Resisting revenue officer, rescuing or destroying seized prop-
erty, etc 827

§ 1014. Falsely assuming to be n revenue officer 828

Table of Contents xlv

PAGE

§ 1015. Offering presents to revenue oflScer 828

§1016, Admitting merchandise to entry for less than legal duty 828

§1017. Securing entry of merchandise by false samples, etc 828

§ 1018. False certification by consular officer 829

§ 1019. Taking seized property from custody of revenue officer 829

§ 1020. Forging or altering ship's papers or custom-house documents. . 829

§ 1021. Forging military bounty -land warrant, etc 830

§ 1022. Forging, etc., certificate of citizenship 830

§ 1023. Engraving, etc., plate for printing or photographing, selling,
or bringing into United States, etc., certificate of citizen-
ship 831

§1024. False personation, etc., in procuring naturalization 831

§1025. Using false certificate of citizenship, or denying citizen-
ship, etc 832

§ 1026. Using false certificate, etc., as evidence of right to vote, etc. . 833

§ 1027. Falsely claiming citizenship 833

§1028. Taking false oath in naturalization proceedings 834

§1029. Provisions applicable to all courts of naturalization 834

§ 1030. Shanghaing and falsely inducing person intoxicated to go on

vessel prohibited 834

§ 1031. Corporations, etc., not to contribute money for political elec-
tions, etc 835

§1032. Hunting birds, or taking their eggs from breeding grounds,

prohibited 835

CHAPTEE LXII,

GENERAL AND SPECIAL PROVISIONS.

General and Special Provisions. Penal Code, Act March 4, 1909.

§ 1035. Punishment of death by hanging 836

§ 1036. No conviction to work corruption of blood or forfeiture of

estate 836

§ 1037. Whipping and the pillory abolished 836

§ 1038. Jurisdiction of State courts 836

§ 1039. Pardoning power 837

§ 1040. Indians committing certain crimes; how punished 837

§ 1041. Crimes committed on Indian reservations in South Dakota 838

§1042. Qualified verdicts in certain cases 838

S 1043. Body of executed offender may be delivered to surgeon for

dissection > 839

§ 1044, Who are principals • • 839

§ 1045. Punishment of accessories 839

§ 1046. Accessories to robbery or piracy 839

§ 1047. Felonies and misdemeanors 840

§1048. Murder and manslaughter; place where crime deemed to have

been committed 840

xlvi Table of Contents

PAGE

§ 1049. Construction of certain words 840

§ 1050. Omission of words "hard labor" not to deprive court of power

to impose 840

§1051. Arrangement and classification of sections 841

§ 1052. Jurisdiction of circuit and district courts 841

CHAPTER LXIII.

VIOLATIONS OF INTERSTATE COMMERCE.

Whit* Slave Traffic Act.

§ 1055. Definition, Interstate Commerce 843

§ 1056. Transportation of female for prostitution 844

§ 1057. Securing Transportation for woman for prostitution 845

§ 1058. Knowingly persuading women under 18 years of age to be

transported for Prostitution 845

§ 1059. Courts having Jurisdiction 846

§ 1060. Alien Women, Foreign Commerce 846

INTERSTATE RAILROAD PASS.

§ 1061. Interstate free passes, illegal use 848

FRUIT SHIPMENTS.

§ 1062. The Standard Barrel for Fruit and Dry Commodities, Cran-
berry Barrel 850

§ 1063. Punishment for Shipment Interstate, Fruits below standard

Barrel 851

§ 1064. Transporting intoxicating liquors in Interstate Commerce ex-
cept for scientific Purposes 851

PRIZE FIGHT.

§1065. Prize Fight Films, Interstate Transportation thereof 852

§ 1066. Intent to Prevent, Interfere, or Obstruct foreign commerce. . 852

§ 1067. Larceny of Interstate shipment 852

§ 1068. Under Act Feb. 13, 1913, Conviction, State Court a bar under

act 854

§ 1069. An Act to punish the transportation of stolen motor vehicles

in Interstate or foreign commerce 854

§ 1070. Convictions in restraint of trade. Penalty 855

§ 1071. Monopolizing or attempting to do so of commerce among tiie

States or Foreign nations, unlawful. I'lmislmient 855

§1072. Introducing falsely labeled dairy jiroduct or food 856

§ 1073. HcfiiHal to testify before Interstate Commerce Commi.ssion;

Penalty 856

§ 1074. Illegal transportation of insect ]iests in interstate (■(inuncrce 857
8 1075. Person guilty of violating section one of this Act, May 3, 1905.

Penalty 858

Table of Contents xlvii

PAGE

§ 1076. Unlawful to manufacture adulterated food or drug, punish-
ment 858

§ 1077. Shipping and delivery adulterated drugs and food in inter-
state i-oiiimerce, puiiisliiiiout 859

§ 1078. Eegulations prescribed by Secretary of Agriculture of inspec-
tion of meat H^O

§ 1079. Adulterated or misbranded insecticides forbidden shipment.

Penalty 865

§ 1080. Officers of Common Carriers engaged in interstate commerce

must make monthly reports accidents 866

§ 1081. Officers of Common Carriers must make report for failure;

punishment 866

§ l082. Keport by Common Carrier of accident not to be used as evi-
dence 867

§ 1083. Punishment for refusal to testify to make false entry in report,
wilfully mutilate documentary evidence, or a corporation
failing to file report before trades commission 867

§ 1084. Violations of Anti Trust Law of corporation apply to its of-
ficers and agents. All are punished 868

§ 1085. Secretary of Agriculture may demand to inspect and grade
grains, may also revoke license after opportunity has been
given of hearing 869

§ 1086. No grain shall be shipped in interstate commerce unless in-
spected, selling and offering for sale, etc 871

§ 1087. Violation Act Aug. 11, 1916, including sections four and seven

of second Act ; punishment 872

§ 1088. Interfering with the duties of an officer or employee of De-
partment of Agriculture ; punishment 873

§ 1089. Forging, counterfeiting, etc., license of Secretary of Agricul-
ture and violating section eight of Act Aug. 11, 1916, part
"c"; Penalty 873

• SHIPMENT OF LIME.

§1090. Lime barrels must be marked, stenciled and branded 873

§ 1091. Lime sold in interstate or foreign commerce in less capacity

than standard barrel, how marked 874

§ 1092. Rules and regulations allow variations 874

§ 1093. Importer selling imported article at a price substantially less

than the actual market value in U. S.; punishment 874

§ 1094. Punishment for restraint of trade between any Territory of

U. S. and another, etc 876

§ 1095. Unlawful to sell lime not properly marked 876

§ 1096. Variation of standard barrels may be permitted 876

§ 1097. Violations for using lime in barrels — punishment 877

§ 1098. Standard baskets for grapes and small frui s 877

§1099. Standard capacity of containers of small fruits and berries.. 878
§ 1100. Punishment for using baskets not up to standard 878

xlviii Table of Contents

CHAPTER LXrV.

OFFENSES AGAINST FOREIGN AND INTERSTATE COMMERCE.

§ 1103. Dynamite, etc., not to be carried on vessels or vehicles carry-
ing passengers for hire 880

§ 1104. Interstate Commerce Commission to make regulations for

transportation of explosives 881

§ 1105, Liquid nitroglycerin, etc., not to be carried on certain ves-
sels and vehicles 882

§ 1106. Marking of packages of explosives;, deceptive marking 882

§ 1107. Death or bodily injury caused by such transportation 883

§ 1108. Importation and transportation of lottery tickets, etc., for-
bidden 883

§ 1109. Interstate shipment of intoxicating liquors; delivery to be

made only to bona fide consignee 884

§ 1110. Common carrier, etc., not to collect purchase price of inter-
state shipment of intoxicating liquors 885

§ 1111. Packages containing intoxicating liquors shipped in inter-
state commerce to be marked as such 885

§1112. Importation of certain wild animals and birds forbidden 886

§ 1113. Transportation of prohibited animals 886

§ 1114. Marking of packages 887

§1115. Penalty for violation of three preceding sections 887

§1116. Importation and transportation of obscene, etc., books, etc... 887

CHAPTER LXV.

OFFENSES RELATING TO INDIANS.

§1119. Trader in Indian country without license, penal 889

§ 1120. Foreigner in Indian country without passport liable to penalty

$1,000 890

§ 1121. Removing cattle, etc., without permission of Secretary of

War 890

§ 1122. General laws U. S. extended to Indian country in criminal mat-
ters, except where specifically provided 890

§ 1123. General laws U. S. concerning forgery and upon mails in

Imiian country apply 891

§ 1124. White person setting fire to building on Indian country,

punishment 891

§ 1125. Indian or white person making an assault upon each other with

guns, etc., punishment 891

CHAPTER LXVI.

OFFEN.SES RELATING TO JAPANESE AND CHINESE.

9 1128. Violation of Act July 5, 1884, where punishment not otherwise

provided for 892

Table of Contexts xlix

PAGE

§ 1129. Under act July 5, 1884, certificate of identity of Chinese per-
son be in English language anl must show his proper sig-
nature and family name 893

§1130. Landing Chinese laborers in U. S. ^ilty of a misdemeanor.. 894

§ 1131. Forgery of name written on identity certificate under act July

5, 1884, misdemeanor 895

§ 1132. Violation section 2158 R. S. of U. S. dealing with Chinamen

and Japanese 895

§ 1133. Bringing Chinese to U. S. not lawfully entitled to, misde-
meanor 895

§ 1134. Violation of provisions of act July 5, 1884, by master ves-
sel 896

§ 1135. Contract or attempt to contract in advancf of an illegal im-
portation of Chinese, etc., contrary to section 2158, E. S.,
guilty of felony 897

§ 1136. All persons amenable to laws of U. S. who shall take any
Chinaman or Jap or oriental from his country, shall be
punished 897

§ 1137. Any person -nho prepares, loads or equips, etc., any vessel to
trade in Chinese or Japanese under section 2158, E. S.,
punishment 898

§ 1138. Section 2158, E. S. of IT. S., making it unlawful to dispose of

or sell for any time, subject of China or Japan, etc 898

CHAPTER LXVII.

MISCELLANEOUS OFTENSES.

§ 1140. Licenses for collecting foreign coupons, etc., punishment 902

§ 1141. Concealing property on boundary between U. S. and foreign

country, punishment 903

§1142. Bribing voter, in senatorial and representative elections.... 903
§ 1143. Congressional elections, punishment for designated corrupt

practices at primary, general or special elections 904

§ 1144. Accepting fee for filing soldier homestead entries, punishment 904

§ 1145. Entrapping Antwerp or homing pigeon, punishment 905

§ 1146. Detention, etc., evidence of violation 905

§ 1147. Punishment 905

§ 1148. Accepting allowance after the right has ceased, punishment. . 906

§ 1149. Intent to defraud in securing allotment 906

§ 1150. Knowingly making false statement for family allowance,

perjury 906

§ 1151. Ten per cent allowed attorney fee, war risk insurance punish-
ment for 906

§1152. Act relating to pensions, illegal attorney's fee, punishment.. 907
§ 1153. Dealers in cotton to answer all questions, wilfully refusing,

punishment ^8

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§ 1154. Person intentionally and wilfully making false statement, etc.,

punishment 908

§ 1155. Ownership in other similar associations 909

§ 1156. Association sale for export trade not a violation anti port act 909
§ 1157. All persons entitled to same privileges as to inns, public con-
veyances on land or water 910

§1158. Punishment for violation, not permitting equal privileges 910

§ 1159. Offenses committed in National parks, punishment 911

§ 1160. Illegal for grantee to accept deed from Crow Indian, punish-
ment 914

§ 1161. Establishing eight hour a day standard 915

§1162. President to appoint commission 916

§ 1163. Pending report of commission the eight-hour day not re-
duced 916

§ 1164. Punishment of violation 917

§ 1165. Contractor or officer of U. S. punished for violation of U. S.

labor provisions 917

§ 1166. U. S. compensation law, affidavit 917

§1167. Perjury to make false affidavit for IT. S. conspirators 918

§1168. An Act to create a Federal power commission; to provide for
the improvement of navisration ; the development of water
power; the use of the public lands in relation thereto, and
to repeal section 18 of the river and harbor anpropriation

Act, approved Aug. 8, 1917, and for other purposes 918

§ 1169. Dis'^ute befoi-e labor board, compelled to testify, no incrimina-
tion except perjury 919

§ 1170. IT. S. officers converting funds coming to their possession,

punishment 920

§1171. Fedcal board vocntioiial education, disf^riminntion against in-
dustrial organizations, etc., punishment 921

§1172. Clerk in Treasury Department carrying on business, punish-
ment 922

§1173. Officers of the Treasury department en<ra<iing in business.... 922
§1171. r'lninis afrainst the TT. R. prosecution of by officers, etc., en-
ga'.'cd since Ajiril 6, 1917, in procuring army su|)]ilies, un-
lawful 923

§ 1175. Federal deficiency act for the fiscal year 1919, using funds in-
fluencing congressmen 923

§1176. Joint resolution authorizing the secretary of War to issue
permits for the diversion of water from the Niagara river,

jiunislmient for illegal use 924

S1177. Amending section 2138, Revised Statute of the U. S. Indian

ajiiiroprintion act 925

§1178. Title III of the War finance corporation act April 5, 1918,

general penalties 926

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PAGE

§ 1179. Contracts made with secretary of war, navy and interior must

be in writing 926

§ 1180. Any person other than the one to whom a certificate was is-
sued, who falsely presents such certificate is guilty of a

misdemeanor 927

sj 1181. Offenses under Act Jan. 16, 1883, relating to civil service 928

§ 1182. To receive greater fee than allowed by sections 6 to 15, Act

May 28, 1896, by oflBcer, illegal, penalty 928

§ 1183. Tax on cotton sale 929

§ 1184. Penalty under State law act Aug. 11, 1916, cotton future act. . 929

§ 1185. Incriminating testimony under cotton future act 929

§1186. Additional punishment under act Aug. 11, 1916, cotton act.. 929

§ 1187. Punishment for Act Aug. 11, 1916, cotton future act 930

§1188. Section 3744, Eevised Statutes TJ. S 930

§ 1189. Unlawful to export white phosphorus matches 931

§1190. The provision of lease shall not apply to lands 931

§ 1191. Return of officer must be sworn to before officer, form of

affidavit 931

§ 1192. Failure to make return by U. S. officer, penalty 932

§ 1193. Public printer is accountable for all materials received for

public use, penalty for failure 932

§ 1194. Public printer defrauding the Government 933

§ 1195. Opening or tapping water mains of the U. S. water supply,

subject to prosecution 933

§ 1196. Malir-iously breaking or destroying Government watermains

or pipes, punishment 933

§ 1197. Maliciously causing water supply in cities of "Washington and

Georgetown to become impure 933

§ 1198. Violation act Aug. 24, 1912, regulating furbearing animals,

punishment, jurisdiction 934

§1199. Violating provision of Act Oct. 6, 1917, 40 Stat. 388 934

§ 1200. Marshal failing to serve warrant on person charged with violat-
ing civil rights act 935

§ 1201. Duties of clerk of IT. S. courts, etc., removed from office,

penalty 935

§ 1202. Failure of clerk to perform duties as provided by Act Feb.

22, 1875 936

§ 1203. Tax on decedents' estates, what is person, what is executor,

etc 936

§ 1204. The executor must file return within thirty days 937

§ 1205. Act Sept. 8, 1916, knowingly making false returns of dece-
dent 's estate tax 937

§ 1206. The tax imposed in the decedents' estates 938

§ 1207. Under the bankruptcy act of July 1, 1898, the following acts

are punishable 939

§ 1208. Prohibition against importing adulterated seeds, punishment. 940

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§ 1209. Wliat is adulterated seeds ; 941

I 1210. Punishment under Act Aug. 24, 1912 .* . . 942

§ 1211. Salt pork to be inspected for transportation, packages must be

marked, punishment for forging marks, etc 942

§1212. Act Feb. 21, 1905, relating to stamping "United States

assay ' ' unlawfully, punishment for violation 943

§ 1213. Act June 13, 1906, relating to dealer in gold and silver ware,

punishment for violation 944

LYVin

CHAPTER LVIII.

OFFENSES KELATING TO MAILS.

§ 1216. Nonmailable matter 945

? 1217. Letter advising treason, etc ., 945

§ 1218. Punishment for advocating treason 946

ij 1219. Electric urban or interurban railroad refusing to carry mail. . 946
% 1220. Auditor -with consent of postmaster general remit fine and

penalties 946

§ 1221. Postmaster general may discharge prisoner for debt 947

§ 1222. No contract for supplies shall be made with any person who
has entered into combination to permit bidding, punish-
ment 947

§ 1223. No contract for carrying the mail shall be made with any
person who has entered into combination to prevent bid-
ding, punishment 948

§ 1224. Unlawful use of naturalization matter, misdemeanor 948

§ 1225. Punishing postmaster for making false return special de-
livery 949

§ 1226. Illegal to send insect pests in mail, punishment 949

§1227. Inspection of plants at state expense, proper marking, etc... 950

CHAPTER LXIX.

THE NATIONAL PROHIBITION ACT AND INTOXICATING LIQUORS.

§ 123i;. To provide for the enforcement of War Prohibition 955

§12.T1. Commissioner must report violntion of War Prohibition Act.. 956
8 12.'?2. Where liquor is kept is declamd to be common nuisance.... 956
§ 1233. District attorney and attorney general may prosecute suit in

equity 957

§1234. C(mmiRRioner and inapcctors may prosecute all offenses 959

§ 1235. An 7 provision hereof invalid, all others valid 959

S 1236. Act 'Iocs not repeal War Prohibition 959

§1237. Mom ing of "Liquor " and " Intoxicating Liquor " 960

§ 1238. CommiHsioncr to report violation and district attorney to

prosocuto 961

fl 1239. After act becomes effective liquor cannot bo sold, etc.... 962

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PAGE

§ 1240. Certain articles exempted 962

§1241. Commissioner may make analysis if necessary 964

§1242. Permit must be obtained 965

§ 1243. Physician holding permit only person authorized to prescribe 967

§1244. Commissioner must issue blanks for prescriptions 968

§ 1245. Permit may be revoked 968

§ 1246. Permanent record must be kept of sales, etc 969

§ 1247. Wholesale druggist cannot sell at retail 969

§ 1248. Label must be attached to every container 969

§ 1249. Every carrier must make record of shipment when received 970

§ 1230. Shipper must notify carrier of nature of shipment 970

§ 1251. Unlawful for carrier to accept shipment upon false statement 971

§ 1252. Order to ship must be to a good faith consignee 971

§ 1253. Unlawful to advertise sale, etc 971

§ 1254. Unlawful to advertise sale of utensil or contrivance 972

§ 1255. No person shall knowingly receive order from any person for

sale of liquor, etc 972

§1256. Any person injured by intoxicated person has right to sue.. 972

§ 1257. Place where liquor is kept is common nuisance 973

§ 1258. Action to enjoin may be brought in the name of the U. S 973

§ 1259. Any intent to sell liquor may be enjoined 975

§ 1260. Any violation of Injunction punished as contempt, summarily

by the court 975

§ 1261. Violation to have in possession anything to aid in manufactur-
ing 976

§1262. Officer may take vehicle used in transporting liquor 977

§ 1263. The court may deliver unlawful liquor to any department 978

§1264. Officer authorized to enforce criminal laws may act 978

§ 1265. Punishment for manufacturing, selling, etc 979

§ 1266. No person can excuse himself on grounds of incrimination 979

§ 1267. Delivery to common carrier, jurisdiction at point of delivery

to consignee 980

§1268. Several counts may be joined and conviction had for all.... 980

§1269. After Feb. 1, 1920, possession prima facie evidence, for sale. 980

§ 1270, All reports required to be filed subject to inspection 981

§ 1271. All laws inconsistent with this act are repealed 981

§ 1272. All provisions of this Act invalid do not affect others 982

§1273. Liquor may be stored in bonded ware houses 982

§ 1274. The commissioner and the attorney general may employ as-
sistants 984

§ 1275. Where property is proceeded against summons must be served

personally on the accused if in jurisdiction 985

§ 1276. General provisions. United States prohibition act 985

§ 1277. Eegulations, etc., to be prescribed '. 985

§ 1278. Allowance for evaporation, leakage, etc 986

§ 1279. Punishment for violating provisions of this title 986

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§ 1280. Discretionary method of collecting tax 987

§ 1281. Eelease of seized property under bond 987

§1282. General revenue laws, etc., applicable 987

§ 1283. Inconsistent laws repealed 988

§ 1284. Canal Zone, general prohibition of liquors within 988

§ 1285. Time of enforcement, immediately 988

§ 1286. Alcohol obtained for denaturing purposes under Act June 7,

1906, and sells same, penalty 989

§ 1287. Every owner, agent, etc., of brewery who attempts or evades

the payment of the tax guilty of misdemeanor 990

§ 1288. "Withdrawing fermented liquors from cask upon which there

is no stamp, penalty 991

§ 1289. Selling fermented liquors from any cask, barrel, or keg upon

which stamp has not been afl&xed, penalty 991

§ 1290. Counterfeiting or making false stamp for fermented liquor,

penalty 991

§ 1291. Stamp on hogshead or other receptacle containing fermented

liquor, must not be severed or defaced except by owner. . . . 992
§ 1292. Distiller knowingly using any false measure under Act July

20, 1868 992

§ 1293. Kevenue officers permitting the use of cancelled stamps, under

Act July 20, 1868, penalty 993

§ 1294. Adding, before payment of tax on distilled spirits, substance
to create fictitious proof under Act July 20, 1868, punish-
ment 993

§ 1295. Under Act March 31, 1868, distiller attempts or defrauds

government, punishment 993

§ 1296. Act July 20, 1868, distiller must register still with collector

violation, punishment 994

§ 1297. Act July 20, 1868, distiller must give notice of engaging in

business, failure penalty 995

§ 1298. Prohibition against certain places where still may be set up

under Act June 6, 1872 996

§ 1299. Under Act July 20, 1868, breaking locks of cistern or build-
ing 997

§1300. Under Act July 20, 1868, distiller must keep sign ]H)stod 997

§1301. No distillation can be made except in regular distillery.... 998
§ 1302. Unlawful for gauger to allow others to perform his duties. . . .1000
§ 1303. Under Act July 20, 1868, punishes gauger wlio makes false

inspection 1000

§ 1304. Aft July 20, 1868, punishment for removing spirits upon which

tax liad not been paid 1001

§ 1305. Under Act Aug. 27, 1894, for violation of act penalty 1001

§ 1306. Under Act March 3, 1877, grajie brandy removed from dis-
tillery for deposit in special warehouse limited to ten days,
failure penalty 1002

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PAGE
§1.107. Aet March 3, 1891 mnmifacturer of sorghum sugar may use

spirits for, punishment for violation 1002

§ 1308. Act July 20, 1868, storekeeper removing cask or package from

bond without permit of collector 1003

§ 1309. Violation of Act March 3, 1897, forging, altering or counter-
feiting stamp, penalty 1003

§1310. Act June 6, 1872, false entries in distiller's books, penalty. .1004

§ 1310a. Book required in section 1310 1005

§1311. Rectifiers intending to defraud the U. S. of tax penalty. .. .1006

§ 1312. Rectifier required to keep book, penalty for failure 1007

§ 1313. Unlawful for purchaser or rectifier to purchase or receive

greater quantity than 20 gallons 1008

§ 1314. Rectifiers who fail to comply with the laws, punishment 1009

§ 1315. Under Act July 20, 1868, failure to deface stamp, who draws

off spirits, punishment 1010

§ 1316. Affixing spurious stamp to cask, penalty 1011

§1317. Transporting intoxicating liquors in interstate commerce. .. .1011

§ 1318. Sale of intoxicating liquors in Indian country, penalties 1013

§ 1319. Setting still for manufacture of liquor in Indian country,

penalty $1000 1015

§ 1320. Seizure and confiscation of vehicles used in introducing liquors

into Indian country 1016

§ 1321. Provisions, sections 2140 and 2141. R. S., shall apply to beer
at the prima facie evidence of unlawful possessing of liquor

in Indian country 1016

§ 1322. Prohibition liquors at or near any post, punishment 1016

CHAPTER LXX.

VIOLATION BY NATIONAL RESERVE AND LAND BANKS.

§ 1325. Punishment for violation by bank officials 1018

§ 1326. Amendment of section 5208 of Revised Statutes falsely certify-
ing cheeks by bank 1020

§ 1327. Amendment federal reserve act, as amended by adding new

section 25 1022

§ 1328. False statement by applicant for loan under federal farm loan

act, punishment 1023

§ 1329. Forgery, etc., bond of any land bank or National farm loan

association, punishment 1024

§ 1330. Defending or attempting to defend any person, firm or cor-
poration by making false pretense concerning any loan
under the federal loan act is punishable 1024

§ 1331. Any person connected with federal land bank or farm loan
association or joint stock land bank who embezzles^ aij-
stracts or wilfully misapplies any moneys, etc., penalty.. ..1025

Ivi Table of Contents

PAGE

§ 1332. No officer, etc., shall secure fee from any land bank, punish-
ment 1026

§ 1333. Declaring any clause, sentence, paragraph or part of Act July

17, 1916, invalid does not affect any other portion of Act. .1027

§ 1334. All acts and parts of acts inconsistent with Act July 17, 1916,

repealed 1027

CHAPTER LXXI.

OFFENSES RELATING TO NAVIGATION.

§1337. What is "master," "seaman," and vessel and owner 1031

§ 1338. Officer or master of a vessel inflicting corporal punishment

guilty of misdemeanor 1031

§ 1339. Shipping commissioner or clerk demanding or receiving ex-
cessive fee, punishment 1032

§1340. Failure to provide clothing, etc., on vessel, penalty 1032

§ 1341. Penalty for master of vessel failing as to weights and meas-
ures 1032

§ 1342. Master or owner of vessel punished for failure to keep lime

juice, etc., on board 1033

§ 1343. Vessel owned by U. S. citizen engaged in whaling must pro-
vide lemon juice, etc 1033

§ 1344. Punishment for offenses committed by seaman 1034

§ 1345. Neglect of duty and drunkenness of sailor, punishment 1035

§ 1346. Soliciting seaman to become a lodger, within twenty-four hours

after anchoring 1036

§ 1347. Unauthorized person going aboard vessel, before landing,

punishment 1036

§ 1348. Merchant marine violation of act of Congress Sept. 7, 1916,

where no different penalty is provided 1037

§ 1349. Unauthorized person breaking lock or fastening on vessel,

penalty 1037

§1350. Section 9, of "shipping Act of 1916" amended as follows. .1037

§1351. Unlawful to advance wages to seamen, punisliment 1039

§ 1352. SoMiiTs' and sailors' civil relief act, punishment for false

affidavits 1040

§ 1.'{5:J. Failing to go to port of destination 1040

§1354. Stcanicra running on rivers must furnish stairways 1041

§ 1355. Odicors of shijis under act Dec. 31, 1792, making false register,

penalty 1041

§ 1350. Officers of ships under act Dec. 31, 1792, neglecting to perform

duty, penalty 1042

§ 1357. Sending any American ship to sea in unseaworthy condition,

etc., punishment 1042

§ 1358. Master who takes on board vessel more passengers than stated

in certificate 1043

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PAGE

§1359. Captain must assign space to deck passengers 1044

§ 1360. Failure to provide accommodations as provided in preceding

sections, punishment 1044

§ 1361. Eiver steamers carrying passengers must provide life pre-
servers 1044

§ 1362. Steamers carrying passengers at night must carry suitable

number watchmen 1044

§1363. Neglecting to keep watchmen, fine of one thousand dollars.. 1045

§ 1364. Manner of packing explosives 1045

§ 1365. Failure to ship explosives as provided by the preceding section,

punishment 1045

§ 1366. Charges found by inspectors and the wages due, must be paid

by master 1046

§ 1367. Punishment for failing to pay wages, etc 1046

§ 1368. Inspector making false certificate touching steam vessel as to

hull, boilers, etc., penalty 1046

§ 1369. Changing any license issued by inspector under Act March 23,

1900 1047

§ 1370. Penalty for using unstamped and inspected steel plates in

steam vessels 1047

§1371. Counterfeiting any stamp on steel plates, penalty 1048

§ 1372. Affixing any false, forged, fraudulent, spurious or counterfeit

stamp on steel plate in steam vessel, penalty 1049

§ 1373. Any officer, receiver, etc., common carrier by water disclosing

information 1050

§ 1374. Interfering or obstructing light house board, etc 1051

§ 1375. Eefusal to maintain lights on bridges, etc 1051

§1376. Light house, jurisdiction, regulations, etc 1051

§ 1377. Using vessel in coast-guard service for private purpose,

punishment 1052

§ 1378. Prima facie evidence to true possession of sponge less than

five inches in diameter 1052

§ 1379. Courts where violation may be prosecuted for selling or tak-
ing sponges 1052

§ 1380. Selling or taking sponges is criminal, punishment 1052

§ 1381. Unlawful, citizen of U. S. to take or catch sponges less than

five inches in diameter 1053

§ 1382. Use of navigable waters to be regulated by secretary of War. 1053
§ 1383. "Wilfully and unlawfully injuring any pier subject to fine. . . .1054
§ 1384. Who by culpable negligence breaks or injures submarine cable

guilty of misdemeanor 1054

§ 1385. A master of vessel laying or repairing cables who fails to

observe rules, penalty 1054

§ 1386. Person who wilfully breaks or injures a submarine cable guUty

of misdemeanor 1055

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PAGE

§ 1387. Master of fishing vessel must keep at least one nautical mile

from cable . 1055

§ 1388. Definition of terms used under act Feb. 29, 1888 1056

§ 1389. Unlawful to discharge or deposit any refuse matter in New

York harbor 1056

§ 1390. Masters and engineers of vessel guilty of crime knowingly
towing scow loaded with refuse matter to be emptied in
N. Y. harbor 1057

§ 1391. "Waste matter to be deposited in definite limits in N. Y.

harbor, penalty 1058

§ 1392. "Wilfully and knowingly violating rules of reservoirs at head-
waters of Mississippi, punishment 1058

§ 1393. No obstruction may be made in the navigable waters except

by act of Congress 1059

§ 1394. Unlawful to engage in fishing in channels adjacent to N. Y.

harbor, penalty 1060

§ 1395. Drawbridges subject to rules of Secretary of "War and failure

to comply with them a misdemeanor 1061

§ 1396. No building, wharves, etc., may be made except upon places

recommended by chief engineer 1062

§ 1397. "Violations, sections 9, 10 and 11, act March 3, 1899 1063

§ 1398. Unlawful to throw any refuse matter from ships, mills, manu-
facturing plants, etc., into any navigable water in U. S...1063

§ 1399. Unlawful to build upon, use or in any manner impair any sea

wall, etc., built by the U. S 1064

§ 1400. Unlawful to anchor vessels in navigable waters, etc., to float

loose timber or logs, etc 1065

§ 1401. Every person and corporation violating sections 13 14 and
15 and every master, pilot or engineer who knowingly en-
gages in towing scow that is loaded with material specified
in section 14, or obstructing any waterway under section
15, act March 3, 1899, shall be punished 1065

§ 1402. Railroad bridge over navigable waters, failure to correct ob-
struction after notice by Secretary of "War, guilty of mis-
demeanor 1067

§ 1403. The dopartineut of Justice shall conduct prosecutions under act

March 3, 1 899 1068

§ 1404. Regulations and rules to be made by Secretary of "War concern-
ing the floating of logs, section 1,", act March 3, 1899, shall
not ajijily 1009

S 1405. Secretary of "War shall make rules ;iii(l regulations concerning

dumping refuse material into navigaiile waters 1071

§1406. Any jierson directly or indirectly giving ;niy sum of iiKiney to

any insj)ector of navigation, pimiHhal)le 1072

§ 1407. Unlawful to deposit or dump any refuse matter in Lake

Michigan, punishment 1072

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§ 1408. Person owning or operating dam, under provisions of act
June 23, 1910, failing to maintain lights and signals, punish-
ment 1073

§ 1409. Failure to comply with lawful order of Secretary of War
and Chief Engineer under Provisions Act, June 23, 1910, a
misdemeanor. Also act March 23, 1906 1074

§ 1410. Secretary of War to prescribe rules and regulations concerning

navigation, punishment for violation 1074

CHAPTER LXXII.

NEUTRALITY.

Offenses Against Neutrality.

§ 1413. Accepting a foreign commission 1075

§ 1414. Enlisting in foreign service 1075

§ 1415. Arming vessels against people at peace with the United States. 1076

§ 1416. Augmenting force of foreign vessel of war 1077

§ 1417. Military expeditions against people at peace with the United

States 1077

§ 1418. Enforcement of foregoing provisions 1078

§ 1419. CompeUing foreign vessels to depart 1078

§ 1420. Armed vessels to give bond on clearance 1079

§ 1421. Detention by collectors of customs 1079

§ 1422. Construction of this chapter 1080

CHAPTER LXXIII.

OPIUM.

§ 1425. Chinese introducing opium in violation of Act of Feb. 23,

1887 1081

§ 1426. No citizen of the United States shall import opium into

Chinese port 1081

§ 1427. Fraudulently and knowingly importing opium into U. S.,

penalty 1082

§ 1428. Person having smoking opium in possession who fails to report
to principal officer of vessel destined to or bound from the
United States, guilty under section 2 1083

§ 1429. No person subject to jurisdiction of U. S. shall not export

opium, etc 1084

§ 1430. Exportation prohibited by following penalties 1085

CHAPTER LXXIV.

PENSIONS AND ALLOWANCES TO SOLDIERS.

§ 1433. Any agent or attorney for any pensioner without his consent
withholds any discharge papers or land warrant guilty of
misdemeanor 1086

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PAGE

§ 1434. Attorney, etc., demanding more than legal compensation or
who withholds any part of a pension guilty of high mis-
demeanor 1087

§ 1435. Agent or attorney may file with commissioner duplicate claims,

fee is ten dollars, penalty for violation 1088

§ 1436. Attorneys retaining or collecting for more than ten dollars

in securing pensions, punished for violation 1091

§ 1437. Illegal in increase of pension to contract for a greater fee than

two dollars, punishment for violation 1091

§ 1438. Embezzlement of any pension, held in trust as guardian, etc.,

criminal 1092

§ 1439. Pension to Civil war nurses, attorneys ' fee not allowed, viola-
tion misdemeanor 1093

§1440. False oath in prosecuting for pension, perjury 1094

§ 1441. The making or procuring to be made a false affidavit, know-
ingly concerning any pension, and any false acknowledg-
ment criminal 1094

§ 1442. No person attorney, claim agent or other person shall eon-
tract for any fee for services in securing pensions by legis-
lation in Congress, punishment 1095

§ 1443. Forging indorsement of any person on pension check or utter-
ing such check, criminal 1096

§ 1444. Under federal compensation act accepting compensation after ,
marriage, where same ceases upon marriage 1096

§1446. War insurance, attorney's fee, punishment for violation. .. .1096

§ 1447. Securing pension for widows and minor children, pensions
granted widows, etc., of volunteers in war with Spain,
Philippines and China 1097

§ 1448. Punishment for violation .' . 1098

CHAPTER LXXV.

OFFENSES AGAINST THE POSTAL SERVICE.

Penal Code, Act March 4, 1909.

§ 1452. Conducting postoflice without authority 1101

§1453. Illegal carrying of mail by carriers and others 1101

§1454. Conveyance of mail by private express forbidden 1101

§ 1455. Transporting persons unlawfully conveying mail 1102

§ 1456. Sending letters by private express 1102

§ 1457. Conveying of letters over post routes 1102

§ 1458. Carrying letters out of the mail on board of vessel 1103

§1459. When conveying of letters by private persons is lawful 1103

§1460. Wearing uniform of carrier without authority 1103

§1461. Vehicles, etc., claiming to bo mail carriers 1103

Table of Contents Ixi

PAGE

§ 1462. Injuring mail bags, etc 1104

§ 1463, Stealing postoffice property HO*

§ 1464. Stealing or forging mail locks or keys 1104

§1465. Breaking into and entering postoffice 1105

§1466. Unlawfully entering postal car, etc 1105

§1467. Stealing, secreting, embezzling, etc., mail matter or contents. .1106
§ 1468. Postmaster or employee of postal service detaining, destroy-
ing, or embezzling letter, etc 1106

§ 1469. Postmaster, etc., detaining or destroying newspapers 1107

§ 1470. Assaulting mail carrier with intent to rob, and robbing mail. .1107

§1471. Injuring letter boxes or mail matter; assaulting carrier,

etc 1108

§ 1472. Deserting the mail 1108

§ 1473. Delivery of letters by master of vessel 1108

§ 1474. Obstructing the mail 1109

§ 1475. Ferryman delaying the mail 1109

§ 1476. Letters carried in a foreign vessel to be deposited in a post-
office 1109

§ 1477. Vessels to deliver letters at postoffice ; oath 1110

§ 1478. Using, selling, etc., canceled stamps ; remoAdng cancellation

marks from stamps, etc 1111

§ 1479. False returns to increase compensation 1111

§ 1480. Collection of unlawful postage forbidden 1112

§ 1481. Unlawful pledging or sale of stamps 1112

§ 1482. Failure to account for postage and to cancel stamps, etc., by

officials 1113

§ 1483. Issuing money order without payment 1113

§1484. Obscene, etc., matter nonmailable 1113

§ 1485. Libelous and indecent wrappers and envelopes 1115

§1486. Lottery, gift enterprise, et<:., circulars, etc., not mailable. .1115

§1487. Postmasters not to be lottery agents 1116

§ 1488. Use of mails to promote frauds 1117

§1489. Fraudulently assuming fictitious address 1118

§ 1490. Poisons and explosives non-mailable 1118

§ 1491. Counterfeiting money orders 1120

§ 1492. Counterfeiting postage stamps 1121

§ 1493. Counterfeiting, etc., foreign stamps 1122

§ 1494. Inclosing higher class in lower class matter 1122

§1495. Postmaster illegally approving bond, etc 1122

§1496. False evidence as to second class matter 1123

§1497. Inducing or prosecuting false claims 1123

§1498. Misappropriation of postal funds or property 1124

§ 1499. Employees not to become interested in contracts 1125

§ 1500. Fraudulent use of official envelopes 1125

§ 1501. Fraudulent increase of weight of mail 1125

1^11 Table of Contents

PAGK

§1502. Offenses against foreign mail in transit 1125

§ 1503. Omission to take oath 1126

§ 1504. Definitions 1126

CHAPTER LXXVI.

OFFENSES AGAINST PUBLIC JUSTICE.

Penal Code, Act March 4, 1909.

§ 1507. Perjury 1127

§ 1508. Subornation of perjury 1128

§1509. Stealing or altering process; procuring false bail, etc 1128

§ 1510. Destroying, etc., public records 1128

§ 1511. Destroying records by officer in charge 1129

§ 1512. Forging signature of judge, etc 1129

§ 1513. Bribery of a judge or judicial officer 1129

§ 1514. Judge or judicial officer accepting a bribe, etc 1130

§ 1515. Juror, referee, master, etc., or judicial officer, etc., accepting

bribe 1130

§ 1516. Witness accepting bribe 1130

§ 1517. Intimidation or corruption of witness, or grand or petit juror,

or officer 1131

§ 1518. Conspiring to intimidate party, '.vitness, or juror 1131

§ 1519. Attempt to influence juror 1132

§ 1520. Allowing prisoner to escape 1132

§ 1521. Api)lication of preceding section 1132

§ 1522. Obstructing process or assaulting officer 1133

§ 1523. Rescuing, etc., prisoner; concealing, etc., iierson for whom

warrant has issued • 1133

§ 1524. Rescue at execution 1133

§ 1525. Rescue of prisoner 1134

§ 1526. Rescue of body of executed offender 1134

§ 1527. Extortion by informer 1134

§ 1528. Mi.sprision of felony 1134

CHAPTER LXXVII.

OFFENSES RELATING TO PUBLIC LANDS.

§ 1531. futtint; or wantonly destroying red cedar or hemlock on public

lands, punishment 1136

§ 1532. Falsely making or altering instruincnt affecting lands and

minerals in California, punislied by hard labor 1137

8 15.'{3. Violation of Act June 3, 187S, relating to cutting timl)cr on

mineral lands, misdemeanor 1138

§ 1534. No person by force or threats, or l)y consjiiring with others

prevent others from settlement on public land 1 l.TO

8 1535. Penalty for preventing settlement upon public land 1140

Table of Contents Ixiii

PAGE

§ 1536. Unlawful to procure any person to settle upon land in Okla-
homa with intent to acquire title 1140

§1537. Offenses against military and national parks, punishment. .. .1140

§ 1538. Defense for cutting timber 1141

§ 1539. Register and receiver is empowered to subpoena witness 1142

§ 1540. "Witness after demand and payment of witness fee failure to

testify misdemeanor 1142

§ 1541. Homestead entrymcn and witness making false affidavit and

others as to any material matter, guilty of perjury 1143

§ 1542. Punishment for destruction of historic or prehistoric ruins on

Government land 1144

§ 1543. Punishment for preventing others from settling on public lands

under Act Feb. 25 1885, 23 Stat. 322 1144

§ 1544. Unlawful to trap, kill or capture animals in Grand Canyon

forest reserve except as by regulations 1144

§ 1545. Punishment for hunting, catching, wilfully destroying or kill-
ing birds and animals in limits as provided under Act Aug.
11, 1916 1145

CHAPTER LXXVIII.

VIOLATION OF QUAKANTINE LAWS.

§ 1548. Trespassing upon quarantine reservation prohibited, punish-
ment 1148

§ 1549. In cases cholera and other certain diseases Secretary makes
rules and regulations to prevent spread of disease, punish-
ment for violation 1148

§ 1550. Any officer or agent, etc., for U. S. at any quarantine station
who violates the rules and regulations as provided in sec-
tion one this Act guilty of misdemeanor 1149

§ 1551. Common carrier violations quarantine laws, rules and regula-
tions, officers and agents, punishments 1148

§ 1552. Punishment for moving diseased carcasses from one State to

another, penalty. Act Mar. 3, 1891 1150

§1553. Importing diseased cattle, etc., punishment for knowingly do-
ing so 1150

§1554. Master or owner violating Act Mar. 3, 1901, or any regula-
tions thereunder in relation to inspection of vessels on the
prevention of diseases -1151

§ 1555. Illegal for merchant or other vessel from foreign port to

enter U. S. port except as prescri])ed by Act Feb. 15, 1893.1152

§ 1556. Secretary of Agriculture may make regulations and quaran-
tine against diseased stock 1152

§1557. Violations Act Feb. 2, 1903, and regulations thereunder -1153

§ 1558. Violating rules of Secretary of Agriculture in shipping con-
demned carcasses of cattle, etc., from one State to another. 11 53

Ixiv Table of Contents

PAGE

§ 1559. Inspection of carcasses of cattle the regulation Agriculture

Department. Defacing stamp, etc. Punishment 1154

§ 1560. No railroad shall receive for shipment cattle from one

quarantined State to another 1154

§ 1561. Secretary may make registration for shipping cattle, etc 1155

§ 1562. Cattle may be moved from quarantine in accordance with

regulations of Secretary of Agriculture 1155

§ 1563. Punishment for violating provisions of Act of Mar. 3, 1905. .1156
§ 1564. Entering or departing into or from any quarantine grounds
in violation of law, and an officer making false statement,
misdemeanor 1156

CHAPTER LXXIX.

VIOLATIONS OP INTERNAL REVENUE.

§ 1566. Income tax provisions, punishment for violation of revenue-
laws and regulations 1161

§ 1567. Produce sale for future delivery, punishment for delivery with-
out stamped bill, produce, sales of, on exchange 1162

§ 1568. Stamps must be cancelled 1163

§ 1569. Fraudulently using, cutting, and attaching and affixing ad-
hesive stamp or impressions of stamps 1164

§ 1570. Schedule "A" stamp taxes, punishment for sale, etc., without

affixing stamp 1165

§ 1571. Statement intended to make one believe that the price is part

of tax imposed, punished 1166

§ 1572. Making, signing, or accepting, instruments without stamps,

punishment 1167

§ 1573. Unlawful for any deputy, or collector, or employee to divulge

information, etc 1167

§ 1574. Punishment for refusing the inspection of mine, etc., under

child labor provision 1168

§ 1575. The price of ticket and name of vendor must be stamped on

face 1168

8 1576. Title IV. Act Feb. 24, 1919 1169

§ 1577. Provisions imposing additional tax on liquors, purifying and

rectifying wKhin meaning of Sec. 3244 R. S 1169

§ 1578. For failing to pay tax and make return, etc 1171

§ 1579. Fraudulently executing documents relating to revenue laws. . .1171
8 1580. Defrauding or attempting to defraud U. S. gov't, in carrying

on distillery 1172

8 1581. General revenue Act July 20, 1868, fraudulent gauging, etc. . .1172

8 1582. Moaning of words "white phoaphoru.s. " 1172

§ 1583. Onp tlioii'^niid doll.'irs fine for f;iiling to conduct business ac-
cording to regulations 1173

Table of Contents Ixv

PAGE

§ 1584. Penalty for failing to aflix, etc., stamp according to Gov 't.

regulations 1173

§1585. Collector shall furnish stamps to be sold manufacturer 1174

§ 1586. Packages of matches found without stamps shall be forfeited

to the U. S 1174

§1587. Penalty for defacing stamps on matches 1175

§ 1588. Penalty for insufficient stamps 1175

§ 1589. Penalty for failing to use stamps on matches 1175

§ 1590. Manner of packing matches, must be stamped 1176

§ 1591. Penalty for match manufacturer who fails to register 1177

§ 1592. Tobacco manufacturer must secure certificate showing ma-
chines, etc., punishment for failure 1177

§ 1593. Manufacturer of tobacco must post sign on building 1179

§ 1594. A tobacco peddler must exhibit certificate on demand of reve-
nue agent, penalty for failure 1179

§1596. Eelanding tobacco, snuff, or cigars with intent to defraud. .1180

§ 1597. Manufacturer of cigars failing to give bond, penalty 1182

§ 1598. Manufacturer must keep sign posted 1182

§ 1599. Wilful neglect in making true inventory and abstracts by

manufacturer of cigars 1182

§ 1600. Cigars not weighing more than three pounds per thousand

must be packed in boxes not used before 1183

§ 1601. Penalty for failure to put notice on each box cigars 1184

§ 1602. Cigars must not be removed from manufactory without boxingll85
§ 1603. The actual maker of cigars upon commission contract must

affix stamp before the same are removed 1186

§ 1604. Cigars imported must pay import duties and tax required of

manufacturer in U. S 1187

§ 1605. Imported cigars must be properly packed and stamped before

sale 1187

§ 1606. Penalty for purchasing or receiving unbranded and unstamped

cigars 1188

§ 1607. Washed or restored revenue stamp, penalty under Act August

27, 1894 1188

§ 1608. Oleomargarine must be sold in wooden or paper packages, pen-
alty for violation 1190

§ 1609. Putting on a counterfeit or used stamp, etc., on package of

tobacco, a felony 1191

§ 1610. Wilfully refusing to cancel stamp after package or box is

emptied is a crime 1191

§ 1611. Taxes in addition to import duties on tobacco must be paid, or
officer permitting same to pass without compliance w4th pro-
visions is guilty, of crime 1192

§ 1612. A dealer in leaf tobacco who wilfully neglects or wilfully re-
fuses to keep books as required 1193

Ixvi Table of Contents

PAGE
§ 1613. Punishment for selling or offering to sell snuff or manufactured

tobacco not put up in packages and stamped 1194

§ 1614. Unlawful to purchase or secure tobacco for sale not branded

or marked, punishment 1194

§ 1615. Manufacturing tobacco for another on commision, tax must be

paid by the actual maker, fraud, punishment 1195

§ 1616. Selling or removing payment of the stamp denoting tax un-
lawful 119.")

§ 1617. Removing from any manufactory any tobacco or snuff without

being stamped in proper packages 1196

§ 1618. The kind of brand that must be put upon package of flour,

penalty for violation 1197

§ 1619. Falsely marking uubranded packages of Hour, penalty 1197

§ 1620. Failure to label packages of flour, penalty 1198

§ 1621. Tax stamps must be put upon barrels or packages, penalty. . . .1198
§ 1622. Imported mixed flour marked, etc., and stamped as such ilour

made and packed in U. S. penalty for violation 1199

§ 1623. Stamp of empty package of mixed flour must be destroyed,

penalty 1200

§ 1624. Purchasing or securing for sale flour upon which tax has not

been paid, penalty 1200

§ 1625. Penalty for subsequent offenses is imprisonment 1200

FILLED CHEESE.

§1626. All retail and wholesale dealers must display sign, penalty .. 1201

§1627. Stamp on empty packages of filled cheese must be destroyed. 1201

§ 1628. Manufacturer of filled cheese shall post notice on package,

penalty 1201

§ 1629. Retailers in filled cheese shall sell from original stamped

packages, violation 1 20

§1630. Manufacturer of filled cheese, regulations and penalties. .. 1203

§ 1631. Manufacturer of oleomargarine defrauding or attempting to

defraud Gov 't. of tax 1204

§ 1632. Wilfully removing or defacing stamps on oleomargarine, mis-
demeanor 1204

§ 1633. Stamps on emptied packages of oleomargarine must be des-
troyed, penalty for violation 1204

§ 1034. Customs oflicer permitting imported oleomargarine to pass

out of his possession, etc., without conii)lying with law.... 1205

§ 1635. Notice liy manufacturer of oleomargarine must be posted on

every package 1 206

§ 1036. Violating the act of Aug. 2, 1886, relating to oleomargarine. 1207

§1637. Definition of "butter" and aflixing penalties Act May 9,

1902 1207

§ 1638. Renovated butter )iow marked 1211

Table of Contents Ixvii

PAGE
§ 1639. Wholesale dealer in oleomargarine must keep book as re-
quired by commission of internal revenue 1212

FOOD AND DRUGS.

§ 1640. Food and drugs act of June 30, 1906, not affected by opium

act 1212

§1641. Agents appointed to enforce law regarding opium 1213

§ 1642. Penalty for violation 1213

§ 1643. Only registered persoji can possess drugs 1213

§ 1644. Special taxes imposed by this Act not inconsistent with re-
vised statutes 1214

§ 1645. Provisions of this Act not to apply to medicinal preparations. 1214
§ 1646. Collector to furnish certified copies of statements to be filed

in his office 1215

§ 1647. Unlawful for any person to ship or deliver drugs without being

registered and paying tax 1216

§ 1648. Must render true and correct statement to collector concern-
ing drugs 1217

§1649. Written order from physician, etc., required to obtain drugs. 1217
§ 1650. Any person must pay tax to manufacture, import, etc., opium

and coca leaves 1221

§ 1651. General revenue act July 20, 1868, fraudulent gauging, etc. . .1222

CHAPTER LXXX.
The Slave Trade and Peonage. Penal Code, Act March 4, 1909.

§1654. Confining or detaining slaves on board vessel 1223

§ 1655. Seizing slaves on foreign shores 1224

§ 1656. Bringing slaves into the United States 1224

§ 1657. Equipping vessels for slave trade 1224

§ 1658. Transporting persons to be held as slaves 1225

§1659. Hovering on coast with slaves on board 1225

§ 1660. Serving in vessels engaged in the slave trade 1225

§ 1661. Eeceiving or carrying away any person to be sold or held as

a slave 1225

§ 1662. Equipping, etc., vessel, for slave trade 1226

§ 1663. Penalty on persons building, equipping, etc 1226

§ 1664. Forfeiture of vessel transporting slaves 1227

§ 1665. Eeceiving persons on board to be sold as slaves 1227

§ 1666. Vessels found hovering on coast 1227

§ 1667. Forfeiture of interest in vessels transporting slaves 1228

§ 1668. Seizure of vessels engaged in the slave trade 1228

§1669. Proceeds of condemned vessels, how distributed 1228

§ 1670. Disposal of persons found on board seized vessel 1229

§ 1671. Apprehension of officers and crew ; . . . .1229

Ixviii Table of Contents

PAGE

§ 1672. Eemoval of persons delivered from seized vessels 1229

§ 1673. To what port captured vessel sent 1229

§ 1674. When owners of foreign vessels shall give bond 1230

§ 1675. Instructions to commanders of armed vessels 1230

§ 1676. Kidnapping 1230

§ 1677. Holding or returning persons to peonage 1231

§ 1678. Obstructing enforcement of preceding section 1231

§1679. Bringing kidnapped persons into United States 1231

SEARCH WARRANTS.

§ 1682. Search warrant by whom issued 1232

§ 1683. Grounds for issuing 1232

§ 1684. Must issue upon probable cause 1233

§ 1685. Officer must require affidavits 1233

§ 1686. Affidavits must set forth grounds for 1233

§ 1687. If grounds set forth are sufficient officer must issue 1233

§ 1688. No one can serve warrant unless directed in instrument 1234

§ 1689. Officer may break doors and windows in serving 1234

§1690. May break outer and inner door to liberate assistant 1234

§ 1691. Judge must insert that service of warrant be served in day

time .1234

§ 1692. Warrant must be returned in ten days 1235

§ 1693. When property is taken copy of warrant must be given 1235

§1694. Warrant must be returned forthwith with written inventory. .1235

§1695. Judge or Com'er must deliver copy of inventory 1235

§ 1696. If things alleged are controverted must take testimony 1236

§ 1697. If property is not same described in warrant must be restored.1236

§ 1698. All papers must be filed with the clerk 1236

CHAPTER LXXXI.

§ 1699. Punishment for resisting issuance and service 1236

§ 1700. Perjury to make fake affidavit and oath 1237

§ 1701. Punishment for maliciously procuring 1237

§ 1702. Punishment of officer exceeding authority 1237

§ 1703. As to aiding foreign governnieut 1237

§1704. Existing provision for search warrants not affected 1237

CHAPTER LXXXII.

Piracy and other Offenses upon the Seas. Penal Code, Act March 4, 1909.

§ 1707. Piracy under tlic law of nations 1238

S 1708. Maltreatment of crew by officers of vessels 1238

§ 1709. Inciting revolt or mutiny on sliipboard 1239

8 1710. lievolt and mutiny on Hliipl)oard 1239

§1711. Seaman laying violent li:uuls on his coniniander 1240

§ 1712. Abandonment of mariners in foreign porta 1240

Table of Contents Lxix

PAGE

§ 1713. Conspiracy to cast away vessel 1240

§ 1714. Plundering- vessel in distress, etc 1241

§ 1715. Attacking vessel with intent to plunder 1241

§ 1716. Breaking and entering vessel, etc 1241

§ 1717. Owner destroying vessel at sea 1242

§ 1718. Other person destroying or attempting to destroy vessel at

sea 1242

§ 1719. Robbery on shore by crew of piratical vessel 1242

§ 1720. Arming vessel to cruise against citizens of the United States. 1242

§ 1721. Piracy under color of a foreign commission 1243

§ 1722. Piracy by subjects or citizens of a foreign state 1243

§ 1723. Running away with or yielding up vessel or cargo 1243

§ 1724. Confederating, etc., with pirates 1244

§ 1725. Sale of arms and intoxicants forbidden in Pacific Islands. . . .1244

§1726. Offenses under preceding section deemed on high seas 1245

§ 1727. ' ' Vessels of the United States ' ' defined 1245

CHAPTER LXXXIII.

TERRITORIES.

Certain Offenses in the Territories. Penal Code, Act March 4, 1909.

§1730. Places within which sections of this chapter shall apply 1246

§1731. Circulation of obscene literature; promoting abortion 1246

§ 1732. Polygamy .' 1247

§ 1733. Unlawful cohabitation 1247

§ 1734. Joinder of courts 1247

§ 1735. Adultery 1247

§ 1736. Incest 1248

§ 1737. .Fornication 1248

§1738. Certificates of marriage; penalty for failure to record 1248

§ 1739. Prize fights, bull fights, etc 1249

§ 1740. Definition of ' ' Pugilistic encounter. " 1249

§ 1741. Train Robberies in Territories, etc 1249

CHAPTER LXXXIV.

TELEGRAPHS AND RADIOS.

§ 1744. Refusal by telegraph under Act Feb. 27, 1877, to transmit

messages subject to penalty 1251

§ 1745. Railroads and telegraph companies to which Government has
granted a subsidy are required to maintain and operate
telegraph lines 1252

§ 1746. Railroad and telegraph companies refusing under Sec. 1, Act
Aug. 7, 1888, to maintain connecting lines may apply to
interstate commerce commission for relief 1252

Ixx Table of Contents

PAGE

§ 1747. Eailroads and telegraph companies operated under Sec. 1,
Act Aug. 7, 1888, shall allow other telegraph companies to
connect with them 1253

§ 1748. Punishment of otScers and agents of railroads and telegraph
companies failing to comply with provisions of Act Aug.
7, 1888 1254

§ 1749. No use can be made of an apparatus for radio communication

between states without license ; penalty 1255

§ 1750. Unlawful to employ unlicensed person to operate radio ap-
paratus 1256

CHAPTER LXXXV.

VIRUS AND SERUMS.

§ 1753. No person shall sell or exchange from one State to another

virus or other serums, etc 1 ~~Ky

§ 1754. Surgeon General of Army and Navy and Marine Hospital

Service shall make regulations to whom license is granted. 1259

§ 1755. No person shall interfere with treasury department under this

Act 1260

§ 1756. No person shall falsely label or make any package or con-
tainer of virus or serum 1260

§1757. Violations of provisions of drug act July 1, 1902; general

provisions 1 200

§ 1758. Act Mar. 4, 1913, selling any worthless viruses for treatment

of animals; penalty for violation 1 2()ii

•

CHAPTER LXXXVI.

PERMANENT WAR LEGISLATION.

§ 1761. During a war, U. S. is not engaged in, unlawful to import
from such country; unlawful to give advantage to any per-
son, etc., and for vessel to depart witliout clearance; pen-
alty 1 264

§1762. Registration as soldier; punishment for failure to do so.... 1267
§1763. Prosecuting bawdy house at or near military camps; punish-
ment 1 208

8 1764. Punislimcnt making false statement or false registration. .. .1268

§ 1765. Trading with the Enemy Act; punishment; provisions 1270

8 1766. Punishment for injuring, destroying, etc., war material, prcm-

iscH, or utilities; specified acts 1270

8 1767. Punishment for obstructing, etc.. United States or associate

nation in carrying on the war; specified acts 1271

§ 1768. Making false Htatcment in affidavit guilty of perjury 1271

8 1700. Selective Service Act, failing to perform duties under; pun

ishmcnt 1273

Table of Contents Ixxi

PAGE

§1770. Carriers under Federal control; violation, punishment 1274

§ 1771. Title XII, army emergency increase, selective draft, amended

by Act May 16, 1918, Act of June 15, 1917 1275

§ 1772. Food control 1276

§1773. Former punishments for specified offenses not repealed 1277

§1774. Violations of War Finance Act April 5, 1918; punishment. .1277

CHAPTER LXXXVII.

repealing provisions.

Penal Code, Act March 4, 1909.

§ 1777. Sections, acts, and parts of acts repealed 1277

§ 1778. Accrued rights, etc., not affected 1291

§ 1779. Prosecutions and punishments 1292

§ 1780. Acts of limitation 1292

§ 1781. Date this act shall be effective 1292

CRIMINAL LAW

PART ONE

CHAPTEE I

THE SOURCE OF OUE CRIMINAL LAWS

§ 1.

§ 2.

§ 3.

§ 4.

§ 5.

§ 6.

§ 7.
§ 8.

§ 9.
§10.

§n.

§12.

Laws of the parent country. § 13.

Original settlers.

The derivation of our criminal § 14,
law.

Under the constitution com- § 15,
mon law may be resorted to
for definition and descrip- § 16,
tion of crime. § 17.

No authority for common law § 18.
jurisdiction in the United § 19.
States courts.

Fundamental law of the land. § 20.

Extracts from the Constitu-
tion. § 21.

Prohibitions to the states.

Bills of attainder. § 22.

Includes bills of pains and
penalties.

Ex post facto law.

Further instances and expla-
nations.

Of law which alter the rules
of evidence.

Under the provision of the
Texas statute.

Bill of rights.

Illustrations.

Divisions of government.

Legislatures are conducted un-
der their own rules.

Distinction between judicial
and legislative powers.

Judiciary should be dispas-
sionate.

Court made laws.

§ 1. We come now to discuss those general principles
which are the foundation of our jurisprudence. In dis-
cussing these principles we shall be confined to those
rules which relate to public wrongs, or in other words,
those rules which relate to criminal law as distinguished
from civil law.

Criminal law may be defined as those prohibitions and
commands the violations of which is deemed injurious to
c. L.— 1 1

2 Criminal Law

the public, and which are punished by the state in its own
narne.^

§ 2. Laws of parent country. Immigrants to a new
country being uninhabited at the time of immigration,
carry with them the laws of the countiy from which they
emigrated.

But where a country comes under the dominion of a
conqueror, the laws existing at the time of the conquest,
remain the laws of the conquered country until the con-
queror elects to change them. The fact that a govern-
ment comes under the control of another power, does not
of itself change the system of laws. The same applies to
a country ceded to another, unless in the articles of ces-
sion another provision is made. So in the case of revolu-
tion, the laws remain the same.^

§ 3. Original settlers. Thus the original settlers of this
country, being subjects of the British Empire, brought
with them the laws, customs and usages of that govern-
ment, which step by step, became their rules of action.
All the rights which had been wrested from unwilling
power by the Petition of Rights, and which had been
mouldi'd into the base of English liberty, they retained.
All the privileges of the mother country are still guaran-
teed to every citizen, and except where the common law
has been changed or abrogated by the constitution and the
laws of the United States and of the several states, it is
still the rule to measure the right of the citizen.

§ 4. The derivation of our criminal law. Our system
of criminal jurispiudence is in great part derived from
the common hiw of England. This compilation of reason,
usage and custom, and experience of many centuries, con-

1—3 Grcenlcaf Ev. i; 4 Black- 570; Lutcr v. Hunter, 30 Tex. 688;
Btone, 5. Canfield v. Hunter, 30 Tex. 712-13.

2— U. 8. V. Power, 11 How. U. S.

The Source of Our Criminal Laws 3

stitutes the fundamental principles of American criminal
law, modified and enlarged to suit the condition of this
country. The common law as understood in England
consisted in the unwritten laws of the kingdom. They
were such rules as had found expression in the usages
and customs of the people, and such as had been definitely
settled by judicial opinion, as also all those mles which
in the process of time had by common consent, been en-
grafted into the law, from considerations of intrinsic
fairness and justice. The common law as adopted in the
courts of America, are derived from the acts of Parlia-
ment, in addition to the common law as administered in
England, prior to the immigration of our ancestors to
this country.

§ 5. Under the constitution common law may be re-
sorted to for definition and description of crimes. When
the people of America severed their connection with the
British Crown, they entered into and founded an inde-
pendent government, and adopted a written constitution.
Under the judicial construction placed upon this instru-
ment, it is held that common law crimes, could not be
prosecuted, for the want of jurisdiction in the courts of
the United States, unless such offenses had been made
penal, by express act of congress. But w4iere congress
has attached a penalty to any offense criminal by common
law, that law may be resorted to for definition, descrip-
tion, and procedure. It is definitely and pemianently
settled that all crimes against the laws of the United
States must be created by express enactment of con-
gress, that under the constitution no jurisdiction can be
extended by implication over common law offenses. This
construction of the constitution does not affect the
powers of the several states, in the absence of prohibi-
tions and restrictions either in their constitutions or laws,
from prosecution of such offenses under the common law.^

3— Kent's Com. 332; U. S. v. Hudson, 1 Wheat. 415; TJ. S. v.

4 Ckiminal Law

§ 6. No authority for common law jurisdiction in the
United States courts. There is no express declaration
in the constitution of the United States eitlier affirming
or denying tlie right to assume jurisdiction over common
law offenses. The rule is now definitely settled upon a
series of unifomi decisions, holding that no jurisdiction
can attach, yet in the early years of our judicial history,
this rule was strenuously denied in the circuit courts of
the United States.* As to crimes committed against the
United States, these decisions establish that under the
constitution, there is no such implied authority as would
confer jurisdiction upon the circuit courts. It is also held
in etfect that when the constitution extends a grant of
power, it by implication authorizes the use of means
necessaiy to enforce it, and that the means may be
gathered from the common law. So, also, in criminal
cases which arise in the Maritime jurisdiction of the
United States.

Crimes against the United States can be created by act
of congress only, expressly providing for them, and the
heads of departments by the promulgation of rules and
regulations, have no power to create a penal offense nor
to change or modify an offense already created by con-
gress.^

§ 7. Fundamental lavi^ of the land. The constitution
of the United States is the fundamental law of the land.
It is a grant and delegation of powers by the people to the
government. The general government may act within
the powers expressed in the constitution and which by
reasonable intendment are granted by implication. This

Barney, 5 Blaclif. 294; U. S. Kent's Com., Vol. 1, pp. 332, 340.

V. WiKson, 3 Blaclif. 435; U. S. v. 2 Kent Com. 350.

Warrall, 2 Diill.'is 384; U. S. V. Cool- 5— Moncll v. Jones, 106 U. S.

age, 1 Ualliaon 488. 400, 27 Law Kd. 207; U. S. v.

4—1;. 8. V. Warrall, 2 Dallas 381; Katon, 144 U. S. 671, 36 Law Ed.

U. 8. V. Ooolage, 1 GalliHon 488; U. 591; Calm v. U. S., 152 U. S. 209,

S. V. Wilson, 3 Blachf. 435. Seo 28 Law Kd. 415.

The Source of Our Criminal Laws 5

instrument places certain restrictions and prohibitions
upon the state governments. Powers not expressed in
the constitution and which by implication is not pro-
hibited to the states, are reserved to the states respec-
tively or to the people. Hence the states are endowed
with absolute sovereignty in all things save those dele-
gated to the United States and which by the constitution
is prohibited to them. In the language of Chief Justice
Marshall, "The people of the United States have mani-
fested a determination to shield themselves and their
property. The restrictions on the legislative power of
the states are obviously founded in this sentiment; and
the constitution contains what may be deemed a bill of
rights for the people to each state.^

§8. Extracts from the constitution. (1) — No state
shall enter into any treaty, alliance, or confederation;
grant letters of marque and reprisal; coin money;
emit bills of credit; make anything but gold and
silver coin a tender in the payments of debts; pass any
bill of attainder or ex post facto law or law impairing
the obligation of contracts or grant any title of nobility.
(2) — No state without the consent of congress can lay
any imposts or duties on imports or exports, except what
may be absolutely necessaiy for executing its inspection
laws; and the net produce of all duties and imports laid
by any state on imports or exports, shall be for the use
of the Treasury of the United States: all such laws shall
be subject to the revision and control of congress. (3) —
No state without the consent of congTess, can lay any
duty on tonnage, keep troops or ships of war, in times of
peace enter into any agreement or compact with any
other state, or w^ith a foreigii power, or engage in war,
unless actually invaded, or in such imminent danger, as
will not admit of delay.'''

6— Flecher v. Peck, 6 Cranch. 137.
7 — Constitution United States,
Art. 1, see. 10, clauses 1-3.

6 Ckimiistal Law

§ 9. Prohibitions to the states. So the prohibitions to
the states contained in clause "1" section ''10," art. ^'1"
in the constitution are absolute. Under no conditions
can the states act within these restrictions. Xor can
the congress of the United States extend the right to the
states. The restrictions contained in clauses ''2" and
"3," are however limited restrictions which depend
upon the congress, in granting consent, except in case
a state is actually invaded or the danger is so imminent
as not to admit of delay, in securing the consent of con-
gress, to repel the invasion or in defending the danger.
This is an express adoption of the natural law of self
defense transferred from the individual to the state.
Section ''8," art. "1" of the constitution of the United
States specificallj^ delegates to congress certain powers,
some of which include and are identical with the powers
prohibited to the states. Many of these prohibitions to
the states do not appear to be expressly delegated to the
general government. The clause, *'No bill of attainder
or ex post facto law shall be passed," and "No title of
nobility shall be granted by the United States," are
limitations upon the power of congress and prohibitions
to the states.^ Neither the general government through
congress, nor a state through its legislature can pass a
bill of attainder or ex post facto law, or create any
titles of nobility. The founders of the constitution in
order to forever prohibit the passage of any bill of at-
tainder or ex post facto law, and to i)rotect themselves
from a repetition of such cruel and unjust laws, as had
been passed by the English Parliament, not only prohib-
ited to the general government, but also took from the
states, such power. So also in order to maintain equal
rights to all under the law, and to discountenance castes,
and to check the growth of special i)ii\ilegcs to one cit-
izen to the exclusion of another, tiie constitution pro-

8 — U. y. CoiiHtitution, Art. 1, sees. Com. v. Pliilip.s, 11 Tick. 28; Com.
9-10; Bcc Kx parto Gall and .333; v. Edwards, 9 D.-ina 447.

The Soukce of Ouii Criminal Laws 7

hibits both the national and state governments from cre-
ating titles of nobility.

§ 10. Bills of attainder. A bill of attainder is a legis-
lative act which inllicts punishment without a judicial
trial. There are two classes of these bills and are dis-
tinguishable by the extent of the punishment inflicted.
Where the punishment was less than death it was teiTued
a bill of pains and penalties. The distinctive features
of these laws consists in the legislative act of conviction
without giving the citizen the right of trial in the judi-
cial tribunals. Such laws had been frequently passed by
the English Parliament prior to the adoption of the con-
stitution of the United States. Sometimes Parliament
would declare an act to be treason, which under the law
was not treason. It would authorize a conviction upon
the evidence of one witness, when the existing law re-
quires two; would receive evidence without the admin-
istration of an oath, and would inflict greater punish-
ment than is permitted by law.®

§ 11. Includes bills of pains and penalties. A bill of
attainder, against which the constitutional prohibition
extends, includes bills of Pains and Penalties. It is a
legislative conviction without a trial in court. Tlie leg-
islature usurps the power and the authority of the judge
and the jury, determining the guilt of the party without
evidence; in short, convicts and inflicts punishment by
legislative will. In the language of Judge Story, "Bills
of this kind have been most usually passed in England, in
times of rebellion or gross subserviency to the Crown or
violent political excitement; periods in which all nations
are most liable (as well the free as the enslaved) to for

9 — Cummings v. State of Missou- 339; Hawker v. New York, 170 U.
ri 4 Wall. 277; see authorities cited. S. 189; see U. S. v. Hall, 2 Wash.
Ex parte Garland, 4 Wall. (U. S.) (U. S.) 366.

8 Criminal Law

get their duties and to trample upon the rights and lib-
erties of others. " ^°

§ 12. Ex post facto law. An ex post facto law is de-
fined to be one, which imposes a punishment for an act
which is not punishable at the time it was committed;
or imposes additional punishment to that then pre-
scribed; or which increases the punishment of an act
then penal ; which changes the rule of evidence by which
less or different testimony is sufficient, than was pre-
viously required. A law which requires the oath of an
attorney, affecting his past conduct, or a priest to per-
form the duties of his office, or a teacher to teach school,
is an ex post facto law and void.^^

The deprivation of a right, as a test or qualification,
to engage in a profession or lawful pursuit, is a punish-
ment within the prohibitions of the constitution.^'^ Ac-
cording to Judge Fields: "The theory upon which our
political institutions rest, is, that all men have certain
inalienable rights; that among these are life, liberty and
the pursuit of happiness; and in the pursuit of happiness,
all honors, all positions, are alike to eveiy one, and that
in the protection of these rights, are equal before the
law. Any deprivation or suspension of these rights, for
past conduct, is punishment and can in no wise be de-
fined." ^^

§ 13. Further instances and explanations. A statute
transferring the power of assessing punishment from the
judge to the jury, does not come within the inhibitions
of the constitution.^* Nor does a statute allowing the

10— story's Constitutions, 1344; 13— Ex parte 0;»rl:nul, 4 Wall.

Cuniminf,'s v. Tlic State of Missouri, 400, 71 U. S. 3GG; Gray v. State

4 Wall. 277; Gains v. Buford, I of Conn., 159 U. S. 74; Foster v.

Dana 510. Police Conunissioners, 102 Cal. 483;

11— CuiMM.inKs V. State of Mia- U. S. v. Hall, 2 WaHli. (U. S.) 366.

souri, 4 Wall. 277. 14— Holt v. State, 2 Tex. 33;

12 — Same authority as note 11. Dawsou v. State, 6 Tex. 347.

The Source of Our Criminal Laws 9

amendment of indictments where the defendant's name
is inserted in an indictment then pending for trial." It is
ex post facto for the legislature to enact a statute author-
izing the trial of offenses barred by the statute of lim-
itations.^^ Nor can a conviction be sustained under a law
changing the evidence necessary to authorize a convic-
tion, from that necessary at the time of the commission
of the offense." A statute which requires or authorizes
in the alternative, the infliction of punishment, as by
death or by confinement in the penitentiary, does not
come within the inhibitions of the constitution." If how-
ever the punishment is increased it is ex post facto law,
but if the punishment of the new statute ameliorates the
old one it then does not come within the prohibitions."

§ 14. Of laws which alter the rules of evidence. It is
well settled that every law which alters the rules of evi-
dence, or admits less, or different evidence, upon the
trial of an offense, than was permitted at the time
that it was committed, is ex post facto and void.^"
But those changes only which affect, or modify, the pro-
cedure in the rules and the application of evidence, is
held not to be ex post facto.^^ Thus, the supreme court
of the United States in a recent case declares that a
statute which enlarges the class of persons, who may be
competent witnesses, is not ex post facto. The lan-
guage of the court is: ''That it does not attach crim-

15 — State V. Manning, 14 Tex.
402.

16— State V. Sneed, 25 Tex. Supp.
66.

17— Calleway v. State, 7 Tex.
App. 585; Murry v. State, 1 Tex.
App. 417; Velasce v. State, 9 Tex.
App. 76; Johnsen v. State, 16 Tex.
App. 156.

18— McEnturf v. State, 20 Tex.
App. 335.

19 — Art. 15 Penal Code of Texas.

See notes 1, 2 and 3, Wilson's Crim-
inal Statutes of Texas, 1896; Hunt-
ing V. People, 22 N. Y. 105; Shep-
ard V. People, 25 N. Y. 406; Eatsky
V. People, 29 N. Y. 124; People v.
Hayes, 140 N. Y. 484; 35 N. E. 951;
Strong V. State, 1 Blackl. (Ind.)
193.

20 — Cummings v. State of Mis-
souri, 4 Wall. 277.

21— Veal V. State, 8 Tex. App.
424.

10 Criminal Law

inality to any act previously done, aggravate past crimes
or increase punisliment therefor, nor does it alter the
degree, or lessen the amount or measure of proof neces-
sary for conviction. Eemoving restrictions upon the
competency of certain class of persons as witnesses, re-
lates to the mode of procedure only, in which no one can
be said to have a vested right, and which the state on
grounds of public policy may regulate at pleasure. ' ' ^^

If the effect of a law is to increase the chance of con-
viction upon reason there can be no ground to exclude it
from the category of ex post facto laws, notwithstanding
it may be in the nature of procedure. "When a person
commits a crime, he is entitled to all the rights he pos-
sessed at the time of its commission. While it is per-
fectly legitimate for the legislature to enact laws facil-
itating or regulating the procedure in any cause, yet if
the change in effect is to increase the chances of convic-
tion, by allowing a witness or class of persons to testify,
who by reason of the relation sustained at the time of
the committal of the offense, toward the defendant, in-
creases the probability of conviction, is ex post facto,
and retroactive. Thus in the case of husband and wife
the effect of the testimony of the wife against the hus-
band, owing to their relations, would increase the chance
of conviction, and to that extent change a vested right
of the husband. So in the case of privileged communi-
cations between client and attorney. In these cases the
law protects the defendant from the disclosures of these
classes of witnesses. It is a vested right, and an admis-
sion to testify would take from him a very material right,
because it would increase his cliances of punisliment. So
again, in the case of porjuiy, to authorize a conviction
upon the evidence of one witness, would be ex post facto.

11 wonld be changing the amount and the degree of evi-

22— I^nuphlin v. Com., 13 Bush
261 : no].t V. U. 8., 110 U. 8. n?!.

The Source of Our Criminal Laws 11

dence necessary to a conviction. So to allow the testi-
mony of a convict, who at the time of the commission
of a crime and at the time of the trial was an incompe-
tent witness. To allow an accomplice to testify upo7i
equal footing with other witnesses, would change the
amount and degree of evidence necessary to a conviction
and hence ex post facto. There appears to be a distinc-
tion without a difference between a law which admits less,
or which changes the degree or amount of evidence nec-
essary to a conviction, 'and a law which admits a class
of witnesses, or character of evidence which increases the
possibility of conviction. ' ^3 Changing the place of trial
from one country to that of another; ^ providing the time
of day in which the death penalty may be inflicted, and
prescribing regulations as to the number of persons who
may witness its infliction; ^s restricting the peremptory
challenges to which the defendant is entitled; ^e requiring
the defense of insanity to be specially pleaded in a crim-
inal prosecution; ^'^ allowing the counsel for the prosecu-
tion to open and to close the argument to the jury; ^^ cre-
ating a new court or conferring new jurisdiction, or en-
larging or diminishing the powers of existing courts; ^^
transferring jurisdiction from one court to another; au-
thorizing prosecutions for crimes to be upon information
as well as upon indictment,^" have been held to affect the
remedy or the procedure of which the defendant had no
right to complain because of the ex post facto character.

23— Gut V. State of Minnesota, 9 26— South v. State, 85 Ala. 617.

Wall. 35, 76 U. S. 573; State v. Mc- 27— Perry v. State, 87 Ala. 30.

Donald, 20 Minn. 136; Carpenter v. 28— People v. Motimer, 46 Cal.

State of Pennsylvania, 17 Wall. 191; 114.

see Thompson V. State of Utah, 170 29— Anderson v. O 'Donald, 13

U. S. 351, 46 L. ed. 1067; King v, American State Reports 728.

State of Missouri, 107 U. S. 232. 30— People v. Campbell, 43 Am.

24— Gut V. State, 9 Wall. 35, 76 Rep. (Cal.) 257.
r. S. 573.

25 — Holden v. State of Minnesota,
137 U. S. 483, 34 L. ed. 736.

12 Ceiminal Law

§ 15. Under the provisions of the Texas statute. Un-
der the Texas statute where it is provided, that iu case
the penalty under which tlie offense was committed has
been ameliorated, the defendant may elect to be tried un-
der the old law, and to accept the old penalty, is not an
ex post facto law; nor where the degree of evidence is
decreased necessary to a conviction. Thus where by the
law under which a seduction was committed, the in-
jured female was permitted not to testify, but under the
law in force at the time of the trial she was allowed to
testify, held that such law was not ex post facto.*^

§ 16. Bill of rights. In all criminal prosecutions, the
accused shall have the right to a speedy and public trial,
by an impartial jury of the state and district wherein
the crime is committed, which district shall have been
previously ascertained by law, and to be informed of
the nature and the cause of the accusation; to be con-
fronted with the witnesses against him; to have com-
pulsory process for obtaining witnesses in his favor, and
to have the assistance of counsel for his defense. No
person shall be subject for the same offense to be twice
put in jeopardy of life or limb; nor shall he be com-
pelled in any criminal case to be a witness against him-
self. No person shall be held to answer for a capital or
otherwise infamous crime unless upon a presentment or
an indictment of a grand-juiy, except in cases arising
ill the land or naval forces or in the militia, when in
actual service in the time of war or public danger. No
excessive bail shall be required, nor excessive fines im-
posed, nor cruel and unusual ])unislnnents inflicted. ^^ Tlio
foregoing provisions of the Federal Constitution are in-

31— Mrous V. state, 31 Tex. App. 32— Art. 5 of the Constitution of

TjO? ; Mano v. State, 25 Tex. App. tlie United States.
]05; Vcal v. State, 8 Tex. App. 474;
Jolinson V. State, 28 Tex. Ai)p. r)f)2 ;
Jcnkcns v. State, 28 Tex. App. 86.

The Souece of Our Crimhstal Laws

corporated into the constitutions of the several states,
and perhaps in some instances additional safeguards are
thrown around the liberties of the people.^^ These per-
sonal liberty provisions of the constitutions are but the
affirmative declarations and recognition of such riglits
as are handed down to us by the common law and the
Magna Charta. They are the fundamental liberties of
the people and are necessaiy to the perpetuity of repub-
lican government. One authority says: "Our ancestors
brought these privileges with them to America as their
birthright and inheritance, and as a part of the common
law, which then interposed its guardianship and threw
around them on every side its protection against the
approaches of arbitrary power." That part of the Fed-
eral Constitution requiring capital or otherwise infamous
crimes to be presented by a grand jury, applies to crimes
committed against the laws of the United States, and
does not operate as a restriction upon the states to enact
laws providing for the presentment of crimes upon in-
formation.^* A crime punishable by confinement in a
state penitentiary is regarded as infamous within the

33 — See State Constitutions.

34— State v. Barnett, 3 Kan. 250 ;
Prescott V. State, 19 Ohio St. 184;
Irwin V. Com., 3 Bush (Ky.) 18;
State V. Jackson, 21 La. Ann. 574;
Twichell v. Com., 7 Wall. 186 ; Boyd
V. Elliott, 11 Iowa. 97; U. S. v.
DeWitt, 9 Ct. Ill; Mackin v. U. S.,
117 U. S. 348; U. S. v. Todd, 21 U.
S. 168. In the absence of a statute
providing for the presentment of a
crime by information the conviction
will be without authority of law,
and the prisoner will be released on
habeas corpus. In Ee Dobson, 25
Pacific Eep. 442 (Mon.), an offense
punishable by confinement in the
penitentiary for more than one year
IS an infamous crime ; U. S. v. Cobb,

43 Fed. Rep. 570, without hard la-
bor. ' ' A crime punishable for a
term of years Avith imprisonment at
hard labor is an infamous crime
within the meaning of the fifth
amendment to the constitution ; and
that the district court in holding
the petitioner to answer for such
crime, and sentencing him to such
imprisonment without indictment or
presentment by a grand jury, ex-
ceeded its jurisdiction ; and he is
therefore entitled to be discharged.
See Ex parte Wilson, 114 U. S. 417;
id. 4 Am. Cr. Eep. 283 ; see also Ly-
bargcr v. State, 2 Wash. St. Eep.
768; 27 Pacific Eep. 565; State v.
Hoyt, 4 Wash. St. Eep. 465.

14 Criminal Law

meaning of the Federal constitution. The right of a de-
fendant to first be indicted before he can be tried for
a capital or otherwise infamous crime was carried into
the constitution from Magna Charta.

§ 17. Illustrations. As a further illustration of the
foregoing, the criminal code of the United States pro-
vides that punishment by the inflicting of the death
penalty or imprisonment for a time not exceeding one
year are felonies; ^^ that the omission of the words "hard
labor" from the provisions in the code specifying punish-
ment under the various sections of the code shall not be
construed as prohibiting the power of imposing hard
labor as a part of the punishment where previous to the
enactment of the code of 1909 hard labor might be in-
flicted.^^ The infamous feature being the power to im-
pose hard labor, not that as a matter of fact hard labor is
imposed. The test is, may the court inflict hard labor as
part of the punishment? If he may, then it is an in-
famous crime, and must be presented by an indictment
of a grand jury.^''

§ 18. Divisions of government. The government of our
states is divided into three departments, each of which
acts as a check upon each other. The law-making power
is vested in the legislature, the members of which are
elected from the whole body of the people, because of
their supposed superiority of intellect and experience in
governmental pursuits. The legislature has power to
enact any law not prohibited to the states by the con-
stitution and laws of the United States and the state con-
stitution. The legislature is not absolutely sovereign
in its power. Any law, however, not in conflict with the
laws and the constitution of the United States, and not

35— U. S. Cr. Code, sec. 335. :^6— U. S. Cr. Code, sec. 338.

36— U. S. Cr. Code, sec. 338. § 1050 this work.

35— U. S. Cr. Code, sec. 3;i5. 37— Ex parte Wilson, 114 U. S.

$ 1047 this work. 117, 29 L;iw Kd. 80.

The Source of Our Criminal Laws 15

restricted by the state constitutions, is within the scope
of legislative authority.^®

§ 19. Legislatures restricted by the constitutions. The

legislative powers under our constitutions greatly differ
from the power of the English Parliament. ^^ The latter
has unlimited authority to enact any law. The power
is absolute, and is not in any sense restricted by any
other department of the government. Under our con-
stitutions and theory of government, the legislative de-
partment is free from the interference of any other de-
partment, except that the president of the United States,
or the governors of the several states, may interpose a
veto to any measure.

If when any law has passed both houses of congress
the same shall nevertheless be presented to the president
for his signature, and in case of his refusal to sign the
same within ten days, it shall nevertheless become a law,
but if the same is vetoed, it may also nevertheless be-
come a law, provided two-thirds of the congress shall
vote for the same. Similar provisions are incorporated
into the constitutions of the several states.*"

§ 20. Legislatures are conducted under their own rules.

The congress and the several state legislatures have full
power to control their deliberations, to make rules for
their government and to enforce their orders. They
have power to hold any person for contempt who refuses
to comply with them, and may expel a member for un-
becoming conduct. The power to make needful rules and
regulations for their government is absolute. These

38 — Constitutiou of U. S. and State Eep. 544; Donald v. State,

Constitutions of the several States. 48 Miss. 661, 12 Am. K. 375.

Baker v. People, 3 Cow. 486, 15 39 — Marbury v. Madison, 1

Anier. Dec. 322; State v. Hender- Crancli. 135.

son, 1 Wyo. 532, 22 L. E. A. 751; 40— See Blackstone 's Commenta-

Ex parte Berger, 193 Mo. 16, 112 A. ries, Constitution of U. S. and Con-

S. E. 472; Euss v. Com., 219 Pa. stitutions of the several States.

16 Ckimixal Law

powers are incident and inherent, for otherwise the busi-
ness of such bodies could not be conducted.*^ Senators
and representatives shall in all cases except for treason,
felonies and breaches of the peace, be privileged from
arrest during their attendance at the session of their
respective houses, and in going to and returning from
the same, and for any speech or debate in either house
they should not be questioned in any other place. A
similar provision will be found in the constitutions and
laws of the several states.

§ 21. Distinction between judicial and legislative pow-
ers. The judicial department of the government is per-
haps as important as the legislative. This department is
to construe and determine what the law is. The legis-
lature is subordinate to the judiciary. Experience
teaches that the legislatures often leap beyond their
bounds, and the barriers of the constitutions are brushed
aside by a breath of passion — and amid the clash of
contending interests the fundamental laws of the land
are submerged in the waves of party rancor. Thus the
fathers from the shades of the past drew wisdom for the
future when they incorporated into the superstructure of
our government this check upon the legislative powers.**
No law can be declared invalid for any misconduct of the
legislature. A law may have been enacted through fraud,
threats or coercion, yet it is not void for that reason. So
long as the legislatures remain within the bounds of
the constitution, their acts are valid. Courts are not
at liberty to inquire whether the legislature lias prop-
erly exercised its authority, if acting within the laws and
constitution. The courts are bound to presume that the
legislature has acted properly. It does not come within

41 — AndcrHon v. Dunn, 6 Wh. St. 282; People v. Dniper, 15 N. Y.

201 ; liurdett v. Abbott, ]4 East 1; R. 515; Falconer v. Campbell, 2 Mc-

liurdett V. Coleman, 14 East 1G3; Leon 195.

Con. U. S. Art. II, sec. 6. Leon 195; Marbury v. Madison, 1

42— Erie K. \i. v. Cooper, 33 Pa. Cranch. 135.

The Source of Our Criminal Laws 17

the province of tlie courts to inquire into the motives
which actuate the legislature in the passage of a given
act, though fraud and corruption be alleged. The ju-
diciary has no power to impute to the legislature any
other than public motives for their acts. For the pur-
pose of impeaching a statute the courts cannot go behind
the record to inquire into the regularity of the proceed-
ings of the legislature.*^

§ 22. Court made laws. The great body of the English
common law constitutes a large part of our law. The
common law as a system and a science consists of gen-
eral and uniform rules and principles designed to meet
all phases of human transactions. No foresight could
evolve a rule which would under all circumstances give
a remedy, establish a right or restrain a wrong. "Where
such is the case the party aggrieved must suffer the
wrong until the legislature enact a law covering the par-
ticular case or the court must apply the general principle
to the particular case, thereby creating a remedy. If the
court in applying a given principle to a statement of facts,
for which no previous precedent can be found, it be-
comes the province of the judge, as well as his duty to ap-
ply the principle to the new case. But if the case require
enunciation of a new principle, it is beyond the jurisdic-
tion of the judge to make the law to reach the case. In
a primitive state of society, where from the nature of
the conditions only a few rights are recognized, and in-
deed only a few rights exist, the application of a general
principle, to cases arising under such society present no
difficulty. The application of the new case can be found
in the precedent of the old. But as population grows,

43 — Also see Hutchison v. Sterne, Pacific 302, Ann. Cas. 1918 A, 58:5.

Journal of Appeals, Nov. 26, 1898, The A., T. & S. F. Ry. Co. v. State,

No. 7, page 379; U. S. v. De Mouse 40 L. R. A. 29. Note "a" and the

Nav. Co., 142 U. S. 510; People v. authorities cited. Carr v. Coke, IIG

Glerm County, 100 Colo. 419, 35 N. C. 228, 47 A. S. R. 801.
C. L.— 2

18 Cbiminal Law

and the wants and ambitions of men increase, the com-
mercial and trade rehitions develop new rights and obli-
gations. These new rights must be recognized and ad-
judicated, not by making new law, but by extending the
general principle to cover the new right. The law as a
system and a science could not develop and refine itself,
if the judge at every turn was to be handicapped by such
an arbitraiy rule — a rule that would confine him to a
previous declaration, based upon an entirely different
statement of facts. Judge Cooley, in his work on Torts,
successfully and clearly illustrates this principle : ' ' Every
principle declared by a court in giving judgment is sup-
posed to be a principle, more or less genuine in its ap-
plication, and which is applied under the facts of the
case, because in the opinion of the court the facts bring
the case within the principle. The case is not the meas-
ure of the principle, it does not limit and confine it
within the exact facts, but it furnishes an illustration of
the principle which, perhaps, might still have been ap-
plied, had some of the facts been different. Thus one by
one important principles become recognized through ad-
judications which illustrate them and which constitute
authoritative evidence of what the law is, when other
cases shall arise. But cases are seldom exactly alike in
their facts; they are, on the contrary, infinite in their di-
versities; and as numerous controversies on different facts
are found to be within the reach of the same general
principle, the principle seems to grow and expand and
does actually become more comprehensive.

CHAPTER II

DIVISIONS OF CRIMES IN GENEEAL

§24.

§25.

S 26.

§28.
§29.

§30.
§31.

«! 32.
§33.

§34.

Division of crimes at common

_ law.

Petit treason and its incidents.

Difference between treasons
and felonies at common law.

Overt act necessan.- to be
shown in treason.

ilisjirisions.

As to what required in indict-
ment.

Important distinctions.

Tlie right to kill to prevent
felony.

What is compounding felony.

Doctrine as applied to misde-
meanors.

No misprision of misdemean-
ors.

FELONIES

S ;'>5. Forfeiture of goods and es-
tates at common law.

MISDEMEANORS

§ o(i. All crime below felonies, mis-
demeanors.

§ 37. Police regulations, cities, state,
etc.

§ 38. Of the classes of police regu-
lations.

§ 39. Misdemeanors mala prohibita,
what are.

§ 40. Nuisances possess both civil
and criminal character.

§ 24. Division of crimes at common law. At the com-
mon law, crimes were divided into three classes: Trea-
sons, felonies and misdemeanors. Treasons, as defined
by Sir William Blackstone: "Treason imports a be-
traying, treachery or breach of faith." Treason is sub-
divided into high treason and petit treason. By the laws
of England, high treason consisted in personal injury to
the king; compassing the king's death; levying war
against the government; giving aid and comfort to the
king's enemies; violating the king's eldest unmaiTied
daughter, the queen consort, the wife of the king 's eldest
son; counterfeiting the king's privy seal; having carnal
intercourse with the king's eldest daughter, the king's
wdfe, or the wdfe of the king's eldest son, with or w^ith-
out force.^

1 — 4 Bla. chap. 6. Every person owing allegiance to the United

Criminal Law

§ 25. Petit treason and its incidents, etc. By the law
of England it was petit treason for the wife and those
interested with her to kill the husband, and so also for
the sei^^ant to kill the master. The English rule, how-
ever, merged the treason into the murder. In the United
States there are no such distinctions. All persons are
equal, and to kill the president of the United States is no
greater crime than to kill the humblest citizen. The
English government was based upon the supposition that
the king was the divinely appointed ruler, and could not
commit a wrong, and was also incapable of doing an in-
justice. In the United States all power vests in the com-
munity and is derived from the consent of the governed.
There are no special privileges or immunities granted to
one citizen to the exclusion of another. All classes of
persons are equal before the law, and so far as the ethics
of the criminal laws are concerned, there are no distinc-
tions between persons and their rights. As we have no
high treason in the United States, it follows that we can

States who levies war against them
or adheres to her enemies, gives
pomfort or and to her enemies in the
United States or elsewhere. Sec.
5331 Kev. Stat. U. S. 1878: Every
person guilty of treason shall suffer
death, or at the discretion of the
court, shall be imprisoned at hard la-
bor for not less than five years and
fined not less than $10,000.00. See.
5332. Every person guilty of trea-
son .shall moreover be incapable of
holding office under the United
States. Every person owing alle-
giance to the United States and hav-
ing knowledge of the commission
of any treason against them, who
conceals, docs not, or as soon as may
be, disclose or make known tlic same
to the president or some judge of
the United States, or to tlic gov-
ernor or some judge or justice of a

particular state, is guilty of mis-
prision of treason, and shall be im-
prisoned not more than seven years
and fined not more than a thousand
dollars.

See United States v. Insurgents,
2 Dall 335; U. S. v. Mitchell, 2
Call 348; United States v. Vellato,
2 Dall 370; Ex parte Bolman &
Swartout, 4 Cr. 75; United States
V. Prior, 4 Wash. 334; 1 Burr's
Trials, 14-10; 2 Burr's Trials, 402-
5-17.

2 — 4 Black. 75: Petit treason
was abolished by 2 R. S. 657 and tlie
offenses are the same as if com-
mitted by a stranger. At this time
in both England and tlie United
States treason consists in declaring
war, adlicring to tlie enemy, or giv-
ing them aid or comfort.

Divisions of Ceimes in General 21

have no petit treason. The unjust distinctions as to the
relative rights of husband and wife have given way to
the march of a higher civilization: the barbarous doctrine
that the master was lord over the actions of his servants,
or employees, has become obsolete, and there is planted
instead equal rights and equal penalties, whether it is
the master or the servant who is charged. The criminal
law as theoretically administered is an aegis around the
liberty of the citizen, whether he be an employer or em-
ployee, rich or poor, and to the evil doer, through its
broad humanity and systematic rules seeks to reclaim,
and stamp upon him its highest hopes of justice.

§ 26. Distinction between treason and felony, at com-
mon law. Treason at common law was felony, but all
felonies were not treason; a conviction for either carried
with it a forfeiture of goods and lands and the corrup-
tion of blood. The real distinction consisted in the nature
of the crime and the amount of evidence necessary to a
conviction. Treason, strictly speaking, is a crime against
the government and is particularly heinous, because it
shows a spirit entirely void of patriotism and love of
one's country. It is a bounden duty to adhere to one's
government and to protect it against the interference
of a foreign power, and against any interference what-
ever. Blackstone in his commentaries defines treason
to be "The tie or liegemen which binds every subject
to be true and faithful to his sovereign liege lord
the king, in return for that protection which is afforded
him: and truth and faith to bear of life and limb and
earthly honor: and not to know or hear of any ill in-
tended him without defending therefrom. ' ' *

§ 27. Overt act necessary to be shown in treason. To
wan-ant a conviction for treason, an overt act must be

3 — 4 Black, chap. 6, 75. See Chit-
ty's Cr. Law, 779 to 801.

Criminal Law

alleged and proved.* It has been held that a writing con-
taining treasonable matter, although not published or ex-
hibited to others, was sufficient.^ Under the constitution
of the United States, no conviction can be had, except
upon the evidence of two witnesses to the same overt act,
or upon confession in open court. Constitution U. S., Art.
in, Sec. 3, clauses 1 and 2.

§ 28. Misprisions. Misprision of treason consists in the
guilty knowledge of a treasonable act, and in the failure
to disclose such information to the government. Treason
is regarded by all nations as the worst of crimes, and
merits severe penalties. For this reason one having
knowledge of another's treasonable act, although not
participating, if he conceals such knowledge, is guilty
of an offense. All who participate in a treasonable act
are principals. Under the constitution and laws of the
United States all persons charged with treason or mis-
prision of treason, must owe allegiance to the United
States. A foreigner owing allegiance to any king, prince,
power or government, cannot be guilty of these crimes
against the United States. The same principle would
no doubt bear application to treasons against the states,
for all the states have substantially the same provisions
affecting these crimes as the constitution and laws of
the United States.^

4 — The overt acts are the means
made use of to effectuate the inten-
tions of the heart. An indictment
for levying war or adhering to the
tlie king's enemicH, an overt act
must lie alleged and proved, for the
overt act is the charge to wliich llic
})risoner must apply his defense.
But it is not necessary that whole
of the evidence intended to lie
given should be set forth. The
common law never required it, nor
does the statute of King William
refjuire it. Note 5 4 Bla. 80.

5— Re.K. V. Stone, G T. R. 527; 1
East P. C. 79; Fisher's Cr. Law
467, 468, 469, 470.

6—3 Grcenlcaf, sec. 238. :Mispri-
sion of treason against the U. !S. is
wliere any j)erson hearing of the
commission of any treason, shall
conceal and not as soon as may he,
disclose same to the President of
the United States, some one of the
judges thereof or llie governor of ii
state or some one of the judges
tliereof.

Divisions of Crimes in General 23

§ 29. As to what is required in the indictment. It is

necessary in an indictment for treason or misprision of
treason to allege that the party charged owed allegiance
to the United States or to the state as the case may be.
Any competent evidence sufficient to establish this beyond
a reasonable doubt, is enough. Two witnesses are neces-
sary to establish the overt act.

§30. An important distinction is noted here. In fel-
onies there is no legal duty to inform against one who
has committed a felony, although such knowledge is pur-
posely concealed. The person having such knowledge
would be an accessory after the fact if such concealment
was made with the intent to aid in the escape of the of-
fender. Independent of the intent to aid in the escape of
the guilty party the mere knowledge and negligent fail-
ure to disclose it, is not punishable as a distinct crime.
One knowing a felony to have been committed who pur-
posely conceals it from one having a right to inquire,
would be guilty of misprision of felony.

§ 31. The right to kill, to prevent a felony committed in
presence. One present when a felony is committed upon
the person of another, has the right to prevent it by
killing the offender, all other means failing. The homi-
cide would be justifiable under such circumstances.
There is a legal duty upon every one to prevent a felony
attempted to be committed in his presence.''

§ 32. What is a compounding of felony. Compounding
felony is where one for a valuable consideration or some
other purpose, agrees with the principal not to prosecute
or otherwise aid him and shield him from prosecution "

7 4 Bla. 184. The felony must sailant be killed when there is rea-

be actually committed to justify sonable ground to believe he is about

a pursuit of felony. A reasonable to commit a felony, the killing is

belief that a felony has been com- justifiable,
nutted, not sufficient. But if as- 8—4 Bla. 133 and note.

24 Ckimixal Law

At common law he was regarded as an accessory. In
those states where in the absence of a statute, the com-
mon law would be enforced, it seems the otfense is indict-
able.^ Usually it is specially provided by the statutes
that the offense be punishable.^'' A promise by a prin-
cipal to pay money or any other contract, based upon a
consideration of forbearance to prosecute, cannot be en-
forced against him, upon the ground of public policy.
No one has the right to defeat the ends of public justice
by such contracts. In such cases one 's personal interests
are subordinate to that of the public. To permit the en-
forcement of such contracts would pollute the veiy foun-
tains of justice.

§ 33. Doctrine, as applied to misdemeanors. The prin-
ciples involved in the preceding section, in reference to
the compounding of felonies, apply with equal force to
misdemeanors, except there cannot be accessories to a
misdemeanor. All parties connected in the commission
of a misdemeanor are principals. Compounding a misde-
meanor, was at the common law a substantive offense
and was indictable as such." The English laws re-
garded such attempts to thwart the ends of public jus-
tice as particularly reprehensible and visited them with
rather severe penalties. By statute 25 Geo. Ill the penal-
ties were reduced. ]\Iost of the states have substantially
the same provisions incorporated in their respective stat-
utes upon the subject, coveiing in particular "Compound-
ing offenses," and it is of very little practical importance
whether the compounding a misdemeanor, as a matter of
law could be indicted as a common law offense.

§ 34. There is no misprision of a misdemeanor. There
ia no legal obligation upon any person to infonn the au-

9 — 4 Am. & Eng. Encla. 657 :iii.l 11—4 Bla. 134; 4 Am. & Eng.

note. Encl.a. Lnw C5S, 302; Chitty's Cr.

10— Com. V. Pcaac, 16 Mnss. 91. Law, Vol. I, Ed. 1841.

Divisions of Crimes in General

thorities of his knowledge respecting the commission of
a misdemeanor. As we have already said all persons
connected with the commission of a misdemeanor are
principals. The law does not take notice of small things,
nor draw distinctions in the degrees of guilt in petty of-
fences. The public therefore could suffer but slight, if
any injury in the failure of any person to disclose his
knowledge of the commission of a misdemeanor.'^'^

FELONIES

§ 35. Forfeiture of goods and estates at common law.

Originally all offenses which occasioned the forfeiture
of goods and land were felonies. All forfeitures and
corruption of blood as part of the punishment of felonies
have been abolished in this country. The usual punish-
ment inflicted by the laws of the several states, is death
or confinement in the penitentiary. The test as to
whether an offence is a felony, in most of the states, is
whether punishment is inflicted by confinement in the
penitentiary or by death. At one time upon the authority
of Sir William Blackstone, no less than 160 different of-
fences were punished capitally, by the laws of England.
The common law considered many grave offences as mis-
demeanors only. Perjury, in the light of the present, is
regarded as a very mischievous offence, was at the com-
mon law a misdemeanor, whilst theft, much milder and
less reprehensible, was a felony. But by statute 7 & 8
Geo. IV it was made a felony without the benefit of
clergy.^^

12—4 Bla. 36: "In trespass all
are principals, because the law quae
de minimis non curat does not de-
scend to distinguish the different
shades in petty misdemeanors. ' '
Com. V. Garnett, 79 Am. Dec. 79.

13 — Crime is not a felony unless
made so by statute or was so by
the common law. State v. Murphy

(R. I.), 24 Atl. 473. Those crimes
are felonies that were so by com-
mon law and those also that have
been made such by the legislature
and appended punishments for.
Com. V. SchoU, 12 Pa. Co. Ct. E.
554. In New York all crimes pun-
ishable by death or imprisonment in
the state prison for a longer period

Criminal Law

MISDEMEANOKS

§ 36, All crimes below the degree of felony are misde-
meanors. Misdemeanors are divided into two classes.
(1) Misdemeanors malmn in se, are such offences as pos-
sess a moral tuipitude and indicate, prima facie a wicked
and malicious intent.

It is not to be inferred that all acts possessing immor-
alities are subject to the jurisdiction of law. Many things
are immoral, but are not subject to legislative control.
Many wrongful acts have immoral tendencies, but all im-
moral acts are not subject to the supervision of the
state. The state has the right to prohibit by law, any
act of her citizen which wrongfully affects the commun-
ity, whether the act is moral or immoral. Thus where
a person shuts himself in his private room and makes
himself drunk, this is a veiy immoral act, but the com-
munity cannot be affected by it. If he gets drunk and
goes into a public place, the community is affected be-
cause of the public exhibition of a gross immorality, and
it steps in and punishes the act, not because it is immoral
but because of the immoral example. In a moral sense
there is really no difference. In the one case it affects the
drunkard and in the other it affects the people in general,
by exhibiting an example. There is a point where society
must stop in curtailing the personal and individual lib-
erty of the citizen, notwithstanding exercise of such

than one year, is a felony. People
V. Hayes, 137 N. Y. 29, 32 N. E.
1105. See State v. Ilarr. (W. Va.),
17 S. E. 794. Confinement in the
penitentiary or the infliction of
death is the test in (leterniiniiit,'
wliotlicr an offense is a felony or
not. I.'afcrty v. Slate, 10 S. W.
72S. If tlie act constitutinp an
offense against the laws of the
United States was not criminal at
the poinmon law antl is not wrong

per se it is to be deemed a misde-
meanor, unless the law expressly de-
nominntes it a felony. U. S. v.
Vifril (X. M.), 34 Tacific 530. The
Kansas Statute defines a felony
against the state to be confinement
and hard labor in the state prison
for two years. In re Stevens, r)2
Kans. 5(), 34 Pacific 459. See State
V. Melton, 117 Mo. 608, 53 Mo. App.
640.

Divisions of Crimes in General 27

liberty may lead him into many immoralities. Individual
and personal liberty ceases at the point where another's
right begins.^*

§37. Police regulations in towns, cities and state.
Many acts are prohibited which are neither moral or im-
moral; thus police regulation in cities of large popula-
tions prohibit many acts which considered independently
of the place where committed, are entirely innocent ; such
for instance, as the prohibition against leaving animals
hitched to vehicles; against the running of animals on
the streets and other public places; against the construc-
tion of buildings, unless constructed of certain kind of
material; against the failure to keep in repair streets,
alleys, etc. ; against the failure to procure a license to en-
gage in certain kinds of business ; quarantine regulations ;
against the spread of infectious diseases; prohibitions
against occupations which affect the public health; laws
against the killing, trapping and netting of birds ; catch-
ing and poisoning fish; and all kinds of game laws. So
also all other laws, which are intended to regulate the
affairs of the state, the county or the city, and which affix
penalties for doing or not doing certain things, are of-
fences possessing no element of intrinsic wrong. A
state has the undoubted right to enact any law, deemed
to be of a benefit to the public; and for the violation of
such laws may attach penalties. The character of laws
discussed in this section are authorized only upon the
ground of public policy and the necessity of insuring
protection to the community. Anything of the nature
herein mentioned which affects a community in general or
which affects a great portion of it is the subject of legis-
lative action. Corporations can be made to submit to
proper police regulations in the interest of society.^^
Bookmaking is within the police power of a state or

14 — Baker v. People, 15 Amer. 15 — Piatt v. Denver Canal &

Dec. 332. Milling Co. (Colo.), 30 Pacific 68.

28 Criminal Law

city.^^ Eegulating water closets in private houses in
cities come within municipal authority.^''' Regulating the
sale of meats and groceries; the manufacture, sale and
carrying of firearms; the sale of cigarettes and explosives
all may be reached by the police power of the state."

§38. Of the classes of police regulation, etc. Police
laws are divided into two classes: (1) Kestrictive or
prohibitive; (2) negative or omissive.

First: Eestrictive or prohibitive police regulations are
such as restrict and prohibit certain class of acts. Sec-
ond: Negative or omissive police regulations are such
as command a public duty, the failure to do which is
made penal; such as the failure to contribute to a public
tax or to perfonn labor in repairing a road or bridge; the
failure to disinfect vaults, sinks and privies, etc., as re-
quired under sanitaiy laws.

§39. Misdemeanors mala prohibita, what are. Mis-
demeanors mala prohibita is that class of laws which
prohibit certain acts and which contain no element of
wrong doing but are deemed disadvantageous to the
public. Usually these laws are termed police regulations.

§40. Nuisances possess both a civil and a criminal
character. One guilty of maintaining a nuisance may be
proceeded against in a civil suit for damages or may be
prosecuted criminally for the injuiy to the public. A
criminal nuisance is rather difficult of definition, but in
general those offences which affect the good order, and
the public economy of the state: being those acts which
disturb the citizen and destroy his quiet, peace and com-
fort." These acts may consist either in doing that which

16— BergdcofTer v. Statr, 17 S. 18— Com. v. Roberts (Mass.), 29

W. GIG. N. E. r.;2-.

17_State V. Alt-son (Minn.), 52 19— The owners of lols along the

N. W. 2U0, main street of a populous town

Divisions of Crimes in General

conduces to the general discomfort of all the citizens or
in the failure to do that which the good of the community
requires to be done. Thus at the common law such busi-
ness, trades or professions which proved to be offensive
to the public through stench, noise or uncleanliness were
indictable as common nuisances.^" So also the failure to
perform any duty required of every citizen for the
benefit of all or, in other words, for the benefit of the
community in general, such as the repair of bridges,
highways and the like. Under the head "nuisances" is
included all those acts and omissions which affect the
decency, morals, peace and the comfort of the individual,
and the good order of the public. Offensive manufac-

where there were no sidewalk and
the whole way being used by the
public, and the same being enclosed
by barbed wire fence, it was held
to be a nuisance per se and that the
authorities had the right to remove
the same. Bower v. Watertown,
Borough Pa. Com. Pleas, 11 Pa. Co.
Ct. R. 110. A piggery in which
swine is kept in such numbers that
their natural odors fill the air and
make the occupation of neighbor-
ing houses and the passage along
the adjoining highway disagreeable,
is a nuisance. Com. v. Perry, 29
N. E. (Mass.) 656, 139 Mass. 198;
Gay V. State, 18 S. W. (Tenn.) 260,
96 Tenn. 645. Under an ordinance
of a city, declaring that every ob-
struction of a street, except by au-
thority of a permit, granted under
it should be a nuisance, bill boards
stationed at the entrance to an
opera house was held to be a nui-
sance. City of Wilkes Barre v. Bur-
gender, 7 Kulp. 63. A livery stable
is a nuisance per se. City of St.
Louis V. Eussell, 22 S. W. 470.

20— Eussell on Cr. 318; 1 Hawk,
P. C. 75, 4 Bla. 166. Neither the

fact that a business is carried on
in a careful and prudent manner
and that nothing is done by those
managing it which is not a reason-
able and necessary incident of the
business, nor the fact that when
the business was commenced, the
lands in the vicinity were open
common, will authorize a continu-
ance, in the midst of a populous
community, which constantly pro-
duced odors, smoke and soot of such
a noxious character and to such an
extent, that they produce headache,
nausea, vomiting and other pains
and aches, injurious to health. A
corporation pursuing a business
which is injurious to the inhabi-
tants, in producing sickness, may
be convicted of mainta"ining a pub-
lie nuisance. People v. Detroit
White Lead Works, 82 Mich. 471
One who contributes to the pollu-
tion of a stream of water is guilty
of a public nuisance. State v
Smith (Iowa), 48 N. W. 727.
Playing a baseball game on Sun-
day, if not in the vicinity of habi
tations. Com. v. Meyers, 8 Pa. Co
Ct. 435, is not a nuisance.

Criminal Law

tories in thickly inhabited neighborhood, a pig sty, a pow-
der house and the like are common nuisances. It is not
sufficient that the nuisance disturb the individual only,
but it must extend to the public. ^^ If the discomfort or
the annoyance affects one person or family it is a private
nuisance. The difference between this and a common
nuisance consists in the extent of the injury; in the one
case it extends to the individual and in the other it ex-
tends to the public. Thus if A conducts a business so
near B's house as to disturb him and his family it is a
private nuisance, but conducted in a thickly settled com-
munity it becomes an indictable crime.

21 — Evidence that a single person
lived in vicinity of a slaughter pen
and that he was annoyed by offen-
sive odors is insufficient in a crim-
inal prosecution to show a public
nuisance. State v. Wolf (N. C),
17 S. E. 528. In a prosecution for
maintaining a slaughter pen, emit-
ting offensive odors as a common
and public nuisance, to all persons
passing along the highway adjoin-
ing it is necessary to prove that the
highway is a public highway. An
indictment alleging that the defend-
ant did, on the public street or
highway, profanely swear and curse
and take the name of God in vain,

to the evil example and to the com-
mon nuisance of the good citizens
of the state, does not charge a com-
mon nuisance in the absence of an
averment that the utterances were
in the presence of citizens and in
their hearing and -that the manner
and the occasion of making them
were of the offensive and annoy-
ing character necessary to make
them a public nuisance. Com. v.
Sims, 158 Pa. St. 22; also 27 Atl.
843. For further discussion of nui-
sances, see Phillips v. The City of
Denver, 34 Pacific 902; Kelly v.
The City of New York, 27 N. Y.
164.

CHAPTER III

OF THE MILITAKY LAWS

§ 41. Laws of every nation neces-
sarily divided into two de-
partments.

§ 42. Responsibility to two laws at
the same time.

§ 43. Military rules and regula-
tions are not in a strict
sense a part of the criminal
law.

§ 44. ]\Iilitary power inherent in
every government.

§ 45. Of the martial law.

§ 46. Crimes committed in the army
and navy.

§ 47. Of court martial.

§ 48. Who may convene a court
martial.

§ 49. Of the territorial jurisdiction
of the military.

50.

§51.

§52.
§53.

§54.
§55.

§56.

No power in the civil courts
to review proceedings in a
court martial, except for a
want of jurisdiction.

Conviction in the military
courts no bar to prosecution
in the state courts, or in
the federal courts.

International comity.

Jurisdiction is conferred over
all persons in the service.

Jurisdiction attaches Avhen.

Who is subject to military
duty.

State militia under supervi-
sion of the United States
when.

§ 41. The civil and military distinction. We come now
to the discussion of another part of the law which, in
contradistinction to the civil law, is known as the mili-
tary law.

The law of every nation is necessarily divided into
departments which are practically independent and dis-
connected. It is necessaiy to the continuance and per-
petuity of civil society that these two be maintained
distinct. The object of all municipal law is the mainte-
nance of equal rights to all persons, and this law in its
comprehensive sense, includes both the civil and the mili-
tary. The military law is designed for the government of
a particular class of persons and to be administered in
special or particular tribunals. The navy and the army
are maintained by the civil goveniment for the purpose

32 Ceiminal Law

of gnTJig aid and support to the executive department
of the government in enforcing the laws of the land in up-
holding the government itself. The military law is, strictly
speaking, those rules and regulations designed for the
government of the army and navy as an aggregate . and
distinct community, and in this sense is distinct from
that of the civil laws and authorities of the state. Mili-
tary law and authority, of course, derives its authority
from the state, and in all things is answerable to the civil
laws, except as to its internal govenmient.^

§ 42. Responsibility to two laws at the same time. One
engaged in the army or the na\^^ does not, for that reason,
cancel his responsibility to the civil law. His liabilities
and responsibilities are twofold — that is, he is subject
to both. The soldier is still a citizen, and as such is
amenable to the civil tribunals.^ By electing to become
a soldier he assumes additional duties for which he is
held accountable. Nothing is better settled than that the
citizen is amenable to the civil law in whatever part of
the govenmient he may be engaged or employed. Under
the statute of the United States persons enlisted in the
military service of the United States are exempt from
arrest upon civil process while so engaged, except for
certain debts contracted for prior to their enlistment.'
Officers of the army and navy are exempt from arrest
upon civil process upon grounds of public policy. **No
ofiicer or employee of the United States is, by his position
or the service he is called to perform, beyond responsibil-
ity to the legal tribunals of the country, and to ordinaiy
process and detentions when accused of felony in the
manner prescribed in tlie constitution and laws."*

1 — Benncts Military Law 1 ; Win- 4 — United States v. Ivirby, 7

tlirops Military Law 4. Wall. 482. Tlic court further snys

2— State V. Sparks, 27 Tex. 027. that "It may he douliterl whether

.1 — Ex parte McRoherts, IG Iowa it is conipotont for congress to ex-

600; 12 Am. & Eng. Encly. 428. cnipt the employees of the govern-

Of the Military Laws

§ 43. Military rules and reg"ulations are not in a strict
sense a part of the criminal law. Therefore the military
law or the rule and regulations governing the military
state are not, in a strict sense, a part of the criminal law,
but a treatise on the criminal laws would necessarily be
incomplete without noting the principles which control
the administration and enforcement of militaiy disci-
pline.*

The constitution of the United States provides that
congress shall have power to declare war, grant letters of
marque and reprisal and to make rules concerning cap-
tures upon land and water; to raise and support armies,
but no appropriation of money to that use shall be for a
longer period than two years; to provide and maintain
a navy; to make rules and regulations for the govern-
ment of the land and naval forces; to call for the militia
to execute the laws of the Union, suppress insurrections
and repel invasions; to provide for organizing, arming
and disciplining the militia, and for the governing such
parts of them as may be employed in the service of the
United States, reserving to the states, respectfully, the
appointment of the officers.^ The military is subject to
law and cannot assume arbitrary power. The military
forces are not, however, under the control of congress, but
under the constitution are placed in the hands of the
president, and it is his power and duty to govern, con-

ment upon criminal process from
the state courts, when the charges
against them is not merely mala
prohibita, but mala in se. But
whether legislations of that char-
acter be constitutional or not, no
intention to extend such exemption
should be attributed to congress
unless clearly manifested by its
language. ' '

5 — Kent's Com. 341; 3 Greenl.

C. L.— 3

Ev. 467; McArthur on Courts Mar-
tial, 33-37.

6— Art. 1 see. 8, Con. U. S. Mrs.
Alexander Cotton v. U. S., 2 Wall.
404; Miller v. U. S., 11 Wall. 268;
Tiler v. Defrees, 11 Wall. 33; Cran-
dell V. Nevada, 6 Wall. 25; U. S.
V. Bevens, 3 Wh. 336; Houston v.
Moore, 5 Wh. 1 ; Martin v. Moot,
12 Wh. 19; Tex. v. White, 227; Lu-
ther V. Borden, 7 How. 51.

34 Criminal Law

trol and direct the operation of the army."' The author-
ity over the militaiy is placed by the constitution in two
different departments of the govermnent — the legislative
and the executive. As the head of the executive the
president is, under the terms of the constitution, the
Of mmander-in-chief of the army and navy of the United
States and of the militia cf the several states when called
iulo actual service of the United States. By virtue of the
authority conferred upon the president as commander-in-
chief of the araiy and navy he cannot legally authorize
a military commission to try crimes which may arise in
a military district. So long as the civil authorities are
able to enforce the law the president, through his subor-
dinates, cannot suspend the civil laws and extend over
the country military authority, except where congress
grants the authority. It has been decided by the su-
preme court of the United States that congress could
not confer upon the president, as the commander of the
army and navy, power to try a citizen of a state who is
not connected with the militaiy service, and where the
state of which he is a citizen is loyal to the government
and where the courts are open to try causes free from
molestation.^

§ 44. Military power is inherent in every government.
The power is sovereign and inherent in every govern-
ment to protect itself against war, invasion and rebellion,
and the lessons of history being our guide, no government
can safely abrogate such power. But purely arbitrary
power in declaring martial law and, as sanctioned by
the ancient usages and customs of war in Europe, is
inimical to the liberties of a free people. One authoi-ity
has said: ''The absolute suproiiiacv of the civil law

7— Art. 2, sec. 2, Con. U. S. "Rx v. Van Riswick, 92 U. 8. 202; Par-

partc Williams, ]8 How. 308; Ex poiul v. U. S., 13 Wall. If^G; Ilamil-

partQ Garland, 4 Wall. 333; Ann- ton v. Dillon, 21 Wall. 73.
Btrong's Foundry, 6 Wall. 766; U. 8— Ex parte v. Milligan, 4 Wall.

8. V. Kline, 13 Wall. 128; Whcclock 125.

Of the Military Laws 35

and the subordination to it of all military as well as civic
authority, at all times and at all places, except where
courts are silenced by actual war, are cardinal prin-
ciples of American as well as English jurisprudence. It
is an axiom in our legal system that no man is so high
as to be above the power of the law, and no man so low as
to be beyond the reach of its protecting arm. This
wholesome doctrine has been often emphatically vindi-
cated by the sturdy independence of English and Amer-
ican judges in times of great civil commotion, when the
waves of arbitrary power were dashing high against the
defenses of popular liberty.

The framers of the constitution, fully aware of the
usages of war, amply protects the people from the en-
croachments of the military power by declaring that all
persons for a capital or otherwise infamous crime shall
be indicted by a grand jury; that they be informed of
the charge against them; that they be confronted with
the witness against them and that they have compulsory
process for witnesses in their favor; that the writ of
habeas corpus shall never be suspended, except in the
times of actual war or invasion the public safety may
require it. As to the writ of habeas corpus, a suspension
of the privileges of the writ does not suspend the writ
itself. Upon application the writ in all cases shall be is-
sued as a matter of right, and upon the return the court
may determine whether the applicant may proceed fur-
ther with it.®

§ 45. Of the law martial. Martial law, so called, is but
an incident of the military. Military law, as we have
seen, are but the rules and regulations by authority of
the state, for the government of the state, and the com-
mon law may be resorted to in explanation of the stat-

9 — United States v. Milligan, 4
Wall, 125.

36 Ckiminal Law

utes, usages and customs relating thereto.^" As anciently
understood and applied, martial law is, however arbi-
trary in its nature and essentially a one man's power,
since it is the will of the commanding general or the one
in authority. It is a law of necessity and arises from the
urgency of the situation and extends to all the inhab-
itants of the district sought to be protected. It tran-
scends the civil laws and for the time punishes crime at
the will of the military authority. The oldest and most
approved authorities held that the law martial is not a
law at all, but is the enforcement of the will of the com-
manding general; that such will is not subject to law, and
is, from the nature of the circumstances authorizing it,
in some instances very severe and in all cases is intended
to be expeditious." The right to declare martial law is
one of the inherent powers of the state, but in our country
is not without restrictions upon its operations. The mili-
tary is always subordinate to the civil laws, but some-
times the civil laws are overrun, and the civil authorities
become powerless to perform their legal functions, and
under such conditions the military authority may declare
martial law. It takes the place of the civil law because the
usual means of enforcing obedience to the rights of others
is destroyed. In the case of the Doit rebellion in the
state of Rhode Island, where Dorr and others undertook
to establish a different government to the then regular
government, it was declared by the supreme court of
the United States to be of sufficient urgency and necessity
to justify the enforcement of martial law. It was further
declared that the state could not establish a permanent
militaiy government, yet it could use its military author-
ity to put down all armed insurrection, and that the state
could detei*mine for itself the extent of foi-ce necessary to

10 — Finlayaon on Martial Law 11 — Lutlicr v. Borden, 7 IIow. 51.

Preface 8; 3 Grecnleaf Evid. 468
rind authorities.

Of the Military Laws 37

quell the insurrection and to restore order and obedience
to its laws.*^

§ 46. Crimes committed in the army and navy. The mil-
itary law is independent of the civil law, and all crimes
committed while engaged in the military service are sub-
ject to prosecution in the military courts. In the
times of war, insurrection or rebellion, larceny, robberj",
burglary, arson, mayhem, manslaughter, murder, assault
and battery with intent to kill, wounding by shooting or
stabbing, with intent to commit murder, rape, or assault
and battery with intent to commit rape, shall be pun-
ished by the sentence of a general court martial when
committed by a person in the militaiy service of the
United States, and the punishment in any such case shall
not be less than the punishment for like offenses, by the
laws of the state, territory or district in which such of-
fense may have been committed. "When any officer or
soldier is accused of a capital crime or any offense against
the person or property of any of the citizens of the
United States which is punishable by the law of the land
the commander and the officers of the regiment, troop,
battery, company or detachment to which the person so
accused belongs are required, except in the time of war,
upon application made by or in behalf of the party in-
jured, to use their utmost endeavors to deliver him over
to the civil magistrate and to aid the officers of justice in
apprehending and securing him in order to bring him to
trial. If upon application any officer refuses or willfully
neglects, except in the time of war, to deliver any such
accused person to the civil magistrate or to aid the offi-
cers of justice in apprehending him he shall be dismissed
from the service. ' '

The foregoing are the 58th and 59th articles of w^ar of
the United States, and it has been held under the former,

12 — Luther v. Borden, 7 How. 51.

38 Criminal Law

that -while the defendant was a member of the military,
the jurisdiction to prosecute was exclusively in the mili-
tary courts for any crime enumerated in said articles.^'
In the latter it has been held that while a soldier in the
actual military service, is within the jurisdiction of the
military authorities and can be arrested on civil process
only in the manner pointed out by the articles of war. A
soldier on furlough is not within the immediate jurisdic-
tion of the military authority, and may be arrested and
tried by the state authorities for crimes committed while
on such furlough.^*

§ 47. Of court martial. The constitution confers upon
congress the power to provide the means by which the
military may enforce obedience to its rules and discipline.
For this purpose congress has created the tribunal of
court martial, in which tribunal all violations of the mili-
tary are tried.^^ These courts are criminal tribunals,
with power to inflict punishment for the violations of the
military laws. Under the articles of war these tribunals
have exclusive jurisdiction over oifenses against the mili-
taiy laws, but where the crime connnitted is against the
civil law then these have concurrent jurisdiction with
the state courts.^^ While actually engaged in war, the
law very justly extends exclusive jurisdiction to the mili-
tary courts. Where the military tribunal has jurisdiction
its judgment, after it has been approved by the presi-
dent or the officer ordering the court martial, is con-
clusive and cannot be reviewed by the courts of the civil
law. But where the defendant has been im[)ropcrly con-
victed ill a court martial, a writ of habeas corpus will
issue to the circuit or district courts of the United
States and if found to be illegally held will discharge

13_rol,.i„an V. Tlic State of 15— Art. 11, sec. 8, Const. U. S.

Tciin., U7 V. 8. .0(19. IG — DynoH v. Iloovrr, 20 How.

14— Sec Ma.son v. U. S., 105 U. 0.1.
S. G9G.

Of the Military Laws 39

him." Says the supreme court of the United States in
Wales V. Whitney, 114 U. S. 564: ''But neither the court
of the district nor this court has any appellate jurisdic-
tion over the naval court martial, nor over offenses which
such a court has power to try. Neither of these courts
are authorized to interfere with it in the perfoiTnance of
its duty by way of a writ of prohibition or any other of
that nature. ' ' In England, however, writs of prohibition
may issue out of the high court of justice to courts mar-
tial.

§48. Who may convene a court martial. The presi-
dent has the authority to convene a court martial, and
by virtue of the articles of war certain other officers have
the authority to do so. Such courts must in all cases be
convoked by proper authority, and in conformity to the
laws of the United States. By the power of the constitu-
tion the authority is inherent in the president to convene
a court martial, when deemed necessary for the proper
discipline of the army, as the commander-in-chief, inde-
pendent of the authority conferred by the articles of war,
and is not restricted therein to cases mentioned. Other
officers, however, empowered to call a court martial are
restricted to the provision of the articles of war or under
the orders of the president."

§ 49. As to the territorial jurisdiction of the military.

The military courts have jurisdiction co-extensive with
the limits of the United States, or to any other place
where the navy or army may be, whether at home, abroad
or on the high seas. The jurisdiction is not confined to
the territorial limits of the United States, but is co-ex-
tensive with the army and navy or any part thereof, and

17--Ex parte Reed, 100 U S. 13- In re Davicbon, 27 Fed. Rep. 618;

25; Ex parte Mason, 105 U. S. Re Esnion, 5 Mock (D. C ) 64.
697; Wales v. Whitney, 114 U. S. 18— 8\vaim v. United States, 165

564; Barnet v. Crane, 16 Vt. 240; U. S. 553; In re Grain, 84 Fed. 788.

40 Criminal Law

the orders and judgments of courts martial, for and upon
account of the same being rendered beyond the tenitorial
jurisdiction of the United States, may not be questioned
because of the lack of jurisdiction. The trial of an of-
fender against the militaiy law may take place at any
point designated by the authorities and a general court
may assemble there, although the place may not be con-
venient to the immediate locality where the offense was
committed, but for this reason, nor for any other, may the
accused complain of the place of the convening of the
court. ^®

§ 50. No power in the civil courts to review proceed-
ing in a court martial except for want of jurisdiction.
The jurisdiction of a general court martial may always
be inquired into, where such exceeds its authority and
undertakes to tiy and punish a person not within its
jurisdiction, by any court of competent jurisdiction of
the parties. Any such judgment rendered by a court
martial is void absolutely.^" Neither the supreme court
of the District of Columbia nor the supreme court of the
United States have any appellate jurisdiction over a
naval court martial or any offense over which the court
has power to try.^^ The proceedings and the sentence of
a court martial having jurisdiction of the person accused
and of the offense charged and acting within the scope of
its lawful powers cannot be reviewed or set aside by the
civil courts for errors in the admission of evidence or
other matters of procedure.'^'^ Within the sphere of their
jurisdiction the judgments and sentences of a court mar-
tial are as final and conclusive as those of civil tribunals
of last resort and the only authority of the civil courts

19—1 Winthrops' Militnry Law 20— "Rnrrolt v. TToi)klns, 7 Fed.

95; Swaim v. U. S., 1G5 U. S. 553, 312.

41 L. ed. 823; Coleman v. Tennessee, 21— Wales v. Whitney, 114 U. S.

97 U. S. 509; U. S. v. Clark, 31 564; Swaim v. U. S.. 165 U. S. 553;

Fed. Rrp. 710; In re Nagle, 135 U. U. S. v. (Jrimlcy, 137 U. S. 147.

8. 1, 34 L. cd. 55. 22— Swaim v. U. S., 165 U. S. 553.

Of the Military Laws 41

is to inquire whether the military authorities are pro-
ceeding regularly within their jurisdiction. Mere errors
of judgment or irregularities occurring in the trial of
the cause are not subject to review or to be questioned
in any manner.^^

§ 51. Conviction in the military court no bar to prose-
cution in the state court or in the federal courts. A per-
son convicted in militaiy court martial for a violation
of a civil offense over which the military courts have
jurisdiction is not a bar to a subsequent prosecution in
the state court. The general rule, however, is that where
a court trying a cause over which it has jurisdiction of
the person as well as the oif ense, a judgment and sentence
therein will bar a subsequent trial in court of concurrent
powers and jurisdiction, for the same or a like offense
growing out of the same transaction.^* In the case of
Mason v. United States, where the defendant, being a
soldier on duty, was charged with a malicious attempt to
kill Guiteau, who was a prisoner at the time, the defend-
ant being tried and convicted by a court martial under the
provisions of sixty-second article of war and sentenced to
eight years in the penitentiary, the supreme court upon
the cause coming before it, held that a general court mar-
tial had jurisdiction to try him, notwithstanding it was
against the civil law as well. The court further says that
since the proper steps were not taken to have him pro-
ceeded against by the civil authorities that it was clearly
the duty and the power of the military tribunal to assume
the jurisdiction, and that the question whether the de-
fendant could be prosecuted in the civil tribunals after
the conviction in the military courts was not necessary
to be decided. It was enough that the military court

23— In Ee McVey, 23 Fed. Eep. 145; Coleman v. Tenn., 97 IT. S.

878. See In Ee White, 17 Fed. 506; 24 L. ed. 1118; In re Fair, 100

Eep. 685. Fed. Eep. 149.

24 — State v. Eankin, 44 Tenn.

42 Criminal Law

had jurisdiction to proceed in the premises. But the
authorities are all one way to the effect that the prose-
cution of the military tribunals is no bar to a subsequent
prosecution in either the federal or state court for the
same offense.^^

§ 52. International comity. International comity will
permit the passage of a foreign army through the ter-
ritoiy of a friendly nation, and while such ainny is in
course of passage it is free from interference of the laws
of such state. The law in this respect appears to be the
same whether the army is permitted to do so upon the
express license of such nation or not. At least if a for-
eign army is permitted to pass through a friendly coun-
try, or to be stationed in it, it is exempt from the laws
and criminal jurisdiction of such country. The army, so
long as it is an organized entity, is governed by its own
laws and regulations under its code. So if an army in-
vades another state it is free from the jurisdiction of the
local laws of such country, and has its own jurisdiction
to enforce its laws. In the case of Coleman v. the State
of Tennessee the court says that if an army marching
through a friendly country would thus be exempt from
its civil and criminal jurisdiction, a fortiori, would an
army invading an enemy's country be exempt. The
fact that the war is waged between two countries nega-
tives the possibility of jurisdiction being exercised by the
tribunals of one country over persons engaged in the
military sei'vice bi the other for offenses committed while
in such service. Aside from this want of jurisdiction,
there would be something incongruous and absurd in
permitting an ofliccr or soldier of an invading countiy
to be tried by his enemy, whose country he has invaded.^®

25— Mason v. U. S., 105 U. S. No. 14,744; U. S. v. Cashier, I
696, 20 L. cd. lOl.T; U. S. v. Clark, Ilufrlies (11. S.) 500.
31 Fed. Ri'p. (1887) 710 Fed. CaHcs 20— Colcninn v. the State of

Of the Military Laws 43

§ 53. Jurisdiction is confined over all persons in the
service. All persons enc^aged in the military service are
subject to the militaiy tribunals and may be punished
in accordance with tlie rules and requirements of the mili-
tary law, whether he became a member of the service
voluntarily or was drafted, or whether he was called into
the service as a member of militia or whether he belongs
to the navy as an officer or as a marine detached for mili-
tary duty with the army. Members of the state militia
are subject to the military discipline provided by the
state government when they are in the service of the
state only. But when the state militia is called into the
service of the United States, in the case of crimes com-
mitted, a court martial called under the United States
military laws has jurisdiction over them. Every person
connected with this branch of the public service is amen-
able to the jurisdiction which congress has created for its
government, and while thus serving surrenders his right
to be tried by the civil courts.^' The judgment of a court
martial that the accused belongs to the military service,
is not such a judg-ment, as may not be attacked and en-
quired into upon a writ of habeas coi*pus. The question
of jurisdiction, either over the person, the subject mat-
ter, or the infliction of punishment forbidden by law,
though approved by an officer having advisory powers,
may be enquired into in the civil courts and proper relief
will be given. Jurisdiction confers validity upon a judg-
ment, when otherwise regular, and may not be ques-
tioned, but if jurisdiction is wanting over the person, or
subject matter, or the punishment, the judgment is ab-
solutely void.^'

Tennessee, 97 U. S. 509; and 7 28— Dynes v. Hoover, 20 How.

Cranch. 139; 15 Am. & Eng. Encly. 65; Ex parte Eeed, 100 U. S. 13;

of Law, 462. Ex parte McVey, 23 Fed. Kep. 878.

27— Ex parte Milligan, 4 Wall.
123.

44 Ceimixal Law

§ 54. Jurisdiction attaches when. The authority of a
court martial over an officer begins at the time of the ac-
ceptance of his commission and continues till his death
or discharge, or until his resignation is accepted; with a
common soldier it begins at the time of his enlistment
and ends with his death or discharge.^^ In the case of
the militia it is well settled by a decision of the supreme
court of the United States that the authority of a court
martial does not begin, under the articles of war, until
the arrival at the place of rendezvous. In this connection
it was further decided that a militia man who refused to
respond to the order of the president to march to the ap-
pointed place of rendezvous might be tried and convicted
in a court martial under the jurisdiction of the state.
The question particularly decided in this case was that
the act of congress, 1795, did not grant exclusive juris-
diction of court martial to the United States upon the
refusal of a militia man to respond to the call of the
governor on the requisition of the president, but aflSrma-
tively decided that a state may assume a jurisdiction for
the purpose of trjdng such offenders by state court mar-
tial, but such a judgment would not be a bar to a subse-
quent trial in a court martial under the act of congress.
It is further decided that a militia man who refuses to
obey the call of the president *'Is not employed in the
service of the United States" and for that reason cannot
be subject to a court martial under the articles of war,
but is liable under the fifth section of the same act. The
main reason is that at the time a militia man who refuses
to respond to the orders of the president is not employed
in the service of the United States until he goes to the
place of appointed rendezvous and who by this affinna-
tive act places himself within the jurisdiction of the mili-
tary power of the United States.^"

29— Tyler v. Pomcroy, 8 Allen Martin v. MoH, 12 Wh. 19; Com.
(Mass.) 480. v. Cushinp, 11 Mass. 7; Whitemore

30— Houston V. Moore, 5 Wh. 1; v. Sanburn, 8 Me. 310.

Of the Militaby Laws 45

§55. Who is subject to military duty. Every able
bodied male citizen of the respective states, resident
therein, who is of the age of 18 years and under the age
of 45 years, shall be enrolled in the militia.^^ In addition
to the power to raise, support and regulate armies, con-
gress is vested by the constitution with the power to pro-
vide for the organizing, arming and disciplining the
militia and for calling them into the service of the United
States to execute the laws of the Union, to suppress in-
surrection and to repel invasions, and for governing
them when employed in the national service. Under this
power congress has the exclusive power to determine who
shall constitute the militia, and all persons coming in the
class designated by congress become members of the
militia independent of any act of their own.^^ All persons
within the qualifications of militia men are to be enrolled
and after the notification provided by the state laws of
their enrollment in the militia, become members of the
same, and are thereby placed under the rules and disci-
pline of the military and may be tried for the violation
of military rules by a court martial, either according to
the state or the federal laws, as the case may be.

§ 56. State militia under supervision of United States
when. The organization and constitution of the militia is
under the supervision of the states governments until it
is actually called into the service of the United States.
The state's authority over the militia comes to an end
at the point the federal government begins. The power
rests with the state to control the militia until needed for
the national service. The militia organized by the state
is not a part of the standing army of the United States,
nor can it in any sense be regarded as troops, but are the

31— Eev. Stat. U. S., sec. 1625. (Mcass.) 64; Tyler v. Pomeroy, 8
32— Art. 1, sec. 80, 16 Const. Allen (Mass.) 480.
U. S. Opinion of Justices, 14 Gray.

Criminal Law

active militia — a legally aimed force subject to the call
of the governor to enforce the laws, to suppress insur-
rections and to repel invasions of the state.^^

33 — In the case of Houston v.
Moore, 5 Wh. 1, the court says:
"So long as the militia are acting
under the military jurisdiction of
the state to which they belong, the
power of legislation over them are
concurrent in the general and state
governments. Congress has no power
of organizing, and disciplining them
and tliis power being unlimited, ex-
cept, in two particulars, of officering
and training them according to the
discipline provided by congress. But

as state militia, the power of the
state governments to legislate on the
same subjects, having existed, prior
to the formation of the constitution,
and not having been prohibited by
that instrument it remains with the
state subordinate, nevertheless, to
the paramount law of the land, op-
erating upon the same subject. It
is conceded that when called into
service of the United States, the
authority is in the general govern-
ment exclusively. ' '

CHAPTER IV

INTERNATIONAL LAW AS AFFECTING CRIMES

§ 57. Offenses against nations. § 66. Slave trade.

§ 58. International law. § 67. Ambassadors.

§ 59. Each nation is sovereign. § 68. Surrender of fugitives from

§ 60. Committee of nations. justice.

§ 61. Allegiance of the citizen. § 69. Between the states.

§ 62. Of piracy. § 70. Trial for crime other than the

§ 63. Jurisdiction. crime extradited.

§ 64. Laws of the United States.

§ 65. The laws of the United States
as to foreigners.

§ 57. Offenses against nations. It shall not be our pur-
pose to enter into the discussion of international law ex-
cept so far as it is connected with the principles of the
criminal law. We shall incidentally refer to the law of
nations in a subsequent chapter on the jurisdiction of
the courts in the apprehension and trial of offenders.
Our present discussion is divided and subdivided as fol-
lows: (1) Offenses against the laws of nations. (2) Of
the exemption of certain classes of persons from the laws,
both civil and criminal, whilst resident abroad. (3) Of
those persons who, charged with crime in one country,
escape into the jurisdiction of another. It is a general
rule that all persons who reside in or who are temporarily
in the territorial jurisdiction of a state are subject to the
laws of that state. As a general rule, a foreigner or
an alien cannot claim exemption from responsibility to
the laws of the countiy where he may reside or where
he may temporarily be, because he holds citizenship in
and owes allegiance to another state. There are, how-
ever, exceptions to these general rules, of which we shall
touch in subsequent pages.^

1— Kent Com. 36; People v. Mc-
Herd, 37 American Decisions, 415.

48 Criminal Law

§ 58. International law. International law or the law
which governs the relations of nations to each other,
is, in a sense, a part of the criminal law. We mean by
this that the duties and obligations of one nation to an-
other, as sovereign and independent nationalities are
founded, in reason, upon the same principle as are the
duties and obligations of one person to another. The
criminal law, however, in the nature of things, cannot be
applied by one nation to another. But when one nation
offends another by violating the laws of nations, it may
become an act of war. At this time the proposition before
the people of the United States is that the League of Na-
tions, as signed at Paris in 1919, be adopted for the pur-
pose of governing nations by rules of specific agreements
of all the nations w^hich have force of law. If this pact
is adopted by the nations international law, as hereto-
fore understood, in a great part shall become obsolete,
and a new era shall be marked in the march of civiliza-
tion as the legitimate offspring of the greatest cataclysm
of the world.

§ 59. Each nation is sovereign. A state is sovereign
when it is independent and free from the control of any
superior power. International laws consist in those rules
of right and comity, dictated by the laws of nature. A
nation, being an aggregation of individuals bound to-
gether by the laws of necessity for mutual protection, has
all the rights of defense that an individual would have
in a mere state of nature. The same laws that would jus-
tify one individual in protecting his person or his prop-
erty from the encroachments of another would justify a
nation, considered as an entity. It is impossible, in the
nature of things, to have a system of international laws
based upon any other considerations than those of nat-
ural justice, found by the laws of nature and cxi)erience
to be due one nation to another. Any of these intenm-
tional rights are common to all nations and recognized by

International Law as Affecting Crimes 49

each. There are others which are special or particular
and are enforceable only between the nations particu-
larly interested. And these are such as are derived from
special contracts and treaties.

§ 60. Comity of nations. Therefore comity of nations
should be characterized by justice, honesty and fairness.
It is apparent that all nations have the undisputed right
to protect themselves, the lives and property of their
citizens, from the interference of other nations. All in-
dependent and sovereign states are equal in the sight
of the law. The rights of each are not estimated by
their importance in the family of nations, their territo-
rial extent or their importance in any other respect.

§ 61. Allegiance of the citizen. All persons are sup-
posed to owe allegiance to some government, and that,
in return, the govennnent of which they are citizens owes
them a corresponding obligation of protection. This
means that their lives, property and personal safety
shall be protected by the government, so long as they do
nothing to forfeit their citizenship, and when occasion
arises may demand redress of other nations for any in-
jury to them. So this takes us to the discussion of those
crimes which are punished by all nations.

§ 62. Of piracy. This is an offense against the laws of
nations. It may be punished by the infliction of death,
with reference to the laws of the nation to which the
accused may owe allegiance. Correctly speaking, a
pirate is not a citizen of any country — he is an enemy
of all mankind and cannot claim protection from any
government. Each nation has the right to try and con-
vict any one guilty of piracy according to its own laws.
He is an universal outlaw upon which every community
may lay its hands. Says Dr. Brown: ''Piracy is dep-
redation without authority from any prince or state, or
c. L.— i

50 Criminal Law

transgression of authority by despoiling beyond its
waiTant." Unlawful depredation is of the essence of
piracy.^ Says Beawers: "A pirate is a sea thief, or an
enemy of humankind; also aims at enriching himself by
marine robberies, committed either by force, or fraud, or
surprise, on merchants or other traders at sea. ' ' ^ Mar-
shall says: ''The crime of piracy is robbeiy on the high
seas, is an offense against the universal law of society."
Sir Leoline Jenkins says: "They are outlaws as I might
say by the laws of nations: This is out of the protection
of princes and all laws whatever. Evciybody is com-
missioned and anned against them as rebels and traitors
to subdue and rout them out. That which is called rob-
bery upon the highway, the same is called piracy upon
the high seas."

§ 63. Jurisdiction. Piracy comes within the jurisdic-
tion of all nations. It of course seems to be in accord
with common justice that not more than one nation may
have jurisdiction over the same act. The doctrine of
auter fois, acquit or convict, would be a good defense
upon a subsequent trial by another nation.* The con-
stitution of the United States provides that congress
shall have power to punish piracies and other felonies
committed on the high seas, and offenses against the laws
of nations. The several States of the United States have
jurisdiction over the crime of piracy. While the con-
stitution has not in express terms prohibited the states
from passing laws against piracy, yet the relations of
the states to the federal government take from the states
the general jurisdiction to punish such a crime. The
several states are not nations, but only a part of the
nation of the United States of America, and would not

2—2 Civil Jiii.l Adm. Law, 4G1- 4— U. S. v. Smith, 5 Wh. 153;

462. U. S. V. Forlonp, 5 WIi. ]84; U. S.

:5— U. S. V. Pinitcs, r> Wh. 181, v. I'initos. 5 Wh. 189; U. S. v
U. S. Rep. 18 21 page 62, Baker, 5 Blatcli. 6.

Internatioxal Law as Affecting Crimes 51

have jurisdiction of tlie crime, even if committed in the
bays, estuaries or arms of the sea within the jurisdiction
of the state. Any offense committed against the laws of
the states which grew out of the piracy, such as murder,
robbery and tlie like, it seems might be punished by the
state laws.

§ 64. Laws of United States. The act of congress April
30, 179U, section 8, is in words as follows: "Be it
enacted that if any person or persons shall commit on
the high seas or in any river, haven, basin or bay out of
the jurisdiction of any particular state, murder or rob-
bery or any other offense, which if committed within the
body of the countiy would by the laws of the United
States be punishable with death: or if any captain or
mariner of any ship, or other vessel, shall piratically or
feloniously run away with such ship or vessel, or any
goods or merchandise, to the value of fifty dollars, etc.,
shall be deemed taken and adjudged a pirate and felon,
and being therefor convicted, shall suffer death." The
United States supreme court held that the crime of rob-
bery committed by a person on the high seas, or on board
of any ship or vessel belonging exclusively to subjects
of a foreign state, or persons within a vessel belonging
exclusively to subjects of a foreign state, is not piracy
within the true intent and meaning of such act.^ Said
section is also held to extend to all persons on all ves-
sels which throw off their national character by cruis-
ing piratically, and committing on other vessels that gen-
eral piracy or murder or robbery (committed in the places
described in said act) by persons on board a vessel, not
at the time belonging to any foreign power, but in the
possession of a crew acting in defiance of all law, and
acknowledging obedience to no government whatever, is
within the true meaning of this act, and is punishable in

5— U. S. Calmer v. U. S., 3 Wh. 144; U. S. v. Furlong et al., 5
Wh. 610; U. S. V. KUntock, 5 Wb. 182.

52 Criminal Law

the courts of the United States. A vessel loses its na-
tional character by engaging in piratical conduct.

§ 65. Laws of United States as to foreigners. The
court also held that under the eighth section of the act of
1790, that murder committed upon a foreigner by a
foreigner, upon the high seas, would not come within the
jurisdiction of the courts of the United States; but further
held that the courts of this countiy would have jurisdic-
tion over murder committed upon an American citizen,
although at the time engaged in foreign service. Piracy
being an offense against all nations is punishable by all,
whether upon its own citizens or upon citizens of other na-
tions. Chief Justice Marshall, in the case of United States
V. Parmer, argues that the constitution having conferred
on congress the power of defining and punishing piracy,
that there could be no doubt of the power of congress to
enact laws punishing piracy, although they be foreigers,
and may not have committed any particular act or offense
against the laws of the United States. But the juris-
diction of the United States did not extend over foreign-
ers in a foreign vessel. This section of the act of 1790
has been carried into the statute of 1874, section 5372.
Repealed § 1777, P. C. 341. Congress, however, leaves
the jurisdiction in the hands of the nation whose citizen
is accused. The effect of these American decisions is that
any nation may by statute make any offense committed
upon the high seas, in its own vessels, piracy, and that it
has exclusive jurisdiction to try and punish the same.®

§ 66. Slave trade. The importation and trade of slaves
is an offense against the laws of nations. liistoiy con-
firms the custom of owning property in human beings —
in both ancient and modoi-n times. By a common con-
sent ;iiii<)iig nil ii;iti()iis, until a com]i;irativ(^ly recent pe-

0— I'ariiior v. U. S., ;; Wli. (JlU;
IT, S. V. J'iratfS, 5 Wli. IHJ; f. S.
V. Hinith, 5 Wli. lU.

International Law as Affecting Chimes 53

riod, it has been in perfect accord with sound morality
and notions of justice for one man to hold ownership in
another. At this time most nations in Christendom look
upon ownership in men as the most outrageous of crimes
— a universal crime, punishable by all nations as a vio-
lation of national laws, independent of treaties and stat-
utes. There are treaties in all nations, however, in Europe
and America, which prohibit the dealing in or importation
of slaves. Now that the greatest iniquity that ever dis-
graced the human family has been suppressed, we realize
its evil. Our own country and we believe all Christian
countries have ample statutes punishing ownership in
men and the strides in civilization has left behind it this,
the greatest relic of cruelty and barbarism. With this
security for the frontispiece of the twentieth century,
who would venture to predict the possibilities of the
future. It is useless to pursue this subject further, since
it is now so universally abhorred and punished, when
committed, that as a crime it has become almost extinct.'''

§ 67. Ambassadors. Modern political usage as well as
the common law has built up a custom among nations to
establish resident representatives at the seat of govern-
ment of other nations, whose duty it is to represent such
nation, in all questions of international nature. The term
ambassadors may in a general way apply to all repre-
sentatives of a government, resident or abroad. It is now
a settled principle of public law that such persons are by
a fiction of law considered within the jurisdiction of their
respective governments, and are exempt from the opera-
tion of the government to which they are accredited.
It is also a well recognized principle of public law that
it is a breach of public duty for such ambassadors to be
injured in their person or property.

7— Vol. II Am. & Eng. Eney. of
Law, 1492; See Vattels Law of
Nations; 1 Kent's Com. 99.

54 CfiiMiiSrAL Law

§ 68. Surrender of fugitives from justice. The third
subdivision of our discussion of international laws in-
volves the question of the surrender by one govennnent
to another of any person domiciled therein who is
charged with a criminal violation of the laws of such
other government. The authorities are indeed very
conflicting. Many authorities hold that it is the duty
of every government to withhold an asylum to fugitives
from other governments. Others that there is no
obligation upon one government to deliver any person
who has been permitted to become domiciled therein,
to another jurisdiction for trial for a crime charged to
have been committed therein.^ In view of the high
authorities involved in these conflicting views, the
statement may be ventured, that no such rule of public
law, in the absence of extradition treaties, is rec-
ognized among nations. In crimes of great aggravation
— crimes mala in se — demand that all persons charged in
a foreign nation should be surrendered in order that they
might be tried in accordance with the law of the country
where the offense was committed, yet while there are
many reasons which would warrant the surrender in such
cases, yet such is not believed to be the law.

§ 69. Between the states. Under the provisions of the
Constitution of the United States, "any person charged
with treason, felony or other crime, who shall flee from
justice and be found in another state, shall upon the de-
mand of the executive of the state from which he fled, be
delivered up, to be removed to the state having jurisdic-
tion of the crime." It has been held by the supreme
court of the United States that treasons, felonies and
other crimes include all crimes made punisliable by the
laws of the state, whether treasons, felonies or misdc-

9 — 4 .Tohns. Ch. 106; Com. v. v. .hMiison, 14 Pot. 540; I'^x ii.-iito
Deacon, 10 Serg. & R. 125; U. S. llolim-s, 12 Vt. G31.
V. Davis, 2 Sumner 486; Holmes

International Law as Affecting Crimes 55

meanors. This provision of the constitution confers upon
the executive of the state the absolute right to demand
of another state any person who has escaped into its
borders, to be delivered, upon the presentment to the
executive authority of such state, proper evidence of the
fact that he is charged with crime. The proof may be
in the nature of an affidavit or indictment, or in any other
manner required by law, in the state from which such
person fled. But the question whether such affidavit, in-
formation or indictment is sufficient in law cannot be de-
termined by the executive. Such question is for the
courts, from which such person fled. There is a moral
obligation upon the several states to grant the surrender
of such persons as shall be demanded of another state.
But upon the refusal of any state, through its governor,
to grant such surrender, there is no authority in the
United States to compel compliance with the provisions
of the constitution. The governor upon whom the de-
mand is made is not authorized to look beyond the proof
that the person sought to be apprehended is improperly
or unlawfully charged. He cannot enter into the ques-
tion of innocence or guilt, but his duties are purely min-
isterial and not judicial. If he is satisfied from the
face of the paper submitted that such person stands
properly charged in another state, it becomes his duty
to grant his surrender.^"

§ 70. Trial for crime other than for the crime extra-
dited. The rule is well established that no foreign state,
as a matter of right, can demand of another nation that
it deliver up fugitives finding asylum there. Each sov-
ereignty may for itself determine whether it will grant
or deny a fugitive asylum within its territory. The right
of asylum may be granted w^iere there is no treaties pro-

10 — state of Ky. v. Denison, 2-^ collated. See also 3 Vroom, 32 N.
How. 66-110-65 U. S. 717, 16 L. ed. J. L. 141.
717 and note where authorities are

Criminal Law

liibiting it, and may be denied at the option of the sov-
ereignty. There appears to be a considerable conflict of
the authorities whether, where a person has been ex-
tradited and brought back into the state for trial upon
a specific offense, the court has jurisdiction to tiy him
for crimes committed prior to his flight from the state,
other than the crime for which he was extradited. The
weight of the authorities, it is believed, sustains the view
that he may. That it is immaterial how he was brought
back. He may be made to submit to the jurisdiction.^^
This rule, however, is only applicable as between the state
and the United States and the states themselves. Where
the defendant is extradited from a foreign state, he can-
not legally be proceeded against except for a specific
offense named and included in the treaty.^^ So, where
the defendant has been kidnapped and carried back to
the state of the crime the jurisdiction is complete.^'

11— Horn V. state, 4 Tex. App.
45; State v. Boss, 21 Iowa 467;
State V. Stewart, 60 Wis. 587, 19
X. E. 429; Waterman v. State,
116 Ind. 51, 18 N. E. 63; Kerr
V. People, 110 111. 627; People v.
Cross, 135 N. Y. 536, 32 N. E.
246; Harland v. Territory, 3 Wash-
ington Terr. 131; Kerr v. Illinois,
119 U. S. 436; Mahone v. Justice,
127 U. S. 700; Cook v. Gart, 146 U.
S. 183; State v. Patterson, 22 S. W.
(Mo.) 696.

12— Laccellers v. State, 16 N. E.
945; U. S. V. Kaslier, 119 U. S.
407; Ex parte Foss, 21 Am. St.
Rep. 181, 102 Cal. 347.

13— State V. Hall, 40 Kans. 338,
19 Pac. 918; Ex parte McKniglit.
28 N. E. (Ohio) 1034; Cannon's
Case, 47 Mich. 481 ; Mahone v. Jus-
tice, 121 U. S. 700, 8 Sup. Ct. Rep.
1204.

CHAPTER V

JURISDICTION

71. Territorial jurisdiction of § 86.

the United States.

72. Every nation has jurisdic- § 87.

tion over the high seas.

73. United States has jurisdic- § 88.

tion of piracy over high
seas.

74. Maritime and admiralty § 89.

jurisdiction.

75. Out of the jurisdiction of any

particular state. § 90.

76. State and counties bordering

on sea coast.

77. Criminal offenses of the § 91.

United States, in the cir-
cuit and district courts.

78. The jurisdiction of the state § 92.

is commensurate with its
boundaries.

79. Of the validity of judg- § 93.

ments.

80. Judgment in court of general § 94.

jurisdiction. § 95.

81. A judge has no jurisdiction

to render judgment where § 96.
interested.

82. Consent of parties cannot § 97.

confer jurisdiction.

83. Courts must be held where § 98.

law provides.

84. Courts of concurrent juris- § 99.

diction. § 100.

85. As to superior and inferior § 101.

courts.

Presumption of courts of
record, judgments of.

Jurisdiction conferred by
constitutions and laws.

Courts have no jurisdiction
over mere political ques-
tions.

State courts have no jurisdic-
tion places ceded to United
States.

Generally courts may not in-
terfere in the perform-
ance of duties of officers.

Larceny jurisdiction of at
common law, as to differ-
ent counties.

Difference of larceny com-
mitted in foreign state,
and state of Union.

Jurisdiction as to larceny,
continued.

Continued.

Jurisdiction as to conspira-
cies.

Jurisdiction of homicide on
border state.

Jurisdiction as to false pre-
tenses, cheats, etc.

Where a crime is committed
in two jurisdictions.

Same, continued.

§ 71. The territorial jurisdiction of the United States.
The jurisdiction extends a marine league from the sea
shore, along the western coast of the Atlantic ocean,

58 Criminal Law

from New Brunswick to Florida bay, and along the
northern coast of the Gulf of Mexico, from Florida bay
to the mouth of Rio Grande river; along the eastern
coast of the Pacific ocean from the northern boundary
of Lower California north to the strait of Georgia, and
along the whole extent of the Alaskan coast, compris-
ing many miles of sea boundary; also the islands com-
prising the Hawaiian group of islands and what is
known as the Philippine islands and Porto Rico. The
territorial jurisdiction of any given state possessing a
sea coast extends outward into the ocean a marine
league, supposed to be the distance of a cannon shot from
shore. The most approved authorities on public law base
the rule upon the presumption of a physical fact, and
its object was to afford as great a degree of security to
the inhabitants as possible against the attacks of other
nations, who in the absence of the rule could readily
harbor hostile ships under the very walls of a city. The
rule is founded upon the dictates of natural justice, for
at the time of its adoption by the nations as a rule of
comity it in reality afforded substantial protection
against the secret attack of a belligerent. Under the con-
ditions existing at the time of its adoption its wisdom
is apparent, but at this time when the character of tlie
navies has been so greatly changed and the propelling
force of explosives has been so greatly improved, the
reason for the rule is greatly impaired.^

§ 72. Every nation has jurisdiction over the high seas.
Every nation has jurisdiction over the high seas for the
purpose of commerce and fisheries, and no one nation has
exclusive right or jurisdiction over the seas to the ex-
clusion of others. It is a well sctth'd ruk^ of i)ublic law
that no nation can assume exclusive dominion over the
high seas. All nations are entitled to use these free
for the purpose of navigation, ctmuncrce and fishing.

1 — 1 Kent's Com. 2G.

JUEISDICTION 59

They are also entitled to dominion over the arms of the
sea, bays and inlets, suitable for navigation. Every na-
tion has the right of occupancy and control over adjoin-
ing waters of the coast, for the purposes of defense and
protection.^

§ 73. The United States has jurisdiction of piracy over
the high seas. The United States has jurisdiction any-
where upon the high seas to apprehend and try persons
guilty of piracy. She has jurisdiction over crimes com-
mitted upon her vessels anywhere on the seas, although
such vessels be within the territorial jurisdiction of a for-
eign power. She has jurisdiction over private vessels,
though operated by her own citizens. She has jurisdiction
over ministers and ambassadors resident at a foreign
court. Jurisdiction is confeiTed upon the federal govern-
ment in all cases arising within the maritime and admir-
alty jurisdiction of the United States, not Avithin the ju-
risdiction of any particular state. This limitation upon
the jurisdiction of the United States courts, to causes
arising out of the jurisdiction of a particular state, has
been construed to mean a state of the American Union.^

§ 74. Maritime and admiralty jurisdiction. The con-
stitution confers upon the federal judiciary cognizance
over all causes, both criminal and civil, arising upon the
high, seas, within the maritime and admiralty jurisdic-
tion. We do not deem it advantageous to enter into any
discussion of this question, for the reason that a review
of the conflicting authorities would still leave us con-
fused. Those who desire to enter into the discussion are
invited to review the following cases :

U. S. V. Bevin, 3 Wh. 336; U. S. v. Wiltberger, 5 Wh.

2—1 Kent's Com. 26. ford, 5 Wheaton 182; U. S. v.

3 — See U. S. v. Smith, 5 Wheaton Bowers and Mathews, 5 Wheaton

152; U. S. V. Furlong, 5 Wheaton 182.
182; U. S. V. Griffin and Brails-

60 Criminal Law

76; U. S. V. Davis, 2 Sumuer 482; U. S. v. Coombs, 12
Peters 72; U. S. v. Cooledgel, Gall 488; Adams v. Hof-
fards, 20 Peck 127. There are many other authorities
both pro and eon, English and American, which may be
looked into with profit.

Our conclusion, after investigation, is that the mari-
time and admiralty jurisdiction extends as far as the
tide ebbs and flows.

§ 75. Out of the jurisdiction of any particular state.
The Rev. Statutes of the United States provide that mur-
der committed upon the high seas, in any arm of the sea,
or in any river, haven, creek, basin, or bay, within the
maritime and admiralty jurisdiction of the United States
and out of the jurisdiction of any particular state, is in
the jurisdiction of the United States. As we have seen,
the courts have construed the clause, "out of the juris-
diction of any particular state," to mean a state of the
American Union, and was not intended to limit the juris-
diction in such waters, in a foreign state. The same
court held, however, that under the act of April 30, 1790,
the courts of the United States have no jurisdiction of
manslaughter committed by the master upon one of the
seamen on board of a merchant vessel of the United
States lying in the river Tygres, in the empire of China,
thirty-five miles from its mouth, about one hundred yards
off the shore, in four and a half fathoms of water and
below low water mark. This section of the law of 1790
has been constiiied not to include any arm of the sea,
river, haven, creek, basin, or bay as being on the higli
seas. Hence the conclusion is reached that the term
"high seas" does not mean an arm of the sea, basin, bay,
river, etc., below low water mark.'*

§ 76. States and counties bordering on the sea coast.

The jurisdiction ol" tiie several states is iiidcpeiideiit of

4— U. S. V. Wiltberger, 5 Wh. U. S. v. Rors, 1 Gallis G42; U. S.
76; U. S. V. Pirates, 5 Wh. 180; v. Hamilton, 1 Mason 152.

Jurisdiction 61

each other, and of the United States. Those states and
counties bordering on the coast are limited in the extent
of their jurisdiction by that of the maritime and ad-
miralty courts. Prior to the enactment of the statute
of the 14th and 15th Richard II, the maritime and ad-
miralty courts extended to and included in their jurisdic-
tions all causes, both civil and criminal, arising upon
the high seas, or in any rivers, bays, or basins or arms
of the sea, as far as the tide ebbed and flowed. This
statute was construed by the courts, after a long and
acrimonious contention, and seems to have settled the
question, that every county bordering on the coast is
bounded by the shore and in no event extends beyond low
"water mark.

Lord Coke contended, however, that the body of the
county comprehended all navigable waters, where a per-
son could see from one side to the other: or rather from
a point where one, standing on one side of the land,
could see what was being done on the other. Lord
Hale intimates that an ann of the sea may be in the body
of a county, where a man may reasonably see from shore
to shore.^ It seems to be settled in the United States that
the admiralty jurisdiction extends to and includes all
bays, basins, creeks and amis of the sea, as far as the
tide ebbs and flows. Hence we conclude from these au-
thorities that the jurisdiction of the state courts may
extend to and include all navigable waters, rivers, bays,
basins, creeks and harbors, to high water mark.^

§77. Criminal jurisdiction of the United States dis-
trict court. Exclusive jurisdiction is vested in the courts
of the United States:

Of all crimes and oifenses cognizable under the au-
thority of the laws of the United States.

5—4 Blackstone's Com. 268; 4 470; U. S. v. Wiltsberger, 5 Wh.
Coke's Inst. 140. 76 and note.

6 — De Levio v. Bait, 2 Gallis

62 Criminal Law

Of all suits for penalties and forfeitures incurred un-
der the laws of the United States. .

Of all civil causes of admiralty and maritime jurisdic-
tion; saving to suitors, in all cases, the right of a com-
mon-law remedy, where the common law is competent to
give it.

Of all seizures under the laws of the United States on
land or on waters not within admiralty and maritime
jurisdiction; of all prizes brought into the United States:
and of all proceedings for the condemnation of property
taken as prize.

Of all cases arising under the patent-right or copy-
right laws of the United States.

Of all matters and proceedings in bankruptcy.

Of all controversies of a civil nature, where a state is a
party, except between a state and its citizens, or between
a state and citizens of other states, or aliens.

Of all suits and proceedings against ambassadors, or
other public ministers, or their domestics, or domestic
servants,' or against consuls or vice consuls.

The United States district courts have an original ju-
risdiction of all crimes and oifenses cognizable under the
laws of the United States.^

There are no appeals in criminal cases from the dis-
trict court. But the manner of having a judgment in a
criminal cause reviewed, is by writ of error from the cir-
cuit court to the district court.® Only final judgments in
criminal cases are reviewable by the circuit court of ap-
peals."

§ 78. The jurisdiction of a state is commensurate with
its boundaries. T\\q jurisdiction of a court is the power
and authority to determine all questions of law and fact'

7_Section 24, U. S. .Tudw-inl 9— Section 128, Judicial Code, U.

Codp. S.

8_Rcction 24, U. S. Judicial 10— Wliitworlh v. U. S., 114

Code. Fed. 302.

Jurisdiction-

that may arise in the trial of a cause. There are many
kinds of jurisdiction incident to a court, all of which must
concur and exist in the court at the same time, in order
to confer validity upon its judgments.

1. Territorial jurisdiction, which confines the authority
of the court to act within prescribed bounds.

2. Jurisdiction of the person, w^iich consists in the
authority of the court over certain individual or certain
classes of individuals, who may or may not be within the
territcrial jurisdiction of the court.

3. Jurisdiction over the subject matter in controversy,
which may or may not be within the territorial jurisdic-
tion of such court.

The judicial officer must be empowered to try and de-
termine the cause, within the bounds and over the per-
sons and things included in the foregoing subdivisions.
These requisites are essential to the validity of a judg-
ment. No judgment can be valid where the judge tiying
the cause had no authority to try it. Nor where the court
had not acquired jurisdiction over the person or over the
subject matter: nor where the judgment is rendered out
of the territorial boundaries of the court. If these
requisites do not coexist it becomes the imperative duty
of the court to decline to do more than to declare that it
has no power to examine into and determine the merits
of the controversv either as to the law or the facts.^^

§79. Of the validity of judgments. The foregoing
requisites to the validity of a judgment of a court are

11— Robertson v. State (Ind.), 7
West. R. 481; Whiteman v. Kras-
ner, 20 Ala. 464; Goodman v. Win-
ter, 64 Ala. 410; Tramwell v. Town
of Russellville, 34 Ark. 105; Buch
V. Hanson, 70 111. 480; Ex parte
Burnett, 44 Cal- 84; Brownville v.
Bosse, 43 Tex. 440; State v. Wit-
ford, 54 Wis. 150157; U. S. v. Ar-
renda, 6 Pet. 691-709. The court

says that ' ' The pow^r to hear and
determine a cause is jurisdiction;
it is coram judice, whenever a case
is presented which brings this
power into action. If the pe-
titioner presents such a case, in
his petition, that on demurrer, the
court would render judgment in
his favor, it is an undoubted case
of jurisdiction. Whether on an an-

64 Criminal Law

essentials in all courts "whether of special or general
jurisdiction; whether superior or inferior; whether of
exclusive or of concurrent jurisdiction; whether a court,
appellate or of trial; whether a court of civil or criminal
powers, or both, or whether state or federal.

§ 80. Judgment in courts of general jurisdiction. In a
court of general jurisdiction it is not necessary for the
record to show upon its face the facts and the evidence
necessary to sustain its judgment. ^^ A court of general
jurisdiction, as distinguishable from a court of limited
jurisdiction, is thus drawn by Mr. Justice Baldwin in the
case of Grigiion et al. v. Aston et al. before the supreme
court of the United States in 1844, appealed from the
state of Wisconsin: ''The tnie line of distinction be-
tween courts, whose decisions are conclusive, if not re-
moved to an appellate court, and those whose proceed-
ings are nullities if their jurisdiction does not appear on
their face, is this: A court which is competent by its
constitution to decide on its jurisdiction, and to exercise
it to a final judgment without setting forth in their pro-
ceedings the facts and evidence on which it is rendered,
whose record is absolute verity, not to be impugned by
averment or proof to the contrary, is of the first descrip-
tion; there can be no judicial inspection, behind the
judgment, save by appellate power. A court which is so
constituted that its judgment can be looked into for the
facts and evidence, which is necessary to sustain it, whose
decision is not evidence of itself to show jurisdiction and
its lawful exercise, is of the latter description."

There seems to be very little if any distinction be-
tween courts of ** general" jurisdiction and courts of

swcr denying and putting in issue taining all the requisites and in the

the allegations of the petition, the manner prescribed by law."

petitioner makes out his case, is 12— Grignon v. Aston, 2 Wail,

the exercise of .jurisdiction, con- 342.
fcrred by the filing a petition con

Jurisdiction 65

''record." Courts of general jurisdiction and courts of
record seem to impart the same idea, that the judgment
in either cannot be questioned; that all things necessary
to confer jurisdiction have been done, and is presumed
to be in all things regular, without resort to the record
to show the power by which it acted. Courts of limited
jurisdiction, and courts not of record, in order to give
effect to their judgments must show in their proceed-
ings facts sufficient to confer jurisdiction.^^

§ 81. A judge has no jurisdiction to render judgment
where interested. No judge can legally render, or assume
jurisdiction to render a judgment in a cause in which he
is interested. It is a maxim of the common law and one
of the fundamental principles of the power to determine
a cause in a judicial proceeding, that no one should be
a judge in his own behalf or in his own case. The leg-
islature cannot abrogate this fundamental right of lit-
igants to have a fair, impartial trial of their causes.^*
This is a right founded upon the plainest and most evi-
dent principles of justice. All merely formal acts and
proceedings required to be performed by a judge inter-
ested in a cause, in order to transfer it to the proper
tribunal, are justified in the necessity of the surround-
ings.^^ A judge has the inherent power to determine the
question of jurisdiction of a cause to be tried before
liim.^^

§ 82. Consent of parties cannot confer jurisdiction over
subject matter. Consent cannot confer jurisdiction over

13 — Freeman on Judgments, Vol. 15 — Cooley Con. Lim. 510; Cy-

I, sec. 122. press Pond Draining Co. v. Hooper,

14— Ochus V. Sheldon, 13 Fla. 2 Met. (Ky.) 350; Ames v. Port

138; Buckingham v. Davis, 9 Md. Huron Log Driving & Booming Co.,

324; Com. v. Eyan, 5 Mass. 90; 11 Mich. 139;

Bank of North America v. Fitz 16 — Cooley Con. Lim. 551; Hey-

Simmons, 2 Binn. (Pa.) 454. denfelt v. Towns, 27 Ala. 423.

C. L.— 5

66 Criminal Law

the subject matter. Consent, though, will confer juris-
diction over the person, where it has jurisdiction over
the matter in controversy." It seems to be settled that
where the trial court has no jurisdiction over the per-
son, that such person may appear and appeal the same
to a higher court, and that such appearance will confer
jurisdiction in the cause. Not so, however, where the
trial court had no jurisdiction over the subject matter.
Parties cannot by agreement confer jurisdiction to try
a cause where it would not otherwise have jurisdiction."
Thus where the statute in certain things gives jurisdic-
tion to a particular court, it cannot be changed to a dif-
ferent court by consent of parties.^*

§ 83. A court must be held where the law provides for
holding. AMien the law prescribes when and where a
court shall be held, it is essential to the jurisdiction that
it be held in accordance with the terms of the law, other-
wise its judgment will be null and void.^" Where the
law grants the authority, or contemplates the doing of
some act, it is necessaiy that it be exercised at term
time, unless the power is expressly conferred to perform
such acts or duties in vacation.^^ Generally all acts and
judgments of a court are void, if performed or rendered
after the adjournment of tlic forms, bocanso of tlio want
of jurisdiction.

All the powers conferred ui)on a court must be exer-
cised as provided by law. If a judge intentionally, pur-
posely or negligently docs anything in reference to a
cause pending before him, not allowed by law, he may be
removed from office or impf^ached. If he makes a mis-

17_Whitc V. Gibbcs, 20 (U. S.) 19— Ocriiijiiul v. People, 1 Hill.

How. 541; Grimniett v. Anken, 48 N. Y. 343; P.oi.lo v. Jones, 20

Ark. 151; Smith v. Curtis, 7 Cal. Cal. 51.

584; ramphell v. Wilson, 6 Tex. 20— Slate v. h'oherts, 8 Nev.

37it; Randolpli Co. v. Kolls, 18 111. 23!»; (Jarliek \. Dwnn, 42 Ala. 404.

:'.!•; WasHon v. Cone, 8(5 111. 4(). 21 Stat.- v. .Iii.in<-. 21 La. Ann.

ia_Sfe notes 40 and 47, 15 Stand 1 1!».
ard Eney. of Procedure.

JUfilSDICTION

take in his judgment or errs in his construction of the
law, the same may be corrected by an appeal. If he
should err in his judgment concerning the exercise of
jurisdiction, his judgment may be corrected by the writ
of habeas corpus. ^^

§ 84. Courts of concurrent jurisdiction. Courts of con-
current jurisdiction are of equal jurisdiction, within cer-
tain territorial bounds and over the same subjects and
persons. C^ourts of concurrent jurisdiction, first acquiring
control over the cause, are entitled to complete jurisdic-
tion in making a final disposition of it.^^ The judgment
of the one is res adjudicata as to the other. If, however,
the judgment in the one did not extend to all matters in-
volved, the other would acquire jurisdiction.

§ 85. As to superior and inferior courts. The distinc-
tion between superior and inferior courts is not very
easy of definition. The term, however, seems to have been
used generally to denote whether the court in the one in-
stance possessed supervisory or appellate jurisdiction
over the other. Bouvier says that "All tribunals other
than the supreme court are inferior courts. These courts
have in general original jurisdiction in cases, both at law
and equity. Unlike a supreme or superior court, an in-
ferior tribunal is a court of limited jurisdiction and it
must appear on the face of its proceedings that it had
jurisdiction, or its proceedings will be void.^* In this

22— Smith v. Chichester, 1 Cal.
409; Bates v. Gage, 40 Cal. 183;
Stark V. Jenkins, 1 Wash. Ter.
421; In re Fain, 100 Fed. Eep. 149.

23 — Young V. Hamilton, 135 Ga.
339, 60 S. E. 593, Ann. Cas.
1912 A 144, 31 L. R. A. (N. S.)
1057; Leigh v. Green, 62 Neb.
344, 86 N. W. 1093, 89 A. S. R.
75; Plume and Atwood Mfg. Co. v.
Caldwell, 136 111. 162, 29 A. S. R.

305 and note; Spiller v. Wells, 96
Va. 598, 70 A. S. R. 881 and note;
Ober V. Gallagher, 93 U. S. 199;
Ex parte Robinson, 6 McLean (U.
S.) 244; Ex parte Bushnell, 8 O. H.
St. 599; Taylor v. Ft. Wayne, 47
Ind. 274; Beatty v. Ross, 1 Fla.
198.

24—3 Bouvier 's Inst. 70. Ex
parte Knowels, 5 Cal. 301.

68 Ckiminal Law

definition Mr. Bouvier undertakes to make tlie point that
inferior courts are courts of limited jurisdiction, and
hence in order to give validity to their judgments, it
must appear in the record that such courts possessed
jurisdiction to tiy and determine. This definition does
not appear to be strictly accurate in this, for many courts
which are not supreme or appellate, yet are courts of
general jurisdiction, whose judgments are absolute verity,
and admit of no proof to the contrary. In California all
courts except the supreme courts are regarded as in-
ferior, although they be courts of record.^^ The true
distinction between inferior and superior courts is, that
all courts from which an appeal is taken are inferior
courts, with respect to the court to which the appeal is
taken, but such court may not be in a strict sense an
inferior court because it may be a court of general ju-
risdiction, over persons and objects within its jurisdic-
tion. The term "inferior court" applies to courts of spe-
cial and limited jurisdiction, which are erected on such
principles that their judgments, taken alone, do not im-
port absolute verity. The circuit, district and terri-
torial courts of the United States have been held to be
courts of limited jurisdiction, but that it is not necessaiy
to set forth in their proceedings the facts and evidence of
its jurisdiction.^^

§ 86. Presumptions of courts of record, judgments of.
The presumption is indulged in favor of the jurisdiction
of a court of record of general jurisdiction. But there is
no such presumi)tion in favor of the judgments of courts
of limited jurisdiction. In such courts the power to act
and the authority to render the judgment must appear
upon the face of the proceedings." Generally we may

2'i — Ex parte Kiiowles, 5 Cal. 301. 27— Comp v. Losson, 67 C:il. 1.10;

26— Ex parte Wat kins, :i Pet. (U. Storniain v. Davis, Solk. 404;

S.) 19:5; Kemp's Lessee v. Kenedy, Kciiipe's Lessee v. Kenedy, 1 Pet.

5 Cranch. (U. S.) 175-183. U. K. 30; Com 'ers Court Talle-

Jurisdiction 69

regard the terms ' ' courts of record, " ' ' superior courts ' '
and ''courts of general jurisdiction" as synonymous.
So, also, ''inferior courts," "courts not of record" and
"courts of limited jurisdiction" are the same in general
meaning.^^ The former are protected by the presump-
tion of jurisdiction, and the latter are subject to attack
dehors the record, but where jurisdiction is shown, the
presumption prevails that everything was done neces-
sary to authorize the entry of the judgment.

§ 87. Jurisdiction conferred by constitutions and laws.
In a preceding chapter we have called attention to the
division of powers of government, to wit : the legislative,
judicial, and executive, all of which have independent
powers and authority. The judicial power of the United
States is vested by the constitution in the supreme court
and such other courts as congress may create. The con-
stitution confers upon the supreme court certain juris-
diction, and it has been held that congress has no power
to confer a greater or a less extended jurisdiction upon
such court. Where the constitution creates a particular
court and fixes its jurisdiction it is not competent for the
legislature to pass any statute abolishing the court or en-
larging or abridging its jurisdiction. Congress cannot
confer jurisdiction upon the states courts nor can the
state legislature confer jurisdiction upon the federal
courts.

§ 88. Courts have no jurisdiction over merely political
questions. The United States courts have no jurisdic-
tion over merely political questions. This belongs to the
jurisdiction of the legislative and executive and what-
ever is determined by them the courts are bound to fol-

deger County v. Thompson, 18 28 — Freeman on Judgments, Vol.

Ala. 694; Kruse v. Wilson, 79 111. I, 122; Miller v. U. S., 11 Wall.

233; Sears v. Terry, 36 Conn. 273; (U. S.) 268.
Mennar v. Goggins, 121 U. S. 253.

70 Criminal Law

low. The question whether a state constitution was
legally and regularly adopted was held to be a political
matter and not within the jurisdiction of the courts.^"

§ 89. State courts have no jurisdiction over places
ceded to the United States. The United States courts
have jurisdiction over ceded places within the jurisdic-
tion of the United States. The state courts cannot take
cognizance over such ceded places after they have been
ceded to the United States. The inhabitants of such
places, at the time of the cession, cease to be citizens of
the state of which it was a part, and become in all things
citizens of the United States. The state may, however, in
its articles of cession retain the power to assess taxes
and the like.^^

§ 90. Generally courts may not interfere in the per-
formance of duties of officers. Generally the courts can-
not interfere in the perfonnance of the duty of a state
officer. AVhere, however, the law provides that an officer
shall perfomi certain acts which are placed beybnd the
exercise of a discretion, the courts may enforce the per-
fonnance by mandamus. It seems that all acts, min-
isterial and not merely discretionary, may bo enforced
by resort to the judiciary, and to that extent the state
officer may be compelled to act.^'

§ 91. Larceny, jurisdiction of at common law, as to dif-
ferent counties. It is the rule of the ccmimon law that

30 — Com. V. Com'ers, 37 Pa. St. Com. v. Clary, 8 Mass. 72; Senks

237; Gibson v. Temple, 62 Tex. v. Ileeves, 19 Ohio St. 306; Ft.

555; U. S. V. Moore, 3 Cr. (U. S.) Leavenworth v. Lowe, 114 U. S.

159-170J Kx parte McCardle, 7 525; People v. Clodfrey, 17 Johns.

Wall. 506. (N. Y.) 225.

32— Oalous V. Virginia, 6 Wli. .'53— Towle v. State, 3 Fla. 302;

U. S. 424, 2 Story cont. 1L"J(!; I'cople ox rel. Laf^nin^re v. State

Jurisdiction 71

where larceny is committed in one county and tiie prop-
erty carried into anotlier, jurisdiction migiit be exercised
by the courts, eitlier in the county where committed or
in any county into which it had been carried. A prose-
cution in one was a bar to a subsequent prosecution in
the other. Many of the states in the United States have
held that the larceny committed in one of the states of
the United States and the property carried into a sister
state came within the principle of the common law and
jurisdiction might be exercised by the courts of the
state into which the stolen property had been carried.^*
There is no contention in any of the states whose courts
have held to this doctrine that, at the common law, the
English courts had jurisdiction over theft committed in
a foreign country. The ground of their contention seems
to be based upon the theory that the states of the United
States are not foreign states in the usual acceptation,
but are the integral parts of the whole government, and,
in a general sense, sustain the same relation to each other
as one county sustains to another. The answer to this is
met in the suggestion that the several states are sov-
ereign and independent of each other, having a privity
only in the prohibitions placed upon them in the con-
stitution of the United States. In all other respects they
are to each other as foreign states. It is not in harmony
with reason and with the spirit of the law that one state
should have the right to punish an act committed in an-
other. Upon principles of international polity, one state
could acquire jurisdiction over theft committed in an-
other, where the stolen property had been brought into

Treasurer, 24 Mich. 468; State v. 185, 8 Am. Dec. 175; State v. Bart-
Doyle, 40 Wis. 175, 32 Am. Kep. lett, 11 Vt. 650; Watson v. State,
692 ; Int. E, Co. v. Bledsoe, 40 Tex. 36 Miss. 593 ; State v. Johnson, 2
527. Oregon 115; State v. Burnett, 14
34— Hamilton v. State, 11 Ohio Iowa 479; Terrel v. Com., 1 Duvall
St. 435; State v. Ellis, 3 Conn. 153; Com. v. Collins, 1 Mass. 116.

72 Criminal Law

its territory. But nowhere do we meet with the conten-
tion that theft is such a universal crime as deserves to
be punished wherever the property may be found. Upon
principle therefore we contend that jurisdiction cannot
be exercised by the courts of the state into which the
stolen property has been carried, except upon the ground
that it is a crime to bring property into the state which
is larcenously in the possession of the person charged.
The cases in Massachusetts, Vermont, Ohio, Connecticut,
Maine, Mississippi, Iowa, Oregon holding that a person
found Avitli stolen property in his possession, which had
been stolen in another state, proceeded upon the theory
that "stare decisis" long sustained the rule in those
states that it could be prosecuted in the jurisdiction
where the property is found. Most of these cases do not
attempt to justify the rule upon the principles of the
common law but stare decisis only. No doubt can be
entertained that a state might by statute punish the act
of bringing stolen property into its territory, which had
been stolen in a foreign jurisdiction, but we cannot sub-
scribe to the doctrine that the theft itself can be pun-
ished out of the jurisdiction where committed.^^

§ 92. Difference of larceny committed in foreign state
and states of Union. There is quite a diiTerence in prin-
ciple between exercising jurisdiction over theft committed
in one county and carried into that of another and theft
committed in a foreign state and carried into another.
In the former all jurisdiction is derived from the state

35 — People v. Gardner, 2 Johns. son bringing' sUdfii ]iioii(r1v into

i77; People V. Scheak, 2 Johns. 479; that state from another could be

S,ini])son v. State, 4 Humph. 4150; couvicted of larceny oomniitted in

iJeall V. State, 15 Ind. 37S; State V. such state but further holds that

Rcnnols, 14 La. Ann. 278; Stanley the state of Ohio IkkI ho jurisdic-

V. State, 24 Ohio St. 16C; 15 Am. tion and could not convict anotluM-

Rep. C04. This case holds that the for brinpinR stolen property therein

rule h;is long 1 n in that state thnt stolen in the T)()niini()ii of Canada.

jurisdiction nttachcd .■iinl ;iny ]m r

Jurisdiction

and each county belongs to the same. In the latter there
is not the slightest privity except on the principles of in-
ternational law. They are as widely divergent as the
poles. They have no common connection. Between the
counties of the same state the closest relations are main-
tained; each in a general sense have the same rights and
derive their power from the same source. The true
reason assigned, why the county into which the stolen
goods have been removed might assume jurisdiction, pro-
ceeds upon the theory that each step taken, after
the original felonious taking, constitutes a new theft of
the goods, or trespass, and thus each county through or
into which the goods were carried acquires jurisdiction,
not of the original theft, but of the new theft.^^ This is
nothing more than the mere fiction of law. The reason
why the common law adopted this rule is not definitely
known. The principle, however, is firmly imbedded in
the American jurisprudence.

§93. Jurisdiction as to larceny — Continued. The

states of Massachusetts, Vermont, Connecticut, Missis-

36 — State v. Newman, 9 Nev.
48, 16 Am. Eep. 3. The court says:
"It was shown by the evidence, so
far as there was any showing that
tlie property, subject of the lar-
ceny, Avas stolen in Utah Ter. The
indictment was for larceny in Lin-
coln county. State of Nevada.
This statement of fact brings up
the often and variously decided ob-
jection, that no conviction can be
had, in one state of this Union for
larceny committed in another or
in a territory thereof. Thus badly
put, of course no authority could
be found to sustain; but convic-
tions have been had, upon the
principle which allows one stealing
in one county of a state to be in-
dicted and tried in another which

he carries the stolen property, upon
the ground that the title being in
the true owner every moment 's
continuance of felonious possession,
is a new crime under the same
law. As every state of this union,
as to its laws and their administra-
tion, is a foreign country to each
other, there can be no analogy be-
tween the cases; and thus despite
the very considerable authority in
the affirmation of this proposition,
the weight of precedent and reason
is against it. In Mass. and other
states where the doctrine prevails,
it is evidently more because the
rule is established; while the reason
is clearly with the dissenting
judges." ,

74 Ckiminal, Law

sippi, Oregon, Ohio, Iowa and Kentucky in the main
base their right to jurisdiction upon tlie ground that
ownership of the property remains in the owner, notwith-
standing the original larceny had been committed in a
foreign jurisdiction; that the right to inquire into the
ownership of property in the possession of the inhabitants
of the state rests with the courts, and if the possession
is found to be feloniously acquired in another state and
brought into it by the thief or his confederates, by a legal
fiction, the theft is considered as having been committed
in the latter. The court in the case of State v. New-
man says: ''It amounts to the proposition that "A,"
in the possession of property of "B," with felonious in-
tent to steal, take and carry away the same, is guilty of
larceny. This is not enough. A larceny under the cir-
cumstances of this case must be complete in itself, upon
its own surroundings. There is no convenient legal
fiction to help out the haulting fact, and of course it is
a self evident proposition in the abstract, that the mere
possession of another's property wnth intent to steal, is
no larceny until the intent is ripened into act." ^"^

§ 94. Jurisdiction of larceny continued and discussed.
Even ill those states where a conviction for larceny is
permitted upon proof that the property was stolen in one
state and carried into another, have abandoned the theory
that the property stolen out of the United States and
brought into the United States would confer jurisdiction
over the larceny here. Thus in the state of Massachusetts
where the property was stolen in the Dominion of Can-
ada, brought into and held criminally, is confined to the
violation of her own laws.^^

It is a general rule that, for the j)urpose of redress, it
is immaterial where a wrong was connnitted; in other

.37 — state v. Newman, 9 Nev. 38— Coin. v. T^prichanl, 3 Gray

98; Stanley v. State, 124 Oliio ICC), 434; Stale v. Stanley, 24 Ohio, 166
^T) Am. Hep. IM^i. Cooley on Torts, 470.

Jurisdiction 75

words, the wrong being personal, redress may be sought
for wherever the wrongdoer may be found. See Jones on
Chattel Mortgages, sec. 299, 3rd Ed.

§ 95. Jurisdiction as to prosecution of conspiracies. It
is a well established principle that a conspiracy may be
prosecuted in any county in which an overt act is com-
mitted, and this is true although the agreement was en-
tered into in another country.^® Conspiracy entered into
in one state and an overt act committed in another gives
jurisdiction to the latter.'*'' Thus, where a resident of
the state of New York forged a draft in that state and
placed it in the hands of an innocent party to be for-
warded to Boston, where it was paid and the same was
remailed to the defendant in New York, who, during the
transaction did not leave the state of New York, it was
held in Massachusetts, where he was indicted for uttering
a forged check, that that state had jurisdiction notwith-
standing the broker w^as his agent, and also resided in the
state of New York. In a Texas case a conspiracy was
entered into in the city of Austin, but the final act of
forgery, the object of the conspiracy, was completed in
the city of Chicago ; the court held that the Texas courts
had jurisdiction. The defendant in this case, however,
was a resident of the state of Texas and through his part-
ner in the conspiracy had the forgery completed in
Chicago. Again, in a case in the state of Pennsylvania, it
was held that a conspiracy entered into in the state of
New York for the puipose of selling lotteiy tickets in the
state of Pennsylvania through an agent, an overt act com-
mitted in the latter state by selling tickets conferred
jurisdiction upon the courts of Pennsylvania over the
citizen of New York. From these cases the rule may be-

39— U. S. V. Davis, 2 Sum. 485. Adams, 3 Denio. 190, 45 Am. Dec.

40— Com. V. Gillespe, 7 S. & E, 469; Ex parte Rodgers, 10 Tex.

469, 10 Am. Dec. 475; Com. v. App. 655.
Harvey, 8 Am. Jur. 69; People v.

76 Criminal Law

deduced that where a conspiracy is shown to exist and an
act done toward carrying out the common design by an
agent of the conspirators or by the conspirators them-
selves, jurisdiction is conferred over the parties to the
conspiracy in the state where the overt act is perfonned,
and that whether the members or any of them be within
the teiTitorial jurisdiction of such state.

§ 96. Jurisdiction as cases of homicide, committed on
border of state. It is a well settled rule in America, in
cases of homicide that jurisdiction is in the place where
the wound is inflicted and not where death takes place.
If the blow or the means is set in motion in one county or
in one state and the consequent death takes place in an-
other, jurisdiction is controlled by the place where the
blow was given which resulted in death. Prior to the
amendment of the statute of 2 and 3 Edw. VI the rule
seems to have been in substantial accord with the above.
Yet, however, there are authorities for the contention
that prior to this statute jurisdiction could attach in
either county, where the blow was given in one county
and the death resulted in another. The weight of author-
ity, however, is against this contention, and it seems to
be pretty generally conceded that jurisdiction was in the
place where the blow was inflicted, prior to the enact-
ment of this statute. One of the reasons that lead to
the conclusion that jurisdiction was in the place of the
blow was that, l)y the early common law, juries of the
counties were to inquest the dead body.*^

§97. False pretenses, cheats, etc. In cases of cheats
and false pretenses, where the false and fi-audulent

41— state V. Kelly, 76 Me. 645; .iurisdiction ; Green v. St.ntc, 66 Aln.

this was a case where tlie Itlow was 40, 41 Am. Rep. 744; RiRgs v.

jjiven in a fort over which the juris- State, 26 Miss. 51 ; Peo])le v. Gill,

diction cxtenflcl, held that Ihc 6 ("al. (i.")7.
courts of the state of Maine had no

Jurisdiction

statements are made in one county and the property de-
livered in that of another county, the Texas court has
held that the prosecution could not be maintained in the
county where the false pretenses were used. But the
offense being deemed to have been committed where the
property was delivered, such county had jurisdiction
only.*^

§ 98. Where a criminal offense is committed in two
jurisdictions. Where a criminal oft'ense is partly com-
mitted in two jurisdictions the right of trial, conviction
and sentence may be exercised by either.*^ Upon prin-
ciples of law in civil actions where the act of negligence
takes place in one jurisdiction, i. e., in one state, and
the damages result in another, suit may be maintained in
either.** In the state of Massachusetts it was held that
where a dog kept in that state strayed away into the state
of New Hampshire and committed a trespass there, suit
could not be maintained in the fonxier under a law grant-
ing damage done by a dog.*^ In Texas where, upon a
charge of abortion, the proof showed that the means and
the medicine administered were taken in one county and
the abortion occurred in another, the court held that upon
principles of the common law jurisdiction over the of-
fense was properly had in the county where the means
which produced the abortion were put in motion. It did
not expressly decide that jurisdiction might not be ac-
quired in the county in which the abortion occurred,

42— Sims V. State, 28 Tex. App.
447, cites Robertson v. State, 16
Tex. App. 54.

43 — For a full discussion, see the
following: Riley v. State, 9 Umph.
464; Rigs v. State, 26 Miss. 51;
State V. Kelly, 26 Me. 331; Green
V. State, 66 Ala. 40, 41 Am. Rep.
744; Nash v. State, 2 Greene
(Iowa) 286; Abbey v. State, 36 S.

W. 930 (Texas); U. S. v. Guiteau
3rd Or. Mag. 680. This case was
tried District of Columbia Supreme
Court. § 100 this work.

44— Cooley on Torts, 470-471-472.

45 — LeFrost v. Tillman, 117
Mass. 109; Thayer v. Brooks, 17
Ohio 489; Holmes v. Barclay, 4
La. Ann. 63.

78 Criminal Law

but the inference is that jurisdiction was confined to the
county where the means were put in motion.*^

§ 99. Bases of doctrine of preceding section. The

doctrine of the preceding section is founded upon tlie
theory that the act, if completed into a crime, would
be criminal in both localities. Where one puts in
operation a force, or does an act, or procures another to
act for him, either consciously or unconsciously, which
is an act innocent and permissible by the law where he
resides, which culminates in a crime against the laws of
another state, the latter has jurisdiction to try, convict
and sentence such persons. Thus the business of selling
lottery tickets through an agent in a state where it is a
violation of the penal code to sell lottery tickets, the court
of such state has jurisdiction to try the principal who
resides out of the state.*''' Every state is the judge of
what acts are inimical to the morals, trade, commerce and
common weal, and to that end may punish all persons
who violate its laws, although such persons reside in
other states, and also notwithstanding such violations are
procured through an agent. Examples of which are found
in combinations and conspiracies in restraint of trade;
trusts and other means resorted to by residents abroad
for the purpose of controlling the prices of commodities,
etc." The circulation of a libel through an agent by one
abroad will subject him to punishment in the place of
circulation.*' A false pretense whereby one abroad in-

46— Moore v. State, 40th S. W. 48— Hathway v. State, 36 S. W.

287 (Texas). "The appellant put 465 (Tex.).

in operation a force in one county 49 — State v. Piver, 74 Wash. 90,

which produced its results in an- 1.32, p. 858, Anno. Cas. 1915 A,

other and we hold that he is re- 695 and note, 49 L. R. A. (N. S.)

sponsible in the former, where he 941 and note ; Bakor v. State, 97 Ga.

performs the acts which resulted in 452, 25 S. E. :!41 ; Com. v. McCloon,

tlie aljortion." 101 Mass. 1, 100 Am. Dec. 89; SUite

47_Com. V. Cilipsie, 7 S. & U. v. Huston, 19 S. D. 0-44, 104 N. W.

469, 10 Am. Dec. 475. 151. 117 A. S. 1?. 970.

Jurisdiction 79

duces another to part with his property may be punished
in the jurisdiction where the false pretense is affected. ^°
This principle extends to all criminal offenses which may
be committed by an agent.

§ 100. Division line between states. Where one stands
near the line of division between two states, fires and
kills another in a different state, it seems, upon principles
of the common law, to have done the act in the
other state and not where he put in operation the
force which produced the death. However, upon
analogy of the recent case in Texas, where all the
means of producing an abortion were put in motion in
one county and the abortion took place in another,
the court held that the first county had jurisdiction,
seems to confer jurisdiction upon the courts of the
state where the shot was fired.^^ This, too, under the
peculiar conditions and formation of our government,
seems to be more in agreement with reason and justice.
For if the jurisdiction is conferred upon the state where
the deadly missile took effect, the apprehension and pun-
ishment of such offender would depend upon the law of
comity of the states, and he could only be reached through
extradition. In an early case, where a shot was fired
from an American vessel and a seaman on a foreign ves-
sel in a foreign harbor was killed, it was held that the
United States did not have jurisdiction, and that the
jurisdiction was, in legal contemplation, where the shot
took effect.^^

§ 101. There are a few adjudicated cases which hold
that where one resident beyond the limits of a state

50— Com. V. Van Floyd, 1st Met. U. S. v. Davis, 2 Sum. 482; Hat-

(Ky.) 1; State v. House, 55 Iowa field v. Com., 12 S. W. 309 (Ky.)
666; Norris v. State, 25 Ohio St. 52— U. S. v. Davis, 2 Sum. 482

217; 18 Am. Rep. 291, 2 Am. Crim. State v. Hall, 114 C. N. 909, 28 L

Rep.; State v. Wycoff, 31 N. J. L. R. A. 59, 41 A. S. R. 822, 19 S. E

68; State v. Dennis, 80 Mo. 594. 602; State v. Wykoff, 31 N. J. L

51— State V. Moore, 40 S. W. 287; 65.

Ckiminal Law

procures, advises or abets another in the commission of a
felony in another state is not answerable to the laws of
the latter.^^ All parties to a conspiracy are equally
guilty and are principals, w^hether the object of the con-
spiracy is completed or not or whether the object of the
conspiracy is completed in the same jurisdiction. Those
states where the statutes have abolished those distinc-
tions between accessories before the fact and principals, a
procuror may be indicted in the jurisdiction w^here the
crime was in fact committed.

53 — Hatfield v. Commonwealth,
12 S. W. (Ky.) 309. The court
says: "The appellant, Valintine
Hatfield, was not actually present
when the wholesale murder took
place, but remained with his gun
on the West Va. side of the river
some two or three hundred yards
distant (from where the other par-
ties on the Kentucky side of the
river committed the murder) ready
and near enough to give aid and
assistance should an attempt be
made to rescue the prisoner and
to administer an oath to each of
his forces on the return from the
murder of this little boy, that they
would never reveal the action of
any connected with the brutal act.
The indictment in this case charges
a conspiracy on the part of these
appellants and many others who arc
indicted with tlicni, to commit this
crime and those not guilty of the
actual shooting, as being present,
aiding and abetting the commission
of the crime. It is argued th.-it
what transpired with reference to

the offens'e or the custody of these
boys, on the Virginia side of the
line, is incompetent, because it con-
stituted an offense against the laws
of that state and not against that
of Kentucky, and that the accused
Hatfield being on the Virginia side
of the boundary line, could not in
contemplation of law have aided
and abetted a murder in Kentucky,
so as to bring him within tlie juris-
diction of the Kentucky courts.
Again that he was not near enough
to the parties on the ninth of Au-
gust when the wrong was perpe-
trated to have aided and abetted at
its commission, and therefore can-
not be convicted as principal. It
is not pretended that the courts of
one state can enforce its laws be-
yond the state lioundary, but it is
well settled that where one puts
into operation the force of power
that causes the injury, ho is re-
sponsible Avhere the wrong is per-
petrated, although he may not be
actually present.

CHAPTER VI

IDIOTS— MOEAL INSANITY— INTOXICATION— INFANTS— MAR-
RIED WOMEN— DURESS— CORPORATIONS— IGNORANCE
OF THE LAWS— IGNORANCE OF FACTS

§ 119. Application of the rule to
hypnotic influences.

§ 120. Involuntary intoxication,

what is.

§ 121. The defendant in criminal
case is presumed to be
sane.

§ 122. Further discussion.

§ 123. Pleadings of the defendant
in.

§ 124. Of the amount and extent of
proof, etc.

§ 125. Proof of malice in criminal
cases must be beyond rea-
sonable doubt.

§ 126. Insanity shown is presumed
to continue.

§ 127. Dissenting opinions of
judges.

§ 128. Non-expert witnesses.

§ 129. Expert witnesses.

S 1.30. Where the defendant becomes
insane after conviction.

INFANTS

§ 114. Intoxication may be shown

as a mitigation of the § 131. Infants under seven years of

crime and to negative age.

malice.
§ 115. Where one imbibes liquor to

imoTS

§ 102. Persons exempt from crime.
§ 103. Idiots and lunatics freed

from responsibility.
§ 104. Lucid interval.
§ 105. Different species of insanity.
§ 106. The decision in the Mc-

Naughten case.
§ 107. The rule in insane delusion,

as to supposed and unreal

facts.
§ 108. The right and wrong theory

of insanity.
§ 109. The burden is on the defend-
ant to show incapacity.
§ 110. Not in accord with doctrine

of irresistible impulse.

MORAL INSANITY

§ 111. Defined.

§ 112. Irresistible impulse defined.

§ 113. Must be act diseased mind.

INTOXICATION

§ 132. Persons under the age of
fourteen.

nerve liimself to commit § 133. Rule in the southern states,
crime.

MARRIED "WOMEN

§ 116. Result of experience as to
those who commit crime.

§ 117. The result of involuntary in-
toxication in homicide.

C. L.— 6

§ 134. Presumption as to married
women.

Criminal Law

§ 135. Presumption does not extend

to felonies.
§ 136. Common law rule modified by

statute.
§ 137. Is a prima facie presumption

only.

DURESS

§ 138. Defendant not responsible,
he is forced to commit.

§ 139. Fraud or subterfuge duress.

§ 140. Guilt always follows those
who have the intent.

CORPORATIONS

141.

Corporations held for crime
mala prohibita.

§ 142. Early history of corpora-
tions.

§ 143, For what acts a corporation
may be indicted.

S 144. Where the common law can-
not reach, the legislature
may.

IGNORANCE OF THE LAWS

§ 145. Ignorance of the law excuses

no man.
§ 146. Justice requires that general

rule have exceptions.
§ 147. Exception to the rule that

all persons are presumed

to know the law.
§ 148. Exceptions in the case of

larceny.
§ 149. Further discussion.
§ 150. Where the laws are plain

and beyond doubt.

1GN0R.\NCE OF FACTS

§ 151. Ignorance of facts excuso
crime.

§ 152. Mistake.

§ 153. Homicide committed under
misconception of facts ex-
cusable.

§ 102. All persons are capable of committing crime
except as set forth in this chapter.

IDIOTS

§ 103. Idiots and lunatics freed from responsibility. xVn
idiot is one who from natural causes from birth is men-
tally unable to distinguish right from wrong. Under
this head is included persons non compos mentis. A
lunatic is one whose intellect is })ermanently or tem-
porarily impaired by disease or other cause. Lunatics
are freed from responsibility of crime if at the time of
the act they do not know that the act is wrong. It is
the rule of the common law that a crime committed dur-
ing a lucid interval is just as culpable as if the accused
was entirely sane.^

1 — Wlien at the time of an of- tal caijacit y to iiiidcrstaiKi llu" iia
fcHHC, u person has suflicient men ture and cjiiality of the particular

Idiots, Etc.

Non compos mentis signifies a total lack of reason or
power to reason, equivalent to idiocy, but as the term is
generally used, it means a weakness and imbecility of
mind existing to such an extent as to deprive the person
of the capacity to conduct the ordinary affairs of life.^

§ 104. Lucid interval. A crime committed during the
pendency of a lucid interval is the act of reason, but the
difficulty presents itself when the jurist undertakes to
arrive at the precise point where lunacy is suspended and
reason begins.^ There is not, perhaps, in all the phases
of criminal responsibility, so widely differing opinions
among jurists, psychologists and medical experts as pre-
sented in the question of insanity. The proposition is
plain and incontrovertible that in the absence of mental
power to discern the difference between right and wrong,
or to know that the particular act is wrong will relieve
the perpetrator of responsibility. The important ques-

act or acts, constituting the crime,
and mental capacity to know
whether they Jo right or wrong, he
is responsible for his conduct but if
he does not possess this degree of
capacity, he is not responsible. The
truest test is whether the defendant
is able to have and did have a crim-
inal intent and ability to judge of
the right and wrong of the act
charged. Buckhard v. State, 18
Tex. App. 500.

2 — Com. V. Shriner, 58 Pa. St.
328; Land Coster Bank v. Moose,
78 Pa. St. 407, 21 Am. Eep. 24, and
note; Hovey v. Chase, 52 Me. 304,
83 Am. Dec. 514; Jackson v. King,
4 Cow. (N. Y.) 207, 15 Am. Dec.
354.

3 — For a discussion of the lucid
interval, see Kodger v. Walker, 6
Pa. St. 371; Saxon v. Whitaker, 30
Ala. 237; Collins v. Ulmer, 45 Ala.
378. In the case of Overall v.

State, 15 La. Ann. 515 showed that
the defendant was subject to oc-
casional or temporary attat-ks of
insanity and was visited by one of
such attacks just before the com-
mission of the offense and was not
shown to have recovered; it was
held that the law presumed the in-
sane condition, continued to the
commission of the offense. lltli
Amer. & Eng. p. 112. Lunacy be-
ing once established the burden is
upon the party claiming through
some of the acts of the lunatic (in
civil cases) to show that it was
done in a lucid interval and a re-
turn of sanity being proved, the
burden is upon the party claiming.
A party claiming that an act of
a lunatic having been done during
a lucid interval in order to bind
him must produce clear evidence of
his return to sanity. Gowart v.
Sellars, 5 Daw. 231.

84 Criminal Law

tion to be detemiiued is how to discover that the act
complained of is not the act of one possessed of his
faculties.*

§ 105. Different species of insanity. In the Bellingham
case, for the murder of Sir Spencer Percival, Lord Chief
Justice Mansfield observes in his charges to the jury:
''That there are various species of insanity; some human
beings are void of all power to reason from their birth;
such persons cannot be guilty of any crime. There is
another species of madness in which persons are subject
to temporary paroxysms in which they are guilty of
extravagance. This is called lunacy. If these persons
were to commit a crime when they are not affected with
the malady they would be, to all intents and purposes,
amenable to justice. So long as they could distinguish
good from evil, so long would they be answerable for
their conduct. There is a third species of insanity, in
which the person fancied the existence of an injury, and
sought an opportunity of gratifying revenge by some hos-
tile act. If such persons are capable in other respects of
distinguishing right from wrong, then there is no excuse
for any act of atrocity which they might commit under
this description of derangement.^

§ 106. The decision of the judges in the McNaughton
case. In the McNaughton case the House of Lords put
various questions to the fifteen judges and they agreed
on the rule of insanity to be: Question 1. "AVliat is the
law respecting alleged crimes committed by persons in-
ilicted with insane delusion in respect to one or more

4 — Rutlier v. State, 25 Tex. 623; affected with insanity, and such af-

Ruckhard v. State, 18 Tex. 599; fection was the efficient cause of the

King V. State, 9 Tex. 515. A just act, and tliat lie would not have

and a reasonal)le tost in all cases done the act, but that for that af-

would be that, whenever it should fcction ho oujjht to be acquitted."

appear from all the evidence, that, 5 — Becks Medical Jurisprudence,

at the time of doing the act, the vol. 1, page 76.^.
prisoner was not of sound mind, but

Idiots, Etc. 85

particular subjects or persons? As, for instance, where
at the time of the commission of an alleged crime the
accused knew he was acting contrary to law, but did the
act complained of with the view and under the influence
of some insane delusion of redressing some supposed in-
juiy or grievance or of producing some supposed public
benefit." Answer 1. ''The opinion of the judges is, that
notwithstanding the party committed a wrong act while
laboring under the idea that he was redressing a sup-
posed grievance or injuiy, or under the impression of
obtaining some public or private benefit, he was liable to
punishment." Question 2. "What are the proper ques-
tions to be submitted to the jury when a person, alleged
to be afflicted with insane delusion respecting one or
more particular subjects or persons, is charged with the
commission of crime, murder for example, and insanity
is set up as a defense?" Answer 2. "The jury ought, in
all cases, to be told that eveiy man should be considered
of sound mind until the contrary is clearly proven. That
before a plea of insanity should be allowed undoubted
evidence ought to be adducted that the accused was
of diseased mind and at the time he committed the act
he was not conscious of right and wrong. The opinion
relates to every case in which a party is charged with
an illegal act in which a plea of insanity is set up. Every
person is presumed to know the law, and therefore noth-
ing can justify a wrongful act, unless it is clearly proven
that he does not know right from wrong. If that is not
satisfactorily proved the accused is liable to punish-
ment, and it is the duty of the judge to so instruct the
jury." Question 4. "If a person under an insane de-
lusion as to existing facts commits an offense in conse-
quence thereof, is he thereby excused?" Answer 4. "If
the delusion was only partial the party accused was
equally liable with the person of sane mind. If the ac-
cused killed another in self defense he would be entitled
to acquittal, but if the crime was committed for any sup-

Criminal Law

posed injury he would be liable." These rulings were
made in 1845 and they have been followed in the Amer-
ican courts.®

6 — See following authorities:
Boswell V. State, 63 Ala. 307; 2
Lawson's Cr. Def. 352; McAllister
V. State, 17 Ala. 434; Lawson's In-
sanity, 219, 281, 221; State v. Fel-
ter, 35 La. Ann. 67; State v. Pike,

49 N. W. 399; U. S. v. Guiteau, 10
Fed. 161; Hopp v. People, 31 111.
385, 83 Am. Dec. 231; Bradley v.
State, 31 Ind. 492; Harris v. State,
18 Tex. App. 287; State v. Jones,

50 N. H. 369; Com. v. Eodgers, 7
Met. 50, 867. The court says: "In
every case although the accused
may be laboring under partial in-
sanity, if he still understands the
nature and character of his act and
its consequences, and has a knowl-
edge that it is wrong and criminal,
and a mental power sufficient to ap-
ply that knowledge to his own case,
and to know that if he does the act
lie will do wrong and receive i>un-
ishment, and possesses will sufficient
to resist the impulse that may arise
from a diseased mind; such is not
sufficient to exempt him from re-
sponsibility to the law for his
crimes. ' '

If tlu" defendant killccl his wife
in a manner that would be criminal
and unlawful if the defendant were
sane, the verdict should be ' * not
guilty ' ' by reason of insanity, if the
killing was the offspring or product
of mental disease, in the defendant.
(2) Neither tlie knowledge or delu-
sion of right fir wrong, nor design
nor cunning in planning and execut-
ing the killing and escaping or evad-
ing dcto<"tion, nor ability to recog-
nize ;ici|naintan<'('s, or to lalior or
to tr;ins;ii't liusinesH, or Miaii!i;^('

affairs, is a matter of law to test
mental disease: but all tests and
symptoms of mental disease are
purely nuitters of fact, to be deter-
mined by the jury. Whether the
defendant IkhI a mental disease and
whether the killing of his wife was
the product of such disease, are
(juestions for the jury. Insanity is
a mental disease of the mind. If
the defendant had a mental disease,
which irresistibly compelled him to
kill his wife, if the killing was the
product of mental disease in him,
lie is not guilty; he is innocent — as
innocent as if the act had been pro-
duced by involuntary intoxication,
or by another person using his hand
against his utmost resistance. An
act produced by mental disease is
not a crime. Insanity is not inno-
cent unless it produced the killing
of his wife. If the defendant had
an insane impulse to kill his wife,
;ind could have successfully resisted
it, he was responsible. Whether it is
irresistible is the question of fact.

Whether in this case the defend-
ant had an insane impulse to kill
his wife, and wlu'ther he could have
resisted it are (juestions of fact.

(4) Whether an act may be pro
duced by partial insanity, when no
connection can be shown between
the act and the disease, is a ques-
tion of fact. (5) The defendant is
to be acquitted on the ground of
insanity, unless the jury are satis-
fied beyond a reasonable doubt, that
the killing was produced by mental
dise.'ise. Sec 50 N. H. 369. James
V. State, Ladd judge, in rendering
llic o|)iiii<in of the courl says:

Idiots, Etc.

§ 107. The rule in insane delusion; as to supposed and
unreal facts. The principle seems to be well established
in insane delusion cases that if the delusion produces such
an impression on the mind of the accused as to cause
supposed facts to appear real when in fact they do not
exist, and if the act committed under such delusive im-
pressions would be justifiable or a good defense if true,
then the accused should not be punished."^ An insane
delusion is a defense to crime, where it would excuse the
crime if the facts about which it exists are true. The
doctrine announced in the above is predicated upon the
McNaughton case, and is combated by some very re-
spectable authorities.

"When the defendant had mental
disease seems to be as much a ques-
tion of fact, as whether thirst and
quickened impulse are the product
of fever. That it is a difficult ques-
tion does not change the matter at
all. The difficulty is intrinsic and
must be met from whatever direc-
tion it may be approached. They
are all clearly matters of evidence
to be weighed by the jury upon the
question, whether the act was the
offspring of insanity. If it was, a
criminal intent did not produce it,
and if it was a criminal intent that
produced it, it is a crime. ' '

7— State V. Bowling, 16 S. W.
Ark. 658; 20 Neb. 333; State v.
Lewis, 22 Pa. 241 ; Parsons v. State,
81 Ala. 577; 60 Am. Rep. 193;
Stone, judge, dissenting summarizes
as follows: (1) Insanity when relied
on as a defence to a prosecution for
crime, is a mixed question of laAv
and facts. (2) It is a complete de-
fence to an accusation of crime, if
the accused at the time he committed
the act was afflicted with mental
disease, to such an extent to render

him incapable of determining be-
tween right and wrong, or of per-
ceiving the true nature and quality
of the act. (3) When it is satis-
factorily shown that the accused
was mentally diseased at the time
he did the act, which is the conse-
quence solely of such mental disease,
without it would not have been done,
this is a complete defence, even the
defendant knew the act was wrong.

(4) When at the time of committing
the act charged, the defendant was
laboring under a diseased mind,
known as a delusion, illusion or
hallucination and the act done was
solely the result of such mental dis-
ease, connected with and growing
out of it, as effect follows cause
without which the act would not
have been done, the defendant should
be acquitted on the plea of insanity.

(5) No form of emotional or moral
insanity is a defence against a
criminal accusation. Ryan v. Peo-
ple (Colo.), 1917 C, Anno. Cas. 605;
60 Colo. 425, 153 Pac. 756. See
note 1917 C. Anno. Cas. 609.

88 Criminal Law

§ 108. The right and wrong theory of insanity. In the

Parsons case it was held to be the law: That where there
is no capacity to distinguish right from wrong, as applied
to the particular act, there is no legal responsibility.
Where there was such a capacity the defendant is never-
theless not legally responsible if by reason of duress or
mental disease he has so far lost the power to distinguish
right from wrong as not to avoid doing the act in ques-
tion, so that his free agency at the time the alleged crune
was committed was so connected with the said disease,
in the relation of cause and effect, as to have been the
product of insanity or offspring of insanity.^ 1. It is very
ably contended by the learned Judge Summerville, ren-
dering the opinion for the court, that insanity is purely
a disease and physical defect of the mind, and the ques-
tion whether a person is sane is purely one of fact for
the juiy to determine upon all the evidence before them,
and there is no question of law; in other words, it is con-
tended that the courts have no authority upon any given
statement of facts to say to the jury that such facts make
a case of sanity or insanity. He sums up as follows:
**If the defendant at the time of the commission of the
offense is, as a matter of fact, afflicted with a disease of
mind so as to be either idiotic or othenvise insane. 2. If
such be the case, did he know right from wrong, as ap-
plied to the particular question? If he did not have the
knowledge he is not legally responsible. 3. If he did not
have such knowledge he may, nevertheless, not be legally
responsible if the two following conditions concur: 1.
If by duress of such mental disease he so far lost the
power to choose between right and wrong, to avoid the
act in question, his fre'e agency must at the time be de-
stroyed; 2. and at the time the alleged act was committed

8_State V. I^-irsona, 21 So. 854; :! S. W. ry,i9; Knther v. State, 25
L('!i<'lic V. State, 22 Texas App. 279; Tox. A])p. G23.
r,H Ami. Rep. 6^8, li S. W. 5:!0 ; T.l.

Idiotk, Etc.

such mental disease existed, in the relation of cause and
effect, as to have been the product of it solely."

§ 109. The burden is on the defendant to show inca-
pacity. The defendant must show, the burden of proof
being on him, that he did not know, at the time of the
act, right from wrong as to the particular act. It is not
enough that the defendant's intellect had been impaired
by disease or other cause, but it must be shown by evi-
dence satisfactory to the jury that by reason of the dis-
ease or injury at the time of the act that he could not
distinguish right from wrong, and that he did not know
at the time the nature and the quality of the act.^

§ 110. The above rule is not in accord with the doctrine
of irresistible impulse. It seems that in cases where the
defense is that there was an irresistible impulse to commit
the crime the rule in the preceding section would not be
the law, for it is generally conceded by the authorities
upon this subject that one may be so mentally diseased
as to be conscious of the nature and the quality of the
act, and at the same time be so wanting in will power as
to render them incapable of resisting the doing of the
act.^** The doctrine of irresistible impulse as a defense to
crime will be noticed further as we proceed, but the ten-
dency of the authorities is to no longer permit this char-
acter of defense. ^^

9— state V. Lane, 93 Mo. 547,
5 S. W. 889 ; State v. Leach, 3 S. W.
539; State v. Mowry, 37 Kan. 369,
15 P. 282; State v. Eeidell, 9 Houst.
(Del.) 470, 14 Atl. 550; State v.
Giebel (Tex.), 12 S. W. 591; Id.
28 Tex. App. 151; State v. Lewis,
20 Nev. 333, 8 Am. Cr. Rep. 594,
22 Pac. 241; Com. v. Farris, (Ky.)
1 S. W. 729; People v. Nolen, 7
N. Y. Com. Rep. 134.

10— People V. Slack, 51 N. W.

(Midi.) 533, 90 Mich. 448; Smith v.
State, 55 Ark. 259, 19 S. W. 237;
Com. V. Gerade, 145 Pa. St. 289, 22
Atl. 464; Bowling v. State, 54 Ark.
588; People v. Wood, 126 N. Y. 249,
27 N. E. 362; People v. McNulty,
93 Cal. 427; People v. Bowden, 90
Cal. 195, 27 Pac. 201; Kearney v.
State, 68 Miss. 233; Miller v. State,
3 Wyo. 657, 29 Pac. 136.

11— People V. Hubert, 119 Cal.
216, 63 Am. St. Rep. 72, 51 Pac.

90 Criminal Law

Emotional or moral insanity, being a perverted and a
generally evil inclined turn of mind, is no longer regarded
by the authorities as a sufficient defense to the commis-
sion of crime when unconnected with disease or injury
to the mind. Nor is that of irresistible impulse, resulting
from a mere moral perversity or wicked propensities
and habits. A partially insane condition of the mind
may be a defense, if the act is in response to and in fur-
therance of the promptings of the disease. It must, how-
ever, arise out of the disease, and that but for the dis-
ease it would not have been committed.

MORAL INSANITY

§ 111. Moral insanity defined. There is another class
of insanity termed by specialists on mental diseases and
disorders, "moral" insanity. The existence of this kind
of insanity is now denied by the authorities and has no
place in our jurisprudence as a defense to crime. It is
defined to be "a morbid i^erversion of the natural feel-
ings, affections, inclinations, tempers, habits, and moral
disposition, without any notable lesion of the intellect,
and particularly without any maniacal hallucinations.
It is characterized by a waywardness of disposition and
loss of moral force and general malignant conduct, but
with full knowledge of the character of the reprehensible
conduct. ^Ir. Wharton in his exhaustive work on the crim-
inal hiw defined moral insanity as a supposed insanity of
the moral system, co-existent with mental sanity. It
appears that many cases have been before the courts, but
it nowhere appears that this character of derangement of
the moral system, independent of mental imbecility, is
sufficient to excuse legal res])onsibility. It is established
in America tiiat moral insanity, as distinguished from

:J29; People v. McCarthy, 115 Cal. n..!.' h. i'c(.|ilc v. llnlMit, iVA Am.
L'5.'., |ii I':i... H)?.'!. Si-e cxti-iisivo SI. K'.'|.. lon 101.

Idiots, Etc.

irresistible impulse, cannot be invoked as a defense to
crime. ^^

IREESISTIBLE IMPULSE

§ 112. Irresistible impulse defined, etc. Irresistible im-
pulse is an irresistible morbid inclination to do a par-

12— Beck on Med. Jour., Vol. 2,
page 22;S. The doctrine of moral or
irresistible impulse coexistent with
mental sanity has no foundation in
psychology nor support in law.
Boswell V. State, 35 Am. Eep. 20.
The defense is peculiarly liable to
abuse in criminal cases, that the ut-
most care and circumspection should
be required on the part of the court,
in presenting to the jury the legal
principles relating to it. Moral in-
sanity to be available as an exemp-
tion for crime, must be shown to ex-
ist with such violence, as to render
it impossible for the party to do
otherwise than to yield to its
promptings; and whether this im-
possibility of resistance arises from
the subversion of the intellect by the
morbid impulse or propensity, or
from an overwhelming destruction
of the faculties of the mind, to the
extent of rendering the party incap-
able of governing his actions, is a
point of not much practical impor-
tance. " Scott V. Com., 83 Am. Dec.
461. The jury should consider
moral maria, if satisfied of its ex-
istence, in determining the degree
of crime and they should give it
such weight, as it is entitled to un-
der the circumstances. People v.
Hai, 45 Am. Rep. 651; Anderson v.
State, 21 Am. Eep. 669; Looney v.
State, 38 Am. Eep. 646. The court
in Parson's case says on page 208,
60 Am. Eep. that ' ' It is almost
needless to sav that where one does

not act under duress of diseased
mind or insane delusion, he cannot
claim to be shielded from the pun-
ishment for crime on the ground of
insanity. Insanity proper is more
or less a mental derangement coex-
isting, it is true, with the disturb-
ance of the emotions, affection and
other moral powers. A mere emo-
tional or moral insanity, so uncon-
nected with disease of the mind or
irresistible impulse, resulting from
a mere moral obliquity or wicked
propensities or habits, is not recog-
nized as a defense to crimes in our
courts. ' '

' * This character of insanity is
variously styled moral, or emo-
tional, or impulsive or paroxysmal
insanity. It is known among medi-
cal writers, as lesion of the will. This
peculiarity is said to be that, while
the mental perception is impaired,
the mind is powerless to control the
will; that its unliappy subject knows
the right and desire to pursue it ;
that some mysterious, uncontrollable
impulse compels him to commit the
wrong. The possibility of such —
the existence of such submental con-
dition is too doubtful, the theory is
too problematical and too incapable
of practical solution to afford a safe
basis for adjudication. Hawe v.
State, 11 Neb. 537, 38 Am. Eep.
375; Gentry v. State, 32 Am. Eep.
99; Steven v. State, 99 Am. Rep.
634.

92 Criminal Law

ticular act or a series of acts connected with the same
thing, with which the propensity toward the commission
of the act is so powerful and overwhehning that the will
to resist is overcome, although the person may know the
criminality of the act.

It impels the commission of a particular act. Moral
insanity prompts all kinds of badness; being a general
maliciousness and loss of moral recognition co-existent
with sanity. The difference being that in the former
the will is overcome by a counteracting and opposing
inclination of impulse. In the latter the will is free to
act, but chooses to act in a general malicious manner.^'

§ 113. Must be act of diseased mind. General imbe-
cility or weakness of the mind by any cause, which is suf-
ficient to overcome free agency and action of the mind
having its seat in a diseased mind will be sufficient to
excuse crime. If there is sufficient will force to resist
the impulse it will not excuse the act.

If by reason of perverted and morbid propensities pro-
duced by disease or injury to the mental faculties, not
amounting to the overthrow of reason the act would be
regarded as that of a sane person.

The ''right" and "wrong" theoiy and the "uncon-
trollable impulse" each have support in the decision of
the courts, but as we have already stated, the doctrine of
"uncontrollable impulse" is not generally recognized by
the courts, but the latter has much supjDort in the reasons
advanced by both decisions of the court as well as by
the medical profession. Why should criminal responsi-
bility be attached if, in fact, the accused, because of his

13 — Smith V. State, 55 Ark. 2/), aiit, or if some controlling mental

18 S. W. 237; Leach v. State, 22 or physical disease was in truth the

Tex. App. 279, held: If it is true acting power within him, which he

that the defendant took the life of could not resist, and he was im-

thc deceased and at the time the pelli'<l, without intent, reason or

mental and physical machine had imrposc, he could not l)o aocount-

slipped from control of the d^'fcml .iMr to tin- law.

Idiots, Etc.

mental condition, had no will to resist the impulse? If
it is true that such a condition is possible, why should
one be held to criminal responsibility for an act he had
no volition in committing. The law has always recog-
nized the infirmity and frailty of the human mind, and
in response to this principle has reduced homicide in the
heat of passion to man-slaughter upon the theory that the
mind was incapable of cool reflection. If the impulse is
of such a nature as to destroy the will entirely as to the
particular act, in what does it differ from the case of
sudden anger, except in degree? The "right" and
''wrong" theory is predicated upon the reason that the
perpetrator does not know that the act is wrong, and the
uncontrollable impulse is upon the reason that the perpe-
trator has no volition in staying the phj^sical act. In
support of. these two theories see the authorities below,
notes ^* and ^^.

INTOXICATION

§ 114. Intoxication may be shown as a mitigation of
the crime and to negative malice. Mania a portu, or

14 — The recent decisions from the
jurisdictions previously repudiating
the irresistible impulse doctrine ad-
here to the view and recognize the
"right and wrong test" as the sole
criterion of responsibility. State v.
Riddle, 245 Mo. 451, Ann. Cas.
1914 A, 896, 150 S. W. 1044, 43 L.
E. A. (N. S.) 150; People v.
Schmidt, 216 N. Y. 324, Ann. Cas.
1916 A, 978, 110 N. E. 945, L. R. A.
1916 D, 519; State v. Cooper, 170
N. C. 719, 87 S. E. 50; Adair v.
State, 6 Okla. Grim. 284, 118 Pac.
416, 44 L. R. A. (N. S.) 119; Al-
berty v. State, 10 Okla. Crim. 616,
140 Pac. 1025, 52 L. E. A. (N. S.)
248; Smith V. State, (Okla.) 155 Pac.
699; State v. Hassing, 60 Ore. 81,
118 Pac. 195; Watson v. State, 133

Tenn. 198, 180 S. W. 168; Hogue
v. State (Tex.), 150 S. W. 627; Mi-
keska v. State (Tex.), 182 S. W.
1127; State v. Mewhinney, 43 Utah
135, Ann. Cas. 1916 C 537, 134 Pac.
632, L. R. A. 1916 D 590.

15 — The doctrine that an irresist-
ible impulse resulting from a dis-
ordered mind relieves from criminal
responsibility though the person is
capable of distinguishing between
right and wrong with respect to the
act in question finds support in a
number of recent decisions. Bell v.
State, 120 Ark. 530, 180 S. W. 186;
Hall v. Com., 155 Ky. 541, 159
S. W. 1155; State v. Leakey, 44
Mont. 354, 120 Pac. 234; Doherty
v. State, 73 Vt. 380, 50 Atl. 1113;
Lowe v. State, 118 Wis. 641, 96 N.

Criminal Law

delirium tremens, is an excuse for crime when it is
shown that at the time of the commission of a crime the
party was in such a condition. There is no difference
between insanity produced by tlie use of intoxicating
liquors than insanity produced by any other means, pro-
vided the effect has been to produce delirium tremens,
or any other settled impairment of the mind or fixed
insanity. Temporaiy insanity produced by the voluntary
use of liquors will not, of itself, be an excuse for crime
committed while in that condition,^^ A state of intoxi-
cation at the time of the commission of a crime may be
proven for the purpose of showing a lack of a criminal
intent. Thus in the case of murder it is proper for the
defendant to show that he was in such a condition that
he could not have formed a criminal intent at the time of
the homicide.'^' In the courts of Missouri voluntary in-
toxication cannot be shown by the defendant for the pur-
pose of mitigation of the crime committed while in that
condition.^^

W. 417. And see the reported case.
See also State v. Kelley, 74 Vt. 278,
52 Atl. 434.

16— Mayfield v. State, 44 Tex.
59; "Voluntary drunkenness fur-
nishes no excuse or justification for
crime. However, if you find that he
was so drunk, and was unable to
form the criminal intent necessary
to coniniit the crime charged, then
you will acquit him"; the court in
Scott V. State, 12 Tex. App. 'M.
See Ward v. State, 19 Tex. App. 234
for a discussion of insanity ]iro-
duccd liy habitual intoxication. See
72 Am. Dec. 484; Carter v. State,
62 Am. i)pc. 330; People v. Travors
(Cal.), 26 I'ac. 88; Id. 88 Cal. 233.

17_IVople V. KinK, 27 Cal. r)07,
87 Am. Dec. 95; l'('0])le v. Unrris,
29 Cal. 68;'.; Wliili-fr.ni v. Com., IH
Aril. Dec. 782 note; Kccnon \. Com.,

44 Pa. St. 56, 84 Am. Dec. 414 and
note.

18 — State V. Deustrow, the court
speaking through Garrett, judge,
says: "that if the Jury believes
that the defendant has been volun-
tarily addicted to the use of in-
toxicants for a long period of time,
jirior to the homicide, and that
sliortly or immediately before the
homicide, the defendant drank vol-
untarily largo (]uantities of intoxi-
cants, Mild thill, liciiig under the
influence of tlie same, shot and
killed his wife while laboring under
sucli temporary frenzy or madness,
:iiul wliih' l)(>^ing unconscious of the
ii.'itiirc ;iii(l tlie (|u:ility of the act,
;iiid such temporary frenzy or mad
ness, and such unconsciousness, was
then :iiii| thiTc tlie immediate result
of into.\ic:it iiig li(|iiors, tlieii such

Idiots, Etc. 95

§ 115. Where one voluntarily imbibes liquor for the pur-
pose of nerving himself to the commission of crime, can-
not show the same in mitigation. The rule is well settled
that defendant while in the full possession of his facul-
ties determines to commit a criminal act and, in pur-
suance thereof, for the purpose of nerving himself for.
the work, voluntarily makes himself drunk, such drunk-
enness will not mitigate the act.'^^ Intoxication in this
case is always the cause of the act, but the intent to com-
mit the act is the cause of the intoxication. But if at
the time of the commission of the crime the defendant is
drunk and had no previously formed or premeditated
design to commit it, then he may show this,^°

§ 116. The result of experience of those who commit
crimes. It is the result of experience that perpetrators
of violent crimes frequently nerve themselves for the
deed by the free use of intoxicating liquors, and if vol-
untary intoxication was an excuse for crime all crim-
inals would first make themselves drunk before com-
mitting a crime. Insanity in many instances is the result
of abuse or dissipation voluntarily indulged. The free
and voluntary use of intoxicating liquors as narcotic
often produces a fixed and permanent insanity and im-
pairment of the intellect. In such cases reason is de-
throned or totally destroyed. Crime committed by one
while laboring under such effects will be free from crim-

teniporary frenzy or madness and 19 — People v. Gabbutt, 97 Am.

such unconsciousness, afford neither Dec. 162, 17 Mich. 9; People v.

justification, mitigation or excuse Lane, 11 Cal. 379, id. 34 Pac. 856;

for the shooting of his wife, nor can Ayers v. State, 26 S. W. 386.

you consider it in determining 20 — State v. Hanson, 25 Pac. 976;

whether defendant deliberately. Garner v. State, 28 Fla. 113, 29

willfully and premeditatedly, did the A. S. R. 232, 9 So. 845; Springfield

shooting. He is equally guilty un- v. State (Ala.), 11 So. 250; State v.

der the law, as if he had been sober Tom (Ore.), 30 Pac. 307; Kelly v.

at the time of the shooting." 58 State, 20 S. W. 357.
S. W. 554; Contra Ayers v. State
(Tex.), 26 S. W. 396; People v.
Young, 36 Pac. 770, 102 Cal. 411.

96 Ceimixal Law

inal intent. It is the law in many states to measure the
intent by the degree of intoxication, that is, if the in-
toxication is so overwhehning at the time of the perpe-
tration of the act as to produce temporary insanity, that
such intoxication will reduce murder from the first to
the second degree, and it seems that in all cases involv-
ing a malicious intent the degree of intoxication may be
shown for the purpose of determining the intent.^^

§ 117. The result of voluntary intoxication in homicide.
Voluntary intoxication will reduce the charge of murder
from the first to the second degree.^^ When the ques-
tion is whether the defendant committed the crime with
malice, evidence of intoxication may be given to show
that at the time the defendant was in such a condition
of mind that he could not form a malicious intent.^^ So
drunkenness may be shown at the time of the act that
the defendant was in such a physical relapse that it was
impossible for him to have committed the crime.** In
no instance, we believe, is it contended that voluntary
intoxication producing a frenzy or temporary in-
sanity is an absolute excuse for crime notwithstand-
ing the physical fact of committing the act might
have been unknown to the defendant at the tiime
of its committal. This is the doctrine in the Deu-
strow case, as we understand it, tried in the Mis-
souri courts; however, it seems to be generally ad-
mitted that the fact of intoxication should be submitted
to the jury to determine whether the defendant could

21— McCarty V. state, 4 Tex. App. 2:i— ri-oplc v. Youniu (Cal.), 36

461: If one becomes voluntarily I'ac. 770; Jenkins v. State, 18 S. E.

drunk, who prior to his intoxication (Ga.) 992; Keton v. Com. (Ky.),

intended to kill another, tlic in- 92 Ky. 522; Lyle v. Slate, 31 Tex.

toxicalion would have no effect App. lO.T, 19 S. W. 90.^.

upon the act. Amr. Dip. 1892, P. 24— Kennon v. Com., 84 Am.

2485, sees, 2:56 2:i7 2:!9-240. I'ec. 41-1; Barnhart v. State, 82 Wis.

22— Jamison v. Pcopl.', 1 ir, 111. 2.!, r,l N. W. iniM).
:',r,7, :!4 N. E. ISfi; State v. O'Neil,
.=51 Kan. dr,] , 24 Ti. M. A. Snf). r.\
Pac. 487.

Idiots, Etc. 97

have possessed at the time sufficient reason to form a
criminal intent. It is not a matter of law, but one of
fact. Intoxication may reduce the killing:, otherwise
murder, to manslaughter.^^

§ 119. Application of the rule to those of hypnotic
influences. It seems, upon principle, that persons
laboring under hypnotic influences cannot be held re-
sponsible for acts committed while thus circumstanced.
This will depend, however, upon the question whether
the effects were so powerful as to overcome free action
and volition of will. That hypnotism occupies the place
among criminal agencies there can be no doubt, and that
its influences are very marked upon some persons. This
question appears not to have been before the courts in
this country in very many cases. It has been often dis-
cussed in law magazines, but so far as we are advised,
the courts have not yet excused hypnotized persons from
criminal responsibility. In the case of People v. Ebanks,
117 Cal., 652, as an excuse for the crime the defendant
offered to show by witnesses that he was an expert h;^^-
notist, and that he had hypnotized the defendant, and that
when hypnotized defendant made a statement to him in
accordance to his knowledge of the affair of which he
was charged. The trial court stated in sustaining objec-
tions : ' ' The law of the United States does not recognize
hypnotism. It would be an illegal defense and I cannot
admit it." Upon appeal to the supreme court the lower
court was sustained. In the note to the 40th L. R. A.,
being the same case,^^ such scant authorities as there are
may be found. The idea is advanced that hypnotism
is something that cannot be forced upon a person; and,

25— Garner v. State, 28 (Fla.) 398; Carpenter v. Com., 92 (Ky.)

113, 29 A. S. R. 232, 9 So. 845. 452, 18 S. W. 9.
On question of premeditation, Cres- 26 — People v. Ebanks (Cal.), 40

man v. State, 54 Ark. 283; Fous- L. R. A. 269; People v. Worthing-

ville V. State, 91 Ala. 39; Leeper ton, 105 Cal. 166.
V. State, 29 Tex. App. 63, 14 S. W.

C. L.— 7

98 Criminal, Law

therefore, one who, knowing that while in a state of hyp-
nosis he may be compelled to commit crime, voluntarily
suffers himself to be placed in that condition may be sup-
posed to have anticipated all consequences of his acts
and agreed to become responsible for them, and that
would apply to a case in which it was suggested by the
hypnotist that a false state of facts existed, which
would, if true, justify a commission of the offense.^'

§ 120. Voluntary intoxication, what is, etc. The ques-
tion may be asked, what constitutes voluntary intoxica-
tion. The proposition that voluntary intoxication 'Svill
not exempt from the responsibility of crime" is based
upon the ground that the defendant, in the exercise of
his will and free agency, voluntarily chooses to put him-
self in such a condition by the use of intoxicating agents,
that his reason is temporarily dethroned and that such
suspension of reason is due to his own fault. We find
no fault in this doctrine. Suppose a person voluntarily
indulging is of a peculiar nervous constitution and knows
it not, and drinks a small quantity of liquor only, gets
crazy drunk; su]:)pose, again, that the defendant is in the
habit of drinking small quantities at regular intervals
without any damaging effects, and measuring his capacity
by fonner experience, drinks the same quantity and be-
comes drunk contrary to his expectations and previous
experience. In these instances is drunkenness volun-
tarily assumed? Experience and observation teach us
that in some conditions of the ])hysical system intoxi-
cants have a more damaging effect upon the mind than
at other times. Would a man, not knowing tliis peculiar
condition, drink a quantity of whiskey, such as he usually
drinks and williout a bad effect, but at tliis particular
time makes liiiii di-niik, ])artially destroys his reason, be
guilty of" \()luiitai-\- intoxication? Tliesc questions
should, in uur opinion, be sulnnitted to the jury for the

27 — 3 American Lawyer, 535.

Idiots, Etc.

purpose of showing the intent and for the further pur-
pose of rebutting the presumption that every person in-
tends the probable consequences of their acts.

§ 121. Defendant presumed to be sane. In the prose-
cution of crime the state is compelled to establish beyond
a reasonable doubt the defendant's guilt. All persons
are presumed to be sane and in the full possession of
their faculties. "When it is shown beyond a reasonable
doubt that the defendant is guilty of the act charged,
the plea of insanity being in the nature of confession and
avoidance, the burden is then on the defendant to show
his incapacity to commit the particular crime charged.^^

§ 122. Further discussion of the rule of the preceding
section. The rule in the preceding section is the general
rule and is supported by the weight of authority, and the
burden is on the defendant in establishing his insanity.^^

Other courts hold that sanity is an element of a crime,
and it devolves on the state to establish this element by
proof, and that the presumption of sanity is sufficient
proof of it until it is repelled by the counterposing proof
of the defendant. The authorities seem to be overwhelm-
ing in this, that the party putting his sanity in question
is required to show his insanity to the satisfaction of

28— King V. State, 9 Tex. App.
515. "The burdeu of proof to es-
tablish liis insanity devolves upon
the defendant, as every person is
presumed to be of sound mind, until
tlie contrary is shown by proof. If
ihe state has as before explained,
proved the facts which constitute the
offense, your next inquiry will be,
has the defendant established by
proof, his plea of insanity, or has
it been established from any source?
If the law excuses him from crim-
inality you should acquit him."
State V. Alexander, 30 S. C. 74,

8 S. E. 440, 14 A. S. R. 879; Ort-
wein V. Com., 76 Pa. State Eep.
414, 18 Am. Eep. 420; Howard v.
State, 172 Ala. 402, 55 So. 255, 34
L. R. A. (N. S.) 990; Hopps v.
People, 31 111. 385, 83 Am. Dec.
231; State v. Felter, 32 Iowa 495;
State V. Lawrence, 57 Me. 574;
State V. Eedmen, 71 Mo. 170; Loeff-
ner v. State, 10 Ohio St. 598.

29— Eather v. State, 9 S. W.
(Tex.) 70. Ogtetrie v. State, 28
Ala. 701. For a full citation, see
Eng. and Amer. Enc, page 7276.

100 Ceiminal Law

the jury. By many authorities the defendant is re-
quired to show his insanity to the satisfaction of the
jury by a preponderance of evidence.^"

§ 123. As to the pleading by the defendant. In some
jurisdictions the defense of insanity is by special plea,
and in others the question is placed before a jury or a
commission to determine the sanity of the defendant. In
others still different modes of ascertaining the truth as
to the mental condition of the defendant is provided, but
in the absence of a statute setting out specifically how
the plea should be presented, proof of the insanity could
be admitted under the plea of "not guilty." '^ The plea
of not guilty includes every defense unless the statute
requires a different manner of proceeding.

§ 124. Of the amount and the extent of proof, etc. The
proof necessary to overcome the presumption of sanity
appears to be uncertain. The weight of authority, how-
ever, seems to be that evidence of insanity must be of
such cogency as to convince the jury of that fact by the
preponderance of the evidence.^^ Sanity is the normal
and insanity is the abnormal condition of persons, and
for this reason the burden rests upon him who set up
the plea of insanity as a defense to crime. But the de-
fondant is not required to go beyond a reasonable doubt.
AVhere the question of malicious intent is sought to be
negatived, malice being an essential element of the crime,
the prosecution is required to prove it and if, upon the
whole case, there be a reasonable doubt as to the malice
there should be an acquittal.'^

."50— IIopps V. People, 31 111. 385, 516; Boiling v. State, 16 S. W. 658.

83 Am. Dec. 231; State v. Felter, 32— State v. Kcdmorc, 71 Mo. 171,

32 Iowa 495; State v. Lawrence, 57 35 Am. Rep. 402; Gut-tig v. State,

Mc. 574; State v. Redmcn, 71 Mo. M In.l. 94, 32 Am. Bep. 99; Graves

170; T.onfTiicr v. State, 10 Ohio St. v. State, 16 Vroom ;i47, 46 Am. Rt^p.

598. 778.

31— Webb V.' State, 9 Tex. App. :;.; I»'.i11ut v. State, LT) Tex. Ap]).

490; King v. State, 9 Tex. \\>\<. 623, 9 S. W. 69. Held llial wlicii tlic

Idiots, Etc.

101

§ 125. Proof of malice in criminal cases must be be-
yond reasonable doubt. In criminal cases involving an
element of malice, tlie malice must be proved beyond a
reasonable doubt. In many instances malice will be pre-
sumed from the nature of the act, but the law requires
that these facts be proved by the state before the pre-
sumption can be indulged against the defendant. It ap-
pears to be in perfect accord with the philosophy of the
criminal law to require the state in all cases partaking of
and containing the element of malice, where insanity
might be made a legal excuse for the crime, to require
the state to establish the sanity of the defendant before
insisting on his conviction. We believe the rule to be
well established by the bulk of authority that the burden
is on the defendant to establish his insanity, but the
burden should be upon the state to establish beyond a
reasonable doubt the sanity, as upon the whole case.
This rule, of course, is inconsistent with that maxim of the
law that all persons are presumed to be sane. There are
many reasons why the state should be required to show
the defendant's sanity beyond a reasonable doubt: (1)
Where evidence has been introduced by the defendant or
issue raised showing his insanity, the presumption of
sanity is put in question, and the burden of proof shifts
to the state. ^^ (2) The defendant is presumed to be

defense of insanity is relied upon,
the burden is on the defendant to
establish such defense by a pre-
ponderance of the evidence and to
the satisfaction of the jury; and if
the homicide is proven, and it is
not shown, by a preponderance of
evidence, that the defendant at the
time of the homicide was insane,
you will disregard the defense of
insanity. Note the case of the
State V. Webb which follows in full.
34— Montag v. People, 141 111.
75, 30 N. E. 337; State v. Gabbutt,

17 Mich. 9, 97 Am. Dec. 162; Hopps
V. People, 31 111. 385, 83 Am. Dec.
231; Stokes v. People, 53 N. Y. 164,
13 Am. Rep. 492; Peake v. State,
121 Ind. 433, 23 N. E. 273; Mc-
Doughal v. State, 88 Ind. 24;
Bradey v. State, 31 Ind. 492 ; People
V. Cohn, 76 Cal. 386, 18 Pae. 410;
People V. Elliott, 80 Cal. 296, 22
Pac. 207; Subert v. State, 66 Miss.
446, 6 So. 238; Unkers v. State, 87
Ala. 94, 6 So. 357; Johnson v.
State, 27 Tex. App. 188 ; Twicker v.
State, 27 Tex. App. 539; State v.

102 Criminal, Law

innocent beyond a reasonable doubt until the contrary is
proved. (3) The defendant, by reason of the plea, is him-
self incapable of assisting his counsel in preparing and
presenting his defense. He is forced to rely on his
counsel and friends who may volunteer in his behalf, and
the consequence is he is placed at a disadvantage as com-
pared with other persons charged with crime. A person
charged with crime who makes his defense upon the
ground of insanity, being devoid of reason, is required
to make a very intricate and complicated defense, in
fact, the most intricate and complicated known to the
crmiinal law, while he, from the nature of his defense,
upon the one hand, is totallj^ incapable of presenting his
defense on account of his insanity, and, upon the other
hand, skilled and eminent criminal lawyers and medical
experts and specialists, whose sole business it is to specu-
late in this boundless sea of doubt, appear against him,
and the law requires him to make a defense with the
same ingenuity as if he were sane and fully possessed of
all his faculties. Where is the malice, unless sanity ex-
ists? The very law humanely withholds her judgment
if at the time of trial the defendant is insane, but very
inhumanely, it appears, requires him to show himself
insane before he is entitled to his stay of judgment. En-
lightened judiciary should exercise its humane preroga-
tive and extend to an insane person the same rights
accorded to his more fortunate brt)tliers, by establishing
a more just nile.^^

Marler, 2 Ala. 4."1, ',\G Am. Doc. on the State to show sanity, or is

398; State v. Bartlett, 43 N. II. 224, it on tlie aefenclant to prove in-

80 Am. Dec. 154. sanity?

35 — Hurt, J. The appellant was 2. If the jury have a reasonable

convicted of murder in the first de- doubt of the sanity of the defend-

gree, with the death penalty affixed ant, should they acquit or convict,

as tho punishment. The record pre- sanity being the only question in the

sents three questions for our solu- case?

tidii: .">. (liui the proof Ix" so plenary

1. Wlicti llir ]il<;i (if insanity is mi ono side ns to justify the court

interposed, is the Itunlcn of proof below in llic it jn linn of legit iiiiMic

Idiots, Etc.

103

§ 126. When insanity has been shown to have existed,

and proper testimony in behalf of
the other side?

First proposition: When the plea
of insanity is interposed, is the
burden of proof on the State to
show sanity, or is it on the defend-
ant to prove insanity? Brush from
this question the dust of ancient
days, separate it from old com-
panions, and its solution is perfectly
simple. Before entering upon an
analysis of this subject, permit us
to allude to some very strange and
inconsistent expressions used by the
learned judges in treating of this
question. The following are of the
number alluded to: "As insanity
excuses the commission of crime, on
the ground that the actor is not a
responsible being, etc. The onus
of proving the defense of insanity,
or, in the case of lunacy, of show-
ing that the offense was committed
when the prisoner was in a state of
lunacy, lies upon the prisoner. ' '
* * * What mind can compre-
hend the possibility of a crime be-
ing committed by an insane person?
If the prisoner be insane, there is
no crime. If there be crime there
is no insanity * * * (1) San-
ity is an inherent, intrinsic element
of crime. (2) Insanity is not an in-
herent and intrinsic element, but is
intrinsic and independent of the
crime. This last proposition con-
tains a monstrous fallacy, the fruits
of which are visible in so many of
the text books, and which are fol-
lowed out in many of the enuncia-
tions in the adjudicated cases.

If sanity is an inherent element
of crime, no well ordered mind can
stop short of the conclusion that the
State must carry its burden and
prove it. Feeling the force of this

writers have treated it as an in-
trinsic matter, separate and distinct
from the question of guilt, and
hence those strange and incompre-
liensible expressions above referred
to. Let us pay our respects to this
last proposition, and see if by a
bare touch it will not crumble to
dust. ' ' Sanity is extrinsic. ' ' There-
fore the prisoner is to be tried for
the act, and the question of intent
or malice is not drawn in issue.
This for the simple reason that an
issue formed upon the question of
intent or malice irresistibly includes
that of sanity, for there can be no
intent or malice without sanity.
Therefore it follows from this er-
roneous position that the jury, in
viewing the act sought to be pun-
ished, must strip it of the intent
which prompted it, and look alone
to the act. To this we enter our
solemn protest. We now invite at-
tention to what we believe to be
the true position, which is that san-
ity is an inherent, intrinsic and
necessary element of crime. Is this
a correct proposition? Is it not a
self-e%adent position? If murder
can be committed without intent
or malice, then the proposition is
false; if not, it is true.

But we do know, if it be possible
to know anything, that, to consti-
tute murder, the act of killing must
be attended not only w^ith the intent
1 kill, but with malice ; and we also
know, with the same degree of cer-
tainty, that there can be no intent
or malice without sanity. It there-
fore follows, beyond any shadow of
doubt, that sanity is an inherent,
intrinsic, and necessary ingredient
of crime. We now return to the
first proposition stated at the be-

104

Criminal Law

it is presumed to continue. The burden is on the prosecu-

ginning of this opinion, which is
as follows: "When the plea of
insanity is interposed, is the burden
of proof on the State to show san-
ity, or is it on the defendant to
prove insanity?" We have thus
stated the proposition because we
find it so stated in the books, but
it is not a practical one. There is
no sueh plea known to our code as
applicable to trial of a criminal
cause. We have four pleas — two
special, and the pleas of "guilty"
and ' ' not guilty ' ' — and this plea of
"not guilty" is a denial of every
material allegation in the indict-
ment. Under it, evidence to estab-
lish the insanity of the defendant,
and every fact whatever tending to
acquit him, may be introduced. It
follows that under this plea the de-
fendant denies every constituent
element of the offense charged, and
this plea of "not guilty" is the
same as if the defendant had de-
nied specifically each element of the
crime charged.

This leads to tlie consideration of
the charge in this case, which is
murder, and is defined thus : ' ' Every
person of a sound memory and dis-
cretion who shall unlawfully kill any
reasonable creature in being, within
this state, with malice aforethought,
either express or implied, shall be
deemed guilty of murder."

From this definition it follows
that, to constitute this offense, the
slayer must l>e "of sound memory
and discretion"; a "reasonable
creature" must be slain, and the
slayer must be actuated by "mal-
ice. ' '

We have then, first, "sound incin
ory" in llic Hl.'iycr; second, a "rca-
Honriblo creature" slain; and the

slayer prompted by ' ' malice. ' '
These constitute murder, and noth-
ing less than all of these can con-
stitute murder. By what principle
of logic, reason or justice can either
of these elements be eliminated
from the offense? From this it fol-
lows that an indictment charging
this offense embraces all of the
above elements whether specifically
named or not; and though the in-
dictment omits to charge that the
defendant was of "sound mem-
ory," yet charging "malice," san-
ity is necessarily included. The
problem which equals murder is
composed of three members: First,
' ' sound memory ' ' of slayer ; second,
"reasonable creature" slain; and
third, "malice" in the slayer. Let
us see, if we can eliminate from this
problem one of these members, and
leave every element of the offense in
the problem. Tliore can be no
"malice" without sanity. We
therefore have a "reasonable crea-
ture" slain; second a malicious
slayer — murder. « * » if the
above analysis be correct, and we
tliink it is, it devolves upon the
state to prove every inlierent ele-
ment of the offense; and as we
have found sanity to bo such an
element, it rests upon the state to
prove sanity. Still holding with a
firm grasp tlio proposition that san-
ity is an inherent element of the
offense, and as there is no suili
thing in law as separating the ele-
ments of an offense so as to cast
the l)urdon of a part upon tlie state,
and as to the rest, to ro(|uire the
defendant to take the burden of
lirii\riig a negative, it follows 1li;it
I he existence of each elenu>nt is an
aflirinat i\i' ])r(i|>osit ion, tin- proof of

Idiots, Etc.

105

which rests with the state. The
idea that the burden of proof shifts
is in direct conflict with the phi-
losophy of criminal jurisprudence,
arid at war with fundamental prin-
ciples; for we hold that, with re-
gard to necessary ingredient, it
never shifts. If two or more ele-
ments constitute an offense, which
of these elements must be proven
by the state, and which must be
proven not to exist by the defend-
ant? If elements, do they not
stand upon the same plane, or are
there some which prove themselves?
If there are, they are not elements.
Are we to require the defendant to
prove the nonexistence of that ele-
ment — sanity — upon which intent
and malice depend, and yet hold
the state to prove intent and mal-
ice? To us it is impossible to har-
monize logically these positions.
We are now led to meet the most
plausible, difficult, and potent po-
sition which can be assumed upon
the other side. And we here con-
cede that it is supported by the
weight of authority; but we do not
think it is founded in principle,
and if not founded in principle, to
follow would be dangerous. It is
this: The fact of killing being ad-
mitted and that beyond doubt the
prisoner did the killing, and sanity
being the normal condition of all
persons, the law presumes the pris-
oner sane until he shows to the con-
trary and therefore the burden of
proving insanity rests with the
prisoner. It will be seen at once
that the struggle is with this pre-
sumption of sanity. The name of
this witness is presumption. He is
a venerable gentleman. He was
contemporary with the first form

principles of the enlightened juris-
prudence. For truth and integrity
lie has never been excelled. His
means of knowledge is unsurpassed,
having for a foundation the laws of
nature, and the truth of his evi-
dence is corroborated by the expe-
riences of man through all ages.
The effect of his evidence is the
production of not only a mere prima
facie case, but full and complete
conviction when not opposed. Up-
on his evidence alone, when not con-
tradicted, sanity being the only is-
sue, man has been made to expiate
the violated law with his life
when he speaks of the sanity of his
prisoner, his evidence meets with
an approving response in the mind
of every intelligent and honest
juror for their experience corrobo-
rates his testimony. But he is not
infallible. * * * He never tes-
tifies to the sanity of any particular
individual.

His is never positive, but always
presumptive evidence. Sanity, the
normal condition of man, he pre-
sumes that to be the condition of
the prisoner. With the parents or
the relatives of the prisoner he is
not acquainted. He is not aware
of the fact that some of the pris-
oner 's blood relatives are now in-
mates of an asylum for the insane.
Though his locks are bleached by
the winters of ages; though he has
never been charged with prejudice,
and though his evidence is sup-
ported by the laws of nature and
corroborated by the experience of
man, yet he is somewhat arbi-
trary. He places the prisoner in
the normal condition of man, which
is sanity, and demands of him the
same conduct whether sane or in-

106

Ckiminal Law

tion to rebut this presumption.^^ As is elsewhere stated,

sane. He never heard of insanity,
because he speaks alone from the
laws of nature, and insanity being
an exception to the natural rule,
they are unacquainted. With pris-
oner's language, conduct or mis-
fortune he has nothing to do, and
of them he is entirely ignorant.
Yet he holds him with an iron grasp
to the laws of nature and the ex-
perience of man. Is he omnipotent?
How many witnesses are necessary
to measure arms with this Titan?
Does he partake of the kingly char-
acter, and can he "do no wrong"?
Upon the testimony of one witness
alone, the prisoner may be legally
con\ncted and executed. Can this
evidence accomplish more? In no
case can he accomplish more than
can be effected by the evidence of
one witness. We do not mean the
evidence of any witness. Can the
evidence of one witness ever be an
over-match for him?

In some cases it legally and
justly can; in others the testimony
will not suffice, this always depend-
ing upon the character of the wit-
nesses, their moans of knowledge,
and the facts sworn to. * * *

From the above we deduce these
rules: 1. The state must prove
every necessary ingredient of the of-
fense, and so far as they (the in-
gredients) are concerned, the Inirdon
of proof never shifts. 2. When,
distinct, extrinsic matter ia relied
on by the defendant, the burden is
on liim to prf)vo it to the satisfac-
tion of the jury. We now propose
to return to that plausible position
of the other side "the evidence
showing the act to have >>oen done
l)y tlic defi'nd.'iiit, and sanity be-
ing presumed by the law, the ]>ur-

den shifts to the defendant."
Those who occupy the other side
plant themselves upon this propo-
sition, and ask with plausibility,
and a great show of victory, "will
not the prisoner be convicted if
he fails to introduce evidence of
his insanity?" We admit that he
will, and justly * * * Since
sanity is an essential, inherent ele-
ment of murder, and since the state
must prove all the necessary in-
gredients of the offense charged,
we cannot escape the conclusion
that the state must prove sanity;
and as we have found that the bur-
den of proof does not shift in re-
gard to the necessary ingredients
of the offense, and as sanity is such
an ingredient, it also follows that
the burden of the proof is upon
the state to show sanity, and not
upon tlie defendant to prove in-
sanity — negative. * * * gy
careful survey of the above posi-
tions it will be perceived tliat the
burden of proof is quite a differ-
ent thing from the means or instru-
ments of proof. The court below
charged the jury that the burden
of the insanity was upon the de-
fendant; this w^e think was error.
17 Mich. Ill, 16 N. Y. 58, 2 Met.
240, 1 Gray 61, 7 Met. 500; 31
111. 385, 14 Amer. L. Reg. 23, 43
N. H. 224, 19 Tnd. 170, U. S. v.
McClane, 7 L. Rep. 4;]9, the opin-
ions in the case of King v. State,
94 App. 45-54.

36 — Montgon)ory v. Com., 18 S.
W. 475: "A person may be in-
sane, but that establishment of fact
does not carry with it the presump-
tion that ho was not criminally re-
sponsible. Evidence of insanity,
l)otli 1)oforo and after the crime,

Idiots, Etc.

107

crime committed during the pendency of a lucid interval
is subject to prosecution; the burden rests upon the prose-
cution to prove beyond a reasonable doubt that the crime
was committed during the pendency of the lucid interval.
This presumption that insanity continues is a question
purely of facts and not a presumption of law and may be
overcome by proof to the contrar5\^''

§ 127. View of author, the dissenting opinions of
judges. In view of the conflicting authorities upon the
question of "reasonable doubt," ''satisfactory proof"
and ''clearly satisfactory proof" and "preponderance
of evidence ' ' and other such terms used by courts in dis-
cussing the burden of proof in insanity cases, it appears
to us that the reasons of the dissenting judges and that
line of decisions holding that the burden is upon the
state to prove the sanity of the defendant should be the
future nile, and that all doubts should be indulged in
the behalf of the defendant, especially in crimes, the
moving part of which is malice.^^

may be given to the jury for the
purpose of enabling them to deter-
mine whether or not the same con-
dition of mind existed at the time
the act was committed; but no legal
presumption arises from the proof
previous or after insanity, that the
person was insane, at the time he
committed the criminal act. But
the jury may draw such inference of
fact from these conditions they
may deem proper. ' ' See Gruff v.
State, 117 Ind. 277.

37— People v. Lane (Cal.), 36
Pac. 16, 101 Cal. 513; Hornish v.
People, 142 111. 620, 32 N. E. 677;
Jamison v. People, 145 lU. 357, 34
N. E. 486. When a person has
been proven insane, the presump-
tion is that the insanity continues
and the burden shifts to the party

alleging sanity. 11 vol. Am. &
Eng. Encla., page 160. Chronic in-
sanity is presumed to continue, Id.
State V. Eeddick, 7 Kans. 143. The
presumption that insanity continues
is a presumption of fact, and not
one of law. Am. & Eng. Encla.
Law, vol. 11, page 161; 22 Tex.
App. 379; Physio-Medical Coll. Ind.
V. Wilkinson, 108 Ind. 314, 9 N. E.
167.

38 — Cunningham v. State, 56
Miss. 269; Id. 31 Am. Eep. 360;
Boswell V. State, 63 Ala. 307; Id.
35 Am. Eep. 20; Guetig v. State,
66 Ind. 94, 32 Am. Eep. 99; O'Con-
nor V. People, 87 N. Y. 377, 41
Am. Eep. 379; State v. Eedimier,
71 Mo. 173, 36 Am. Eep. 462;
Howe V. State, 11 Neb. 537, 38
Am. Eep. 375; Graves v. State, 16

108

Criminal Law

§ 128. Non-expert witnesses are competent on question
of sanity. Non-expert witnesses, when they have been
so circumstanced as to observe the actions and the con-
versations of the defendant, are proper witnesses as to
his sanity when the same is brought in question and
urged as a defense to crime. Any person acquainted with
the defendant, his habits, his idiosyncracies, wounds, in-
juries, sickness or any other thing connected with his
conduct and habits, are competent witnesses, whether
they are experts or not. Non-experts are proper wit-
nesses to prove any facts in their knowledge touching
the sanity of the defendant. They will not be permitted
to give the conclusions of their opinions of the defend-
ant's mental condition, except such conclusions as are
drawn from the facts they themselves testify to touch-
ing the habits, actions and conversations, etc., of the de-
fendant.^^ Properly speaking, however, all witnesses
testifying as to their conclusions or their opinion of the

Vroom. 347, 46 Am. Eep. 778; Coyle
V. Com., 100 Pa. St. 573, 45 Am.
Rep. 397; Ortwine v. Com., 76 Pa.
St. 414, 18 Am. Rep. 420; State v.
Anderson, 43 Conn. 514, 21 Am.
Rep. 669.

39 — As to the defendant's men-
tal condition, with reference at the
time, to the crime charged, is pe-
culiarly a question of fact for the
.jury to be decided from all the evi-
dence of the case, before the act,
at the time, and after.

In Mississippi, New Hampshire
and Massachusetts, the courts have
held that nonprofessional witnesses
are not proper witnesses in insanity
cases, even if they do know the
habits, etc. These cases must be
taken with qualifications. Massio
V. Com., 24 S. W. 611; People v.
UoTiicUo, 99 Mich. 336, 58 Nev.
.".28; Upstate v. People, 109 111. 17r>;
(;iark v. State, 12 Ohio St. 483, 40

Am. Dec. 481; State v. Hockett,
70 Iowa 442, 30 Nev. 742; State
V. Pennyman, 68 Iowa 216, 26 N.
W. 82; Soge v. State, 91 Ind. 141;
People V. Warren, 59 Cal. 392;
Wood y. State, 58 Miss. 741 ; Yanke
V. State, 51 Wis. — , 8 Nev. 276;
Webb v. State, 5 Tex. App. 596;
State V. Archer, 54 N. H. 465;
opinion of neighbor and acquain-
tances, etc., supported by the above.
State V. Leachman, 3 S. Dak. 171,
49 N. W. 3; Patterson v. State, 86
Ga. 70, 12 S. E. 174; State v. Le-
rois, 20 Nev. 333, 22 Pac. 241;
Burh V. State, 40 S. W. 1004; Puher
V. State, 32 Tex. App. 557; State
V. Green, 40 S. C. 328, 18 S. E. 933;
TalTe v. State, 90 Ga. 459, 16 S. E.
204; McCalmon v. State, 96 Ala.
98, 11 So. 408; Hodge v. State,
97 Ala. — , 38 A. S. R. 145, 12 So.
164; State v. Robertson, 117 Mo.
049, 23 S. W. 1006; State v. Calla,

Idiots, Etc. 109

defendant's mental condition are to be regarded as ex-
perts, to a more or less extent, because they give merely
their opinions and conclusions, based upon the knowledge
they have of men in their general, ordinary and usual
offices.

§ 129. Expert witnesses, competent on hypothetical
questions. Exi3ert witnesses may be interrogated touch-
ing their knowledge of the defendant's mental condition,
based upon hypothetical questions. Such questions must,
however, be based upon facts proven in the trial. They
may be asked if persons similarly afflicted are sane or in-
sane. They may be asked upon the whole evidence, proved
in the trial (if the witness has heard the whole of the evi-
dence), whether, in his opinion, the defendant is sane
or insane. The witness must have heard the entire testi-
mony in order that he be competent.*'' As sustained by
the great weight of authority, an expert witness will
not be permitted to give his opinion of the sanity or in-
sanity of the defendant where the question of derange-
ment of the mind is controverted in criminal cases, be-
cause this would be submitting to the witness, to be de-
termined by him, that which is particularly the province
of the jury upon the whole evidence, to say.*^ There are
authorities, however, which hold that the doctrine an-
nounced above is not the correct rule, but insist that
the witness may be properly interrogated touching, and
his opinion may be given concerning, the defendant's
mind, founded upon the evidence of the whole case.*^

8 Wash. 512, 36 Pac. 474; State Dec. 154; State v. Jones, 50 N. H.
V. Nacton, 26 S. W. 551; Helmes v. 369, 9 Am. Rep. 242; State v. John-
State, 100 Ala. 80, 14 So. 864; son, 40 Conn. 136; People v. Gab-
Conde V. State, 24 S. W. 415. Non- butt, 17 Mich. 1; State v. Craw-
expert evidence. ford, 11 Kans. 32; State v. Feller,

40— Webb v. State, 9 Tex. App. 32 Iowa 49; State v. Klinger, 43

508; Burt v. State, 40 S. W. 1000. Mo. 127.

41 — 3 Greenf. see. 5; note to 42 — Webb v. State, 9 Tex. Apj^).

Com. V. Eodgers, 9 Met. 500; State 490.
V. Bartlett, 43 N. H. 224, 80 Am.

110

Criminal, Law

Hypothetical questions may be put in any form desired,
having a care to keep within the facts proved or within
the testimony of any particular witness touching the
point in issue. Questions, based upon a statement of
facts, not proven in the particular case, can in no event
be allowed. Questions, however, may be based upon a
part of the evidence, or upon the evidence of one wit-
ness, or ujDon the evidence of the prosecution alone.
When the state is pennitted to put hypothetical ques-
tions based upon the state 's case, with the understanding
that the defendant be pennitted to cross-examine, as to
the whole case.**

§ 130. Where the defendant becomes insane after con-
viction. If the defendant becomes insane after convic-
tion, and before sentence, the sentence must be sus-
pended and the execution deferred until he is cured. If
he becomes insane after the commission of the offense
and before trial, the trial shall be postponed until he is
of right mind. The court generally directs a conmiission
to inquire into his sanity. If the commission hnds him
to be insane the trial is then postponed. The statutes of

43 — Where a physician was asked
hypothetically, what was the cause
of insanity, based upon the evi-
dence offered, and it being objected
to on the ground tliat the question
was not based on the entire evi-
dence, and the facts of the whole
case, it was held, that the physician
being cross-examined as to the hypo-
thetical questions and also to all
evidence claimed to be omitted from
them, that it was proper to ullow
the evidence. Ziildoske v. Stale
(Wis.), 52 N. W. 778, 82 Wis. ij8().
The court in Hurt, 40 S. W. 1000,
quotes with ;ipprov;il tlic l;inguage
of the court in the (•.'isc of (!ooil

win V. State, 96 Ind. 550: "In
the examination of an expert wit-
ness, counsel may ciiibrnco, in a hy-
pothetical question, such facts as
he may deem esta])lished by the evi-
dence, and if opposing counsel does
not think all the facts established
are included in .such (juostion, he
nuiy include them in (jucstions on
cross examination." liodgers Ex-
I)ert Test. 39; Stevens v. Fields,
<) N. Y. 640, is as follows: "If
the testimony of an exjicrt is jtroper,
counsel may ask hypothetic:! 1 ques-
tions, assuming the existence of any
state of facts, wliich the evidence
fnirlv tends to just if v.

Idiots, Etc.

Ill

the several states make ample provisions concerning the
procedure in this character of cases.

INFANTS

§ 131. Infants under seven years of age, etc. Infants
are not responsible for criminal conduct until they reach
the age of accountability. At the common law children
under the age of seven years are absolutely incapable of
conceiving a criminal intent.** This is an irrebuttable
presumption of law. The age of discretion was four-
teen years. Between the ages of seven and fourteen a
mischievous discretion can be shown, and a wicked intel-
ligence may appear. A crime committed between the
ages of seven and fourteen years may or may not be sub-
ject to the prosecution of the state, as the infant may be
shown to have sufficient reason and to know right from
wrong, and to know the particular act is wrong." The

convicted of obtaining goods un-
der false and fraudulent pretenses.
People V. Kendall, 37 Amr. Dec. 240,
25 Wend. 399; Martin v. State
(Ala.), 8 So. 858, 80 Ala. 602. An
infant may be convicted on his
own confession, if the doli capax
is otherwise shown. Jones v. Cone,
86 Va. 740, 10 S. E. 100; People
V. Powell, 87 Cal. 348; Id. 25 Pac.
481. For proof of infant 's age,
see Duncan v. State (Tex.), 15 S.
W. 407. The law presumes that
infants between the ages of seven
and fourteen are incapable of com-
mitting a crime, and it is incumbent
on the state to prove that the de-
fendant had sufficient capacity to
know that he was committing a
crime. And if you, the jury, find
that a crime was committed and
that the defendant was under four-
teen years of age, at the time of
its alleged commission, and if the
state fails to show a mischievous
discretion, you should acquit (held

44— State v. Yeargan, 117 N. C.
706, 23 S. E. 153, 36 L. R. A. 196
and note; Angelo v. People, 96 111.
209, 36 Am. Rep. 132; Godfrey v.
State, 31 Ala. 823, 70 Am. Dec. 494,
and note.

45 — Godfrey v. State, 31 Ala.
323, 70 Am. Dec. 494. Crime com-
mitted between the ages of seven
and fourteen years creates a prima
facie case of incapacity, but this
prima facie case may be rebutted,
by showing that discretion and
judgment, deemed by the court to
be sufficient to form a criminal in-
tent.

See the following cases for a
discussion of the inability of per-
sons under fourteen years of age,
conceiving a criminal intent. Law
v. Com., 40 Amr. Rep. 750, 75 Va.
885; Hill v. State, 36 Amr. Rep.
120, 63 Ga. 678; Williams v. State,
45 Amr. Dec. 536, 14 Ohio 222;
State V. Aaron, 7 Amr. Dec. 592,
1 South 231. An infant may be

L12 Criminal Law

presumption of incapacity continues up to and includes
the full period of fourteen years, and the burden of proof
is upon the state to show the dolum capax of the de-
fendant.

§ 132. Person under the age of fourteen years. A boy
under the age of fourteen years is held to be incapable
of committing rape. This is also an irrebuttable pre-
sumption, but a boy under the age of fourteen years can
be convicted of an assault to commit rape.*^ He can also
be convicted as a principal in the second degree in any
other felony.*' This presumption, that a boy cannot com-
mit rape, is based upon the law of nature that the phys-
ical ability to commit the crime is wanting; not that
there is a lack of mental understanding. In certain
crimes (made so by statutory provisions) the age of re-
sponsibility is placed as high as seventeen years. The
prosecutrix in a charge of rape is considered incapable
of giving consent to an act of carnal intercourse when
she is under the age of twelve years, at common laAV.
Many of the state, however, place the age of consent at a
greater age. This presumption is based upon the physical
development of females.*^ The several states have statutes

to be correct charge). State v opnient from which capacity may

Fowler, 52 Iowa — , 2 N. W. 983. l)c deduc'ed. 10 So. 722.

46 — In the case of McKinney v. In Louisiana a boy under four-
State, it was held that under the teen years of age may be convicted
age of fourteen at the time of an of rape if it is shown that he has
alleged assault to rape, evidence is in fad reached the age of puberty,
inadmissible in point of fact to State v. Nickerson, 45 La. Ann.
show that the defendant could com- 1172, 14 So. 134.
mit the offense; and whether this 47—1 East P. C. 44G; 2 Bishop
should be adopted in the State of 1134.

Florida or not, a conviction for such 48 — 4 Bla. 21G. In the State of

an attempt cannot be sustained, Ohio it has been held that the pre

where there is positive and uncon- sumption of incapacity may be

tradicled evidence, that the defend- overcome by proof, showing that

ant was a little under the age of a lioy under fourteen years of age

fourteen years, and where there was is actually arrived at puberty. Wil-

no eviilcnce of his capacity to com- liams v. State, 14 Ohio 222, 45 Am.

mit rape or of his physical dcvel- Dec. 536.

Idiots, Etc.

113

in many instances, reducing the penalty in cases where
the defendant's age becomes below a certain figure. In
Texas where one charged with murder is under the age
of seventeen j^ears he cannot be given the highest pen-
alty, but the burden is upon him to show that he is below
the exempted age.

§ 133. Rule in the southern states. In many of the
southern states the presumption that females under the
age of twelve years are incapable of giving consent to an
act of carnal intercourse is rebuttable. In the state of
Texas the age fifteen years is the period at w^hich females
are by statute enabled to give consent to an act of carnal
intercourse. The burden of proof is upon the prosecu-
tion, however, to show incapacity to give consent. The
clearest and most positive proof in which infants under
the age of fourteen years are charged is required of the
prosecution.*^

MARRIED WOMEN

§ 134. Presumptions as to married women, etc. Mar-
ried women are presumed, when they commit a crime
in the presence of their husbands, to be under coercion.
But where the wife does the act independently she will
be held to act upon her own free will, free from her hus-
band's coercion.^®

49— Angelo v. People, 96 lU. 209;
Id. 3d Amr. Rep. 132. The prosecu-
tioD is required to prove two things :
1. That the boy committed the
crime. 2. That at the time of
committing the crime he had knowl-
edge that he was doing wrong.
From seven years to fourteen, the
burden of proof is on the prosecu-
tion to show that a wicked discre-
tion exists. The prisoner between
these ages is presumed to be inca-

C. L.— 8

pable of forming a criminal intent.
3 Greenf. sec. 4, Redfld. Ed. P. 6.
50 — The court in the case of the
U. S. V. De Qui"?eldt, 2 Cr. L. Mag.
p. 213-214: I have had serious
doubts whether this common law fic-
tion has a place in the criminal
jurisprudence of the United States.
Our offenses are purely statutory,
and we do not look to the common
law or to the law of the states, to
furnish us any element or character-

114

Criminal Law

§ 135. The presumption as to married women does not
extend to felony. At the common law married women
when committing any criminal act, that is, any felony
in the presence of their husbands were presumed to be
under their compulsion, but murder, treason and rob-
beiy was an exception to the rule.^^ The burden of proof
is on the prosecution to show that the wife acted of her
own free will, independentlj^ of her husband. This can
be overcome by proof that the husband could not coerce
the wife upon account of his physical condition, or that
he was in such proximity as to bo incapable of coercing

istie of an offense. I am inclined
to believe it is the logical results
of the doctrine, that our crimes are
statutory and that we have no com-
mon law crimes, except so far as
the statutes have adopted it, in mat-
ters of evidence and practice that
no exemption exists, unless Congress
defines and declares it. The pre-
sumption of coercion may be a rule
of evidence, but the exemption of
the wife on account of it is a rule
of law that Congress has not de-
clared. I have not found this point
discussed, nor any case recognizing
this doctrine of marital coercion,
in the Federal courts. There are
cases recognizing insanity and per-
liaps infancy, as a defense, but gen-
erally the cases are those of com-
mon law crimes on the high seas,
or elsewhere, of which these courts
have .jurisdiction, and which are
defined not by statute, but by the
adoption of Congress as a defense
in its fullest scope. Insanity was
recognized as a defense to statutory
ofTcnsi'H of the United States. See
r, Fed. 277; U. S. v. Terry, 42 Fed.
317.

.'51— People v. Wright, 38 Mich.
744, 31 Amr. Kep. 331; People v.
Wright, 31 Anir. Hep. 381, 38 Midi

74-1: "A married woman's respon-
sibility for crime, is variously stated
by the text writers. From a close ex-
amination and comparison of the
cases and text writers, the general
rule admitted by all, seems to be that
if a wife commits a felony, with
the exception of murder and treason
and perhaps some other heinous fel-
onies, in the presence of her hus-
band, it is presumed in the absence
of evidence to the contrary, that
she did it under constraint from
him and therefore excused. But
autliorities are equally agreed, and
thai tliis presumption is only prima
facia and rebuttable. But this is
only the presumption of law, so that,
if upon the evidence, it clearly ap-
pears tliat tlie wife was nut drawn
to the on"ense by the Inisband, but
that she was the principal inciter
of it, she is guilty. This is the doc-
trine in all the states. There is lit-
tle in the jjreseut organization of
society upon whidi tlie ])rima facia
presumplion itself can stand, and
certainly nothing calling for an ex-
tension of the ])resuni])lion. The
st.'ilntory rule is more in accord.ance
with the spirit of the age in which
we live. ' '

Idiots, Etc.

115

Iier actions; such as the Imsband is a confirmecl invalid
or a confirmed cripple. ^^

§ 136. Common law rule modified by statute. The
common law rule has been modified in many jurisdictions
and perhaps others have abolished it entirely. The old
English law considered the wife subject to the control
and arbitrary will of the husband; practically taking
from her her individual liberty and freedom of action.
In return for this obedience the husband was supposed
to protect her from the consequences of her criminal acts
committed in his presence.^^ In the absence of statute
changing the common law, it seems that a wife would be
excused for a crime committed in the presence of her
husband. At least the rule of the common law in this
respect is supposed to be the rule of action in this coun-
try.

52 — The presumption is conclu-
sive when the husband and wife act
together. 1 Greenf. sec. 28; 4 Bla.
28-29. Tliere seems to be some
doubt whether she would be ex-
empt in cases of misdemeanor.
Com. V. Churchill, 136 Mass. 148.

53—3 Greenf. 7; 4 Bla. 28-29;
1 Hale P. C. 49: "The wife is
not excused by the mere presence
of her husband for any criminal act
done voluntarily by her, but in or-
der for lier to be excused it must
appear that violent threats, com-
mand and coercion was used by him.
When the husband and wife reside
together, he is the head of the
house, which ever may be the owner
or the lessee. In order to hold her
liable criminally for permitting
gaming therein, while he is present,
it must appear, that she was active
in granting permission, not merely
that she was passive in the matter
and took no measure to prevent the

game. Bell v. State, 92 Ga. 49, 18
S. E. 186.

In a trial of a married womaii for
mayhem committed in the presence
of her husband, where by her own
evidence she exonerated him of all
complicity in the crime, the court
properly refused to instruct the jury
either tliat, if the husband was
present they must acquit, or that
if there was no evidence, that the
defendant 's husband disapproved of
the acts of defendant, and unless
the fact is established they must
acquit.

The prosecution for murder shown
to have been committed by the hus-
band and wife where upon the trial
of the wife alone, the court prop-
erly charged the jury, that they
should consider the defendant a
femme sole and properly refused to
charge that unless defendant acted
willingly, she should be acquitted;
tlie presumption that the wife acted

116

Criminal Law

§ 137. Prima facie presumption only. The rule is well
established that the presumption is prima facie, and can
be rebutted by any competent evidence. If the evidence
tends to show that the wife acted independently of her
husband she wdll be held to be responsible. In fact there
is no good reason for the rule. Observation and experi-
ence teach us that a husband is just as likely to be in-
fluenced by the wife as the wife by the husband under
the conditions of society in this country.^ Although Mr.
Starkie, Blackstone, Lord Hale, and the late Mr. Green-
leaf hold that the wife was completely exempted from
the responsibility of the crime when committed in the
presence of the husband.

§ 138. The defendant is not responsible for crime he
is forced to commit. All persons forced to commit a
crime, through force, threats, or other compulsion, are
excused from prosecution for their acts.^^ This rule is
restricted to crimes which do not affect the life of an
innocent person. If the purpose is to force another to
commit a homicide, no force, however great, will justify

under the coercion of her husband,
not being allowable in cases of hom-
icide. Bibb V. State (Ala.), 94 Ala.
31, 10 So. 50G.

54 — It may be proper to say that
this defense of marital coercion, as
a protection to women engaged in
tlic commission of crimes, is not a
favored one and at least in mod-
ern times, has lost all solid foun-
dation for its existence. It has
been abrogated in some states in
tlieir Blatutes and miglit well be
in all. B. & H. Lead. Cas., 2nd ed.,
81 and notes. It is an almost ab-
surd in this day to protend that
husbands can or do coerce their
wives in commission of crimes, and
where coercion aj)pears as a fa<'t,

the court or jury would always al-
low it to mitigate punishment, as
it miglit well be a recommendation
to executive clemency; but to hold
it to be presumed as a fact in all
cases where the husband is pres-
ent, is a relic of the belief in the
ignorance and pusillanimity of
women, which is not, and perhaps
never was well founded, gives them
no credit. " U. S. v. Dequel-
felds Cr. L. Mag. 2i:5, decided in
1881 West. Dist. Tenn. Morton and
Wife V. State (Tenn.), 209 S. W.
644, 4 A. L. K. 266 and note.

.013 — 4 Bla. Com. 30; Standloy
V. State, 16 Tex. App. 392; Stale
v. Dowel), 106 N. C. 722, 19 Am.
St. 568.

Idiots, Etc.

117

him ill his act, since no one has the right, even to the
sacrifice of his own life, to kill an innocent person. This
is illustrated by an example cited by the old writers on
the law, as where persons in a shipwreck have no right
to kill a member of the crew or passengers, not even
where the danger is imminent that all will starve unless
some of them suffer their bodies to furnish food for the
balance. Sir William Blackstone contends if two per-
sons are upon a board upon the waters of the sea and it
is evident that both will perish unless one or the other
is thrown overboard, the one who kills the other is jus-
tified in his act.^^

56 — In the case of tlie United
States V. Holmes, Mr. Justice Bald-
win I. Wall, Jr. 1: "An illustra-
tion of the principle, occurs in the
ordinary case of self-defense,
against lawless violence, aiming at
the destruction of life, or design-
ing to inflict grievous bodily harm
to the person; and within this
range may fall the taking of life
under other circumstances, where
the act is indispensably requisite
to self existence. For example:
Suppose that two persons, who owe
no duty to each other, that is, not
mutual, should by accident not at-
tributable to either, be placed in
a situation where both cannot sur-
vive. Neither is bound to the other 's
life by sacrificing his own; nor
would either commit a crime in sav-
ing his own life in a struggle for
the only means of safety.

Of this description of this class
of cases, are those which have been
cited by counsel, from writers on
natural law; cases which we rather
leave to your imagination, than
minutely describe.

Again I state, that when the
great "Law of Necessity" does ap-

ply, and is not improperly exer-
cised, the taking of life is divested
of unlawfulness. The slayer must
not be under any obligation to make
his own safety secondary to the
safety of others. A familiar prin-
ciple illustrates itself in the obli-
gations, which rest upon the owners
of stages, steam boats and other
vehicles of transportation.

In consideration of the payment of
fares the owners of the vehicle are
bound to transport the passengers
the place of destination having in all
emergencies the conduct of the jour-
ney, and control of the passengers,
the owners rest under the obligation
for care, skill, and general capacity:
and if from defect of any of these
requisites, grievous injury is done to
the passenger, the persons employed
are liable. The passenger owes no
duty, but submission. He is under
no obligation.

Nor is the passenger bound to
labor, except, in cases of emer-
gency, where his services are re-
quired by unanticipated and uncom-
mon danger.

Such is the relation which ex-
ists on shipboard. The passengers

118

CRIMI^"^AL Law

§ 139. Fraud or subterfuge duress. Upon principle
there seems to be another character of compulsion or

stand in a position different from
that of an officer and seamen. It
is the sailor who must encounter the
hardships and perils of the voyage.
Nor can this relation be changed
when the ship is lost by tempest or
other danger of the seas, and all on
board have betaken themselves for
safety to the small boats, for the
imminence of the danger cannot ab-
solve from duty. The sailor is
bound, as before, to undergo what-
ever hazard is necessary to preserve
the boat and the passengers. Should
the emergency become so extreme as
to require the sacrifice of life,
there is no reason why the law does
not remain the same. The jjassen-
ger, not being bound, either to
labor or to incur the risk of life can-
not be bound to sacrifice his exist-
ence to preserve the sailors. The
captain, indeed, and sufficient num-
ber of seamen to navigate the boat
must be preserved; for except these
abide in the boat all will perish, but
if there be more than enough sea-
men to manage the boat the super-
numerary sailors have no right for
their safety to sacrifice passengers.
The sailors and passengers, in fact,
cannot be regarded as in equal posi-
tions. The sailor, to use the lan-
guage of a distinguished writer,
owes more benevolence to another
than to himself. He is bound to set
a greater value upon the lives of
others than upon his own. And while
we admit that sailor and sailor may
struggle with each other for the
])lank, which can save l)ut one, we
think that if the p.-iHsengcr is on tlic
jdank, even tlie law of necessity jus-
tiflcH not, the sailor who takes it
from liiiii. This rule niav be deemed

a harsh one towards the sailor, who
may have done his duty thus far,
but when the danger is so extreme
that the only hope is either sacrific-
ing a sailor or a passenger, any
alternative is hard, and would it
not be the hardest to sacrifice a pas-
senger, in order to save a super-
numerary sailor? If the sources of
danger have been obvious, and de-
struction ascertained to be about to
arrive, though at some future time,
there should be consultation and
some mode of selection fixed by
which those in equal relations may
have equal chances of life. By
what mode then should selection be
made? The question is not without
difficulty. Nor do we know of any
rule prescribed either by the statutes
or the common law, or even by spec-
ulative writers upon the laws of
nature. In fact, no rule of general
application can be prescribed for
contingencies, which are wholly un-
foreseen. There is, however, one
condition of extremity for which all
writers have prescribed the same
rule. When the ship is in no dan-
ger of sinking but all sustenance is
exhausted, and the sacrifice of one
person is necessary to appease the
hunger of the others, the selection is
by lot. This is resorted to as the
fairest mode, and is in some sort an
appeal to God for the selection of
tlie victim. For ourselves we can
conceive of no mode so consonant
both to humanity and justice, and
the occasion must be peculiar which
will dispense with its exercise. If,
indeed, peril instant and over-
wlii'Iming, leaving no choice of
means and no monu'nt for deliberji-
tion, then of course, tliere is no

Idiots, Etc.

119

duress that will excuse the commission of crime. Thus
where by a subterfuge or fraud A induces B to take a
medicine, the consequences of which is to produce a
frenzy or unconsciousness of action, and he commits a
crime while in this condition. If, however, B takes the
drug, knowing what it is and the effect it will have upon
his mind, it will not excuse his action. If he is forced
to take the drug he will not be respons-ible. Thus, again,
where a woman, upon the representations of another, is
induced to take a drug, being innocent of the effects
upon her, thereby commits an abortion upon herself, will
be innocent of any crime.*'''

power to consult to cast lots in such
way to decide. But, even where the
final disaster is thus sudden, if it
has been foreseen as certainly to
occur, or if no cause of danger has
arisen to bring on the closing catas-
trophe, if time has not existed to
cast lots, and select the victim, then
as we have said sardition should be
adopted. In no other than this or
some other like way are those hav-
ing equal rights, put upon equal
footing, and in no other way is it
possible to guard against partiality
and oppression, violence and con-
flict. What scenes more honorable
can imagination draw than a strug-
gle between sailor and sailor, pas-
senger and passenger, or it may be a
niLxed affray in promiscuous en-
deavor to destroy each other. When
selection has been made by lots the
victim yields, of course, to his fate,
or if he resists force may be
employed to coerce submission.
Whether or not a case of necessity
has arisen or whether the law under
which death has been inflicted has
been so exercised as to hold the exe-
cutioner harmless cannot depend
upon his own opinion, for none may
pass upon his own conduct Avhen it

affects the rights of others, and
especiallj' when it concerns the lives
of others. We have already stated
to you that by the law of the land
homicide is sometimes justifiable,
and the law defines the occasion when
it is so. The transaction, there-
fore, must be justified by the law,
and the person accused rests under
the necessity of satisfying those
who judicially scrutinize his case —
that it really transcended ordinary
rules. In fact, any other principle
would be followed by pernicious re-
sults, and moreover would not be
practicable in application. Opinion
or belief may be assumed whether it
exists or not, and if this mere opin-
ion of the sailors will justify them
in making a sacrifice of the passen-
gers, of course the mere opinion
Avould in turn justify these in mak-
ing a sacrifice of the sailors. The
passengers may have confidence in
their ability to manage the boats,
or the effort of either sailors or
passengers to save the boat may be
clearly unavailing.

57 — Harris v. United States, 8
App. D. C. 20, 36 L. E. A. 465, and
note.

120 Ckimixal Laav

§ 140. Guilt always follows those who have the intent.
Fraud or subterfuge will not excuse a person from the
responsibility of its effects. It is the same in principle,
whether the fraud or subterfuge is for the purpose of
committing a civil or ciiminal act. Where A procures
B to commit a crune by paying him a hundred dollars,
both A and B are guilty. If A procures B to commit a
crime by paying him a hundred dollars, but B is under
the age of seven years, is an idiot or lunatic, A alone
is guilty, because he has resorted to the fraud and subter-
fuge. In both instances A's intentions are the same.
Again, if A overcomes the will of B by force or subter-
fuge, A is guilty and B is innocent, because B did not
intend to do an unlawful act. Thus, suppose A procures
B to do a law^ful act, but the result of such act ends in
a crime, A would be guilty of the crime and B innocent,
provided A intended the particular result obtained. In
criminal law this principle is universal that where the
result of an act can be traced, however remote may be the
intent, the person entertaining such intent will be re-
sponsible for the result.

CORPORATIONS

§ 141. Corporation held for crime mala prohibita.

Natural persons possess certain natural rights. These
rights are inalienable and cannot be abridged by the
law. They are the right to live, the right to personal
security, the right to acquire and possess property, and
such others which, perhaps, do not so much belong to and
accompany the person, as, such as relate to comfort and
personal onjoyinont. Tlio violation of these natural rights
are crimes, being natui'al wrongs. Punisliment foHows 1]ie
violation of these rights. Whilst tliese rights accompany
and f"oll(»\\ the person into society, yet there ai"e other
rights of llie same natnre, hnt of less im]i(>iiance, upon

Idiots, Etc. 121

wliicli certain restraints are placed, and wliicli, by eoni-
mon and universal consent, are conceded for the benefit of
society. Thus the natural person is prohibited or com-
manded to do certain things for the benefit of the commu-
nity, which, in the absence of social order, would be his
natural right to do or not to do, as his inclination might
suggest. The violation of these restrictions are known as
crimes mala prohibita — wrongs prohibited. There is a
class of artificial persons who derive their rights and
powers from the laws of the state, and in no sense have
rights which belong to and attach themselves as inde-
pendent attributes. The law creates them and they have
no rights except those specifically delegated to them. They
are commanded or prohibited by the law to do or not to do
those things which are supposed to be for the good of
the community. A violation of any of these prohibitions
or commands of the law are crimes mala prohibita. In
this sense artificial and natural persons are upon exactly
equal footing before the law. The artificial person may
violate one of these natural rights, hence punishment
would follow as a natural right. It may violate one of
the commanded or prohibited rights and punishment
would follow as a legal right. The duties and obliga-
tions due society are just as binding upon the artificial
person as upon the natural. These artificial persons,
known as corporations, have no corporeal existence, and
hence corporeal punishment cannot be inflicted. Thus
they cannot be punished for murder, robbery, theft,
arson, treason, or any other felony. As natural persons
the punishment for these crimes is either death or con-
finement in the penitentiary. Again, artificial persons,
not possessing the spiritual, mental or physical attributes
of the natural persons, cannot form the necessary evil or
wicked intent to commit these crimes, hence they are
exempt from punishment on common law principles. In-
dividual persons, who compose the concrete person, may

122

Criminal Law

be punislied if, through their procurement or consent,
the artificial person is made the means of perpetrating
any of the crimes of felony or treason. Upon legal prin-
ciple there seems no reason why the individual members
of a corporation should not be punished, at least as con-
spirators, where the crime is committed by the common
means to a common end. But in cases mala prohibita,
where there is no specific intent required and no cor-
poreal punishment inflicted, the artificial person may be
punished criminally to the same extent as the natural
person. There is no reason why a corporation could not
be punislied by fine for negligently and wilfully killing
a person, or for negligently and willfully setting fire to
another's property, or any other statutory felony.^^

§ 142. Early history as to corporations. The early
judicial history concerning corporations reveals that, as
such, they were not subject to indictment. It is attributed
to Lord Chief Justice Holt that he held in an early case
that ^'coi-porations were not indictable, but that the in-
dividual members were."^® It is, however, denied in a
latter case by Judge Green that Lord Ilolt made such a
ruling, that the language attributed to him was, in fact,
an interpolation by his reporter.^^ Judicial histoiy de-
clares that for a time the courts held that coi*porations

59— Com'rs v. Boston & M. R.
Co., 8 Anir. and Eng. R. R. Co. 298 ;
Com. V. New Bedford Bridge
(Mass.), 2 Gray 3.39; ITacksct v.
Amos Keag Mfg. Co., 44 N. H.
105; Easton v. Same, 44 N. H. 143;
R. R. Co. V. Duqucsne Burough, 10
Wright (Pa.) 223; (^uoen v. Brad-
ford Navigation Co., 6 Best & Smith
029; Com. v. Pulaski Co. Agr. &
Mech. Associ.-ition, 17 S. W. 442
(Ky.); Mill.rdth v. St.'ito, i:{S Wis.
354, 120 N. W. 252, 131 A. S. K".
1012, ;in(l ruite. Sec following

cases: State v. Belle Springs
Creamery Co., 83 Kan. 389, 111 Pac.
474; Louisville R. Ry. Co. v.
Com., 130 Ky., 114 S. W. 343, 132
A. S. R. 408; Com. v. Illinois Cent.
R. Co., 152 Ky. 320, 153 S. W. 459,
45 L. R. A. (N. S.), 334; Southern
Ry. Co., 125 Ga. 287, 54 S. E. 100,
114 A. S. R. 203.

00—12 Mod. 529.

01— State V. Morris & Essex R.
n. (V)., 23 N. J. Sup. 304; Reg. v.
• ■(.iiiilv of Wilts, 1 S:ilk. 359.

Idiots, Etc. 123

were ]iot indictable for a misfeasance or the doing of an
act prohibited by law, but were indictable for a non-
feasance, or the failure to do a duty imposed by law.®^
These distinctions between misfeasance and nonfeasance
are without a difference in essential respects. It is now
well settled that corporations may be indicted for both
classes of offenses upon the principles of the common law ;
yet, however, upon the principles of the common law,
indictment cannot lie against a corporation for offenses
deriving their criminality from evil intention. Malice
cannot be predicated of a corporation. They cannot be
guilty of mui^der, treason, perjury, rape, robbery or
burglaiy. There are also punishments that cannot be
inflicted because inconsistent with their nature. There
is no reason to suppose that corporations should not be
held criminally for the acts of their agents.^^ The crim-
inal law holds all parties connected with a criminal of-
fense responsible to the public, whether the actual per-
petrator or not. It is said that the agent is individually
responsible; a refutation is found to that rule of the
criminal law ' ' that the principal is guilty and responsible
for the acts of the agent. ' ' This principle of the criminal
law is in all respects similar to the relation existing be-
tween principals and agents in the civil law. If the
offense is a misdemeanor all are guilty, if a felony those
who authorize the commission of the offense are guilty
as accessories if not present at the commission.

§ 143. For what acts corporation may be indicted.

Corporations may be indicted for erecting and continu-
ing a building; for leaving railroad cars in the street; for

62—0. M. V. New Bedford Bridge County Agr. Meeh. Assn., 17 S. W.

Co., 2 Gray (Mass.) 345; Queen v. 42 (Ky.).

Birmingham & Glouster E. E. Co., 63 — Stewart v. Waterloo Turn

9 C. & P. 469; Mawer v. Leister, 9 Verein, 71 la. 226, 32 N. W. 275,

Mass. 250; Susquehanna & Bath 60 Amr. Eep. 786; Overland Cotton

Turn Pike Co. v. People, 15 Wend. Mills Co. v. People, 32 Colo. 263,

(N. Y.) 276; Com'rs v. Pulaski 75 Pac. 924, 105 A. S. E. 74.

124 Ckiminal Law

iieglectiug to repair a highway, for permitting stagnant
water to remain on their premises ; for libel ; for Sabbath
breaking by doing work on Smiday in violation of stat-
ute ; ^ for failure to give signals of approaching trains
where the safety of travelers on intersecting roads de-
mands it; for cutting through and obstructing a high-
way; for keeping a disorderly house; for permitting gam-
ing; ^^ for permitting a pool of water to form upon its
land and become stagnant and to percolate upon land
joining a canal.^^ In fact, an indictment will lie for a
failure to do w^hat the law requires to be done, or for
doing a legal thing in an illegal mamier. It is well set-
tled in the courts in this country that a corporation is in-
dictable for a misfeasance as well as nonfeasance. They
may be indicted for a nuisance, whether arising from a
misfeasance or a nonfeasance.

§ 144. Where the law cannot reach, the legislature may.

In concluding this subject the observation is pertinent
that in all cases where the common law cannot be made
to reach the evil, by reason of the inability to fonn an
evil or malicious intent or because the punishment cannot
be inflicted, as upon natural persons, the proper power to
inflict appropriate penalties may be extended by the leg-
islature. Corporations may and should be made to yield
to proper penalties or fine for injuries inflicted upon the
public; to do this is perfectly consistent with legal prin-
ciples. If the corporation, through the negligence of its
officers, or mismanagement, or the fault of its employees,
commits the crime of homicide, should it be exempt be-
cause a corporation is an artificial person, composed of
many actual persons'? Individuals are criminally re-

64 — Com. V. Pulaski Co. Agr. & 4, title Corporations. See People

Mcch. Ass'n, 17 S. W. 442 (Ky.). v. White Lead Works, 82 Mich. 471,

G5— State v. Passaic Co. Agr. 4G N. W. 735, 9 L. M. A. 722;

Soc, 54 N. J. L. 54G, 23 A. CSO. Htato v. Portland, 74 Mo. 268, 43

66 — Amr. & Kng. Encycla. L. vol. Am. iJcp. 586, contra.

Idiots, Etc. 125

sponsible for the negligent killing of another, and why-
should a corporation escape ? If the servant or the agent
is guilty of negligence he is also responsible on his own
account. This reasoning is applicable to an almost in-
conceivable variety of wrongs committed by corporations
or their agents.

IGNOEANCE OP THE LAW

§ 145. Ignorance of the law excuses no man. Ignor-
antia legis neminem excusat is a maxim of the law.
Every person is presumed to know the law. This is an
irrebuttable presumption.^'' The law must be published.
The citizens are entitled to this concession on the part
of the government. Most states have constitutional or
statutoiy provisions regulating the manner of publishing
the law. In the absence of organic provisions the legisla-
tures make necessaiy provisions, governing the publica-
tion of the law. Caligula, that most tyrannical of Roman
emperors, issued a decree from the throne commanding the
laws to be written, but counteracted the effect by order-
ing them placed at such an elevation that the citizens
could not read them. The law of the Twelve Tables was
plainly written and affixed to the rostia, in front of the
Curia Hostilia, and all citizens were permitted to read the
law, and it was usual for the citizens to commit the laws
to memory, so, from his earliest youth, the Roman knew
the laws of his country.®* It is the duty of the govern-
ment to make provisions for the publication of the laws.

§ 146. Justice requires that general rules have excep-
tions. It is a well recognized maxim that all general
rules have exceptions. No human foresight can create
a postulate covering all possible cases arising in human
action. This is also true of the rule that all men are

67 — Com. V. Bagley, 24 Mass. 68 — Eidpath's Universal History,

279; Wharton v. State, 37 Miss. vol. I, 686.
379; Walker v. State, 2 S^van, 287.

126 Ckiminal Law

presumed to know the law of the country where they
live and where they do business. The jurist and the
casuist agree in one proposition in this, that public pol-
icy demands for the protection of society that the pre-
sumption have a universal application. Both admit,
however, that there are many instances when the harsh-
ness of the rule should be relaxed in the furtherance of
justice.^

§ 147. Exceptions to the rule that all men are pre-
sumed to know the law. The exceptions to this rule are
principally embraced in such crimes as require a special
intent."^® Thus, in crimes malum in se all persons are
presumed to know that they are wrong. That, by an in-
ate consciousness, we are infonned of the elements of
wickedness in such crimes. "VVe cannot claim exemp-
tion from guilt arising from committing any crime
possessing such elements. We know that it is wrong to
commit them, whether the law as such expressly pro-
hibits them or not. Thus in crimes, such as murder,
theft, robbery, burglary, etc., we are, by tlio instinct of
our nature, advised of tJie wickedness of such acts, and
it requires no legislator to define them in order to make
it wrong to commit them. Therefore ignorance that the
law has made such acts crimes w^ill not excuse the guilt.

§ 148. Exception in the case of larceny of property.

All exception is here given: Where one believes he has
the right to personal property and takes it and appro-
l)riates it to his own use. The main element of theft is
the frandiilont iiit(Mit to take ilie property of another and

G9— Peoplo V. Anderson, 44 Cal. 70— Cuttlcr v. State, 36 N. J.

fw; .Stem v. State, 53 Ga. 229, 21 L. 125; Com. v. Cook, 1 Rob. (Va.)

Am. I?ep. 200; State v. Gardner, 720; Com. v. Cornish, Binn. (Ta.)

5 Nev. :i77; Crahtree v. State, 30 242; State v. Gates, 17 N. II. 373;

Ohio St. 382; Vatcs v. People, 32 Lesson v. State, 62 I ml. i:!7.
N. Y. 509; Farbadi v. State, 24
Ind. 77.

Idiots, Etc. 127

appropriate it to the taker's own use and benefit. If,
therefore, property is taken under the mistaken belief
that the taker had the legal right to it, there can be
no criminal intent to appropriate it, notwithstanding it
may afterwards transpire that he did not have any
right to it. The belief of the legal interest in the
property must be founded upon some color of right,
creating an honest belief that the property belonged to
the taker, before he will be excused. Where the question
is one of intent it is competent to show one's ignorance
of an existing law. So, also, in cases of malicious mis-
chief if the defendant honestly believes he has the right
to do certain acts under the law and it afterwards turns
out that the law makes such acts penal. Thus, suppose
**A" believes he has a right, under certain facts in his
possession, to make a trespass upon another's property,
but that it afterwards turns out that it is illegal, he will
be exempt from legal responsibility."''^

§ 149. Further discussion of the rule. The proposition
reduced to a rule means that if a person commits an act
that would otherwise be criminal, ignorance of the law
making the act criminal may be put in evidence for the
purpose of negativing a malicious intent and for the fur-
ther purpose of affirmatively showing the act to have
been honestly made.'''^ Thus, where one charged with
perjury shows that he sought the aid of counsel as to
whether a certain oath would be contrary to the law. So
in an assault where the defendant honestly believes he
has a right to make it. Again, wdiere one acts in self
defense upon appearances of danger he believes it is nec-
essary to act in order to preserve his own life he is
tlierefore guiltless. It appears to us that if the de-
fendant show^s himself to have acted in good faith and

71— Evans v. State, 15 Tex. App. 72— Eex v. Esop, 7 Car & P.

31; State v. Harris, 17 Mo. 379; 457; Eex v. Keed, 7 Car & P. 303;
State V. Bond, 8 Iowa, 540. Eex v. Langford, 6 Car & M. 602.

128 . Criminal Law

nnder tlie mistaken belief that he had the right to do as
he did the ignorance of hiw may be shown in miti-
gation at least J^ Thus, those who are specialists in any
line are held to a stricter responsibility in their actions
and the performance of their duties than others. Upon
questions of law, lawyers are held to a stricter responsi-
bility than persons who do not make the law a specialty.''*
Physicians and specialists in medicine are held to a
stricter caution in administering drugs than other per-
sons. Thus, a physician who negligently administers
poison or directs uninformed persons to administer
it will be guilty of manslaughter in the event the person
dies, and perliaps guilty of an assault if the person re-
covers. Those persons who possess greater opportunities
of acquiring knowledge or information concerning spe-
cial or particular things, are held to a higher degree of
responsibility than others whose opportunities and
knowledge is restricted. So those who operate machin-
ery and other things Avhich require special education, or a
high degree of skill, and the like, are required, as a mat-
ter of law, to exercise a high degree of caution in the per-
foniiance of their respective duties, and where they fail
to do so, ignorance that the law puts this burden on them
or ignorance or want of skill in the performance, will not
excuse them, and cannot be used as a defense.'^

§ 150. Where the laws are plain and beyond doubt. No
person can be pennitted to come into court and offer as
a defense, either in a civil or criminal case, his ignorance
of the law. As hereinbefore explained, he may offer his
igniorance of the law or his honest belief that the law
was otherwise in justification of his acts. Where the

73 — Sfo snnic nuthoritios as above. C. D. 235; State v. floodenow, Gf)

74_Marrill v. Oraliain, 27 Tex. Mc. 30; Dickens v. State, 30 Ga.

— ; Wilson v. Rush, 20 Tex. 421; 383; Summer v. Ruler, 50 Ind.

Riley v. CavanouRh, 29 Tnd. 435. 341, 10 Am. T?op. 718.
75_U. S. V. 14 rackaRCH Gilp.,

Idiots, Etc. ' 129

laws are plain and beyond doubt intent may be presumed
from the failure to know the law. Thus, as in the case
of the woman who insisted upon the right to vote when
all the law is plainly against if^

IGNORANCE OF TACT

§ 151. Ignorance of facts excuses crime. There are
two kinds of criminal acts : Acts of commission and acts
of omission. The crime of commission is doing the thing
which the law prohibits. The crime of omission is the
failure to do what the law commands to be done. Hence, a
crime is the failure to do or not to do a particular act. All
crimes do not require a culpable will; that is, a will mis-
chievous within itself, but when the law requires a thing
to be done and the failure to do that thing results in an
injury to an individual only, such person has his right
of action for damages for the injury. If the thing re-
quired to be done is a thing in which the public is in-
terested, such as the repairment of bridges and high-
ways, the failure to comply with the law is criminal, and
the law imputes an intent from the failure to act as
required. When the law prohibits the doing of an act
the doing of it is 'not always criminal — does not always
contain the necessary intent. In such cases there is no
crime. Sometimes the intent is inferred from the man-
ner in which a prohibited act is committed. In some
cases the intent is inferred from the means used in doing
the prohibited act. In others the act is committed under
the misapprehension or mistake of fact. When such is
the case the intent is wanting and no crime is com-
mitted.''''

76 — State v. Goodenow, 6,5 Me. 77 — People v. Deoine, 95 Cal.

30; Com. V. Mosh, 7 Mete. 472; Hal- 227, 30 Pac. 378; Prinder v. State,

stead V. State, 12 Vroom. (N. J. L.) 27 Fla. 370, 8 So. 837, 26 A. S. R.

552, 32 Amr. Rep. 247; Gardner 75; Steinmeycr v. People, 95 111.

V. People, 62 N. Y. 299; Hamilton 383; Stanley v. Com., 86 Kv. 440, 6

V. People, 57 Cusli. (N. Y.) 625. S. W. 155, 9 A. S. R. 305; People
C. L.— 9

130 Ceimhstal Law

§ 152. Mistake. The rule is universal and applies to
all actions of men, that honest, bona fide mistakes do not
bind the persons making them.'^ This is, however, qual-
ified by the duty imposed by the law upon all persons to
use due diligence and foresight in avoiding mistakes.
Due caution is required by all in transacting the business
and in seeking the pleasures of life, and w^here one is
injured by a want of care in another the law holds such
persons responsible. So, if by a mistake another is in-
jured through want of care or proper prudence, and ex-
emption cannot be claimed from the consequences of such
imprudence. But where one following a pursuit or is
engaged in an act which is lawful, he having used the
care required by law, and an injury has resulted to the
/ublic by reason of his mistake,'^ and if such act results
in an offense which he had no reason to believe would
be the result, there can be no crime. Thus, if he fire a
gun at a vulture and the charge kills a man he did not
see or wounds a horse he did not know was in the range,
the killing of the man would be excusable homicide and
the killing of the horse would not constitute malicious
mischief.

§ 153. Homicide committed under the misconception
of facts excusable. Homicide committed by accident,
known in the books as misadventure, is excusable. This
presents the highest degree of innocence to the charge of
homicide. Homicide committed in self-defense is not, m
all respects, wholly free from blame, but in the case of
accidents where the party is doing a lawful act in a lawful

V. Welch, 71 Mich. 548, 39 N. W. 79— Harris Cr. L. 31; McPher-

747. son V. State, 22 Ga. 479; Clark v.

78— Nance v. Mctcalf, 19 Mo. State, 19 Tex. App. 495; State v.

App. 193; Tucker v. Madden, 44 Benliam, 23 Iowa, 154, 92 Amr.

Me. 206; Huss v. Morris, 63 Pa. Dec. 417; Duncan v. State, 7

St. 3G7; Griswold v. Smith, 10 Vt. Ilunph. (Tenn.) 148.
452, 15 Amr. & Eng. P^ncla. L. 626
and note.

Idiots, Etc. 131

manner or by lawful means there is no fault whatever.
An instance of which appears where a man is at work with
a hatchet and the head flies off and kills a stander-by; or
where a person is qualified to keep a gun, shoots at a mark
and undesignedly kills another. So where a parent is
moderately correcting his child or a school-master his
scholar is only a misadventure if death results, because
the law gives the right of inflicting a moderate chastise-
ment in such instances.^® So, also, in all cases where the
circumstances justify or excuse homicide, and by mistake
a bystander is killed, the killing is excusable. The doc-
trine of self-defense is that if, from a defendant's stand-
point, danger reasonably appears imminent and pressing,
one may act upon such appearances when in fact the
danger was not imminent and pressing, and while acting
upon such appearances an innocent person is killed it is
justified." No higher degree of care is required in the
latter case than if the assailant were killed in the former.

80—4 Bla. 180 to 185. Wells, 1 N. J. L. Rep. 424, Amr.

81— Shorter v. People, 2 N. Y. Dec. 211; Price v. State, 18 Tex.

193, 51 Amr. Dec. 286; U. S. v. App. 474; Massie v. State, 16 S. W.

Wiltberger, 5 Wh. 76; State v. 720.

CHAPTER Yll

CEIMINAL INTENT

§ 154. Criminal intent precedes
criminal act.

§ 155. A purpose to commit a spe-
cific crime.

§ 156. A purpose to commit a
specific crime and through
mistake a different crime is
committed.

§ 157. Accident or mistake -where
act does not amount to
crime.

§ 158. The criminality or non-
criminality of crime of an
evil intent.

§ 159. Eule where the intent is to
commit a specific crime.

§ 160. Malignity of the intent is
measured by the crime in-
tended.

§ 161. Further discussed.

§ 162. Where one by his wrongful
act causes another to in-
jure a third person.

§ 163. Where there are reckless cruel
and wanton acts.

§ 16-4. Innocent purpose, but act
characterized by careless-
ness.

§ 165. TJule where one is in the pur-
suit of lawful business.

MALICE
§ 166. What constitutes.

MURDEB

§ 167. Defined and explained as to
elements of malice.

§ 168. Common rule in the perpetra-
tion of rape, etc.

§ 169. Same under statute.

§ 170. Malice is shown by the man-
ner and the means, etc.

§ 172. Consequences of reckless and
wanton acts.

ARSON
§ 173. Of the quality of malice.

LIBEL

§ 174. What is libel, per se, etc.
§ 175. Malice in the foregoing crime
different in degree only.

PARENT AND CHILD

§ 176. Of the duties and obligation
of parent.

§ 177. Mutual obligations of parent
and child.

§ 178. Duty the strong owes to the
weak.

§ 179. Parent has no right to en-
force obedience to illegal
act.

§ 180. Punishment must be admin-
istered free from malice.

§ 181. The parent may under some
circumstances kill to pro-
tect the child.

HUSBAND AND WIFE

§ 182. As to the intent of the wife
wliilo under the coercion of
the hnsl>nnd.

S 183. Wife's defense.

132

Ckiminal Intent 133

TEACHERS AND INSTRUCTORS § 185. Guardian and ward.

§ 184. The teacher's intent in cor-
recting child pupil.

§ 154. Criminal intent precedes criminal act. It is a
governing principle in criminal jurisprudence that evil
or wicked intent precede the criminal act. A mere intent,
evil though it be, is not criminal unless an act follows
predicated ujion such intent. Where there is, in point of
fact, no intent; where there is no capacity to distinguish
between right and wrong; where there is coercion or
duress; where there is a mistake or ignorance of fact in
crimes mala in se, no crime can be committed. Those
criminal or evil purposes of which the law takes notice
are characterized under the following subdivisions: 1.
A purpose to commit a specific crime. 2. A purpose to
commit a specific crime and through mistake, misad
venture or accident a different crime is committed from
that intended. 3. Where there are reckless, wanton and
cruel acts, evidencing a general and malicious evil intent,
but without a purpose to commit a specific crime or any
crime. 4. An innocent purpose, but where the act is
characterized by carelessness and negligence.^

§ 155. A purpose to commit a specific crime. If the

purpose is to commit a specific offense and that, in fact,
is committed, no difficulty is encountered, and it is clear
that the perpetrator should be punished, because the in-
tent and the act coincide in every particular — the act re-
lates back and is united with the intent, and the crime
committed is commensurate with the intent. There can be
no difficulty in determining the degree of guilt if, in
fact, the crime is committed, because he committed an

1— Dotson V. State, 62 Ala. 308, O'Neil, 147 Iowa 513, 12G N. W,
34 Am. Eep. 2; State v. Welch, 73 451, Ann. Cas. 1912 B, 691.
Mo. 284, 39 Am. Kep. 515; State v.

134 Ckiminal Law

act with the specific intent to do what he did do — the
intent — the unlawful act being coexistent with the thing
done.^

§ 156. A purpose to commit a specific crime and
through mistake, misadventure or accident a different
crime is committed from that intended. No consid-
eration, however profound, and no caution,, however de-
liberate, can compass in every case the result of an act.
One engaged in an act may accomplish it free from acci-
dent or mistake, yet in many instances the object in-
tended fails of execution and results in the commission
of a crime wholly unlooked for and not in the contempla-
tion of the pei'petrator. When such is the result the law
holds the perpetrator guilty of the offense actually com-
mitted, for the very obvious reason that who engages in
an unlawful purpose is responsible for the consequences
flowing from a corrupt and criminal intent.^ If he in-
tends to commit a felony and by mistake or misadventure
or accident conmiits a misdemeanor, he is guilty of the
offense committed. If he intends to commit a misde-
meanor and by mistake or accident commits a felony, he
is guilty of the felony, for the law looks to the conse-
quences of the unlawful intent. The intent being to do a
wrong the law visits upon the perpetrator the result of
his unlawful intent.

§ 157. Accident or mistake where act does not amount
to crime. In a legal sense no one has the right to engage

2— See following cases: Wood v. State v. Luff, 24 Del. 152, 74 Atl.

State, 34 Ark. 341, 36 Am. Rep. 13; 1079; State v. Hoot, 120 Iowa 238,

Boohcr V. State, 156 Ind. 435, CO 94 Nov. 564, 9 A. S. R. 352; Peo-

N. E. 156, 54 L. R. A. 391; State pie v. Sweney, 55 Mich. 586, 22 N.

V. Rumble, 81 Kan. 16, 105 Pac. 1, W. 50.

25 L. R. A. (N. S.) 276; Latimer 3— Spies v. People, 122 111. 1, 3

V. State, 55 Nev. 609, 76 N. W. Am. St. 320, and authorities; Clark

207, 70 A. 8. R. 403; Storchman v. v. State, 78 Ala. 474, 56 A. S. R.

State, 62 Ark. 533, 36 S. W. 940; 45; State v. Evans, 15 Del. 477,

Criminal Intent 135

in an unlawful transaction and if lie engages in an act
wliicli amounts to a civil trespass, and by accident or
mistake commits a crime, he is guilty of the crime com-
mitted, for the law does not draw nice distinctions in the
degree of illegality included in the intent. The wrong-
ful intent and the act compose the sum total of the of-
fense. The law inquires whether the intent was corrupt,
and if it was then the guilt follows as the logical result.
The mala fides is the element the law looks to, and if the
act is predicated upon such motive, then the act becomes
criminal. The wrong intended must be a legal wrong. A
mere moral wrong is not noticed by the law. It would
be highly reprehensible and very immoral for one to use
vulgar and indecent language or curse and swear in the
privacy of his own family, yet such conduct is not crim-
inal, unless indulged in a public place. As long as the
immorality affects the individual the law takes no notice,
but when the immoral example is such as to affect the
community, then the law punishes it as a crime.*

§ 158. The criminality or noncriminality of an evil in-
tent is dependent upon the consequent act. If one with
the evil and wicked intent — we mean by this the legal
intent to commit an offense — by mistake or accident does
an act that results in no harm, although proceeding from
such intent, is clearly not subject to the law's chastise-
ment. The law takes no notice of the wicked motives or
the evil disposition of the mind, unless they are a basis
for a wrongful act. If one having a legal intent to com-
mit an offense, makes an attempt to commit it and is pre-
vented from doing that particular thing, and by mistake
or accident commits an act which results in no harm,
yet upon principle he would be guilty of the attempted
crime, notwithstanding no evil or hann resulted from the

41 Atl. 136; State v. Gilmon, 69 504, 52 A. S. E. 496; State v. Kenf-
Me. 163, 31 Am. Eep. 257; Com. sow. 111 Mo. 589, 30 S. W. 359.
V. Murphey, 165 Mass. 66, 43 N. E. 4— See State v. Ehul, 8 Iowa 447,

136

Criminal Law

act. The governing i3rinciple in attempted eiime is that
the intent must exist to do the particular thing, but by
prevention the offense is not in fact completed and in
many instances is not even partially completed. Any act
coupled with the intent which falls short of the com-
l^leted crime is the punishable offense. Though no harm
or injury results, yet the law regards such intent and ac-
companying acts reprehensible and deserving punish-
ment.*

§ 159. The rule where the intent is to conunit a specific
crime. The common rule is that one having the specific
intent to commit an offense, but accidentally commits a
different one, he is yet nevertheless guilty of the latter.
At common law there seems to have been no exception to
this general rule. Even in the case of murder, where A,
intending to kill B, accidentally kills C, the killing of C
is murder, as it would have been if B had been killed.^
But this rule of the common law is not the rule in those
states where murder is divided into degrees. Murder
upon express malice generally being of the first degree,
and upon implied malice of the second degree. In Texas
and in other states where the statutes are substantially
the same express malice or specific intent to kill being
murder in the first degree, the accidental killing of an-
other than the person intended is murder in the second
degree only.''

5 — Infra chn pter , ' ' Attempts. ' '
Mere intent not punishable; State
V. Ashcr, 50 Ark. 427, 8 S. W. 177;
Chandler v. State, 141 Ind. 106, 39
N. E. 444; People v. McCann, IG
N. Y. 58, 69 Am. Dec. 642; Lccm-
ing V. Com. (Ky.) 117 S. W. 253;
IZx parte Smith, 135 Mo. 223, 36
S. W. 628, 58 A. R. S. 576.

6— State V. Evans, 15 Del. 477, 41
Atl. 136; State v. Tlcnson, 81 Mo.

384; State v. Cooper, 13 N. J. L.
361, 25 Am. Dec. 490.

7 — Where, however, a specific in-
tent is necessary to constitute an
ofTcnse a crime committed through
mistake in attempting it, docs not
]i;ir1ak(' of the special intent..

Angoll V. State, 36 Tex. 542;
Wills V. State, 74 Ala. 21 ; Gallihcr
V. Com., 2 Dan. (Ky.) 163; State v.
Ilenson, 81 Mo. 384; State v. Gil-

Criminal Intent 137

§ 160. Malignity of the intent is measured by the crime.
As remarked in another connection, the common law
divided criminal offenses into two classes: Mala in se,
or such as are inately wrong, and mala prohibita, or such
as are prohibited. Where one engaged in or attempting
to commit a crime mala in se and by accident commits
another than the one intended, the accident does not
relieve the guilt. Under the latter class of cases the rule
does not appear so evident. A distinction is discoverable
in particular instances. Upon principle there is no reason
for a distinction — there is no real difference. There
appears to be a distinction in crimes containing degrees.
At least in the crime of accidental homicide the common
law convicts of murder or manslaughter, just as the
original wrongful purpose is to commit a murder. Or,
stated in a more succinct form, one with the intent to
commit a misdemeanor, mala in se, or felony, by acci-
dent committed a homicide, the intent partakes of suffi-
cient malicious intensity to warrant the inference of
malice, and the killing is regarded as murder. But where
the intent is to commit a crime created by statute and
which contains, intrinsically, no element of wrong, the
accidental killing is manslaughter, the original intent not
being regarded as possessing the requisite malignity to
form a basis for malice.^ An illustration is found in the
ancient case where A, with the purpose of stealing, shoots
at the fowls of B and by accident kills C, this, by the
common law, was murder, but where A did not intend
to steal the fowl, but to kill it, the killing was man-
slaughter only.

mon, 69 Me. 163, 31 Am. Eep. 257, State, 88 Ala. 23, 7 So. 103; Peo-

3 Am. Cr. Eep. 15; Spanell v. State pie v. Walpom, 15 Cal. App. 732,

(Tex. App.) 203 S. W. 257, 20 A. 115 Pae. 1088; Wielson v. State, 69

L. R. 593; Richards v. State (Tex. Ga. 224; Crosby v. People, 137 111.

Cr. App. 38), 30 S. W. 805; McCul- 325, 27 N. E. 19; State v. Walker,

lough V. State, 62 Tex. Cr. App. 128, 37 La. Ann. 560; Com. v. Connelly,

136 S. W. 1056. 163 Mass. 539, 40 N. E. 862; State

8— Felton v. United States, 96 U. v. Lane (Mo. App.), 193 S. W.

S. 699, 24 L. ed. 875; Newton v. 948; State v. Heaton, 77 N. C. 505.

138 Criminal Law

§ 161. Doctrine of the preceding section further dis-
cussed. The doctrines of the preceding section have no
application to crimes which require a specific intent.
When such is the case the intent in the one cannot be
transferred and become the intent in the other. This
principle is illustrated in the case where the prisoner in
confinement set fire to the prison door for the purpose
only of making his escape, but by accident burned the
prison.® The court held that his intent being to make
his escape and not to burn the prison, that he could not
be guilty of arson. So, in the case of the sailor who,
intending to steal some rum stored on shipboard, by ac-
cident set it on fire and consumed the ship, the court held
that he was not guilty of the arson of the ship; he in-
tended, it is true, to steal the rum, but he did not intend
to commit arson. The doctrine of these cases does not
appear to be in accord with the doctrine of the old cases
cited, where A, intending to steal B's chickens, shoots
at them and by accident kills B, wiiom he did not see
and who he had no reason to believe would be struck.
A specific intent to kill is as essential to the crime of
murder as a specific intent to burn a dwelling house in
arson. There is no doubt that if A, intending to burn
B's house, by accident burns C's instead, A is guilty
of arson. So A, intending to burn B's housje, and the
flames are communicated from B's to C's, A would be
guilty of arson of C 's house.

§ 162. Where one by his wrongful act causes another
to injure a third person. AVhere A makes an assault
upon B, uii])r()vokcd, under circumstances of such serious
nature as will justify B in resorting to a deadly weapon
ill onlor to save liis life or to save liimself from llio in-
s—state V. Mitchcl, 27 N. C, 5 51; People v. Connors, 253 111. 266,
Tml. P.-in; P.arl.or v. State, 78 Ala. 97 N. E. 643, 39 L. R. A. (N. S.)
19; Chri.snian v. State, 54 Ark. 283, M.t Ann. Ois. 1913 A. 196; Reagan
15 S. W. 889, 26 Am. St. Rep. 4; v. State, 28 Tex. App. 227, 12 8.
People V. Moonoy, 127 Cal. 339, 59 W. 601, 19 A. S. R. 833.
Pac. 761 ; State v. Snow, 19 Del. 257,

Ckiminal Intent 139

fliction of serious bodily injury, and by a blow or a shot
intended for A, but which flies its way and kills C, an
innocent person standing by, and he dies from the wound
within a year and a day, there is no sound reason in
morals or in law why A should not be held guilty of some
degree of culpable homicide. This principle has been
urged before the courts in two adjudicated cases. The
doctrine contended for here was denied in these cases.
The first, the Commonwealth v. Campbell, tried in Boston
in 1863 and reported in 83 Am. Dec. 705, the defendant
was one of a party of rioters in the city of Boston, who
were resisted by the stationed soldiery, and during the
disturbance an innocent party was killed. The defendant
being convicted in the lower court of manslaughter, the
question on appeal was whether the defendant could be
held responsible if deceased had been killed by the sol-
diers. The court held that he could not. In the second
case A and B, brothers, were attendants at a fair in a
country town and became boisterous and noisy, where-
upon C, the city marshal, sought to quiet them and thus
brought on a difficulty and A and B made an attack upon
C with their fists, C drew his pistol, intending to shoot
them, but by accident the shot took effect in an innocent
bystander. A and B being found guilty of manslaughter
in the lower court, and the question upon appeal being
whether A and B had been properly convicted, the court
held that since there was no understanding, agreement
or common purpose between A, B and C, that A and B
could not be guilty of any act of C; that the act of C
was not authorized by them and was not intended by
them, and hence there was no intent to kill such by-
stander. The court further held that even if the attack
of A and B had been of such a nature as to justify C in
resorting to a deadly weapon, that they could not, upon
any well defined principle of law, be held guilty.^*^ There
are many reasons which would overrule the doctrine of

10— Corn V. Campbell, 7 Allen
541, 83 Am. Dec. 705.

140 Ceiminal Law

these cases. There are many considerations fonnded upon
legal principles which would justly inflict punishment
upon the party who is the cause or, in other words,
who creates the necessity for the misdirected shot. All
authorities agree that if A puts in motion a force which
compels B to act and by reason of his action C is killed, A
is the guilty party. Thus A pushes B, who by such force
strikes C and C falls over a precipice and is killed, A is
guilty, as if he had pushed directly. The law holds him
as intending an act Avho creates the necessity for it. If A
attacks B and he is forced to resort to violent means
and by accident he kills C, he cannot be guilty of C's
death, because he had a legal right to attempt to protect
himself from the unlawful attack of A. B not only had
the right to attempt to protect himself, but a positive
duty to do so. So, also, if the attack is made upon a
stranger for the purpose of committing a felony, B would,
upon principles of the law, have the right, and the duty
would be upon him to use violent means to protect such
stranger from the assault of A, and if in his effort to pro-
tect him he accidentally kills C, he w^ll not be guilty. A
person who knowingly and purposelj^ engages in an un-
lawful act should not be permitted to free himself from
all the consequences of his acts, which would not have
occurred except for his own action. Still another consid-
eration in support of this contention is that eveiyone who
makes a violent assault upon another is presumed to
know that the party assaulted will use all means to pro-
tect himself.

WHERE THERE ARE RECKLESS AND WANTON AND CRUEL ACTS
EVIDENCING A GENERAL EVIL AND MALICIOUS INTENT,
BUT WITHOUT THE TURPOSE TO COMMIT A SPECIFIC CRIME,
OR ANY CRIME

§ 163. By what is the intent evidenced. The intent is
evidenced ])y the circunislaiices and conditions under
which the act is committed. Thus, if one engaged in a

Criminal Intent 141

lawful act executes it recklessly and wantonly, without
taking due regard, he is responsible for any injury which
comes to another, both criminally and civilly. Persons
are not only required to follow and do lawful things,
but are required also to do them in a law^ful manner and
by lawful means. Usually damages are sought in such
cases as a redress in the civil tribunals, but where an un-
lawful act is done which endangers the personal safety
of others, if injuiy occurs, the party so offending is re-
sponsible for the result, although he did not intend any
injury.^^ As where A shoots his loaded gun into a
crowded street and kills one standing therein he is as
guilty as if he had intended it. And this principle is
applicable to any other statement of fact w^hich shows a
reckless and wanton disregard for the rights of another;
the presumption is that he intended the consequences of
his act.

AN IISTNOCENT PURPOSE, BUT WHERE THE ACT IS CHAR-
ACTERIZED BY CARELESSNESS AND NEGLIGENCE

§ 164. Rule where there is required a guilty knowledge.
There is a class of offenses which do not require a guilty
intent or guilty knowledge in order to hold the perpe-
trator responsible. Such, for instance, w^here the statute
prohibits the doing or commands the doing of some act.
In the case where the statute prohibits the selling of
intoxicating liquors to minors ; ^^ or where it provides
that an unmarried girl shall not be taken from the charge
of her father unless she be of certain age. The want of
knowledge that such person was within the prohibitions
of the statutes will not exempt. So, again, where the
statute prohibits unclean and adulterated milk, or spoiled
and unwholesome food, the w^ant of knowledge that the

11— Dory V. People, 10 N. Y. 120 j 136; State v. Cooper, 13 N. J. L.

Lee V. State, 1 Cold. (Tenn.) 62; 361, 25 Am. Dec. 490; United States

Galliher v. Com. 2 Dev. (Ky.) 163; v. Freeman, 4 Mason C. C. 505.
State V. Evans, 15 Del. 477, 41 Atl. 12— Com. v. Emmons, 98 Mass. 6.

142

CeiminaLi Law

same was adulterated or unwholesome will not excuse the
seller. The law throws the obligation upon the parties
coming within the prohibited act the double duty of
having an honest purpose and the knowledge that his act
is not a violation of the law.^^ And that, too, when he
does not intend to violate the law.

§ 165. Rule where one is in the pursuit of a peaceable
and lawful business. The law requires all persons, when
following a peaceable and lawful pursuit, to act with due
care and caution. And where the circumstances and the
nature of the act, taken together with the consequent re-
sults, produce an injuiy to another he is presumed to
have intended that result or else he would have acted
differently.^* So where dangerous trades or occupations
are operated a higher degree of care is required than in
ordinary pursuits. And where the want of care, or even
the want of proper skill in the conduct of such occupa-
tions, will, according to the circumstances, and the re-
sults following, subject such persons to criminal prosecu-
tions, the intent to injury is inferred from the manner of
performing such duties. One who undertakes to operate
a machine or other dangerous thing, requiring special
knowledge or skill, is bound to be possessed of such

13— Com. V. Farren, 9 Allen 489;
Eex V. Prince, L. E. 2, C. C. 154;
Com. V. White, 11 Allen 264;
State V. Smith, 10 R. I. 250; Ulrich
V. Com., 6 Bush 4, 400; Burns v.
State, 19 Conn. 398; Beckam v.
Nache, 56 Mo. 546; Com. v. Mixer,
207 Mass. 141, 93 N. E. 249, 31
L. R. A. (N. S.) 467, 20 Ann. Cas.
1152 and note. Armour Packinfjj
Co. V. United States, 153 Fed. 82
C. C. A. 136, 14 L. R. A. (N. S.)
400. Same, 209 U. S. 56, 52 L. ed.
681 ; State v. Simmons, 143 N. C.
613, 56 8. E. 701; People v. West,
irifi X. Y. 29.3, 12 N. E. 610, 60

Am. Rep. 452; State v. McBrayer,
98 N. C. 619, 2 S. E. 755.

14 — For a full citation of authori-
ties, see note to Johnson v. State of
Ohio, 61 L. R. A., page 277; State
V. Justus, 11 Ore. 178, 50 Am. Rep.
470, 8 Pac. 337; State v. Vance, 17
Ta. 138; White v. State, 84 Ala. 421,
4 So. 598; Fitzgerald v. State, 112
Ala. 34, 20 So. 966 ; Thomas v. Peo-
ple, 2 Colo. App. 513, 31 Pac. 349, U.
S. V. Knowlcs (4 Sawy.), 517 Fed.
Cas. No. 15540; Territory v. Man-
ton, 8 Mont. 95, 19 Pacific 387;
Morris v. State, 35 Tex. App. 313,
33 S. W. 539.

Ceiminal Intent 143

knowledge, and to exercise such skill, and if for the
want of either another is injured he is in some degree
criminally culpable, according to the degree of his negli-
gence. Thus, engineers in operating a railway train,
steamboats, ships and other kinds of the complicated
machineiy of modern times, are held to highest degree
of care and skill in operating such things, and if death
result to another as the result of want of care and caution
it is manslaughter, according to the doctrine of the com-
mon law.

§ 166. Malice, what constitutes, etc. We have seen
that an intent is the essential ingredient of crime. In
some instances it is necessary that the intent be to per-
petrate specifically particular crimes, and in others an
intent to commit no particular crime, or no crime at all;
as where the crime is the result of negligence or the
omission to perform a duty. In others the doing of cer-
tain acts, even if done with the express intent not to
commit a crime, yet it becomes a crime because the act is
prohibited. Our attention in this connection is directed
now to the intent in four classes of offenses, the chief
and moving element of which is malice. This term ex-
presses a kind of intent which is not a characteristic of
other crimes; we refer to the crimes of miurder, arson,
malicious mischief, and libel. It is not contended that the
degree of evil intent in each of the crimes is of the same
intensity.'^^

§ 167. Murder. Defined and explained as to elements
of malice. The killing of a human being with malice
aforethought, either express or implied, constitutes mur-
der.^^ Express malice is evidenced by former grudges,
lying in wait, antecedent menaces, and implied malice is

15 — Halsted v. State, 1 Criminal Bradford, 9 Mete 268; Com. v.
Mag. 341; 12 V. 2 (N. J. L.) 552; Sheilds, 1 Mass. 228.
Eider v. Wood, 2 East 338; Com. v. 16— Lewis v. State, 72 Ga. 164, 53

144

Criminal Law

evidenced by the means or by the manner in which the
homicide is committed. At the common law this distinc-
tion was drawn between malice, express and implied, but
the punishment was the same. Under most of the stat-
utes of the American states, the punishment for murder
committed with implied malice is of less severity than
for murder upon express malice. The term as used and
applied to homicide indicates the highest degree of wick-
edness, hatred and ill-will towards the person killed,
because the intent embodies the destruction of human
life."

§ 168. Common law rule as to crime of murder in per-
petrating rape, etc. At common law any homicide com-
mitted while attempting or in the perpetration of any
felony, or any crime malum in se, was murder.^^
Many of our statutes provide that homicide committed
while attempting to commit the felonies, rape, robbery,
burglaiy and arson, shall be murder in the first degree;
hence the assumption is that the homicide is committed
upon implied malice.-^* The inference is that one at-
tempting or intending to perpetrate any of these felonies
is actuated by sufficient evil purpose to cover in full

Am. Eep. 835; State v. Jones, 79
Mo. 441; Warren v. State, 4 Coldw.
(Tenn.) 130; Miller v. People, 30
:Mich. 16; Ex parte Wray, 30 Miss.
673.

17— Lovett V. State, 30 Fla. 142,
11 So. 550, 17 L. E. A. 705. See
note and reasonable doubt; Long
V. State, 127 Ga. 350, 56 S. E. 444;
State V. Dixon, 80 Kan. 650, 103
Pac. 130; Gonzales v. State, 30 Tex.
App. 203, 10 S. W. 973; Powell v.
State, 23 Tex. App. 247, 12 So. 1037 ;
McVey v. State, 57 Neb. 471, 77
Nev. p. Ill] ; .Lickson v. State, 81
Ala. 33; Sylvester v. State, 7 Ala.

17; Adams v. State, 25 Ark. 405;
Ex parte Moore, 30 Ind. 197; Hard
V. People, 25 Mich. 405.

18— State V. Partlon, 90 Mo. 608;
State V. Schoenwold, 31 Mo. 147;
State V. Anderson, 2 Overt. 6; 5
Am. Dec. 648.

19— People V. Deacons, 109 N. Y.
374, 16 N. E. 676; Kenedy v. State,
107 Ind. 144, 6 N. E. 305; State v.
Shirley, 64 N. C. 610; Durham v.
State, 70 Ga. 264; State v. Reynold,
11 Neb. 98; DunaAvay v. People,
110 111. 333, 51 Am. Rep. 686; Mc-
Ghco V. State, 62 Miss. 772, 52 Am.
Rep. 209.

Criminal Intent 145

legal malice, but not actual malice against the deceased.
So malice may consist in hatred, ill-will, grudge, or re-
venge toward the deceased, specifically, or it may con-
sist in the act of the perpetrator independent of the actual
intent to do the deceased harm. For instance, sup-
pose that A is attempting to burglarize the dwelling of
the deceased, his friend, and he accidentally kills him,
this is murder, yet he had no ill-will for him. It is to be
noted in this connection that, while the killing of a
human being in the pei*petration of any of these crimes
is deemed to be upon implied malice, yet the acts are of
the greatest enormity, and the law visits upon the vio-
lator the highest punishment.

§ 169. Same rule under statute. Another rule under
some of our statutes is that if A, intending a crime —
usually a felony, but sometimes a crime merely mala in
se — by misfortune or accident kills another, it is mur-
der in the second degree, because the specific intent to
kill the deceased is not present at the time of the homi-
cide. Hence it is held that where A, with a specific in-
tent to kill B, by accident kills C, against whom he had
no ill-will, is guilty of murder in the second degree, upon
the theory, of course, that the consequence of the act
measures the intensity of the intent.^" The difference
between this and the common law rule is that by the com-
mon law there is no degree in the punishment. All
culpable homicide was either murder or manslaughter,
and all murder was punished with death. The common
law drew no distinctions so far as the punishment was
concerned.

20— Spanell v. State, Tex. App. Faren, 25 Cal. 361; Nye v. People,

203, S. W. 357, 2 A. L. E., p. 593, 35 Mich. 16 ; Bechtelheimer v. State,

and note, and authorities; Thomas 54 Ind. 128; Dukes v. State, 4 Fla,

V. State, 127 La. 576, 53 So. 868, 499; Vol. 9 Eng. & Amer. Eney., p.

Am. Cas. 1912 A, 105 and note, 37 548 to 560, full discussion.
L. E. A. (N. S.) 172; People v.
C. L.— 10

146 Ceimin-\i. Ijaw

§ 170. Malice is shown by the manner and the means,
etc. Malice, again, is shown by the means and the man-
ner by which a homicide is committed. Thus, if death
is produced by torture, starving, lying in wait, poison-
ing, or by the use of a deadly weapon, malice is pre-
sumed from the means of producing death.^^ If death
is produced by reckless and wanton cruelty, as where an
infant is whipped with an instiniment, not necessarily
dangerous within itself, or being such an instrument
that if the same was in the same manner heaped upon an
adult, could not produce death, yet, administered upon
the infant in such a manner as to produce its death,
would be murder, although the death of the child was
not intended. Malice in such case is presumed from the
manner of inflicting the injury. The above illustration
also embodies a fundamental principle that an evil in-
tent or ill-will may be presumed from the physical con-
dition of the person upon whom the injury is inflicted.
Some of the states by statute cany this doctrine so far
as to include women in the list of persons upon whom
an injury is inflicted the intent being presumed to be of a
greater intensity than when like injury is inflicted upon
an adult male. Under this doctrine in the Texas law an
act that would be only a simple assault upon an adult
male becomes an aggravated assault when inflicted upon
a woman or child. Also many of the states by statute,
homicide committed by starving, torture, lying in wait, or
by poisoning is murder in the first degree. Any of these
different manners or means of producing death shows a

21— Seam v. State, 4 So. (Ala.) State v. Ilopkirk, 84 Mo. 278; State

.52; Williams v. State, 81 Ala. 1, 1 v. Brown, 7 Ore. 18G; NcaliiiR v.

So. 179; Talmer v. State, 29 Ark. Com., 98 Pa. St. 323 ; State v. Lopez,

248; Daccy v. People, 116 111. 555, 15 Nev. 407; People v. Deacons, 109

6 N. E. 1G5; People v. Hamblin, N. Y. 374, 16 N. E. 676; Bratton

68 Cal., 8 Pac. 087, 101; Trvin v. v. State, 10 Hump. (Tenn.), 103;

State, 19 Fla. 872; State v.Kerby, 26 Weaver v. State, 19 Tox. Appeals

Kans. 77; Com. v. Devlin, 126 Mass. 547.
253; State v. Iloyle, 13 Minn. 132;

Criminal Intent

147

premeditation and a deliberation, indicating the greatest
ill-will and an intent of the grossest evil. Homicide can-
not be committed by these means without the accom-
panying evil will, and is murder upon express malice.

Murder, however, produced by the use of a deadly
weapon, in the absence of circumstances showing pre-
meditation and deliberation, is not murder in the first
degree.''^ Death, however, might be produced by this
means under circumstances of aggravation which would
bring it within the rule.

There is no uniformity in the rule in the various states
as to the degree where the murder is produced, as the
consequent result in attempting or in perpetrating the
crimes of rape, burglary, arson, robbery and mayhem,
but all authorities appear to agree that murder com-
mitted in these cases is upon implied malice.

§ 171. Consequences of reckless and wanton acts.
Malice — this legal deduction of ill-will — is shown, where
the act is executed in a reckless and wanton manner.
Thus, where one discharges his pistol in a crowded street;
or as instanced in the books, where a workman, on a
building abutting on a public street, throws a stone there-
on without first informing himself that if there are many
passersby, and without giving warning, and thereby kill-
ing one passing. Here we have malice that is not directed
to any particular person, but a kind of general ill-will,
toward every and any person who may be affected by the
act.23

22— Brooks v. State, 90 Ind. 428;
Miller v. State, 74 Ind. 1; State v.
Townsend, 66 la. 741, 24 N. W. 535;
State V. Lewis, 74 Mo. 222 ; Daly v.
People, 39 (Hun) N. Y. 182; Mc-
Cue V. Com., 78 Pa. St. 185; Petty
V. State, 6 Baxt (Tenn.) 610; Scott
V. State, 23 Tex. App. 432; Hogan
V. State, 36 Wis. 226; for further
citation covering the text, the reader

is referred to the reports of the sev-
eral states, where the matter may
be investigated; Sullivan v. State,
102 Ala. 135, 15 So. 264, 48 A. S. R.
22. See the case of Crow v. State,
55 Tex. App. 200, 116 S. W. 52, 21
L. E. A. (N. S.) 497; Garner v.
State, 28 Fla. 113, 9 So. 835, 29 A.
S. R. 232.

23— State v. Smith, 2 Stobh. L.

148 Chimixal Law

AESON

§ 172. Of the quality of the malice in this crime. Burn-
ing the dwelling house of another maliciously was at com-
mon law deemed arson. The burning must be with the
specific intent to burn — but not always so,*^* For it is
pretty clear that where a house is set on fire, without the
intent to injure the owner, it is not arson; as in the case
where one sets a house afire negligently.^^ If a person
set the house of A on fire and the fire is communicated to
that of C, then it is arson, in burning the house of C, not-
withstanding, no intention existed in fact to burn C's
house. The necessary malice or intent is inferred from
the setting the house of A. Where A intends to kill B and
the blow by misadventure falls upon C, the malice is not
actual, but the legal inference is drawn from the act and
the consequence. Ill-will or hatred or any kindred emo-
tion is necessary to be shown to exist toward the owner
of the building. The malice spoken of in the definition
consists in the wilful burning, and may proceed from a
heart intent upon revenge, hatred, recklessness, wilful-
ness or wantonness. Upon principle, if the accused was
pursuing an unlawful act, and as the probable conse-
quence produced the fire, it would be arson.

MALICIOUS MISCHIEF

§ 173. The ill-will must be against the owner of the
property. In this olTense the act must be made with
malice — that is with the intent to injure the owner. A

77, 47 Am. Dec. 589; Com. v. York, Com. v. Bradford, 126 Mass. 42;

9 Mete. (Mass.) 93, 43 Am. Dec. State v. l?al)cock, 51 Vt. 570; John-

373, and cases cited in note. State son v. State, G5 Ind. 204; Hudson v.

V. Jolinson, 1 Tred. 354, 35 Am. Dec. State, Gl Ala. 333 ; State v. Watson,

742 and cases cited in note. (53 Me. 128; Com. v. Goldstion, 114

24 — Com. V. Markely, 131 Mass. Mass. 272; Jesse v. State, 28 Miss.

421, 2 East P. C. 1019;3 Grecnl. 17 liiO; State v. Enjrland, 78 N. C.

18; 3 In.s. G7 ; 4 IJlackstone 222. 552; Brooks v. State, 51 Ga. 612.

O.-j— State V. Tliorn, 81 N. C. 555;

Criminal Intent 149

mere ill-will or hatred against the property of the owner
is not sufficient. This offense consists in the injury to
personal property, and is most usually found in the in-
jury to horses, cattle, and the like, yet it is not to be
understood that malicious mischief may not be predi-
cated upon the injury to other personal property. The
malice spoken of here is not of the same intensity as
that degree of feeling indicated by malice in the case
of murder. Circumstances which go to show the slightest
feeling of ill-will against the owner of the property
appear to be sufficient. ^^ The statutes of the Ameri-
can States usually use the terms '' maliciously and wil-
fully" injure, etc., the property of another. And under
the statute of the State of Arkansas, it has been held by
the courts of that state that ill-will must be shown to
have existed against the owner of the property.^'''

LIBEL

§ 174. What is libel per se, etc. So in this offense
malice must be shown. It is the gist of the crime.^'
Libelous language when of a certain nature, as laid in
the books, constitutes malice, per se, that is the malice is
inferred as a matter of law. In other instances the malice
must be proven. This malice or intent is of two classes,
actual and implied. Actual malice is shown when a wil-
ful and an intentional purpose to injure is gathered from
all the circumstances. The imputation to another that he
has been guilty of crime in most cases is regarded as

26— Wright v. State, 30 Ga. 326, 27— Chappell v. State, 35 Ark.

76 Am. Dec. 656 ; State v. Waters, 6 345.

Johns, N. C. 560 ; Lessen v. State, 28 — Com. v. Bonner, 9 Mete.

62 Ind. 58; Dawson v. State, 52 Ind. (Mass.) 410; Moore v. Stephenson,

478; State v. Wanderford, 35 Fed. 27 Conn. 14; Gatt v. Pulsifer, 122

R. 282; State v. Jackson, 12 Ired. Mass. 551; Raot v. King, 7 Cow.

34 (N. C.) 329; Com. v. Brooks, 9 613; White v. Nichols, 3 How. U.

Gray (Mass.) 299; People v. Kane, S. 286; Stewart v. Lovel, 2 Stark,

131 N. Y. Ill, 29 N. E. 1015, 27 E. 93.
A. S. R. 575.

150 Ckiminal Law

malice per se; that is proof within itself that malice
exists. ^^ Any wrongful and wailful imputation to another
of any thing that will hold him up to public contempt
or hatred, or any imputation that will blacken his good
name is malice within the meaning of this crime. The
truth of the imputation may be put in evidence by the
accused, as a defense to the crime — and it follows that
if the statement be false the malice is proven, whether
the intent was in fact to injure, for the effect is the same
upon the person libeled. So the malice or intent in this
crime may be positive or passive, actuated by hatred,
revenge or malignity, or it may be from mere culpable
negligence or want of due regard for the rights of another.

§ 175. The malice in the foregoing crime as different in
degree only. A full discussion of these several offenses
will be found in another part of this work. The malice —
the intent in these crimes do not differ so much in the
nature, as the degree of the malignity. In the crime of
murder the highest — the extreme limit of evil is reached
for it can be reasonably supposed that no greater evil can
be entertained against another than this malice of mur-
der. The evil nature of malice in the crimes of arson,
libel, and malicious mischief are only different in the
degree. The wrongful and wilful doing of any crime will
in effect, make the act punishable, if the same is commit-
ted without justification or excuse.

PARENT AND CHILD

§ 176. Of the duties and obligation of the parent. The

duty is imposed upon the i)nreiit to care for and protect
his child, to furnish him with a home, food and clothing,
and sucli other necessities and comforts, reasonably

29— Times Pul.. Co. v. Carlile, 94
Fed. 702; Broughton v. McGrow, 39
Fed. 692.

Ckiminal Intent 151

within his power. For this, the corresponding duty rests
upon the child to obey all reasonable and just demand of
the parent.^" These mutual and relative duties and obli-
gations are founded in the law of love — that mystic moni-
tor of the human race. Parent and child are bound to-
g-ether by the strongest ties of affection, and the utter
helplessness of the little fellow, upon his entrance into
society demands care, safety and comfort. He is cast
upon the world innocent, powerless physically and men-
tally to administer to his needs and wants, and nature
has wisely planted in the heart of the parent such a high
sense of his obligations, that ordinarily, no occasion arises
for the state to interfere. But sometimes the parent re-
fuses to respond to the behests of his higher self, and then
the law regards it as a crime.

§ 177. Mutual obligation of parent and child. The

duties and obligations due from the parent to the child
and the child to the parent are many and various. It is
not our purpose at this time to cover all of them, but our
attention is directed to the duties and obligations due
one to the other, the failure to properly observe which
the criminal law undertakes to punish. The parent may
administer chastisement or corporal punishment in en-
forcing all reasonable and proper obedience to his rule
and authority. The punishment must in all cases be
moderate, and free from any semblance of cruelty or ex-
cess.^^ Where this right to correct the child and enforce
obedience extends beyond moderation, the parent is re-
sponsible criminally. An assault committed under such
circumstances is punishable as a crime. It is the duty
of the child to submit to the reasonable and moderate
punishment which is inflicted for the primary purpose
of instilling into the young mind the necessity of restraint

.30— Kent's Com. 203; 1 Black- Dean v. State, 89 Ala. 46, 8 So. 38;
stone 452. State v. Bitman, 13 la. 485.

31— State V. Jones, 95 N. C. 588 ;

152 Criminal Law

and to prepare him for his duties of good citizenship,
for the proper culture of mind and moral life. The
chastisement must be regulated by that of sound discre-
tion, and must not seriously endanger life or limb, or
health, or disfigure or cause any permanent injury. What
would in any given case constitute excessive punishment,
depends upon the facts and circumstances. The mental
and physical condition of the child, the age and the ca-
pacity. Thus punishment inflicted upon a full grown
and well developed boy might as to him be moderate
under the circumstances but if the punishment was in-
flicted upon a delicate and sickly child might be cruel and
inhuman. The law does not say that the punishment
may be administered in this or that way or in this or
that place or Avith this or that instrument, but imposes
the one injunction, and that is that the punishment must
be moderate. This is a question of fact to be deteimined
under the circumstances.^^

§ 178. Duties the strong owe to the weak. Another
principle which should not be overlooked, and this is
dictated by common justice, the strong should protect the
weak and helpless; the adult should protect the infant,
senile and the imbecile. Hence we find finnly imbedded
in the doctrine of the criminal law, that where there is
a duty or an obligation imposed, a wilful failure and
refusal to perfonu it becomes criminal, and is indictable.
Thus the duty due by the parent to the child, during its
infancy, is reversed, when the parent reaches old age and
unable to care for himself. It is a crime to expose a child
to the cold, to excessive heat so as to impair his health,
or to produce great discomfort or torture. An old case
cited l)y tlie l)ooks is where the mother ])laces her infant
ill a bag and liangs it on \ho fence, and it dies, it is a

32— Johnson v. Stato, 2 lliiinp Mich. DO; Tiyniun v. People, 65n, iii
(Tonn.) 203; Knp. & Amer. Encly., — App- 687.
Vol. 8, 4.'jn; Shannon v. People, 5

Criminal Intent 153

crime. To refuse to furnish good and wholesome food,
or to withhold food so as to injure the health of the child
is a crime. This is all true for the reasons that the
parent owes to the child sustenance, he owes him the duty
of the greatest care at that time of life when he is unable
to sustain himself. All persons who stand in the place
of the parent, loco parentis, are bound by the same
rule as the natural parent. It is tlie duty to aid him in the
development of his mental and physical being.

§ 179. Parent no leg-al right to enforce obedience to an
illegal act. As we have noted in the preceding pages
the parent has the undoubted right to correct his child
and that the child is bound to obey the commands of the
parent, and that the parent may enforce those commands,
yet the parent has no right to enforce obedience to the
command to do an illegal act. If the act is illegal he can
not claim immunity from punishment for the chastise-
ment of his child. It appears, to be a presumption that the
chastisement is rightfully administered, and the burden is
upon the state to show that the defendant has exceeded
his authority, and that the punishment was excessive.^^ It
is hardly supposed that any person will doubt that the
father has the authority to punish the child for disobedi-
ence, where he exercises a reasonable and proper discre-
tion, as to the manner of his nurture, whether it be moral
or immoral in its tendency. There is no legal duty (that
is, no duty, the failure to perform which the law will
undertake to punish), to instruct the child in any par-
ticular line of morality, Christianity or education.'*
''Education is not necessary to the sustenance of the
child, and the reasons which should, and in some states

33 — Anderson v. State, 3 Head and in some states do, render a

(Tenn.) 455, 75 Am. Dee. 774. parent legally bound to support his

34 — Tiffany on Domestic Eela- child do not apply. There is no

tions, page 238: "Education is not legal duty upon the parent to edu-

necessary to the sustenance of the eate his children."
child, and the reasons wliich should.

154 Ceimixal Law

do render a parent legally bound to support his child
do not apply. There is no legal duty upon the parent
to educate his children."

§ 180. The punishment must be administered free from
malice. It appears from the weight of reason and the
authorities that if the punishment was wantonly and wil-
fully inflicted it would within itself show immoderation;
in other words the chastisement must proceed from a
reasonable cause. Of course this discretion is left to be
exercised by the parent, such as a reasonable man would
ordinarily act.'®

§ 181. The parent may under some circumstances
kill to protect the child. The law makes it the duty of
the parent to protect the child, and to this end he may
lawfully kill another who is about to inflict upon his child
any serious bodily injury, affecting his life or limb.
He may also protect him from any less degree of harm
at the hands of another by espousing his cause, and by
administering to such person such force as is necessary
to cause such person to desist.^^

HUSBAND AND WIFE

§ 182. As to the intent of the wife while under the
coercion of husband. The relations of husband and wife
have been discussed at some length, in chapter ^'Persons
Exempt from Crimes," but we deem it proper for our
pui'pose to partially refer to what we said there. The
common law presumed, and it appears to have been a
rebuttable presumption that the wife was always under
the coercion of the husband, and an}' crime committed by
her while in liis presence, was considered to be at his

35— Sco tlie following case, for a 509, 7 AM. 2(]a; Neal v. Rlntc, 54

fjcricral diHcuHHion of tlic subject. On. '29] ; lliiiklo v. .St;ito, 127 Iiid.

Bo}'(I V. State, 88 Ala. 109, 7 So. 4I»(), 2G N. E. 777; Fletcher v. Peo-

268; Dean v. State, 89 Ala. 40, 8 pie, 52 111. 395.

Ho. 38; PatterHon v. Nutter, 78 Me. .10—1 Plackstono 450.

Criminal Intext 155

command, and was his act." To the particular crimes of
murder, treason and robbery and such heinous crimes the
presumption did not apply, but for felonies generally,
the husband was alone responsible. Under the doctrine
of the common law the position of the wife towards the
husband was much like that of the child towards
the parent, and the wife was due obedience to the
husband's commands. And that he might enforce them
the law pennitted him to chastise the wife. The courts of
the American States look with disfavor upon this rule of
the common law. In fact it is believed that no state in
the United States could for an instant enforce such a
rule for the spirit of the people is against it. To lay
the hand of the husband in anger upon the person of the
wife would clearly be an assault and battery.

§ 183. Wife's defense. It was no defense for the wife
unless she could show that the husband was present at
the time of the committal of the crime. If she was out of
his presence the presumption did not operate as a shield
for her. Originally under the common law the wife and
the husband were legally one person. The wife could not
own property, except to a very limited extent, if at all;
the husband was required to furnish clothing and food
for her. The husband had the right to kill another at-
tempting to commit a serious bodily harm upon her. At
common law if the husband caught the wife in the act of
adultery, and he killed her in the act it was not murder
but manslaughter.^^

TEACHEES AND IXSTEUCTOES

§ 184. In chastising the pupil the teacher's intent to
correct. The law has wisely extended the right to the

37 — See Vol. 15 of the Second Eobert v. People, 19 Mich. 451;

Anier. aud Eng. End., page 902, and State v. Bell, 29 la. 316; State v.

authorities there cited. Hunston, 29 S. C. 10, with full note.

38— State v. Kelly, 74 Iowa 589;

156 Ceiminal Law

teacher to inflict a moderate degree of corporal punish-
ment in the goverimient of their professions. The ques-
tion of the degree of the punisliment is to be gathered
from all the circumstances of the particular case, taking
into consideration the age and the sex, and the physical
and mental condition of the pupil. There is no rule of
law whereby the teacher may ascertain before hand just
how far he may go in the administration of the punish-
ment, but is left largely to his sound discretion, being
careful not to step beyond the limits of moderation. The
teacher stands, almost, if not quite in the position of the
parent and to some extent it may be conceded that when
a child is placed under an instructor the parents and
those standing in the place of the parents, yields for the
time, to the teacher, as his agent, the power to chastise
the child for the child is by contract placed with the
teacher who assumes his nurture for the time. This right
of the teacher to inflict moderate punishment grows out
of the necessity of the position in which the child is
placed. Success in any line of business depends upon the
system and method with which it is conducted. School
teaching is one of those professions which require strict-
ness and rigor in the enforcement of its methods and
rules in order to reach the highest and best results.
Hence the law does not tolerate the prosecution for as-
saults and battery unless it very clearly appears that
the punishment is beyond the necessity of the case. A
teacher of course would not have the right nor could he
exempt himself from responsibility where he had wan-
tonly, and without cause, inflicted punishment. And this
right of the teacher to punish for the infraction of the
rules is not taken away where the student under his
charge may be an adult person.^®

39 — State v. Minzcr, 45 Ta. 248, she should not be chastised as other

24 Am. Rep. 701). The defendant children, because she was twenty

was cliarged with an assault upon years of ago. The court said that a

a female student, who claimed, that teacher for the maintenance of his

Ceiminal Intent 157

§ 185. Guardian and ward. The parents are the nat-
ural guardians of their children. It often occurs that
other persons are appointed by the chancery court as the
guardians of minor children. And who also often, but
not always have the custody of the persons of their
ward — that is have the rearing, culture and education
and the like, of such wards, and when such is the case,
they stand in loco parentis to them. Such guardians
have the same rights, and governed by the same limita-
tions as the parents. It is the duty of the guardian to
clothe and feed them as long as they remain under his
care. It is his duty to protect them to the same extent
as the parent from the indiscretions of their immature
age, and to instruct them in the lessons of good citizen-
ship and to encourage their mental and physical de-
velopment. Such guardians have the right to inflict rea-
sonable and moderate punishment in enforcing obedience
to all just demands and requests.**^

authority, and the enforcement of 40 — The same rule with the same

discipline, may legally inflict mod- limitation, as to moderation, applies

erate or reasonable chastisement to corporeal punishment, by guar-

upon a pupil, "and that the fact dian inflicted upon the ward. Stan-

that she was twenty-one years of field v. State, 43 Texas 167. See

age did not make any difi:erence. also Vol. 15 Amer. & Eng. Encly.

She had become voluntarily a schol- Law. 51, and authorities cited,
ar, and could not escape the duties
and obligations of one."

CHAPTER Vni

PEINCIPALS AND ACCESSOEIES

§ 186. Principals and accessories
distinguished.

§ 187. Principals of the first and
second degree.

§ 188. All persons engaged in the
commission of a crime, prin-
cipals.

S 189. Difference between accessories
and principals in the second
degree.

§ 190. Offenses at common-law hav-
ing no accessories before
the fact.

§ 191. Accessories before the fact,
defined.

§ 192. Principal actor must do the

thing agreed upon.
§ 193, Accomplice defined.
§ 194. Government may discharge

accomplice on agreement to

testify.
§ 195, What must be done by the

informer to establish im-

munitj-.
§ 196. Testimony of accomplice must

be corroborated.
§ 197. What constitutes accessory

after fact.

§ 186. Principals as distinguished from accessories.
The teiTii ''accessories" is confined to felonies, no such
distinction being recognized in treasons and misde-
meanors. Hence every felony presupposes a principal
actor and possible accessories. Every crime of whatever
class consists of a principal actor and very frequently
more than one. Every one whose will contributes to a
commission of a crime is responsible, whether he be the
principal perpetrator or not. The common law pun-
ished all parties alike, but first established the guilt of
the principal. If the principal died, escaped or for any
reason was not convicted the accessory was not guilty.
One whose sole will produces a crime, the number, kind,
or character of agencies he calls to his aid does not alter
his connection with the crime, whether he is present or
absent at the time of the commission of it. If tlie agencies
oniploycd contribnto no culpability of will to the act the

158

Principals and Accessories 159

instigator is alone responsible. The common law, how-
ever, recognized a distinction between the principal
actors based upon the part each performed.

§ 187. Principals of the first and second degree. Any
actual participation in the commission of a crime is a
])rincipal in the first degree. All persons who at the
time of the commission of a crime, aids, abets or coun-
sels it, although they do nothing in the actual accom-
plishment of it are principals in the second degree. A
constructive presence is sufficient to make one principal
in the second degree. The perpetrator who actually does
the act is the principal in the first degree.^ One who
jirocures an innocent agent to commit a crime is a prin-
cipal in the first degree although not present himself
at the time. Thus inciting a child under the age of
seven years or a lunatic to commit a crime. To admin-
ister poison to one through an innocent agent having no
knowledge that it is poison will constitute such person
a principal in the first degree.^

§ 188. All persons engaged in the commission of a
crime are principals. It makes no difference, whatever,
who inflicts the fatal blow or who does the actual crime.^
In conspiracies all participants are principals. The dis-
tinction between principals in the first and second degree
have become obsolete or have been abolished altogether
in most of the states of the union. There never was any
sound reason it appears why there should have been any
distinction, for at the common law both received the

1 — 1 Greenl 40; Cotton v. State, 4 Park Cr. Cas. 234. Kline v. Peo-

32 Tex. 614; Jackson v. State', 9 pie, 31 N. Y. 229; Kenedy v. Peo-

Tex. App. 114; Massey v. State, 27 pie, 40 111. 488.

Tex. App. 159. 3— Berry v. State, 4 Tex. App.

2— State V. Mathews, 20 Mo. 55; 492; Templeton v. State, 5 Tex.

Spies V. People, 122 111. 1; Black- App. 398; Harmon v. State, 5 Tex.

burn V. State, 23 Ohio St. 146 ; Berry 549 ; Spies v. People, 122 111. 1, and

V. State, 10 Ga. 518; Com. v. Hill, note 3 Am. St. Eep. 320, 12 N. E.

11 Mass. 136; People v. McMurrey, 865, 17 N. E. 898, 6 Am. Cr. E. 570.

160

Criminal Law

same pnnisliment. If several persons agree to commit
a crime and by the terms of their agreement each is to
perform a part in connection with the common plan they
are all principals, although all are not present at the
time of the actual commission,* Thus in pursuance with
an agreement between B, C and D, whereby B is to set
fire to a dwelling house, and C to stand upon a street
corner, and D is to keep watch with a conveyance in some
other quarter in order to more effectually aid B in mak-
ing his escape from the scene of the crime, B is guilty
of arson as principal in the first degree and C and D in
the second degree.^

§ 189. Distinction of accessories from principals in
second degree. The distinction between accessories
before the fact and principals in the second degree, as at
common law, have been superseded by statute in almost
all the states. In Illinois all parties participating in the
commission of a crime are principals whether the part
performed be by inciting, advising or counseling or by
actually aiding in the commission.® In the code of Texas
the distinction is maintained, but is known under the
term ''accomplice." The distinction as to "principals"
in the first and second degrees have been abolished.'''
The term ''accessory" presupposes the existence of a
principal. One who advises or counsels the commission

4—3 Grccnl 46; 1 Hale 437;
United States v. Wilson, 1 Bowl.
102.

5—1 Gallisons 's rep. C24 ; IT. S. v.
Gilbert, 2 Summers 19; 3 Greenl 40;
Com. V. Knapp, 9 Pick 496; Koscoe's
Cr. Ev. 167.

6— Spies V. People, 122 111. I, 3
Am. St. Rop. 320, 12 N. E. 865, 17
N. E. 898, 6 Am. Cr. Rep. 570;
Baxter v. People, 3 Glim. 368;
Dcmpsey v. People, 47 Til. 323.

7 — "If the parties acted together,

ill the commission of offense they
are principals. If they agreed to
commit the offense together, the one
who actually coniniittcd the crime,
is the principal, while the other,
who was not present and was not in
any way conned ed with its commis-
sion, or by keeping watch or by se-
curing the safety, or concealment of
the principal, would be an accom-
plice." Bean V. State, 17 Tex. App.
460; Parker v. State, 24 Tex. App.
61 ; West V. State, 28 Tox. App. 241.

Principals and Accessories 161

of an offense becomes an accessory as soon as it is com-
mitted. If he aids in the actual fact of commission he
then is a principal.® At common law the advantage de-
rived from the distinction between principals and acces-
sories was mainly in the time of trial.® There can be no
accessories before the fact to the crime of manslaughter."
Because of the peculiar nature of the crime, or rather
the facts and acts under which it may be committed, there
can not ordinarily be accessories before the fact. The
most usual fonii of manslaughter is where homicide is
committed in the heat of passion. But upon the prin-
ciples of the common law where one advises, incites or
counsels the commission of a felony, and such person in
pursuance with such advice, inciting or counseling, in
attempting to commit the crime and by accident kills
another person there is no good reason why the instigator
of the crime originally would be guilty of the same
crime as that of the actual peii)etrator, murder or man-
slaughter.

§ 190. Offenses at common law that has no accessories
before the fact. At the common law there were no acces-
sories before the fact to the crime of high treason. This
was confined to high treason for in cases of petit trea-
son which consisted in the wife murdering the husband,
or the servant murdering the master, merged into the
murder and became, in fact, a felony." In the case of
petit treason, the punishment appears not to have been
different from that of felony, and the term "petit trea-

8— Com. V. Glover, III Mass. 395 ; Ogle v. State, 16 Tex. App. 361 ;

Lenard v. Poole, 114 N. Y. 371, 11 Hogan v. State, 10 Ohio St. 459.

Am. St. Eep. 667 ; Chapman v. State, 11 — 4 Blackstone Chapter on Trea-

43 Tex. App. 328, 65 Sh. 1098, 96 son. There was this distinction be-

Am. St. Eep. 874. tween the punishment for high and

9 — 1 Hale 623 ; State v. Cranch, petit treason, that in the former the

2 Bailey 66. forfeiture was of a greater extent

10— Slip V. State, 11 Ind. 62; than in the latter.
Cartwrite v. State, 16 Tex. App. 493;
C. L.— 11

162 Criminal Law

son" was one of opprobrium, rather than differing from
felony in fact. This distinction between petit treason
and felony is not known in our countiy. At the common
law there appears not to have been accessories after the
fact; this was merged into the crime of misprision of
treason. ^^ So also at common law there were no acces-
sories either before or after the fact in misdemeanors.^'
All persons participating were principals, and we know
of no statute that has changed the common law in this
respect. The maxim of the common law, quae de minimis
non curat lex seems to have been applied as a reason
why there should not be accessories to this grade of
offenses. The reason why there should not be accessories
in treasons and misdemeanors are assigned upon opposite
grounds. In the fonner the crime is of such grave nature,
it is assumed that all should be equally punished, and
the latter, all should be equally guilty for the reason that
the crime is so trifling and insignificant that the ends
of justice will be subserved by punishing all alike.^*

ACCESSOETES BEFOEE THE FACT

§ 191. Accessory before the fact defined. An accessory
before the fact is where one before the commission of a
felony advises, counsels and procures another to commit
it, he being absent at the time of the perpetration there-
of.^^ If the defendant is in such a position as to render
aid at the time of the commission of the crime to the
actual perpetrator he is a principal in the second degree.^^
Thus standing by and keeping watch, holding a horse
at a point agreed upon in order to render assistance to
the perpetrator to escape or othenvise protect him,

12 — 4 Blackstone Cliap Treason. pie, 122 111. 3, Am. St. Kcp. 320;

13—4 Blackstone 35. Eod v. State, 73 Am. St. Rep. 965;

54 — People, V. Bliven, 112 N. Y. People v. Blivon, 8 Am. St. Eep.

79, 8 A. S. r! 701, and note. (N. Y.) 701, 112 N. Y. 79, 19 N.

15—1 Halo G15; 4 Blackstone 36. E. 638.
16—1 Leach 515; Spies v. Peo-

Peincipals axd Accessories

163

makes one a principal in the second degree.^^ The con-
trolling fact in this crime is that of advising, counseling,
procuring or commanding another to commit a crime.
One may be guilty of accessoiy before the fact, notwith-
standing he does not know at the time of the advice,
counseling or inciting, or does not know at the time of the
actual committal of the crime who it is that is to do, and
who actually does the job." Thus if A procures B or
incites, or advises him to cause some third person to com-
mit a crime, A is responsible whether he knows who com-
mitted it or not.^^

§ 192. The principal actor must do the thing agreed
upon. If A procures B to commit murder, and he com-
mits robbery instead, acting upon his own responsibility,
A will not be guilty of advising, inciting and counseling,
the crime of robbeiy because B failed to follow his in-
structions. But if A procures B to kill C, and B in un-
dertaking to carry out the instruction of A, kills D whom
he takes for C, A will be accessory to D 's murder.^^ So
if A instructs B to burn the dwelling house of another,
and in his efforts to do so, unintentionally kills C this will
also make A accessory. The agent is required to carry
out the instruction of his principal, and if he purposely
fails to do so, and does a different thing from that agreed

17— Lamb v. People, 196 111. 73-
82; McCarney v. People, 83 N. Y.
408.

18— Spies V. People, 122 111. 1, 3
Am. St. Eep. 320, 122 lU. 1, 12 N.
E. 865, 17 N. E. 898.

19 — Court says: "One may be
accessory to an unknown principal
in the perpetration of crime. If
the principal felon is unknown, the
indictment of the accessory may
state it accordingly. If there are
two counts in the indictment, one
charging the principal to be known

and the other charging him to be un-
known, it is sufficient if either is
shown." Spies v. People, 122 111.
1. 3 Am. St. 320, 12 N. E. 865, 17
N. E. 898.

20 — "A hires B, to shoot C, at a
certain hotel, but B seeing C enter
another hotel on the same night,
and shoots him there, A is guilty
of aiding, abetting and advising
and counseling the shooting of C. "
Spies V. People, 122 111. 1, 3 Am.
St. Rep. 320, 12 N. E. .865, 17. N. ■
E. 898.

164 Cbiminal Law

upon his principal is not guilty or responsible for his
acts. The rule is well settled that where one intending
to commit a crime of a particular nature fails to commit
specifically it, but another, he will be guilty of intending
the reasonable and probable consequences growing from
his unlawful and wicked intent.^^

§ 193. An accomplice defined. An accomplice is one
who aids, abets, counsels and advises another to the com-
mission of a crime — that is a felony, and who is not pres-
ent at the time of the commission of the offense. This
corresponds in legal parlance to the common law acces-
sory before the fact. The tenn ' ' accomplice ' ' in its most
comprehensive sense includes all particeps criminis, but
in its technical sense under the statutes means only an
accessory before the fact as defined by the common law.^^
A person convicted of larceny is not an accomplice with
another charged with buying and receiving the stolen
property, knowing it to have been stolen.^'

§ 194. The government may discharge an accomplice
upon agreement to testify. The prosecuting power of
the state may discharge an accomplice upon an agree-
ment by him to testify against his co-defendant. This
under the English practice, in common parlance, is termed
** turning queen's evidence" or ''king's evidence;" in
our country, "turning state's evidence." It is merely
an agreement on the part of the government through the
department of justice, or the prosecuting officers with

21— Bower v. State, 24 Tex. App. 12 Ohio St. 146, 80 Am. Dec. 340 ;

542, 550, 5 Am. St. Rep. 901, 7 S. Moody v. State, 6 Cold 299; Wil-

W. 247; State v. Meyers, 19 la. liams v. State, 47 Ind. 5G8; People

517; Cox V. State, 8 Tex. App. 254; v. Woody, 45 Cal. 289; Green v.

U. S. V. Doyle, 6 Saw. 612; Phillips State, 1.3 Mo. .'582.
V. State, 6 Tex. App. 364; U. S. v. 22— Eoach v. State, 4 T«x. App.

Buttler, 1 Hughes 11; Hanna v. 46.

People, 86 111. 243; Stevens v. 23— State v. Kuhlman, 152 Mo.

State, 17 Tex. App. 618; Miller v. 100, 75 Am. St. R«p. 438.
State, 25 Wis. .',84 ; Breese v. State,

Principals and Accessories 165

the defendant that if he will tell the truth of the matter
and the connection he and his co-defendants had with
the crime charged against them, that the case against
him will be dismissed from the docket of the court.
Sometimes the agreement is entered into before indict-
ment, and indeed the most usual practice is to fail to
indict when the defendant testifies according to agree-
ment. This manner of obtaining evidence against a
co-defendant is justified upon the theory that unless
such agreements are upheld and acquiesced in by the
courts, in many cases it would be practically impossible
to bring the guilty offenders to justice.^*

§ 195. What must be done by the informer to establish
his immunity. As a general rule, in order that the de-
fendant may claim his immunity from punishment or
prosecution, it is necessary that he show that he has kept
the agreement made with the prosecuting officer, and the
same was approved by the court.^^ At the common law,
and even in this country, the agreement and the subse-
quent testifying by the defendant in accordance with it
did not, as a matter of right or of course, entitle the
accomplice to be discharged, but only gave him an equit-
able claim upon the executive to grant a pardon after his
conviction. The court in a Texas case declares that if
the state can make and has the legal power to enter into
an agreement with an accomplice for his immunity from
prosecution upon his testifying in the case against his
co-defendant, that it is due, in order to maintain the
state 's good faith and dignity of sovereignty, to see that
the contract made by its officer is complied with.^^

24—1 Greenl. Ev. 379, 380, 381; Peter, 48 Cal 251; People v. Bruzzo,

1 CMtty Cr. Law, 604; 4 Bla. 330; 24 Cal. 41; U. S. v. Ford, 99 U. S.

Eoscoe's Cr. Ev. 121-2; Knapp v. 594.

Com., 10 Pick. 478; U. S. v. Henry, 26— Cameran v. State, 32 Tex.

4 Wash. C. C. E. 428. App. 180; Bowden v. State, 1 Tex.

25— State v. Graham, 41 N, J. L. App. 189; Holmes v. State, 20

15, 32 Am. E«p. 174; People v. Tex. App. 517.

166

Criminal Law

§ 196. The testimony of an accomplice must be cor-
roborated. It is a general mle that the testimony of an
accomplice shall be coiToborated before a conviction of
his partner in the crime may be had. The rule, it ap-
pears, had its foundation in the practices of the courts
and the custom has grown into a positive rule.^' The
early practices of the courts appear to have been to admit
the evidence upon the same plane with other evidence,
and whether the evidence presented a sufficient probative
force was a question for the jury only, and not one of
law. The practice usually is, for the court to instruct
the jury that if the testimony of the accomplice cannot
be corroborated, then they cannot convict upon such evi-
dence; that, as a matter of law, it is not sufficient. The
extent of corroboration is a matter for the juiy.^' It is
not required by the rule above that all the testimony of
the accomplice be corroborated.^^

27 — Hoyle v. State, the court
says: "At coninion law it has been
repeatedly held that conviction on
the testimony of an accomplice, un-
corroborated, is legal. Eoscoe's Cr.
Ev. 6th Ed. 121."— see 4 Tex. App.
244.

28—1 Greenl. Ev. 381; Hoyle v.
State, 4 Tex. App. 244; Thomas v.
State, 43 Tex. 6-58; Miller v. State,
4 Tex. App. 51; Lopez v. State, 34
Tex. 133; Burton v. State, 21 Tex.
348; Roberts v. State, 44 Tex. 119.

29 — People v. Ciinzl)ol, 14 Pac.
836; State v. Roberts, 15 Ore. 187,
13 Pac. 896; Roach v. State, 4 Tex.
Ai)p. 46; Avery v. State, 10 Tex.
Apj.. 199; Powcl V. State (Tex.) 3
S. W. 570; Coffclt v. Slate, 19 Tex.
App. 436. Tlie court says: "A
conviction cannot lie had on the tes-
timony (if an accomplice unli'ss cor-
roborated by otlicr evidence tending
to connect the defendant with the

offense charged; and the corrobora-
tion is not sufficient if it merely
shows the commission of the offense,
nor can one or more accomplices cor-
roborate each other, but the evi-
dence must come from other sources.
An accomplice in the sense used in
the foregoing means connected with
the crime committed, either as a
princi}ial or otherwise."

In House v. State, 19 Tex. App.
227, the court uses the following
language: "The .jury are further
instructed that the testimony of an
acci)mplice is not sullicient to cor-
roborate the testimony of another,
but in order to warrant a convic-
tion on the testimony of an accoin-
plicc, no matter liow many there
be who testify in the case, must be
corroborated by other evidence
wliidi the jury believe to be true,
tt-ncling to connect the defemlant
with tlio crime, and that such cor-

Peincipals and Accessories 167

accessories after the fact

§ 197. What must concur to constitute an accessory
after the fact. Three facts must concur in order to con-
stitute an accessory after the fact: 1. Felony must have
been committed. 2. The defendant must have rendered
aid or comfort looking to the escape, concealment, or to
other^vise protection of the principal felon. 3. It must
appear that the defendant knew that a felony had been
committed at the time he rendered such aid or assistance.
At the common law all persons, except the wife of the
felon, may be guilty as accessories after the fact.^° It
is absolutely essential that the defendant should have
known at the time of rendering the assistance to the
principal that a felony had been committed. It is not
enough to show that after rendition of the aid that it
came to the knowledge of the accused, that the felony
had been committed.^^ At the common law an accessory
after the fact could not be convicted until after the trial
and conviction of the principal.

roboration is not suflBcient if it husband protect the wife, the father

merely shows the commission of the the son, a brother his brother, they

offense." contract the guilt and are liable to

30 — i Bla. 39 ; says Chitty in Vol. punishment of accessories to the

1, Cr. Law: "But no other ties, original felony."

however near, will excuse j for if the 31 — 1 Chitty Cr. Law, 264.

CHAPTER IX

FORMEE JEOPAEDY

§ 198. This is a law of universal
conscienee.

§ 199. As to State and Federal gov-
ernments.

§ 200. Constitutional provisions.

§ 201. State and Federal govern-
ments distinct.

i 202. As to the administration of
military laws.

§ 203. Courts of concurrent jurisdic-
tion,

§ 204. One criminal cannot atone
for his brother in crime.

§ 205. All participators in crime
punished.

§ 206. Jeopardy is applicable to of-
fenses of common elements.

§ 207. Different crime proceeding
from same facts and acts.

§ 208. Minor offenses included in
greater.

§ 209. Same continued.

WHAT CONSTITUTES JEOPARDY

§ 210. As to indictment.

§ 211. Variance between indictment

and proof.
§ 212. Court of the indictment must

have jurisdiction.

§ 213. Different counts.

§ 214. New trial and arrest of judg-
ment.

§ 215. Further considered.

§ 216. State in a criminal case has
no right to appeal.

§ 217. Two offenses committed by
the same act.

§ 218. Larceny from different per-
sons at the same time.

§ 219. Passing forged paper, etc.

§ 220. Cardinal doctrine of jeop-
ardy, what is.

§ 221. Test of the rule.

§ 222. Arraigimient.

§ 223. Discharge of jury.

§ 224. Failure of jury to agree.

WAIVEE OF EIGHTS

§ 225. Wliat is.

§ 226. At common law.

§ 227. In American States.

§ 228. Eights that cannot be waived.

§ 229. Implied consent to waiver

sufficient.
§ 230. The authority of counsel to

waive.
§ 231. Summary.
§ 232. Nolli Prosequi.

§ 198. This is a law of universal conscience. The rule
of law that a person who has been convicted or acquitted
of a criminal cliarge should not again be tried by a court
for the same tiling appears to be a law of universal con-
.science, dictated by common justice every where. Hence,
altliough the same is a constitutional provision with us,

168

Former Jeopardy 169

yet, nevertheless, there is no reason to doubt that it is
so firmly imbedded in the law of justice that it finds ap-
proval wherever the common law is enforced.^ Thus,
founded upon these principles, a defendant charged with
an international crime, such as piracy, over which all
nations have jurisdiction to try and punish, the convic-
tion or acquittal by one nation would be a bar to a sub-
sequent trial by another.'*

So this rule is extended indefinitely to include all cases.
The principle of auter-foir acquit and convict are founded
upon the plainest dictates of right.

§ 199. As to the state and federal governments. The
rule of the state and federal courts appear to be pretty
well agreed, where the act is made penal by both gov-
ernments, the conviction or acquittal under the one would
not be a bar to a subsequent trial in the other, but there
is a tendency in the authorities, in the direction of al-
lowing the bar, especially where the punishments are of
the same degree. This, however, lies more in the dis-
cretion of the court than in a rule of law. Where the
act in question is a violation of both a state and a
federal law, both governments have jurisdiction.^ This
rule is established upon the theory that the federal and
state governments are distinct and independent sov-
ereignties. And for the same reason the same act, penal
by the laws of different states, would not be barred by a
conviction or acquittal in another.

§ 200. Constitutional provisions. ' ' No person shall be
twice put in jeopardy of life or limb" is a provision of
the constitution. The constitution grants the power to

1—3 Greenl. 35; XJ. S. v. Gilbert, the plea of auter-foir acquit would

2 Sumners, 42. be good in any civilized state." U.

2— "Eobbery on the high seas is S. v. Pirates, 5 Wh. 184-197.
considered an offense within the 3— U. S. v. More, 5 Wh. I; State

criminal jurisdiction of all nations. v, Tutt, 2 Bailey Law, 44; 21 Am.

It is against all and punished by Dec. 508; Cross v. North Carolina,

all; and there can be no doubt that 132 N, C. 131.

170 Criminal Law

congress to "provide for the punisliment of the coun-
terfeiting the securities and the current coin of the United
States." It was regarded as a doubtful question for a
long time whether the act of counterfeiting could be
prosecuted and punished under state laws, but it is well
established now that a state may punish counterfeiting
the coin of the United States. Really it is a question of
jurisdiction, and where the state makes the act of coun-
terfeiting penal it has ample jurisdiction to punish the
same, and its authority is based upon the theory that
counterfeiting constitutes two distinct crimes, one of
which is a crime against the government of the United
States, and the other a crime against the government of
the state. Hence, in this particular instance, the same
act is punished twice, and a conviction or acquittal in
one jurisdiction would not be a bar to the other.*

§ 201. State and federal government distinct. From
these observations it is clear that the federal and state
sovereignties and the state themselves are independent
of each other, and an act which is a violation of the law
of the one would not be a bar for the same act as the
violation of the law of the other. The peculiar constnic-
tion and spirit of our institutions, however, in most in-
stances appeal so strongly to the consciences of the courts
in the administration of justice that little doubt is enter-
tained that a conviction in the one would be permitted
as a bar to the same act in nnothor.^

§ 202. As to the administration of the military laws.
This question of jurisdiction often arises in the trial of
cases in the military courts. The 58th and 59th articles
of war provide that the niilitaiy courts may have juris-

4— Fox V. state of Ohio, 5 U. S. 9 How. 5G0; Ex parte Lange, 18

410. Wall. 201; Ex parte Young, 36 Ore.

G— Marshall v. Slate, 6 Neb. 120, 2.10, 48 L. R. A. 154; Moose v. lUi-

29 Am. ]{cp. 363; U. S. v. Marigold, nois, 14 IIow. 13, 14 L. Ed. 305.

Former Jeopardy 171

diction over certain offenses which are also crimes against
the laws of the states.

In times of war the crimes committed by privates and
officers of the army are exclusively within the jurisdic-
tion of the military courts, but in time of peace the mili-
tary officers are bound under penalties to deliver such
offenders to the civil authorities upon the application of
the accused to have his cause tried in the civil tribunals.
In one case, however, it has been held, where the pris-
oner failed to make application to have his case turned
over to the civil authorities and the military courts as-
sumed jurisdiction, that under such a state of circum-
stances the militaiy courts had jurisdiction, but the
court refused to pass upon the question whether it would
operate as a bar to a prosecution in the state court.^

§ 203?'Courts of concurrent jurisdiction. The rule is
well established that in courts of concurrent jurisdiction
a trial in the one will bar that in another.'' The court
first acquiring jurisdiction is entitled to the full control
and its judgment is binding on all courts of the same
jurisdiction.

§ 204. One criminal cannot atone for his brother in
crime. Every sane person, unless otherwise exempt, is
responsible individually to the law for the violation
thereof, and it makes no difference whether his will and
individual acts produced the crime, or whether his will
in conjunction with the intention and action of others
produce it, he is yet, nevertheless, guilty of some degree
of the violated law.

The punishment which the law^ assesses cannot be in-
flicted jointly, but must be inflicted severally upon each
guilty of the same thing.

6— Mason v. U. S. 105 U. S. R. 7— State v. Robertson, 9 N. C.

696; see also Grafton v. United 756.
States, 206 U. S. 333, 51 L. Ed.
1084, 11 Ann. Cas. 640, and note.

172 Criminal Law

The act may be by the joint act of all, yet the judg-
ment of the law is several. One criminal cannot atone
for his brother in crime.^

In this respect the redress of the state against those
who violate the criminal laws, is distinguishable from
that for the violation of mere private rights. The judg-
ment of the law in the latter case is either joint or joint
or several, and the redress by the law may be sought for
and recovered from the joint effects of all, or from the
effects of one only.

In either case the law is satisfied and operates as a
perpetual bar to any further proceedings to enforce it
in another court or in the same court.

There are cases where a civil or private right against
many persons might be enforced against each severally,
as where one only complies with the judgment of the
court, this would not operate as a bar for the other.

An illustration is found where two or more are guilty
of violating the rights of another, which violation is of a
continuing nature, and who have been restrained from a
further interference with those rights. Of course in this
character of cases the one delinquent could not be justi-
fied upon the ground that another had complied with the
judgment against him. The criminal law requires each
of its violators to atone individually.

In those cases where the joint intent of two or more
persons are required to commit a crime, the acquittal
of the one will operate as a bar to a further prosecution
of the others, for the very evident reason that if one is
found to lack the intent — or, in other words, the intent
being joint, and as the result of the trial of the one it
is found not to exist as to him — then it cannot be shown
in a subsequent prosecution against the other that the
intent did actually exist, for the matter of the intent has

8 — Mcdis V. state, 27 Tex. App. Com. v. Harris, 7 Gratt, 600; Curd
194, 11 Am. St. Rep. 192, 11 S. W. v. Com. 14 B. Mon. 386; Watson v.
112; Coldwell v. Com. 7 Dana, 229; State, 3 Wis. 785.

FoEMER Jeopardy 173

been adjudicated and found not to have existed. This
may be illustrated and examples found in the crimes of
riot, conspiracy, and incest, or in other crimes where
the law requires that each party to the offense have com-
mon knowledge of the relation and circumstances under
which they act. Thus it has been held that where, under
a statute declaring, ' ' if any step-mother and her step-son
shall have carnal intercourse together, having knowl-
edge of their relationship," an acquittal of one was a
bar to the prosecution of the other.^ In those crimes
which require the joint and concurring intent of the par-
ticipants and as well as the physical participation, the
joint participation, will not of itself, independent of the
concurring criminal intent, constitute the crime, as in the
above illustration. There is a class of crimes, such as
adultery and fornication, where there is a joint physical
participation, the acquittal of one of the participants
will not bar the prosecution of the other, where there
is not, in the particular case a concurring intent to
commit the crime. As to this there are conflicting
authorities, but we believe that the weight of reason, as
well as of authorities, sustain the doctrine that in the
cases of adultery, fornication, and incest that the ac-
quittal of one will not operate as a bar to the other.^°

§ 205. All participators punished. As we have seen in
the preceding section that each party to a crime must
answer to the law for his participation therein, hence the
acquittal of one of several joint participators will not
operate as a bar to the other, the theory of the law being
that all violators be punished equally, according to his
participation, and the quantum of intent." This, per-

9— Baumer v. State, 49 Ind. 544, 378, 49 Am. Rep. 207; Ledbetter v.

19 Am. Rep. 691; Id. 19 Am. S. R. the State, 21 Tex. App. 344, 17 S.

691; Delaney v. People, 10 Mich. W. 427; State v. Ellis, 74 Mo. 385,

241. Id. 41 Am. R. 321.

10— Alonzo V. State, 15 Tex. App. 11— State v. McClintock, 1

174 Criminal Law

haps, cannot be true in all cases, but relatively it is true.
To illustrate : A and B engage in a common purpose to
murder C as principals; A is put on his trial and is con-
victed of murder in the first degree; B is put on trial
before a different jury and is convicted for the murder in
the second degree. In the former the punishment is
death and the latter a term in the penitentiary. So, upon
the trial of equal participants, one may be convicted and
the other acquitted, and yet the acquittal of the one will
not be a bar to the conviction of the other. So, it has
been held, that where one has been acquitted as a prin-
cipal he may be convicted as an accessory to the same
crime. ^^ Where several are jointly charged in the same
indictment and jointly tried, the acquittal would operate
as a bar to the subsequent prosecution of one of the par-
ticipants singly.^^

§ 206. Jeopardy is applicable to offenses containing-
common elements. Thus a conviction for unlawfully sell-
ing liquor without a license will not operate as a bar to
a prosecution for maintaining a nuisance for selling the
liquor. Both being independent and substantive of-
fenses, the elements of the one do not enter into the other.
So, also, upon an indictment for selling liquor to a minor
without his parent's or guardian's consent a conviction
for the selling the liquor without a license is not a bar
for selling the same liquor to the minor.^* So, where
selling lottery tickets and being a common gambler is
each a violation of the law, the conviction of the one is
not a bar for the other.^^ Selling liquor on Sunday is
not a bar for selling the same liquor without license. ^^
Where there are several counts in the same indictment

Greene, 392; Com. v. McChard, 2 14— Ruble v. Slate (Ark.), 10 S.

Dana, 242; State v. Rose, 29 Me. W. 362.

32. 15— People v. Dewey, 58 How. 62.

12— State V. I.arkin, 40 N. H, 36. 16— ArriiiKton v. Com., 87 Va. 96,

13— State V. Martin, 30 Wis. 216, 12 S. E. 224; People v. Sincll, 131

11 Am. Rep. 567. N. Y. 571, 30 N. E. 47.

FoBMEE Jeopardy

175

for the violation of the same law and the defendant has
pleaded to all of them and the prosecution has elected
which it will ask conviction on, an acquittal is a bar for
a subsequent prosecution for any of the counts.^' A con-
viction for selling liquor subsequent to a certain date is
not a bar for selling liquor prior to that date." If the
defendant can show that the prosecutions cover the same
transaction, then the plea of former jeopardy may be
successfully invoked. If, however, they are different in
any material respects then it will be no avail."

§207. Different crime proceeding- from same facts.
Where the law creates two or more offenses, the criminal
elements of which proceed relatively from the same facts,
yet the fact of one necessary to sustain it, being in some
respect immaterial in the other, the conviction or acquit-
tal in the one will not constitute former jeopardy, and a
conviction may be had for the other.^°

Thus, to illustrate: AVhere the statute makes it penal
to sell intoxicating liquors unless first a license is pro-
cured, and where it also provides that a sale of liquor
to a minor without the written consent of the parents or
the guardian shall be punished, etc. In this case it is
to be noticed that the sale of the liquor is a common
element of both offenses, yet it requires entirely different

17— People V. Sinell, 131 N. Y.
571, 30 N. E. 47.

18— Murphy v. State (Neb.) 41
N. W. 792; 25 Neb. 807. Where
there is any difference in the of-
fenses, i. e., substantive and dis-
tinct crime, such as principals and
accessories, the conviction or ac-
quittal will not operate as a bar to
the other. Chitty 's Cr. Law, 452.

19 — State V. Judge of Second Ee-
corder's Court, 43 La. Ann. 1119,
10 So. 179.

20— Com. V. Vaugn, 4 S, W. 117;

Euble V. State (Ark.) 10 S. W. 262;
State V. Sonnerkolf, 2 Mott. & M.
280; Com. v. Harrison, 11 Gray,
308; State v. Franklin (La.) 2
South. 539; Com. v. Thompson, 24
Pick. 374 ; Hopper v. State, 19 Ark.
146; Williams v. State, 35 Ark. 434;
Com. V. Vaughn, 101 Ky. 603, 42
S. W, 117, 45 L. R. A. 858; Stewart
V. State, 35 Tex. App. 174, 32 S.
W. 766, 60 A. S. R. 35; Jones v.
State, 66 Miss. 380, 6 So. 231, 14 A.
S. R. 570, and note.

176 Criminal Law

evidence to convict. Under the former statute the main
fact to be proved in order to convict is that the liquor
was sold without first having obtained a license to sell,
but in the latter the main fact to be proved is that the
liquor was sold to the minor without the consent of the
parent or the guardian, and it is immaterial whether he
had a license to sell or not, and in the former the seller
would be guilty if he had no license even if the consent
of the parent had been given to the minor. So, upon
the same line of reasoning, it has been held that where
two statutes, one of which imposed a penalty of fifty
pounds upon a person retailing liquor without license,
and the other by imposing a fine of a thousand dollars
and imprisonment for selling to a negro without a ticket,
that a conviction of the one was not a bar to the other;
so the act of buying goods from a negro, knowing the
same to have been stolen, subjected the party buying to
two punishments: one for the buying the stolen goods,
knowing them to be stolen, and the other for buying from
a negro without a ticket. So, also, where a party is en-
trusted with the personal property of another and he rep-
resents to another that he is the owner, whereby he
induced such party to part with his property in exchange
for the property that has been entrusted to him, he is
guilty both of the crimes of embezzlement and of obtain-
ing goods under false pretense. It has also been held
that it is no bar to a prosecution for keeping an open
shop on Sunday where the party has been acquitted for
selling liquor without license. One of the tests, says the
court in the case of Commonwealth v. Vaughn, 42 S. W.
Reporter at page 118, to determine the identity of of-
fenses is, if the evidence of facts alleged in the second
indictment is not within itself sufficient to convict under
the first indictment, the offenses charged in the two in-
dictments are not the same.

§ 208. Minor offense included in a greater. Tt is a well
settled rule tiiat when a minor offense is included in a

FoKMER Jeopardy

177

greater, and both are properly pleaded in the same in-
dictment, a conviction of the minor will be a bar to a
subsequent conviction for the major.^^ But, however, if
for any reason, either in the pleadings or in the nature
of the offense, there could not have been a conviction
or an acquittal of the higher offense, a conviction of the
lesser will not be a bar to a subsequent trial for the
greater.^^ But, as previously stated, in an indictment
for murder a conviction for manslaughter is a bar to sub-
sequent prosecution for the murder. So, also, a trial for
murder, a conviction of murder in the second degree is a
bar to a subsequent indictment for the same murder in
the first degree.^^ So, also, the prosecution for an as-
sault and battery, the conviction of an assault is a bar
for the assault and battery, and an assault and battery
bars a prosecution for an assault to murder where the
charge is murder. A conviction or acquittal of the as-
sault to murder will not bar the prosecution for the
murder if afterwards the party assaulted dies as the
result of the assault, this, for the reason as above stated,
that if for any reason the greater offense could not have
been passed upon in the trial for the lesser.

§ 209. Same, continued. In prosecutions of offenses
containing a lesser and a major offense, a conviction of

21— state V. Wiles, 26 Minn. 381;
Com. V. Sheldon, 3 Mass. 188; State
V. Murray, 55 la. 530; State v. Biz-
zell, 58 N. H. 257; People v. Smith,
57 Barb. (N. Y.) 46; Hickey v.
State, 23 Ind. 21. Defendant con-
victed of a simple assault under an
information charging aggravated as-
sault. There was no express acquit-
tal of the aggravated assault; held
that the conviction could be pleaded
in bar for a subsequent prosecution
for the aggravated assault. Kober-
son v. State, 1 Tex. App. 160.

22— Winn v. State, 82 Wis. 576,
52 N. W. 775; Johnson v. State, 19

C. L.— 12

Tex. App. 453, 53 Am. R. 385; State
v. Littlefield, 70 Me. 452, 35 Am.
Rep. 335.

23— Jones v. State, 13 Tex. 169;
State V. Moon, 41 Wis. 684, 2 Am.
Cr. Rep. 64; Parker v. State, 22
Tex. App. 105; People v. Dovsming,
84 N. Y. 478. One who is indicted
for murder in the first degree and
convicted of the second degree is
thereby acquitted of the first de-
gree, cannot upon a new trial be
again convicted of the first degree.
Johnson v. State, 19 Tex. App. 453,
53 Am. Rep. 385.

178 Criminal Law

the major bars a subsequent prosecution for tlie lesser.'^*
Thus, as already noted, a conviction or an acquittal of a
murder is a bar to a subsequent prosecution for man-
slaughter, but in murder and in the lesser degrees a con-
viction or acquittal of any one of them or all of them
is not a bar to a prosecution for carrying a prohibited
weapon, with which the assault was committed. An ac-
quittal of larceny is no bar to the charge of acquiring
the goods by false pretenses, although an attempt was
made to procure a conviction of larceny upon the same
evidence introduced to support the subsequent prosecu-
tion for obtaining goods by false pretenses.^^ Nor is the
accused twice put in jeopardy by having his cause re-
manded for new trial after having had a former convic-
tion set aside for errors occurring at the trial in the court
below.^^ A person is in jeopardy whenever his cause has
been given to a jury upon a legal indictment and the jury
has been unnecessarily discharged.^''^

The constitutional protection guaranteed to a person
that he shall not be twice put in jeopardy of life or limb
means that no one shall, after an acquittal or con-
viction, be tried twice for the same offense, and it does
not prohibit a court in the exercise of a sound dis-
cretion from discharging a jury in a criminal case with-
out the defendant's consent.^® Where a party is charged
ill two indictments for stealing a horse and wagon, one
for stealing the horse and the other for stealing the
wagon, a conviction or acquittal for stealing the horse
is a bar for stealing the wagon where it was done at the
same time and in the same state.

24 — State V. Hall, 50 Ark. 28, G 20— Youiijr v. State, 98 Am. Dec.

S. W. 20; Brown v. State, 74 Tex. 791. 2 W. Va. 579.
App. 234, 1G7 S. W. 1014; Jones 27— Price v. Slate, 36 Miss. 356,

V. State, 13 Tex. 108, 62 Am. Doc. 72 Am. Dec. 195.
550. 28— Wrifilit v. State, 5 Intl. 290,

25— Consincck v. State, 40 Ala. 01 Am. Dec. 90; Fi.sher v. Com, 1

680, 91 Am. Dec 496. Bush (Ky.) 211, 89 Am. Doc. 620.

Former Jeopardy 179

what constitutes jeopardy

§ 210. As to indictment. Former jeopardy cannot be
predicated upon a defective indictment.^^ If tlie indict-
ment upon which the former acquittal or conviction is
based, is so defective in form or substance as to render
any judgment thereon subject to be arrested upon the
motion of the defendant, had he been found guilty under
it, will not operate as a bar. The indictment must be
sufficient to authorize all legal evidence necessary to a
conviction, and if such is the case it can make no differ-
ence whether the evidence was offered or not, the former
jeopardy is complete so far as the indictment is con-
cerned. So, if the court before whom the first trial was
had determined that the indictment was defective and
an acquittal is directed because of the want of authority
to admit legal evidence under it, or for any other reason
an acquittal is had, the fact that the court erred in his
judgment as to the validity of the indictment becomes
res adjudicata, and the jeopardy is complete and the
court of the second trial is bound to accept the judg-
ment of the first court as to the validity of the indict-
ment.^** The rule herein announced may be regarded as
the general rule upon this subject, but in some of the
states, by constitutional and statutory provisions, it is
immaterial whether the indictment is defective or not,
the jeopardy attaches at all events,^^ either upon convic-
tion or acquittal.

§ 211. Variance between indictment and proof. An-
other well established rule is, where there is a variance
between the allegation of the indictment and the proof

29 — Kearney v. State, 48 Md. 16; in the following cases: Dissenting

People V. Barns & Ward, 1 John. opinion of Walker in case Black v.

Eep. 66. State, 36 Ga. 447; State v. Gooch,

30— Black V. State, 36 Ga. 447, 60 Ark. 218; uaskins v. Com., 97

Id. 91 Am. Dec. 772; 3 Greenl. Ev. Ky. 494.
35 and 36. This view is sustained 31 — Anderson v. State, 24 Tex.

180

Ckiminal Law

and by reason of such defect tlie defendant is enabled to
be acquitted, sucli acquittal will not justify a bar to a
subsequent trial on the same indictment.^^ The reason
for this is very evident, because if the facts offered under
the indictment present a different state of facts than
that alleged in the indictment, there is in effect no trial
upon it. Thus the allegation that the property stolen is
the property of H. Franks, when the proof shows it to
have been the property of Thomas H. Frank, or where
the name Brison appears for Prison; ^^ or where there
is misnomer, either as to the correct name of the de-
fendant, or the name of the person upon whom the injuiy
has been inflicted; or where the means alleged in the in-
dictment is different from that offered in proof. ^* As
the acquittal for embezzling cloth from which coats are
made is no bar for embezzling the coats.^^

§ 212. Court of the indictment must have jurisdiction.
The court from which the indictment proceeds must have
had jurisdiction over the crime as well as over the person
of the defendant, otherwise an acquittal or a conviction
under it will not serve as a bar to another trial for the
same crime in a court having jurisdiction.^^

So, also, if the indictment is found by an illegally or-
ganized grand jury, or where some of the members are

App. 705, 7 S. W. 40 ; Hurt v. State,
25 Miss. 378, Id. 59 Am. Dec. 225;
Harper v. State, 59 Ark. 113; State
V. Ward, 48 Ark. 36, Id. 3 Am.
State Eep. 213, 2 S. W. 191.

32— Ex parte Eodges, 10 Tex.
App. 655; Mather v. State, 26 Ala.
72; Guedel v. People, 43 111. 226;
Com. V. FarrcU, 105 Mass. 189;
Com. V. Crisley, 107 Mass. 223;
Stale V. McCoy, 14 N. H. 3G4.

33— Parham v. State, 2 Tex. App.
228.

34 — People v. McNealy, 17 Cal.
332; Morgan v. State, 34 Tex. 677.

35— Com. V. Clair, 7 Allen, 525;
Com. V. Summerville, 1 Va. Cases,
163; Hite v. State, 9 Yearger, 357;
U. S. V. Nicholson, 7 How. 204;
Williams v. Com., 78 Ky. 93; Lcc v.
State, 26 Ark. 260, 7 Am. Eep. 611.

;!6-McN.cal v. State, 29 Tex.
App. 46; FUMiiiuiiig v. Slate, 16
To.x. App. 30; Wilson v. State, 16
Tex. App. 246.

Former Jeopardy

181

for any cause incompetent, the conviction or acquittal
will not constitute former jeopardy.^''

A judgment of a court without jurisdiction is void and
an absolute nullity, and hence a trial under such circum-
stances is in effect no trial, and the bar will not attach to
a second prosecution. But where the judgTaent of a
criminal court is merely voidable, the judgment of ac-
quittal or conviction, it appears that upon a second trial,
this judgment would be a bar in the absence of a reversal
of the judgment, conviction under a void indictment
where the accused has suffered the penalty will bar a sub-
sequent prosecution.^^

§ 213. Different counts. Where an indictment charges
in different counts the same crime but by different means
or modes a verdict of a jury upon one of the counts with
silence as to the others, a new trial granted will open the
whole case as though no trial had been had in the first in-
stance. But where the indictment charges in different
counts distinct offenses a verdict by the juiy upon one
count alone with silence as to the others, the defendant
stands acquitted as to those not mentioned in the verdict,
and in the event of a new trial the defendant may plead
former jeopardy as to those counts upon which verdict
was silent.^® In the former case there is only one crime
charged but it is charged to have been committed by dif-
ferent means or mode, and the verdict carries w^ith it the
same legal consequences, whether upon one or all the

37 — Thompson v. State, 6 Neb.
102; Marston v. Jenness, 11 N. H.
155; Kohlheimer v. State, 39 Miss.
548, 77 Am. Dec. 689, and note.

38— State v. Scott, 99 la. 36, 68
N. W. 45; Kohlheimer v. State, 39
Miss. 548, 77 Am. Dec. 689, and
note.

39 — See the following cases: Les-
ter V. State, 18 Ohio St. 391; Jar-

vis V. State, 19 Ohio St. 585; Bai-
ley V. State, 26 Ga. 579; Michel v.
State, 5 Yearg. 514; State v. Stan-
ton, 23 N. C. 424; Bro^ni v. U. S.,
52 S. W. 56. This latter is an In-
dian Territory case. Bell v. State,
48 Ala. 684, 17 Am. Rep. 40; Camp-
bell V. State, 9 Yerg. (Tenn.) 333,
30 Am. Dec. 117; Contra Pranfeth
V. State. 79 Vt. 236, 65 Atl. 84.

182 Ceiminal Law

counts for if this was not true, says the courts, the prose-
cution would often be defeated or greatly impaired in the
event the defendant upon his motion obtained a new
trial. Where the counts are for separate and distinct
offenses the verdict is necessarily several in its nature and
the finding as to each offense forms the basis for separate
judgments.

§ 214. Second as to the effect of a new trial and an
arrest of judgment. At the common law the courts could
not grant a new trial after a conviction in a felony case,
but in misdemeanors it appears that authority was not
wanting.*" So it has been held that where the statute
fails to change the rule of the common law in this respect,
the common law might be resorted to, to justify a refusal
to allow a new trial in a felony and a treason. This, how-
ever, has from the early part of the nineteenth centuiy
been declared generally not the law of the American
State as being repugnant to the genius of our institu-
tions, and in general it may be said that the rule of the
common law has never been followed with us.*^ So the
rule may be stated that in the absence of a statute the
defendant in a criminal case, as a matter of right is
entitled to reserve his exception to the court rulings dur-
ing a trial, and for material errors therein may have the
judgment set aside either in arrest of the judgment, or by
a motion for a new trial, or on appeal have a new trial
by a reversal of the judgment in a court of last resort.
At the common law, if for the errors of the court the
defendant had been improperly convicted, the conviction
had to stand and the usual practice seemed to have been
for the court to recommend to the king that a pardon be

40 — People v. Comstock, 8 Wend. 172; McCaul's Case, 1 Va. Cases,

549, 3 Bla. Com. 387; Younger v. 271; Ball's Case, 8 Leigh. 726; U,

State, 2 W. Va. 579, Id. 98 Am. R. v. Freis, 3 Dall. 375, 1 (L. C. P.

Dec. 791; People v. Marble, 38 Kd) U. S. Rep. 701; State v. IIop-

Mich. 309. kins, 1 Bay, 372; McCutcheon v.

41— Crump's Case, 1 Va. Cas. State, 176 Ind. 13, 93 N. E. 545.

FoKMEK Jeopakdy 183

granted. As a rule in the several states statutes cover
minutely the instances and circumstances under which
new trials may be had, or in the absence of the statutes
the courts have established the rule to allow the same
upon the application of the defendant in the furtherance
of justice. For the rule as at the common law, as appli-
cable to our country appears to be so foreign to our sense
of justice the great uncertainty and the delay incident
to the application, and the too apt abuse of the judge's
recommendation for pardon, and the further uncertainty
of the favorable action of the pardoning power, the
courts in order that the opportunities to do the defend-
ant an injustice might be reduced to a minimum have
allowed the defendant the right to apply and obtain with-
in certain well defined rules a second trial.*^

§ 215. Same continued. Based upon the foregoing con-
siderations the courts hold that the granting a new trial
does not operate against the constitutional provisions
of the states and the maxim of the common law that
''no person shall be twice put in jeopardy of life or limb. "
Hence where a new trial is granted to the defendant
either by the court before whom the cause was tried upon
the motion of the defendant, or where by appeal or writ
of error the same is reversed a second trial under such
circumstances is not a putting in jeopardy as contem-
plated by the constitution, and a conviction is not a bar
to the second trial. *^

§ 216. State has no right to appeal. The rule is well
established that in the absence of a statute extending the

42— Green's Case, 17 Mass. 525; 43 — Gannon v. People, 127 111.

Armstead's Case, 11 Leigh. 657, Id. 507, 11 Am. St. R. 147, 21 N. E.

37 Am. Dec. 623; Overbee's Case, 525; Lowe v. People, 5 Gilman, 305;

1 Eob. (Va.) 756; Marshall's Case, Com. v. Green, 17 Mass. 515;

5 Gratt. 663; Warenty's Case, 8 Younger v. State, 2 W. Va. 579, 98

Gratt. 712, 56 Am. Dec. 1G2; Young- Am. Dec. 707; Sutcliff v. State, 18

er V. State, 2 W. Va. 579, 98 Am. Ohio, 469, 51 Am. Dec. 459; People

Dec. 791. V. Travers, 77 Cal. 176.

184

Ceiminal Law

power to the state to appeal or take a criminal case up
on a writ of error it lias no power or authority after the
acquittal of the defendant to appeal or otherwise have
the cause reversed because the same w^ould be twdce tiying
the defendant for the same offenses. Thus one court
says: ''This court has over and over again said that in no
case in the sessions will they grant a new trial when the
verdict is for the defendant. It is the intention of the
principle that no man shall twice be put in jeopardy of
his life so that no man shall twice be tried for the same
offense when one jury have passed upon and declared his
innocence. It is giving to the prisoner the benefit not
only the prejudice of his jurors but even the errors of his
judge."**

§ 217. Two offenses committed by the same act. There
is great conflict and confusion in the reported cases where
the same act constitutes tw^o or more distinct offenses,
whether each is separately indictable, and that a convic-
tion or acquittal of the one will act as a bar to the prose-
cution of the other.*^ So it has been held that where the
same blow struck one person lawfully, and another un-
lawfully, the acquittal for the striking the blow under
lawful circumstances was not a bar for the other.*® But
where two crimes are committed in the same rencounter
but do not proceed from the same act or blow but are so

44 — State v. McKeo, 1 Bailey-
Law, 651, 21 Am. Dec. 504, and
note; State ex rel. Rowe v. District
Court Silver Bow County, 44 Mont.
318, 119 Pac. 1103, Ann. Cas.
1913 B. 396; State v. Reed, 52 Or.
377, 97 Pac. 753; People v. Horn,
70 Cal. 17, 11 Pac. 470; Cochran
V. State, 119 Md. 539, 87 Atl. 400.

45 — Slate V. Cooper, 1 Green, 13
N. J. 361, 25 Am. Dec. 490; State
V. Sheppard, 7 Conn. 156; Com. v.
Squires, 1 Mete. 258; Hickcy v.

State, 23 Ind. 21; State v. Daniun,
2 Tyler (Vt.) 387; State v. Fay-
etteville, 2 Murphey (N. 0.) 371;
Fisher v. Com., 1 Bush. (Ky.) 211,
89 Am. Dec. 620; Roberts v. State,
14 Ga. 81; State v. Burnham, 7
Conn. 414; Vaugn v. Com. 2 Va.
Cas. 273; State v. Standerfcr, 5
Porter (Ala.) 523; Slate v. Thurs-
ton, 2 McMillian (S. C.) 382; Com.
V. Andrews, 408.

46 — Tones v. State, 66 Miss. 380,
1(1. 14 Am. St. R. 570.

FoKMER Jeopardy

185

closely connected that the proof of the one cannot be
made without the proof of the other the conviction or ac-
quittal of the one will not bar the other. So where the
same person killed two persons in the same assault, but
the killing proceeded from two different acts, the convic-
tion or acquittal of the one will not bar the prosecution
of the other. So, also, if two or more persons conspire to
kill two persons and one of them kills the two but by
two different acts or shots the act of one is the act of all,
the conviction of the one who did the killing of one of the
persons will not bar the prosecution as to the killing of
the other, nor will it bar the prosecution of the partici-
pants in the crime.*''

§ 218. Larceny from different persons at the same time.

The larceny of several different articles at the same time
from the same or from different persons is only one crime,
and the act cannot be divided so as to make a part of the
act indictable independent of the other.*® Hence if the
same is divided and the defendant is prosecuted for a part
of the stolen goods, or in case the theft is of goods belong-
ing to two persons, and an indictment is found as to the
theft of one only a trial and acquittal of this will be a bar
to a prosecution of the balance. And this is the rule even
where part of the property is by statute made a specific
kind of larceny for which a different punishment is at-

47— Tate v. State, 53 Miss. 439,
Id. 24 Am. Rep. 708. "A convic-
lion of a robbery is a bar to subse-
quent prosecution for murder result-
ing from the criminal act done in
the perpetration of the robbery,
where the statute makes undesigned
killing in the perpetration of rob-
bery murder." Syllabus State v.
Mowser (N. J.) 106 Atl. 416, 4
A. L. R. 695, and note.

48— Roberts v. State, 14 Ga. 8,
58 Am. Dec. 528; State v. Williams,

10 Humph. (Tenn.) 101; Jackson
V. State, 14 Ind. 327; State v. Nel-
son, 29 Me. 329; Ben v. State, 22
Ala. 9, 58 Am. Dec. 234; Clem v.
State, 42 Ind. 420, 13 Am. Rep. 369;
Mahala v. State, 10 Yerger, 532, 31
Am. Dec. 591; William v. State, 44
Am. Dec. 403, 2 Grat. 567; State v.
Ray, 33 Am. Dec. 90; Miller v.
State, 8 Ind. 327; Reese v. State, 8
Ind. 416; People v. Webb, 38 Cal.
478.

186 Ckimixal Law

tached. Such as where the defendant is indicted for the
stealing of a horse, wagon and a set of harness a convic-
tion for the larceny of the horse will bar a prosecution
for the larceny of the wagon and set of harness, although
the punishment is greater for the stealing the horse than
for the other articles.*^ There is a considerable conflict
in the authorities whether in case the larceny is from dif-
ferent persons but by the same act and at the same time
the conviction or acquittal of the larceny for one person
will bar a prosecution for the larceny from the otlier.^*'
We believe that the weight of reason as well as the au-
thorities support the rule as given in the first part of this
section. There does not appear to be any good reason to
say that a prosecution for the larceny from two different
persons at the same time would not be a bar for the lar-
ceny from the other. There is only one fraudulent in-
tent, and it cannot be divided at the convenience of the
pleader for if such was the law as many convictions could
be had as there were different owners. To say the most
the rule of the Texas courts which allows the subsequent
trial, appears to be more in accordance with the justice
of the case, for it might be argued that if the defendant
was acquitted in the first case a veiy reprehensible of-
fense might go unpunished.^^

§ 219. Passing forged paper, etc. The doctrine of the
preceding section is applicable to passing or uttering
forged notes, bills, or of counterfeit coin. Thus where
the utterer presented at the toller's window four dil^erent
forged bills drawn by four several persons the acquittal
or conviction for the one is a bar to the prosecution for

49— Fiahcr v. Com. 1 Bush. (Ky.) 51— Wilson v. Stale, 45 Tex. 76,

211; Wilson v. Stale, 45 Tex. 76; 2:5 Am. Rep. 602, 2 Am. Cr. Kcp.

Hudson V. State, 9 Tex. App. 151. :i5G; Hudson v. State, 9 Tex. App.

50— Stale v. Bynum, 117 N. C. 151, ;i5 Am. Rrp. 7:!2; Alexander v.

749, 2:5 S. !•:. 29; State v. Lambert, State, 21 Tex. Apj). 406, 57 Am. Rep.

9 Nov. 321. 617, 17 S. W. 139.

Former Jeopardy

187

the uttering of the others.^^ But where the same act
produced dilTerent offenses such as grand larceny and
petit larceny a conspiracy to steal, and the theft of the
thing conspired about, to theft, and such other like
offenses, the conviction or acquittal of the one is not a bar
for the other. ]^ut where offenses generally are so closely
connected in point of time as to produce a connected act
then it is one offense according to the facts.

§ 220. Cardinal doctrine, what is. It is a cardinal doc-
trine that if the evidence in the second prosecution estab-
lishes identically the same in the point of intent, time,
place and circumstance as that upon the first indictment
the conviction or acquittal is a bar to the second charge.^^
And this, too, notwithstanding the object upon which the
second offense was committed is a distinct object from
that of the first. It is sufficient if in fact the proof in one
is essential in the other. As where two persons are killed
by the same shot, or two persons stabbed by the same
thrust, and that at the same instance of time or so nearly
so as to be incapable of separation.^*

§221. Test of the rules. The test to be applied in
order to determine whether the two charges are the same

52 — People v. Van Curen, 5 Par-
ker Cr. Cas. 66; State v. Benham, 7
Conn. 414; State v. Egglesht, 41 la.
574, 20 Am. Eep. 612. See this
last case for a discussion of the doc-
trine particularly. State v. Samp-
son, 157 la. 257, 138 N. W. 473, 42
L. R. A. (N. S.) 967.

53— Clem v. State, 42 Ind. 420,
13 Am. Eep. 369; State v. Cooper,
1 Green (N. J.) 361; State v. Shep-
pard, 7 Conn. 541 ; Hickory v. State,
23 Ind. 21; State v. Damon, 2 Tyler
381; Ointzen v. State, 1 Tex. App.
447; Hudson v. State, 9 Tex. App.
151; Wilson v. State, 45 Tex. 76.

54— Sadberg v. State, 46 S. W,
620; Spanell v. State (Tex. Cr,
App.), 203 S. W. 357, 2 A. L. R. 593
Wright V. State, 17 Tex. App
152; Simco v. State, 9 Tex. App
338; see Irvin v. State, 7 Tex. App
78; Dominiek's Case, 40 Ala. 680,
91 Am. Dec. 496; Foster's Case, 39
A.la. 229; Clemm v. State, 154 Ala.
12, 45 So. 212, 129 A. S. R. 17, and
note; State v. Douglas, 26 Nev.
196, 65 Pac. 802, 99 A. S. R. 688,
note 124 A. S. R. 637.

188

Criminal Law

in the first and second indictment is where eveiy part of
a cruninal act may be alleged in a single count of the in-
dictment and proved under it. The act cannot be split
into several different crimes and a separate indictment
sustained upon each.^^ If the facts alleged in the second
indictment are such that if proved they would have pro-
cured a legal conviction upon the prior indictment, under
which the conviction or acquittal has taken place the
same will be a bar to a further prosecution.^^

§ 222. Arraignment. It is an established rule that
when a jury has been empaneled and swoni in a court
of competent jurisdiction upon an information or an
indictment sufficient in form and substance to sustain a
conviction, and the jury has been charged with the deliv-
erance; and all legal intermediate proceedings connected
with the "plea" and "arraignment" having been en-
tered, the defendant is then in jeopardy, and when such
state of fact is shown then the defendant is entitled to his
discharge, if, however, the cases are in other respect
the same transaction.^' So also where the juiy is unneces-
sarily discharged this will entitle him to his bar to a
subsequent indictment involving the same transaction.
It is variously held dependent upon the particular statute
whether a failure to plead to the indictment prior to the
discharge of the jury will operate to defeat the bar.^*

55— Triplett v. Com., 84 Ky. 196;
Id. 1 S. W. 84; Williams v. Com.,
78 Ky. 93, Id. 11 S. W. 210;
O 'Brian v. Com., 9 (Bush.) Ky. 333,
15 Am. Rep. 715, 1 Am. Cr. Rep.
.'320; Cooley v. Con. Limitation, 325;
Huff V. Com., 42 S. W. 907.

56 — Durliam v. People, 4 Scam.
172; Dickey v. Com., 17 Pa. St.
126, 55 Am. Dec. 542; Dominick
V. State, 40 Ala. 680, 91 Am. Dec.
496; State v. Vinco, 34 La. Ann.

1072; Simco v. State, 9 Tex. App.
338; Ex parte Rodger, 10 Tex.
655; Prince v. State, 19 Ohio 423;
Hile V. State, 9 Ycarg. 357.

57— State v. Hays, 67 Iowa 27, 24
N. W. 575; State v. Cassady, 12
Kans. 550, 1 Am. Cr. Rep. 567;
Tate V. State, 53 Miss. 439, Id. 24
Am. Rep. 709; Prinoe's Case, 36
Miss. 613.

58 — Ycarger v. Slate, Tox. Cr.
Rep., 41 S. W. 621; Link v. State, 3

Former Jeopardy 189

§ 223. Discharge of jury. What constitutes the un-
necessary discharge of the jury which authorizes the
plea of jeopardy is a question variously decided. One
court has laid the rule as follows : ' ' We are unable to say
tiiat a juiy after they are charged can be discharged,
and the prisoner tried a second time for the following
causes only: 1. The consent of the prisoner. 2. Illness
of one of the jury, the prisoner or the court. 3. The
absence of one of the jurymen or 4. The impossibility
of the jury agreeing to a verdict. Beyond these we ap-
prehend the courts have no right to go. It is said that
it is a matter of discretion with the court to discharge
the jury whenever it may think it consistent with the
ends of justice. It is true that it is a matter of discre-
tion but in the language of Junius it is a legal discretion,
and must be exercised in conformity to known mles. ' ' ^^
Arbitrary discretion is but another name for caprice or
favor. Under its exercise the boldest may tremble, and
the free made slaves. These four causes in a general
sense may be said to comprehend all the reasons why the
discharge of a jury before a verdict would not place
the defendant in jeopardy and exempt him from a second
trial. Thus where it is discovered by the state after an
ompanelment of the jury and the plea of the defendant
that one of the jurors will not convict because of his
peculiar ideas concerning the infliction of imprisonment
as a punishment, and a nolle prosequi entered it is held
that this is an unnecessaiy discharge of the jury before
verdict and that he was entitled to his acquittal.^" So
again in the case of the juror who after being sworn
upon the case arose and informed the court that he had

Heisk. 252; White v. State, 7 Tex. Ind. 215; Gruber v. State, 3 W. Va.

App. 374; U. S. v. Riley, 5 Blatchf. 699; Joy v. State, 14 Ind. 139;

204; Fed. Cas. No. 16164. People v. Case, 48 Cal. 323; Grogan

59— McKee v. State, 21 Am. Dec. v. State, 44 Ala. 9; McKinnie v.

499, Id. Bailey Law, 651; see Mc- State, 26 Ark. 334.
Fadden v. Com., 23 Pa. St. 12, 62 60— McKee v. State, 1 Bailey

Am. Dec. 308; Morgan v. State, 13 Law, 251, 21 Am. Dec. 499.

190 Criminal Law

been a member of the grand jury wliicli found the indict-
ment against the defendant, and the court upon its own
motion and against tlie objection of the defendant, dis-
charged the jury, and filled his place with another, and
proceeded with the trial, the court, upon appeal held
this to be in violation of the defendant's constitutional
right not to be twice tried for the same offense.^^ So,
also, where the prisoner is on trial under an indictment
for manslaughter, and the court with the prisoner's
consent discharges the jury because the court believes
the evidence shows a murder, this is jeopardy.®^

§ 224. Failure to agree. Where the jury fails to agree
they may be discharged and it will not militate against
the state's right to again try the defendant upon the
same indictment. Upon the proposition whether the
disagreement of the jury will authorize their discharge
without the defendant's consent, and in the absence of
the absolute necessity for their discharge will establish
jeopardy there are numerous conflicting authorities.®^

The earlier decisions seem to support the doctrine that
the jury can not be discharged except upon the grounds
of absolute necessity but the latter and now the general
conceded rule seems to be that the jury may be discharged
when there is no probability of them agreeing without
the consent of the defendant, and that such discharge
will not operate as a jeopardy.®*

§ 225. Waiver of rights. Many rights guaranteed by
this law are dependent upon the diligence in declaring

61— O 'Brian; v. Com., 9 Bush. derson v. State, 174 Ala. 11, 56 So.

(Ky.) .3.33, 15 Am. Rep. 715. 998, Ann. Cas. 1914 B 760; Dreyer

62— Kuncklcr v. People, 48 Cal. v. People, 188 111. 40, 58 N. E. 620,

331. 58 L. R. A. 869; In ro Asher, 130

63— Com. V. Cook, 6 Serg. & R. Mich. 540, 90 N. W. 418, 57 L. R.

577, 9 Am. Dec. 465. A. 806; McFadden v. Com., 23 Pa.

64 — State v. Moor, 12 Am. Dec. St. 12, 62 Am. Dec. 308; Oborn v.

547, and note and cases cited; An- State, 143 Wis. 249, 126 N. W. 737.

Former Jeopardy 191

and maintaining tliem. The principle is a common one
and recognized in all departments of the law, that which
is not expressly, or in some instances impliedly con-
tended for upon issue joined is taken by the antagonist,
as abandoned or waived. There is no sounder doctrine
or a more positive rule than parties, plaintiff or defend-
ant to a cause pending for adjudication may waive or
abandon any right they may have; and this may be ex-
pressly or impliedly done. This doctrine is not confined
to civil causes but is applicable to criminal causes as well.
Therefore, in some instances the defendant in a criminal
case may waive a constitutional guarantee. The right
to waive a juiy in a trial for a felony seems to be an
exception to the general rule.^^ But the right to waive
the guarantee that "no person shall be twice put in jeop-
ardy of life or limb," is allowed, it appears, upon the
theory that such waiver is for the defendant's benefit.

§ 226. At comman law. It must be borne in mind that
the right not to be twice tried for the same offense was
a doctrine of the common law, and some writer has put
it that it was embedded in the common law. So our con-
stitutional declaration that ''no person should be twice
placed in jeopardy of life or limb" is an express adop-
tion of the common law. So this again brings us to refer
to a rule of the English courts as formerly practiced as
governing the trial of criminal causes. As we have al-
ready seen the defendant was not allowed a new trial,
when he was convicted but the error of the trial was
supposed to be corrected by the grant of pardon, hence
there could not be any waiver upon the ground of asking
or consenting to a new trial. But it appears that the de-
fendant in the English courts might obtain a writ of
error to the Queen Bench Division, and when the judg-
es— Mapes V. state, 13 Tex. App. App. 664; Brown v. Webber, 6
85; may waive a jury in a misde- Cush. 560,
meanor; Kosbery v. State, 1 Tex.

192

Criminal Law

ment of the lower court was reversed it placed the de-
fendant in the same position as he was before the trial in
the assize or quarter sessions. So it is apparent that
he might waive the jeopardy by permitting the reversal
of the cause. ®^

§ 227. In America. So, also, we have seen that the
rule in the American states is generally that the state
has no right of appeal from a judgment or acquittal
upon a valid indictment in a court of competent jurisdic-
tion. All errors committed by the judge against the com-
monwealth are not subject to review by appeal or other-
wise at the instance of the commonwealth, and an acquit-
tal is forever a bar to a further prosecution.^' But
where the defendant is convicted he may at his option
point out to the court why the conviction should not
stand, and he may appeal and in case a new trial is
granted he is accounted as having waived his constitu-
tional right to be twdce tried for the same crime. But so
long as his case is not reversed or a new trial granted he
maj^ invoke his former conviction as jeopardy.®*

§ 228. Rights that cannot be waived. There are other
rights of the defendant incident to his trial which can
not be taken away from lihn without his consent. Thus
in all cases of felony he is entitled to be present at the

66— state v. McKee, 1 Bailey
Law, 651, 21 Am. Dec. 499, and
note; .Johnson v. State, 1 Okla. Cr.
321, 97 Pac. 1059, 18 Ann. Cas. 300;
Younger v. State, 2 W. Va. 579, 98
Am. Dec. 791; State v. Martin, 30
Wis. 216, 11 Am. Rep. 567; Mc-
Guinn v. State, 46 Nob. 427, 65 N.
W. 46, 50 A. S. R. 617.

67— State v. Rook, 61 Kan. 382,
.59 Pac. 653, 49 L. R. A. 186; People
V. Miner, 144 111. 308, 33 N. E. 40,
lit L. R. A. 342. See note in this

case for full discussion of the right
of the state to appeal in a crim-
inal case. Grafton v. United
States, 206 U. S. 333, 51 L. Ed.
1084; Ostwalt v. State, 118 N. C.
1208, 24 S. E. 660, 32 L. R. A. 396:
State V. Hotel McCrery Co., 68 W.
Va. 130, 60 S. E. 472, Ann. Cas.
1912 A 966. In this case an ap-
peal was allowed on the application
of the state.

68— People v. Webb, 38 Cal. 467.

Former Jeopardy 193

time and during his trial, and no proceedings in refer-
ence thereto can in any case be conducted in his absence
except he give his express consent thereto.^^ The gov-
ernment after the defendant has been placed upon his trial
upon a sufficient indictment and in a court of competent
jurisdiction is not permitted to enter a nolle prosequi,
without the consent of the defendant thereto. Such a
disposition without his consent is a jeopardy.'" Nor can
the court discharge the jury except for a necessary cause,
not even one juror unless the defendant gives his consent
thereto. The fact that the verdict of the jury was ren-
dered while the defendant was absent from the place of
trial will be regarded as without his consent and jeopardy
will be complete.'''^

§229. Implied consent to waiver sufficient. The de-
fendant 's consent need not be expressly obtained in oraer
to defeat the jeopardy but an implied consent or waiver
is sufficient. Thus if the defendant should act in such a
manner or under such circumstances as to reasonably
indicate that he agreed to the action of the court he will
be taken as having consented thereto.'^^ It is a familiar
rule that preliminary pleadings, things incident to ar-
raignment of the defendant are taken as having been
properly made and as the case may be entered and a
failure to object to the same will be taken as waived,

§ 230. Authority of council. The authority of def end-
ant 's counsel to waive the defendant's risrht to hav^
the jury remain together till after verdict is denied in

69— Escarno v. State, 16 Tex. 72— Stewart v. State, 15 Ohio

App. 85. St. 155; Carroll v. State, 50 Tex.

70— Jones v. State, 55 Ga. 625; App. 485, 98 S. W. 859, 123 A. S.

Kohlheimer v. State, 39 Miss. 548, E. 851, 14 Ann. Cas. 426. A v&rr

77 Am. Dec. 689. full and complete note on all phaspa-

71 — Roberts v. State, 14 Ga. 8, the text is contained in note. Stone

58 Am. Dec. 528, and note, full v. State, 135 A. S. R. 72.
discussion.

C. L.— 13

194 Criminal Law

the Texas courts.'''^ The defendant himself may, how-
ever, consent to the jury's separation.'''* In the courts of
Georgia the judge may allow the jury to separate for the
purpose of attending to things of a personal necessity
such as attending to a call of nature without the consent
of the defendant.''® It is, however, held by the courts of
Texas that the defendant cannot by his consent waive
the right that the jury be kept together where the jurors
so separating are not accompanied by an officer.''® Nor
can he waive his right to be present when a final judg-
ment is rendered against him even where the same is in
the nature of a nunc pro tunc.''''

§ 231. Summary. Jeopardy may be waived as a gen-
eral rule to the separation of the jur}^ and to the right
to be supplied with a copy of the indictment and copy
of the list of jurors. The defendant in a criminal prose-
cution under the provisions of the constitution and the
statutes of some of the states is required to be present
at the rendition of the verdict. But in the absence of
such provisions there is no rule of the common-law that
prohibits his right to waive his presence. Some constitu-
tions and statutes provide that it is necessary for the
defendant to be present at the fonnation of the jury, that
is the courts have constmed such provisions to mean
that the provisions could not be waived."'*

§ 232. Nolli prosequi. The general rule is that a nolli
prosequi is not a bar to a subsequent prosecution if it

73 — Stirling v. State, 15 Tox. iiig section. Also People v. Hig-

App. 249. gans, 59 Gal. 357; Spear v. State,

74— Brown v. State, 38 Tex. 482. 15 Ga. 562; Williams v. Go. 2

75— Ncal V. State, 64 Ga. 275. Gratt, 44 Am. Doc. 408; Loper v.

76 — Englisli v. State, 28 Tox. State, 3 Miss. 429; Stone v. State,

Ajip. 500. 160 Ala. 94, 40 So. 823, 135 A. S. R.

77— Mapcs V. State, l.'. Tex. Ap]). 69, and note; State v. White, 71

85. Kan. 356, 80 Pac. 589, 6 Ann. Gas.

78 — Sec authorities in the prcceil l'!2.

Former Jeopardy

195

is entered before the empanelment of the jury in the case,
but is otherwise if the juiy is empaneled. After issue
joined or the empanelment of a jury and a plea of not
guilty a nolli prosequi entered by the prosecution without
the consent of the accused is a bar to a subsequent prose-
cution.'* Jeopardy does not begin until the jury has
been empaneled and sworn.®® Where a party stands
charged with several violations of the same kind, a nolli
l)rosequi will not bar others not dismissed." A dismissal
of the jury on account of sickness of one of the jurors
without the consent of the defendant is not jeopardy.®^
In Texas the court cannot discharge the jury without the
consent of the defendant.*^ Where there Is a hung
jury or where there is a reversal of the judgment of the
lower court on appeal the former conviction is not a
jeopardy.®*

79— Franklin v. State (Ga.), 11
S. E. 876, 85 Ga. 570; Com. v. Pin-
chase, 2 Pick. 521; People v. Good-
win, 18 Johns. 187; U. S. v. Perez,
9 Wh. 579; Mount v. Com, 2 Duv.
(Ky.) 93; Com. v. Bockman, 105
Mass. 53; People v. Cook, 10 Mich.
64; Girard v. People, 3 111. 362;
People V. Tyler, 7 Mich. 161; State
V. Brooks, 3 Humph. 70.

80— .State v. Paterno, 9 So. 442
(La. Ann.).

81— 'Brian v. State, 91 Ala. 25,
8 So. 560.

82— People v. Boss, 85 Cal. 383;
Welsh V. State, 126 Ind. 71, 25 N.
E. 883.

83— Eudder v. State, 15 S. W.
717; Jones v. Com., 86 W. Va. 740,
10 S. F. 1001; Ellis v. State, 25 Fla.
783; Eobinson v. Com., 88 Ky. 386.

84— State v. Battle, 7 Ala. 259;
Wright V. State, 5 Ired. 290; State
V. Reed, 26 Conn. 202; State v.
Green, 16 la. 239; State v. Eedman,
17 la. 239; Dobbins v. State, 14
O. St. 493; Coleman v. Tennessee,
97 U. S. 509-521,

CHAPTER X

CRIMINAL PEESUMPTIONS

§ 233. Presumptions part of crimi- § 254.
nal law.

§ 234. What are presumptions of

law. § 255.

§ 235. Presumptions how created.

§ 236. Criminal trial. § 256.

§ 237. Presumption defined.

§ 238. E^buttable presumptions. § 257.

§ 239. The burden of proof.

§ 240. Of the prima facie case. § 258.

§ 241. Presumptions of fact.

§ 242. All persons presumed to do § 259.
those things required by
law.

§ 243. Corpus delicti. § 260.

§ 244. Defendant 's duties.

§ 245. Presumption as to conspira- § 261.
tors. § 262.

§ 246. Presumptions as to posses-
sion of recently stolen § 263.
property. § 264.

§ 247. Further considered.

§ 248. Presumptions as to those ab- § 265.
senting themselves beyond
the state. § 266.

§ 249. Presumption of continuance

of life. § 267.

§ 250. Presumptions as to married

women. § 268.

S 251. Sanity is presumed.

^ 252. All persona are presumed to § 269.
be normal as to their phy-
sical condition.

§ 253. Presumption of the probable
results of a man's act.

Presumption as to persons

under the age of seven

years.
Presumptions as to females

under the age of ten.
Taking property openly and

notoriously.
All persons are presumed to

know the law.
Malice is presumed from the

use of a deadly weapon.
Presumption where one dies

more than a year and a

day from wound.
Defendant is presumed to be

of good character.
Conflict of presumptions.
Defendant fleeing country,

presumption of.
Defendant's right to explain.
Presumption from the fabri-
cation of evidence.
Courts are presumed to take

notice, etc.
Presumption of guilt from

judicial confession.
Dying declaration presumed

to be true.
Presumption as to the testi-
mony of an accomplice.
Presumption as to officers,

eic.

§233. Presumptions part of criminal law. \V(> lliink
that it would bo a beiiclit in liavo a chapter on piTsunip-

J!)6

Criminal Presumptions 197

live evidence as applied to criminai cases in a book of
this character. It is for the reason that if the questions
of presumptive evidence are gathered together and
placed in compact form it would be an easier matter to
find them. Usually the various presumptions are found
scattered through books on evidence and the searcher
takes up more or less time finding them. The purpose
here is not attempted to differently state or to embellish
these rules for the law books are full of these presump-
tions. In the succeeding pages of this chapter we shall
attempt to apply these rules under the subdivisions of
Presumptions of Law and Presumptions of Fact, Pre-
sumptions conclusive or irrebuttable, and to such as are
rebuttable.

§234. What are presumptions of law. Presumptions
of law are those universal conclusions dictated by justice,
by the laws of nature, or such as are found by experience
to be the result arising from the relation of certain
things.

The infallibility of such rules are demonstrated by the
uniformity with which certain results follow, a given
state of conditions and relations. The law adopts these
conclusions because any other conclusion would be incon-
sistent with those known and universally recognized in
the rules of justice and the usual experiences of men.

A part of these rules will some time prove to be un-
true, but the law nevertheless regards them as being abso-
lute, or at least relatively true because the exception is so
greatly in disproportion to the general experience. Con-
clusions or presumptions of this character do not have
exclusive application to the law but are recognized as
truths in philosophy and other sciences. They are uni-
versal truths and fundamental principles and acquire
no particular force because they are called presumptions
of law, for by any other name the truth would remain.

All men are not sane, but the real fact is that a large

198 Criminal Law

per cent of all persons are sane (based upon the experi-
ence and the nature of the human race), so the law as-
sumes it to be a fact universal in its application that all
persons are sane.

§ 235. Presumption, how created. Legal presumptions
or presumptions of law are nothing more than rules of
law established by the common law, and by the decision
of the courts declaring the law upon a given state of fact
found by experience to be true and just and such others
as are declared to be true by positive statute.

Thus the presumption that all men know the laws of
the country where they live finds its reason and authority
in one universally acknowledged fact (this being found
by the courts after a long experience with men and com-
mercial communities), that any other rule would result
in incalculable confusion and injustice in the administra-
tion of the law. So the presumption that all persons
intend the ordinary and usual consequences of their,
acts is declared to be tnie because experience teaches
that men usually act from motive and an intent to accom-
plish a desired end.

The courts adopt these, together with others, because
experience teaches that the highest degree of credit can
be given to them.

A legislative or statutory presumption is where the
legislative will declare a thing to be true under all, or
under some specific state of circumstances. Thus where
the statute provides that a criminal offense shall not be
prosecuted unless mi indictment or other process ]u-o-
vided by hiw had not been presented within a specified
time the right to prosecute has been barred for tne rea-
son that it is presumed by the lapse of time there was no
crime. This presents an absolute legal truth, notwitli-
staiiding tlie crime in icality was committed. Again
where tlic statute jJioNidcs that wlicii a person has occu-
yjied n tract of land loi' a jici'iod (•!' ten years t'lcc I'rom
the claim of others is presumed to have the title to the

Criminal Presumptions 199

land presents an absolute legal truth, notwithstanding
that another person owns the title intact. These statutes
of limitations are absolute and conclusive presumptions
because they are declared by law to be universally true.
The reason that may prompt the enactment have nothing
to do with the legal effect of the presumption. The rea-
son may or may not justify.^

§ 236, Criminal trial. In the course of a criminal trial
there of course are to be found many iniles of evidence ap-
plicable to both civil and criminal causes. It shall be
our intention to point out those niles which have to do
with the criminal trial only.

§ 237. Presumption defined. A conclusive and irrebut-
table presumption is that absolute and imperative truth
which does not admit of doubt, the verity of which admits
of no contradictory evidence nor does it admit of excep-
tions. It needs no evidence to strengthen, nor will any
evidence be admitted to deny it. It is a fundamental
principle of the law, and in a strict technical sense is not
a rule of evidence but a rule of law.

In the administration of the criminal law very few of
this class of presumptions are met with. Thus the pre-
sumption that all persons under the age of seven years is
incapable of fonning a criminal intent is of this class.^
And so also the presumption that every person knows
the laws of his country though these have some excep-
tions. Thus, that a boy under the age of fourteen years
is presumed to be incapable of committing the crime
of rape ; that one absenting himself beyond the limits of
his country for the period of seven years is dead; and in
the case of a married w^oman at the common law is pre-
sumed to be under the coercion of her husband where she
commit a felony in his immediate presence. This at com-

1—1 Greenl. sec. 14 to 25; Par- 2— See sec. 182, this work and au-

sons cont. Chap, limitations. See thorities.
Statutes of Limitations.

200 Criminal Law

moil law appears to have had the force of absolute law,
but it is now regarded as rebuttable.

§ 238. Rebuttable presumption. A rebuttable presump-
tion is in that class of legal conclusion which may be
overcome by proof to the contrary. Upon a certain state-
ment or condition of facts the law imposes prima facie
verity, and in the absence of evidence to the contrary
the prima facie conclusion becomes an absolute conclu-
sion of law.' These rules are created by the law for
the better securing the public welfare and reaching a
higher degree of certainty in the administration of
justice.

§ 239. The burden of proof. When the law invokes
these conclusions in favor of one party the other is then
required to overcome it by show^ing that the particular
case is an exception or that as a matter of fact the con-
clusions reached are untrue. Any competent evidence
may be offered in refutation of such conclusion. Such
conclusion shifts the burden of the proof.

§ 240. Of the prima facie case. The evidence must be
strong enough, of probative force sufficient to convince
the court or the jury that the prima facie case had been
disproved. If no evidence whatever is offered in rebut-
tal to the prima facie case then the court or jury would
be compelled to find the presumption. Thus to illustrate:
In a suit upon a promissory note the same having been
offered in evidence a prima facie presumption is created
that the same is genuine and recites the truth on its face.
Thus if no i)roof is offered to disprove its recitals the
court or juiy is bound to adopt tho conclusion that the
execution (»r llie note and the recitals therein are true.
Again if recently stolen ])r()]ierty is tr.'KMMl to A tlio law

3—1 Grccul. 33.

Criminal Presumptions 201

raises the prima facie conclusion that the possession is
illegal and the burden shifts to A to explain his posses-
sion. If he fails to do this then the conclusion is that
the possession was illegal.

§241. Presumptions of fact. The presumption is of
a greater or less probative force as the conclusions
reached are probable or improbable. Mr. Greenleif says :
''That presumptions of fact are mere arguments, the
major premise of which is not a rule of law." They
are not fixed rules within themselves but are mere de-
ductions and inferences, and are more or less convincing,
accordingly as they impress themselves upon the under-
standing. They differ from presumptions of law in this,
that the latter are fixed and permanent rules which form
a part of the fundamental principles of the law, the for-
mer are inferential conclusions drawn from the proof of
the existence of other facts in the particular case. Thus
suppose A is charged with the murder of B, and imme-
diately after the killing A is found with blood on his left
hand and in the chamber where B was killed a bloody
imprint of the fingers and palm of the right hand is left,
then the inference that A made the imprint would
be of very little probative force. If, however, it
was shown that both of A's hands were bloody then a
different degree of probability would be drawn from
these circumstances, and the conclusion would be more
certain that A killed B, or was there at the time and
participated in it.

§242. All persons presumed to do those things re-
quired by law. A large percentage of the people conform
to and comply with the commands and prohibitions of
the law. Experience and observation teach that only
a few persons out of a great many commit crimes, hence
a cardinal principle of the law is that all persons are pre-
sumed to be innocent when charged with crime. This is

L'02

Criminal Law

a rebuttable presumption and to overcome it a very high
degree of proof is required. The probability of innocence
is so great that the law requires the rebutting evidence
to be so convincing as to force its establishment bevond

CI? V

a reasonable doubt.*

§ 243. Corpus delicti. In trials for murder the corpus
delicti the unlawful fact of the killing being proven, the
presumption of innocence is thereby overcome, and then
the burden of proof shifts to the accused to show circum-
stances of extenuation and explanation. When the un-
lawful killing is traced to the defendant then this is sufl&-
cient to establish the murder and the fact of malice is
presumed.^

§244. Defendant's duties. The government is required
to create a prima facie case of guilt, and when this is
done the defense, if any, devolves upon the defendant.^

4 — 3 Greenl. Ev. 29; Eoberton v.
State, 9 Tex. App. 209; Blocker v.
State, 9 Tex. App. 279; Wallice
V. State, 9 Tex. App. 299; Smith
V. State, 9 Tex. App. 150; Hames v.
State, 9 Tex. App. 313; Eeed v.
State, 9 Tex. App. 472; Giles v.
State, 6 Ga. 276; West v. State, 76
Ala. 98; Oreman v. State, 5 Sw.
(Ark.) 558; State v. Reede (Del.),
15 Alt. r 968; Watts v. People, 126
111. 9, 18 N. E. 340, 126 111. 9;
Guiteg V. State, 63 Ind. 278.

5 — Fahnestock v. State, 23 Ind.
231; State v. Vincent, 24 la. 570;
Perry v. State, 44 Tex. 473; State
V. Willis, 63 N. C. 26; People v.
McCarty, 110 N. Y. 309; Territory
V. McAndrews, 3 Mont. 148; Barcus
V. State, 49 Miss. 17, 19 Am. Rep.
125, 1 Am. Cr. Rep. 249; Com. v.
WchHtcr, .09 Mass. 295; State v.
BriHcoe, 30 La. Ann. 433; Murphoy
V. People, 37 111. 4t7; Wharton v.

State, 73 Ala. 366; People v. Rolin,
63 Cal. 421; State v. Dillon, 38 N.
W. 535, 74 la. 653; State v. Davis,
50 S. C. 405, 27 S. E. 905, 62 A. S.
R. 837; Mann v. State, 124 Ga. 760,
53 S. E. 324, 4 L. R. A. (N. S.)
934; State v. Trivas, 32 La. Ami.
1086, 36 Am. Rep. 293; Brown v.
State, 98 Miss. 786, 54 So. 305, 34
L. R. A. (N. S.) 841; State v.
Bowles, 146 Mo. 6, 47 S. W. 892,
69 A. S. R. 598.

6— Billard v. State, 30 Tex. 367,
94 Am. Dec. 317 and note: State v.
Haxsie, 15 R. I. 1, 2 A. S. R. 838;
Tiffany v. Com., 121 Pa. St. 165, 6
A. S. R. 775; Trumbell v. Territory,
3 Wyo. 280, 21 Pac. 1081, 6 L. R.
A. 384; State v. Dcschamps, 42
La. Ann. 567, 7 So. 703, 21 A. S. R.
392; Itecd v. State, 50 Ga. 556;
State V. Thomas, 98 N. C. 599;
State V. Shij)loy, 10 Minn. 223, 88
Am. Dec. 70; TitTony v. Com., 121

Ckiminal Presumptions 203

There are a few of the American authorities which hold
that where the sanity of the defendant is put in question
the sanity must be proven by the state upon the whole
case.'' The weight as well as the bulk of authorities is
against it, however.® The proof that the defendant is
less than seven and fourteen years of age, the defense
of infancy or the want of the power of forming a
mischievous intention is upon the defendant.® And so
are all matters that are peculiarly within the knowledge
of the defendant.^" It is undoubtedly the law as admin-
istered by the modern courts that the innocence of the
defendant follows him through the whole trial when
charged with murder. The earlier decisions appear to
have been rather unifonn in holding that when a killing
had been traced to the defendant the presumption fol-
lowed that it was done upon malice. But at this time
it is believed that this rule has been so often attacked
that the courts are fast adopting the idea that there
is no presumption against the defendant, but to the
contrary the state at all stages of the prosecution is
required to prove the malice and that the burden is never
on the defendant.

§245. Presumption as to conspirators. The fact of a
criminal conspiracy having been established, the pre-
sumption follow^s that the act of one of the conspirators
in furtherance of the common design is the act of all of
his co-conspirators. The declaration of one in regard
to the common purpose, is also presumed to be the decla-

Pa. St. 165, 6 A. S. K. 775; State 8— Turner v. Com., 86 Pa. St. 54;

V. Alexander, 66 Mo. 148; People v. Frence v. State, 12 Ind. 670.
Hong Ah Duck, 61 Cal. 387; State 9— Hor. & Thorn, Self Defense.

V. Briscoe, 30 La. Ann. 433; Green- 10 — James v. State, 13 Tex. App.

ley V. State, 60 la. 141; Reddick v. 14, 4 Tex. App. 275; 10 Tex. App.

State, 7 Kan. 144; Cunningham v. 230; 13 Tex. App. 1. The same

State, 56 Miss. 269. 232; 4 Tex. App. 468, 5 Tex. App.

7— Howe V. State, 11 Neb. 537; 596.
State V. Spencer, 2 N. J. L. 196.

204 Criminal Law

ration of all. In the books this is not called a presump-
tion, but the rule is in effect, a presumption, and an
irrebuttable one. It is an inference drawn from the fact
that persons engaged in a common pui*pose give their
assent to all acts and declarations of a co-worker. Be-
cause, again in the ordinary affairs of life, persons com-
bining to effect a common purpose impliedly agree that
each will adopt the act of the other.

§ 246. Presumption as to the possession of recently
stolen goods. It is a rebuttable presumption when one
is caught with recently stolen goods in his possession that
he is guilty of the theft, or at least that he is guilty as
receiver of stolen goods knowing them to be stolen.
"When the stolen goods are traced to the possession of the
defendant the presumption of innocence is overcome and
the presumption of his guilt takes its place, and the
defendant is required to rebut this presumption by evi-
dence of explanation of this possession. This possession
creates a conclusion of guilt more or less convincing in
proportion to the circumstances of the case, and the kind
and character of the property.^^ If a horse is found in
the possession of A locked in his barn the inference of
guilty possession would be very much greater than it
would be if the animal was found in a remote pasture
under the control of A, Again, if the possession of a
diamond is traced to the accused, the same being stolen
the inference would be quite strong that the possession
was illegal. Thus if an article of goods being easy of
concealment by reason of its particular nature, size, bulk
and the like the probative force of the fact of possession

11—3 Greenl. 32; 1 Greenl. 11-34; State, 16 Tex. App. 71; Jackson v.

Smith V. People, 103 111. 82; State State, 20 Tex. App. 656; State v.

V. Jarnett, 82 N. C. 055; State v. Guild, 149 Mo. 370, 50 S. W. 909,

Kelly, 73 Mo. 608; State v. Bobh, 73 A. S. R. 395; Oastleberry v.

76 Mo. 501 ; Alli.-son v. State, 2 Tex. Slate, 35 Tex. App. 382, 60 A. S. R.

App. 10; EaRlcnian v. Slate, 52 53; Hunt v. Com., 13 Grat. 757, 70

Am. Dec. 494, 2 Tnd. 91; Tucker v. Am. Dec. 443, and note.

Criminal Presumptions 205

would be more convincing than it would be if the article
was of such a nature that it could not be concealed.

§ 247. Same continued. The statement in the preced-
ing section that the possession of recently stolen property
creates the presumption that the possession is illegal,
is in reality only an inference tending to prove that the
possession was acquired illegally. It is true that some
of the earlier authorities treated it as a rebuttable pre-
sumption of law and that the crime was then considered
to have been proven, and that the burden shifted to the
accused to establish his innocence.^^ The burden of the
state 's case shifts to the defendant through the trial, and
the accused is required to offer some explanation of the
possession, and it is not believed to be the law that the
jury or the court would be authorized, solely to convict
upon the failure of the accused to offer some explanation
of the possession. If, however, there is on the part of the
state other evidence of the guilt, independent and dis-
connected with the mere fact of the possession in the
absence of the explanation of the accused this it appears
would be sufficient to authorize the conclusion as a legal
presumption that the accused had received the goods
knowing them to be stolen. Standing alone the mere pos-
session of the fruits of a crime are at most only presump-
tions of fact, and can only create inferences of guilt,
and are more or less strong according to the circum-
stances. As where the possession is so far removed, in
point of time, from the fact of the crime as to satisfy the
court that the defendant had nothing to do with it, such
evidence would clearly be inadmissible."

§ 248. Presumption as to those who absent themselves
beyond the state. Persons absenting themselves beyond

^ 12— state V. Gentry, 149 Mo. 374, 13— Kelley v. State, 31 Tex. App.

73 Am. St. Eep. 391; Castlebery v. 32; Hugging v. People, 135 111. 243,

State, 35 Tex. App. 382; 60 Am. S. 25 Am. St. Rep. 357; State v. Jacob,

^^P- 53. 30 S. C. 131, 14 Am. St. K«p. 897.

206 Criminal Law

the realm or absconding beyond the jurisdiction of the
state for a period of seven years are conclusively pre-
sumed to be dead.^* This is a general rule of evidence, and
its application is not confined to the criminal law, but it
frequently becomes important in trials for bigamy. The
law will not permit persons to marry, where either have a
living husband or wife, unless in the event they have
been divorced, in which case, however, the law permits the
remarriage of the divorced parties or where either is
dead. Hence this doctrine of the presumption of death
becomes important for the reason that where either one
abandons the other, and they have no knowledge of the
whereabouts of the other for a period of seven years, and
no knowledge whether living or dead the presumption
is that he or she is dead, and a remarriage under such
circumstances would be a complete defense to the crime
of bigamy, although it would afterwards transpire that
the party was, as a matter of fact, not dead at the time.
One marrying under such circumstances before the full
expiration of the seven years although believing that the
party was dead, and also believing that the full period of
time had elapsed from the abandonment will not be a
defense for a prosecution for bigamy unless it is shown
as a fact that the former partner in the marital relation
died prior to the second marriage. This presumption
a[)pears to have been incorporated in the original bigamy
statute by the English Parliament as one of the defenses
to an othenvnse bigamous marriage. It was a legislative
eiigraftment of the presumption as a specific defense to
bigamy. In a prosecution for bigamy the state is re-
(^uired to show that the defendant had a living wife at
the time of the second marriage.^*

14 — Set followmg case for a full 178; Davio v. Briggs, 97 U. S.

discussion of the term "beyond the 6.'{7; Thomasson v. Odum, 23 Ala.

milni." Ward v. Oolc, :J2 N. II. IHfi; Murrey v. Baker, 3 Wh. U. S.

452; Wakefield v. Smart, 8 Ark. .".11; Alexander Bank v. Dyer, 14

489; Field v. Di.-kerHon, .'5 Ark. I 'el. I'. S. 11."., S •''!•!• f his work.

409; Caniplicll v. White, 22 Mich. l.j— Gorman v. State, 23 Tex.

Criminal Peesumptions 207

§249. Presumption of continued life. The rule that
one is presumed to be dead when it has been shown that
he has been gone from the state for a period of seven
years has an exception in its application in prosecutions
for the crime of bigamy. This exception is itself a pre-
sumption, in this, that if the defendant is shown to have
been living at a particular time then he is still presumed
to be living unless such time elapsing from the time
he was last known to have been living, and the time
the alleged bigamous marriage is said to have taken place
is beyond a reasonable time.^^ As there is no certainty
of the time of a person's life, yet it is taken that most
persons live to and beyond manhood, hence the presump-
tion is one only of comparison as to the relative age of
the party at the time he is last known to be alive. The
inference is stronger where it is shown that the party
was in his voung manhood than it would be if he was
shown at the time of last heard from to be far advanced
in age. There seems to be a great conflict among the
reported case as to the relative value or probative value
of these presumptions. We think this only an apparent
conflict for the reason that the presumption that a person
is dead when he has been gone from the country for the
statutory period is a statutory limitation upon the right
to prosecute the case, and when the evidence discloses
this state of fact then the presumption becomes absolute
and irrebuttable. In the case of the presumption of life
we are met with the facts that the human race as an
entity die at all periods of the individual life, and that
as a fact common to our knowledge only a few persons
live beyond three score and ten years, and hence the jDre-

App. 646; Hull v. State, 7 Tex. 111. 58; Stevens v. McNamara, 36

App. 593; State v. Fildeu, 3 Cr. Me. 176; Smith v. Knowlton, 11 N.

Mag. Cal. 49; Forbes v. Foot, 13 H. 191; Lockhart v. White, 18

Am. Dee. 732 and note. Tex. 402; Ballard v. Carmiehael, 83

16— Gordan v. Gordan, 2 Houst. Tox. 355.
(Del.) 574; Lowe v. Fouke, 103

208

Criminal Law

sumption of life is oiie of inference based upon our knowl-
edge of these facts and hence could be of very little
force. Some of the authorities hold that the jury are to
take the two presumptions, and from the facts in the case
determine the weight to be given to each which of course
destroys their force as presumptions of law. The pre-
smnption of death is, however, one of law and the other
one of fact — the one absolute and positive and the other
only inferential. ^''^

§ 250. Presumptions as to married women. At the
common law a married woman was exempted from crimi-
nal intent where she committed a crime in the presence
of her husband for the reason that she was presumed to
be under the coercion of her husband. This was a pre-
sumption of law, and where the facts were that she was
in the immediate presence of her husband she was com-
pletely exonerated from liability. This is a presump-
tion in some of the several jurisdictions of the United
States — that is, in those jurisdictions where the common
law is in force as to married women. It is therefore com-
petent to offer this presumption as a defense for a mar-

17 — In the case of the State v.
Prym, 43 Minn. 387, the court said:
' ' It seems to us that neither of these
views are correct. The statutory
presumption, in certain cases, of
death after seven years, affords no
ground for the converse proposition,
that if the person has been heard
from within seven years, there is a
presumption of law that he is still
living. Neither is it true that there
is any presumption one way or the
other, as to the continunnce of life.
It is a mere presumption of fact,
which is subject to be controlled by
circumstances and facts, and conse-
quently by nri means of equal
HtrcHgth at all lime and all circum-

stance; or more correctly speaking,
there is no presumption one way or
the other. The evidence that a per-
son was living at a particular time
is but one of the facts to be consid-
ered in determining the question
whether he was living at any future
given time, and which is to be con-
sidered with reference to accompany-
ing circumstances, such as to the
time intervening, the age and the
liealth of the person, and the like.
Its weight as evidence will be af-
I'cctcd 1p\' iiny circumstance's afl'cct-
ing llio probability of the continu-
ance of life, or rendering it probable
thrit the dcatli Iind occurred.

Ckiminal Presumptions

209

ried woman when the connnon law has not been abolished
by statute. The common law though appears to have
been a little jealous of its scope. It was not a legal pre-
sumption when the circumstances showed that the hus-
band could not as a matter of fact have coerced her, or
where the crime was treason, or murder, or misdemeanor.
As a general rule this presumption in our country is not
often of force. Most of the states have statutes which
give to the wife substantially the rights and privileges
as that of the husband, and practically the wife is not
exempt from her criminal acts w^hile in the presence of
her husband. ^^

§ 251. Sanity is presumed.^^ This is essentially a crimi-
nal presumption since its application is more frequently
met with in criminal prosecutions. Sanity is said to be
the normal condition of man, and that insanity is the
abnormal condition. This is a rebuttable presumption
of law, and the burden is upon the person alleging in-
sanity to prove it. In view of the fact that this has been
fully discussed in a former chapter we will not enter into
the various questions as to the weight to be given to it
but will close the discussion here by saying that the
question of burden of proof is a much mooted one where
insanity is offered as a defense to crime.

§ 252. All persons are presumed to be normal in their
physical condition. All persons are presumed to be nor-

18 — A full discussion of the prin-
ciple of the text will be found in
the following cases: Hines v. State,
35 N. H. 207; Goldstine v. People,
82 N. Y. 231; State v. Williams,
65 N. C. 399; Davis v. State, 15
Ohio St. Reports, 721 ; State v. Pat-
Ion, 42 Vt. 495; Miller v. State,
27 Wis. 384; Phillips v. Phillips,
7 V. Mon. (Ky.) 268; State v.
Nelson, 29 Me. 329; Com. v. Far-
C. L.— 14

herty, 140 Mass. 454, 5 N. E. 258;
State V. Colby, 55 N. Y. 73; State
V. Baker, 71 Mo. 475; Com. v.
Wealch, 97 Mass. 593; Com, v.
Musey, 112 Mass. 287; Hardy v.
Foley, 121 Mass. 259; Edwards v.
State, 27 Ark. 493; State v. Banks,
48 Ind. 197.

19— McDugal V. State, 88 Ind.
24; McDonald v. People, 47 Cal.
134; Com. v. Rodges, 48 Mass. 500,

210 Criminal Law

mal physically. Thus all persons are presumed to have
two hands and two feet, two eyes, one head, and the like.
An adult woman is presumed to be virile, and able to bear
children. Thus men are presumed to be able to indulge
in an act of sexual intercourse. A boy under fourteen
years is presumed to be incapable of committing sexual
intercourse, for the want of maturity. The instances are
many, but it would only prolong a statement, which is
known to every person. ^^*

§ 253. Presumption of the probable result of a man's
act. it is a presumption of law that every person is pre-
sumed to intend the probable and natural consequences
of his acts. Thus if one intended to commit some crime
and in undertaking to carry it out the results of his acts
culminate ditferently than he had intended he neverthe-
less is guilty of the consequences.'^" Thus if A intending
to kill B and through mistake takes C for B and kills
him A is guilty of murdering C if the killing would have
been murder if he had killed B the person he had the
specific intent to kill. So, also, if A directs a blow at B
and misses him, and it falls upon C and kills him he is
guilty of killing C. But if A would be justified in killing
B he then would be justified in killing C, if by mistake
the blow falls upon him. So again if a person acts in any
capacity whether pursuing a lawful calling or not the
results being traced to him as the consequences of his act,
he is presumed to have intended the result. '^^ Tlius if
the government in a trial for murder proves the corpus

19u— Gardiner v. State, 8L Cia. 21— State v. Payton, 70 Mo. 220,

144, 7 S. E. 144; Hill v. Spencer, 2 S. W. 394; Stat* v. Murphy, 17

190 111. 65, 6.3 N. E. 014. N. Da. 48, 15 N. W. 84, 16 Ann.

41 Am. Dec. 458; State v. Finley, Cas. 1133; Com. v. Flainnihon, 8

38 Mich. 482; McKiiisey v. State, Pa. St. 430; Clark v. State, 19 Tex.

26 Ark. 334. Ai)p. 495; People v. Flock, 125 N.

20— Dunham v. SUitc, 70 Ga. 204; Y. 324, 26 N. E. 267, 11 L. R. A.

State V. Gilmore, 09 Me. 163, 31 807; State v. Levelle, 34 N. C. 120,

Am. liep. 2.17, 3 Am. (!r. Uep. 15. 13 S. K. 319, 27 A. S. R. 779.
ii 542 this work.

Criminal Presumptions

211

delicti (which consists of two elements, 1, the death and
second a criminal agency in producing the death), then
the burden is upon the accused to show that there was
excuse or justification. In other words the killing being
traced to the accused the presumption of innocence is
then overcome, and the presumption that he intended
to murder takes its place, and if no further evidence is
offered by the accused the jury is authorized to convict
if the guilt is established beyond a reasonable doubt.^^

§ 254. Presumption of persons under seven years of
a^e. Every person under the age of seven years is con-
clusively presumed to be incapable of forming a criminal
intent, and cannot commit a crime in a sense that they
would be punished for it. This is the rule at common
law. So, also, all persons between the ages of seven and
fourteen years are presumed to be incapable of forming
an intent sufficient to convict them for committing a
crime, unless it is shown that they had a mischievous dis-
cretion. But the fact of non-age was regarded as an
independent and separate defense, and the burden of
proof was upon the defendant to establish it. What ap-
pears to be the law is that, under the age of seven years,
there could in no case be any crime, and the case of
being under fourteen and over seven an evil intention
could be shown and that this be gathered from the evi-
dence of the whole case. The presumption was founded
on the natural immaturity of the parties.^^ There is also
another presumption that a boy under the age of four-

22 — 3 Greenl. sec. 14; and au-
thorities. High V. State, 26 Tex.
App. 545, 8 A. S. E. 448; Collier
V. State, 39 Ga. 31, 99 Am. Dec.
449.

23 — In the State of Texas, where
the statute exempts infants from
crime between the ages 9 and 14
years, the state is required to show

that the defendant was possessed of
sufficient understanding to know
that the act was wrong. The state
is not required to do this until it ap-
l^ears from the evidence that the
defendant is less than thirteen years
of age. Parker v. State, 20 Tex.
App. 451.

In the case of Dove v. State, 37

212

Criminal, Law

teen years of age is incapable of committing the crime
of rape, and this is an irrebuttable presumption at com-
mon law. This is based upon the physical inability of
the party to consummate the act of carnal intercourse.
This is believed to be the law in most of the states, but
in some may be rebutted. It has been held that a boy
under the age of fourteen might commit an assault to

rape

§ 255. Presumption as to females under the a^e of ten
years. A female under the age of ten years is presumed
to be incapable of giving consent to an act of carnal inter-
course. This is a presumption of law and irrebuttable.
An act of carnal intercourse with a female under the age
of ten years, at common law, even with her consent, was
rape. Under many of the statutes the age at which a
female may be capable of giving her consent to an act
of intercourse modifies the common law and places the
age limit as high as eighteen years.

§256. Taking of property openly and notoriously.
Where, in prosecution for larceny, it is developed in the

Ark. 261, the court says: "By the
common law, that if a child over
seven and under the age of fourteen
years of age is indicted for a felony,
it will be left to the jury to say
whether the offense was committed
by the prisoner, and if so, whether,
at the time of the offense, the de-
fendant had a guilty knowledge that
he or she was doing wrong. The
presumption of law is, at that age,
has not such guilty knowledge, un-
less the contrary is proved by the
evidence. By statute: an infant
under twelve years of age shall not
bo found guilty of any crime or
misdemeanor. Yet when the accused
is between the ages of twelve and
fourteen, the common law prcsump
tion still prevails, that ho or she is

not doli capax, or capable of dia-
cerning between good and evil, until
tlie contrary is shown alTirmatively
by the evidence. The rule is stated
in note to 1 Hale, above cited:
' From the supposed imbecility of
mind, the protective humanity of the
law will not, without anxious cir-
cumspection, permit an infant to
be ctinvicted on his own confession.
Yet if it appears, by strong and
pregnant evidence and circum-
stances, that he was perfectly con-
scious of the nature and malignity
of the crime, the verdict of a jury
may find him guilty.' "

24 — Territory v. Keyes, 5 Da.
244; Rt;ite v. Williams, 14 Oliio

Criminal Presumptions 213

evidence that the taking of the property was open and
notorious and there being no subsequent attempt to con-
vert it, the presumption is created that there was no
felonious intent. This is, however, a presumption of fact
and it, of course, depends in the first instance upon the
certainty of the evidence as to the acts of the defendant.
The essential element of larceny is the intent of which
the taking is the fruit.^^ The intent is to be gathered
from the acts of the party charged; the circumstances of
the taking as to whether the accused attempts to conceal
it; the relation of the taker to the owner, and the like.
All persons are presumed to be honest as well as inno-
cent of the guilty intent necessary to constitute the crime
of which he is charged. Cases might arise where the
court might be of the opinion that the acts and circum-
stances were of such a nature as to warrant it in declaring
as a matter of law that the presumption was that the
defendant could not have had the essential felonious in-
tent.

§ 257. All persons presumed to know the law. Every
person is conclusively presumed to know the laws of his
country.^^ And if he removes abroad he is presumed to
know the laws of the land where he is domiciled. This
presumption does not speak actual truth. No person in
existence, perhaps, knows anything like all the law; for
no mind, however profound; no genius, however great;

25— Black v. State, 83 Ala. 81, 3 26— -6 L. E. A. 498; Hess v. Cul-

Am. St. Rep. 691, 3 So. 814; Mc- ver, 77 Mich. 598, 43 N. W. 994,

Mullin V. State, 53 Ala. 531; Round- 18 A. S. R. 421; Wharton v. State,

tree v. State, 58 Ala. 383; Johnson 37 Miss. 379; State v. Salt Lake

V. State, 73 Ala. 523; Belote v. City, 35 Utah 25, 99 Pac. 255, 18

State, 36 Miss. 96, 72 Am. Dec. Ann. Cas. 1130; Hallett v. Alexan-

163; Leaman v. State, 18 Tex. App. der, 50 Colo. 37, 114 Pac. 490, Ann.

174, 51 Am. Rep. 298; Hunt v. Com., 1912 B 1277.
18 Grat. 757, 70 Am. Dee. 443, and
note; Garcia v. State, 26 Tex. 209,
82 Am. Dec. 605.

214 Criminal Law

no physical condition, however enduring, during the time
allotted to him in a life time, could acquire the greater
part of the laws. This presumption has, perhaps, pro-
duced its correlative in the maxim: '^Ignorantia juris
quod quarquis tenetur neminem excusat," that the ignor-
ance of the law excuses no one. This presumption is
generally regarded as conclusive, but the ignorance of
the law may be put in evidence for the purpose of rebut-
ting a specific intent with which an act has been com-
mitted.

§ 258. Malice presumed from the use of deadly weapon.
Malice is presumed from the deliberate use of a deadly
weapon. So, also malice being once established it is
presumed to continue until the contraiy appears.^^ Malice
being inferred, by the use of the weapon the burden shifts
to the defendant to show the legal use of the weapon. Mal-
ice is also presumed from the manner in which a weapon
is used, although not necessarily dangerous or deadly.
So if the use of such weapon indicates a heart fatally
bent upon mischief and in total disregard of conse-
quences, the malice is presumed. So, also, where a homi-
cide is perpetrated by lying in wait; by the administra-
tion of poison; in the perpetration of rape, arson, bur-
glary and robbery; by starvation and torture.''^

Where a homicide has been proven to be unlaw^ful and
no circumstances of mitigation or extenuation appears,
the presumption is that the killing was upon malice, and

28 — state v. Raimsbarger, 91 J;i. 29 — Lamar v. Statc^ 63 Miss.

746; State v. Perrigo, 70 la. 657; 265; State v. Wisdom, 84 Mo. 177;

Murphoy v. State, 37 Ala. 14] ; Territory v. Rominc, 2 New Mex.

Bivens v. State, 11 Ark. 4.55; Mur- 114; State v. Sherley, 64 N. C.

phey V. Slate, 9 Colo. 439; Riggs 610; Adams v. People, 109 111. 444;

V. State, 30 Miss. 635; Perkins v. 1.1 Am. Rep. ()17, 4 Am. Cr. Rep.

State, 1 Mi.ss. 62; State v. Barn .'..".I; Kcmic.ly, 107 Tn.I. 1-14.
well, 80 N. C. 466; McCoy v. State,
25 Tex. 37.

Chimin Aj. Presumptions 215

this presumption prevails until the defendant dis-
proves it.^"

§ 259. Presumption where one dies after year and a day
from wound. Where one receives a wound, inflicted in
malice, and languishing dies more than a year and a
day from the time of receiving the wound, the presump-
tion of law arises that he died of other causes than the
wound. This is also irrebuttable and no proof can be
offered that the wound contributed to the death or even
accelerated a disease that caused the death. The offense
is completely barred where the death occurs more than a
year and a day from the wound. This is a general rule
of the common law and, unless the same has been changed
by statute, the same would be barred. Some time, of
course, should be placed at which a wound would be
most likely to result fatally, but why the common law
has placed this a year and a day is not very clear.^^

But while this time has been placed as the limit at
which a prosecution for the murder or manslaughter
might be maintained, yet it has no eft'ect as a bar to the
lesser grades of the offense, such as assaults for mur-
der and other degrees of assault, etc. If it had otherwise
been murder if the party had died within a year and a
day, there appears to be no good reason why the assault
to murder might not be maintained. We have not come
across a case adjudicated as to this particular question,
but we are convinced from principle that the assailant

30— Murphey v. People, 9 Colo. 616; Brown v. State, 12 Minn. 538;

435, 13 Pac. 528. ' ' Thus where State v. Michell, 64 Mo. 191 ; Milton

the defendant assaulted a woman, v. State, 6 Neb. 136; Stokes v.

with his hands and feet, at a time People, 53 N. Y. 164, 13 Am. Eep.

he was aware, that owing to her 492; Sullivan v. State, 102 Ala. 135,

condition, the assault might prove 15 So. 264, 48 A. S. B.. 22; State v.

fatal, a presumption of malice Medley, 66 W. Va. 216, 66 S. E.

arises. See Castelo v. State, 62 la. 358, 18 Am. Cas. 761.
404, 17 N. W. 605; State v. Knight, 31—1 Hawk. Crown Ed. page 9,

43 Maine 11; Com. v. York, 50 sec. 9; 3 Inst. 53. §536 this work.
Maes. 93; Hogue v. State, 34 Miss.

216

Ceiminal Law

would be responsible. For at the time of the assault
all the elements essential to constitute the assault ex-
isted.

§ 260. Defendant is presumed to be of good character.

The defendant in a criminal prosecution is presumed to
be of good character at the time he is charged w^ith hav-
ing committed a crime. The government, in the first
instance, is not permitted to put in evidence any circum-
stance, derogatory thereto, independent and discon-
nected with the circumstances incident to the crime
charged.^'^

The defendant enters into the trial with this presump-
tion in his favor and he is entitled to all its worth, for
it would be unfair and unjust to allow the government
to introduce evidence to his prejudice by showing that
he had committed other crimes or that he was of a vio-
lent and fierce disposition or that his character was gen-
erally bad.

Thus, upon a charge of murder, the state is not allowed
to show that the defendant had, prior to the charge,
committed other murder, rape, larceny, forgery, etc.,
unless the crime charged is one of a series of or a part
of a system of murders, rapes, robberies, burglaries and
the like ; in which case the intent is evidenced by the for-
mer crimes, because each follows the other as a pre-
viously foraied and premeditated purpose. As in the
case where A was prosecuted for murdering her brother-

32— state v. Merrill, 2 Dev. (N.
C.) L. 269; State v. Northcut, 48
I;i. 583; State v. Jones, 2 N. W.
Rep. 1060; Gustofson v. Sta^e, 50
la. 194; 1 Cr. Mag. puf^e 260;
State V. Linley, 51 la. 343; State
V. Swain, 08 Mo. 605; Olive v.
State, n Neb. 1, 7 N. W. 444;
.Fones v. State, 10 Tex. App. 552;
"Wlicn it is said that good char-
acter is jircsuined, it is only said

that in the absence of evidence the
jury should not attribute to the de-
fendant a general bad character,
with respect to the qualities in-
volved in the alleged offense, nor
give weight to the assumed bad
character, in determining the ques-
tion, whether the evidence estab-
lishes his guilt." People v. John-
jinn, 9 Tae. C. L. J., Page 756.

Criminal Presumptions

217

in-law, D, it was competent for the state to show that A,
for the purpose of securing certain insurance payable to
her sister, had murdered her and after her death had
induced D to transfer the payment to her.^^ So where
the object or purpose is to commit burglaries or rob-
beries generally, the state having proved, first, the com-
mon purpose or plan, then one robbery or burglary would
be admissible proof in the prosecution of another.**

§ 261. Conflict of presumptions. It appears to be defi-
nitely settled that there is no presumption of law that
a person shown to be living at a time stated, continues
to live, as distinguished from and as opposed to the pre-
sumption that a person charged with crime is presumed
to be innocent until his guilt is proven,*^

So, in a prosecution for bigamy, proof that the for-
mer husband or wife was living at a time anterior to
the period created by the statute of the presumption,
death does not relieve the prosecution of the burden of

33— state v. Dobbins, 152 la.
632, 132 N. W. 805, 42 L. E. A.
(N. S.) 735; Hyde v. State, 234 Mo.
200, 136 S. W. 316, Ann. Oas.
1912 D 191; People v. Molineaiix,
168 N. Y. 264, 61 N. E. 286, 62
L. E. A. 193.

34 — ' ' If A is charged with killing
B, in a duel, would it be admissible
that ten years back, A had sent a
challenge to C, or that he, even
had killed in duels, half a dozen
people, or if A is charged with em-
bezzling money, as an officer of a
particular bank, would it be admis-
sible to prove an embezzlement made
by him, even within a year, in an-
other bank? Certainly not. If how-
ever, the case of the prosecution is
that A's plans, in pursuance with
some social grudge, was to kill, all
of a particular family, or all of a
particular class of men, then a

prior challenge of another member
of this class would be relevant. Or,
if, the ease of the prosecution, was
that A had concocted a plan for
cheating several banks, by some
common design operating upon all,
then the cheating of one bank
would be admissible for cheating an-
other. " Francis Wharton, 1 Cr.
Mag. page 1 ; in support of his posi-
tion, cite the following: Ees v.
Dunn, 1 Mod. CC. 950 ; Eex v. Oddy,

2 Den. C. C. 224; Coleman v. People,
53 N. Y. 130; Copperman v. People,
56 N. Y. 591; People v. Eundo,

3 Parker C. 335; Shreidly v. People,
23 Ohio St. 30; Devato v. Com.
(Ky.), 3 Mete. 414; Yarborough v.
State, 41 Ala. 403; Dove v. State,
37 Ark. 261.

35 — People v. Frilen, 3 Cr. Mag.
188, (Cal.), page 49; In Ee Phe-
nis' Trusts, E. L. 5 C. C. App. 139.

218 Criminal Law

proving that sucli former husband or wife was living at
the time of the alleged second marriage. The prosecution
is required to prove all the elements of a crime and the
fact that the allegation of the indictment is that the de-
fendant married while yet having a living wife or hus-
band, it is bound to establish this element of the crime by
proof. The authorities are conflicting, but the weight is
with the proposition that Avhere the presumption of the
existence and the continuance of life conflicts with the
presumption of innocence, the latter prevails, and the
burden is on the government to show the former.*®

§ 262. Defendant fleeing country, presumption of. in

the books we tind that a presumi^tion of guilt was al-
lowed against a defendant where it w^as proved that he
had fled the countiy when he was charged with crime,
or where he had absconded the country before he was
charged or at or about the time the same was committed,
or where he resisted arrest or endeavored to avoid ar-
rest.*' Thus, where one being crowded, stabbed a by-
stander in order that he might make his escape,*® The
trend of modern authority is clearly against the pre-
sumption as one of law. As one of fact it seems to be
a universal rule. One state, it appears, considers it a
presumption of law and the accused is required, under
its authority, to offer rebutting evidence, explanation,
or the court, as a matter of law, may instruct the jury
to convict u})oii the presumption alone. *^ Any of the
al)ove enumerated circumstances may be put in evidence

:56— Montgomery v. Elevens (U. 39— State v. Poe, 123 la. 118, 98

S.), 1 Sawy. 6G6; State v. null, 7 X. W. .'587, 101 A. S. R. 307;

Tex. App. 593. Lewis v. State, 96 Ala. 6, 38 A. S.

37— Giancoli v. People, 74 Cal. R. 75, 11 So. 259; Slate v. Duncan,

642; People v. Ogle, 104 N. Y. 7 Wash. 336, 38 A. S. R. 888, 35

511; .Ionian v. State, 79 Ala. 9; I'ac. 117; State v. Ma Foo, 110 Mo.

State V. Dupeor, 31 La. Ann. 804. 7, 33 A. S. H. 414, 19 S. W.

38— State v. SaundtTH, 76 Mo.
35.

ooo

Criminal Presumptions 219

against an accused, but the defendant always has the
right to explain. A conclusion of guilt from the fact of
flight is dependent upon other facts and circumstances
which may or not leave a strong conviction of the guilt.
There are many reasons why the same should not pre-
vail as a presumption of law. An instance is given
where (and this is of frequent occurrence in all parts of
the United States) great public excitement and indigna-
tion takes the form of a ''mob;" *® or where the condition
of the public denotes such a prejudice against the de-
fendant that it is doubtful that he may secure a fair
and impartial trial.*^

§ 263. Defendant's right to explain. Where the de-
fondant's flight has been placed in evidence he has the
right to explain why he fled, except where the evidence
clearly establishes his guilt.^^ In a Texas case, where the
defendant was denied the right by the court below, the
court of criminal appeals reversed the same for that
reason alone. *^ The right of the government to put in
evidence the flight of the defendant in all class of cases,
circumstantial and direct, is declared to be the rule in
Texas; so, also, that the state is limited to proof of flight
after indictment or charge by complaint. The defendant
is not permitted to create self-serving testimony by show-
ing that he did not attempt to escape or flee or to put in
evidence his conduct as concerning the charge until the
same had been put in issue by the government.** It is
relevant in all trials for crime for the prosecution to offer

40— Arnold v. State, 9 Tex. App. State, 4 Tex. App. 355; Gose v.

435. State, 6 Tex. App. 121; Aikin v.

41— State V. Phillips, 24 Mo. 475. State, 10 Tex. App. 610; MatheAVS

42—9 Am. & Eng. Enclo. Lw, page v. State, 9 Tex. 138.
692 and cases cited. 44 — Williams v. State, 22 Tex.

43— Arnold v. State, 9 Tex. App. App. 497; 4 S. W. 54; Gilliand v.

435; Bcnifides, 31 Tex. 579; Steat State, 24 App. 524, 7 S. W. 241;

V. Sheffield, 43 Tex. 370; Blake v. Mercer v. State, 17 Tex. App. 452;

State, 3 Tex. App. 581; Harden v. 20 Tex. App. 656.

220 Criminal Law

evidence of the flight, fright, confusion, nervousness,
emotions, anxiety and appearances of the defendant.
Fight and fright and other evidences of anxiety may be
considered, in a sense, implied or involuntaiy confes-
sions. But considered from the known, usual and natural
impulses of most persons very little weight could be
given them, however.*^

§ 264. Presumption from fabrication of evidence. It is
always relevant for the state to prove, as a circumstance
in establishing the guilt of the defendant, that he had
falsified, fabricated or suppressed evidence which might
be material to the state's case.*® This is not a presump-
tion of law, except where the defendant had the posses-
sion of documentary evidence or other evidence par-
ticularly within his knowledge. This last rule is of more
frequent application in civil matters, and a party to a
civil suit who destroys or suppresses any such evidence
is presimied to have done so for the advancement of his
own interest. At least the suppression of evidence is a
strong inference against the defendant, to be considered
in connection with all the circumstances.

§ 265. Courts are presumed to notice, etc. Courts are
presumed to take notice and have knowledge of English
words, phrases, abbreviations and legal expressions in
common use;*'' of all important historical facts; of all
public statutes and laws; all subdivisions of the country
over which they have jurisdiction, such as counties, ju-
dicial districts and the like; of their own records, officers,
sheriffs, marshals and the like; take knowledge of the
beginning and closing of tlieir own terms; of what consti-
tutes the current coin and money of the country; of the

45 — Sylvester v. Stale, 1 Ala. Law 3 Orcenl. Kv. 34; Uiidcrhill on Ev.,

.Toiimal, l)nt,'e 134. I'^t^c 313, .•ind :iiitlHiri1i('s cited liy

4G — Bcnevidos v. State, 31 Tex. liiiii.

579; Sheffield v. State, 43 Tex. 370; 47— Underliill on Ev., sec. 237.

Criminal Presumptions 221

heads of departments, either of the United States or of
the states.*^

§266. Presumption of ^ilt from judicial confession.

Judicial confessions are in all cases presumptions of
guilt, except in the case of murder, where the corpus
delicti has not been proven. In such case it is necessary
to corroborate the "plea of guilty" by circumstances
aliunde.*® Extrajudicial confessions, made voluntarily
and freely, are not conclusive, are but questions of facts
to be determined by the jury, and do not necessarily form
the basis of guilt.^" Confessions, however, are presumed
to be voluntarily made.^^

§ 267. Dying" declaration presumed to be true. Dying
declarations are presumed to be true because made under
circumstances which are supposed to be equal to the
sanctity of an oath. It is scarcely a presumption, how-
ever, but a strong inference is created that one, mortu
extremis, would not tell an untruth. (Evidence of such
statements are admissible where, in cases of homicide,
the question is, as to how it has been committed and for
showing the intent with which the defendant acted. Such
evidence is clearly inadmissible unless it positively ap-
pears as a predicate that the declarant was at the time
conscious of impending dissolution. The degree of
credence to be given these declarations are dependent
upon several considerations, which, in some cases, almost
destroy their weight, if they do not entirely, such as
that the declarant was not conscious of immediate death ;
that the witnesses did not clearly understand what it

48— Ashby v. Martin 50 Ala. 537; v. Brown, 150 Mass. 330, 23 N. E,

Manchester v. Cheney, 94 111. 430; 49; People v. Barker, 60 Mich. 227,

McDonald v. State, 80 Wis. 407, 50 27 N. W. ,539.

N. W. 185; State v. Barber, 36 U. 50— Underhill on Ev., page 138.

S. 313; State v. Gould, 26 W. Va. 51— Culver v. Com., 126 Mass.

258; Hinde v. Vattier, 5 Pet. 398. 227, 27 N. W. 539.

49 — 1 Greenl. 216 and note; Com. 464; People v. Barker, 60 Mich.

222 Criminal Law

was he said; that the declarant was not in the full pos-
session of his faculties, free from opiates and the like;
that the witnesses have no interest in the prosecution;
the relationship of the witnesses and the declarant; all
of these and many others cast discredit upon such state-
ments. Dying declarations are presumed to be equal
in weight to the oath of any other person taken in open
court and statements made in response thereto; that
the solemnity of the approaching death has the force of
inducing one thus situated to tell the trutli.^^

§ 268. Presumption as to the testimony of accomplices.
The old rule was that an accomplice's testimony was re-
ceived w^itli the same degree of credence as the testi-
mony of other witnesses, and it was for the jury to con-
vict upon such testimony as they saw" fit.^^ If they be-
lieved the testimony they were authorized to convict.
But at this time it appears to be an almost universal rule
to require corroboration of such testimony. There is a
rebuttable presumption now that an accomplice's testi-
mony is untrue, at least to the extent that the jury is
not authorized to convict without corroboration. It is
the usual practice for the court to instruct the jury that
unless the testimony of the accomplice has been corrobo-
rated they cannot convict. The question of the corrobora-
tion is one the jury may determine for themselves, of
course within certain limits. Where the rule of the
common law is adhered to there is no presumption that
the testimony of an accomplice is not true. In many in-
stances the rul(? that the accomplice must be corroborated
is due to statutory ])rovision. In others it is due no
doubt to the fact that the courts have looked with sus-

52 — Wortliington v. State, 92 Md. Dec. 695; Montgomery v. State, 80

222, 4K All. ."{.-).-), H\ A. S. I{. HOfi ; Iiid. :\:\H, -11 Am. Krj.. 815; Sinto v.

State V. Furney, 41 K.m. ll.'>, ].'! A. M^yer, 65 N. J. L. 237, 47 Atl. 486.

K. R. 262; Shitc v. .Jnlmson, UK Mo. 86 A. R. M. (V.\\, ;in<l iiofc.

401, 40 A. S, R. 40r., 24 S. W. 229; .'■):{— Uiulcrliill on Ev. 277; 1

Vo88 V. Com., 3 Leigh 786, 24 Am. C'rim. Law Mug., page 428.

Criminal Presumptions 223

picion upon such testimony, because of the great incen-
tive of the witness to testify falsely for the purpose of
protecting his co-defendant or to shield himself from
the crime."

§269. Presumptions as to officers. The courts as a
rule will not presume that testimony wrongfully ad-
mitted before the juiy could have no influence with them
in forming their verdict." All proceeding in a cause is,
however, presumed to be regular.^^ So, also, an officer
charged with official misconduct and the failure to per-
fonii his duty is presumed prima facie to have acted
within the law.^'

54 — Wicks V. state, 28 Tex. App. 56— Escareno v. State, 16 Tex.

448; Thomas v. State, 43 Tex. App. 88, 3 Tex. App. 76; Beck v.

658; Meyers v. State, 7 Tex. App. State, 72 Ind. 250; Rutherford v.

640. Com., 78 Ky. 639.

55— McKnight v. State, 6 Tex. 57— 'Connell v. State, 10 Tex.

App. 158; Logan v. State, 17 Tex. App. 367; James v. State, 21 Tex.

App. 50. App. 355.

CHAPTER XI

CONFESSIONS

§270.
§271.
§272.
§272a

§273.

§274.
§275.

276.

277.
278.
279.
280.
281.
282.
283.
284.

§285.

Admissions and confessions.

Confession, the effect of.

Classes of confessions.

. The effect of a plea of
guilty in open court.

Confessions, facts to be §
proven.

Confession defined. §

Admissibility is for the
courts.

Inducement.

Persons in authority.

Excluding confessions.

Must be voluntary.

Proof of admonition.

The t^st.

Threats of a mob.

Confessions at coniomn law.

At the time of arrest de-
meanor given in evidence.

Silence as a confession.

§ 286. Confession only binds the
person making it.

§ 287. Confession of principal, ac-
cessory, etc.

§ 288. As to second confession.
289. No examining courts at com-
mon law, as confession.

§ 290. Confession obtained through
fraud.

§ 291. Confession while drunk.

§ 292. Confession by persons inca-
pacitated.

§ 293. Confession of defendant vol-
untarily testifying in his
own behalf.

§ 294. Inadmissible confession can-
not be used for impeach-
ment.

§ 295. Admission of former mar-
riage, confession.

§ 296. Confession by third parties.

§ 270. Admissions and confessions. Usually admis-
sions against interest in civil matters and confession of
guilt in criminal matters are treated in the books under
the same head, "Exceptions to the rule respecting hear-
say evidence."

Generally llio reasons given for receiving declara-
tions and statements against interest in civil matters
are the same as those assigned for receiving the confes-
sions of guilt in criminal causes — the presumpticni pre-
vailing that such confessions or admissions are probably
true because made against llic interest of the party mak-
ing- Ihcm.^ Tlic I'ules of law governing the admissibility

1— Grecnl. Ev. 2i:<;

Stnfo v. Gould,

224

10 N. .1. L. 163, 18 Am.

Confessions

225

of the admissions are wholly separate and distinct from
the rules admitting evidence of confessions, or acknowl-
edgments of guilt. In the latter a higher degree of cer-
tainty and precaution is required than in the former.
The law for the purpose of protecting persons charged
with crime from the unjust consequences of inadvertent
and unguarded statements have thrown around them cer-
tain safeguards wiiich, by experience, are found not to
be necessary, in order to elicit the highest degree of
truth in the proof of mere admissions in civil matters.^

§ 271. Confession, the effect of. Deliberate and volun-
tary confessions impart a very high degree of probity,
founded upon the assumption that a sane person would
not inculpate himself except upon convictions of con-
scious guilt, and that an innocent man would not imperil
his safety or prejudice his interest by a false statement.
Perhaps no stronger evidence in a given case could be
obtained or which would invite a higher sense of convic-
tion than an open avowal of guilt.^ Whilst his is true,
great caution should be exercised in admitting such evi-
dence. The court should be positively satisfied that
such confessions were freely and voluntarily made, apart
from motives of fear or from considerations of advan-
tage or benefit or from a hope of escaping punishment.*
Many strong reasons are urged why strict caution should
be observed on admitting such confessions. Thus the
probability of the witness misapprehending the exact

Dec. 404; Com. v. Knapp, 10 (Pick.)
Mass. 477; State v. Jefferson, 20
Am. Dec. 534; 6 Ired. (N. C.)
305; Blackburn v. Com., 12 Bush,
(Ky.) 181.

2—1 Phil. Ev. 402; Koscoe's Cr.
Ev. 41.

3— Holt V. U. S., 110 U. S. 574.

4 — Anderson v. State, 72 Ga. 98;
Nesbit V. State, 43 Ga, 239; Pitts
C. L.— 15

V. State, 43 Miss. 472; Johnson v.
State, 59 Ala. 37; State v. Patterson,
73 Mo. 705; Bergen v. People, 17
111. 426; Terry v. MeClint, 1 Mont,
394; Straight v. State, 43 Tex, 486;
Berry v. State, 4 Tex. App. 492;
Smith V. State, 21 Gratt. (Va.)
809; State v. Knowles, 48 la, 598;
Com. V. Smith, 119 Mass. 305; John-
son V. State, 20 Tex. App. 28.

226 Criminal Law

language used; the failure to give the proper intonation
of the voice, the almost utter impossibility of one person
to repeat what another person has said, in gesture, facial
expression, words and actions; the probability of mis-
take; the treacherousness and fallibility of the memory;
the erroneous impression one is likely to acquire from
the misconception of words, phrases, etc.; from malice,
jealousy, zeal and interest on the part of the witnesses;
the environments and the accompanying circumstances
surrounding the defendant ; his mental condition and tem-
perament; his excitability or degree of calmness w-hen
impressed with the seriousness of the charge against him ;
these and many others may contribute to the belief that
the confession is untrue in whole or in part.

§ 272. Classes of confessions. Confessions are of two
classes, judicial and extrajudicial. 1. Judicial confes-
sions are those open and notorious admissions and volun-
tary declarations of guilt, "by plea of guilty" made in
open court, or where, under the provisions of the statutes,
the accused makes a statement of the substance of the
circumstances of the crime after being warned by the
presiding magistrate that any statement he may make
can be used against him in the trial of the cause. Upon
a ''plea of guilty" being entered in open court the de-
fendant is presumed to be guilty as acknowledged, unless
it appears that the accused, through the apprehension or
fear, the promise of reward or pardon, or the hope of
receiving some benefit, or of escaping some punishment,
or under some other inducement the "plea" was made
under duress.*

Generally the entire statement is placed in evidence.
In cases of murder confessions in open court are not con-
clusive. The coqius delicti must be corroborated by

5— state V. Laml., 28 Mo. 218; Ui-11; Skap^'s v. Stale, 88 Ark. 62,
Danty v. State, 89 In<l. 398; State ll.H S. W. 'MG, 16 Ann. Cas. 622.
V. Abrams, 131 la. 479, 108 Ncv.

Confessions

227

evidence outside of the evidence of the confession.^ In
crime of less malignity corroboration is not required. It
is provided, however, by statutes of some of the states
that the plea of guilty must be corroborated, or at least
the magistrate must be satisfied that the statement is
freely made and that it is true.

§ 272a. The effect of a plea of guilty in open court. A

plea of guilty is only an admission that the accused com-
mitted the act charged against him, and sufficiently al-
leged in the complaint or indictment, and is not an ad-
mission that the act charged is an offense against the
law. By so pleading he does not admit that the offense
charged is constitutional or within the powers of the leg-
islature, or that the law had been properly enacted, or
that the court before which the plea was made had juris-
diction to receive the plea.''' Such a plea is only an admis-
sion that by the record the truth of whatever is suf-
ficiently alleged against him and does not prevent him
from taking advantage of such defects.^

§ 273. Confession is a fact to be proven. A confession
is a fact to be proven rather than evidence to prove a
fact. The confession of guilt is one thing and the proof
of the confession is quite another. All of the confession
must be proven, all the acts, statements, declarations and
conversations must be admitted together.^ A different

6— Gore v. People, 162 111. 259,
44 N. E. 500; Peojjle v. Jackson,
103 N. Y. 182, 8 N. E. 374; People
V. Jones, 32 Cal. 80; State v. Mar-
tener, 20 Kan. 93; State v. Knapp,
70 Ohio State 380, 71 N. E. 751, 1
Ann. Cas. 819. Proof of Corpus
Delicti, Stringfellow v. State, 26
Miss. 157, 59 Am. Dec. 247.

7— People V. Gould, 70 Mich. 240,
38 N. W. 282, 14 Am. St. Rep.
493; Grossman v. Oakland, 30 Ore.

476, 60 Am. St. Rep. 832, 41 Pac. 5;
Wilmoth V. Hensel,451 Pa. St. 200,
25 Atl. 86.

8— State V. Kelley, 206 Mo. 685,
12 Am. Gas. 681; Flecher v. State,
12 Ark. 169; Henderson v. State,
60 Ind. 276; Com. v. Kennedy, 131
Mass. 584.

9— Williams v. State, 69 Ark. 599,
65 S. W. 103; Conner v. State, 34
Tex. 659; Roseoe's Cr. Ev. 54;
State V. Hollenchat, 61 Mo. 302;

228

Criminal Law

rule would admit of great abuse and result in a great in-
justice to the accused. The rule in this respect is the
same as that in civil cases. "Where the witness has heard
only a part of the statement or where he cannot remem-
ber the substance of what has been said, or where the
accused was interrupted while making the statement,
having failed to complete the same fully, evidence of
these would be inadmissible.^** Yet, however, where dif-
ferent witnesses hear one part and another another part,
the government may prove one part by one witness
and the other by another.^^ The accused always has the
right to explain the statements made by him by any evi-
dence that will have a tendency to rebut them. When
the confession is in the jury may believe it, or a part
only, or it may be rejected entirely.

§ 274. Confession defined. Extrajudicial confessions
are those free and voluntary acknowledgments of guilt
made out of and independently of a court of justice, and
includes all statements, conversations and facts from
which guilt may be inferred. ^^ There is no presumption
of law arising from this class of confessions, but they are
merely matters of fact to be weighed by the juiy in de-
termining the guilt of the accused. It is the duty of the
court to instruct the jury that they should observe great

Griswall v. State, 24 Wis. 144;
State V. Elliott, 15 la. 723; Peter-
son V. State, 47 Ga. 524; Williams
V. State, 39 Ala. 532; State v. Na-
lione, 32 Vt. 241; Kelsey v. Bush,
2 Hill (N. Y.) 440; Com. v. Keys,
11 Gray (Mass.) 323; Com. v.
Brown, 9 Leigh (Va.) 633; State v.
Isaac, 3 La. Ann. 359; People v.
Murphey, 39 Cal. 52; Rcspu1)lica v.
McCarty, 2 Ball (U. S.) 86; United
States V. Prior, 5 Cr. 37; McOiil-
lock V. State, 48 Ind. 109.

10 — State V. Covington, 2 Bailey
(S. C.) 569; Miller v. State, 40

Ala. 54; Crawford v. State, 4 Cald.
(Tenn.) 90; State v. Gelabut, 39
Cal. 603; State v. Busse, 127 la.
318, 100 N. W. 536.

11 — Cofman v. Com., 10 Bush.
(Ky.) 405; Blackburn v. State, 230
St. 146; People v. Wynne, 15 Cal.
70; Com. v. Brown, 9 Leigh 633,
(36 Va.) 33 Am. Dee. 263; Noel v.
State, 161 Ala. 25, 49 So. 824;
State V. Colvin, 226 Mo. 446, 126
S. W. 448.

12— People V. LoUoy, 4 I'uc.
(Cal.) 640, 59 Cal. 451.

Confessions

229

caution before allowing the proof of such confessions to
control them in coming to a verdict. ^^ Two views are en-
tertained by the courts and text writers whether this
class of evidence should be corroborated. The doctrine
of the American states is perhaps settled that corrobora-
tion is required. This, perhaps, because of the many-
errors, mistakes, misapprehensions a witness may fall
into in detailing conversations, statements, etc., and this
rule is supported by reason and justice.^*

§ 275. Admissibility for the court. The question of the
admissibility of the evidence is preliminary to the ad-
mission and the same is to be determined by the court.
A review of the reported cases shows that there are num-
berless instances where courts have rejected such evi-
dence because of its incompetency. The sufficiency of
the evidence of a confession is one to be determined by
the jury and, as we have said, may be rejected in whole
or part.^® Confessions made to a person in authority or
to those who have a right to inquire, or those who exer-
cise any restraint over the freedom of actions of the pris-
oner, as a preliminary to the introduction of evidence
of the confession, the government must show that
such confessions were freely and voluntarily made

13— U. S. V. Natt, 1 McLean (U.
S.) 499; Touts v. State, 80 St. 98;
People V. Gilbert, 39 Cal. 663.

14— People V. Williams, 101 111.
382; May v. People, 9 111. 343;
State V. Knowles, 48 la. 598; Smith
V. State, 22 N. W. 780; Yate v.
State, 1 S. W. (Ark.) 65; People v.
Lane, 49 Mich. 340; State v. Dav-
idson, 30 Vt. 377; Com. v. McCune,
97 Mass. 580; Strinfellow v. State,
26 Miss. 157, 59 Am. Dec. 247;
Brown v. State 32 Miss. 433; Win-
slow V. State, 76 Ala. 42; Butler v.
Com., 2 Dunn. (Ky.) 435.

15— Whaley v. State, 11 Ga. 123;
State V. Brite, 73 N. C. 26; State
V. Fredmont, 351 A. 541; Harding
V. State, 54 Ind. 359; Murphey v.
People, 63 N. Y. 590; State v. Dun-
kin, 64 Mo. 262; Young v. Com., 8
Bush (Ky.) 366; Burns v. State, 36
Tex. 356; State v. Vance, 8 N. C.
631; King v. State, 40 Ala. 314
Com. V. Culver, 126 Mass. 464
Metzger v. State, 18 Fla. 481
Dioson V. State, 13 Fla. 631.

230 Criminal Law

after having been advised tliat the statements might
be used against him.^® It must appear that the
prisoner understood fully what effect his statements
would have so far as being evidence that could be offered
against him. So, also, where any person, in the presence
of an officer or other person having any authority over
the prisoner, offers him any inducement to make a state-
ment, and a statement is thereby obtained, the same will
be subject to be rejected unless it appears that the person
so in authority warned the prisoner of the effect of the
statement.^'''

§ 276. Inducement. The rule is well settled that an
inducement offered to a prisoner by a person in authority
for procuring a statement concerning any criminal offense
of which he stands charged has the effect of excluding
such evidence as being procured by undue influence. By
the phrase, ''persons in authority," appears to apply to
any person having an interest, that is, one who is not
officious and curious, but one who in good faith has an
interest in helping to hunt out the guilty parties, either
as an officer or as a private person, such as judicial and
ministerial officers, sheriffs, marshals, police officers, de-
tectives, prosecuting officers and the party injured, and
all persons connected witli the business of these several
officers.^®

§277. Persons in authority. The authorilies are con-
Ilicting whetlier persons not in authority, that is, per-

16— Cane v. State, 18 Tex. App. Lacey v. State, 58 Ala. 386; Beek-

.'587; Warner v. State, 29 Tex. App. ham v. State, 100 Ala. 16; State v.

168; Gentry v. State, 24 Tex. App. Jay, 116 la. 264; 89 N. W. 1070;

80; Johnson v. State, 107 Miss. State v. Brockman, 46 Mo. 566;

196, 65 So. 218, 51 L. R. A. (N. S.) State v. AVliitficld, 70 N. C. 356;

1183. People v. Smith, 15 Cal. 409; 3 Rus-

17 — Jones v. State, 58 Miss. 349; sell on Cr. 385; People v. Gonzales,

Reagan v. State, 49 Col. 316, 112 136 Cal. 606, 69 Pac.' 487; State v.

Par. 785. Dye, 36 Nov. 143, 133 Pac. 935.

18 — Newman v. Slate, 49 Ala. U; See the list of cases cited.

Confessions

231

sons who have no direct connection witli the prosecution,
by holding out inducements obtains a confession of guilt
can be permitted to testify to such statements. It ap-
pears to be borne out by the weight of the authorities
that if the facts of the particular case show that the pris-
oner made the confession under immediate influence of
such inducements and which had the effect of creating in
his mind a hope or a fear, then such confession should
be excluded.^^ However, some of the authorities hold
that all confessions made to private persons upon induce-
ments held out to a prisoner by them would be inadmis-
sible.^® The rule in the federal courts appears to be that
the evidence will not be excluded unless it was obtained
by an officer or under the sanction of an officer. The
court held that a confession made to any other person
than one connected with the prosecution as an officer
authorized to have control over the prisoner would not
exclude the evidence. It further holds, however, that
at common law there were private prosecutors which, by
the law, assumed authority over the prisoner, but that
this rule of the common law did not have application in
the federal courts and that the law of the United States
did not recognize this semi-official relation to the prose-
cution.^^

§ 278. Excluding confessions. Just what expressions,
phrases or words are sufficient to detemiine whether the

19— Bergerlt v. State, 8 Baxt.
(Tenn.) 520; Cunningham v. Com.
9 Bush (Ky.) 149; State v. Farth-
ington, 43 la. 494; Com. v. Sego,
125 Mass. 150; Ulrick v. People, 39
Mich. 245; State v. George, 15 La.
Ann. 145. For a full discussion of
the common law rule see the follow-
ing: Womack v. State, 16 Tex.
App. 178; Collins v. State, 20 Tex.
App. 399; Carter v. State, 37 Tex.
362; Williams v. State, 19 Tex, App.

276; Anderson v. State, 104 Ala.
83, 16 So. 108.

20 — In Texas it is held that state-
ments made to private persons or
persons not in authority are admis-
sible; Gentry v. State, 24 Tex. App.
80, 5 S. W. 660; Eice v. State, 22
Tex. App. 654; Thompson v. State,
19 Tex. App. 593.

21 — United States v. Stone, 8 Fed.
Rep. 232.

232 Ceiminal Law

inducement or threat comes within the rule excluding
evidence of confessions is far from being reduced to a
rule. Thus it has been held that where the language
was: ''Unless you give me more satisfactory account I
will take you before a magistrate;" ^^ "if you will tell
me where my goods are I will be favorable to you!"^^
' ' I only want my money and if you will give that you may
go to the devil;" ^* "if you do not tell me all about it of
course we cannot do anything for you;" ^^ "you had bet-
ter split, and not suffer for all of them;" "the inspector
tells me that you make housebreaking tools, so you had
better tell me the truth, it will be better for you;" "do
not say anything to prejudice yourself, as what you say
I shall take down and will be used against you or for
you at the trial," come within the rule of exclusion.
The following cases have been held to be admissible, as
where the merchant said to his clerk: "I am satisfied
there are other receivers whom we have not yet discov-
ered. I would like for you to make a clear breast of this
matter, as AV has done;" where the prisoner was urged
to confess if guilty, and not do so if he was innocent ; ^
where the prisoner was tied and said to the officer, "if
you will untie me I will tell you," and upon being untied
confessed.^''' Page after page of similar cases could be
cited, but it would but add confusion. Whether a state-
ment or confession in any given case is admissible is a
question for the court to determine at the time it is of-
fered, and although the reports are full of precedents,
yet no precise rule can be given to govern all cases. The
circumstances of each case can be only taken as a guide.

§ 279. Must be voluntary. The proof of a confession
must show tliat it was freely and voluntarily made, aside

22— Rex. V. Thompson, 1 Leo. 291. 25— Rex v. Fonwcll, L. R. Q. B.

2.'5— Boyd V. State, 2 Ilumipli. D. 147.

(Tcnn.) 87. 26— Com. v. Soyo, 125 Mass. 210.

24— Rex V. Partridge & C. & B. 27— Cruse v. Cruse, 74 N. C. 491.
."551.

Confessions

233

from the influences of hope, fear, promises, threats, co-
ercion or duress, or any other influences which overcome
the free and deliberate volition.^^ Tlie burden is upon
the government to show that the confession is not inad-
missible. Whether under the circumstances the confes-
sion is admissible is a question to be submitted to the
sound discretion of the court. The usual practice appears
to be that when the confession is offered the accused
should object to the introduction of the evidence because
not deliberately made. Then the preliminary question
is to be determined by the court and this should be done
out of the hearing of the jury to avoid prejudicing them
in case the same is excluded from them.^®

§280. Proof of admonition. If the circumstances in-
dicate that the confession has been freely and voluntarily
made, then the evidence of it is admissible. In cases
where the prisoner is in the custody of an officer, in jail,
or under arrest, before the confession is entitled to admis-
sibility it must appear that the proper admonition and
warning were given to the accused to the effect that any
statement he might make could be used against him and
that he was not compelled to say anything at all if he did
not desire.^" So, also, it must appear that the accused fully

28— state v. Com. 55 Vt. 513;
State V. Howard, 17 N. H. 171; Com.
V. Natt, 135 Mass. 269; State v.
Porter, 18 Conn. 166; People v.
McMahan, 15 N. Y. 384; Cox v.
People, 80 N. Y. 500; State v.
Guild, 10 N. J. L. 163, 18 Am. Dee.
404; Nieholdson v. State, 28 Md.
140; Thompson v. Com. 20 Gratt
(Va.) 224; State v. Mills, 21 N. C.
428; Simon v. State, 5 Fla. 285;
Frank v. State, 39 Miss. 705; Por-
ter V. State, 55 Ala. 95; Johnson v.
State, 61 Ga. 605; Nolen v. State,
14 Tex. App. 474; Bryant v. State,
9 Humph. (Tenn.) 635; Hopkirk v.

State, 84 Mo. 278; Chambers v.
State, 39 la. 179; Brown v. People,
91 111. 506; State v. Carrick, 16
Nev. 120.

29 — State v. Patterson, 73 Mo.
696; Eedd v. State, 69 Ala. 255;
State V. Branham, 13 S. C. 389;
Bradford v. State, 104 Ala. 68, 16
So. 107, 53 Am. St. Rep. 24, and
note to 6 Am. St. Rep. 244; Ker-
meen v. State, 17 Ariz. 263, 151 Pac.
738; Berry v. State, 4 Okla. Cr. 202,
111 Pac. 676, 31 L. R. A. (N. S.)
849; Ammons v. State, 18 L. R. A.
(N. S.) 768.

30— Taylor v. State, 3 Tex. App.

234 Criminal Law

comprehended the legal effect of his action. If it clearly
appears that he did not know what he was doing or
that he did not make the confession free from hope or
fear, the evidence w^ould be inadmissible. So, also, it
should clearly appear that the accused understood the
language used. Thus, if the accused was a foreigner, and
the warning was given in a language which he did not
understand there would be no warning in a legal sense.
It should also appear that he could hear and that he was
in a position where he could hear and understand fully
what Tvas said to him.^^

§ 281. The test. The test of the question, in determin-
ing whether the prisoner acted from hope or fear, is
w^hether there has been any threat or promise of such a
nature that the prisoner would likely tell an untruth from
fear of the threat or hope of profit from the promise. ^'^
The hope or fear of some collateral benefit or injury
does not render the confession inadmissible.^^ The hope
or fear must arise out of the circumstances of the par-
ticular case and relate solely to it. A confession induced
by the fear of legal punishment is not inadmissible for
that reason.^* The fact that the defendant was actuated
by the belief that he would not be prosecuted does not
exclude evidence of confession made under such a be-
lief.^*^ So, also, if a prisoner make a confession upon the
understanding that he shall be exempted from prosecu-
tion, but aftenvards refuses to testify, evidence of such

381; Berry v. State, 4 Tex. App. 33— State v. Went worth, 37 N.

492; Massey v. State, 10 Tex. App. II. 196; McKinncy v. State, 134 Ala.

645. 134, 32 So. 726; State v. Cruse, 74

31— Loggins V. Stat«, 8 Tex. App. N. C. 491.

434; Com. v. McDermott, 123 Mass. 34— Gentry v. State, 24 Tex. App.

440, 25 Am. Eep. 120. 80; Thompson v. State, 19 Tex. App.

32— United States v. Stone, 8 590.

Fed. 232; Beckliam v. State, 100 35— Allen v. State, 12 Tex. App.

Ala. 15; Reagan v. People, 49 Colo. 190.
316, 112 Tar. 785.

Confessions

235

a confession is admissible. ^^ A prisoner who confesses,
with the understanding with the proper authorities that
he shall be exempted from prosecution, shall be required
to comply with his contract if he expects to receive the
benefit of his agreement. The law always exacts hon-
esty and good faith. If, however, the promise is condi-
tional, such as the government may use the confession
or not, as it deems advisable, and the prisoner refuses to
testify, the confession is inadmissible.^'

§ 282. Threats of a mob. Where a prisoner knows of
the threatened violence of a mob and of the gathering
of armed men for the purpose of doing him personal in-
jury, and under such circumstances makes a self-dis-
serving statement concerning the crime, the evidence
of such statement is inadmissible.^^

A confession obtained through force or duress is inad-
missible for any purpose.^^ The rule is well settled that,
where a prisoner is in the custody of an officer or is con-
fined in prison, a self-disserving statement made to an
officer or to any person, where the same is not induced
by hope of reward or fear of some injury, will not take
from such confession its free and voluntary character.*"

§ 283. Confessions at common law. At common law a
confession made to persons in authority, where it ap-

36 — Com. V. Knapp, 10 Pick
(Mass.) 477, 20 Am. Dec. 534;
State V. Moran, 15 Ore. 62, 14 Pac.
419; Hamilton v. People, 29 Mich.
173; Lopez v. State, 12 Tex. App.
27.

37 — State v. Johnson, 30 La. Ann.
1881.

38— Young V. State, 68 Ala. 596;
Redd V. State, 69 Ala. 255; Mose v.
State, 36 Ala. 211; Kendal v. State,
65 Ala. 493.

39 — Summerville v. Summerville,
37 N. J. Eq. 602.

40— Balbo V. People, 80 N. Y.
484; King v. State, 40 Ala. 314;
Austin V. State, 14 Ark. 556; Meyer
V. State, 19 Ark. 156; Stevens v.
State, 11 la. 225; State v. Sopher,
70 la. 494, 30 N. W. 917; Com. v.
Preece, 140 Mass, 276, 5 N. E. 494;
People V. McCullough, 81 Mich. 25,
45 N. W. 515; Price v. State,' 18 O.
St. 418; Sparf v. U. S. 156 U. S.
51, 39 L. Ed. 343.

236 Criminal Law

peared that the same was freely and voluntarily made
without an inducement being held out to the confessor cre-
ating a hope of reward or the fear of injury, were ad-
missible as evidence of the defendant 's guilt.

At the common law the person to whom the confes-
sion was made was not required to warn the accused
that the statements might be used against him, but this
rule of the common law has been in many instances
changed by the statute of the several states, which in sub-
stance provides that confessions made while the pris-
oner is in the custody of an officer or under such circum-
stances as would take from the accused his free will or
other legal restraint as to the crime charged, cannot be
admitted in evidence unless it is proven that such ac-
cused was warned by the officer that any such statement
or confession could be used against him.*^ So it has
been held that if a prisoner makes a statement which
includes a detailed condition of facts and the facts are
afterwards found to be true, it is not necessary under
such circumstances to have warned the accused that the
confession would be used against him. So if a prisoner
makes a confession which includes a statement of facts,
and those facts are found to be true, then in that event
the proof of these facts and circumstances are admis-
sible, notwithstanding the confession itself cannot be
put in evidence.*^

§ 284. At the time of arrest demeajior given in evi-
dence. It is generally conceded that when a party is
charged with crime, at the time of his arrest his acts
and demeanor may be given in evidence against him.
Very little weight can be given to these circumstances,

41— Laros v. Com. 84 Pa. St. 200; . 42— Com. v. Knapp, 9 Pick, 496,

State V. Carry, 28 La. Ann. 925; 1 Leach, 386, 2 East P. C. 658;

White V. State, 3 Hcisf. (Tcnn.) Chitty's Cr. L. 573.
338; Yates v. State, 47 Ark. 172;
Davis V. State, 8 Tex. App. 510.

Confessions 237

however, unless the proof clearly indicates that his acts
and demeanor were produced by the consciousness of
guilt. Thus the flight of a party upon being charged with
crime is always an admissible circumstance as showing
guilt, the weight to be given to the circumstance under
which it is done is for the jury to determine. The
fact that the defendant shows excitement or nervous-
ness or apprehension should create very slight in-
ference of his guilt, because common experiences
teach us that an innocent person whose good name
is attacked, whose reputation for honesty and good
citizenship has been established for years, is more likely
to be disturbed and show anxiety and confusion from a
sense of shame than one who has in fact committed the
crime.*^ In the books we find authority for the proposi-
tion that flight and fright at the time the charge is made
against the accused is strong presumptive evidence of
guilt of the accused. This, however, appears by the
weight of the modern authorities to be a question for the
juiy, to be considered in connection with all the other
evidence of the case.

§ 285. Silence as a confession. It appears to be a well
settled rule that one's silence to questions and inquiries
where, under the circumstances, such questions would
ordinarily call for a reply, may be given against the
accused as an implied confession. The reason for the rule
clearly appears, when applied to civil causes, but are
not so manifest when applied to a criminal cause. If
the circumstances, the time, the place, the matter in-

43— For a full discussion of the v. Blain, 20 Me. 109; State v. Eeed,

doctrine of the text, see the follow- 62 Me. 129; State v. Perkins 3

ing cases: Storey v. People, 76 111. Hawks (N. C.) 377; People v.

276; State v. Pratt, 20 la. 267; Standley, 47 Cal. 113, 17 Am. Eep.

Murphey v. State, 36 O. St. 628; 401; Nof singer v. State, 8 Tex.

Broyles v. State, 47 Ind. 251; Mc- App. 102; Nolen v. State, 14 Tex.

Kees V. People, 36 N. Y. 113; Com. App. 474. § 263 this work.
V. Brown, 131 Mass. 69; Roberson

238

Criminal Law

quired about, tlie manner of the inquiry, and the persons
inquiring would suggest to the accused that he should be
silent, as that of a careful and prudent person, it would
not be admissible as an implied admission,** But, upon
the other hand, if the circumstances would warrant the
inference that he would naturally contradict a statement
made in his presence it is admissible.*^

§ 286. The confessor is the only person affected. A

confession is only evidence against the person making it,
and cannot be offered against others. Confessions, how-
ever, of one particeps criminis in the presence of his ac-
complice and not denied by him at the time are admis-
sions against him.*® In the case of conspiracy where one
of the conspirators makes a statement it is admissible
evidence against all upon the condition, however, that it
be shown that the statement was made after the incep-
tion and before the culminations of the common design.
If, however, the statement is made either before or after
the completion of the connnon purpose then it is only
evidence against the person making it.*''^ Many authori-

44— Beard v. People, 86 111. 104;
Williams v. State, 42 Ark. 380;
Weaver v. State, 77 Ala. 26, 5 Am.
Cr. Rep. 366. The court in Robins
V. State says : ' ' That the confes-
sion came within the exception, Ave
tliink, to the general rule, that after
the common enterprise is at an end,
no one is permitted, by any subse-
quent act or declaration of his own
to affect the others; which excep-
tion is where the confession is made
in the presence of the co-defendant,
and under circumstances which
would make it receivable on the
j^round of assent or implied admis-
sion."

Allen V. State, 8 Tex. \\>\k 07,
1 Greenl. Ev. 233; Moore v. State,
(5 Tex. A pp. 564; Com. v. McDer-

molt-, ]2;i Mass. 440; State v. Ed-
ward, 13 S. C. 30; Campbell v.
State, 55 Ala. 8. A statement made
in the presence of a prisoner will be
jiresumed to have been heard by
him. People v. H., 2 Abb. App. Dec.
(N. Y.) 363.

Evidence of the defendant 's
silence when incriminating circum-
stances are discussed in his presence
is admissible as evidence of acqui-
escence; State V. Belknap, 39 W.
Va. 427, 19 S. E. 507; Hobbarty v.
State, 8 O. Circuit Court, 262.

45— Sparf v. U. S. 156 U. S. 51,
39 L. Ed. 343, and note.

46— Murphy v. State, 36 Ohio St.
()28; Com. v. Call, 21 Pick (Mass.)
515.

47— Lincoln v. Clnflliii, 7 Wall

Confessions

239

ties hold that the silence of the accused admits the truth
of the statements. It is a well settled rule of the law in
both civil and criminal cases, where two or more persons
have combined for the purpose of conducting a common
purpose to a common end, that all parties to the common
purpose are bound by the acts and declarations of their
partners done or made in furtherance of the common
design. It, however, cannot affect the admissibility of
such evidence by showing that the co-partners knew
nothing of the acts and declaration relating to the com-
mon purpose made by any of the others.

§ 287. Confession by principal as to accessory. A con-
fession by the principal is admissible for the purpose of
showing the guilt of the principal upon the trial of an
accomplice, but it is inadmissible for any other purpose.
It is not evidence of the guilt of an accessory or accom-
plice.*^ An exception to this rule is found where the con-
fession is made in his presence.*^ A confession which
implicates other persons or mentions other names must
be proved as made, but the evidence is only admissible
against the persons making the confession.^" The de-
fendant is entitled to have all of the conversation and
statement go before the jury.

(U. S.) 132; Kehoe v. Com. 85 Pa.
St. 127; Clawson v. State, 14 Ohio
St. 1; Williams v. State, 47 Ind.
568; Hamilton v. People, 29 Mich.
195; People v. Geiger, 49 Cal. 643;
Logging V. State, 8 Tex. App. 434;
Gerrard v. Stale 50 Miss. 147. For
further maintaining the text see the
following: Martin v. State, 25 Tex.
App. 557; Armstead v. State, 22
Tex. App. 57; Caheo v. State, 11
Tex. App. 153; Allen v. State, 8
Tex. App. 67; Moore v. State, 6
Tex. App. 564.

48— Sims V. State, 10 Tex. App.

131. In the English cases there
seems to be great doubt, and the
following cases sustain the doctrine
that the confession can only be used
against the principal and not
against the accessory: Eex v. Tur-
ner, Moody, C. C. 347; Rex v. Gard-
ner, 9 Cox, C. C. 332; Rex v. Enoch,
5 C. & P. 156.

49— Com. V. Call, 21 Pick (Mass.)
515.

50— State v. Dodson 16 S. C. 453;
State V, Fuller, 39 Vt. 74; State v.
Workman, 15 S. C. 541.

240 Criminal Law

§ 288. As to second confession. Althougli a confession
may have been illegally obtained, yet if a second confes-
sion is made, a sufficient time having elapsed from the
giving the first to warrant the inference by the court
that the second was freely and voluntarily made, may
be offered in evidence against the accused. Of course,
if the first confession was made under circumstances
w^hich would exclude evidence of it, the court should be
satisfied that the influences or inducements that had
prompted it were wholly removed before admitting evi-
dence of a second or any subsequent confession." All
statements, though made at different times, if freely and
deliberately made, are admissible against the defendant.
The presumption prevails that a promise or other induce-
ment having once existed, still continues.^^ Hence it
is incumbent on the state to show that the subsequent
confession was freely and deliberately made, free from
the effect of any prior influence.

§ 289. No examining- court at common law. At com-
mon law no examination was permitted when a prisoner
was charged wath having committed a crime. But a
statute was enacted during the reign of Phillip and
Mary authorizing magistrates to make an examination
into the charge for the purpose of granting bail or dis-
charging. This statute, in one form or another, has in
substance been adopted in most if not all the states.
Where, under the provisions of a statute, the defendant is
compelled to answer questions under oath, touching his
connection with the charge against him, put to him by a

51— Moore v. Com., 2 Leigh (Va.) Com. v. Sheets, 197 Pa. 69, 46 Atl.

701; Love v. State, 22 Ark. 330; 753.

State V. James, 54 Mo. 478; Walker 52— State v. Miller, 68 Wash. 239,

V. State, 7 Tex. App. 245; State v. 122 Pac. 1066; Slate v. Busse, 127

Foster, 136 la. 527, 114 N. W. 361; la. 318, 100 N. W. 536; State v.

State V. Lowcry, 170 N. C. 730, 87 Kii:ip, 70 Ohio 380, 71 N. E. 705,

S. E. 62; Bullock v. State, 65 N. .1. 1 Ann. Cas. 819.
L. 557, 47 Atl. 62, 86 A. S. H. 668;

Confessions 241

magistrate or justice of the peace, such inculpatory an-
swers cannot be offered in evidence against him in a
trial for the offense because such answers are compul-
sory and elicited against the consent of the defendant.^'
A different rule applies, however, wdiere, in judicial pro-
ceeding, he makes a statement under oath which incul-
pates himself. No person who, as a witness in a cause,
is compelled to answer questions or make a statement
the tendency of which is to incriminate. He has the legal
right to claim his exemption. If he fails to claim his
immunity from answering, then it will be deemed to be
freely and voluntarily made.^* Parties who are called
as witnesses before coroner's inquests or before exam-
ining courts, who make statements under oath concern-
ing a crime for which they are afterwards prosecuted,
such statements may be offered against them as confes-
sions." The rule seems to be settled that if the defend-
ant is required by law to make a statement under oath
concerning a cause then pending against him that the
statement cannot be used against him as a confession.

§290. Confession obtained through fraud. Confes-
sions obtained through artifice or deception where the
circumstances negative an inducement producing in the
mind of the defendant a hope or fear may be put in evi-
dence.^® Thus, where a prisoner asked a jailer to post a
letter for him, and on receiving a promise that he would
do so, turned the letter over to him, and the jailer re-
tained it and offered it in evidence upon his trial as a
confession, held that it was admissible." So, where the

53— Hendrickson v. People, 10 N. 55— People v. Kelly, 47 Cal. 125;

Y. 13, 61 Am. Dec. 721; Schoeffler Dickerson v. State, 48 Wis. 288.

V. State, 3 Wis. 717; State v. Gar- 56— Com. v. Goodwin, 186 Pa. 218,

rey, 25 La. Ann. 191; People v. Mc- 40 Atl. 412, 65 A. S. E. 852; State

Malum, 15 N. Y. 384. This case v. Hopkirk, 84 Mo. 278; King v.

appears to have been overruled. State, 40 Ala. 314.

54— Hendrickson v. State, 10 N. 57— Com. v. Goodwin, 186 Pa. 218,

Y. 13, 61 Am. Dec. 721, and note. 40 Atl. 412, 65 A. S. E. 852; People
C. L.— 16

242 Criminal Law

accused makes a statement to one who takes an oath not
to divulge what he relates to him.

§291. Confession while drunk. Where one, being
drunk, makes a confession it seems that for that reason
alone the confession would not be inadmissible. How-
ever, upon principle, reason and justice it appears to us
that the spirit of the law would exclude it if the accused
was so drunk as to be insensible and to have no compre-
hension of what he was saying and doing.^^ The ques-
tion of mental condition of the confessor is one for the
jury to determine from all the facts and circumstances,
at least it appears that the weight of authority sustains
this doctrine.^^ Confessions made to spiritual advisors,
communications and statements made by a client to his
attorney and communications and conversations of hus-
band and wife are inadmissible against one charged with
crime. The law, in veneration for man's spiritual nature
and for the purpose of guaranteeing the highest security
to his person and property, and in order to preserve in-
violate the domestic relations, has wisely and humanely
held such communications inadmissible in both civil and
criminal matters. So a confession made in a jest or under
a mistake of fact are inadmissible, but statements made
by a person while in jail in course of conversations with
other prisoners are admissible.^*'

§ 292. Confession by persons incapacitated. Confes-
sions made by persons mentally capacitated to know what

V. Barker, 60 Mich. 277, 27 N. W. 59— State v. Felters, 51 Iowa,

539, 1 A. S. R. 50; Sanders v. 495, 1 N. W. 755; Wright v. State,

State, 113 Ga. 267, 38 N. E. 841. 40 S. W. 492; Eskridge v. State, 25

58— State v. Staley, 14 Minn. Ala. 30; Lester v. State, 32 Ark.

105; State v. Jones, 54 Mo. 478; 727.

Gates V. People, 14 111. 433; People 60— People v. Robinson, 19 Cal.

V. Barker, 00 Mich. 277, 27 N. W. 40; Lindsey v. State, 66 Fia. 341,

.539; Williams v. State, 12 Lea 63 So. 832, 50 L. R. A. (N. S.)

(Tcnn.) 211; State v. Hopkins, 84 J 077; Ann. Oas. 1916C, 1167, :iii(l

Mo. 278. note.

Confessions 243

they are doing are admissible against them. Thus, if
infants over the age of seven years are shown to be intel-
ligent and bright, their confessions may be used against
them.^^ A confession of an insane person would be in-
admissible. We remarked in the preceding section that
persons intoxicated are not from that fact alone incapaci-
tated to make a confession. Whether the confession made
by an intoxicated person is admissible against him de-
pends upon the extent of the intoxication. If the mind
is in such a condition that he does not know what he is
doing the evidence of his confession would be worth very
little, yet the weight to be given to such confessions is
for the jury to determine. ^^ Unless it clearly appears
that the confession was involuntary by reason of the
duress of the intoxication the same would be admissible.
' ' The degree of intoxication which leaves one capable of
making a narration of past events or of stating his own
participation in a crime, is not sufficient to exclude the
inculpatory statement from the consideration of the
jury. ' ' ^^

§ 293. Defendant voluntarily testifying in his own be-
half. Where a defendant voluntarily testifies in his own
behalf and makes a statement against his interest, such
statement may be put in evidence against him upon a
subsequent trial of the same case.^^

§ 294. Statements inadmissible cannot be used for im-
peachment. Statements inadmissible as confessions can-
not be used for the purpose of impeaching the defendant

61— Com. V. Smith, 119 Mass. 305; 145; State v. Eush, 95 Mo. 199, 8

State V. Vuild, 10 N. J. L. 163; S W. 221; Heldt v. State, 20 Neb.

Earp V. State, 55 Ga. 136. 492, 3 N. W. 626.

62 — See the following: Wright 63 — Com. v. Howe, 9 Gray

V. State, 40 S. W. 492; People v. (Mass.) 110.

Ramirez, 56 Cal. 533; White v. 64— Eafferty v. State (Tenn.) , 16

State, 25 S. W. 784; King v. State, S. W. 728; Walker v. State, 28 Tex.

40 Ala. 314; State v. Phelps, 74 Mo. App. 112.
128; State v. Fredericks, 85 Mo.

244

Criminal Law

ill those jurisdictions where the defendant is allowed to
testify in his own behalf.^^ Confessions which disclose
collateral facts may be used for the purpose of proving
those facts, iiotwithstandiiig the confessions would be in-
admissible. So much of such confessions which relate to
the facts to be proved independently of the guilt of the
accused are admissible.^®

§ 295. Admissions as to former marriage. There is a
class of confessions, or rather admissions, which may be
proved against a defendant in a prosecution for big-
amy.®' It is well settled by authority that admissions by
the defendant that he had been previously married are
admissible against him upon his trial for bigamy for
the purpose of showing that he had been married. The
distinctive features between this class of testimony and
other confessions, consists in the fact that such admis-
sions are usually made long anterior to the alleged sec-
ond marriage, or at least prior to the arrest for the
crime. Confessions in other criminal cases can be made
only after the commission of the offense, but here we
have an admission made before there was a crime com-
mitted. Not only so, but long before the contemplation
of committing one. Proof, therefore, of such admissions
should be received with caution and not as conclusive.
Confessions are admitted in evidence against one charged
with crime because they are supposed to be the spon-
taneous outbursts of conscious guilt. We are sometimes

65 — Contrary to the doctrine of
the text: Quiiil:ma v. State, 29 Tex.
App. 40 ; Baker v. State, 2 Tex. App.
168; Neely v. State, 7 Tex. App.
324; Marales v. State, 36 Tex. App.
256. This case overrules the above
cases and sustains the text. Shep-
pard V. State, 88 Wis. 185, holda
with tlie text.

66 — Ilaynic v. State, 2 Tex. App.
163; Taylor v. State, 3 Tex. App.

387; Austin v. State, 15 Tex. App.
338.

67— State v. Hodgkins, 19 Me.
155; State v. Libbey, 44 Me. 469;
Wulverton v. State, 16 Ohio St. 173;
Jackson v. People, 2 Scan. (111.)
231; State v. Sanders, 30 la. 582;
Oneal v. Com. 17 Grat. 582; Lang-
try V. State, 30 Ala. 536; Finney v.
State, 3 Head 544.

Confessions 245

confronted with the proposition that such admissions
are conclusive presumptions of the truth of the facts
about which they are made, but such, at most, are but a
circumstance going to indicate what in fact is the truth.
Many reasons may be martialed showing that such testi-
mony is, to say the least of it, far from being satisfactory.
Thus one may declare that he was once married and
that he had a wife living, without any motive at all. He
may make the same declaration with the intent of pro-
tecting himself, as well as to protect the female from
the disgrace of an illicit connection. He may say that
he has a legal wife from a misconception of the law.
He may say that he has a wife living and that he was
married at a given time in sportive moments — in jest —
with no idea of making a solemn admission against him-
self, hence we conclude that at most such admissions are
only mere circumstances which the jury may weigh along
with other evidence in reaching the verdict.

§296. Confessions by third parties. Confessions by
third parties that they had committed the crime for
which the defendant is charged are not admissible for the
reason that such statements are but hearsay, or self-
accusing by one not charged. Thus, where one on his
death bed confesses to a murder for which the accused
is being tried, is inadmissible.^^ Nor is the confession of
one that he committed a theft for which the accused is
being tried. ^

68— Davis v. Com. (Ky.) 23 S. 69— Hardin v. State, 24 S. W.

W. 505. 28; State v. West, 45 La. Ann. 928.

CHAPTER XII

PAEDONS

§ 297. Pardoning power in the § 305.

Oown.
§ 298. The power to grant pardons § 306.

in the American states is

with the executive. § 307.

§ 299. Cases where the Crown had

no power to grant pardons.
§ 300. The power is in the Presi- § 308.

dent and Congress cannot

abridge it. § 309.

§ 301. Of the definitions and the

divisions of pardons.
§ 302. The effect of an unconditional § 310.

pardon.
§ 303. Conditional pardon, what § 311.

must contain.
§ 304. General pardon, amnesty,

etc.

Imposition practiced upon
pardoning power vitiate.

The pardon must be deliv-
ered and accepted.

The right to exercise par-
doning power is one purely
of discretion.

Courts will take judicial
knowledge of the granting.

The President of the United
States cannot pardon im-
peachment.

Contempts as crimes, may be
pardoned.

The effect of a pardon.

§ 297. Pardoning power in crown. At the ancient com-
mon law the right to exercise the pardoning power seems
to liave rested in the crown, with a kind of a special
power in parliament.^ Indeed it is not certain that at
any time this has been the exclusive prerogative of the
crown. At best we meet with instances where parlia-
ment has exercised the power generously and specially.
At the present in England the power seems to lay in the
crown exclusively, this, no doubt, being created through
statute rather than by absolute prerogative, although
as pre-eminent authority as Chitty says: ''The preroga-
tive of pai-doniiig power is inseparably incident to the

1— Coke's Lit. 8; 1 llalc, 358;
I I'.ln. 303.

240

Pardons 247

crown, in which it is vested for the benefit of the sub-
ject. It seems, indeed, that this right was once claimed
by the lords. Marchers and others who had the sole right
of jura regalia by ancient grant or prescriiDtion. ' ' But by
27 Hen. VIII, C. 24, Sec. 1, this supposed power was
entirely done away with and the sole power of dispens-
ing with the sentence of the law was forever vested in
the crown.^ There is but little doubt that this preroga-
tive of the crown has generally been permitted to repose
in the crown as the head of the government by the grace
of parliament rather than as an absolute and independent
right. At least parliament had a coordinate right to par-
don in particular instances.

§ 298. The power to grant pardons in the American
States is with the executive. This is usually conferred
upon the governors of the several states by the constitu-
tion. There are some instances in which the matter is
left with the legislature. The constitution of the United
States confers the authority to grant pardons exclusively
upon the president of the United States. Thus he shall
have power to grant reprieves and pardons for offenses
against the United States except in cases of impeach-
ment.' Under this power the president .may wipe out all
semblance of guilt before or after conviction.* Many
of the constitutions provide that pardons can be granted
only after conviction.

§ 299. Cases where the crown had no power to grant
pardons. A review of the authorities upholds the conten-
tion that the right to grant pardons as a prerogative of
the crown grew up as a contemporary with the common
law. There, indeed, appears to have been no time dur-
ing the existence of the English government when this

2— Chitty Cr. L. 762; 3 Inst. 235; 1; U. S. v. Jones, 2 Wheeler Cr.
4 Blackstone, 402. Cas. 450.

3— U. S. Con. Art. II, Sec. 2, C. 4— Vol. 9 Attorney Gen, Opin.

248

Criminal Law

right did not exist. Whenever the right or power was
once exercised could not be revoked. The only case in
which the crown did not have the right to grant a pardon
was in the case of impeachment.^ And in keeping with
this right of the crown and the executive our constitu-
tion prohibits the granting a pardon in the case of an
impeachment. This power was exercised by parliament
and many instances are met with where parliament as-
sumed the authority.^ The parliament appear to have
been, except subject to certain preroiratives of the crown
possessed of general power to enact any law or assume
any authority, and could at any time extend, limit, or
abridge, the prerogative of the crown as to the power to
grant pardons. But by act of 27 Hen. VIII, the power
is confirmed absolutely in the crown, and it seems that
the parliament has not assumed authority except in par-
ticular instances at any time since.

§ 300. Power is in the president and congress cannot
abridge it. The power to grant reprieves and pardons
is vested in the president of the United States by the
constitution, and it has been held by the supreme court
(the question being now permanently settled), that con-
gress has no authority under the constitution to enact
any law, abridging or extending this power conferred
upon the president by the constitution."^ The power
may be exercised by the president in pardoning persons

478; M. K. & T. K. R. Co. v How-
ell, 30 S. W. 101 (Tex. Civ. App.)-

5— Chitty's 1 Cr. L. 763, 4
Blackstone, 399. "It seems," says
Chitty, "that it was at one time
thought that murder could not be
pardoned by the crown by express
name." 763, 8 Am. L. Reg. 512
to 532.

6—8 Am. L. Reg. 512 to 532, the
subject is fully discussed, present-
ing parliamentary pardons.

7— U. S. V. Wilson, 7 Pet. (U.
S.) 150; Ex parte Well, 18 How.
333; State v. Nichold, 26 Ark. 74;
Ex parte Hunt, 10 Ark. 284; Peo-
ple V. Bowcn, 43 Cal. 439, Id. 13
Am. Rep. 148; People v. Keelcr, 99
N. Y. 468, 2 N. E. 615; Hovey v.
State, 11 Ind. 395; People v. Da-
ton, 55 N. Y. 380.

Pardons 249

ill their individual capacity for violation of the laws,
and by a general pardon to a community of persons by
proclamation. This power is one of discretion of the
executive and can not be demanded as a matter of right
and congress could not provide by law compelling the
granting of a pardon. Where the constitution is silent
as to the pardoning power the legislature may place it
where it wishes. In reference to this subject one court
says : ' ' The theory of all monarchial forms of government
is that the monarch or reigning sovereign rules 'by
divine right ' and that he is the depository of all supreme
power — that whatever of liberty the people possess or
enjoy is a gracious grant on the part of the sovereign.
Under such a form of government the power to grant
pardons, remit fines and forfeiture is the dispensing
power of the sovereign, a crime in such a country is
not against the government but against the king. With
us the theory of government is different. If a man
commits a crime in this state he is indicted for offend-
ing, not against the executive, legislative or judicial
branches of the government, but for having offended
'against the peace and dignity of the state' — while with
us the governor or the president has but a delegated and
limited sphere of action, which by no means implies that
we must necessarily or naturally delegate along with the
executive power, also the pardoning power. ' ' * Thus
the power must rest where it has been placed by the con-
stitution or in the absence of a constitutional prohibition
the power may be placed where the legislature wills.
There is this difference between the powers of congress
under the federal constitution and the powers of the
legislature under a state constitution, that the former de-
rives its authority from grants expressly or by neces-
sary implication conferred upon it by the constitution,
while the latter have all authority, except that which

8— state V. Nichold, 26 Ark. 74.

250

Criminal Law

has been inhibited by the state constitution and the laws
of the United States and the constitution thereof. But
where the constitution of a state provides that a certain
thing must be performed by an officer, then that officer
must do it and is confined in his authority to the powers
expressly conferred upon him, and he may go no further
than the delegation of authority.^

§ 301. Of the definitions and the division of pardons.
A pardon consists in an act of grace proceeding from
the pardoning power of the government granting immun-
ity from punishment for crime committed against the
laws of the state. •^*' There are three classes of pardons.
1. An absolute or unconditional pardon. 2. A conditional
pardon. 3. General pardons. As to an absolute pardon
it is said to be one which relieves one charged with or
convicted with some offense against the state from the
pmiishments and other consequences following the
charge or conviction. A conditional pardon is one which
frees one from the consequences of the violation of the

9— AUor V. Wayne, 43 Mich. 76;
State V. Murrell, 16 Ark. 384; Lit-
tle V. St.ate, 90 Ind. 338; Ex parte
Griffiths, 118 Ind. 83; Warren v.
People, 2 Den. (N. Y.) 272; Com.
V. Gamble, 62 Pa. St. 348, I Am.
Rep. 422; State v. Douglass, 26
Wis. 428, 7 Am. Rep. 87; State v.
Messmore, 14 Wis. 163. The court
in the case, Taylor v. Goodrich. 40
S. W. 515, says: "That where
the constitution confers a power
upon an officer he is confined to the
power granted. "

10 — Lord Coke defines pardon in
the following words: "A work of
mercy, whereby the king, either be-
fore or after conviction, attainder
or sentence, forgivcth aiiy ofTensc,
punishment, execution, title, dil)t
or duty temporal or ecclesiastical."

3 Inst. 233. Russel on crime: "Par-
don reaches both the punishment
prescribed for the offense and the
guilt of the offender, and when the
pardon is full, it relieves the pun-
ishment and blots out the existence
of the guilt, so that in the eyes of
the law the offender is as innocent
as if he had never committed the
offense." Russ. on Cr. 97o. Chief
Justice Marshall of the Supreme
Court of the United States v. Wil-
son, 7 Pet. 150, defines a pardon in
the following language: "A par-
don is an act of grace proceeding
from the power entrusted with the
execution of the laws, which ex-
empts tlie individual upon whom it
is tx'stowi'd from tho ])UiiisliiiiiMit
I 111' l;i\v iiitlicls for ;i criiiii' lie lias
coinniittrd. ' '

Pardons

251

laws, dependent upon something to be performed by the
person pardoned as a condition precedent or subsequent.
A general pardon is the remission of guilt of whole com-
munities of persons who are assumed to have been violat-
ing the laws of the land in a body or in its aggregate
capacity.^^

§ 302. The effect of an unconditional pardon. An un-
conditional pardon has the eifect to restore the person
pardoned to his exact condition prior to the time of the
commission of the crime. It not only removes the pun-
ishment but it also neutralizes the guilt and cancels all
disabilities and forfeitures, with the exception that it
does not restore office forfeited, or property or interest
vested in others in consequence of the conviction and
judgment.^^ A pardon by the president of the United
States relieves of the forfeiture of goods seized so far as
the right of the government of the United States is con-
cerned; ^^ it restores an officer to the rank he held origi-
nally where his rank has been reduced by judgment of
a court martial ;^* but where the law gives to certain per-
sons a portion of a fine or forfeiture as in the case of in-
fomiers as provided in matters of the violation of the
revenue laws of the United States, the interest of the
informer being in the nature of a vested right in the
fine and forfeiture,' a pardon by the president of the
United States does not divest that interest out of the in-
former.^^ The same rule w^ill also require the pardonee to

11— Cook V. Middlesex, 26 N. J.
L. 326; 4 Bla. 400; State v. Ful-
ler, 1 McCord (S. C); Ex parte
Wells, 18 How. (U. S.) 307,

12—2 Russ. on Cr. 975; 2 Hale
P. C. 278; Cuddington v. Wilkins,
Hobart's Rep. 81-82; Knots v.
United States, 10 Ct. Claims, 397;
Ex parte Graland, 4 Wall. 333.'

13 — Armstrong's Foundery v. U.

S. 6 Wall. (U. S.) 766; U. S. v.
Allen's Armory, 2 Abb. (U. S.)
129; Osborn v. U. S. 91 U. S. 474.

14—12 Opin. Atty. Gen. 547.

15 — U. S. V. Lancaster, 4 Wash.
(U. S.) 64; U. S. V. Harris, 1 Abb.
(U. S.) 110; Ex parte Winner, 8
Biss (U. S.) 321; Rose v. State, 2
Bay (S. C.) 565; State v. Farley,
8 Blackl. (Ind.) 229; Ex parte

252

Criminal Law

pay all cost, that is will not relieve him of the payment of
the cost. And where the law provides that the prisoner
may be imprisoned until the fine and cost is paid, impris-
onment as to the part of the judgment affecting the cost
is held not to be an imprisonment for debt and in viola-
tion of the provision of the constitution w^hich provides
that ''no person shall be imprisoned for debt." ^^ There
is, however, a line of decisions holding that if the pardon
is pleaded as having been granted after conviction, and
before sentence of the court that such pardon will relieve
the pardonee of the liability of payment of the costs."
That in line with this, also, it is held, that where the gov-
ernment has acquired the title of property as distin-
guished from a mere right or right in action, the pardon-
ing power cannot divest the title by the pardon. As
where the property at the time of the pardon had been
paid into the treasury of the United States could not be
restored to the pardonee except upon the authority of con-

gress

Boyd, 34 Kans. 570; State v.
Mooney. 74 N. C. 98; White v.
State, 42 Miss. 636; Ex parte
Gregory. 56 Miss. 164; Ex parte
Mann, 46 S. W. 828 (Tex.) holds
that the pardon does not relieve
the pardonee from the payment of
the cost of the prosecution in the
case of misdemeanors. It also fur-
ther holds the holding for the pay-
ment of cost by imprisonment is not
an imprisonment for debt. The
court cites among other authorities
the following: In re Wheeler, 34
Kans. 96; People v. Cotton. 14 111.
414; Musser v. Stewart, 21 Ohio St.
353; Ex parte Cottrell, 13 Nev. 193;
Howes V. Cookscy, 13 Ohio St, 242;
State V. Dychcs, 28 Tex. App. 535.
16 — Mann v. State, 46 S. W.
(Tex.) 828, 73 Am. St. Rep. 961;
Id. 39 Tex. App. 491.

17— Com. V. Hickman, 46 Pa. St.
357; Com. v. Ahl, 43 Pa. St. 53;
Schaglkill v. Eeefsugder, 46 Pa. St.
44G; White v. State, 42 Miss. 636;
Ex parte Gregory, 56 Miss. 164. In
this case the court says: "Where
appellant in a criminal case has giv-
en bond to supersede the judgment,
fixing his punishment, and taxing
liiin with the cost of the prosecu-
tion, the pardon docs not relieve
liim of his civil liability on the su-
persedeas bond; and if he fails to
prosecute the appeal this court, upon
motion of the state, supported by
the proper showing will render
judgment against appellant and his
bondsmen for the cost in this court
and the court below." Phillips v.
State, 58 Miss. 578.

18— Knote v. United States, 10
Ct. of Claims, 307; TT. S. v. Athens

Pardons

253

§ 303. Conditional pardon, what must contain. Condi-
tional pardons may be granted contingent upon the per-
formance of conditions precedent or subsequent. Tlie
conditions annexed thereto must, however, be not im-
moral, illegal or impossible of performance, and reason-
able, and not incompatible with the spirit of our laws
and institutions.^^ When the pardon is accepted with
the conditions imposed it then becomes an accepted con-
tract and a failure to keep the conditions, and to perform
its obligations nullifies it and places the prisoner in the
same status as to his liabilities to punishment as before
the granting of the pardon. The rule is well settled that
where the conditions of the pardon have been broken the
same become null and of no effect so far as the prisoner
is concerned, and that in order to carry the judgment and
sentence into effect it is not necessary to retry him, and
to ascertain that the conditions have been broken. If
the conditions have not been broken the prisoner may
show this upon a writ of habeas corpus, and the condi-
tions have not been broken he may be discharged.^" It

Armory, 35 Ga. 344; 8 Opin. Atty.
Gen. 281; U. S. v. Six Lots of
Ground, 1 Wood (U. S.) 234; U.
S, V. Paddleford, U. S. Eep. Book
17, 788.

19— U. S. V. Wilson, 7 Pet. 161;
Ex parte Wells, 18 How. 307; U. S.
V. Six Lots of Ground. 1 Wood 234;
Ex parte Hunt, 10 Ark. 248; Arthur
V. Craig, 48 la. 264; Lee v. Mur-
phey, 22 Gratt 789.

20 — Ex parte Lockhart, 11 Pac.
Coast L. J. 610; 4 Cr. L. Mag. 965.
In the case of the State v. Chan-
cellor the court said: "The courts
hold that (the case being one where
the prisoner had been pardoned
upon the condition that he leave
the state, and he failed to comply
after acceptance) the failure to
comply with- the condition imposed

in the pardon, placed him in statu
quo, that it remitted him to his
former sentence, with his rights
neither enhanced nor attenuated."
If the defendants had been involun-
tarily brought back to this state, or
were really not the men convicted,
or could raise another legal bar out
of the pardon, or show any other
good cause, did they not stand as
when originally brought up for sen-
tence? They certainly stood in the
second instance as in the first, i. e.,
precisely the same parity of right,
of law, of reason, i. e., they were
simply convicts brought before the
court to be again sentenced, because
they so far had evaded it." State
V. Chancellor, 1 Strabb 347, 47 Am.
Dec. 557.

254

Criminal Law

appears, however, that it is not iiecessaiy that he resort
to the writ of habeas corpus for in some jurisdiction the
practice appears to be to arrest the prisoner and have him
show cause why he shoukl not be reconfined or in other
words show why the sentence and judgment of the court
mav not be carried out.^^

§ 304. General pardons, anmesty, etc. A general par-
don is where a class or a community of persons taken
altogether is granted freedom or remission of guilt for
crimes or offenses committed. This is in all essential
respects synonjTiious with Amnesty, and is a direction by
the pardoning power that entire remission of guilt be
extended to all persons guilty of a violation of the laws
generally. The most usual example is found where the
government restores all those engaged in a rebellion to
their former rights as citizens, free from forfeitures, pen-
alties and punishments for treasons, crimes and neglect of
duty as citizen.'*^ It has been quite a source of contention
whether the president of the United States by virtue
of the authority of the constitution could without the
sanction of the congress exercise the authority to grant
a general pardon or amnesty. This however seems to
have been amply conferred upon him by act of congress,
and appears now not to be seriously doubted.^ The

21 — Ex parte Hawkins, Gl Ark.
:U1, 54 Am. St. Eep. 209; State v.
Wolfer, 53 Minn. 13, 39 Am. St.
Hop. 582; State v. Barnes, 82 S.
(.'. 14, 17 Am. St. R<?p. 832;
Fuller V. State, 122 Ala. 32, 26
So. 146, 82 Am. St. Rep. 17;
State V. Snith. 19 Am. Dee. 679;
State V. Noore, 62 Mich. 496. The
eourt in this case holds that the
prisoner is entitled to be reindicted
and retried before he can be pun-
ished.

22—8 Am. l/iw Reg. 515; see

Bouvier's Diet. Title Pardons; Web-
ster's Unabridged Diet.

23— U. S. V. Wilson, 7 Pet. 150;
Ex parte Wells, 18 How. 307; Ex
parte Garland, 4 Wall. 333; U. S. v.
Paddleford, 9 Wall. 531-543. Chase,
Chief .Justice : ' ' This proclamation,
if it needed legislative sanction, was
fully warranted by the act of July
17, 1862, which aulhorized the pres-
ident at any time thereafter to ex-
tend fiardon and amnesty to persons
who li;iil jiarticipated in ti:c rebel-
lion, witli siH'li exceptions as he

Pardons

255

light ill the governor of our states to exercise this power
is depeiidoiit upon the terms of the constitution and the
law.^

§ 305. Imposition practiced upon the pardoning- power
vitiates it. Where a pardon is obtained 'by the practice
of fraud, deception or misrepresentation as to the condi-
tions and the fact of the matter it is null and void.^^ It
seems that if the language of the pardon charter taken in
conjunction with the records of the cause in which the
pardon is granted the executive or the otherwise pardon-
ing power has been imposed ujoon through false statement
as to the facts and conditions or the withholding mate-

might see fit to make. That the
president had power, if not other-
wise, yet with the sanction of con-
gress to grant a general conditional
pardon, has not been seriously ques-
tioned."

24 — Dominick v. Bowdoin 44 Ga.
357; Ex parte Hickey, 4 S. & M.
751; Story on Cont. Sec. 1496; State
V. Merrill, 16 Ark. 384.

25 — "The king pardoneth a felon
whereof he stands attainted ^nd in
truth is not attainted; this is es-
pressio falsi, and maketh the par-
don void. " 3 Co. Inst. 238. "If a
man be attainted of felony by judg-
ment, and afterwards the king par-
doneth generally the felony, it is
naught worth, and the reason thereof
is, not because by the attainder the
felony is extinct, but because the
king is truly informed (as he ought
to be) of the state of the case; for
peradventure, if he had been in-
formed of the truth and all the
proceedings, he would not have par-
doned. " Cases of Pardons, 6 Co.
130.

"It seems to be laid down in

many books that whenever it may
be reasonably intended that the
king, when he granted a pardon,
was not fully apprised, both of the
heiuousness of the crime and also
how far the party stands convicted
thereof upon record, the pardon is
void; as being gained by imposition
upon the king. And this very agree-
able to the reason of the law,
which seems to have instructed the
king with this high prerogative upon
a special confidence that he will
spare those only, whose case, could
have been foreseen, that the law it-
self may be presumed willing to
have excepted out of its general
rules, which the Avit of man can-
not possibly make so perfect as to
reach every particular case. ' ' 2
Hawk P. C. c. 37, sec. 8.

"It is a general rule that when-
ever it may be reasonably presumed
that the king is deceived, the par-
don is void; therefore any suppres-
sion of truth or suggestion of false-
hood, in a charter of pardon, will
vitiate the whole, for the king was
misinformed." 4 Bla. 398.

256

Criminal Law

rial facts, then the pardon is null and void.'^^ So in
one case it was held that the pardon was vitiated by
the suppression of the fact that the judgment was ap-
pealed from, it appearing from the charter of pardon
that the executive regarded the judgment as valid and
subsisting; especially where the appeal was merely taken
for delay, and where the punishment was discretionary.

§ 306. The pardon must be delivered and accepted. In
order to inure to the benefit of the prisoner the pardon
must be delivered to him either in person or his agent.
So long as the instrument is in the possession of the
executive the pardon is of no effect. It may be regarded
as in the nature of a deed to real estate, delivery and
acceptance is absolutely essential to its validity.^"'' A de-
liver}^ is complete where the grantor has parted with all
control over it with the intent that it be delivered to the
pardonee. Where the instrument was delivered to the
warden of the penitentiaiy as the keeper of the prison
with the intent and the instruction of the grantor that it
be delivered to the prisoner it is a valid deliveiy.^® A
delivery to an agent of the prisoner, and when accepted
by him for the prisoner it becomes immediately opera-
tive.^^ When delivered and accepted it cannot be re-
voked.^"

26 — Dominick v. Bowdoin, 44 Ga.
357; Com. v. Kelly, 9 Phila. 586;
State V. Lock, 5 Ind. 359.

27 — In the case of the United
States V. Wilson the court says: "A
pardon is a deed to the validity of
whidi delivery is essential, and de-
livery is not complete without ac-
ctptancc. It may be then rejected
by the person to whom it is ten-
dered, and if it he so rejected, we
liavc discovered no power in a court
t<i force it on him. It myy be Hup-
|»oscd that no being condemned to
death would reject a pardon, but

the rule must be the same in cap-
ital case and misdemeanors." Ex
parte Hunt, 10 Ark. 284; Ex parte
Reno, 66 Mo. 266, 27 Am. Rep. 337;
Orubb V. Bullock, 44 Ga. 379;
Monchel v. St.ate, 40 Ala. 361.

28— Ex parte Powoll, 73 Ala. 517;
State V. Nicholds, 26 Ark. 74; 7 Am.
Rep. 600.

29— Rassen v. Stehr, 23 Tex. App.
287; In Re Edymen, 8 How. Prac.
N. Y. 478.

30 —Ex parte Reno, (\G Mo. 266,
27 Am. Rop. 337.

Pardons 257

§307. The right to exercise pardoning- power is one
purely of discretion. There is no law that can force the
executive to grant a pardon, that is, he may not be nian-
damused. Hence the grant of a pardon is an act of
grace and depends on the individual opinions of the par-
doning power. IMany of the states require the governor
to file his reasons why he issues a pardon, in the records
of his office or in the records of some other of the heads
of the departments, usually with the secretary of state.
The common law seems to have granted an equitable
claim upon the crown to issue his pardon to one who gave
king's evidence. This claim for the sovereign's clemency
did not amount to an absolute right of pardon but we are
left to suppose that it was usually granted. There are
some instances where the sovereignties were compelled
as a matter of right to grant the pardon, thus, where by,
the terms of a statute (of which there seems to have been
many at various times) creating an offense and providing
punishment therefor, as where the statute holds out im-
munity to accomplices who bring their associates in crime
to justice by testifying against them. Where the accom-
plice in crime thus comply with the terms of the statutes
and should afterward be convicted, such facts appearing
to the pardoning power, they would as matter of law be
entitled to a pardon.^^ In the light of the recent decision
of the supreme court of the United States a statute re-
quiring a witness to testify where his testimony may be
taken as calculating to incriminate him in order to be
compelled to testify against his objection the statute
must confer upon him absolute immunity. And where
he so testifies his right to a pardon in case of a subse-
quent conviction is a positive and existing right which
the executive not ignore.^^

31— Chitty Cr. L. 766; 1; Leacli man v. Hitchcock, 142 U. S. 547;

121-5. Brown v.. Walker, 161 U. S. 591;

32— Chitty Cr. L. 767; Councel- Elliott v. State (Tex.), 19 S. W.
C. L.— 17

258 Criminal Law

§ 308. The courts will take judicial knowledge. The
courts take judicial notice of the granting of a general
pardon or amnesty. AVhenever the same is solemnized as
an official act it then becomes effective and inures to the
benefit of those for whom it was intended. In all cases of
special or particular pardons granted to individuals the
courts do not take judicial knowledge that the same ex-
ists, but one claiming exemption from the consequence of
a conviction is required to and must plead and prove that
the pardon was granted and delivered and accepted, and
in the case of an unconditional pardon he is required in
addition to show that he complied with the conditions
imposed.^'

§ 309. The president of the United States may not par-
don in the case of impeachment. By the authority of the
constitution the president of the United States is ex-
pressly prohibited the power to grant a pardon in cases
of impeachment. A similar provision we believe is to be
found in the constitution of the several states. The
power to impeach is granted to congress and in the
states to the legislature. Under the English government
the power of impeachment was in the parliament and was
never assumed as the prerogative of the king. It does
not clearly appear why impeachment was excepted out
of the powers of the king, nor why this provision is in
the constitutions of our states and the federal govern-
ment except upon the theory that from the nature of the
crime itself it was thought to be unwise to place such
power in the hands of one man. It seems that at com-
mon law the king had the authority to pardon for the

249; Note to Evans v. O'Connor, (Ky.) 453; Scoot v. U. S., 8 Ct.

174 Mass. 287, 75 Am. St. Rep. 346. CI. 457; Haym. v. U. S.. Ct. CI.

A full discussion here in note. 443; Warren v. U. S., 7 Ct. CI. 501;

3.3 — Armstrong's Foundry, 7 State v. Barnes, 32 S. C. 14, 17 Am.

Wall. 766; Bragg v. Lorio, 1 Wood St. Rep. 832, 32 S. C. 14, and the

200; Hedges v. Price, 2 W, Va. cases cited.
192; Terrell v. Rankin, 2 Bush

Pardons 259

impeachment after the conviction. But by 12 and 13
Wm. Ill pardon under the great seal was not pleadable
in bar of impeachment.**

§310. Contempts are crimes and may be pardoned.

We have seen in our chapter "Contempts" that a con-
tempt of court is regarded by the weight of the authori-
ties as a crime and that the executive may pardon the
contemnor. "The whole doctrine of contempts goes to
the point that the offense is a wrong to the public, not
to the person of the functionary to whom it is offered, con-
sidered as an individual. It then follows that the con-
tempts of court are either crimes or misdemeanors, in
proportion to the aggravation of the offense, and as such
are included in the pardoning power of the state.*^ The
courts of the United States in construing the power of
the president have held that he had the power to pardon
for a contempt. Some of the states have held that it is
not a criminal action and hence could not be pardoned,
but this view is not supported by the authorities.

§ 311. The effect of a pardon. Legal infamy arose at
the common law where one was convicted of treason and
felony and any specie of crimen falsi which had the effect
of incapacitating him to testify as a witness.'^ In those
jurisdictions of the several states where the common law
is followed and the same has not been changed by the
statutes the same rule is the law, but since a pardon
gives a party convicted of a crime new capacity, credit
and character it restores him to the same rights pos-

34— See Cont. of States, 1 Chitty 36— Stark. Ev. Part 4, Vol. 94;

Cr. L. 765. Com. v. Ohio & Pa. R. R., 1 Gratt .

35— Ex parte Hickey, 4 S. & M, 329; Rivers v. State. 10 Tex. App.
751; 4 Opin. Atty. Gen.; 5 Opin, 177; United States v. Jones, 2
Atty. Gen. 579; State v. Sauve- Wheeler 451.
net, 24 La. Ann. 119, 13 Am. Rep.
115. See Taylor v. Goodrich, 40
S. W. 515.

260 Ceiminal Law

sessed by liim before the conviction and with it his
qualification to testify as a witness. It seems though
that if the crime of which lie is convicted has annexed
to it a disability as in the case of perjury as where the
statute provides that if one convicted of perjury shall
be disqualified as a witness the pardon does not restore
him to his former credit.^''' In cases of this character the
charter of pardon should specifically restore the party
to his former credit or specifically remove the disability.^'

37— Greenl. Ev. 379; Martin v. 38— Rivers v. State, 10 Tex. App.

State, 21 Tex. App. 1; Hester v. 177.
Com., 85 Pa. St. 139; State v. Tini-
mons, 2 Harr. (Del.) 528.

CHAPTER XIII

SENTENCE AND PUNISHMENT

!) 312. Puiiishnient at comiiion law.

S 313. Punishment of felonies.

ii 314. Other consequences follow

conviction for crime.
§315. Punishment in the absence

of Statute.
§ 316. Some of the punishments of

common law obsolete.
§ 317. Punishment of common

scolds.
§ 318. Benefit of clergy.
§ 319. In the absence of statute,

common law punishment

may be used.

§ ;'.20. Punishment at common law
was of twofold character.

§ 321. Sentence, when imposed.

§ 322. Sentence must be in con-
formity to law.

§ 323. Cruel and unusual punish-
ments.

§ 324. Modification of sentence.

§ 325. Punishment must be inflicted
as the statute provides.

§ 326. Cumulative statutes.

§ 326a. DifPerent punishments for
different sexes.

§312. Punishment at common law. At common law
the punishment for treasons and felonies were by death,
misdemeanors by fine and imprisonment, and perhaps by
transportation. There were some offenses punished by
whipping, some by pillory, some by the trumble, some by
ducking stool, and others by splitting nostrils.^ Of those
adopted by us of the American States is that of punish-
ment by death or as we call it capital crimes, and those
by imprisonment in the penitentiary for infamous crimes
less than capital, and a fine and imprisonment usually
in the county jails for the lesser offenses. A brief sketch
of these punishments inflicted by the common law per-
haps would serve a good purpose here.

§ 313. Punishment of felonies. All felonies were pun-
ished by death, and the difference in the degree of the

1— Chitty's 1 Cr. L. 797 to 801;
2 Hale 604 to 411; 4 Blackstone
403 to 407.

261

262 Cbiminal, Law

crime or rather the cruninal intensity of the wrong to the
state or the character of the offense did not lessen the
degree of the punishment. In the general consequences
following conviction of treason and some other felonies
there was a marked difference. Of this difference we
have spoken in another place but it becomes important
that we partially repeat. But this difference did not arise
out of the judgment of the court for in either case the
judgment was the same as the sentence that the
accused be executed, but it arose from the effect of the
law itself w^hich provided that when an English subject
w^as convicted of a felony and a treason, then in addition
to the judgment and the sentence that he suffer death
as a punishment for the crime, he also thereby forfeited
all his property, lands and estates. As the punishment
for treason and felonies were the same, judgment and the
sentence was the same.^

§ 314. Other consequences following conviction. The
consequence following the conviction and the judg-
ment and sentence of felony consisted first of the cor-
ruption of blood, and, second, forfeiture of goods and
lands to the king, the effect of which is denoted by the
term ''Attainder." The corruption of the blood had the
effect of destroying the relationship existing between the
felon and his heirs, or in other words the felon became
civilly dead without the right of inheritance to his chil-
dren and other relations because of absolute forfeiture of
all of his goods and lands to the king, which escheated
upon the theory we suppose that the prisoner had no heirs.
In the case of ordinary'- felony the corruption of
blood seems to have been one of the consequences, but
in the case of treason the corruption of blood and the
forfeiture always followed, and this appears to be the

2—1 Chitty's Cr. 779 to 810; 4
Blackstone 380; 1 Chitty's Cr. L.
724 to 742.

Sentence and Punishment 263

real distinction between felonies and treasons.^ Treason,
because of the nature of the crime was of the highest
culpability and required some greater punishment than
crimes of less malignity. These distinctions were very
ingenious but the forfeiture of goods and lands and the
corruption of blood has never in this country been looked
upon with any favor, and we know of no case in the
United States where it was ever attempted to engraft
this common law doctrine on the laws of punishment.'*
To avoid this unjust feature of the common law the fram-
ers of the Federal constitution provided that "Congress
shall have the power to declare the punishment for trea-
son,® but no attainder of treason shall work corruption
of blood, or forfeiture, except during the life of the at-
tained." And it appears that by recent statute of Great
Britain the corruption of blood and the forfeiture of
estates have been abolished.^

§ 315. Punishment in the absence of statute. We as-
sume that in the absence of a statutory provision estab-
lishing the punishment in the case of felony the court
would be authorized to sentence the accused to death and
that, too, whether it was a statutory or a common law
felony.' We think, however, practically, this is of very
little importance because the statutes of the several states
have appended to every offense, especially of the nature
of felonies its appropriate punishment which in most
cases is confinement in the penitentiary with sentence
of hanging in the case of murder, rape, and perhaps a
few others.

3— Chitty's Cr. L. 726, 727, 728, 5— Con. United States, Art. Sec.

729; 2 Hale 234; 4 Bla. 380, 382, 3; 3 Story on Cons. 169.

383. 6— Act of Parliament, 1870.

4—2 Johns Eep. 236-267; 8 Johns 7—4 Bla. Com. 98; Com. v, Bar-
Rep. 520 ; 1 Benney 's Eep. 1 ; Kirks low, 4 Mass. 439.
Rep. 228-291; 1 Days Cases 4; 1
Cox New Jersey Rep. 56, 266, 315,
340.

264 Criminal, Law

§ 316. Some of the punishments of the common law
obsolete. In the United States punishment by whipping
and the pilloiy and splitting of nostrils have never been
inflicted by the courts to any great extent. The pillory
was in early colonial times frequently inflicted as pun-
ishment in petit offenses. AVhipping was usually in-
flicted in petit larceny and other offenses characterized
by great moral dejoravity. Punishment by the pillory
was inflicted for the off'enses of perjury, forgery, and all
crimen falsi. These punishments were very ignominious,
disgraceful and cruel. AVhipping in some of the states
as a punishment is inflicted as a statutory provision in
certain crime as that of wife beating and the like.^

§ 317. Punishment of common scolds. At the common
law there was an offense known as "Common Scold."
This w^as a peculiar and specific offense, and applied to
scolding women, exclusively; that is to those who were
given to loud, indecent and boisterous language to the
disturbance of lier neighbors, and the public generally.
To find an appropriate penalty for such conduct in women
the common law devised a very humiliating punishment
by securing the offender in a kind of chair or stool known
as "Trebucket," ' ' Castigatory, " or ''Cucking Stool"
and thereupon ducking her in a pool or a pond of water.

This very barbarous and withal very disgraceful pun-
ishment seems not to have been inflicted to any great
extent in the American states though it was of frequent
use in the early colonial times. Though the offense of
"common Scolds" as a common law offense has been
frequently punished in this country yet the punishment
usually has been l)y line and imprisonment.® The offense

8—1 Cliitty Cr. L. 779 to 801; 4 9— U. R. v. RoynH. .T Cr. C. C.

T.la. «'om. 403 to 407; Coin. V. Kcir (i2() ; 4 Bl;i. Com. 1G9; 1 Chilty

iicy, 1 H.-iwks .I.H. For :i I'liU dis Cr. L. 779, 801, for full .liscussiou

ciiH.sioii of liic ;inciciit piinislmiL-nts of the coniiiioii l;i\v jiiiiiislmu'nt in

see "IJy Order of the Kintj;" also this offense.
"Notre Danic," l>y Victur liii^'o.

Sentence and Punishment 265

appears to have fallen into disuse or at least we do not
come in contact with any authorities holding that the
offense as at common law is enforced in the United
States. Such a punishment and such exclusive applica-
tion of the punishment to one class of citizens is contrary
to the spirit of our institutions, and the offense has taken
the punishment prescribed for other offenses such as
disturbing of the peace and the like.

§318, Benefit of clergy. The foregoing outline of
the punishments in England about the time the settle-
ment was taking place in the American colonies seem to
be sufficient for this volume. When the occasion arises
in the line of professional duty or when in the pursuit of
scholastic pleasure a glimpse into the antique is desired
other works written under the immediate influence of
such laws would be the best avenues to accuracy.

Still there is another feature of the common law pun-
ishments of which we have not spoken; that of
"Benefit of Clergy," was devised for the purpose of
avoiding the infliction of capital punishment, which in-
variably followed the conviction of a felony. We will not
in this connection attempt a discussion or an explanation,
because in our countiy no particular benefit can be gath-
ered from it, other than to say that the clergy in the
earliest time of English history were to a great extent a
privileged class, and it appears that this class of persons
were granted immunity for iDunishment for particular
offenses. Then in the process of time this privilege was
allowed to include the laity, to the extent of exempting
them from punishment for the first offense of certain
crimes. We also find that the statute of the United
States provided in our early histoiy that the benefit of
clergy should not be pleaded by any person who had been
convicted of a capital offense against the United States.
Those who desire may find a comjolete historical sketch
of this peculiar and most ingenious contrivance of our

266 Criminal Law

ancestors, by consulting Blackstone's Commentaries and
Cliitty's Criminal Law "Title Benefit of Clergy.

> J

§ 319. In the absence of statute, punishment may be
under common law. A great number of offenses at com-
mon law were misdemeanors for which a punishment by
fine or by fine and imprisonment was inflicted. So in the
absence of a penalty affixed by statute the courts have the
powder to resort to the common law and will inflict fine
and imprisonment in accordance therewith.^"

§ 320. Punishment at common law was of two fold
character. 1. That which arose in consequence of the
violation of the law, and 2. That which arose in conse-
quence of the judgment of conviction. The latter which
consisted in the attainder of the defendant, the corrup-
tion of blood and the forfeiture of goods and land has not
been adopted in our country as a part of the common
law but many of our statutes have appended to them in
addition to the punishment or penalty for the violation,
certain forfeitures such as the right to hold office if con-
victed of certain felonies, such as the crime of perjury,
forgeiy and the like. The disability attached is that
the defendant shall be forever barred of the right to
testify, and is branded with perpetual infamy. This is
also the consequence visited upon these classes at the
common law, and in the absence of a statute abridging
or modifying this rule of the common law, a conviction
of the crime would in addition to the penalty imposed
by statute, be barred of the right to testify in a court
of justice. This forfeiture of this right of citizenship as
the consequence of the final conviction for any of the
crimes known as infamous, follows the accused through-
out liis life, and unless he is restored to liis citizenship

]0_U. S. V. Cooladge Gallison, (U Ark. 220, 32 S. W. 68fi; Stato v.
488; Smith v. People, 25 111. 17, Wilson, 2 Root (Conn.) 62.
76 Am. Dec. 780; Stato v, Corbitt,

Sentence and Punishment 267

through the pardoning power he is prohibited to testify-
as a witness in any matters that may come before the
courts, even where he has a cause of action, the establish-
ing of which is dependent upon his own testimony.^^

There are some offenses mainly statutory though not
infamous provide for a forfeiture of some of the civil
rights of the citizen such as the right to hold office. ^^

§ 321. Sentence when imposed. After verdict and the
motion for a new trial and arrest of judgment has been
disposed of, for any reason the court fails to pronounce
the sentence of the court upon the verdict of conviction,
and where the record discloses no judgment, the court
is empowered under its general power to impose the
sentence at a subsequent term.^* Where the accused
pleads guilty at one term of the court and is absent
by escape for a long time, the court failing at the
term at which the plea is made to pass the sentence,
upon the recapture of the defendant pass sentence, there
being no statute requiring that the sentence be passed at
the same term of the plea.^*

§ 322. Sentence must be in conformity to law. So, also,
where the statute provides in terms that the sentence
of the court shall be rendered only after a specified
time from the conviction, a sentence passed within the
time limited does not thereby make it illegal, provided
the accused has presented his preliminary motions for
stay of the judgment, the motion in arrest of judgment,

11— Garland v. State, 43 Tex. 13— State v. Watson, 8 S. W.

330; Davis v. State, 35 Tex. 118; 383 (Mo.)-

Triggs V. State, 49 Tex. 645; Pale 14— State v. Thurman, 15 S. W,

V. Lunde, 1 Root 195; U. S. v. (Ark.) 84; People v. Felix, 45 Cal.

Jones, 2 Wheeler Cr. Gas. 451; 163; People v. Riley, 53 Mich. 260,

Railway Co. v. Howell, 40 S. W. 98, 18 N. W. 849.
Fed. Cas. 15493; 9 Op. Atty. Gen.
497.

268 Criminal Law

and motion for a new trial, and the same has been passed
upon by the court. ^^ It appears though that if any of
these motions are pending the sentence would be illegal
unless however the motions failed to set out meritorious
reasons or unless the same are waived. Thus we gather
from the foregoing that at the common law the court had
the power to defer sentence, if for any reason either for
the convenience of the court or for the lack of time of the
term or in the furtherance of justice or by the escape of
the defendant, the sentence of the conviction could not be
given. But where the statute provides how and w^hen the
sentence shall be passed then the court is required to
conform to these requirements so that no rights of the
defendant shall be prejudiced.^^

§ 323. Cruel and unusual punishments. The provision
of the constitution of the United States that cruel and
unusual punishments shall not be inflicted is a restriction
upon the federal government. This provision of the
federal constitution is in substance a part of the constitu-
tions of the several states, and of course a restriction
upon the state governments.

No certain and definite rule can be laid down as to
what will constitute this cruel and unusual punishment.
Some courts hold that punishment under a state of facts
come within the constitutional prohibitions wdiile others
might hold to the contrary. The only safe rule is to
consult the rules and decisions of the courts of the
particular jurisdiction, and to apply the fundamental
principles of justice to the case in hand, of course to be
guided as near as possible by llio ])recodonts and the reas-
oning of the reported cases.

15— Com. V. O 'Brian, 89 Ky. :{54, 16— People v. Johnson, 88 Cal.

12 S. W. 516; Holly v. Com., 36 S. 171; People v. Kl.erhart, 104 N. Y.

W. 532 (Ky.); Parrish v. State, 45 591; State v. Eisenhour, 132 Mo.

Tex. 51. 140.

Sentence and Punishment 269

It is however well settled that where a statute provides
a forfeiture of office as a part of the punishment for an
offense that it is not a cruel and unusual punishment.^'

The punishment against which the prohibition of the
constitution is intended to reach is, that class of punish-
ments which were regarded by the common law as bar-
barious and brutal, such as the whipping-post, and pil-
lory, a cutting off the nose, burning at the stake, breaking
on the wheel and quartering, and the like.^^ The legis-
lature has sufficient power it is now conceded by all
authorities, to provide for the infliction of punishments,
which in its judgment or discretion may be decided upon.
This is not understood to mean that the legislature is
unlimited in all cases, but the courts are the final arbiters
whether it has gone beyond its power. The legislature
has the undoubted right to provide for punishments in
addition to the punishments provided by common law.
It has been held that sterilization which consists in a
surgical operation known as vasectomy, and which has
the effect of taking away the power of pro-creation may
be inflicted as a punishment, and that it does not come
under the inhibitions of the constitution '^ against the in-
fliction of cruel and unusual punishments. ' ' This opera-
tion consists of ligating and resecting a small portion of
the vas deferens. ^^

§ 324. Modification of sentence. The rule at common
law was that a court could for any reason, before its
final adjournment amend or modify its judgment. This
rule in the absence of a statute, would be the rule with us
in this country.^" If, however, the court had adjourned for

17— Parker v. People, 3 Cowen Ind. 404, 32 N. E. 1019; State v.

486, 15 Am. Dec. 320-2. Fallen, 79 Wash. 165, 126 Pac. 705.

18— In re O 'Shay, 11 Cal. App. 19— State v. Fallen, 77 Wash. 165,

568, 105 Pac. 777; Coolej on Cons. 176 Pae. 75.

Lim. 7 Ed. 471; Hobbs v. State, 133 20— Com. v. Weighmoth, 79 Am.

270 Criminal Law

its term, then it lost its further control over its proceed-
ings. Where the statute provides a punishment the court
as a general rule is compelled to follow the statute.
Thus if the statute provides that for a certain offense,
the defendant shall be confined in the penitentiary for
a stated period at hard labor, then a failure of the
court to include this in his sentence the judgment accord-
ing to some authorities would be void.^^ Upon this point,
however, there is a diversity of opinion, in this, that if
the sentence is below the minimum the weight or at
least a slight preponderance of the authorities support
the proposition that the judgment of the court is only
voidable upon the reason that the defendant has not
been prejudiced because the penalty is less than the mini-
mum provided by law.^^ So, also, where the court inflicts
under its judgment a greater punishment than is provided
by law the authorities are also almost hopelessly at vari-
ance upon the proposition whether the judgment is void
or merely voidable. In the federal courts though the
rule appears to be well settled, that if the statute is not
conformed to, the sentence is void, and the defendant
can be discharged upon the writ of habeas corpus.

We think this whole matter rests upon the one proposi-
tion to the effect, that if the defendant has not been
injured by reason of the illegal sentence, that is, if it is
less than the minimum allowed by the law, it may be
regarded as a mere regularity, and the defendant has no
right to complain, for the reason that he perhaps is in a
better position than he would be, if the same had not
occurred, for the court erred in his favor. It is a well
settled principle that if the defendant is not prejudiced

Dec. 776; 2 Allen 144; Ex parte Ex parte Karskendick, 93 U. S.

Long, 18 Wall. 163; Com. v. Foster, 396; Lark v. Stale, 55 Ga. 435;

122 Mass. 323; Jobe v. State. 28 Qa. People v. Rouse, 72 Mich. 59; Ba-

235. r;ul;i v. Stato. 13 Mo. 94.
21 — In ro Johnson, 46 Fed. 478;

Sentence and Punishment

271

or could not have been prejudiced, by the ruling of the
court having jurisdiction of the person and the subject
matter, he has no right to a reversal of the judgment. ^^^
That in such case the defendant may during the term
of the court at which sentence was imposed, upon motion
to the court have the sentence corrected, so as to conform
to the law, and that it would be the duty of the trial
court to make the correction and to impose any sentence
within his discretion within limits of the statute, but
after the adjournment of the term, the defendant is not
allowed a correction of the same by appeal, writ of error
or habeas corpus. But where the judgment imposing
sentence is in excess of the maximum punishment, the
defendant may have the same corrected by appeal or writ
of error, but in the event the defendant fails to adopt
this manner of correcting it, the rule appears to be sup-
ported by the weight of authorities that the judgment
is good as to that part of the sentence which is authorized
by law to the extent of the maximum, and void as to the
excess, and that the prisoner may have himself released
on habeas corpus. There are authorities and sound rea-
sons for the proposition that where the judgment of the
court is correct (except as to the want of jurisdiction in
extending the punishment beyond the maximum), the
writ of habeas corpus may be resorted to for the purpose
of correcting the judgment, and directing the court to
correct the sentence so as to conform to the customary
or statutory punishment.^*

23 — State v. James, 37 Conn. 355;
Harmiston v. Lewistown, 153 111.
313.

24 — See the following authorities
for the proposition of the text.
People V. Jacobs, 66 N. Y. 8; Ex
parte Mooney, 26 W. Va. 36; In re
Grayham, 74 Wis. 450; Ex parte
Van Hagan, 25 O. St. 426; Ex parte

Bowen, 25 Fla. 214; Ex parte Bul-
ger, 60 Cal. 438. In In re Bonner,
Mr. Justice Fields says: "Much
complaint has been made that per-
sons are often discharged from ar-
rest and imprisonment where their
conviction, upon which such impris-
onment was ordered, is perfectly cor-
rect, the excess of the jurisdiction

272

Cbimixal Law

§ 325. Punishment must be inflicted as the statute pro-
vides. Where the hiw provides that the punishment
shall be inflicted in a certain manner it must be inflicted
in that way.^^ So where the penalty is death by hang-
ing, the executive officer must execute the same as the
judgment provides; for if instead of hanging the officer
beheads, this would be murder. So, also, the law is,
that when an officer is dii'ected to execute a sentence
of a court in a certain manner he is compelled to con-
form to the judgment and sentence. So no one but the
officers authorized by law are allowed to execute a sen-
tence. At the common law the manner of executing
the death penalty was as a general rule, by hanging until
the party was dead. The legislature evidently has the
constitutional power by reason of its inherent powers to
provide that the death penalty be inflicted in any manner,
provided it does not conflict with the prohibition of the
constitution, that no unusual and cruel punishments shall
be inflicted. The execution of the death penalty by an
unauthorized person is murder. So the legislatures of
the several states have the undoubted power, limited only

of the court being iu enlarging the
puniblimeut or enforcing it in a dif-
ferent mode or place than provided
by law. But in such case there need
be no failure of justice; for where
tlie conviction is correct and the er-
ror or excess of jurisdiction has
been as stated, there does not seem
to be any good reason why juris-
diction of tlie prisoner may not be
rcassumed by tlie court that im-
posed the sentence in order that its
defect may be corrected. It is true
where there are also errors in the
lii.il of tlie ciise iifTecting the judg-
ment not trenching upon its juris-
diction, the mere remanding tlie
prisoner to the original court that
imposed the sentence, to correct the

judgment in those particulars for
which the' writ is issued, would not
answer, for his relief would come
upon a new trial; and his remedy
must be sought for such errors by
appeal or writ of error." 151 U.
S. 242.

25 — See the following authorities
for the text: Chitty Cr. Law 782,
783, 786; 4 Blackstone 404; Booth
V. People, 186 111. 43, 57 N. E. 1129,
note to same, 78 Am. St. E. 235, and
note; Snrtain v. Stat<j, 10 Tex. App.
651; Clark v. Com., 21 Gratt 777;
State V. Carter, 2 Ind. 204; Dolin's
Case, 1 Mass. 209; Harlan v. Hop-
kins, 21 Kan. 638; Stokes v. War-
den, 66 N. Y. 342.

Sentence and Punishment 273

by the laws and constitution of the United States, and
their own respective constitutions, to enact any law, and
append thereto any penalty or punishment for its viola-
tion deemed by them appropriate to promote the health,
comfort, safety, and the welfare of the state. And to pro-
vide how, who, when, and where the penalties and punish-
ments shall be executed. In the absence of the statute
providing who should do it, the sheriff of the county
where the sentence was imposed, would be authorized
under his common, law powers, as the executive officer
to execute it. And in the event of no statute providing
how the sentence is to be inflicted the common law would
supply the defect in this respect, and the executive officer
would be bound by the sentence, and would inflict death
or fme and imprisonment as the crime may be a felony or
a misdemeanor.

§326. Cumulative statutes. The provisions of the
federal constitution providing that "no cruel and un-
usual punishment shall be inflicted is a prohibition upon
the powers of congress, and not upon the legislatures of
the several states. ^^ The constitutions of the several
states have similar provisions.

Under this provision of the constitution the legislature
may provide as a punishment the forfeiture of the right
to hold office and the right to vote.^^

But a legislative enactment which appends as a pun-
ishment a deprivation of the right to follow a lawful
business or trade comes within the prohibitions of the
provision of the constitution, and is void.^^

There are statutes where the punishment is increased

26— McElvaine v. Brush, 142 U. 27 — Harper v. Com. 93 Ky. 290;

S. 155, 35 L. ed. 971; Barron v. Bal- Huber v. Eeiley, 53 Pa. St. 112.

tiniore, 7 Pet. (U. S.) 243; Twitch- 28— Roberson v. Miner, 68 Mich.

I'll V. Com., 7 Wall. (U. S.) 469; U. 549, 37 N. W. 21.
S. V. Kruiseshank, 92 U. S. 542;
Baker v. People, 15 Am. Dee. 322
IN. Y.), 3 Cowen 686.

C. L.— 18

274 Criminal Law

for subsequent violation of the same offense, and where
the punishment is increased for the conviction of a subse-
quent offense of a different grade from the first com-
mitted. These offenses do not come within the prohibi-
tions of the constitution. As contradistinguished from
other sentences they are known as cumulative statutes.
So, also, a conviction upon different counts of the same in-
dictment are cumulative, and do not come within the pro-
visions. The constitutional provision is not so much
directed to the amount of the punishment as it is con-
cerned in the character of the punishment to be inflicted
and the manner of inflicting it. These statutes increasing
punishments as above discussed have universally been
held not to be contrary to the constitutional provision
against cruel and unusual punishments.^*

§ 326a. Different punishments for different sexes. It is
not repugnant to the constitution and the bill of rights,
nor a denial of the equal protection of the law to allow
different degrees of punishment for the same crime com-
mitted by the different sexes. It has been held in a
recent case ''that the legislature may make a distinction
in the punishment for the same offense, based entirely
upon the sex of the offender. ' ' ^° This seems to move
upon the theory that the Legislature in prescribing pun-
ishment for a crime, may take into consideration the fact
that the number of women who commit crimes, in pro-
portion, is less than that of men. Further consideration
may be given also to the physical strength and endurance
in comparison with that of men. Still there might be
other reasons; the sentiments and feelings of a people
are reflected in the laws made to govern them, and this

29— Kclley v. Pcole, 115 111. 583, Kan. 48, 179 Pac. 347, 3 A. L. R.

56 Am, R. 184, 4 N. E. 644; Moore 1611; State v. Ilcitmon, 181 Pac.

V. Missouri, 159 U. S. 673, 49 L. Ed. 630; Barono v. Fox, 127 N. Y. Sup.

301; People v. Wliitney, 105 Mich. 484; Contra Morgan v. State, 179

622, 62 N. W. 765. Tnrl. 300. 101 X. K. 6.

30 — In re .Tosio Bunkcrton, 104

Sentence and Punishment 275

coupled with the fact that the male population assume
for themselves all prowess and chivalry. The same prin-^
ciple has been very often invoked in determining the con-
stitutionality of statutes which provide different degrees
for detention of juveniles.^^ It has been uniformly held
that such statutes were not unconstitutional. So, also, it
has been held that equal protection under the law, as
granted by the 14th amendment to the constitution of
the United States, no person by reason of his race, or
color, shall be subjected for the same offense to any
greater or different punishment than that to which per-
sons of another race or color are subjected.^'*

The theory is that before the law all persons are et][ual,
and are entitled to the same protection, and no condition
of color or race, is to be deemed a sufficient reason to
l)unisli for the infraction of the law, different from that
of others. No question has ever been urged that the
equal protection of the laws were denied where the
punishment inflicted upon an adult person is different
from the punishment inflicted upon women and chil-
dren, as is provided in many of the statutes. A par-
ticular instance is where the statute provides that the
condition that makes an assault by a woman or a child
merely a simple assault, if committed by a man upon a
woman or child, becomes an aggravated assault. It is an
attempt at last on the part of the Legislature to equalize
the punishment, being based upon the difference in the
nature and condition of the sexes, and the physical en-
durance of the individual.

31— Ex parte Nichols, 110 Cal. 32— Plunkard v. State, 67 Md.

654; Taylor v. Means, 139 Ga. 578; 364, 10 Atl. 225, 309; Ho Ah Kow

People ex rel. Bradley v. State, 23 v. Nunan, 5 Sewy. 552, Fed. Cas.

L. K. A. 139; Com. v. Pear, 67 No. 6546; Pase v. Ala. 106 U. S.

L. E. A. 935; Ex parte Walker, 583, 27 L. Ed. 207, 44 Am. Rep.

63 Tex. Crim. Rep. 416, 140 S. W. 513; Charles v. State, 11 Ark. 389;

1093. Pleasant v. State, 13 Ark. 360.

PART TWO
Specific Crimes

CHAPTER XIV

ADULTERY

§ 327. Was not a crime at common § 331. As to whether in the com-

law. mission of the crime of

§ 328. Definition. incest, bigamy, adultery,

§ 329. Common, Roman, and canon may be committed in the

law. same act.

§ 330. Under statutes. § 331a. Indictment.

§ 327. Adultery was not a crime at common law.
Adulteiy under the ancient common law was cognizable in
the ecclesiastical courts only. The canon law took juris-
diction of the offense (if we at this time may term it
such) for the purpose of administering punishment ac-
cording to the rule of the church. As an offense against
the temporal laws it did not exist. The common law did
not seek to prohibit it as a crime, and the temporal courts
took jurisdiction over it only to the extent of allowing
a suit for damage to the husband against the seducer of
his wife.^ Where the wife was guilty of adultery he was
entitled to his damages. This suit Avas cognizable in the
temporal courts only. The spiritual courts assumed juris-
diction in such matters, and among others the question
of divorce and censure for the incontinence of any mar-
ried persons. It seems to have been the law that the wife

1 — Therefore at the common law for adultery did not lie at the

as in England at thig day, a di suit of the wife. Lawson's Cr. Law

vorc<! on the ground of adultery Simplified, 123; Grouse v. State, 16

can bo only obtained by the hus- Ark. 50(5; State v. Roth, 17 La.

band; and the common law action 336.

27G

Adultery 277

had no redress against the husband for his adulteries
whatever, except perhaps in the courts of the church.

During many centuries of the early growth of the com-
mon law, this offense underwent many changes following
the convolutions of the spiritual and temporal courts in
their struggle for supremacy. At one time the temporal
powers made it a felony and punished by death. This
however remained in force for only a comparatively short
time, and jurisdiction was again obtained by the spiritual
courts.

§328. Definition. Adulteiy is the voluntary carnal
intercourse of married persons with another of the op-
posite sex, not his or her wife or husband. The peculiar
notions of our ancestors were that adultery was an of-
fense, more against the spiritual existence, — an offense
against the soul, — an offense against the divine law, —
than against the laws of society. As an offense against
the state, it was not indictable at the common law. So,
in the United States, there being no ecclesiastical courts,
the common law in this respect not being adopted, it fol-
lows that this was no crime until made so by statute.^
The practice of open and notorious adulteries and las-
civious conduct, was indictable, as a public or common
nuisance. Fornication, which consists in the voluntary
carnal intercourse of persons of the opposite sex, one of
which, at least is unmarried, was not a crime at the com-
mon law, and so in this country is not punishable unless
as a public nuisance, as in the case of adulteries,^ except
by statute.

2—4 Bla. 65. "Many offenses of 3 — People v. Solmon, 148 Col.

private incontinence fall properly 303, 83 Pac. 42, 113 A. S. R. 268;

and exclusively under the jurisdic- Bosliford v. Wills, 78 Kans. 96,

tion of the ecclesiastical courts, and Pac. 663, 16 Ann. Cas. 310, 18 L.

are appropriate to it. But where R. A. (N. S.) 580. Bouv. Law Die.

the incontinence, or lewdness is Sub. Adultery, and authority cited;

public, or accompanied with con- Carotti v. State, 97 American Dec,

spiracy, it is indictable." 471, 42 Miss. 334; Com. v. Call, 32

278

Ceiminal Law

§ 329. The common, Roman and canon law. There ap-
pears to be no doubt that at common law adultery could
only be committed with another man's wife. As we have
said, it was not a crime even to do this, but such action
o-ave a rio-ht of damas-es in the husband for the reason
that it would thrust upon him for support a spurious is-
sue, who would be entitled to share in his estate. This law
did not affect a married man that had intercourse with an
unman-ied woman. This was fornication for which the
father was entitled to damage for the seduction of his
daughter.* Therefore upon the authority of the common
law, adultery consists in any man either married or un-
maiTied having carnal intercourse with another man's
wife. This also seems to have been the adultery of the
Roman law; of this however the authorities do not appear
so clear. The ecclesiastical law appears to have extended
to the violation of the marriage vow, and both the woman
and the man were guilty. We believe the law of the
United States is that either the wife or the husband hav-
ing illicit intercourse w4th another of the opposite sex not
being his or her husband or wife is guilty of the offense,
whether such person is married or unmarried. That for
an unmarried man to have illicit intercourse with another
man's wife both are guilty. That for an unmarried
woman to have illicit intercourse with a married man
is adultery in the man only, if as to either. "We mean
of course unless the matter is made so by statute.^

Amcr. Dec. 284, 21 Pick. 509, and
note.

ADULTERY NO CRIME AT COMMON
LAW

' ' Adultery as a crime was un-
known to the common law." 1
Cyc, page 952.

Note 2. Arkansas. — Crouso v.
State, 16 Ark. 566. Iowa. — State
V. Hoth, 17 Iowa 3:?6. (Mass.) 190,
;{5 Am. Dec. 398; Com. v. Putman,
1 Pick. (Mass.) 136. Mississippi. —

Carotti v. State. 42 Miss. 224, 97
Am. Dec. 465. New Hampshire. —
State V. Marvin, 35 N. H. 22. New
Jersey. — State v. Lash, 16 N. J. L.
380, 32 Am. Dec. 397. Pennsyl-
vania. — Com. V. Kilwell, 1 Pittsb.
(Pa.) 255. Vermont. — State v.
Coper, 16 Vt. 551. Virginia.— An-
derson V. Com., 5 Rand. (Va.) 627,
16 Am. Dec. 775.

4 — State V. Lash, 1 Harrison 380,
32 Am. Dec. 397.

5_Com. V. Call, 21 Pic. 509, 32

Adultery 279

§ 330. The offense under the statutes. The law of the

spiritual courts seems to have regarded every act of
illicit intercourse between the prohibited parties a sep-
arate offense, of this however the authorities do not ap-
pear quite plain; certain it is that one act of the parties
would constitute the offense and entitle the parties to a
divorce. The court of last resort in the state of Alabama
in construing the statutory law of that state says: "The
term 'adultery,' as used in our code, should be construed
with reference to subject matter with which it stands
connected. Where used with reference to divorce, it is
to be taken in the canonical sense of that term, and cm-
braces the intidelity of the husband to his wife; but
Avhere considered in reference to the criminal law it im-
ports such sexual intercourse as violates another man's
bed — as may entail a spurious issue upon the defrauded
husband." ^ Many of the statutes in charging what shall
constitute the crime use the term or phrase "live to-
gether " or " cohabit together. ' ' These statutes have been
construed to mean that single acts of incontinence be-
tween the parties prohibited by the statute will not con-
stitute the crime — the intercourse must be habitual — that
is frequent.'^ It seems that where the statute provides
that whoever shall commit adulter}^, etc.; the term "adul-
tery" is to be taken in the canonical sense, and that the
offense is to be construed with reference to the meaning
of the common law, speaking through the canonical
courts.^ Under the Texas statute the crime may be com-
mitted in two ways: (1) by the parties living together and

Am. Dec. 284. See the note to 23; Bashford v. Wells. 78 Kans.

both those cases and the authorities 295, 96 Pac. 663, 16 Ann. Cas. 310,

referred to. Bashford v. Wells 18 L. E. A. (N. S.) 580. Carotti

(Kas.), 18 L. E. A. (N. S.) 581. v. State, 42 Miss. 334, 97 Am. Dee.

See note to this case. White v. 465.

State, 74 Ala. 31, Lymon v. Peo- 7— Jackson v. State, 116 Ind.

pic, 198 111. 514, 64 N. E. 974; 464, 19 N. E. 530; Miller v. State,

State V. Kosty, 121 Iowa 507, 96 24 Tex. App. 346; Smith v. State,

N. W. 1115; State v. Fellows, 50 86 Ala. 57, 11 Am. St. Eep. 1.

Wis. 65, 6 N. W. 239. 8— Hood v. State, 56 Ind. 263,

6— Smitherman v. State, 27 Ala. 26 Anier. Eep. 21.

280 Ceiminal Law

having canial intercourse with each other; (2) by the
parties having habitual intercourse with each other with-
out living together. To convict under the first, it must
be proved that the parties lived, dwelt and resided to-
gether, and a single act is sufficient if they so live. Under
the second it is necessary to show that they had habitual
intercourse with each other — but not that they lived to-
gether.^ The court in an Alabama case: "And the par-
ties need not occupy the same dwelling if there was a
mutual expectation and understanding that the relation
was to be kept up,—. ' ' As the antithesis of this, however,
a single act, or occasional acts, not indicating a consentive
or prearranged continuation of illicit conduct, would not
be living together within the meaning of the statute.^"

§ 331. As to whether in the commission of the crimes
of rape incest and bigamy, adultery may be committed
by the same act. The law is now well settled that in-
tent, or rather criminal intent, is only necessary to exist
on the part of one of the parties to an act of intercourse
in order to convict. In order to convict both parties to the
transaction it is necessary that the criminal intent exist
as to each. If one of the parties othenvise possessed oF
the essentials required to commit the crime, that is a mar-
ried person, and knowing the relationship to be within
the prohibited degrees of consanguinity or affinity, engage
in an act of intercourse with another, this will constitute
the incest or the adultery in him.^^ Or if they both wore
unmarried this would be either fornication or incest, mid
upon ])iiM(Ii)lc it seems that it might be fornication in

9— Bird v. State, 27 Tex. App. 11— Rtate v. Ellis, 74 Mo. nSf),

6:55, 11 Am. St. Rep. 214; see Ci\- 41 Am. Hop. 321; State v. Sanders,

rotti V. State, 42 Miss. 334, 97 Am. 30 Iowa 582; State v. Dounvaii, 61

Dec. 471. Tnwa 278, 16 N. W. 130-206, 131

10— B.diford v. Stale, 86 Ala. 67, Mass. 577, 41 Am. Rep. 248.
11 Am. St. Rep. 20; Collins v. State,
14 Ala. 608; Quartcmas v. State,
48 Ala. 209.

Adultery

281

one where he was ignorant of the relationship, and incest
in the other who might liave the knowledge of the rela-
tionship. Or if one was married and the other unmarried
one would be guilty of fornication and the other adultery.
Where the female is insensible from any cause, idiot ot'
lunatic, the man would be guilty of the crime of rape
or adultery at the option of the prosecution. In the
{'i"ime of adultery, it is not necessary that there be any
intent except the consent with full knowledge of the act
and the nature of it. Where one of the parties by reason
of the want of knowledge of facts existing in the knowl-
edge of the other makes the crime in him adultery, will
not be adultery in the other, because the consent was
given under a misapprehension of the fact. As where a
woman believing that the man she married is a single
man, when in fact he has a valid existing marriage with
another, she ignorant of these facts is not guilty though
the man is.^^

§ 331-a.

ADULTERY

Indictment for Adultery. That "on the first day of August, in the
year of our Lord one thousand eight hundred and fifty-three, at the city
of Racine, aforesaid," the defendant "did commit the crime of adultery
with one Caroline White, the wife of one Orrin White, by then and there
having carnal knowledge of the body of her, the said Caroline White, he,
tlie said James Kctchingman, then and there being a married man, and
liaving a lawful wife then alive, and she, the said Caroline White, then and

12 — Alonzo V. State, 15 Tex. App.
378, 49 Am. Rep. 207, it is said,
"While the criminal intent may
exist in the mind of one of the par-
ties to physical act, there may not
be such intent in the mind of the
other party * * *, Suppose a
fatlier and his daughter are indicted
for incestuous intercourse with each
other. Upon the daughter it is
proved that at the time of the
physical act she was an idiot, or
that she was wholly ignorant of the

relationship between herself and her
father without any fault of hers; of
course, in either of these cases she
would be acquitted. Would it not
be monstrous to say that, because
of her innocence, the beastly father
must go unpunished for his un-
natural crime? Such cannot bo the
law, and such, we believe, is not
the law as declared by the woijiht
of authority." State v. Cutshall,
109 N. C. 764, 26 Am. St. Rep.
599, 14 S. E. 107.

282 Ckiminal Law

there being a married -n-oman, and the lawful wife of said Orrin White,
contrary to the form of the statute," etc. (Ketchingman v. State, 6
Wis. 426.)

Indictment for Adultery, Continuous Act. "R. Griffin Golden
and Jemima Scott did, in said county and state aforesaid, on or about the
loth of February, 1868, commit adultery by living together, and cohabiting,
or having carnal knowledge of each other, at divers times, at and before
the time aforesaid, in said state and county, he, the said R. Griffin Golden,
at the time of committing the adultery with the said Jemima Scott, being

a married man, and his wife, , then living." (Golden v. State,

32 Tex. 737.)

CHAPTER XV

AFFRAY

Ji 332. Definition. § 336. Compared to riot.

Si 333. Gravemen of the crime. § 337. Fighting in self defense.

S 334. What constitutes.
)i 335. May be committed short of
blows, when.

§ 332. Definition. An affray is the voluntary fighting
together of two or more persons to the terror of others.^

§333. Gravamen of offense. The gravamen of this
offense is the fighting together in a public place. An as-
sault or an assault and battery, committed in any other
than a public place, is not an affray. The statutes define
what constitutes a public place. An enclosed lot ninety
feet from a street and visible therefrom is a public place
within the meaning of the common law definition of an
affray, according to a decision of the court of Alabama.^
But it has been held in the state of Indiana, that a ''hig*h-
way," is not necessarily a '^public place" within the
meaning of the statute defining an affray.^ The par-
ticulars which would constitute a ''public place" may in
some instances be gathered from the circumstances and
conditions surrounding the case. So, in another Alabama
case, it was held, that a field surrounded by a forest,
and situated one mile from any highway, or other public

1— Dunkin v. Com., 36 Ky. 295; 2— Canville v. State, 35 Ala. 392.

McClellon v. State, 53 Ala. 640; 3— State v. Weekly, 29 Ind. 206.

Simmons v. Com., 29 Ky. 614; State Fighting in a public road in the

V. Warren, 57 Mo. App. 502; Su- State of Texas is an affray. See

preme Council Order v, Garrigus, Pollock v. State, 32 Tex. App. 29,

104 Ind. 133, 3 N. E, 818, 54 Am. 22 S. W. 19.
Rep. 298, also 13 L. R. A. 163.

283

284 Criminal Law

place, does not lose its private character, by the casual
presence of three persons so as to make two of them, who
fight together willingly, guilty of an affray.* The fighting
must be between two or more, in some public place,^ but a
fight beginning in a private place, and carried by pursuit
into a public place, constitutes the offense.®

§ 334. What constitutes. Mere words do not consti-
tute an affray, but where abusive language is used to-
Avard another, is accompanied by acts, which demonstrate
a willingness to fight, such as the exhibiting a weapon,
coupled with an attempt to use it will constitute the
offense.' One, who by abusive and insulting language
induces another to attack him, and offer no resistance to
his attacks, is not guilty of an affray,' but if the language
is used for the puipose of bringing on the fight, and there
is a willingness to fight, although he may be unable to
fight, is nevertheless guilty of an affray.^ If one person
by words or signs, instigates another to strike a third
person, he is clearly guilty of an assault and battery. So,
if one, in a public place, use language against another
which is calculated and intended to bring on a fight and
thereby induces such person to strike him, he is guilty of
an affray, although he may not strike or attempt to strike
in defense.^**

§ 335. May be committed short of blows, when. This
offense mav be committed, short of blows or actual vio-
lence, if the acts of the participants, are of such a nature,
as reasonably calculate to incite terror in those who
witness them the same being in a public place, as where

4— Taylor v. State, 22 Ala. 15. 8— O'Neal v. State, 16 Ala. 65.

5— Simpson v. State, 13 S. W. D— State v. Perry, 50 N. C. 9, 69

(Tenii.) 356. Am. Dec. 768; State v. Faining, 94

6— Wilson V. State, 50 Tcnn. N. C. 940, 53 Am. Rep. 653.

278; State v. Billinga, 72 Mo. 662. 10— Hawkins v. State, 58 Am.

7— Hawkins v. State, 58 Am. Dec. Dec. 517, 13 Ga. 322; State v. Davis,

517, 13 Ga. 322. 80 N. 0. 351, 30 Am. Rep. 86.

Affray

285

the parties appear armed with deadly weapons. ^^ Actual
fear or terror need not be incited, in those who witness
the affray. The terror is implied by the acts which make
the affray. ^^ Riding unaimed on horse back through the
court house, after the people left it, is not necessarily an
affray." Where one arms himself with a deadly weapon,
or unusual weapons and goes forth openly in a public
place, threatening and terrifying the people, is guilty of
an affray.-^* In this last instance, another offense, which
has always been considered indictable at the common law,
has been confounded with that of an affray. Thus going
armed in an unusual manner, into a public place, alarm-
ing and terrorizing the people was at common law an
indictable offense, distinct from that of affray, being
regarded as a criminal nuisance, which could be com-
mitted by a single individual. ^^

§ 336. As compared with rout and riot. An affray is
different in technical definition from that of riot, in this,
that a riot cannot be committed by a less number of

11— state V. Huntley, 25 N. C.
(Ired.) 418, 40 Am. Dec. 416.

12 — State V. Summer, 5 Straub.
53.

13— State V. Lanier, 71 N. C. 288.

14 — State V. Huntley, 40 Am. Dec.
416. This case holds among other
things, that riding or going about
armed with dangerous or unusual
weapons to the terror of the people
is an offense at common law, and
that the term "affray" is derived
from the French word ' ' effrayer ' ' —
which means to affright, and tliat
anciently it meant more. As where
persons appeared with arms or weap-
ons not usually worn, to the terror
of others.

15 — 4 Bla. Com. 149. The offense
of riding or going around with
dangerous or unusual weapons is a

crime against the public peace by
terrifying the good people of the
land. Hawkins treating of the of-
fenses against the public peaoe
under the head of "affrays" uses
the following: "But granting that
no bare words in judgment of law,
carry in them so much as to amount
to an affray, yet it seems certain
that in some cases there may be an
affray, Avhere there is no actual
violence, as where a man arms him-
self with dangerous and unusual
weapons in such a manner, as will
naturally cause a terror to the
people, which has been said to have
always been an offense at common
law and strictly prohibited by many
statutes." Hawkins P. C. 0. 28
see. 1, taken from Huntley v. State,
40 Am. Dec. 416.

286 Criminal Law

persons than three, while an affray may be committed by
two, in some instances, by one as explained in the pre-
ceding section. It is also distinguished from an assault,
in this, that an assault may be committed in either a-
private or public place. When both parties fight or show
a willingness to fight the offense is complete and both are
guilty. If a party is attacked without fault of his own,
and is compelled to fight to defend himself, he is not
guilty of the affray, while his adversary is.^^ In order
for the accused to invoke the right of self defense, the
proof must show that there was no willingness or consent,
mutually to fight except that which arose from the neces-
sity of the attack.

§ 337. Fighting in self defense. The fighting together
of two or more persons in a public place, to the terror
of his majesty's subjects was an offense at the common
law. The gist of this offense, is the fighting together
in a public place. The fighting of two or more in a private
place is not an offense — at least is not an affray." The
fight must have been voluntarily engaged in. If one of
the participants in his own natural self defense is forced
to fight, is not guilty, and his acquittal acquits the other."
Unlawful assemblies, riots and routs, are a kind of an
affray, but differing in particulars. Where the fighting
occurs in a church yard, or where the officers of the law
were interfered with in the discharge of their duties,
such actions were considered an aggravation of the sim-
ple affray, and was punished more severely.

16 — People V. Moore, 3 Wheeler 18 — Hooskins v. State, 13 Ga. 322,

Cr. Cas. 82; Pollock v. State," 32 58 Amer. Dec. 517. See also Cruce

Tex. App. 29. v. State, 59 Ga. 83.

17—4 Blackstone 145; State v.
Brazill, Rice 251; State v. Snow, 18
Me. 346; Taylor v. State, 22 Ala. 15.

CHAPTER XVI

ARSON

§ 338. Definition.

§ 339. What includes.

§ 340. Barn in the fields.

§ 341. Extensions of statutes.

§ 342. Owner of house.

S 343. Wife's house.

§ 344. Total destruction not neces-
sary.

§ 345. Of the attempt.

§ 345a. Attempt at arson, substan-
tive crime.

§ 345b. Intent.

§338. Definition. Arson at the common is defined as
the malicious burning of the dwelling house of an-
other.^ This at the common law was an offense that was
created for the purpose of adding as great a degree of
safety and security to the habitation as possible, against
the malicious acts of evil disposed persons who might
take that mode of wreaking revenge upon the occupants.
The crime is divided into four principal elements, the con-
currence of which, is necessaiy to constitute it. First:
The house burned must be the dwelling house or the
houses immediately connected with it. Second: The
property must be the house belonging to some other per-
son, other than the house of the offender. Third: There
must be a malicious intent to injure the owner or occu-
pant. The house must be occupied as the abode of some
person, of which we shall discuss in the order named.

OF THE DWELLING HOUSE

§ 339. What includes. The house and other houses used
in connection with the main house, where the family lived,

1— state V. Snow, 79 Mo. 306,
100 Pac. 78, 131 A. S. R. 298, 21
L. R. A. (N. S.) 27. Note to L. R.
A. State V. Young, 139 Ala. 136,

36 So 19, 101 A. S. R. 21. See
note to this last. State v. Mortin,
87 Neb. 529, 127 N. W. 896, Ann.
Gas. 1912 A, 1125, note to last.

287

288

CeimijSTAl 'Law

being such structures, barns and improvements of a per-
manent nature situated in a common inclosure was at
common law the dwelling.^ Bams in a field, out houses
used in the enjoyment and in connection with the dwell-
ing, but not appurtenant and not connected thereto, unless
such bams and the like in which corn and hay had been
stored, were not subject to the crime.^ The ordinarj^ and
usual construction placed by the courts upon the term
*' dwelling house," when constnied in connection with
arson, means every building and improvement, appurte-
nant and accessory to the main building used and occupied
as a place of abode. Thus a building tl\jfty feet away
from the main building, occupied as a sleeping apartment
by servants, is a dwelling house ^vithin the meaning of
this term.* So, a barn eighty feet from the house situated
upon a lane leading from the house, is considered to be
within the common enclosure or curtilage.^ But a bam
two hundred and fifty feet from the dwelling house is
not.^

§ 340. Bams in field. To that rule of the common law,
that barns and the like not connected with the dwelling
of the family, situated in the field, was not subject to
arson has an exception in this, that, if the barn was stored
with hay or grain, the malicious burning would be arson.'
The reason for this exception does not anywhere appear

2 — State V. Jim, 8 Jones L. (N.
C) 459; State v. Stewart, 6 Conn.
47; State v. Fish, 27 N. J. L. 323.

3 — 4 Blackstone Com. 245.

4 — Pond V. People, 8 Mich. 150.
"A question arose, whether the net
house was a dwelling house, or a
part of dwelling house of Pond. We
think it was. It was near the other
liuildings, and was used, not only
for prvHcrving the nets which were
used in the ordinary occupation of
Pond, as a fisherman, but also as

permanent dormitory for his serv-
ants."

5— People V. Taylor, 2 Mich. 250.
This case held that it was not neces-
sary that a fence be built around
the building in order to include them
in the curtilage if within a space no
larger than that usually occupied
for the purposes of the dwelling
and customary out houses.

6 — Curkinstate V. People, 36 Mich.
309.

7 — Sampson v. Com., 5 Watts &

Arson 289

fully explained. So, also, a barn so situated as not to be
connected with the dwelling house, but close enough to
communicate fire to the dwelling house, the setting fire to
the barn is arson.* Empty barns in the fields not so sit-
uated as to communicate fire to the main building occu-
pied as the dwelling, in case the same is set on fire, is not
arson.^ If the fire is begun in other buildings so near to
the dwelling as to communicate the flames to it, or to
endanger it, is arson.

§341. Extensions of statutes. While at common law
as we have seen in the preceding sections arson was only
committed upon the dwelling house and such houses as
were used by the family in the common enclosure or
houses and buildings, there being such a lack of uniform-
ity we can little more than refer to the statutes for de-
scription. In a general sense it may be said that all
extend to store buildings used in commerce, or others in
which valuable property is stored, such as warehouses,
mills, houses of manufactories and the like. So, also,
churches, school houses and public buildings and offices
for public purposes and offices used for business by pri-
vate persons. Under these statutes it is arson to set fire to
and bum any of the buildings thus included in the
offense.

OWNERSHIP OF HOUSE

§ 342. Owner of house. The house must be the prop-
erty of one other than the accused." At the common law

S. (Pa.) 385; State v. Porter, 90 28 Atl. 522, 4 Bla. 221; People v.

N- C. 719. De Winton, 113 Cal. 403, 45 Pac.

8— Gage v. Sheldon, 3 Rich (S. 708, 54 A. S. R. 357, 33 L. R. A.

^•) 242. 374; state v. Toole, 29 Conn., 76

9— Gibson v. State, 54 Md. 447. Am. Dec. 602; Kopeyznski v.

See statutes of states. State, 137 Wis. 358, 118 N. W, 863,

11— Roberts v. 7 Cold. (Tenn.) 16 Ann. Cas. 865.
359; State v. Kenna, 63 Conn. 329,

C. L.— 19

290

Criminal Law

it was no arson for one to burn his own house, or to pro-
cure another to do it, and especially was this true where
he procured his ser\^ant to do so, the reasoning being, that
if no crime in the owner to burn his house it could not
be in the agent. ^^ It appears that to burn the house by
the owner, or by another through his procurement, with
the intent to defraud an insurance company, or to set fire
to his house for the purpose of burning the house of an-
other to which the flame might be communicated, was at
the common law no arson, but a high misdemeanor." By
the statutes of most of the several states the burning of
one's house for the purpose of securing the insurance
thereon is arson, and this whether done by himself or by
his servant through his procurement. The gist of the
offense consists in the danger to the safety of the occu-
pants of the house, rather than the danger of damage and
destniction of the property.^* Hence at the common law
the burning the house unoccupied, was not arson." An
incomplete house intended for occupancy according to the
weight of authority is not subject to the crime."

12 — state V. Sarvis, 55 Am. St.
Rep. 806, 32 L. R. A. 647; State
V. Haynesi 66 Me. 307, 22 Am. Rep.
569.

13—4 Bla. 221; State v. Hannet,

54 Vt. 83 ; Roberts v. State, 7 Cold.
359; State v. Sarvis, 55 Am. St.
Rep. 806, 32 L. R. A. 647; Garret
V. State, 109 Ind. 527.

14 — Snyder v. People, 26 Mich.
106 (Sec. 342, Note 4); State v.
Sarvis, 45 S. C. 668, 24 S. E. 53,

55 A. S. R. 806, 32 L. R. A. 647.
Note to last. Kopcyznski v. State,
137 Wis. 358, 118 N W. 863, 16
Ann. 865. Note to last. State v.
Shaw, 79 Kan. 39<;. 100 Pac. 78,
l.'il A. S. R. 298, 21 L. R. A (N.
S.) 27.

15 — Where a man, or a man and a
family, or a woman, or a woman

:uid her family are living in a dwell-
ing house, and have their household
effects, or other valuable articles in
such dwelling house, and are tem-
porarily absent at church or on a
visit to a neighbor's, and the dwell-
ing house is burned during such tem-
])orary absence, it is the burning
(if an occupied house, under the
jueaning of the statute, although no
one was in the dwelling at the time
it wavS l)urned. The object of the
statute is to protect the occupants
(if tlic dwelling house and their prop-
erty from the hand of the incen-
diary. .Johnson v. State, 48 Ga.
116.

16 — The court says: "In shape
and piirpose, the house was a dwell-
ing liouse, but not in fact; because
it had never been dwelt in; it had

Arson

291

§343. Wife's house. A house owned by the wife and
occupied jointly by the husband and wife, is the hus-
band's in contemplation of law, as by the common law,
and the burning by the husband is not arson for the
reason by common law fiction the husband and wife
were as one person and for the same reason the
wife would not be guilty of arson for burning the hus-
band's house. ^''^ However under statutes where the wife
has control of her separate property the husband would
have no right to bum her house and would be guilty of
arson, although jointly occupied by them at the time.^^
So, if a part owner burns a house for the purpose of in-
juring the owners jointly interested with him.'^^ If the
owner burn his house while occupied by his tenant, he is
guilty of the crime.^'' And so also where one has only a
dower, interest in the premises the burning will be arson.^^

§ 344. Total destruction not necessary. It is not neces-
sary that the house be totally destroyed, it is enough
that it be partially so. Thus the mere charring of wood
or timbers of the building, without reducing the same to
coals, does not appear to be sufficient but if reduced to
coals without blazing it is othenvise.^^ The mere scorch-

never been used, and was not con-
templated then ready for the habi-
tation of man; arson understood at
conmion law, was a most aggravated
felony, and of greater enormity
than any other unlawful burning,
because it manifested in the per-
petrator, a greater recklessness and
contempt of human life than the
burning of any other building and
in which no human being was pre-
sumed to be." State v. MeGown,
20 Conn. 245, 52 Am. Dee. 336.

17 — Snyder v. People, 26 Mich,
106, 12 Am. Eep. 305; Bex v, March,
R. & M. C. C. 182; State v. Haynes,

66 Me. 307, 22 Am. Eep. 569;
State V. Show, 70 Kan. 306, 100
Pac. 78, 131 A. S. R. 208, 21 L.
E. A. (N. S.) 27, note 81 Am. Dec.
70, 16 Ann. Gas. 807. See 101 A. S.
R. 27.

18— Garrett v. State, 109 Ind.
527.

19 — Milligan v. State, 25 Tex.
App. 199, 7 S. W. 664, 8 A. S. R.
435.

20— Tuller v. State, 8 Tex. App.
501; Rex v. Harris, 2 East 1023.

21— Rex V. Harris, 2 East 1023.

22— State v. Hall, 93 N. C. 57;
Hargarty v. People, 46 Cal. 354;

292

Criminal Law

ing and discoloration of the timbers or the material is not
a burning. Nor is the setting afire of goods in the house,
which does not communicate to the building, arson, at the
common law.^^ If it is actually fired and the fire for
any reason does not proceed to the destniction of the
building, the crime is committed if there is any of the
material of the building consumed without regard to
the extent.^*

§345. Of the attempt. An attempt to commit the
crime of arson rest upon the same principles as that of
any other crime. If a person entertains an intent to de-
fraud another — an insurance company for instance, and
undertakes to put that into effect, by attempting to burn
the house, this is the attempted arson. Setting fire
to a building with the intent to bum it constitutes the
consummated crime, is well settled.^^ A mere intent to
bum a house of course is not the attempted crime.'^^
There must be a specific intent to burn the particular
house sought to be burned. If a person attempted to fire
his own house, in a town or city, it was an indictable
offense, at common law.'*''

Lawson Cases Simplified 281; Rex
V. Stallion, 1 Mood C. C. 1020; Rex
V. Russell, C. & M. 541.

23— Rex V. Taylor, 2 East P. C.
398; Rex v. Parker, 9 C. & P. 45;
Woolsey v. State, 30 Tex. App. 346.

24— Luke v. State, 49 Ala. 30, 1
Hale P. C. 558.

25 — Where a person attempts to
burn a house by setting firo to it
but fails to accomplish such burning,
as constitutes arson, is guilty by 7th
section of our statute, as well as
h>y common law, of a high misde-
meanor. The 7th section provides
that, if any person shall set firr
to any building or teneniont of an-
other, with intent to burn tho same,

although such house or tenement
may not be burned, he shall be
deemed guilty of a nusdcnieanor.
Mary v. State, 24 Ark. 44. For a
full discussion of the matter of the
text see the following: McLane v.
State, 4 Ga. 339; State v. McGown,
20 Conn. 245; McGray v People, 45
N. Y. 153; State v. Wolfinger, 20
Ind. 242; Com. v. Trucker, 11 Mass.
403.

26—4 Bla. 222.

27-0 East 464; Com. v. Flynn,
3 Cush. 520; McDade v. People, 29
Mich. 50; Pcoiilo v. Bush, 4 Hill.
133; State v. Johnson, 19 la. 233;
Young V. Com., 12 Bush. 243; Com.
V. Harvey, 10 Met. 423; on the qucs

Arson

293

§345a. Attempt at arson, substantive crime. Pursu-
ing the subject in the preceding section, it is well to re-
mark that the attempt to commit the crime of arson is
a substantive crime, and whether the acts complained of
come within the crime of arson or whether that of at-
tempted crime, depend in all cases upon the facts. The
intent is essentially as that of any crime, and is evidenced
by the initiatory acts and the consequences thereof. For
it has been held that in the case of a prisoner who sets
fire to his jail for the purpose of making his escape is
not guilty of arson, because he had no purpose of destroy-
ing the building or injuring the property.^^

The attempt need not be the last proximate act, before
committing the crime, after preparations are made.*^
It is not necessary that the principal should do the acts
in person, it is enough that he is connected with the doing
of the act, either as accessory before or after the fact,
or as the principal.^"

§ 345b. Intent. The intent must be evil, wilful, volun-
tary and malicious, in other words, with the purpose of
burning the property .^^ The motive does not, in all cases,
have anything to do with the committing of the act of
burning, it is generally enough that the act was done
wilfully and maliciously, that is, in disregard of the
owner, as applied under the modem statutes, but in dis-

tion of the gist of the offense and
the proper allegations in the indict-
ment.

28 — Jenkin v. State, 53 Ga. 33,
21 Am. Eep. 255; Mary v. State, 24
Ark. 44, 81 Am. Dec. 60, note;
State V. Young, 101 Am. St. Rep.
24. The doctrine of the text is de-
nied by other authorities, but the
most humane as well as the most lib-
eral reasonable principles of the law
upholds the text.

29— State v. Taylor, 47 Ore. 455,

84 Pac. 828. Ann. Cas. 627, 4 L. R.
A. (N. S.) 417; State v. Dumas, 118
Minn. 77, 136 N. W. 814, 41 L. R.
A. (N. S.) 430, 6 L. R. A. (N. S.)
805.

30 — State v. Taylor in note 29
State V. Bowers, 35 S. 0. 262, 14
S. E. 488, 28 A. S. R. 847, 15 L.
R. A. 199.

31— State V. McLain, 43 Wash.
267, 86 Pac. 390, 10 Ann. Cas. 321;
Mary v. St^ite, 24 Ark. 44, 81 Am.
Dec. 60.

294 Criminal Law

regard of the occupants of the dwelling, as applied under
the common law. It is sufficient that it is a dwelling
house under the common law, for the crime is the injury
or probable injury to the occupants of the house, but the
statutes expand the crime to reach the burning of any
kind of house or dwelling. The intent is presumed and
predicated more upon the probable injury to the owner
by the destruction of his property, than the injurj^ to
the occupants. ^^

32— Carlton v. People, 150, 181, v. State, 24 Ark. 44, 81 Am. Dec. 60
37 N. E. 244, 41 A. S. B. 346; Mary see note p. 65.

CHAPTER XVII

ASSAULTS AND BATTERY

§ 346. Definition and illustration. § 356.

§ 347. Present ability must be taken

from standpoint of defend- § 357.
ant.

§ 348. Distinction between assault § 358.
and battery.

§ 349. Physical force necessary. § 359.

§ 350. Intent and ability must con-
cur. § 360.

§ 351. Specific intent not necessary. § 361,

§ 352. The means used.

§ 353. Of the consent of the as-
sailed. § 362,

§ 354. Simultaneous language in ex-
planation of assault, 354. § 363,

§ 355. Under what circumstances
violence may be inflicted.

Violence inflicted in the de-
fense of property.

As to the right of those who
frequent hotels.

The degree of force hotel
proprietor may use.

Of those occupying particu-
lar relations to each other.

Special duty towards others.

Act of the assailant to be
viewed from standpoint of
assailed.

Division of assaults under
statutes.

Preventing unlawful acts.

§346. Definition and illustrations. The use of any
unlawful violence upon the person of another with the
intent to injure him, whatever the degree of the violence
used, is an assault and battery. Any attempt to commit
a battery or any threatening gesture showing by itself or
words accompanying it, a reasonable apprehension that
an injury will be inflicted, is an assault.^ To attempt to
injure another when it is physically impossible to do so
is not an assault. Thus to point a loaded gun at an-
other beyond carrying distance is not an assault, but
otherwise if within canying distance.^ To point a loaded

1—1 Russ on Crs. Am. Ed. 1019;
State V. Blackwell, 9 Ala. 79; Tar-
ver V. State, 43 Ala. 354; Lawson v.
State, 30 Ala. 14, 1 East P. C. 406;
Roscoe's Cr. Ed. 304; Farrar v.

State, 29 Tex. App. 250; Id. 15 S.
W. 717.

2 — 1 Hawks. 62, sec. 1; Rex v.
Jones, C. & K. 530; McKay v. State.
44 Tex. 43; Rex v. George, 9 C. &

295

296

Ckiminal, Law

gun at another within canying distance, the party at
whom it is pointed knowing that it is unloaded, does
not constitute the assault.^ There is a line of decisions,
holding that an assault cannot be committed, where the
firearm presented is unloaded and incapable of being dis-
charged, and that too, where the party assailed is igno-
rant of the fact that it is not loaded.* The gist of this
offense is the attempt, a force put in motion, coupled
with the intent to inflict an injury upon the person of
another. The definition herein given being a statutory
one is in some particulars more comprehensive than the
general definition found in the books, but it embraces in
general terms the declarations of the courts upon the sub-
ject. In a general sense an assault may be defined to
be an intentional attempt, by violence to do an injury
to the person of another; a battery is the infliction of
the violence, however slight. Thus to touch the clothes
worn by another in a spirit of anger or in a rude manner
either w^antonly or in malice, will constitute a battery.^

§ 347. The term ** present ability" must be taken from
the defendant's standpoint. Where the defendant has
the intent to commit the assault and at the time of the
intention so fixed in his mind, he is also possessed with
the means and the ability on his ow^n part to cany the
intent into effect and does attempt to carry the intent

p. 483. This holds that to point a
pistol at another whether loaded or
not, is not an assault. Stevens v.
Meyers, 4 C. & P. 340, holds that
there must be a present ability to
commit an injury if not prevented.

3 — Beach v. Hancock, 59 Am. Dec.
373, 27 N. H. 223; State v. Shepard,
10 la. 106.

4 — Chapman v. State, 78 Ala.
403, 56 Am. Rep. 42; Swails v. State,
8 Ind. 524; Blacke v. Barnard, 9 C.
& P. 626.

5—2 Bish. New Cr. L. sec. 23.
' ' An assault is an unlawful physical
force partly or fully put in motion,
creating a reasonable apprehension
of inimedinte physical injury to a
human being." 3 Greenl. sec. 59.
' ' An assault is defined by writers on
criminal law to be an intentional
attempt l)y force to do an injury
to the person of another."

Assaults and Battery 297

into effect, he tlien is nevertheless guilty of the crime
intended, notwithstanding, at the time of the attempt to
commit the crime, the object upon which the crime was
to be inflicted was uninjured. Therefore the modem rule
seems to be that the present ability to commit the crime
is predicated upon the ability of the defendant to inflict
the injury, by means then possessed by him, and is not
dependent upon the existence or the non-existence of
the ability to inflict the injury upon the person intended,
by reason of mistake, miscalculation, misconception, or
accident or misadventure, it was impossible to commit
the crime in full. As where a policeman desiring to catch
the defendant in the act of gambling, and for that pur-
pose bored a hole in the roof of the building in order to
look through, and the defendant supposing that the po-
liceman was there shot at the hole, but at the time of
the shooting he being at another portion of the roof was
uninjured, the court held that this constituted the crime
of attempt to murder.^ In another case the court says:
' * So in this case the intent is evidenced by the firing into
the bedroom with a deadly weapon accompanied w^ith a
present capacity in the defendant to murder Warren if
he were in the room, and the failure to do so only be-
cause WaiTen haply retired upstairs instead in the bed
into which the defendant fired, made out a perfect case
of attempt within the meaning of the statute. " "^ " When-
ever the law makes one step towards the accomplishment
of an unlawful object with the intent or purpose of ac-
complishing it, criminal, a person taking that step, with
that intent or purpose and he himself capable of doing
every act on his part to accomplish that object, cannot
protect himself from responsibility by showing that, by
reason of some fact unknown to him at the time of his
criminal attempt, it could not be carried into effect.""

6— People V. Lee Kong, 95 Cal. 7— State v. Mitchell, 170 Mo. 633,

666, 29 Am. St. Eep. 165, 30 Pac. 71 S. W. 175, 94 Am. St. Eep. 763.
^^- 8— Kunkle v. State, 32 Ind. 220;

298

Criminal Law

§ 348. Distinction between assaults, and battery.
Briefly, then, there is this distinction between an assault
and a batteiy: (1) A batteiy consists in the infliction
of some sort of unlawful violence upon the person of an-
other. Any injuiy however slight is sufficient. Thus
laying the hand upon another in menacing or angry man-
ner, striking with any kind of instrument,^ spitting in
the face or on the person," the administration of con-
tharades or other drug for the purpose of obtaining the
consent of a female to an act of canial intercourse," the
exposure of helpless and defenseless persons to the in-
clemency of the weather, are batteries.^^ (2) An assault
consists in an attempt, or an ineffectual endeavor to com-
mit a batteiy, coupled with a real or apparent ability
to commit it; as where one rides after another in such
a manner as to force him to seek a place of safety;"
or where by threats, or the exhibitions of weapons, an-
other is forced to retire or retreat from his position
against his will, in order to avoid apparent danger of in-
,iur\^; " the presentation of a gun or other firearm at an-
other within shooting distance; " the cutting of the hair
of another is a battery but an assault to attempt it with-
out his consent; ^® to ride a vicious horse so near another
as to create the fear that an injury will be inflicted; " to
cause a female patient to strip naked, upon the fraudu-
lent pretense of the accused, a physician, that he cannot

Com. V. McDonald, 5 Cush. 365;
I'cople V. Sulilvan, 173 N. Y. 122,
'j;5 Am. St. Rop. 582, 65 N. E. 989.

9_Stevens Dig. L. Am. Kd. 181;
State V. Bakrr, 65 N. C. 332; State
V. JoliiiHon, 17 Tex. 515; Am. &
Eng. Eiica. L. Vol. I, page 784;
Com. V. Stra'tton, 114 Mass. 303, 19
Am. Rep. 350. Tliese cases in gen
eral earry out tlio doctrine of the
text.

10— Reg V. Clocwortli, 6 Mod.
172; 1 Swinton 587,

ll_Com. V. St in ton, 114 Mass.
303, 19 Am. Rep. 350.

12—5 Cox C. C. 255.

13— Stiitc V. Sims (S. C). 35
Strob. i;'.7; Rex v. Day, 1 Cox C.
C. 207.

14 — state V. Shipnian, 81 N. C.
513; State v. Rowls, 65 N. C. 334.

ir,— Morgan v. Stale, 33 Ala. 413.

]G_Ford V. Skinner, 4 C & P.
239.

17— Martin v. Sliappoe, 3 C. & P.
373.

Assaults and Battery

299

othenvise judge of her sickness; " the placing of poison
Avhere a person may unintentionally take it. So, also,
where there is a duty to extend care or protection to in-
digent and dependent person, such as invalids, infants,
decrepits or lunatics a failure or a refusal to extend such
protection or care are guilty of assaults, notwithstanding
no injuiy result from refusal or neglect.

§ 349. Physical force is necessary. Adopting the enu-
merated instances of the preceding section as criteria
of the different modes whereby assaults and batteries may
be committed the conclusion is absolute that the violence
entering into the composition of these offenses is that pro-
duced by physical force. This is not intended to be a
comprehensive use of the temi of ''physical force" but
in a partial or limited sense, for it has been said, that
no words or language (which may in a philosophical
sense include physical force), however disgraceful and
opprobrious and insulting is an assault,^^ nor can an
assault, or an assault and battery, be justified by it.^**
Words accompanying the act or the gestures of the ac-
cused, however, may be taken into account, for the pur-
pose of showing the degree of force intended to be used,
and might in the particular case, make that an assault
which would not other^vise have been or at least have
the effect to relieve the act of its assaulting character.^^
The degree of violence must proceed beyond a mere men-

is— Eex V. Eosinski, I. M. C. C.
19.

19— State V. Davis, 1 Ired. (N.
C.) 125, 35 Am. Dec. 735; State v.
Martin, 30 Wis. 216; Lawson v.
State, 30 Ala. 14; Warren v. State,
33 Tex. 517; People v. Barnsby,
32 N. Y. 525; People v. Libby, 43
Mich. 521, 5 N. W. 982.

20— Lee v. Woolsey, 19 Johns (N.

Y.) 319; Same, 10 Am. Dec. 230;
Ecid V. State, 71 Ga. 865; Berchard
V. Booth, 4 Wis. 67; Mitchell v.
State, 41 Ga. 527.

21— State V. Shipman, 81 N. C.
513; State v. Eowls. 65 N. C. 334;
Brown v. State, 58 Ga. 212; Hawk-
ins V. State, 13 Ga. 322, 58 Am.
Dec. 517; Lorge v. State, 95 Ind.
114; Allen v. People, 82 111. 610.

300 Criminal Law

ace, to that of taking a step towards the accomplishing
the battery.^

§350. Intent and ability must concur. There must
exist an intent and an ability or supposed ability on the
part of the accused to accomplish the batter^\2^ j^^ ^^q
absence of the real ability or the supposed power to
commit the injuiy the mere intent to do so would not
be adequate to constitute the assault. As suppose, A hav-
ing the intent to injure B, presents a pistol at him, in a
shooting position, but at the time B knows that A can-
not inflict injuiy by that means the intent and the ability
w^ould in this case be inconsistent with each other and no
crime would be committed; but otherwise if B did not
know that the pistol was not loaded, or in other words
believed it to be loaded.^ Again as where the accused
presented the gun at the prosecutor and snapped it three
times but which failed to explode because during the
melee, without the knowledge of the accused the cap fell
off, the court held that the assault was committed.^** So,
also, in a case in Texas the defendant presented his pistol
at the stomach of the assaulted party and snapped it, the
court held that the specific intent to kill was present and
sustained a conviction of an assault to murder.^^

§ 351. A specific intent is not necessary. The intent
need not be specific, but a general malevolence is suffi-
cient. In this respect assaults differ from the general
doctrines of Attempted Crimes, as explained in chapter

22 — Speers v. State, 2 Tex. App. Cush. 365; Ilnmilton v. State, 36

244; People v Makin, 8 Cal. 547; Ind. 280, 10 Am. K<-p. 22.

State V. Blackwell, 9 Ala. 79; State 24— State v. Martin, 85 N. C. 508,

V. Daniel, 136 N. C. 571, 48 S. E. 38 Am. Rep. 711.

544, 103 A. S. R. 970; State v. God- 25— Mullen v. State, 45 Ala. 431,

fry, 17 Ore. 300, 20 Pac. 625, 11 H Am. Rep. 691.

A. S. R. 830. 20— Ilanlcy v. State, 17 S. W.

2.3— People V. .Tones, 46 Mich. 441, Rep. 375 (Tex.).
9 N. W. 486; Com. v. McDonald, 5

Assaults and Battery 301

on ''Attempts." Indeed the adjudicated cases declare
an assault may be committed without an intent. As where
one fired his pistol for the purpose only of frightening
the person; or in a spirit of frolic, the court held that
the intent was sufficiently shown by the circumstances.^^
So, also, where a school boy of such years as to be re-
sponsible for crime but who in sport and play threw a
stone at another and hit him was not permitted to defend
against the charge of assault and battery, because of the
want of intent to injury.^^ But in a Massachusetts case
where one fired his pistol at another for the mere purpose
of frightening, and there being no injury in fact, the court
held that there was no assault.^^

§352. The means used is an unimportant matter.

Poisons delivered to another for the purpose of having
him take it is an assault. So, poisons left where a child
may unintentionally take it is also an assault. Poisons
thrown at another which will in its ordinary effect
produce injury is also an assault. Such as carbolic acid
and the like. Cotharades delivered to a woman that she
may take it is an assault. So, it may be stated that all
and any means whereby a person may be injured will
constitute the assault. And in keeping with this prin-

See following case which may 136 A. S. E. 147; State v. Herron,

throw light upon the doctrine of the 12 Mont. 230, 20 Pac. 810, 33 A. S.

text. People v. Lie Hang., 95 Col. R. 576; State v. Daniel, 136 N. C.

666, 30 Pac. 800, 29 A. S. R. 165, 571, 48 S. E. 544, 103 A. S. R. 970.
17 L. R. A. 626, 103 A. S. R. 974, 28— Hill v. State, 36 Ga. 578.

and note, 13 Ann. Cases, 41 L. R. 29— Com. v. Mann, 116 Mass. 58;

A. (N. S.) 182; Price v. U. S., 156 Degenliardt v. Heller, 93 Wis. 662,

Fed. 950, 85 C. C. A. 247, 13 Ann. 57 A. S. R. 945. Another case referred

Cas. 483, 15 L. R. A. (N. S.) 1272, to in the opinion of the court: Vos-

and note. berg v. Putney, 80 Wis. 527, 27 A.

27— Smith v. Com. Pa. St. 324; S. R. 47. The note refers to Kleen

Perkins v. Stein, 94 Ky. 433, 22 S. v. Stub, 9 Ind. App. 365, 53 A. S.

W. 649, 20 L. R. A. 861; People R. 354; State v. Herron, 12 Mon-

V. Raher, 92 Mich. 165, 52 N. W. tana 230, 33 A. S. R. 576. See

625, 31 A. S. R. 575; People v. Carl- note to this case,
son, 160 Mich. 426, 125 N. W. 361,

302 Crimixal Law i

ciple it may be said that if the mental or nervous sus-
ceptibility of a person is such as to be easily subjected
to the influences of another, as to cause him to inflict an
injury upon himself, or to place himself in such a condi-
tion that injury may be inflicted, this will also be an as-
sault.^° Sometimes it is rather a metaphysical deduction
to draw the distinction between the means and the force
used, as they are the one and the same thing operating-
through the assailant. As in the case of false imprison-
ment the detention of another against his will (which is
conceded to be an assault) may be accomplished by
threats or by the exhibition of weapons.^^ In the fonner
the force and the means are the same and may consist
in the words only;^^ in the latter the exhibition of
weapons unaccompanied by words would constitute the
assault.^^ Another illustration is found where one repre-
sents himself to be an officer and holds another against his
will, words here are the means as well as the force, which
operates upon the assailant and holds him against his will
and thereby constitutes the assault.

§ 353. Of the consent of the assailed. The consent of
the complainant deprives the act of the character of as-
sault.^* If, however, the consent is acquired, or acqui-
escence secured through fraud or subterfuge, such con-

30 — See the following cases. Kex 34 — Duncan v. Com., G Dana (N.

V. Hanson, 2 C. & K. 912; Rex v. Y.) 295; Anochic-ks v. State. 6 Tex.

W.ilkd.n. 1 Cox C. C. 282; Rex v. App. 524; Clamper v. State, 12 Ohio

Dihvoith, 2 M. & R. 5;n. Com. v. 8t. 4G6; People v. Vander^nTon, lOG

Stratton, 19 Am. Dec. 350, 114 Mass. Cal. 241, 39 Pac. 607, 4(5 A. S. R.

;i03. 234; Goldnamor v. O'Brien, 98 Ky.

31— Russ on Crs., 9th Ed., 1023; 5G9, 33 S. W. 831, 56 A. S. R. 378,

Smith V. State, 7 Humph. (Tenn.) 3G L. R. A. 715; Adams v. Wag-

4.'{. goner, 33 Ind. 531, 5 Am. Rop. 230;

32— Smith v. State, 7 Humph. firoton v. Oildon, 84 Me. 589, 24

(Tenn.) 43. Atl. 1008, 30 A. S. R. 413; Pratt

33— suite V. Han.pt. ,11, 03 N. C. v. Davis, 224 111. 300, 70 N. E. 562,

i:!; Stat* V. Churdi, G3 N. C. 15; 8 Aiui. Gas. 197, 7 L. R. A. (N. S.)

.Fr.hnson V. Stale, 17 Tex. 515; Long G<l9; Willey v. Carpenter, 64 Vt.

V. Rodgers, 17 Ala. 540. 212, 23 Atl. 630, 15 L. R. A. 853.

Assaults and Battery 303

sent or nonresistance, is no defense.^^ Consent given to a
felonious assault is illegal, and one acting upon such con-
sent commits an assault, except in the case of assaults or
attempts to commit rape. In this latter the consent of
the female to an act of carnal intercourse deprives the act
of the essentials of assault. For A to administer poisons
to B at his request, if B die from the effects, A is guilty
as a murderer, for the law nowhere recognizes the right
for one person to kill another, except in the case where
one must perish in order that the other may live, even
with such other's consent or solicitation. Thus the fight-
ing of a duel where two persons meet by previous agree-
ment to fight with deadly weapons, the consent of the
parties will not be an excuse for their acts and the con-
sequent results. No one has the right to wanton with
his life. In keeping with this rule that fraud vitiates
consent, it has been held that where the defendant was
affected with a venereal disease, and obtained the consent
of a female to an act of illicit intercourse, she being igno-
rant of his condition, and she being thereby inoculated
that it was an assault.^^ So, where a married woman
consents to an act of caiTial intercourse induced thereto
by the false and fraudulent declaration that he was her
husband which she believed to be true. And so also
where a physician obtained consent to a carnal com-
munion with his patient, who is ignorant of the act.^^

§ 354. Simultaneous language, explanatory of assault.

That which would otherwise be an assault and in which
an intent to injure might be inferred may, however, be
negatived by accompanying and simultaneous language,
or circumstances connected with the transaction. As
where one laid his hand on his sword and declared, "If it

35— Rex V. Bennett, 4 F. & F. 1005; Rex v. Sinclair. 13 Cox C.

1005; People v. Barnsby, 32 N. Y. C. 28.

^25- 37— Rqx v. Case, 4 Cox C. C.

36— Rex V. Burnett, 4 F. & F. 220.

304 Criminal Law

were not assize time I would not take such language
from you"; ^* and where the accused raised his cane with-
in striking distance and shook it at the prosecutor and
said, "If you were not an old man I would knock you
down " ; ^^ or where the accused raised his hand within
striking distance and said, "If it was not for your gray
hairs I would tear your heart out. " *^ In such instances
there is not intent although the means and the ability
are present to inflict the injury. But ^vhere the injury
is withheld upon the condition that the assailed do some-
thing as commanded by the assailant, the intent has been
held to be sufficient to constitute the assault: as where the
accused doubled up his fists in a threatening manner and
said, ' ' If you say that again I will knock you down " ; *^
and where one said to another, ' ' If you do not get out of
here I will give you a whipping. ' ' From the standpoint
of the assaulted party there must be real or apparent
ability present in the assailant to inflict the injury.'*^ It
must be of such a character as to create a well founded
apprehension of receiving an injury from the assailant.
If the assaulted party knows that the injury cannot be in-
flicted, or there is not a reasonable apprehension that it
will be inflicted, there is no assault. Actual peril is not re-
quired. As where the assailant is not in striking distance;
or he knows that the gun or the pistol is not loaded; or
that an injuiy cannot be inflicted with them. But if the as-
sailant rushes at another and is stopped immediately be-
fore he reaches close enough to inflict the battery, this is
an assault, for this is reasonably calculated to produce a
well founded belief that injuiy will be inflicted.

;!8 — Tuberville v. Savage, 1 Mod. Stevens v. Meyers, 4 C. & P. 349;

5. State V. Vannoy, G5 N. C. 532;

39— State v. Crow, 1 Ired. 375. State v. Shipnian, 81 N. C. 513;

40— Com. V. Eyrl, 1 S. & R. 347. Rtnto v. Blackwell, 9 Ala. 79; State

41— U. 8. V. Meyers, 1 Cr. C. C. v. Martin, 85 N. C. 508, 39 Am. Eop.

310. 711.

42— People V. Yrlaa, 27 Cal. 630;

Assaults and Battery 305

§ 355. Under what circumstances may violence be in-
flicted upon the person of another. This subject carried
to full length would include the doctrine of self-defense.
This has been fully discussed in our chapter on Homicide.
The general rule and the general doctrine of the law is
that no person has the right to offer or to inflict any in-
jury or restraint upon the person of another, but this has
several exceptions. The first of these is that an officer for
the pui'pose of making an arrest for the violation of the
laws is authorized to forcibly take the possession of the
body of another, in two different instances. First: AVliere
he has a legal warrant for his arrest. Second: Where a
violation of the law has taken place in his presence.
Where one has committed an offense against the laws he
has by his acts forfeited his right — his othei'wise natural
right — to resist such interference. The force by the
officer must not however be greater than is required to
make the arrest, and if he do so he then forfeits his right
and the accused may resist. So, also, this doctrine is car-
ried to the private citizen, and where a crime of the more
malignant kinds are committed in his presence he may
make the arrest and the accused has no right to complain.
So, also, a private person may be summoned by the proper
arresting officer to aid in making the arrest, and of this
the accused has no right to complain. If such person
makes the arrest, it is not an assault. So, again, where
the judgment of the law is to be carried out, the officer is
permitted to inflict the punishment meted out by the law,
and the accused has no right to complain for the reason
he has by the sentence and judgment of the law forfeited
his right to resist.*^

§ 356. Violence inflicted in the defense and protection
of property. Eveiy person has the legal right to pro-

43— Price v. State, 17 Tex. App. 60; Hor. & Thorn. Cr. Defenses 719;

132; Evans v. State, 13 Tex. App. and cases cited. Price v. State, 36

225; Kerby v. State, 5 Tex. App. Miss. 531, 72 Am. Dee. 195.
C. L.— 20

306 Criminal Law

tect his property from the trespass, or otherwise inter-
ference with his rightful enjoyment of it. This right to
protection is dependent upon the character of the prop-
erty and the nature of the trespass and the right of the
owner. It is measured by the establishment of several
different facts and circumstances. Thus, in the protec-
tion of the property, from the intrusion of a mere tres-
passer, who goes upon land or premises without consent,
but with no intent to do any wrong, may be ejected only
after he has been requested by the owner to decamp or
desist.*^ If he does not desist and remove from the prop-
ertv, then the owner has the lawful right to use force
and this force is not an assault. In the case where the
trespasser has the intent while on the premises or where
he goes upon the land, home or premises, with the intent
to inflict an injury to the person of the owner, rather than
upon the property, the owner is allowed by law to use a^^
force necessaiy to protect himself from the assault and
to this end may kill the trespasser.^^ So, again in the
case of the larceny of the property of the owner, where
the same is committed under circumstances amounting to
felony at common law the owner may kill for the protec-
tion thereof; as where the attempting to commit the
crime of burglary, or the crime of arson, or that of rob-
bery. The tnie reason why such drastic measures may
be allowed is really upon the theory that these crimes are
in the nature of assaults upon the persons of the owners
of the property, rather than upon the property, the differ-

44— Connors v. State, 117 Ind. 10 A. S. R. 573, 8 L. R. A. 516;

347 ; Cl:irk v. State, 89 Ga. 786; Ilickcy v. United States, 168 Fed.

Long V. Pcf'ple, 102 111. 331; State 536, 93 C. C. A. 516, 22 L. R. A.

V. Davis, 80 N. C. 351, 30 A. M. (N. S.) 728.

Rep. 86; Slate v. Steel, 106 N. C. 45— J( hnson v. Stato, 19 Tex.

760, 11 S. E. 478, 19 Am. St. Rep. App. 545; People v. Dann, 53 Mich.

573, 8 R. L. A. 516. A full discus- 490, 51 Amer. IJcp. ir>l; Ilarriflon

sion may be found in these cases: v. State, 24 Ala. 67; State v. Kin-

Oole V. Ronen, 88 Mich. 219, 50 N. dry, 20 la. 567: Monroe v. St;»te,

W. 138, 13 L. R. A. 848; State v. 5 Ga. 85; State v, Thompson, 9 la.

Steel, 106 N. C. 766, 11 8. E. 478, 188.

Assault^ and Battery 307

ence being only in the degrees of the interference with the
personal rights of the owners; the difference, however, be-
ing so slight, are regarded as being the same. A passenger
of any common carrier who refuses when requested to
pay his fare or where he will not conform to the reason-
able and just rule of the carrier, may be ejected from its
depots, cars, boats, and the like, and the same is not an
assault unless more force is used than is required to eject.
So, also, persons who have property used for the purpose
of the entertainment of others, or for business, have the
right to protect the premise and the business from the
interference of such jjersons. The carrier has the right
to use such force as is necessary to eject a trespasser, who
interferes with its servants, or other persons wiio are
there, by its consent, or for business.*^

§ 357. As to the rig^ht of those who frequent hotels.
"Guests of a hotel and persons entering with the intention
of becoming such, caimot be lawfully prevented from
going in, or be put out after entrance, provided they pay
charges and tender the money necessary for that purpose,
if requested by the landlord unless they be bad or sus-
picious characters, or of vulgar habits, or so objectionable
to the patrons of the house on account of the race to
which they belong, that it would injure the business to
admit them to all portions of the house, or unless they at-
tempt to take advantage of the freedom of the hotel to
injure the landlord's chances of profit, derived either
from his hotel, or other business incident or con-
nected with the management, and constituting a part of
the provisions for the wants or pleasure of his patrons. ' '
When persons objectionable on account of character or
race enter a hotel, not as guests, but intent on pleasure
or profit, to be derived from the inmates or guests, they

46— Com. V. Powers, 7 Met. 600, Chovin, 7 la. 204; State v. McDon-
41 Am. Dec. 465; State v. Steel, aid, 7 Mo. App. 510.
19 Amer. St. Rep. 573; State v.

308

Criminal Law

are there, not by right but under an implied license which
the landlord may revoke at any time, because, barring
the limitations imposed by holding out inducements to
the public to seek accommodations at his inn, the pro-
prietor occupies it as his home, from which he may expel
all who have not acquired rights growing out of the rela-
tion of guests, and may drive out all who, by their bad
conduct, create a nuisance and prove an annoyance to his
patrons. ' ' *'

§ 358. What extent of force and violence may the pro-
prietor use. The patrons of a hotel, when they have
complied with all the needful rules and regulations of the
business and have paid the charges when required by the
landlord to do so are freed from annoyance and interrup-
tion and the landlord may eject any one of his guests who
proves an annoyance to others therein, and may legally
use force enough to eject him from the premises. It seems
that a proprietor of an inn may conduct the business in
any legal manner, and if he engage in any business in
connection with it for his profit or the comfort of his
patrons, he may also legally prohibit other persons fol-
lowing the same business, to enter upon his premises, and
if in ejecting them he use force enough to eject them and
no more, he is not guilty of an assault. The right of
ejecting is dependent upon the fact that the proprietor
request the offending party to leave, and he does not, then
he may use the force herein spoken about."

47— state v. Steele, 106 N. C. 766,
19 Am. St. Eep. 580. Cases cited.
Com. V. Mithel. 1 Phila. 63; Com.
V. Powers, 7 Met. 600; Pinkerton v.
Woodward, 91 Am. Dec. 660, 33
Col. 557; Old Colony K. It. C. v.
Tripp, 147 Mass. 35, 9 Am. St.
Kop. 661, 17 N. E. 89.

48— State v. Steele, 106 N. C. 766,
19 Am. St. Rep. 57;{ ; sec Cliito v.
Wiffgins, 14 Johnson 175, 7 Am.

Dec. 449-58; Atwater v. Sawyer, 76
Me. 538, 49 Am. Eep. 634; Laudri-
gan V. State, 31 Ark. 50, 25 Am.
Rep 547; Summitt v. State, 8 Lea.
413, 41 Am. Rep. 637; Cole v. Ronen,
88 Mich. 219, 50 N. W. 138, 13 L.
R. A. 848; State v. Steel, 106 N. C.
7C.C). 11 S. i:. ITS, 10 A. S. R. 573,
8 L. R. A. 516; llickey v. U. S.,
168 Fed. 536, 93 C. C. A. 516, 22
L. R. A. (N. S.) 728.

Assaults and Battery

309

§ 359. Of the relation sustained towards others. School
masters and others similarly situated are permitted
to moderately chastise their pupils and those im-
mediately under their charge. School masters may
legally make iniles for the control of their profession,
and those who place themselves under their in-
structions are required to conform to such rules and reg-
ulations, and for the violation of these rules the master
may inflict moderate punishment.*^ And so the master has
the right to moderately chastise the apprentice, and the
parent the child; but those who occupy the relation of
employer and employee the rule does not apply.^** Those
who occupy the relation of loco parentis, may also moder-
ately chastise the ward.^^ So sailors who are in the em-
ploy of a ship are required to comply with all the orders
and commands of the master and those of his superiors,
and corporeal punishment for the failure to perform as
directed is not an assault, and the sailor has no right to
complain. Cruel and excessive punishment in none of
these instances is permitted, and where the punishment
is beyond the necessity of the case, the ship's master is
accountable to the law for the wrongful assault. In the
case of parents and those standing in the place of the
parent, the school-master and the like, the punishment is
confined to a mild and gentle chastisement and beyond
this, they become responsible for the assault.

§ 360. The doctrine where special duty rests upon us.
Where there is a special duty resting upon us we are in

49— Dunn v. Miller, 135 N. C.
204, 47 S. E. 421, 102 A. S. E. 528,
65 L. R. A. 800; Damemhoffer v.
State, 69 Ind. 295, 35 Am. Rep. 216;
Boyd V. State, 88 Ala. 169, 7 So.
268, 16 A. S. R. 820; Van Vocter
V. State, 113 Ind. 276, 15 N. E. 341,
3 A. S. R. 645; Doralin v. State, 14
Tex. App. 61; Standfield v. State,
43 Tex. 167; Lander v. Seaver, 32

Vt. 114; State v. Williams, 27 Vt.
755; State v. Misner, 50 la. 145,
32 Am. Rep. 128; Vannactor v. State
113 Ind. 276, 3 Am. St. Rep. 645.

50—1 East. P. C. 261; Rex v.
Trifin, 11 Cox C. C. 402.

51— State V. Alvord, 68 N. C. 332;
State V. Snowden, 12 Tex. App. 105,
42 Amer. Rep, 667; Garman v. State,
42 Tex. 245.

310 Criminal Law

law held responsible for the neglect of it, and any one
injured by reason thereof, has his action in damages
therefor. Society also has the right to punish the wailful
neglect of the duty imposed. There is a common duty
that the parent protect and care for his offspring. It is
also a law of our social existence to protect our fellow
when, by no fault of his, he is unable to protect himself.
In response to this principle it has been held that to ex-
pose a child to the inclemency of the weather is sufficient
to constitute criminal guilt. So, to expose a lunatic to
danger with his consent is criminal. He is incapable of
granting consent. There are some other instances, as
where the husband assaults another in the protection of
his wife from unlawful violence ; the father in the protec-
tion of his son; the son the father; the brother the brother
or the sister; the sister the sister; the master the servant,
and the servant the master. Justification is only recog-
nized where the parties occupy the relation to each otlier
as herein named, and then only to protect them from the
assaults of others.^^ A failure to extend the protection
appears not to be a crime except perhaps in the event of
the inability of such persons to protect themselves. This
however is dependent upon the circumstances, the age,
the physical condition, and tlie like. So, it is a duty
that one defend himself, and his legal right that he do so.
He may defend his habitation, his family and his servants
against the assaults of another.

§ 361. Acts of the assailant viewed from the standpoint
of the assailed. Where one makes an attack ui)on an-
otliei-, he will not be excused of responsil)ility, notwith-
standing, he is so situated that he cannot commit a bat-
tery, by some force or circumstance arising at the time,

52— State V. Young, r)2 Ore. 227, CIO, lit Am. Cas. ij?!; Drysdale v.

96 Pac. 1067, 1:52 A. S. R. 689, State, 8;J Ga. 744, 10 S. E. 358, 20

18 L. H. A. (N. S.) 6S8; Fink v. A. R. R. .'iJO, fi L. K. A. 124.
Thomas, 60 W. Va. 187, 66 S. E.

Assaults and Battery 311

if at the time the assailed believes himself to be in
danger of receiving bodily harm. If the acts and the
accompanying threats of the assailant are such as will
lead a person of ordinaiy prudence to believe that injury
will be inflicted, if not prevented, by some circumstance or
the knowledge of the want of the power of the assailant,
to inflict a bodily injuiy, is an assault, although it may
afterguards transpire, that the injury could not have been
inflicted. Persons so circumstanced are not expected to
make discriminating calculations as to the chances of es-
caping, as is required in the ordinary affairs of life, but
are allowed to act upon the appearances of danger.^^ The
rule is well settled that words standing alone will not
justify an assault. Nor will words alone, however bad,
degrading and opprobrious constitute an assault. Threats,
however, if made in such a manner as to produce in the
mind of the person to whom addressed, a well founded
belief, that the threat will be executed, constitutes the as-
sault. If there is any threatening gestures accompanying
the language, creating a well founded belief that injurj^
wdll be inflicted, this seems to constitute the assault, the
reprehensible act the law looks to; this is dependent, how^-
ever, upon the present ability of the assailant to commit
the battery.^*

OF AGGEAVATED ASSAULTS

§ 362. Division of assaults under statutes. Offenses of
the nature of injuries to the person under the grade of
felony were at the common law, misdemeanors, and the

53 — Clampett v. State, 9 Tex. App. 54 — Selferdge case Hor. & Thorn.

27; Young v. Com., 6 Bush 312; Or. Defenses 1; 1 Hawk P. C. 1;

Shorter v. People H. Or. & Thop Simms v. State, 9 Tex, App. 586;

S-Defense 193; United States v. Wil- Bright v. State, 10 Tex. App. 68;

barger, 3 Wood 515; Camphell v. Wilson v. State, 18 Tex. App. 156;

People, 16 111. 17, 61 Am. Dec. 49; 32 N. Y. 525-532; Warren v. State,

Newcomb v. State, 37 Miss. 383; 33 Tex. 517; People v. Barnsby, 32

State V. Bright, 10 Tex. App. 68; N. Y. 525-532.
State V. Sheppard, 10 la. 126; Com.
V. White, 110 Mass. 407.

312 Criminal Law

punishment inflicted was in proportion to the gravity of
the injury inflicted, dependent upon the evidence, and the
discretion of the court trying the case. It appears that
at the common law there was no such specific legal term
as ''aggravated assault" upon the person, but assault be-
loAv murder and manslaughter, was comprehended under
the general term ''assault." The attempt to commit the
graver crimes of murder and mayhem, falling short of
the consunmiated crime intended, may be taken in a gen-
eral way to comprehend, what is intended when w^e use
the term "aggravated assault." But under our statutes
many acts are taken to be of an aggravated nature, de-
pendent upon the place where committed as well as the
circumstances, and the means of infliction, and in some
instances the persons upon whom the assault is made.
Of this character of assaults is that which is made upon
a United States officer while in the discharge of his official
duties ; where the statutes is that an assault made upon a
person in a meeting of any character where persons met
for religious worship, instruction, or schoolhouses, and
other places of business and amusement; where an assault
of a simple nature is made by an adult male person upon
a woman; or by an adult male or female upon a child of
tender age and of weak physical ability, is an aggravated
assault. "Where an assault is made by a person of the ordi-
uaiy build, capacity and strength, upon a weakling, or
aged and decrepit persons; or where the person assaulting
is greatly superior in strength to the person assailed;
where the assault is made in a private family; in courts
of justice; and of many others of like nature and
character.

§ 363. Preventing unlawful offenses. It is a well set-
tled principle tliat a lliird person, and tliis regardless of
tlic relationship by ])l()od or consanguiniiy, may inter-
fere for the ])iir|»ose of preventing a felony comniitlcd
upon anolher, and i1 also appears that this right is ex-

Assaults and Battery 313

iended to any private citizen to stop or interfere in any
riot or disturbance of the peace. The interference in the
broils of others by a third person not connected with it
must first announce his intention and the object of his in-
terference, and it is his duty to request the combatants to
desist, and then if they do not he is permitted as a con-
servator of the peace to use force if necessary to compel
it." A full discussion of this principle would require
allusion to the doctrine of self defense, and a further dis-
cussion may be found in our chapter "homicide."

55 — Com. V. Ck)oley, 6 Gray Y'eager 137, 26 Amer. Dec. 217;
\Mass.) 350; Connor v. State, 4 State v. Totman, 80 Mo. 125.

CHAPTER XVIII

ATTEMPTS

364. rvefiuition. § 373.

365. Preparatory acts.

366. Solicitations. § 374.

367. Solicitations when an attempt. § 375.

368. Misdemeanors at common law.

369. No attempt in some crimes. § 376.

370. As to perjury.

370a. As to routs, riots, etc. § 377.

371. As to assaults.

372. Doctrine of attempts applied § 378.

to misdemeanors.

Solicitations, in some crimes

attempts.
Extent of the intent.
The intent and an overt act

must concur.
Voluntary abandonment of

intent.
Where the crime is impossible

of conunission.
The extent of the act.

§ 364. Definition. An attempt to commit a crime is a
substantive offense. It is understood to be an act coupled
witli a criminal intent to commit some specific criminal of-
fense, but which by reason of some unavoidable and un-
locked for circumstance prevents the consummation of
the offense intended, which in the ordinaiy course of
events would result in the perpetration of the same. There
must be a criminal intent, coupled with a deliberate force-
ful act, directed towards the commission of the crime in-
tended, but which act falls short of its purpose.^ The

1 — In till' case of Kelly v. Com.,
1 Gratt. 484. "It was held that an
act was necessary to constitute an
attempt. That an attempt to com-
mit a rape, was an ineffectual offer
]>y fone, with intent to have carnal
knowledj^c. If such act, with such
intent, were not proved, the accused
couhl not be convicted of an at-
tenijit. Tliat it Hlioiild be an actual
and not a constructive attenipl. An
attempt to commit fornification was
not enough.

In the ease of St'ite v. Swails, 8
Ind. 524. It was held that one fir-
ing a gun at another, with any Ihing
but powder and cotton bails or wads,
at a distance of forty feet, it ap-
])c:iring tliat tlie life of such person
iu)t being at all endangered, or put
in Jeopardy by the act, in consc-
(lucnce «)!' tin' in.-imn'r in wliii'li tlie
gnu was id.-ided, could iu)t be con-
victed, alllHiugli he might have
tliouglit the gun was loaded with
powder :iinl IckIi'ii balls, and though

314

Attempts

315

mere intent to commit a crime, standing alone, is not
criminal, for the law in no case undertakes to punish for
harboring evil, malicious or revengeful motives.^ In a
moral sense, no doubt, it is wrong to harbor an intent to

he may have intended to murder.
The exact language of the court is:
' ' That Swails in this case had a
felonious intent cannot l)e doubted.
But he lacked the ability and the
means of carrying his intent into
effect. To constitute an assault the
intent and the present ability, to
execute must be conjoined. Had the
gun been loaded with balls or any
other destructive missiles, the of-
fense charged would have been com-
plete. ' '

In the case of Hamilton v. State,
10 Am. Eep. 27; the court says:
' ' That whenever the law makes one
step toward the commission of a
crime, with the intent of purpose
of accomplishing it, criminal, a per-
son taking that step, and he himself
capable of doing every act on his
part of accomplishing that object,
cannot protect himself from rcspon-
sil)ility by showing, that by reason
of some fact unknown to him at the
time of his criminal attempt, it could
not be carried out. ' ' See, also, Com.
v. Jacob, 9 Allen 274.

2 — In the case Monroe v. People,
123 N. Y. 254, the court says : "In
this country the courts have uni-
formly refused to follow the cases
of Eeg V. MePherson Deers & B.
197, and Keg v. Collins, 1 Leigh & C.
471, and have adopted the more logi-
cal rational rule, that an attempt to
commit a crime may be effectual
though, fur some reason undiscovor-
able by tlie intending perpetrator,
the crime under existing circum-
stances may be impossible of accom-
plishment. It would seem to be

quite absurd to hold that an attempt
to steal property from a person
could not be predicated of a case
wliere that person had secretly and
suddenly removed from one pocket
to another and thus frustrates the
attempt to steal the proi)erty, or
had so guarded his property, that it
could not be detached from his per-
son. An attempt is made, when an
opportunity occurs and the intending
perpetrator has done some act to ac-
complish his purpose, although he is
baffled by an unexpected obstacle
or condition. Many efforts have
been made to reach the north pole,
but none have succeeded. Many
have grappled with the theory of
perpetual motion without success,
but it can't be said, in either case,
that the attempt was not made."
See following cases to the same ef-
fect. Gray v. State, 63 Ala. 66;
State v. Wilson, 30 Conn. 500; Cun-
ningham V. State, 49 Miss. 685;
State V. Jordon, 75 N. C. 27; State
V. Calvin. 9 N. C. 717; Smith v.
Com., 54 Pa. St. 209; Hicks v.
Com., 86 Va. 223; State v. Bailer,
26 W. Va. 90. "The act must
reach far enough toward the accom-
plishment of the desired result to
amount to the commencement of
the consummation. Graham v. Peo-
ple, 181 111. 477, 55 N. E. 170, 47
L. R. A. 731; State v. Mitchell, 170
Mo. 633, 71 S. W. 175, 94 A. S. R.
763; State v. Taylor, 47 Ore. 455,
84 Pac. 82, 8 Ann. Cas. 627, 4 L. E.
A. (N. S.) 417; Hicks v. Conn.,
86 Va. 223, 9 S. E. 1024, 19 A. S.
R. 891.

316

Criminal Law

commit a crime, but as such the law can have nothing to
do. It is too speculative for judicial tribunals to take
notice. It would require the omnipotence and the pro-
fundity of Deity to fathom the bosom of every person
suspected of entertaining an intent to commit a crime.

§ 365. Preparatory acts. Mere preparatory acts, are
not enough, in contemplation of law, to constitute the
crime of attempt, although the intent is present to com-
mit the crime. If the preparation for committing the
crime is followed by an act on the part of the accused
which it would be necessaiy to do, in the event the crime
was consummated, this is sufficient to convict.' There
is a wide difference between the preparation to commit
a crime and the attempt to commit it. Thus preparing
a weapon to make a murderous assault upon another is
no part of an attempt to commit murder. Nor would the
preparation to commit burglary by procuring tools, in-
specting locks or bolts. So long as there is no act or
effort to put the acts of preparation in motion an inde-
pendent overt act, toward the commission of the crime
intended to be committed, there can be no attempt.*

§ 366. Solicitations. A solicitation to commit a crime
is at common law a substantive offense and was indict-
able, and technically regarded as an attempt.^ There

3— People V. Murrey, 14 Cal. 159;
People V. Stiles, 75 Cal. 70; Hicks
V. Com., 86 Va. 23; U. S. v. Steph-
ens, 8 Saw. 116.

4 — In the case of People v. Mur-
rey, 14 Cal. 159, the court says:
' ' That the preparation consists in
devising or arranging the means or
measures necessary for the coiuiiiis-
sion of the offense; the attempt
19 the direct movement towards the
commission after the preparations
are made." Graves v. State, 116

Ga. 576, 42 S. E. 755, 59 L. R. A,
598; State v. Hurley, 79 Vt. 28, 64
Atl. 78, 118 A. S. R. 934, 6 L. R.
A. 804; People v. Young, 122
Mich. 292, 81 N. W. 114, 47 L. R.
A, 108; Jackson v. State, 91 Ala.
55, 8 So. 773, 24 A. S. R. 860; Ex
parte Smith, 135 Mo. 223, 36 S. W.
tiL'8, 58 A. S. R. 505; People v. Sul-
ivan, 173 N. Y. 122, 65 N. E. 989,
93 A. S. R. 582, 63 L. R. A. 353.

5— State V. Avery, 7 Conn. 266;
People v. Bush, 4 Hill 133; Rox

Attempts

317

is, however, good authority to the effect that it is not an
attempt. It appears to us that this line of authority, is
supported by the best and the soundest reason. As we
have already stated an attempt to commit a crime, con-
sists in an overt act accompanied with a criminal intent,
which if not prevented, by some unlocked for, external
circumstance, will in the course of ordinary events result
in the completed crime. An attempt then, is an endeavor,
by one 's personal efforts to commit a deliberate crime. A
solicitation is only a request or an attempt to procure an-
other to commit a crime. We have seen in a preceding
page that preparatory acts, merely, are not sufficient to
constitute an attempt, a fortiori, a solicitation could not
be.«

§ 367. Solicitation when not an attempt. We deduce
this rule, that where the solicitation, is so far removed
from the fact of the crime, about which the solicitation
is directed, that it is only an act of preparation, then the
affirmative act evidenced by the request, is not an at-
tempt.'' Thus where A suggests to B, that if he will kill C

V. Higgins, 2 East 5; Eex. v.
Phillips, 6 East 464; Koscoe's Cr.
Ev. 311.

6 — In the case of Smith v. Com.,
54 Pa. St. 209. The proposition
is denied that a solicitation is an
attempt to commit the crime solic-
ited, Hicks V. Com., 86 Va. 223.
See Hamilton v. State, 36 Ind. 280;
Uhl V. Com., 6 Gratt. 706; Kelly v.
Com., 1 Gratt. 15; Cox v. People,
82 111. 191; Stabler v. Com,, 40
Am. Eep. 653; Id. 95 Pa. St. 318.

7— Hicks V. Com., 96 Va. 223. In
a prosecution for the attempt to ad-
minister poison by soliciting another
to administer it, the court after
reading the statute : " If any person
administer or attempt to administer
any poison, or destructive thing in

food, drink or medicine, or other-
wise poison any spring, well or reser-
voir of water, with intent to kill
or injure another person, etc.," held
that where A and P had procured
poison, and had given it into the
hands of L, under promise to pay
her liberally for administering it to
A in his coffee, that it was merely
a solicitation to commit the crime
and that it could not be punished
as an attempt to administer the poi-
son. And among many other
things, says that "An attempt to
commit a crime is composed of two
elements. 1. The intent to conmiit
it. 2. A direct ineffectual act done
towards the commission. Therefore,
the act must reach far enough,
toward the commission of the desired

318

Crimhstal Law

he will pay him for it, this is clearly not an attempt, on
the part of A to kill C, but if the proposition of A to B is
accepted by B, who kills C, A becomes guilty of the con-
summated crime, either as an accessory to the crime or as
principal; by the common law it would amount to
accessoiy before the fact. If, however, A's proposition
is accepted, but for some unlooked for intervening
cause, B fails to kill but merely make an assault
upon C, upon principle A would be guilty of the assault
or the attempt, as principal, for the reason, that
at common laAv, the assault or the attempt being a
misdemeanor, all persons concerned in the commission of
the otfense are guilty alike. In neither case is A guilty of
the attempt because, he solicited B to commit the crime
of murder, but in the fonner he is guilty of accessoiy be-
fore the fact, because he made a proposition to B to kill
C, and which was accepted by B, and it thereby became
an agreement — a conspiracy — upon the part of A and B
to kill C, and the same being accomplished by B, in the
absence of A, made A an accessory before the fact; In the
latter B fails to accomplish the crime intended to be com-
mitted, but made an affirmative effort to do so and failed;
A is guilty equally with B not because he suggested to B
to commit the crime, but because B undertook to commit
the crime under the agreement with A to do it. But sup-

result as to amount to the commence-
ment of the consummation. Tt must
not l)e merely preparatory. In
other words, while it need not be the
last proximate act to the consum-
mation of the offense attempted to
be perjjct rated it must approach suf-
ficiently near to stand either as first
or some subsequent step in tlic di-
rect movcmejit toward the commis-
sion of the offense, after the prep-
arations are made. Thus it has
often been held under statutes simi-
lar to ours that the jiurchase of a
gun, with the intent to commit mur-

der, or the purchase of poison, with
the same intent, docs not constitute
an indictable offense, because the
act in either case is considered in
the nature of preliminary prepara-
tions, and as not advancinif the con-
duct of the accused, beyond the
s])here, of mere intent. ' ' Approves
Uhl V. Com., 6 Gratt. 706; Stabler
V. Com., 95 Pa. St., 318; also holds
with tlie case above and it is sjiid
that a solicitation is too far removed
from the ni.'iiii .-ict lo coiistitutc an
."ittempt to couniiit a crime.

Attempts 319

pose A's proposition was refused by B, we can not believe
that the common law authorizes A's indictment, for the
attempted crime. It appears, that in order to meet, and
punish the acts of solicitation in certain crimes of great
gravity, the statute 24 and 25 Vict, was enacted, provid-
ing that "To counsel, procure or command, any other
person to commit a felony, was itself, a felony." So
also chapter 100, of the same act, is found a similar
provision and in reference to soliciting, encouraging, per-
suading, or endeavoring to persuade another to murder,
etc., making the same a crime. The modern doctrine
in America, is that mere solicitation is not an attempt,
and that too, under statutes substantially as the English.

§ 368. Misdemeanors at common law. Aider and abet-
tor and those who incite and instigate the attempt, where
they would be guilty at all, will be punished, as prin-
cipals, for the reason that all attempts to commit a crime
are misdemeanors, at common law.^''

§369. No attempts in some crimes. There are some
crimes from their nature, of which an attempt to com-
mit cannot be predicated. Such as the crime of con-
spiracy, a common law crime. A conspiracy, is defined
to be any agreement of two or more persons, by con-
certed action, to accomplish, some criminal, or unlawful
purpose, or to accomplish some lawful purpose by unlaw-
ful means. The gist of this offense is the agreement and
combination." The offense is complete when the agree-
ment to do some unlawful thing, or the agreement to do

10 — state V. Wilson, 30 Conn. 500 ; The offense has been held to consist

Uhl V. Com., 6 Gratt. 706; Eex v. in the conspiracy, and not in the

Clayton, 1 Car. & K. 128; People acts, committed in carrying it into

V. Woodard, 45 Cal. 293. effect. The offense is committed

11 — ' ' The gist of the offense of when the intention to conspire is

conspiracy is the unlawful conspir- added to the actual agreement. 4

ing, to do any unlawful act, or to do Eng. & Amer. Encly. L. 588.
a lawful act, with unlawful means.

320 Criminal Law

some lawful thing unlawfully, is entered into by two or
more persons. ^^ This is a punishment for harboring an
intent that is regarded as unlawful. It is not a crime
w^hen such unlawful intent is entertained by a single
person, however wicked, evil, or malicious it may be, but
become criminal only when an agreement is entered into
by two or more persons, to do the wrongful act, jointly,
all aiding in the accomplishment of it. The solicitation,
or the endeavor to induce others to enter into an agree-
ment to do an unlawful act, could only constitute the at-
tempt, and as we have seen the solicitation to commit a
crime is not indictable, hence it will follow that there can-
not be such a thing in the criminal law, as an attempt to
commit the crime of conspiracy.

§ 370. As to perjury. Perjury seems also to be an-
other offense of the same character. The procuring an-
other to commit perjuiy is a substantive and independent
common law offense; we refer to Subornation of Perjury.
It will be noted that this offense is not complete, till the
perjury is actually committed. The law does not punish
the solicitation to commit the crime but, it is the procur-
ing, the inciting to the perjuiy. There appears to be some
authority however for the statement that the mere solici-
tation to commit the perjuiy is a common law offense and
as such could be punished as an attempt. ^^ As to the per-
jurer, himself, upon the general principles of the criminal
law, could not be held liable for the mere intent to commit
the crime; there is some justification for the statement,
that if one having the deliberate intention to commit per-
jury in a given case, voluntarily presents himself, before
a court of justice, to testify as a witness to a material

12 — The offense of conspiring is of by the conspirators." O'Connell

ronflered complete by the bare en- v. Rog., 11 C. & F. 155; Fisher's

g.'igcmont and association of two or Digst. Cr. Law, 121.
more persons fo break the law, with- 13 — 1 Hawk. P. C. 435.

out any act done in pursuance there-

Attempts 321

point at issue, and is not granted the opportunity to do so
would be, guilty of the attempt. Our investigation has
not lead us to any adjudicated case, and we believe that
the act is not sufficiently proximate to constitute the
crime. At least it would not be as long as the party kept
his intention to himself.

§ 370a. As to routs, riots, etc. Riot, rout, and unlaw-
ful assemblies, are, such in constituent elements, that it is
impossible to commit the offense of attempt. The offense
of unlawful assemblies is within itself, a substantive of-
fense but it is effected by a meeting of three or more per-
sons for the purpose of inciting, to the commission of some
other offense. A rout seems to be the accompanying con-
sequences of the unlawful assembly and a riot is the
culmination of both the unlawful Assembly and Eout, into
a series of unlawful acts, participated in by three or more
persons. As Justice Stephens illustrates ; A, B and C meet
at A's house for the purpose of beating D, who lives a
mile off, then they go to D's house, and beat him. At
A's house the meeting is an unlawful assembly; on the
road it is rout, and when the attack is made on D it is riot.
Each of these offenses are independent, and might be
separately indicted.^* These crimes have been greatly
modified by the statutes of the several jurisdictions, and
as common law offense will rarely be resorted to cover
the character of acts, originally intended to be reached.

§ 371. As to assaults. An attempt to commit an as-
sault, as a distinct crime, has no legal existence. There
can be no attempt to commit an attempt. Properly and
technically speaking, an assault is an attempt to commit a
battery, or to inflict some injury upon the person of an-
other of any character whatever.^^ A common assault is

14 — state V. Summer, 2 Speer 599. v. People, 81 Am. Dec. 781, 10 Mich.
15— Com. V. Tolliver, 69 Am. Dec. 212.
252. 8 Gray (Mass.) 397; Mayher

C. L.— 21

322 Criminal Law

an attempt to commit a simple or a slight battery. But
assaults to commit rape, murder, mayhem, etc., are but at-
tempts. Any act, which by itself, would constitute an
element of the offense, of which the attempt is predi-
cated, does not constitute the attempt to commit the
offense but the crime itself.'^® Under an indictment for the
batteiy, it is competent to convict of the assault, which
is the attempt to commit the battery. A mere preparation
to commit the battery would not constitute the assault or
the attempt. Under the common law, and it appears to be
the general nile, except where changed by the statute,
that any attempt to commit a battery, or any threatening
gesture, accompanied with present means, of inflicting ^"^
injuiy if not prevented, will constitute the attempt to
commit the battery.

§372. Doctrine of attempts applied to misdemeanors.

The authorities are conllicting but the rule appears to be
well established, that at common law attempts were not
predicated upon misdemeanors. Especially is this true
where the crime possessed only a slight degree of evil or
malevolence. The law does not take notice of small
things, and where the character of the crime is such,
that no great or considerable injury can be done, there
is no attempt. Attempts to commit misdemeanors,
mnln in sc, might in many instances l)o indictable.^®

16 — Com. V. McKie. 61 Am. Dec. 18 — Com. v. Baxter, i Mass. 439;

410, 1 Gray (Mass.) 61; Roy v. I^■.\ v. Hifrgiiis, 2 East 5; Rex v.

Meredith, 8 C. & P. 589; Reg v. Meredith, 8 Car. & P. 589; Com.

Lewis, 1 C. & K. 419; Stevens v. v. Kiiighcrry, 5 Mass. 105; State v.

Meyers, 4 C. & P. .'{49; Reg v. Donovan, 28 Del. 40, 90 Atl. 220,

Pliillips, ;{ Cox C. C. 225. Com. v. Flagg, 135 Moss. 545; State

17 — On the question of the ability v. Sullivan, 110 Mo. App. 75, 84

of rommitting a battery, see the S. W. 105; Com. v. Randolph, 146

following eases. State v. Swails, I'a. 82, 23 Atl. 388, 28 A. S. R. 782.
65 Am. Dec. 772, s:. Ind. 524;
Allen v. State. 73 Am. Dec 760.
28 Gm. 395.

Attempts 323

§ 373. Solicitation in some crime attempts. There are
some offenses, the solicitation to eonnnit which, will con-
stitute the attempt to commit it. Thus it is said that
sodomy, adultery, fornication and incest are instances
where from the nature of the elements of the crimes, the
solicitation, will constitute the attempted crime. These
crimes can be committed (except the crime of sodomy)
only upon the solicitation to the other party to the act, a
female, to engage in the unlaw^ful act. If in these three
crimes the consent of the female cannot be obtained, and
sexual intercourse is insisted on by the man, it appears
that the crime of attempt is complete. Of course if the
consent, is obtained by force, fraud or subterfuge, to the
acts of carnal knowledge, then the party would be guilty
of the crime of rape. Therefore, we deduce the rule, that
where the solicitation constitutes the culpable act, pre-
ceding, proximately, the consummation of the crime in
full, it then becomes an attempt to commit that oifense.
It is a well settled proposition, that a bare solicitation
to a woman to allow carnal intercourse is not an assault
to commit a rape.^^ There is a line of decisions, holding to
the doctrine that at common law, solicitation to commit
any felony was an attempt. There is yet another line of
cases both English and American which maintain that the
solicitation is not an attempt.^" Indeed, so far as the de-
cisions of the courts go, it is a very difficult matter to rec-
oncile the cases on this question of solicitation. We
believe the rule we have adduced is more in line with
the reason assigned. But it will be left to the courts in
the future, as in the past, to reconcile the difference of
opinions, and for the benefit of those who have occasion
to enquire, it will be found that it has been held that it is
an indictable attempt to solicit another to commit an as-

19— state V. Kendall, 73 la. 255, Thomas v. State, 16 Tex. App. 535;

5 Am. St. R. 677, 34 N. W. 843; State v. Jarvis, 20 Or. 437, 23 Am.

Garnett v. People, 6 Neb. 274; St. Rep. 141, 26 Pac. 302.

House V. State, 9 Tex. App. 53, 66; 20— Rex v. Phillips, 6 East 464.

O.'

24 Criminal Law

sault and battery, bribeiy, adulteiy, perjuiy, breach of
the peace, embezzlement and larceny,^^ to poison another,
and to commit incest.

THE INTENT

§374. Extent thereof. The intent must embrace a
particular crime. The purpose intended must include the
crime in its entirety, although the act accompanying can
only embrace, in its results, a portion of the thing in-
tended to be accomplished, for if the act covered all the
things to be done, then the crime itself would be consum-
mated and the attempt absorbed. If the intent is to at-
tempt to commit the ciime, and not an intent to commit
the crime, there is no attempt. If one having the intent to
commit a particular crime and attempts to do so, and by
the misdirection of a blow, or by accident, or misadven-
ture, miscalculation or through ignorance of facts, com-
mits another crime not intended, and not looked for, is
responsible for what he actually did.^^ So if he fails to
commit the crime he intended, he may be held for the at-
tempt, but if he commits a crime he did not intend, he's
held for the consummated crime, crime committed and
not for the attempt.

§ 375. Intent and overt act must concur. The intent,
to commit a specific offense, is one of the essential ele-
ments of the crimes of attempt. It is required that the
proof show that the accused had the requisite intent, or
else the conviction cannot stand.^^ Two things must con-

21— Cox V. People, 82 111. 191; v. State, 52 Am. R«p. 209, 62 Miss.

Hicks V. Com., 96 Va. 223; People 772. Contra, see Simpson v. State,

V. Gleason, 99 Cal. 359, 33 Pac. 59 Ala. 1; People v. Mize, 80 Cal.

nil, 37 Am. St. Rop. 56. 42; Wood v. State, 27 Tex. App.

22— State v. Oilman, 31 Am. Rep. 393; Maher v. People, 10 Mich. 212,

257, 69 Me. 118; Perry v. People, 81 Am. Dec. 781; Hall v. State, 9

14 111. 496; Vandcrmark v. People, Fla. 203; Lonfield v. State, 34 Ark.

47 111. 22; Dmiaway v. People, 51 275.

Am. Rep. 680, 110 111. 333; McGehec 23— Rex v. Douivan, 4 Cox C. C.

Attempts 325

cur: the intent and the overt act toward the commission of
the offense. Both must be present at the same time and
acting together, for the act operating in the absence of the
intent, is no crime; and vice versa, the existing intent
without an act predicated upon it. The intent is father
to the act and both existing conjointly produce the crime.
An act intentionally done is always an evidence of the
purpose of the actor. But where an offense requires a
particular or specific intent in order to commit it, the
intent must be proven. It is as necessary to prove the
intent in such a case as it is to prove the act. The court
said in one case: "It is well settled that if the offense
consists of an act, combined with a particular intent, it
is as necessary to prove the intent as it is to prove the act,
and the intent must be found by the juiy, as a matter of
fact, before a conviction can be had. Especially is this
true, when the offense, consisting of the intent and the act,
constitutes, as in this case, an attempt, to commit a higher
offense than that charged. And as the particular intent
charged must be proved to the satisfaction of the jury
beyond a reasonable doubt, no intent in law, nor mere
legal presumption differing from the intent in fact, will
be allowed to supply the place of the latter. ' ' ^*

§ 376. Voluntary abandonment of the intent. The
abandonment of the intent to engage or attempt a crimi-
nal enterprise, is a good defense, when prior to the begin-
ning or the taking a step to commit the crime. If, how-
ever, one should take a step towards the consummation

425; Lamb v. State, 66 Md. 285; in this case. Eex v. Thomas, 1

Burney v. State, 21 Tex. App. 565; East P. C. 417; Eex v. James, 9

Taylor v. State, 22 Tex. App. 529; Leach 258; Eex v. Holt, 7 Oar &

State V. Marshall, 14 Ala. 411; P. 518; A v. State, 28

Lewis V. State, 35 Ala. 380, 28 Am. A.la. 693 ; People v. Scott, 6 Mich.

Dec. 416. 296; Loza v. State, 1 Tex. App.

24— Eeagan V. State, 28 Tex. App. 488; Mahcr v. People, 10 Mich.

227, 19 A. S. E. 833. The follow- 212.
ing case was referred to by the court

326

Criminal Law

of the offense, wliicli would be necessary to the full perpe-
tration of it, he will be guilty of the attempted crime not-
withstanding he voluntarily abandoned the intent and
refused to proceed further.''^ Thus if one attempt to set
fire to a building, and after he has set fire to it, he ex-
tinguish the flames and abandon his original intent, he is
nevertheless guilty of the attempted arson.

§ 377. Where the crime is impossible of commission.
Where one proceeds to execute a criminal design and is
prevented from carrying it out, even if the conditions then
present render it impossible for him to commit it, he is
guilty. There are numerous cases holding that an at-
tempt to commit a crime may be predicated upon condi-
tions which render it impossible for the crime to be
committed. Some of the cases also hold that the crime
may itself be committed. Thus wdiere the accused was in-
dicted for the burglarious entry into the warehouse of
another with the intent to take and cany awsij his prop-
erty therein, it was held that the burglarious entrance w^as
made, although there was no property therein to steal.
Again as where the pick-pocket puts his hand in the
pocket of his intended victim and finds no money.^*^ But
it has been held that where an assaulting party discharges
his gun, at such a distance from his intended victim, that
it is physically impossible for the missiles to reach liini.
or where the gun is loaded with paper wads thereby mak-
ing it impossible to do him any harm, the attempt was
not commit ted. ^^ The impossibility may consist of the

25 — State v. Allen, 47 Conn. 121;
Piekard v. State, 30 Ga. 767; Tay-
lor V. State, 50 Ga. 79; State v.
Hays, 78 Mo. 307; State v. Eleck, 7
.Johns 68.

26— State v. Beal, 37 Ohio St.
108, 41 Am. Rep. 490; Rodgers v.
Com.. 5 Serj^. & R. 463; Hamilton
V. State, 36 Ind. 280; People v.
Mnsh, 4 Hill 143.

27— People v. Moran. 123 N. Y.
25 N. E. 412; Hinkle v. State, 32
Ind. 220; People v. Jones. 46 Mich.
441, 9 N. W. 486; Clark v. State,
86 Tenn. 511; State v. Mitchell,
170 Mo. 633, 71 S. W. 175, 94 A.
S. R. 763; People v. Gardner, 144
N. y. 119, 38 N. E. 1003, 43 A.
S. R. 741, 28 L. R. A. 699; State
V. Frit/.fTcrald, 40 T.n. 260, 31 Am.

Attempts

327

want of power or force, or the want of the capacity of the
means used to produce the intended crime; or it may be
where the acts and the intent concur but the impossibility
of the committing the crime consists in the want of the
thing, upon which the crime may be committed.

§ 378. The extent of the act. It appears that the act
should proceed sufficiently near to the object to be af-
fected, or else the repentance will take place within
legitimate bounds.^® It will depend to a great extent upon
the character of the offense intended to be committed,
whether the act had proceeded too far to free it from
culpability. So, also, whether the abandonment was the
voluntary relinquishment of the intent, or whether it
was the result of some external force, over which the ac-
cused had no control. Thus, in the crime of murder, the
party might proceed to where A was, with the specific in-
tent of killing him, and prepared to do so, but proceeds
no further with the matter, he certainly would not be
guilty of the attempt to murder.^ But in the case of
rape, B proceeds with the intent to ravish with force,
and the woman flees and he thereupon abandons his in-
tentions, this would be the attempted crime.'®

Rep. 148; People v. Mason, 254, 25
N. E. 412, 20 A. S. R. 732.

28— Rex V. Chapin, 3 Cox G. C.
467; People v. Murray, 14 Gal. 159;
Hicks V. Gom., 86 Va. 223; 9 S. E.
1024, 19 A. S. R. 891; Rex v. Mc-
Pherson D. & B. 196; Rex v. Gheeze-
man, 9 Gox C. G. 103.

29— Rex V. Taylor. 1 F. & F. 511;
Hicks V. Com., 86 Va. 223. See
Lawson's Cr. Simplified, page 66.

30 — State v. Boon, 57 Am. Dee.
555; State v. Neely, 74 N. C. 13
Ired. (N. G.) 244; State v. Neely,
74 N. G. 425; 21 Am. Rep. 496; Tay-
lor V. State, 50 Ga. 79; State v. Mc-
Daniel, 60 N. G. 245; State v. Elick,
52 N. C. 68; State v. Hayes, 78 Mo.
307; State v. McHaffey, 132 N. G.
1062, 44 S. E. 107; State v. Wil-
liams, 121 N. G. 628, 28 S. E. 405.

CHAPTER XIX

BAREATEY

§ 379. Defined. § 383. Champerty and maintenance.

§ 380. Is an offense in the American § 384. Are offenses which interrupt

states. the course of justice.

§ 381. A misdemeanor at common § 385. Further discussed.

law. § 386. As criminal offenses in the
§ 382. Was indictable as a common states.

nuisance at common law.

§ 379. Common Barratry defined. Common barratry at
the common law consisted in frequently inciting and stir-
ring up suits and quarrels, betw^een the king's subjects.^
This according to the definition of Sir Wm. Blackstone.
Lord Coke defined the otfense in this language. *'A com-
mon barrator is a common mover or stirrer up or maiii-
tainer of suits, quarrels, between parties either in the
courts or in the country — in the hundred, or inferior
courts. In the country, in three manners; in the disturb-
ance of the peace; in taking or detaining of the possession
of houses, lands, or goods, which are in question or in
controversy, not only by force, but by subtlety and de-
ceipt and for the most part, in suppression of truth and
right; by false intervention and the sowing of calumny,
rumors and reports, whereby discord and disquiet arise
between neighbors. ' ' ^

§ 380. Is an off"ense in the American States. This is
an offense in the American States, where the common
law offenses are enforced, l)ut it has fallen into disuse to a
very great extent. \'"ery few adjudications of this crime
are to be met with in t he great volume of reported cases in

1— » I'.l.i. (Nmii. l.il. 2—8 Coke 2(5 I).

.".L'S

Barratry 329

the American Courts. May in his Treatise upon the com-
mon law at section sixty-six says: "Barratry is a habitual
champerty or maintenance, and is committed where one
has become so accustomed to intermeddle in strifes or
controversies in or out of court, that he may be said to
be a common mover, exciter, and maintainor of suits and
quarrels, as one becomes a common scold by the too fre-
quent and habitual abusive use of the tongue, and a
common seller of liquor, who habitually sells it in viola-
tion of the law. A series of acts not less than three are
necessary to constitute the habit, which is the gist of the
offense. The crime may be committed by a justice of the
peace, who stirs up prosecutions to be had before himself,
for the sake of fees, and it seems, by one who, unnecessar-
ily and for the purpose of opposing his adversary, brings
numerous suits in his own right. ' '^

§ 381. Was a misdemeanor at common law. This was
a misdemeanor at the common law, and punished by fine
and imprisonment.* It appears that it is punished in the
courts of the British Government to a great extent to this
day. Some of the states of the American union have stat-
utes covering in particular, the crime.^

§382. Was indictable as a common nuisance, at
common law. The intent in this offense seems to have
been essential in this, that the defendants were moved to
the inciting and the stirring up strife and law suits from
some kind of selfish or personal interest. It also appears
that if the same was continued and carried on to such an
extent, the same became indictable as a common or pub-
lic nuisance, such as common scolds and the like, which
as we have seen consists in the continued and frequent

3 — State V. Cliitty, 1 Bailey 379; 5 — See statutes of the several

Com. V. McCullock, 15 Mass. 227. states.

4— Bla. Com. 134.

330 Criminal Law

outburst of vile and vituperative language engaged in
by a woman. The intent in the offense of public nui-
sance, seems not so much to be based upon any particular
intent to do any particular person an injury, nor that
there was any specific intent to injure the public, but con-
sists in doing that thing voluntarily w^hich has the effect
of becoming offensive to the public.

§383. Champerty and maintenance. Champerty and
maintenance were crimes at the common law, but are ob-
solete with us. The same is defined as follows: Cham-
perty is defined in the old books as the unlawful
maintenance of a suit in consideration of some bargain
with another, that the champertor have some part or
profit out of the suit or litigation.^ ]\[aintenance is an
offense against public justice, as it keeps alive strife and
contention, and subverts the remedial processes of the
law, into an engine of oppression. By the Roman law
it was a species of the crimen falsi, to enter into any con-
spiracy, or to do any act, to support another's law suit,
by money, witnesses or patronage.'^ The distinction be-
tween Champerty and maintenance is given as follows:
' ' Where there is no agreement to divide the thing in suit,
the party inteiTneddling, is guilty of maintenance only,
but where the stipulations are that they have or received
a part of the thing in suit he is guilty of Champerty.*
The old law seems to have regarded these crimes as
^Mala in se. Thus **It appeareth that the end of Cham-
perty and maintenance is to suppress justice and truth, or
at least to work delay and therefore it is Mala in se,
and against the common law.®

§ 384. Are offenses which interrupt the course of jus-
tice. Nothing with more aptitude can be said upon this

6 — Stnntlloy V. Jones, 7 BinR. 369. Ross, l."? Ind. 117; Scdgowick v.
7—4 ni.-ickHtonc Com. l.'lfj. Stiintoii, 4 Korr (N. Y.) 289.

8 — 4 Hljicksfoiio i:{4; Scohy v. 9—2 Inst. 208.

Barratry 331

subject than by adopting the language of Chancellor San-
ford in a leading case in this country. Thus, Champerty,
Maintenance and Barratry, were defined as offenses in
the very early stages of the English law. These prac-
tices seem to have been then common in England, and
they were denounced as sins very heinous in themselves,
and highly injurious, to the peace of society, but also as
offenses, which actually interrupted the course of public
justice. The excitement of suits is an evil, when suits are
unjust, but when right is withheld and the object of a
suit is just, to promote the suit, is to promote justice.
That a resort to the public tribunals for justice can pro-
duce justice, is true only, where the administration of
justice is weak or corrupt, or where the laws are very
imperfect. Where the administration of justice is firm,
pure and equal to all, and where the laws give adequate
redress for groundless suits, it is not easy to conceive,
that mischief can arise, from opening the courts of jus-
tice to all suitors, or from contracts by which the fruits
of a suit may be divided between him who has the right
of action, and him who has contributed advice, expense,
or exertion to institute the suit, or prosecute it to effect.
The Roman law by its provisions for the preventing
groundless and vexatious suits required that the plain-
tiff should take an oath, that the suit was not commenced
from malice, and that he believed that his cause was legal
and just. The defendant was required to SAvear, that in
his belief that the plaintiff had no just claim. The ad-
vocates on both sides were required to take similar
oaths. If the plaintiff failed in his suit, he was fined
in the sum which some times was a tenth part of the
demand. And in cases of great malice and vexation, the
plaintiff was further punished by a decree of ignominy. ' '"

10— Thallhimer V. Brinekerhoff, 15 59; Dig. Book, Tit. 179. Woods
Am. Dee. 310-311. Also cites Inst. Civil Law, 341.
Book, 4 Tit. 16; Code Book, 2 Tit.

332 Criminal Law

§385. Same continued, etc. So, continuing the same
writer says: The English doctrine of maintenance arose
from causes peculiar to the state of society in which it w^as
established. The great reason for the suppression of
Champerty and maintenance, was an apprehension, that
justice itself was endangered by these practices. Black-
stone speaks of the offense as perverting the process of
law into engines of oppression. In the case of Slywrite
V. Page 1, Leon 167, it was said by the whole court of
common pleas, that the meaning of the statute of 32 Hen
8 concerning maintenance, was to repress the practices of
many, who when they thought they had title or right to
any land, in furtherance of their pretended right, to con-
vey their right in some part to great persons, and with
their countenance oppress the possessors. The power of
great men, to whom rights of action was transferred
in order to obtain support and favor in suits, brought to
assert these rights, the confederacies were thus formed,
and the oppression that from the influence of great men
in such cases, are themes of complaint in the early books
of the English law. While the power of nobles and great
men were felt in the administration of the law, the prac-
tices seem to have produced real and great evils. In that
state of things, instead of invigorating and purifying the
administration of justice, as the remedy of such evils, the
laws concerning Champerty and Maintenance were es-
tablished, as penal regulations intended to operate on the
parties to these transactions. In modern times, and since
England has enjoyed a linn and purer administration of
justice, these evils are little felt. And Champerty and
Maintenance are now seldom mentioned, as occurring in
fact, or as producing mischief in that country."

§ 386. As criminal offenses in the states. Champeriy
and Maintenance, as criminal offenses do not appear to bo

11— Tlifillliinicr v. l'.riii(kirliofr,
li^ Am. Doc. .i\2; .'5 Gowen 023.

Barratry 333

enforced in the states of the union, but such contracts are
according to some of the courts void, because contrary to
public policy. There is, however, no uniformity of au-
thority on this proposition, some of the courts holding
that they are void and some that they are not. The most
reasonable doctrine for this country with our conditions
is ably and succinctly set forth in an early opinion by
Judge Kinney, in an Iowa case. ' ' In this countiy of wise
and wholesome laws, enjoying as we do, a political and
social equality, which can never exist under the institu-
tions of England, with the administration of justice, alike
accessible to the poor and the rich, the doctrine of Main-
tenance and Champerty in England, cannot exist ; it is al-
most impossible to conceive how a case of Champerty or
Maintenance can occur; it is not a part of our judicial
policy to shut out any suitor, or to close the temple of
justice against those who resort thither for an adjust-
ment of their legal rights. Neither, should litigation be
invited, or improperly or unlawfully encouraged, as to
amount to oppression. To check this our statutes in
relation to malicious prosecutions and limitation of ac-
tions have been passed. * * * ^e see no necessity
of adopting the English law on this subject. The state
of society which produced it, and the evils which it was
intended to remedy, do not exist here. ' ' ^^

12 — ^Wright V. Meek, 15 Am. Dec.
note, page 318.

CHAPTER XX

BIGAMY

§ 387. Defined.

§ 388. Exceptions under the statutes.

§ 389. Wliat facts the indictment
must contain.

§ 390. How the marriage may be
proven.

§ 391. Under what circumstances
may the defendant be con-
victed.

§ 392. Manner of performance of
marriage ceremony.

§ 393. Wliat is competent evidence
against the defendant.

§ 394. At common law, wife not
competent to testify.

§ 395. Incestuous marriage, etc,

§ 396. What is a good defenr?.

g 397. Where the right to remarry
is upon contingency, etc.

§ 398. As to the place of the mar-
riage.

§ 399. No defense to show the for-
mer marriage is voidable.

§ 399a. Contract of marriage must
he solemnized.

§387. Polygamy and bigamy defined. This offense
consists in having a plurality of wives at the same time.
Bigamy, consists in having two waives at the same time,
not being legally divorced from either. Originally it was
cognizable in tlio ecclesiastical courts only, but later
it became to be regarded a very serious ])erversion of
morals and flagrant violation of jniblic economy, and con-
sequently was raised to a felony. It was enacted by stat-
ute of I James "J," that auy person lieing married do
afterwards marry again, the fonncr husband or wife
being alive, it is felony. P)y the law of Sweden, biga-
mous marriages were pniiislicd with dealli.^ Tliis was
not an offense at eommon law.

§388. Exceptions under the statutes, iiy the statutes
above referred to, the lollowing e\ce})tions were per-
mitted as a ('(MMph'te exoneration. (1) Where either

1 — 4 BlackHtono Com. 163.

334

Bigamy 335

party had been continuously absent for seven years. (2)
Where either party has been absent from the other, seven
years in the kingdom, and the remarrying party hath
had no knowledge of the other's being alive within that
time. (3) Where there is a divorce or (separation a
mensa et thoro), by sentence in the ecclesiastical court.
(4) Where the marriage is absolutely void and so declared
by judgment and the parties loosed a vin-culo. (5)
Where either party is under the age of consent at the
time of the first marriage, for in such case the marriage
is voidable by disagreement of parties. But if an agree-
ment at reaching the age of consent is effected, then it
seems that the second marriage is bigamous. If the first
marriage is void, then a second marriage is not bigamous.^
As where a marriage is prohibited, of persons under cer-
tain age; or where the parties by the law are prohibited
to marry under certain conditions and which make such
marriage void. But it was held in an English case that
the marriage was bigamous, where the man married under
an assumed name, though by law such marriage was
void as to person competent to contract. The first mar-
riage being legal, it is immaterial that the second mar-
riage would have been void.* As where the statute
forbids the marriage of certain class of persons, as be-
tween a negro and a white person.

§389. What facts the indictment must contain. The

indictment must allege the first and second marriages,
and that the former husband or wife was alive at the
time of the second marriage. It is required of the gov-
ernment to show the existence of the first and the second
marriage. The first marriage must be proven to have

2— State V. Stewart, 194 Mo. 245, 20 Ohio St. 1; Halbrook v. State,

92 S. W. 878, 112 A. S. R. 529, 5 34 Ark. 511, 36 Am. Rep.
Ann. Cas. 963; People v. Spoor, 3 — People v. Brown, 34 Mich.

235 111. 85, N. S. 207, 136 A. S. R. 339, 22 Am. Rep. 531; Kirk v. State,

197, and note page 201, and au- 65 Ga. 159.
thorities collated; Sliafer v. State,

6 Criminal Law

been legal. It is also incumbent upon the government to
prove the legal existence of the second marriage, except
in so far as the legality of the first marriage vitiates it —
at least it must be shown that the parties went through
the form of marriage ceremony.*

§ 390. How the marriage may be proven. The mar-
riages may be proven by a certificate of marriage Avliere
the law authorizes the issuance of the same; also by a
registry, or by an authenticated license and return thereon
as required by law. It is not necessary that the license
or a copy of the registry be produced in all cases. Any
person who was present at the time of the marriage per-
fonnance, or a subscribing witness, is competent to show
the marriage. The second marriage is proven exactly as
the first. In accordance with the well known principle of
evidence, the best evidence of the marriage should be of-
fered or legal reasons given why it is not done. What-
ever, the laws of the place of the marriage, requires to be
done, antecedent to the marriage, must be proven to have
been done. The Locus Contractus, governs the validity
of the respective marriages. If the first marriage was le-
gal where contracted it can make no difference, that a
different law prevails in the place of the prosecution.^ It
is to be understood, that there must be territorial juris-
diction of the second marriage as provided by the statute.
Generally the second marriage must have taken place in
the county of the prosecution. Where the law requires the
marriage ceremony be performed by certain designated
officers, the evidence must show tliat tlio officiating i)or-

4— Rex V. Brown, I. C. & K. 114; v. People, 150 111. 514, 41 N, E. 181,

McCoinh V. State, 50 Tex. App. 499, 47 A. S. R. 221; People v. Lambert,

99 S. W. 1017, 123 A. S. R. 855, 5 Mich. ;{19, 72 Anier. Dec. 49;

14 Ann. Cas. 72, 9 L. R. A. (N. S.) State v. Johnson, 12 Minn. 476, 93

1036; Wahlrop v. State, 41 Tex, Aiiut. Dec. 244; State v. Cooper,

App. 194, 53 S. W.; State v. Snif- 103 Mo. 266, 15 S. W. 327; State

fin, 44 Wash. 485, 12 Ann. Cas. 113, v. lientiy, 75 Vt. 163, 53 Atl. 1068.

87 Pnc. 837, 120 A. S. R. 1009; 5—3 Greonl. Ev.. ace. 204.
Wall V, Stale, 32 Ark. 505; llilcr

Bigamy 337

son comes within the statute. Proof of maiTiage by repu-
tation seems to be regarded by some autliorities as
insufficient standing alone to establish the marriage, but
it may be shown as any other fact or circumstance tend-
ing to create the inference of the existence of the mar-
riage. Even the conduct of the defendant toward the
alleged wives may be shown to prove or to disprove the
probability of the marriages.®

§391. Under what circumstances the defendant may
not be convicted. So, if at the time of the alleged prior
marriage, it is shown that the defendant was legally
married to another woman, he cannot be convicted of big-
amy, for the alleged prior marriage is illegal and void; '
or where it appears that the first marriage has not been
performed as the laws direct, and there is no evidence
of the cohabitation of the parties.^ It appears that where
the parties are living together as husband and wife in
the absence of a statute requiring certain specific acts, to
be mutually performed by the parties to the contract,
that this would constitute the cohabitation as a marriage
under the common law, and a subsequent marriage would
be bigamous, but this condition is to be detennined as
a matter of fact by the court or jury as the case may bo,
and not to be declared as a matter of law by the court
trying the case. The Missouri courts has defined mar-
riage thus: "Marriage is the civil status of one man and
one woman capable of contracting, united by contract
and mutual consent for life, for the discharge to each
other, and to the community, of the duties legally incum-
bent on those whose association is founded on the distinc-
tion of sex." To constitute a valid marriage, either

6 — Gahagan v. People, 1 Parker Halbrook v. State, 34 Ark. 511, 36

C. R. 378; U. S. v, Higgerson, 46 Am. Eep. 17.

Fed. 750; People v. Hartman, 130 8— People v. McQuid (Mich.), 48

Gal. 487. N. W. 161; State v. Davis, 14 S.

7— Kenval v. State, 64 S. W. 897; E. (N. C.) 55.
C. L.— 22

338 Criminal Law

under the statute or by the conmion law, there must be
1. one man and one woman capable of contracting; 2.
they must enter a contract by which they assume the re-
lation of husband and wife for their joint lives, and they
must both understand that neither one nor the other, nor
both can rescind the contract or destroy the relation.^ If
the proof shows the pre^dous marriage to have been
within the conditions of the above then the marriage
may be said to be proven, and a subsequent marriage of
either party, would be bigamous.

§392. Manner of performance of marriage ceremony.

Another important doctrine of the law relating to the
validity of the maiTiages, is that of the manner in which
the ceremony is performed. "Where the statute provides
that the ceremony shall be performed by certain desig-
nated officers or of a certain class of persons, with out a
provision to the effect that unless the ceremonj^ is per-
fonned as the law directs that the same shall be void, a
maiTiage performed by other persons than those men-
tioned in the statute will not make it void, and it is no
defense to the crime of bigamy.*"

§ 393. What is competent evidence against the defend-
ant. There appears to be some conllict of authority,
whether the admission of the defendant as to the exist-
ence of the first marriage, is competent evidence against
him, but the weight seems to be with the affirmative, espe-
cially so, wlien tlie admissions are corroborated by co-
habitation. The courts have lield admissions proper, in
the states of Ahibama, Indiana, Iowa, Minnesota, Ohio,

9— State V, Cooper, 15 S. W. 327; ]{obertson v. Com., 69 Ky. (6 Bush)

Stnte V. Bittick, 15 S. W. 325. .'{OO; State v. Davis, 109 N. C. 780,

10 — Dwycr v. Brannoch. 0(5 Mo. 14 N. E. See note, People v. Spoor,

."'.91, 127 Atii. Kcp. ;!.j9; Slate v. lL'(i A. S. H., j)ajrc 21(i. Former

/iclifclfl, 23 Nev. 304, 46 Pnc. 802, in.u ri;ij,'f uii(l<'r ajje of consent, see

62 A. S. U. 800, 34 L. H. A. 784; antliorilies cited, note, page 215.

Bkjamy 339

Pennsylvania, Vir^inia,^^ and perhaps others, but the
states of Michigan and Kentucky and perhaps others
have denied the competency of such evidence unless
coupled with cohabitation.^^

§ 394. At common law wife not competent to testify.
By the common law rule the first wife is not a competent
witness against the defendant, for the reason, that at com-
mon law the wife is not permitted to be a witness against
her husband. ^^ But the second wife is a competent witness
to prove the second marriage, for the reason that the
marriage between her and the defendant is absolutely
void, and that she is no wife in the contemplation of the
law. But this incompetency of the common law, is no
doubt removed in most of the states by statute, allowing
the prior wife to testify against the husband. And under
a statute which gives the wife the right to testify where a
crime has been committed against her by the husband,
the wife is a competent witness against the husband.^*

§395. incestuous marriages, etc. Incestuous mar-
riages, and marriages prohibited within certain degrees
of consanguinity and affinity and the like, will not exempt
from the consequences of a bigamous marriage. This is
the rule under the common law.^^ The gist of the offense
of bigamy, consists in the fact of having two wives at the
same time. There can be no bigamy where the prior mar-
riage was illegal or in other words was void, for the
wrong is complete when it appears that the defendant
has undertaken to place himself in the marriage relation

11— state V. Abbey, 29 Vt. 60; Mich. 349; Com. v. Jackson, 11

O'Neal V. Com., 17 Grat. 582; Lang- Bush 679, 74 Ky. 21 Am. Rep. 225.

ley V. State, 30 Ala. 536; Finey v. 13— Williams v. State, 44 Ala. 24;

State, 3 Head 544, 1 East P. C. State v. Patterson, 2 Ired. (N. C.)

470, 11 Maine 391. 346.

12 — State V. Johnson, 12 Minn. 14 — Dumas v. State, 14 Tex. App.

476; Gahagan v. People, 1 Parker 464, 46 Am. Rep. 241.

Cr. Gas. 378: People v. Lambert, 5 15 — 41 L. J. (N. C.) 101.

340 Criminal Law

with another woman, and it is inimatenal whether he in
fact places himself as a matter of law in that state, it is
sufficient if in point of fact he has done so. A reason
may be assigned for this, supported by the authorities,
that such association of a man and a woman, involves a
breach of public decency and morals, creates a public
scandal by the prostitution of a solemn and sacred cere-
mony; that the assumption of such a relation presupposes
mutual obligations to each other and duties to society,
which prove themselves to be subversive to the best in-
terest of the community, and a gross deception and
fraud.i«

§ 396. What is a good defense. A divorce from the
first marriage is a good defense. So are any one of the
exceptions of the statute, such as those of the English
Statute of James I, referred to, supra, if the defendant
shows himself to come within the exception. The ac-
cused may show, that the former wife or husband died
before the alleged second marriage.^' He may show that
the contract of marriage was illegal in the place where it
was entered into. The statutes for granting and allowing
divorces are not uniform in all the states. In some
jurisdictions the statutes grant divorces upon grounds
and for reasons that are not permissible in others, and
prohibit one or both parties from remarrying; in such
case a second maiTiage is illegal, and therefore biga-
mous.^' The defendant may show that the partner of
the former marriage has been continuously absent from
the state for seven years, and therefore raising the pre-
sumption of death.

§ 397. Where the right to remarry is upon a contin-
gency, etc. Wlierc the statute j)i'()liibits one who has

16— People V. Brown, .34 Mich. 18— People v. Fabcr (2 N. Y.

n.-JO, 22 Am. Hop. .'j.TI ; Cyc. vol. 5, IJG), 44 Am. Hep. 357.
p. 69.'}, nolo 24.

17—2 Vol. Am. & Eng. Enoy. 193-
194.

Bigamy 341

been divorced, from remarrying, or places any restric-
tion on the right to marry, dependent upon a contingency,
such contingency must have been shown to have arisen,
in order that it be allowed as a defense. It appears that
where a statute prohibits the remarriage, after the grant-
ing the divorce, ''until the death of the complainant,"
that the defendant may legally marry again in another
state and return and live in the state where the divorce
was granted, without being guilty of bigamy.^^ If the
laws of the state, in which the judgment is rendered dis-
solving the marriage, provide that the offending party
in the divorce proceeding shall not again marry, except,
upon certain conditions, but does not specifically pro-
vide that a remarriage of the said party shall be void.
It appears upon sound reasoning as well as by high au-
thority, a subsequent marriage in a different state would
not be void — that the children of such marriage would
not thereby be illegitimate, and this upon the theory that
the divorce dissolves the bonds of marriage between both
parties to the contract, but that the party prohibited to
marry is responsible to the laws of the state where the
divorce is granted. So, also, if the said prohibited party
marry again while the wife of the second marriage is
living, he is then guilty of bigamy, if he marry in the
forum of the divorce.^® So if the party to the divorce
remarry in the same jurisdiction in which the judgment
has been rendered he then is guilty of bigamy. Moreover,
if after the divorce is granted the party leave the juris-
diction of the divorce for the avowed purpose to remarry
in another state, and with the intent to avoid the laws
of the state where the divorce is granted would thereby
be guilty nevertheless.^^

19— Com. V. Hunt, 4 Chish. 49; L. E. A. 224; People v. Chase, 28

Com. V. Lane, 113 Mass. 471, 18 Hun. 310.

Am. Rep. 509, 5 Vol. Cye. p. 692; 21— Com. v. Lane, 113 Mass. 458,

Ooitt V. Smith, 68 Vt. 35. 18 Am. Rep. 509; Pennegar v.

20— Crawford v. State (Miss.), 35 State, 2 L. R, A. 703, 87 Tenn.

342 Criminal Law

§ 398. As to place of the maxriage. It is a well estab-
lished principle of the law of contracts, that the locus
contractus governs the validity thereof, but to this there
is a well established exception in the matter of contracts
of marriage. The law looks upon the contract of mar-
riage as a mere civil contract entered into by one woman
and one man, and by a great majority of mankind is
regarded in a social sense as something greatly more than
a contract, founded upon the most sacred ceremony and
the highest moral obligations. The exception herein re-
ferred to consists in the intention of the parties at the
time of the marriage, as to the place contemplated by
them as their future domicile. If therefore a marriage
takes place in one state, and at the time of marriage it is
the intention, bona fide, to make their residence in an-
other state, the property right of the husband and wife at
the time of the marriage is to be determined by the laws
of the latter.^^ If also at the place or jurisdiction in which
the marriage takes place, the laws prohibit the divorced
parties from marrying, and one of the contracting par-
ties comes within the prohibition, though being at the
time a resident of another state, and it being the intention
of the conti'acting parties to live in a different state from
that in which the mai'riage takes place, and they after the
marriage in fact take up their residence in such state
then the right of the parties are to be governed by the
laws of the latter, and the laws of the fomier can have no
extraterritorial jurisdiction. The penal laws of the state
are to be exercised only upon her own resident citizens at
the time of the violation of tlie law, and it cannot be said
to extend to persons who come within the prohibited con-

244; Taylor Succession, 39 La. Ann. Anno. Cas. 556; Johnson v. Com., 86

825; Johnson v. Com., 86 Ky. 122, Ky. 122, 5 S. W. 365, 9 A. S. R.

5 S. W. 365, 9 A. S. R. 209. 269; Slate v. Stewart, 194 Mo. 345,

22— State v. Cutchall, 110 N. C. 92 S. W. 878, 112 A. S. R. 529, 5

538, 15 S. E. 261, 16 L. R. A., Ann. Cas. 963 ; Succfls.sion of Joseph

130; State v. Kay, 151 N. C. 710, 66 liriiiaiidcH, 24 L. R. A. 831, 46 La—

S. E. 204, 134 A. S. R. 1005, 19 ;in<l .•lutlioiilies cited by the court.

Bigamy 343

ditions, where a violation oi" tlie condition takes place in
another jurisdiction, unless the laws of the latter make
such acts penal. Consequently a marriage taking place
between parties, one of which comes within the prohibited
conditions will not be held for bigamy, if it takes place
out of the state of the prohibition. The penal acts of one
state have no operation in another state. They are strict-
ly local and affect nothing more than they can reach. ^^

§ 399. It is no defense to show that the former mar-
riage is voidable. It is a good defense to an indictment
for bigamy to show that the prior marriage was void, at
the time of the alleged bigamous marriage. It is not,
however, a good defense to show that the prior marriage
was merely voidable, unless it is further shown that it has
been properly set aside. ^^ If the party to the first mar-
riage was dead at the time of the subsequent marriage,
then this is a defense to an indictment. But the authori-
ties are conflicting whether a belief in good faith, that the
spouse of the first marriage is dead, is a good defense
The government is required to establish the validity of
the. former marriage, and that the former partner was
alive within the statutory period, and when that is proven
then the presumption is that he or she was living at the
time of the second. But if there is not direct proof of
the existence of the former partner, then the presump-
tion of life is offset by the presumption of innocence of
the defendant. A divorce is a defense if the same was a
valid one, and it is incumbent upon the defendant to
show that a valid decree had been granted. A mere belief
in good faith at the time of the second marriage that a

23 — Story's Conf. Laws, sec. 621, dissolved, by divorce, constitutes no

p. 841 ; Lebrenton v. Nouehet, 5 defense to a charge of bigamy. Peo-

Am. Dec. 736. pie v. Spoor, 235 111. 230, 85 N. E.

24— Proof that the second mar- 207, 126 A. S. E. 197. "Voidable

riage was entered into in good First Marriage," Baker v. People,

faith under honest and mistaken be- 203 111. 68 N. E. 93; Rex v. Ja-

lief that the first marriage had been cobs, 1 Moody, C. C. 140.

344

Criminal Law

divorce had been granted is not an absolute defense and
a certificate of the original judgment entry should be
produced, or other^vise proved, as the laws of the particu-
lar jurisdiction may require. Some authorities maintain
that a felonious intent is not a necessaiy ingredient of the
offense to be proven by the government, and others hold
to the contraiy. It is, however, the general rule that if a
statute prohibits the doing of specific acts, a sufficient in-
tent is shown when it is ascertained that the act has been
done, to constitute criminal liability. This is only par-
tiallv true, as to this offense. If the defendant knows at
the time of the second marriage that he has no right to
marrj^ — that he had another wife living at the time and
that he has not been divorced, the proof of these facts will
be sufficient to constitute the offense without any further
proof of intent, for these facts show the intent. There-
fore we take it that if the defendant offers as a defense
that he believed in good faith that his wife was dead, or
even if he thought that he had been divorced, the better
rule is to permit the reason for the belief to be submitted
to the jurj^ and if the defendant acted in good faith and
with honest belief that the partner of the former marriage
was dead, or that they had been divorced it would be suf-
ficient to warrant a juiy in acquitting.^

§ 399a. Contract of marriage must be solemnized.
The first marriage must have been made and solemnized
under the rules of law; differently stated, must in all re-

25— Squires v. State, 46 Ind. .350:
It was held that if the defendant
had made inquiry and did believe
that he had been divorced from his
wife, that it would be sufficient to
acquit. Put a contrary doctrine was
held in a MaHsachusetts case, and
also ill ;i Kentucky case; Com. v.
Nash, 7 Mete. (MaHs.) 472; Davis
V. Com., ].•{ liush. ;n8. Harris'
Criminal Law, pape 114, niaintaint;

that the question is settled, that an
honest belief, that the defendant
is freed from the first marriage,
either by death or by divorce, or
the like, will not inure to the de-
fendant's benefit. Contrary doc-
trine see Bex v. Brigga, 1 Denio, 4
I Jell its. See also the following
ca.sca: State v. Zeichfield, 23 Ncv.
:!04; 4C) Pac. 802; .Tones v. State,
(17 Ala. 84.

Bigamy 345

spects be legal. In order to base a prosecution for big-
amy, no such strictness is required in the subsequent mar-
riage, the criminal features of the defendant's acts are
shown by his agreeing to enter into a marriage state,
followed by some ceremony, or other validating act.'^^
Sexual relations is not an element of the second marriage.
The wrong seems to have been completed when the con-
tract of the second marriage is solemnized in some man-
ner known to the rules of law regulating marriages.
Subsequent enjoyments and pleasures of married life is
not an element.^'

26 — Nelms v. State, 84 Ga. 466, "It was not neGessary it should be

20 A. S. R. 377, and authorities shown that he had the two women,

cited. Johnson v. Com., 86 Ky. or either of them occupied the same

122, 9 Am. St. Rep. 269; State v. bed, or slept in the same room, or

Smiley, 98 Mo. 605. • that he had sexual intercourse with

27 — Canon v. United States, 116 either of them. ' ' See Cox v. State,

U. S. 55, 29 L. Ed. 561. A prosecu- 117 Ala. 103, 23 So. 806, 67 A. S. R.

tion under polygamy statute says: 166, 41 L. R. A. 760.

CHAPTER XXI

BRIBERY

§ 400. Defined and described.

§ 401. The crime as considered by
our ancestors.

§ 402. The thing accepted must have
some value.

§ 403. Offering and accepting, sub-
stantive crimes.

§ 404. Offering to bribe another to
eoiitrol vote.

§ 405. Candidate offering to fill of-
fice without compensation.

§ 406. The offering to bribe in the
nature of an attempted
crime.

§ 406a. Soliciting bribe.

§ 407. Common law embracery, bri-
berv under statute.

§ 400. Defined and described. Bribery is the receiv-
ing, or the offering any undue reward, by or to any person,
whose ordinary profession, or business relates to the ad-
ministration of public justice, in order to iuHuence liis
behavior in office, and incline him to act contrarj^ to the
known rules of honesty and integrity.^ Anyone who holds
a public oflice, or public trust and corruptly receives any
rewards or promises for the perfonnance or non-perform-
ance of any act, it is his duty to perform or not perform,
in the administration of the office or trust, is guilty of

1 — 3 Greenleaf Evidence, 71:
"Bribery is where a judge, or olher
person concerned in the administra-
tion of justice, takes an undue re-
ward to influence his beliavior in
office." 139 Harris' Cr. L. pp. 77-
78: "The corrupt treatment of one
intrusted with a public charge, to
influence him in the discharge of his
duty in that character." This au-
thor divides tlio ofTense into: (1)
Wlicrc some person concerned in the
adniini.straf ion of public justice, is
approaclicrl liy one briiining him a
reward, in order \<t influence his

conduct in ofEce. (2) Where some
person having it in liis power to
procure, or aid in procuring for
another a public place or appoint-
ment, is so a])proached. " Bishop:
"Bribery is the voluntary giving
or receiving of any thing of value
in corrupt i)aynient for an official
act done, or to be done." 2 Bishop
Or. L. 85. So it is a crime to take
and liencc it is a crime to give
one, for the offenses are reciprocal.
Sei- 3 Inst. 141, 1 Russell Cr. 154, 1
liawk. ]\ C. ch. 67.

;{4(J

Bribery

347

bribery. While it is bribery to accept, it is equally brib-
ery to offer a reward or promises — and that, too, whether
the bribe is accepted or not.^ At the common law the
offense was limited to officers connected with the admin-
istration of justice — equally whether the duty was of
a judicial or a ministerial character. For a judge to ac-
cept a bribe, a reward, or gift in consideration that he
would render a particular decision, judgment or ruling
was looked upon, as a very heinous offense, at certain
periods of our judicial histoiy, and wa^s punished by the
infliction of the death penalty, but by later statutes the
punishment was by fine and imprisonment.^

§ 401. The crime as considered by our ancestors.

There seems to be some confusion, as to how the ancients
considered the crimes. We find that it was regarded as a
very grave ciime, and we also find that it W8.s only con-
sidered as a misdemeanor, and we have drawn the conclu-
sion, from our investigation of the matter, that at the
common law, as adopted by us in this country, that it was
not considered a very grave offense, for it appears that as
late as the time of Lord Bacon the practice was general,
and that this great philosopher and jurist did not con-
sider it dishonorable to take rewards for favors to liti-

2 — The crime of offering to bribe
is complete without the tender or
the production of money. The offer
being- sufficient with tender. Peo-
ple V. Ah Fook, 62 Cal. 493; U. S.
V. Warrell, 2 Dall. 384; which was
an offer by letter. See State v.
McDonald, 6 N. E. 607 (Ind.). For
a discussion of the offering of a
bribe, being a substantive of-
fense and independent of bribery
in accepting a bribe, see U. S. v.
Warrell, 2 Dall. 384; People v.
Bush, 4 Hill 133; State V. Keys, 8
Vt. 57; State v. Carpenter, 20 Vt. 9;
State V. Binbaset, 32 M. 276.

3 — In the case of Elles v. State,
33 N. J. L. 102, the court said:
' ' That the common law offense of
bribery, can only be predicated of
a reward given to a judge or other
official concerned in the administra-
tion of justice." The earlier text
writers thus defined the offense:
' ' Where any man in a judicial place
accept any fee or pension, robe or
livery, gift, reward or brokerage of
any person, that hath to do before
him in any way, for doing his of-
fice, or by color of his office, but
of the king only, unless it be meat
and drink and that of small value."

348

Criminal Law

gaiits. Ill an inferior officer it was only a misdemeanor,
but it appears that the higher judicial officers were pun-
ished at the will of the king, and might be a felony or
misdemeanor. Although it is said by Blackstone that one
person was hung for this crime, during the reign of Ed-
ward III, yet the history of the crime seems to indicate
that the giving and the accepting of bribes was openly
and notoriously winked at by the government. There is
one strange and interesting feature of the history of this
crime, which no doubt had a marked influence upon our
early common law. The Romans regarded the right to
give and to accept a bribe as a kind of prerogative, and
we learn that the Roman judge was at liberty to accept
a certain sum per annum as a bribe or largess in consid-
eration of favorable action in matters before him; al-
though the law put strong restrictions upon bribery in
general yet the government tacitly pennitted the ju-
diciary to accept rewards, as fees, not exceeding one hun-
dred crowns a year. In the light of the present civiliza-
tion, all honest, just and obsei'ving persons look upon
it as a very serious offense, and under our statutes is pun-

Later commentators, supported by
judicial cases, however, maintain
the broader doctrine, that any at-
tempt to influence an officer in the
discharge of his official conduct,
whetlicr in the legislative, executive
or judicial department of the gov-
ernment by the offer of a reward,
or a pecuniary consideration, is in-
dictable as a common law misde-
meanor.

In the case of Rex v. Vaughn the
defendant was charged with offering
money to the Duke of Graften, First
Lord of the Treasury for the pur-
pose of procuring his recommenda-
tion to the crown for an appoint-
ment to an office. Lord M.nisfield,
judge, s.'iid: "If these transactions
are believed to be frequent, it is time

to put a stop to them. A minister
entrusted by the king to recommend
fit persons to office would betray
that trust, and disappoint that con-
fidence, if he should secretly take a
liribo for that recommendation."
In the case of Rex v. Pliyuitom, 2
Lord Raymond 1377, the court holds
that it was an offense to bribe per-
sons to vote at elections for members
of a corporation. Many other cases
might be cited, in support of the
general proposition, as laid down by
the lat<n' text writers (above moii-
tioned). in deed the authorities
are all one way. Neither upon prin-
ciple or ;iulliority can the crime of
i(riJ)ery be confined to the acts to
corruj)! officers concerned in the ad-
niinistnition of justice.

Bribery 349

ished by confinement in the penitentiaiy. Bribery is es-
sentially a crime against the community — against the
government; in this it saps and diverts the very foun-
tains of justice. The primaiy object of all law is to insure
justice, and to equalize the burdens to all as near as may
be, and where any department of the public service is cor-
ruptly influenced, whereby the object of the law is
thwarted, the corrupters should be severely punished.

§ 402. The thing accepted must have some value.
There must be some reward or the hope of reward, which
causes the action of the officer. The keeping and main-
taining an open house for the entertainment of legisla-
tors, while the legislature is in session, does not constitute
bribeiy, although of an insinuating nature, is too remote
to predicate the crime.* Betting with another that he
will not vote for a certain candidate for office, in order
thereby to induce him to vote contrary to his original
intent, is bribery.^ So, the offering of food or drink to
voters for the purpose of influencing them to cast their
vote for particular candidates, in particular measures, is
bribery. The thing done, or offered must be of such a
nature, as to influence or have the natural tendency to
influence another in a public duty.^

§ 403. Offering" and accepting bribe, substantive crime.
We have incidentally mentioned in a preceding section
that one who offers the bribe is equally guilty with the
acceptor, and is even guilty if the bribe is not accepted.
This contention involves two propositions. 1. That he

4 — Eandell v. Evening News Assn., 182 Mo. 391, 81 S. W. 857, 103 A.

97 Mich. 136, 56 N. W. 361. S. R. 646. Allegation of value.

5 — Eoscoe's Cr. Ev. 321; People State v. Howard, 66 Minn. 309, 68

V. Coffey, 161 Cal. 433, 119 Pax. N. W. 1096, 61 A. S. R. 403, 34

901, 39 L. R. A. (N. S.) 704; People L. R. A. 178.

V. Morhan, 64 Cal. 157, 30 Pac. 620, 6— Com. v. Colloglian, 2 Va. Cas.

49 Am. Rep. 700; State v. Woodard, 460.

350 Criminal Law

who offers a bribe is guilty of the attempted crime.'''
2, That to offer the bribe is an independent and substan-
tive crime.* Each of these theories have their advocates,
which in reality are but two different roads leading to the
same point. It is agreed, it appears, upon all hands, that
in either case the crime is but a misdemeanor at the com-
mon law, and that the punishment in the one case would
be no greater than in the other. It appears to be clear
at the common law, that the mere offer to bribe was pun-
ished, whether there was an acceptance or not,® and it has
been also adjudged, that if an officer proposes to accept
a bribe, that the party acceding to such is not guilty, for
in order for him to be guilty, it is necessary that the offer
or the giving was done with the corrupt intention of in-
fluencing the action.*" The weight as well as the pre-
ponderance of the authorities sustains the proposition
that an offer of a bribe is a substantive and an independ-
ent crime.

§ 404. Offering to bribe another to control his vote.

The offer to bribe another in order to control his vote as
an elector, has been held to come within the meaning of
"Bribery" as a common law offense. The definition of
the old text-writers confines the offering to and the ac-
cepting by those officers concerned with the administra-
tion of justice. But the fundamental principle underlying
the crime is the tendency to corruptly inlhience another in
the perfonnance of a duty he owes to the public or which
may affect the pnl)lic welfare. Therefore, every citizen
owes the duty to the public, that as an elector, he will let
his vote represent his lionest convictions." So if the voter

7— .state V. ?:ilis, 3;i N. .1. I.. 1(12, 10— O'Briiin v. Stnti^ 7 Tex. App.

\)7 Am. Dec. 7i:<, note. 188.

8— U. S. V. W.-irrell, 2 J):ill .■!84 ; 11— Com. v. Mclliile, !)7 Penn St.

lVo|)l(! V. HiihIi, 1 J I ill l.!.!; State :>\7; .!!• Am. Kep. 808. The courf

V. Keys, 8 Vt. 57. say.s: "We are of the oi)inion that

n — See iiot^' to Stall' v. KIlis, !)7 all siieh eriiiieH, as ad'ee.t speeially

Am. Dee. 71.!, 113 N. .J. 1.. 707. pulilie society are iiuiielable at the

Bribery

351

accepts the gift, then both parties are guilty.''^ Also
where an offer is made and accepted upon the promise
or condition that a certain thing be done, it is immate
rial that the promise is never complied with, by the
acceptor of the bribe. ^^ If the offer to bribe is made with
the corrupt intent to influence the action of the party to
whom it is made, no subsequent repentance or attempt
to cancel the contract or the offer will avail. ^*

§ 405. Candidate offering to fill the office if elected
without compensation. The rale now appears to be well
settled, that where a candidate makes a promise to
voters, that if elected, that he will perform the duties of
the office at a less salary than that allowed by law, will

coninion law. The test is not that
v;hether precedents can be found in
the books, but whether, they affect
the public policy or economy. It
needs no argument to show that the
acts charged in these indictments are
of this character. They are not
only offenses which affect society,
but they affect it in the gravest
manner. An offense against the
freedom and purity of the elections
is a crime against the nation. It
strikes at the foundation of repub-
lican institutions. Its tendency is
to pervert the expression of the will
of the people, in the choice of rulers,
and to weaken the public confidence
in elections. When this confidence
is once destroyed, the end of popu-
lar government is not distant.
Surely, if a woman 's tongue can so
far affect the good of society as to
demand her punishment as a com-
mon scold, the offense which involves
the right of a free people to choose
their own rulers, in the manner
pointed out by law, is not beneath
the dignity of the common law nor
beyond the power to punish. The

one is annoyance to a small portion
of the body public, the other shakes
the socia 1 fabric to its foundation. ' '
See State v. Jackson (Me.), 40
Am. Eep. 342; Com. v. Silsbee, 9
Mass. 417; Com. v. Hickey, 16 Mass.
385; Walsh v. People, 65 111. 58; 16
Am. Eep. 569; State v. Pendy, 36
Wis. 224; 17 Am. Rep. 485; State
v. Collins, 72 Mo. 13; People v.
Thornton, 25 Hun. 555.

12 — Greenl. sec. 72, and cases
cited.

13 — State V. Lehman, 182 Mo.
424, 81 S. W. 1118, 103 A. S. R.
689, 66 L. R. A. 400.

14 — We know of no express au-
thority for the proposition in the
text — that is no adjudicated bribery
case, where the exact doctrine has
been held. The same is, however,
in keeping with the general doctrine
of criminal intent — the act accom-
panied with evil or corrupt intent of
sufficient magnitude is sufficient to
constitute a crime. When these two
elements concur, no retrospection or
repentance will change the evil done.

352

Ceiminal, Law

invalidate his election.^^ This is a species of bribery,
and is in its nature, subversive of a wholesome public
economy, and involves a high degree of moral turpitude.
A vote given for a candidate for a public office, in consid-
eration of his promise, in case he shall be elected, to
donate a certain sum, or other valuable thing to a third
party, whether that party be an individual, a county or a
corporation, is void.^°

§ 406. Offering to bribe is in the nature of an attempt.

An offer to bribe, while in the general nature of an at-
tempt, has always been regarded as a substantive offense.
In this respect it is similar to the crime of assaults,
which are but attempts at a battery; the assault itself
being a substantive crime. Conspiracies are of the nature
of attempts, also, yet a conspiracy is a substantive of-
fense. All of these crimes are punished not because of the
attempt to commit some other crime, but because the acts
which constitute them are crimes. ^''^

§ 406a. Soliciting bribe. Upon the general principles
of the common law, solicitation to commit or to accept a
bribe, which falls short of an offer to bribe, in the sense
of that legal term, would not constitute a crime.

There appears, however, to be authorities both sup-
porting and opposing. In any event, the state speaking
through its law making body, could undoubtedly legally
make such reprehensible conduct a crime. The cases in
the note will give the opinions of the courts.^^

15 — State ex rel. Atty. Gen. v.
Collins, 72 Mo. 1.3, 37 Am. Rep. 417.

in — state ex rel. Newell v. Chirdy,
.36 Wis. 213, 17 Am. Rep. 485.

17— State V. Ellis, 33 N. J. L. 102,
97 Am. Doc. 707; Rex v. Vaughn,
4 Burr 2494; Rex v. Pallman, 2
Damp 229; People v. Markliarn, 64
Cal. 157; BurfieUl v. State, 14 Ala.
603; Stevens Dig, Cr. L. 126.

18— State V. Bowles, 70 Kan. 821,
69 L. R. A. 176; Walsh v. People,
65 111. 58, 16 Am. Dec 569; Ru-
dolph V. State, 128 Wis. 222, 107 N.
W. 467, 116 A. S. R, 32; People v.
Oivson, 191 N. Y. 227, 83 N. E.
976, 123 A. S. R. 597; People v.
.Taokson, 191 N. Y. 293, 84 N. E.
65, 14 Ann. Cas. 243, 15 L. R. A.
(N. S.) 1173.

Bribery 353

§ 407. Common law embracery bribery under statutes.
Embracery at the common law was where there was an at-
tempt to bribe a witness, or to influence a juror corruptly
to one side, by persuasion, promises, entreaties, money,
entertainments and the like. A person embracing was
punished by fine and imprisonment. The juror accepting
money for his decision in a cause in which he sat as a
juror, was punished by perpetual infamy, imprisonment
for a year, and a forfeiture of ten fold value. ^^ Both
the accepting and the offering the bribe were misde-
meanors. In the absence of statutes the common law
may be resorted to for the punishment of such action
against the administration of justice. This offense "Em-
bracery" has about become obsolete, for the statutes
of the several jurisdictions have covered the same com-
pletely. In the main the principles of the crime of brib-
ery control in this. It is just as reprehensible for one to
attempt corruptly to influence a juror or a witness, as it
is for one to corruptly influence the action and the judg-
ment of the judge. The administration of the law is
corrupted and becomes venal. The crime of bribery at
the common law by the then existing state and condition
of society seems to have been overlooked, and it is said
that at one time in the history of the English judiciary
that the crime was winked at, and the very best judges
accepted fees for decisions.

19— state V. Ellis, 33 N. J. L. E. 847. 32 L. R. A. 413; Welsh v.

102, 97 Am. Dec. 7oV, and note; People, 65 111. 58, 16 Am. Rep. 569;

Honeker v. Board of Education, 42 People v. Coffey, 161 Cal. 433, 119

W. Va. 170, 24 S. E. 544, 57 A. S. Pac. 901, 30 L. R. A. (N. S.) 704.

C. L.— 23

CHAPTER XXII

BUEGLARY

§ 408. Definition. § 413. Collusion with owner to catch

§ 409. Dwelling house defined. burglar.

§ 410. Common law, as to buildings § 414. Consent obtiiined by fraud or

enlarged. trick.

§ 411. Breaking defined. § 415. Entry.

§ 412. Entry, the house with the § 416. As to the intent.

consent of the owner, not § 417. As to the time.

burglary.

§ 408. Definition. Burglary is the breaking and enter-
ing the dwelling of another at night time, with the intent
to commit some felony therein, w^hether felonious in-
tent be executed or not.^ This is the common law defini-
tion. In some of the states, under the definitions thereof,
it is not necessaiy that the intent should be to commit a
felony. Breaking and entering the dw^elling house in
the daytime with the intent to commit a felony therein
in many of the states is burglary. The statutes of some
of the several jurisdictions divide the otfense into first
and second degrees, making some acts burglary, which
were not so at common law.^

OF THE DWELLING

§409. Defined. At the common law tlio building
})roiven into and entered must be a dwelling house. A
dwelling house is defined to l)e a house wliere some per-
son lives — his home — his li.ihiiation- — liis place of rcsi-

1 — 3 Inst. 63: "lie that in the felony witliiii llio samo, whether his

night time brcakctli ami ontcreth felonious intent be executed or not,

into the mansion house of another, 1 P. C. 549."

of intent to kill some reasonable 2 — Harris v. People, 44 Mich. 305.
preaturc, or to conunit some other

354

BUEGLARY 355

tlence. All houses in a common enclosure, used in con-
nection with the main dwelling of the family, are dwell-
ing houses within the meaning of the common law, and
this although the same may not be enclosed by a fence.
In the state of North Carolina it is held that a smoke
house is a part of the dwelling and a breaking and enter-
ing therein for the purpose of committing a felony is a
burglary. All houses used in connection with the living
house — the house where the family stay, sleep and the
like; such as bed rooms, in the same building with the
family, also all kitchens, smoke houses, wood sheds, or
shop where the same is connected with the living house,
come within the definition of a dwelling house. This
offense, at the common law, was created for the purpose,
of giving a greater security, to the privacy of the home,
and consisted more in the trespass against the habita-
tion than against the property of the occupant, but
under modem conditions, the necessity has arisen for the
purpose of protecting property. The common law, by
statutory provisions has been extended so as to reach al-
most all character of buildings in which valuable prop-
erty is stored. And by judicial construction and ex-
tension of the common law the term ''dwelling house"
has been made to cover all character of houses, which are
in any way connected with the habitation whether they
be out houses, barns, stables, smoke houses, dining-rooms,
laundry rooms, buildings used partly for living purposes
and partly for business, under the same common roof or
contiguous thereto; rooms where persons sleep, but do
not otherwise reside therein, as in hotels, rooms cut off
of a business house for sleeping purposes, and the like.
So, also the rooms occupied by tenants, in tenement
houses, where there is one common opening, to the main
building, the apartments occupied by each person or fam-
ily is a dwelling house. A law should be construed, in
accordance wdth the conditions under which it is sought
to be made applicable, that is in reference to the habits

356 Criminal Law

and customs of the people for whom it is made. At the
common law, the crime of burglary was confined to the
common inclosure of the ''dwelling house" or "manse"
or "curtilage." At the time the crime grew into exist-
ence it was the custom for the people to surround their
places of abode with some kind of impregnable barriers,
which became necessaiy to protect their homes and their
families from the intrusion of strangers, and hence, fam-
ily, servants, cattle, and doi:nestic animals were kept in
the same common enclosure, so the breaking and enter-
ing any of the houses maintained in this enclosure was
a trespass upon the privacy of the family, whether in
the immediate part occupied by it or not. But at the time
we live a very different condition exists as to the customs
and habits of the people over which the rule of the com-
mon law is to be extended. In the rural districts the
dwelling house immediately occupied by the family is en-
closed by a fence, with the purpose of beautifying, rather
than for protection, and especially from strangers. And
in the large centers of population the enclosure has disap-
peared altogether. Hence the original reason for the
definition of a dwelling house does not now exist, and
the courts have in many instances extended the common
law so as to cover many buildings which according to
the common law would not come within the purview of
burglary.^

§ 410. Common law, as to the building enlarged by
statute, hi the absence of constitutional, or legislative
provisions clianging tlie common law, or modifying it, the

3 — See following authorities which v. .lenkins, 50 N. C. 430; State v.

will ho sudiciont for the investigator I);in, 18 Nov. .345; St.Ttc v. Wil-

to satisfy hiiiisclf from his own re- lianis, 21 S. E. 721; Mitchol v. Com.,

search. Quinn v. People, 27 Am. 88 Ky. 349; Ilnhn v. State, 83 N.

Rep. 87; lloiliHlcr v. Com., 60 Pa. VV. 674; Ciirkcndo! v. People, 36

St. 103; Fuller v. State, 02 Miss. .Mich. 309, 4 Hla. 225; Kex. v. Gib-

48; J'itchcr v. People, 16 Mich. 142; bon, 2 ilast P. C. 508.
State V. Weber, 56 S. W. 893; State

Burglary 357

common law will govern in the prosecution of this offense.

It is to be supposed that all the states of the American
Union have enlarged the common law, as to the character
of the buildings which may be burglariously broken and
entered. Where the common law has been changed, the
statute must be followed.

This offense is committed only by the existence of five
concurring elements: First, there must be a dwelling-
house. This being the provision of the common law, but
as provided by statute, as shown in the preceding sec-
tion, this is made to apply not only to the dwelling and
appurtenances and curtilages, but to almost every kind
of buildings. Second, there must be a breaking of the
dwelling or building. This breaking must be by force,
that is force implied, if not actual. Third, there must be
an entry into the dwelling house. Fourth, the breaking
or the entry must be made in the night time. Fifth, no
burglary is committed except upon the concurring intent
to commit some felony in the dwelling. All of these
five elements must exist and concur. It is not necessary,
however, that all of these exist at the same instant of time,
but the breaking and entry and the intent to commit a
felony must accompany each other in continuous se-
quence. Entry implies force, it may be the entry of the
entire body, or a part, or by the employment of some
inanimate instrument under the control of the pei'petra-
tor. Whatever may have been the early conceptions of
the crime, the law undoubtedly now is, that the intent to
commit a felony is sufficient, accompanied with concur-
rent breaking and entry.^ It is not necessary that the
felony be actually committed.

OF THE BREAKING

§ 411. Defined. At the common law a breaking was
essential to make the offense. Thus the entering the

5— See full note "2," Am. &
Eng. Enc. L., page 667-8.

358 Criminal Law

dwelling house of another without fraud, or with the con-
sent of the owner, and even the breaking without the in-
tent to commit some felony therein would not constitute
the crime. It is sufficient to open a door when closed,
whether locked or not; the lifting the latch of an outer
door; pushing a door open though unlocked; breaking
a glass in a window; a board or plank from the building;
breaking a glass in the window and thrusting the hand
through the opening; or any other means whereby the
house is broken, is a sufficient breaking. So, also, the
breaking need not always be an actual forcible breaking,
but it may be constructive. Thus as making a previous
arrangement, with one lawfully within the house, to let
the accused in the inside, by leaving the outer doors or
gates, windows and the like open, for his free passage. If
the consent is given by the owner or the legal occupant,
there is no burglarious breaking. Any fraud jDerpetrated
upon the owner, whereby the accused secures an en-
trance, is a breaking in contemplation of the law. The
law neither in civil or criminal jurisprudence recog-
nizes deception or dishonesty. He who demands justice
must first do justice. Hence, he who obtains the con-
sent of the owner to enter his house by any dishonest
means, cannot claim his exemption from liability for a
felony committed by him therein. He who enters the
house in the daytune and conceals himself therein until
night and commits a felony is guilty of burglary. Entering
the mouth of a chimney is a breaking; as so is the enter-
ing through a door which always stands open, for the pur-
pose of breaking and entering an adjoining room.*^ But

6—3 Inst. C4, 1 Hale P. C. 552; State, 34 Ohio St. I^op. 426, 32

Kcx V. Russell, 1 Mood C. C. 377, Am. Hop. 376; Furfjuson v. State,

4 Bla. 226; Rex v. Jolinson, 2 East r,2 Nob. 432, 72 N. W. 590, 66 A.

P. C. 488; State v. Rcid, 20 la. S. R. 512; State v. Viorck, 23 S. D.

413; M.'irtin v. State, 1 Tex. App. 166, 120 N. W. 1098, 139 A. S. B.

.525; People v. VVliite, 1.53 Mifli. 617, Id 10, and note.

117 N. W. 161, 15 Ann. Can. 027, 17 • No attempt to cite authorities for

\j. R. A. (N. S.) 1102; Timmons v. each of the various circumstance*

Burglary 359

where one is legally in the liouse is not guilty where he
forcibly breaks and enters trunks, drawers, chests, and
the like; nor is the breaking the outer gate leading to the
main house a breaking. Anciently it appears to have
been a burglarious entiy to have entered a city by break-
ing the outer walls for the pui'pose of committing a fel-
ony therein.'

§ 412. Entering the house with the consent of the
owner is not burglary. The breaking must be some part
of the building, which leads into the main building in
which the felony is to be conmiitted. There must not
be any intervening space between the place of entry and
the main building, not connected by a common and con-
tiguous roofing or walls, if the purpose be to commit a
felony in a remote apartment.*

As we have already said, entering the house with the
owner's consent and then afterwards committing a fel-
ony is not burglary, but the party is guilty of the felony
actually committed. Where the proprietor of the house
receives infomiation that a burglary is to be attempted
brings other persons into the house for the purpose of
detecting the accused in the act does not affect the guilt
of the perpetrator.^ So, where one conceals himself in
a chest for the purpose of robbing the express car, it is
a sufficient breaking and entry into the car to constitute
burglaiy.

under which a breaking may be 156, 30 Am. Eep. 126; Johnson v.

made, or set forth in the text has State, 3 Tex. App. 590; State v.

been made, A citation of a few Abbey, 109 la. 61, 80 N. W. 225,

cases showing the meaning of the 77 A. S. R. 520, 46 L. R. A. 862;

term, "breaking," being considered Robertson v. State, 34 Tex. Court

sufficient. Apps. 71, 29 S. W. 40, 53 A. S. R.

7—1 Hawks. 139 ; 4 Bla. 245. 701 ; State v. Stickney, 53 Kan. 308,

8— Martin v. State, 1 Tex. App. 36 Pac. 714, 42 A. S. R. 284; State

525, 2 Russ on Crs. 9 Ed. Tit. Bur- v. Currie, 13 N. D. 655, 102 N. W.

glary. People v. McCloskey, 5 875, 112 A. S. R. 687, 69 L. R. A.

Park (N. Y.) 63. 405.
9 — Spirden v. State, 3 Tex. App.

360 Criminal Law

§ 413. Collusion to catch burglar. Where, therefore,
there is a collusion of the owner of the premises and
some other person, whereby it is arranged that the said
person shall pretend in good faith to be the accomplice,
and aid the accused in the breaking and entering into the
premises, for the purpose of apprehending him in the act,
and he does so, this is not a breaking and entiy, for the
reason, that ^® the act has been with the consent of the
owner or the person occupjdng the premises. Thus, where
the accused obtains the consent of the owner through
some kind of subterfuge, for the purpose of entering the
building in order to commit some felony, this is not such
a consent as will benefit the accused. As, where parties
intending to rob raise a hue and cry, whereby the con-
stable is induced to go with them to a house, and the
proprietor opens the door, and entry is made and the
constable is overpowered and the house is robbed by
thom, this is burglary. The consent being obtained
by fraud, this is no consent in law, and the entrance by
such means is a constructive breaking and entrance."

§ 414. Consent obtained by fraud or trick is sufficient.
Therefore, as we have seen the consent of the occupant
to the entiy of the accused to the house is a defense to
the charge of burglaiy, although the intent existed to
commit the crime before the entiy. This consent though
must not be obtained by fraud, subterfuge or intimida-
tion, for we have seen this would be no consent in law.
Nor would the consent given by an agent or sen\ant be
such a consent as would relieve the act of its l)urglnrious
'character, unless the agent or servant had authority,

10 — Roberts v. Territory, 8 Okla. 11 — Com. v. Lowcry, 158 Mass.

326, 57 Pac. 840; Rpoiden v. State, 18; Sumner v. State, 9 Tex. App.

.1 Tex. App. 178, 30 Am. Kep. 126; 3!)r); State v. .Jolinson, 93 Am. Doc.

Thompson v. State, 81 Am. Dec. 364, 587; .Johnson v. Com., 27 Am. Rep.

18 Ind. 386; Slate v. Stickney, 53 622; Timmons v. State, 34 Ohio St.

Kan. 308, 42 A. S. R. 284; Allen v. 426, 32 Am. Rep. 376; Nichols v.

State, 91 Am. Dec. 477, 40 Ala. 384. State, 32 N. W. 543.

Burglary 361

either express or implied, by virtue of the employment
to give consent. If, from the nature of the employment
it could be gathered, that the consent of the agent is the
consent of the occupant, then it would be a defense. ^^ So,
also, the wife of the occupant may be regarded as the
agent, possessing sufficient authority by reason of the
relations existing between her and the husband, to give
consent, where there is no collusion between her and the
accused for some unlawful purpose. ^^ So, again, the en-
try may be by fraud, as where the entry is made through
an opening not usually used for the purpose of entry, as
where the accused enters through an opening in the sec-
ond story of building and the same is reached by a lad-
der; ^* or the entrance through a hole left under a mill;
or an opening in a crib used for throwing in corn, hay
and the like.^^ Nor has one the right to enter into the
house of the occupant, simply because of his employment
as a servant, unless the right follows from the nature of
the employment. -^^

§ 415. Of the entry. Before a conviction can be had
for a burglary an entry must be proven. A breaking
without an entry is not sufficient.^'' Thus, where the ac-
cused breaks the door and the proprietor throws his
money to him on the outside, this is not burglary. An
entry is sufficient if the goods are withdrawn by thrust-
ing the hand in the opening, or with a stick or any other
means an attempt is made to coromit the felony. Thus,
to thmst a gun through an opening made for the pur-

12— state V. Abbey, 109 Iowa 16— Hild v. State, 67 Ala, 69;

61, 80 N. W 225, 77 A. S. E. 520. Morrow v. State (Tex.), 25 S. W.

13— Forsythe v. State, 6 Ohio St. 284.

19. 17— Walker v. State, 63 Ala. 49,

14 — Eodgers v. State, 43 Tex. 406; 35 Am. Eep. 1; Gaddie v. Com., 117

Knotts V. State (Tex.), 32 S. W. Ky. 468, 78 S. W. 162, 111 A. S.

532. E. 259; State v. Hayes, 105 Mo. 76,

15— Painter v. State (Tex.), 9 S. 24 A. S. E. 360.
W. 774.

362 Criminal Law

pose of committing a felony therein, is an entiy. The
entiy need not immediately follow the breaking, but as
pre\dously mentioned, the breaking and the entiy must
accompany the intent and each other in continuous se-
quence.^® The breaking and the entry may accompany
each other as simultaneous acts, being combined together,
as the breaking may be committed in the daytime and the
entry at night, or the breaking made in the night time and
entry in daytime.

§ 416. As to the intent. At common law, there must
be a felonious intent to commit a felony in the dwelling-
house — an inhabited house. The intent to commit any
felony is at common law sufficient, but it is not mate-
rial that the felony in fact be consummated; a break-
ing and entrj^ is sufficient. Breaking and entering a
dwelling-house for the purpose of indulging in adulter-
ous intercourse, is not burglary for the reason that adul-
tery at common law was not a crime, not even a misde-
meanor. Under the statutes of the United States adul-
teiy is a felony.^^ The intent is to be gathered from all
the circumstances of the case, such as discovering the
goods stolen in the possession of the accused. The dis-
covery of burglar's tools in the possession of the accused,
has more or less probative force. There is some diversity
of opinion whether one commits burglaiy by entering a
house witli the pui7)ose of committing a felony therein,
fails of the accomplishment of his object, because he finds
nothing upon wliicli to commit the felony, he intended. ^°
Breaking and entiy under some claim of right to the prop-
erty therein is not burglary, nor would it be if the prop-
is— The following casofl tnkon McN.-iir v. Stntc, 53 Ala. 4.'53;
from note. People v. Richards, 2 Mitchcl v. State (Tex,), 24 S. W,
A. S. R., note, page 388; Com. v. 280.

Glover, HI Mass. 39."). 20— State v, Ryan, 12 Nev. 401;

19— Slnlc V. Cooper, 16 Vt. .'551; McConrI v. Pcoplo, G4 N. Y. 583.

Burglary

363

erty sought to be stolen was of such a nature that larceny
could not be committed thereof .'^^

§ 417. At the common law the breaking- and entry must
be at night time. But as we have seen in another page,
the accused might commit the offense by concealing him-
self in the house in the daytime, with the intention to
commit a felony therein in the nighttime. It is not essen-
tial that the intended felony be committed, so if the entry
and the breaking was in the night time the felony in-
tended may be committed in the daytime.

At the common law the night began one hour after
sundown and continued for one hour before sunrise. It
is, perhaps, more correct to say that if there was suffi-
cient light to discern a man's face it was not considered
night.^^ Under the various statutes the crime may be
committed in the daytime. The time in which the crime
may be committed is defined by statute usually.

21— state V. Lymus, 26 Ohio St.
400; State v. Bullett, 64 N. J. L.
379.

22— Williams v. State, 46 Ga.
212; Wood v. State, 46 Ga. 322;
HoUister v. Com., 60 Pa. St, 103;
State V. Leaden, 35 Conn. 515;
Thomas v. State, 6 Miss. 20; State
V. Seymore, 36 Me. 225; State v.
Ruby, 61 la. 86; People v. Targart,
43 Cal. 81. The night time, con-
templated according to this author-

ity did not define night time as one
hour after sunset and one hour be-
fore sunrise, but fixed it at such
time as there was not sufficient
light to discern a man's face; but
this did not extend to moon light,
or any artificial light, except light
caused by the sun, Klieforth v.
State, 88 Wis. 163, 43 A. S. R.
875, and note. Michaels v. State,
68 Wis. 416, 60 Am. Rep. 870.

CHAPTER XXni

CONSPIRACIES

418.

Conspiracy is not an attempt
to commit a crime.

§432.

419.

Conspiracies, as to acts in-
dictable per se.

§433.

419a
420.

.. No strict rule constituting.
Are substantive offenses.

§434.

421.

Conspiracies merged into the

§435.

consummated offense.

§436.

422.

Defined.

§437.

423.

Mere willingness and the in-

tent do not constitute.

§ 438.

424.

Conspiracies to defraud an-

other of his property.

§439.

425.

Partners may be guilty of

conspiracy.

§440.

426.

Some other circumstances, the

offense may be committed.

§441.

427.

To satisfy ill-will.

428.

Agreements to commit acta

§442.

of immorality, conspiracies.

§ 443.

429.

To defeat public justice.

430.

Of and concerning the wages
of workingmen.

§444.

431.

A boycott is an unlawful con-
spiracy.

Skill of the workingman and

labor is capital.
Combination of dealers to

lower or to raise prices is.
Combinations to effect legal

ends by illegal means, is.
Allegation of indictment.
Same continued.
Illegal acts by illegal means,

indictment.
Allegations where the crime

has been consummated.
Rule as to principals and ac-
cessories.
Where there are two persons

to the unlawful agreement.
Where the minds are inflamed

by speeches.
Acts and declarations.
Agreements made before or

after consummation.
Making a prima facie case of

conspiracy, old rule.

§ 418. Conspiracy is not an attempt to commit a crime.
We have stated in another chapter that tlie olTense of
conspiracy, is an exception to the general rule, that a mere
intent to commit a crime, is not criminal.^ Some writers
claim that coiispiracios are a species of attempts. In this

1— State V. Young, 12 N. C. 357,
17 Am. Dec. 571 ; Crump v. Com.,
54 Va. 927, 8. K. 620, 10 A. S. R.
805; State v. Stuart, 59 Vt. 273, 9
Atl. 550, 59 Am. Rep. 710. Foreign
inHurnnco companios doing businoHS
ill ;i Htafu c^'Miiiot conspire or agree

together to withdraw from the state
in a body and cancel Iheir policies
to the dctriiiiont of the laws under
wliicli tlii\v are doing business.
Slate V. Assurance Co., 251 Mo.
27H, 158 S. W. 610, 16 L. R. A. (N.
S.) 95.1.

oG-i

Conspiracies

365

reasoning there seems to be an inconsistency. A mere
intent to commit a crime coupled with an overt act to
commit it is the gist of the attempt. An attempt can be
perpetrated by a single individual, or by many in conjunc-
tion. But a conspiracy is the corrupt intent, coupled with
an agreement to commit a crime or do a lawful act by
criminal means, by two or more persons. The intent and
agreement of two or more persons is the gravamen of this
offense and the crime is complete when the intent and
agreement of two or more persons concur. In an attempt
the overt act is the essential element of the offense, hence
we conclude that a conspiracy to commit a crime is not
an attempt to commit it. An unlawful intent in the
absence of an overt act is not an attempt to commit a
crime. But an unlawful intent by two or more in the
absence of an overt act is criminal when such intent is
held in common. A conspiracy in a criminal sense is an
independent and substantive offense, as much so as
murder, rape or robbery and has independent and partic-
ular elements. At the common law a conspiracy did not
require an overt act, but by statutes in many of the states
an overt act or attempt to carry out the purpose of the
unlawful agreement must be proved independently.^
Where such is the case a conspiracy may be an attempt
to commit an offense and for legal reasons conspiracy
might be formed having for its object the attempt.

""§ 419. Conspiracies as to acts indictable per se. It

seems that no comprehensive definition can be given to in-

2— People V. Strauch, 240 111. 60,
88 N. E. 155, 130 A. S. E. 255;
Knight V. Miller, 772 Ind. 27, 87 N.
E. 523, 18 Aim. Cas. 1146; Frank-
lin Union No. 4 v. People, 220 111.
77 N. E. 176, 110 A. S. E. 248, 4
L. E. A. (N. S.) 1001; Ware v.
United States, 154 Fed. 577; 84 C.
C. A. 503, 12 Ann. Cas. 233, 12 L, E.
A. (N. S.) 1053; Garland v. State,

112 Md. 83, 75 Atl. 631, 21 Ann.
Cas. 28; People v. Flack, 125 N. Y.
324, 26 N. E. 267, 11 L. E. A. 807;
Dill V. State, 35 Tex. App. 241, 33
S. W. 126, 60 S. W. 126, 60 A. S. E.
37, note; State v. Stewart, 50 Vt.
273, 9 Atl. 550, 50 Am. Eep, 710;
Randall v. Londorf, 126 Wis. 147,
105 N. W. 5, Ann. Cas. 371, 3 L. E.
A. (N. S.) 470.

366 Criminal Law

elude in general terms, all cases of conspiracy. Many acts
committed by tlie joint agreement and efforts of two or
more persons might be with unlawful means and yet not
criminal. There can be no doubt, when the object is to
<?ommit some crime or some act indictable per se. Prac-
tically, however, the question presents some difficulty
when the object is to commit some act not in itself in-
dictable or to do some legal act with illegal means. Gen-
erally we may say all those agreements by two or more
persons by concerted action to commit a crime ; to do any
act the tendency of which is to prejudice the public or
disturb the public peace; to do an act the tendency of
which is to subvert, retard or cause the miscarriage of
public justice; to do acts in restraint of trade or which
impede or destroy or tend to destroy competition in trade;
to coerce or oppress an individual in the lawful exercise
of any right by threats, intimidations or violence; to do
acts that will prejudice the public health or the health
of an individual; to do acts the tendency of which is to
corrupt public morals or to do that which affects the pub-
lic weal injuriously, are criminal conspiracies.^

§ 419a. No strict rule constituting, in the luize of the
ancient common law, it is doul)t fully announced that crim-
inal conspiracies did not exist, except where the consi^ir-
ators contemplated the ultimate connnissioii of a ciinio —
however, this may be, the principle has so exi)andod that
it covers nearly eveiy phase of agreements which have for
their ultimate result an injury to the individual or the
public, it is, ill reality, the malignity of the minds and

;j— U. S. V. Gol(ll)L«rK, 7 liiss. 175; liiddlc, 12 Minn. 1G4; Spies v.

4 LawHon's criminal defenses 5(55; I'odple, [] Am. St. Hep. 1520; 122 111.

Com. V. Hunt, 4 Met. Ill; 38 Am. 1; Stale v. Ohio R. 11. Co., 23 Ind.

Dec. 346; St«tc v. Williams, 30 363; Beal v. State, If) Ind. 378;

Conn, rm; .Jolinson v. Stale, 26 N. Kst^-a v. Carter, 10 Iowa 400; Stale

J. L. 3i:{; llnit^'d Stales v. Mun- v. Howhy, 12 Conn. 101; Ilaync v.

8cher, 7 Biss. 400; State v. Norton, Com., 23 Pa, St. 3.')4 and 368; Slo-

26 N. .1. L. ."'.3 and 34; State v. in.r v. I'coi.le, 2.") 111. 70.

Conspiracies 367

motives of the conspirators, which determine the crimi-
nality. It is the wrong embedded in the contemplated act.
The individual may harbor an intent to do a criminal act,
but no haiTQ can come of this, until he makes the attempt,
or actually commits the act. There are a few offenses
which can be committed only by the conjoint acts of the
participants; such as dueling, incest, bigamy, sodomy,
adultery, and fornication, and the like. But, the contem-
plated act is the ultimate crime, and the act of the
immediate participants is essential to the wrong; if, how-
ever, two or more persons agree to aid in any of the crimes
of this character, the ultimate end being to violate the
law, such agreements constitute the conspiracy. It is im-
possible to determine by a strict rule, what acts will
constitute a criminal conspiracy. Conditions, and the sen-
timents of the people, will deteraiine to a great extent, the
comparative wrong in any given case ; for there is no well
defined standard by which the wrong may be estimated.
This standard was furnished by the common law, where
the agreement was to commit a crime. But the recent de-
velopments in commerce, and the relative rights of indi-
viduals have made many such act reprehensible, because
of the tendency to injure the individual, as well as to
corrupt the community. The enormity of any act or
series of acts, is dependent upon the existing conditions
of society, and upon the individual views of the courts
and judges in many instances.

§ 420. Conspiracies are substantive offenses. A con-
spiracy is a substantive offense at common law, and is
complete whenever the corrupt agreement is complete.
When the consunnnated offense is either a misdemeanor
or felony the conspiracy is punished as a misdemeanor.*

4 — State V. Murray, 15 Me. 100 ; that it is supposed that a conspiracy

Com. V. Gillespie, 7 Serg. & E. 469, to commit a crime is merged when

10 Am. Dec. 475; People v. Mat- the conspiracy is executed. This

thew, 4 Wend. 265; 21 Am. Dec. may be true when the crime is of a

122. In this case the court says higher grade than the conspiracy and

368

Ckiminal Law

To complete this offense it is not required that any act be
done toward canying into effect the agTeement.^ It is
not required that any person or the public be wronged
or injured. The offense is the unlawful and wicked de-
sign to do something that will injure someone, or the
public; to oppress, coerce, or deprive some one or the
public of some right, privilege or immunity. The con-
spiracy is one thing and the consummation of the agree-
ment is another.^ Proof of the conspiracy is complete
when it is shown that the agreement and combination
has been entered into."'^

§ 421. Conspiracy is merged into the consummated of-
fense. When the object of the conspiracy is to perpe-
trate a felony the conspiracy is merged into the higher
offense. This is only true when the object of the con-
spiracy is consummated. If the object is to commit a mis-
demeanor, or if the result of the conspiracy amounts to
a misdemeanor, then there is no merger.® The mere com-
bination and agTeement is of itself a misdemeanor, and
where two crimes are of the same grade, there can be no

the object of the conspiracy is fully
accomplished. But a conspiracy is
only a misdemeanor and wlion its
object is only to commit a misde-
meanor when two crime arc of
(•(|nal grade Ihere can be no legal
t ••clinical merger.

5 — U. S. V. Donan, 11 Blelcb
1G8; State v. Cawood, 2nd Stew.
.iGO; Dill V. State, 35 Tex. App. 240,
[\:'j 8. W. 12G, 60 A. S. R. 37; People
V. IJichard.s, 1 Mich. 216, 51 Am.
Dec. 75, and note 82; Ware v. U. S.
154, Fed. 577, 84 C. C. A. 503, 12
Ann. Cas. 2.13, 12 L. R. A. (N. S.)
1053; suite v. Sitter, 57 Conn. 461,
18 Atl. 782. H A. S. R. 121.

6 — Lanninghani v. State, 49 Ind.
186; State v. Hlackman, 5 Har. &
J. 317; Alderman v. People, 4 Midi.

414; Isaacs v. State, 48 Miss. 234;
State V. Strow, 42 N. H. 392; State
V. Ritihie, 9 N. J. L. 293.

7— King V. Gill, 2 Barn & Old.
204 .lohnson v. State, 3 Tex. App.
590; State v. Noyes, 25 Vt. 415;
Hi'ina v. Com. 91 Pa. St. 145; Com.
V. McKisson, 8 Serg. & R. 420 ; Com.
V. Bliss, 12 Phila. 580.

8— State V. Noyes, 25 Vt. 415,
421; State v. Maybcrry, 48 Mo. 218;
Klkins V. People, 28 N. Y. 177;
Com. V. Kinglicrry, 5 Mass. 105;
People V. Richards, 1 Mich. 216;
same 51 Am. Dec. 75; Com. v. Good-
line, 2 Mel. 193; El.sey v. State, 47
Ark. 572; Iloyt v. People, 140 111.
588, 30 N, E. 315, 16 L. R. A. 239.
Crimes of equal grade no merger.

Conspiracies

369

merger in a legal sense.® If the design is to perpetrate
a murder, and murder is committed, or any felonious
offense growing out of it as the probable and natural
consequences of such conspiracy, then the lesser crime,
the conspiracy, is merged into the higher. The rule an-
nounced here is denied by respectable authorities, but
the weight of authority and reason clearly establish the
correctness and justness of the doctrine.^*' All the mem-
bers of a conspiracy are guilty as principals or are at
least punished equally. No salutaiy object could be ef-
fected bj^ convicting the conspirators for both offenses.
All those who enter into agreements and confederate to-
gether for the pui-pose of committing some illegal act,
each is responsible for the acts of the other, if done in
furtherance of the common design. All are guilty and it
can make no difference where one takes no part in the
actual commission of the crime, if he agreed to and in-
tentionally entered into the conspiracy.^^

§ 422. Conspiracy, definition, description, etc. A con-
spiracy cannot be accomplished by one person. Nor in
those cases, where from their nature, it requires two
persons to commit the offense. ^^ A husband and wife can-
not be convicted of a conspiracy, because in legal contem-
plation they are one — to the extent at least, that the act of
the wife is supposed to be the act of the husband. In legal

9— state V. Murphy, 6 Ala. 765;
41 Am. Dec. 79; People v. Richards,
1 Mich. 216; U. S. v. Martin, 4
Cliff. 156; Com. v. Walker, 108
100; People v. Mather, 4 Wend.
(N. Y.) 215, 21 Am. Dee. 122;
State V. Sitter, 57 Conn. 461, 18 Atl.
782, 14 A. S. E. 121.

10~Johnson v. State, 29 N. J. L.
453.

11— Spies V. People, 122 111. 1, 3
Mass. 309; State v. Muney, 15 Me.

C. L.— 24

A. S. R. 320. In this case the doc-
trine of the text is fully and amply
discussed.

12— Miles V. State, 58 Ala. 390;
Shannon v. Com., 14 Pa. St. 226;
Harris v. Com., 113 Va. 746, 73 S.
E. 561, 38 L. R. A. (N. S.) 458.
This case also holds that the combi-
nation of assurance companies to
regulate rates is not a crime of con-
spiracy. People V. Richards, 67 Cal.
412, 7 Pac. 828, 56 Am. Rep. 716.

370

Criminal Law

language the wife is presumed to be under the coercion
and restraint of the husband.^^ Nor would an agree-
ment between two persons, one of which, is lunatic, non
compos mentis or under the age of discretion, constitute
a conspiracy, for the very evident reason such parties
are incapable of forming a criminal intent. The con-
spiracy to accomplish the unlawful design, must be in-
tentionally and corruptly formed. An agreement to share
in the booty or the fruits of a crime, made after the
execution of the conspiratous design, will not make such
parties agreeing, guilty as a conspirator.

§ 423. The mere willingness, and intent does not con-
stitute. The mere intent and willingness to engage in a
common design, for doing an act, which if attempted to be
carried out would be a conspiracy, will not constitute a
conspiracy, unless such intent is embodied into an agree-
ment. The minds of the conspirators must meet in solemn
compact, to engage in the conmion design.^* It is not
required that the means, by which the object designed
to be accomplished, be agreed upon. It is suflicient that
the minds of the conspirators meet on a connnon level
and with a common purpose, and with the design of reach-
ing a common end. No overt act is necessary to show the
intent. The agreement, however, need not be an express

13 — If, however, a man inurry a
woman under an assumed name it
was held that if it was done for the
jMirjiose of dcfraiuliiij^ the person
ulioHo name was assunifd, that thoy
would 1)C guilty of conspiracy. Hex
V. Kobinson, 1 Leach Cr. Cas. 37;
I'eople V. Miller, 82 Cal. 107, 22
I'ac. y:$4; State v. Clarke, 32 Atl.
;ilO. If tlio husband and wife and
tliird parties constitute the combin-
ing persona tho wife and husband
are not released of liability.

]4_Woodworth v. State, 20 Tex.

App. 375. The assent must be real
and not a feigned agreement There
must be a concert of two or more
iniiids ill the tiling' done, or to be
ddiie. Tliey must eoiiic together
with real motiv-es and a common
jiiirpose. State v. Wanset, 2 Mo.
App. 205. The parties may agree in
intent and yet neither coiuliine and
(MPiit'oderatc. See this case for a full
discu-ssion <if the intent independent
of agreeineiit. Cox v. State, H Tex.
A|i|i. .''.O;; ; Ldggins v. Slate, 8 Tex.
Apj.. l.M 442.

CONSPIEACIES

371

contract, an implied agreement is sufficient. ^^ Xor is
it necessary that the conspirators know each other, noi-
that they know of the particular part, of the common
design or plan, each is to execute; nor what means each is
to use in executing his assigned part of the conspiracy. ^^

§ 424. Conspiracies to defraud another of his property,
etc. It is well settled that agreements and combinations
entered into by two or more persons for the purpose of de-
frauding another of his property, is an indictable of-
fense.'^' There seems to be some doubt whether this
applies to real estate.^' But where the object is to de-
fraud another of his personal property, there is no doubt.
It seems that where the object of the conspiracy is to
make a mere trespass on the property of another, that
such conspiracy is not indictable. The rule seems to be
general and universal, that w^liere the object is to cheat,

15— U. S. V. Doyle, 6 Saw. 612-
618; U. S. V. Babcock, 3 Dill.
582-585; U. S. v. Goldberg,
7 Biss. 175 In this last case the
court says: "It is not necessary to
constitute a conspiracy that two or
more jDcrsons should meet together
and enter into an explicit and for-
mal agreement for an unlawful
scheme, or that they should directly
by words or writing, state what the
unlawful scheme Avas to be and the
details and plan or the means by
which the unlawful combination was
to be made effective. It is sufficient
if two or more persons, in any man-
ner or through any contrivance posi-
tively or tacitly come to a mutual
understanding to accomplish a com-
mon and an unlawful design. ' '

16 — People V. Mather, 4 Wend.
229; Spies case, 3 A. S. K. 395.
The court says: "Though the com-
mon design is the essence of the
charge of conspiracy, it is not neces-

sary to prove that the defendants
came together and actually agreed
in terms, to that design and to pur-
sue it by common means. If it be
proved that they pursued by their
acts the same object, often by the
same means, one performing one
part, another, another part of the
same, so as to complete it, mth a
view to the attainment of the same
object, the jury will be justified in
the conclusion that they were en-
gaged in a conspiracy to effect that
object." See Greenl. Ev., sec. 95,
People V. Flack, 125 N. Y. 324, 26
N. E. 267, 11 L. E. A. 807.

17 — Peoijle V. Eichards, 1 Mich.
216, 51 Am. Dec. 75; State v. Glid-
den, 55 Conn. 46, 8 Atl. 800, 3 A. S.
E. 23; People v. Gilman, 121 Mich.
187, 80 N. W. 4, 80 A. S. E. 490;
State V. Switzer, 63 Vt. 604, 25 Am.
St. Eep. 789, 22 Atl. 724.

18— King V. Turner, 13 East. 231.

372

Criminal Law

or defraud by false pretenses, another of his property, or
an interest therein, will constitute the offense. The bet-
ter opinion seems to be, that the rule applies, to every
kind of property. There is no good reason why real
estate, or any right growing out of, or incident thereto,
should be an exception."

§ 425. Partners may be gnilty of conspiracy, under cer-
tain circumstances. It is a conspiracy to agree to secret
or dispose of property of a debtor for the purpose of de-
frauding his creditors.^" Partners may be convicted of
a conspiracy where one makes false and fraudulent
declarations as to the solvency of the partnership.^^ So
also partners may on the same principle be convicted for
making false and fraudulent declarations and recommen-
dations to another whereby, he is induced to part with his
goods to a third person, where the partners attach the
goods, at once, after they are in the possession of such
third person.'^^ Where two or more persons combine and
confederate together, for the purpose of making false and
fraudulent declarations with the idea of inducing another
to part with his goods, are guilty of conspiracy.^^ Whether
in any given case, the remedy is by suit, as in civil ac-

19 — People V. Ilichards, 1 Mich.
216, o Am. Dec. 75. The court
siiys: (Lord Ellcnborough in the
c.-ise of the King v. Turner, 13 East.
231), to show that even if an indict-
ment, for a conspiracy to commit a
fninil upon an individual lies, yet
it cannot lie wlierc llic object of the
conspiracy is to defraud him of his
lands; and the indictment being as
to tli(! lands liad, is l>ad as to all.
In tlie case cited the indictment was
fur a conspiracy to commit a civil
trespass, by going on to another
niiin's land to kill hares. It was
lield tiiat an indict nient would not
He, and Lord Ellenborough's re-

marks wore made in reference to
such a case. The judge cannot be
suppo-scd to have intended to say
that an indictment for a conspiracy
to cheat an iiidividu.-il, would only lie
in cases where the facts were the
same in which the indictment had
been sustained.

20— Com. V. Goldsmith, 12 Phil.
6.32; Hall v. Eaton, 25 Vt. 458;
ITeine v. Com.. 91 Pa. St. 145.
21 — Com. V. Warren. Mass. 74.

22 — I '.'it ton V. (lurncy, 17 Mass.
1S2.

23 — Fairbank v. Newton, .lO Wis.
628.

Conspiracies

373

tioiis, or whether the community has a cause of action,
depends upon the enonnity of the consummated act, and
the extent of injury to the public. Especially is this
true in cases where the consummated act, would not con-
stitute an indictable oifense.'^*

§ 426. Other circumstances under which the crime may
be committed. Conspiracies for the pui^pose of extorting
money, or other valuables, are indictable offenses; charg-
ing another with a false fact, whether the fact was crim-
inal or not; obtaining money or other valuable thing,
from an employer by threatening to induce his employees
to leave their work ; deterring the workmen from entering
the employ of another; threatening to incite and deter
persons from entering the employ of another, where the
same is accomplished by previous agreement and under-
standing appear to be subject to indictment.^^ To extort
money or to attempt to extort money, by charging another
with crime, bastardy or lunacy will sustain an indictment
for conspiracy.^^

§ 427. Satisfy illwill. A conspiracy to satisfy some ill-
will, malice or revenge upon another is criminal.^''' It ap-

24— state v. Rickey, 9 N. J. L.
293; Hutchyig v. Hutching, 7 Hill.
104; State v. DeWitt, 2 Hill. S. C.
282, 27 Am. Dec. 371; State v. C?row-
ley, 41 Wis. 271, 22 Am. Rep. 719.

25— Heap v. Dunham, 95 111. 583;
Carew v. Rutherford, 106 Mass. 1;
Bonifield v. Blake, 6 Car. and p, 75.

26— Queen v. Best, 6 Mod. 136;
State V. Hickling, 41 N. J. L. 208;
State V. Coward Slaw, 360; Com. v.
Tibbitts, 2 Mass. 536; Davenport
V. Lynch, 6 Jones L. 545.

27 — ' ' It may be safely said,
nevertheless, that a combination will
))e an indictable conspiracy, when
ever the end, purpose or means to

be employed are of a highly criminal
character; or where they are such
as indicate great malice, in the con-
federates; or where the object
in view l)eing unlawful; or
where the confederacy having no
lawful aim, simply tends to the
oppression of individuals. A care-
ful analysis of the cases, which
have hitherto been adjudged will
reveal the presence of one or more
of the qualities here enumerated; to
this extent, therefore, they may be
relied on, as safe criteria, whereby
to test new emergencies as they may
be presented for adjudication."
State v. Donalson, 3 Vroom 151;

374

Criminal Law

pears also that any moans, liaving the effect, if earned
out, to oppress or coerce another, either, to the relinquish-
ment of his right to, or his possession of property, forfeits
use, enjoyment, or which hinders him in the immediate,
rightful and legal use of the same, come within the limits
of criminal conspiracy.^®

§ 428. Agreements to commit act of immorality is con-
spiracy. Conspiracies fonned for the pui-pose of ac-
complishing immoral results — such as inducing a female
to become a prostitute — especially where she is of tender
years or where she may be of weak intellect, is criminal.^'
As, also, is a confederation for the pui*pose of seducing a
female, although seduction may not be regarded as an
offense in the particular jurisdiction.^" So would any un-
lawful combining, to do any immoral, or other grossly
reprehensible act, having a tendency to effect the morality
of the community. It is clearly an indictable offense to
conspire for the purpose of enticing a minor female, from
under the protection of her gaiardian or parents, with
the intention of mariying her, to another, without tlicir
consent.^^ It is not criminal conspiracy for a man and a
woman to agree to commit adulteiy or fornication with
each other.^^

Kichiirds v. People, 51 Am. Dec. 85,
and note.

28— Muffin V. Com., 40 Am. Dec.
527; Com. v. Hunt, 38 Am. Dec.
.'J46; Com. v. Eastman, 48 Am. Dec.
59G; State v. McNally, 56 Am. Dec.
650; State v. Murphey, 41 Am. Dec.
79; State v. Cole, 39 N. J. L. 324;
Stale V. Glidden, 55 Conn. 40, 8 At).
800, 3 A. 8. U. 23; State v. Davis,
88 S. C. 229, 70 8. E. — , 34 L. R. A.
(N. S.) 295; Gray v. Building'
Trades Conncil, 01 Minn. 171. 97 N.
W. 663, 103 A. 8. H., and note pp.
•179 and 499.

29— Sitiilli V. People, 25 111. 17.

30— Mil Hi II V. Com., 5 Watt. &
S. 461; Rex v. Locker, 5 Esp. 107;
Hepuhlica v. Ilcvia, 2 Yeates 114.

.'11 — See authorities and note 2, 40
Am. Dee. 529; Miles v. State, 58 Ala.
390; Sli.iiiiKui V. Com., 14 Pa. St.
226.

32— State v. HiieRin, 110 Wis.
189, 85 N. W. 1046, 62 L. R. A.
700; K';iihI:i11 v. l.onsdorf, 126 Wis.
147, 105 N. W. 663, 5 Ann. Cas.
:!7I ; 3 L. K. A. (N. R.) 407.

Conspiracies

375

§ 429. To defeat public justice. It is a general rule that
conspiracies to obstruct or to defeat public justice are in-
dictable offenses. Where the object of the conspirators,
are to fabricate evidence or to suppress testimony; to
bribe a jury, juror, a witness or the jadge, such would
come within the rule. Conspiring to do anything the
effect of which is to subvert, obstruct, suppress or impede
the course of justice, come clearly within the meaning of
criminal conspiracy. To obtain legal process by agree-
ment for illegal pui-poses or agreements to make false
charges in court, are also criminal. Where ever the object
is to effect the free course of justice in public trials, or
where administrative justice is obstructed, hindered, sup-
pressed, or defeated, such agreements and combinations
are criminal.^^

§ 430. Of and concerning the wages of workmen,
etc. The confederating together of many persons with
the object of controlling the wages of working men, or
inducing them to leave their employ; or by inducing an
employer, through threats of injury, to discharge one or
more of his employees, has been held time and again to
be indictable conspiracy.^* It has been held that many
persons combining themselves with the intent of declar-
ing a boycott, against a corporation, the object of which
was to induce others to withdraw their trade, patronage
and support, from such cori3oration, unless, such coi-pora-

33— state v. Dewitt, 2 Hill. 283;
State V. Noyes, 25 Vt. 415; People
V. Chase, 16 Barb. 495; State v.
Bartlett, 30 Me. 132; Johnson v.
State, 3 Tex. App. 590; KJnowles
V. Peek, 42 Conn. 38G, 19 Am. Eep.
542; Garland v. State, 112 Md. 83,
75 Atl. 631, 21 Ann. Cas. 28;
People V. Flack (N. Y.) 11 L. E.
A. 807. To fabricate evidence.
State, 20 Hardin, 144 la. 264, 120
N. W. 470, 138 A. S. E. 292.

34 — Crump v. Com., 84 Va. 927,
6 S. E. 620, 10 A. S. E. 595. The
following: State v. Donalson, 32 N.
J. L. 151, 90 Am. Dec. 649; State
V. Wilson, 30 Conn. 507; Walker v.
Cronin, 107 Mass. 564; Carew v.
Eutherford, 106 Mass. 10-15, 8 Am.
Eep. 287; Parker v. Griswold, 17
Conn. 302, 43 Am. Dec. 739; State
V. Glidden, 55 Conn. 76, 3 Am, Eep.
23.

376 Criminal Law

tion acceded to the demands of the conspirators, to dis-
charge its working men and to employ such persons only,
as was recommended by them, is guilty of a criminal con-
spiracy. It is unlawful for employers to coerce, intimi-
date or hinder, the free choice of working men, in the
disposal of their time and talents. It is unlawful for
working men wrongfully, to coerce, intimidate or hinder,
employers in the selection, of such workmen as they
choose to employ. No employer can say to a w^orlvinan,
he must not work for another employer. Nor can a w^ork-
man say to an employer, he cannot employ the service
of another workman. Societies, such as labor unions,
which for the pui^DOse of mutual protection order a with-
drawal of their members, from the service or support of
their employer unless certain demands are acceded to,
upon principles of the common law, are not criminal con-
spirators and do not constitute coercion, intimidation,
force and violence, w^here there has been no actual co-
ercion, force and violence.^^

§ 431. Boycott is an unlawful conspiracy. As under-
stood in the United Slates, a boycott is an agreement by
many persons, by virtue of which it is understood, that
they as a body will refrain from doing certain things —
such as performing labor, entering or leaving the employ
of cei-tain persons, etc., unless cei*tain demands, stipu-
lations or wages are granted them. It may be said to be
ail exaction, ])y many persons, by previous agreement,
upon persons who stand in need of the services, patron-
age, custom ()i- Iiillui'iK'c of such persons, in conducting
their business, trade or pi'ofession, to grant to them cer-
tain wages, pi'ivileges or immunities, and in the event ot"
refusal to agree to withdraw from them either, in not

.'{r,_State V. Stockford, 77 C(.iin. Am. Hop. 710; State v. Duncan, 78

227, .18 Atl. 7C,0, 107 A. S. R. 28, Vt. :i64, fi.'! Ail. 225, 112 A. S. R.

also Crump cuso, note J. Htatc v. !tL'2, (1 Ann. €as. 602, 4 L. R. A. (N.

Htcwart, HO Vt. 2T.\, 9 Atl. 550, 50 S.) Mil.

Conspiracies

377

entering their employ, or in withdrawing their services,
aid, patronage, iniluence or support. ^^ The courts, where
tlie questions have been before them, have liold a boy-
cott to be a criminal conspiracy. They have construed
such combinations to be in restraint of trade, and hence
a crime. Where the object of the boycott was to raise or
lower wages, it has been held to be criminal, because it
deprives the employer of his free will in employing, whom
he chooses, and at such j^rices he may desire. It is said
also, that it is a coercion and an oppression, upon the in-
dividual, because it deprives him of his freedom, to act
and do as he pleases in accepting service where and with
whom he wishes; a coercion and an oppression upon the
employer, because it deprives him of the right to employ
whom he chooses, at such price as may be agreed upon.''
Where a number of employees demand of their employer,
that he discharge certain other coemployees and upon re-
fusal to comply, that they will leave his employ in a body,
such action, is a crime. The cases argue, that every per-
son has a right to engage in business and to seek the serv-
ices of any person he wishes, and upon such terms as
may be agreed upon, and also that a corresponding right
exists in behalf of the working man to engage service
with whom he will. These cases announce the doctrine
that every person, singly, may leave the service of a
master whenever he thinks himself aggrieved and indi-

36— state v. Stewart, 59 Vt. 373,
9 Atl. 550, 59 Am. Kep 710; State
V. Duncan, 78 Vt. 264. 63 Atl. 225,
112 A. S. E. 922, 6 Ann. Cas. 602,
4 L. R. A. (N. S.) 1144. The right
to strike and cease work in a body
is held legal where the purpose is
to obtain higher wages, shorter
hours, etc. National Protective
Assn. of Steam Fitters and Helpers
V. Cunmiings, 170 N. Y. 315, 63 N.
E. 369, 88 A. S. R. 648, 50 L. R.
A. i;]5; State v. Van Pelt, 136 N. C.

663, 40 S. E. 177; 1 Ann. Cas. 495,
68 L. R. A 760. Note to 1 Am.
Cas. 508; Stjt - v. Glidden, 55 Conn.
46; Crump v. Com., 84 Va. 927, 6
S. E. 620, 10 A. S. R. 805.

37 — People v. Fisher, 14 Wend.
10, 28 Am. Dec. 501; Gunthur v.
Aston, 23 B. Mon 12; State v. Glid-
den, 55 Conn. 46; Crump v. Com.,
84 Va. 927; Old Dominion Steam
Ship Co. V. McKenna, U. S. Cirt. S.
D. of N. Y. ; Slaughter House cases.
16 Wall. 36-116.

378 Criminal Law

vidually may demand that his wages be raised or that
other persons be discharged, but when he agrees Avith
others to do like things and upon refusal of the employer
to comply with their demands, to quit work, he and those
with whom he agreed, are guilty as conspirators.

§ 432. The skill of the working-man and his labor is
capital. The skill of the working-man and the mechanic,
the plant of the manufacturer and the holdings and the
implements of the farmer are in an equal sense propert5^^^
The labor of the workingman in anj^ sphere, is as much
property as the holdings of the capitalist. The proposi-
tion is conceded by all authorities that the workingman
has the right to employ his time, skill and talents in any
way that suits his inclinations, and at such price as he
may wish. Such also is conceded to the operator and
capitalist and in additicm, to use and expend his money
in any way tliat suits his pleasure — give such wages as
suits him for labor, etc.^^ Upon principle, either one or
the other, of these classes of persons, combining the use
and expenditure of their respective rights in such a way,
as to (»j)i)ress or coerce the other in his free agency in
the application of such rights, will be guilty of criminal
conspiracy. If the force of oppression, coercion or in-
liniidatioii works u))oii llic i)hysical oi' other necessities
of the party, in such ;i manner as to take from him his
volition in acting as lie pleases, appears to come within
this principle.

.38— W.-inl V. JStiite. 47 N. .J. L. St. Hop. .'l.'iO, 57 N. E. 1011, 51

180; State v. Stewart, 59 Vt. 27;{, ii L. I{. A. .•{39; Sherry v. Perkins, 147

Atl. 550, 59 Am. Rep. 710; State Ma.ss. 212, 9 A. S. R. 689, 17 N. E.

V. Van Pelt, 136 N. C. 663, 40 S. E. 207; liarr v. Essex Tnides Council,

177, Ann. Gas. 495, 08 L. R. A. 760. 15 N. .1. K>[. 101. 29 All. 881; Gray

39— State v. Olidfi.-n, .55 Conn. v. Iinil(linj,'s Tnide.s Council, 91

40; Am. & Eng. Ene. I^aw, p. 608- Minn. 171, iiT N. W. 663, 1118, 103

009; State v. Stockford, 77 Conn. A. S. It. 177. See nole tliis last

227, 58 Atl. 769, 107 A. S. R. 28; Antliority Siil.d. Ill, |.. li^l.
Plant V. Woods, 176 Mum. 79, Am.

Conspiracies

379

§ 433. Combination of dealers to lower or raise prices
is conspiracy. An agToemeiit made between dealers in
any commercial article or articles of prime necessity, for
the purpose of controlling the price and managing the
sale under the direction of an exchange, was decided in a
case in New York to be illegal, and a criminal conspiracy.
Where the object and intent of such organizations are
for purpose of controlling the free competition of a spe-
cific article, it contravenes the objects and purposes of
trade, and deliberately cancels one of the oldest and the
most generally recognized principles of political economy
that "competition is the life of trade." ^^^ If the purpose
of the exchange is to keep the price up, or if it raises the
price, it is nevertheless a criminal conspiracy, nothwith-
standing the increase in price may not be more than a
legitimate profit on the sale. The court in rendering
the opinion said, that in the particular case it made no
difference whether the price raised, was more than a
legitimate profit or not. The gravamen of the offense,
being the combination to do a thing- which might be
and the tendency of which, was to destroy a free com-
petition in the sale of such article.*^

§ 434. Combinations to effect legal ends by illegal
means. In combinations for the purpose of effecting a
legal result by illegal means in order to make it criminal
conspiracy, it is not necessary that the means used be
indictable.^^ If, as to a means to an end, the effect is to

40— People v. Sheldon, 1893, 139
N. Y. 251, 36 A. S. R. 690; Hooker
V. Vaiide Water, 4 Denio 349; Stan-
ton V. Allen, 5 Denio 506.

41 — All combinations whether of
capital or of working men, for the
purpose of influencing trade in their
favor, by raising or reducing prices
are so far illegal, that the agree-
ments to combine cannot be enforced

by the courts. 83 Tex. 650, 29
Am. St. Eop. 690, 83 Iowa 156, 32
Am. St. Rep. 297; 90 Cal. 110, 25
A. S. R. 257; More v. Bennett, 140
111. 69, 33 A. S. R. 216.

42— State v. Patten, 28 Iowa
554; Cole v. People, 84 111. 216;
Alderman v. People, 4 Mich. 414;
State V. Mayberry, 48 Me. 218.

380 Criminal Law

oppress a person by subjecting him to tlie power of the
confederation, or the effect of ^vhich is to prejudice the
public, then the offense is complete. Pei*petrating fraud
upon another or by accomplishing a legal purpose by
grossly immoral means, is criminal.**

§ 435. What is necessary to be alleged in the indict-
ment. The authorities in the main agree when the ob-
ject of a conspiracy is unlawful or is for the purpose of
committing some crime, the indictment need not set
forth the means by which the consummated act is to be
effected.** A general allegation that the conspiracy was
for the purpose of committing the particular crime or
unlawful act is sufficient. If the consummated act for
the purpose of which the conspiracy is formed, is per se
indictable then a general allegation is sufficient. There
are high authorities which deny the rule as above an-
nounced. These authorities maintain that in any case,
whatever may be the object of the conspiracy, whether
it be to do an act which is well known to be criminal or
which partakes largely of criminal elements, the allega-
tions of the indictment must clearly inform the defendant
of the nature and cause of the accusation against him, and
the ingredient of which the offense is composed must
be clearly and accurately alleged.

§ 436. Allegation of the indictment continued. The
gravamen f)f a criminal conspiracy is the corinipt com-
bination. It appears to be usual to allege in the indict-
ment some overt act toward cariying out the object of
the conspiracy, but this is not absolutely necessary to

43— State v. Barham, 15 N. H. 83, 75 Atl. 631, 21 Ann. Cas. 28,

396. and note. State v. Van Pelt, 136

44— Thomas v. People, 113 111. N. C. 033, 49 S. E. 177, 1 Ann. Cas.

531; State v. Orniiston, 66 Iowa 495, (58 L. R. A. 760; State v.

143, 27 N. W. 37; State v. Barglett, Stewart, r,9 Vt. 273, 9 Atl. 559, 59

30 Me. 132; State v. Noyos, 25 Vt. Am. I{op. 710; State v. Crowloy,

415; (Jarinnd v. State, 112 M«l. II Wis. 271, 22 Am. Rep. 719.

Conspiracies

381

the validity of the indictment. Proof of acts going to
show that there had been an effort to carry out the pur-
poses of the combination, is the best proof of the con-

spiracy

§ 437. Illegal act by illegal means, indictment etc.
Where the purpose of the conspiracy is to effect some
legal act by illegal means it is then necessary to fully set
forth in the indictment the means by which such act is to
be accomplished.*'^ The reason of the rule is apparent.
If the culpatory act consists in the means by which the
act is to be committed then it is very essential to the
rights of the defendant to inform him in plain and in-
telligible allegations the nature of the offense which he
is to defend. In cases, however, where the purposes of
the conspiracy being those crimes or offenses which are
well known by name, no such description or allegations

are necessary

§ 438. Allegations where the act has been consum-
mated. Where the indictment is for the consummated
conspiracy, the allegations are required to be very specific
and certain in setting forth the offense. Where the re-
sult of the common design amounts to a criminal offense,
and the indictment is for such offense, the pleader can
then specifically and certainly set forth all the necessary

45 — State v. Wilson, 30 Conn.
500; Hazen v. Com., 23 Pa. St. 355;
Alderman v. People, 4 Mich. 414;
State V. Eeply, 31 Me. 389; People
V. Arnold, 46 Mich. 268, 273; People
V. Richards, 1 Mich. 216; U. S. v.
Groff, 14 Blatchf. 381-2; Landing-
ham V. State, 49 Ind. 136; People
V. Eichard, 1 Mich. 216, 51 Am.
Dec. 75-n; State v. Buchanan, 5 Har-
rison and Johnson, 317 (Md.), 9
Am. Dee. 531, p. 571, note and au-
thorities, State V. Huegin, 110 Wis.

189, 85 N. W. 1046, 62 L. R. A. 700;
Com. V. Hunt, 4 Mete. (Mass.) Ill,
38 Am. Dec. 346.

46 — State v. Crowley, 41 Wis.
271; 4 Lawson's Crim. Defenses,
1887, 561-2; Com. v. Hunt, 4 Met.
Ill; 38 Am. Dec. 346; Isaacs v.
State, 48 Miss. 234; Cole v. People,
34 Iowa 216.

47— Wood V. State, 47 N. J. L.
] 61 ; contra Com. v. Shedd, 61 Mass.
514.

382

Criminal Law

allegations, and the defendant is entitled to have all the

material allegations set fortli.'*^

§ 439. Rule as to principals and accessories. The gen-
eral rules relating to principals and accessories have no
application to the degree of guilt in the perpetration of
felonious crimes, as to conspirators.^^ A conspiracy to
commit a felony as distinguished from the perpetration
of a felony in the ordinaiy sense, consists in the
agreement and concerted action on the part of each and
eveiy member of the conspiracy, to accomplish the
common design by participation therein, and by con-
tributing by one means or another to the felonious pur-
pose. All persons who enter into a common design to do
an unlawful thing, and a felony result as a natural and
ordinaiy consequence in undertaking to accomplishing
the common purpose, are guilty w^hether they know of
the commission of the act at the time or not.^° The mem-
bers of a conspiracy are equally responsible for the acts

48 — People v. Eicliards, 51 Am.
Dec. 75-n, 1, Mich. 216; People v.
Arnal, 46 Mich. 268, 3% Am. Dec.
?A7; Brown v. State, 2 Tex. App.
115: Mason v. State, 2 Tex. App.
192; State v. Stewart, 27.3, 9 Atl.
550, 59 Am. Rep. 710.

49 — " Wlicre two or more persons
unite to acconiplisli some criminal
object whether through the physi-
cal violence of one or all — pro-
cc'eflin;:^ .severally or collectively —
each individual whose will con-
tributes to the wronj;doing is in law
ri'sponsibln for the whole as though
pi-rfornicd by liinisclf alone. We are
not treating of principles and ac-
romjdiccH, but of combinations of
p -rsdns to coniniit crime." The
court, in Skies v. I'eoplo, '.i A. S. K.
.'120, Hny«: "From the evidence the
dcfi-nclaiil Parsons was associated

with the man who threw the bomb
and the men who tired the shots at
the Kaymarket in a conspiracy to
bring about a social revolution in
riiicago by force on or before May
1, 1886; in other words to destroy
till' police and llu- militia on or
.•ilidiit that dale with bombs, revol-
vers or rifles. It is well settled that
if tiie fact of a conspiracy is once
(\stal>lishod, any act of one of the
rouspirators in llie prosecution of
the enterprise, is considered the act
of all."

50— Spies v. People, 3 A. S. R.
440; Sl.-ite v. McCahill, .30 N. W.
Rep. 55.3; Hiciunau v. People, 15 111.
.'■ill; liaiuia v. People, 86 111. 243;
L:imb V. Peoph', 96 111. 74; People
v. Strouch. 210 III. 60, 88 N. E.
l.'.n, 1.(0 A. S. R. 255.

Conspiracies 383

of the others, notwithstanding they may not know what
part each is to accomplish, nor the means to be used by
each in effecting the common pui-pose.^^ Each member is
responsible for the acts of each, notwithstanding they
are unknown to each other.

§ 440. Where there are two persons only, to the unlaw-
ful agreement. Where the conspiracy consists of the
combinations and agreements of two persons only, the
acquittal of one acquits the other, for if one be innocent,
both are guiltless. Not so, however, where the combina-
tion is by more than two. So, if one of two conspirators
is convicted and the case against the other is compro-
mised or dismissed the conviction of the one is wrong.
The court held that a judgment could not be entered
on the verdict, because the dismissal had the effect of dis-
charging hun also.^^

§441. Rule where minds of persons are inflamed by
speeches. Where the public mind is influenced by
speeches, public journals, papers and the like, to such an
extent as to induce persons to commit acts of violence, in
consequence of which a riot is brought about, will con-
stitute the parties who make such inflammatory speeches,
and those who contribute the matter through the jour-
nals, guilty of riot to the same extent as if they were
at the place at the time, taking part therein.^* If the
influence produced upon the mind of the public is
such as can be traced in point of circumstance to a

51— People V. Mather, 4 Wend. of Eex. v. Sharp, 3 Cox. C. C. 288,

248, 21 Am. Dec. 722. and concludes that the defendant

53— State v. Jackson, 7 S. C. 283 ; Parsons who made a speech at the"

Woodard v. State, 20 Tex. App. Hay Market, but at the time the

375. riot took place was not present at

54 — Spies V. People, 122 111. 1; the assemblage, was just as guilty

id. 3 A. S. K. 320, et sequa. This as tlie party who threw the bomb

court adopts the language in the case which killed Degan.

384

Criminal Law

subsequent riot as the casual coimection and result of the
speech or imputation of the journal, it would then come
within the doctrine.^^ ■

§ 442. Acts and declarations of one. The acts and
declarations of one conspirator made in reference to the
common design, the existence of the conspiracy having
been established, are admissible in evidence against his
coconspirator. Such declarations are regarded as res ges-
tae and for that reason are chargeable against all parties
connected with the common desigii.^^ Of course, it is
understood that the acts and declarations must relate to
or have connection with the pui-poses of the common de-
sign. Such, however, to be admissible against the con-
spirators, must be acts and declarations which were
after the inception and before the completion of the
criminal design. It seems that a conspirator need not
be a party defendant in order to make his acts and decla-
rations admissible against the others.^' Tt is not neces-

55 — King V. Sharp, 3 Cox C. C.
288 says: "If persons are assem-
bled together to the nuinljcr of three
or more and speeches are made to
those persons to excite and influence
tlieni, with a view to incite them to
acts of violence, and if that same
meeting is so connected in point of
circumstance with a subsequent riot,
that you cannot reasonably sever the
latter from the incitement that was
used, it appears to me that those
wlio incited are guilty of the riot,
although they are not actually pres-
iiit when it occurred. I think it is
not the hand that strikes the blow
or throws the stone that is alone
guilty under such circumstances; but
that he who influences people's
minds and induces tliein liy violent
means to accomplish .'in illegal ob
ject, is himself a rioter, thougli he

take no part in the riot. It will
be a question for the jury whether
the riot whieli look place was so
connected with the infiamiiiatory
language used by the defendant that
they cannot be reasonably separated
by crime or other circumstances. ' '

56— Phillips V. State, 6 Tex. App.
:!64; Com. v. Brown, 14 Gray 419;
State V. Buchanan, 35 La. Ann. 89;
Preston v. Brown, 13 Ohio St. ]-
L']; State v. Larkin, 49 N. H. 44,
20 Ga. 181; Bloomer v. State, 48
Md. 521-31; Clinton v. Esles, 20
Ark. 216; Jenna v. Joselin, 41 Vt.
478; People v. Brown, 59 Cal. 345;
Noil V. State, 60 Ind. 308-10; State
V. Nash, 7 Iowa 347-84.

57— Com. V. Brown, H Gray 419;
Mudd V. Itiirn.iiglis, '.M U. S. 426-
36.

Conspiracies

385

sary for the acts and declarations to have taken place
in the presence of those sought to be charged, nor even
that they have knowledge of them; if they are made by a
coconspirator in reference to the common purpose is suf-
ficient.

§ 443. Declarations made before or after commission of
the offense. Neither acts nor declarations made anterior
to the formation or subsequent to the completion of a
conspiracy can be used as evidence against conspirators.^^
If the acts and declaration are in the nature of narratives,
descriptions or subsequent confessions, the same may
be used as evidence against the party making them and
can in no sense be used as evidence against his cocon-
spirators unless made in their presence.^® The main rea-
son for admitting the acts and declarations of one con-
spirator against his fellow conspirator, is because they
go to explain the intents and purposes of the common
design, and to that extent become original evidence, and
the res gestae — a part of the transaction itself. Decla-
rations made in the presence of a coconspirator must be
addressed to him, or made in such proximity to him as to
show that he acquiesced in the statements. There are
some notable exceptions to this rule: thus if the party
sought to be charged be deaf, intoxicated, asleep or in an

58— Ford v. State, 112 Ind. 373,
14 N. E. 241; State v. Weaver, 57
Iowa 730, 11 N. W. 675; Ferguson
V. State, 134 Ala. 63, 32 So. 760,
92 A. S. R. 17; State v. Darling,
216 Mo. 450, 115 S. W. 1002, 129
A. S. B. 526, 23 L. R. A. (N. S.)
272; People v. Freedman, 205 N.
Y. 161, 98 N. E. 471, 45 L. R. A.
(N. S.) 55; Bowers v. State, 24 Tex.
App. 542, 7 S. W. 247, 5 A. S. R.
901; Wliite v. People, 139 111. 143,
32 A. S. R. 196; Jenkin v. State, 89
Ala. 115, 8 So. 23, 18 A. S. R. 91.

C. L.— 25

Must be the ordinary and probable
oonseqnences of th© agreed act.
Must not be outside of, and foreign
to the common purpose. Powers v.
Com., 100 Ky. 386, 61 S. W. 735,
53 L. R. A. 245; State v. Taylor,
70 Vt. 1, 39 Atl. 447, 67 A. S. R.
648, 42 L. R. A. 673.

59— State v. Ross, 29 Mo. 32-50;
Reed v. State, 20 Ga. 681; Cohea v.
State, 11 Tex. App. 153; Patten v.
State, 6 O. St. 467; State v. Crowley,
33 La. Ann. 782.

386 Criminal. Law

unconscious or hj^Dnotic condition. Nor does this rule
apply unless the statement calls for a response.^"

§ 444. Old rule as to prima facie case, and its mod-
ification. There is a very old rule requiring a prima
facie case of conspiracy to be first proven before the acts
and declarations of a conspirator can be offered in evi-
dence against his coconspirator. It seems, however, that
this has been modified; at least the weight of modern
authorities hold to the doctrine that the acts and declara-
tions may be offered, but upon the understanding that
if the conspiracy is not conclusively made out that the
jury are required to exclude such evidence under the
instructions of the court. It seems to be the better rule
or practice to first establish the conspiracy by inde-
pendent facts and circumstances disconnected with the
acts and declarations of the conspirators. The order of
presenting the evidence rests in the sound discretion of
the court. Such discretion will not be resorted to except
where justice and the necessity of the case require it,
lest the juiy might infer the existence of the conspiracy
from the proof of acts and declarations.

60 — McDemiott V. Com., 123 Mass. People, 53 N. Y. 472; Loggins v.
440, 25 Am. Eep. 120; Owensby v. State, 8 Tex. App. 443.

CHAPTER XXIV

COUNTEEFEITING

§ 445. Definition. § 448. Custom cannot legalize a coin.

S 446. English statutes. § 448a. As distinguished from for-

§ 447. Constitution of the United gery.

States does not limit the
states in prosecuting.

§445. Definition and description. Counterfeiting is
but another species of forgery and the extension of the
doctrine of *' Cheats." Originally the term '^ Counter-
feiting" was intended to cover the making of false coin
or the altering the cuiTcnt coin of the country, whether
it was of the government's own issue or was coin or
money permitted by the govenmient to float as gen-
uine coin or money. The term, however, is applicable
to the making and the altering of trade-marks, coin,
paper money used as a currency, certificates or securities
of the United States, bank notes issued by national banks
under the authority of the laws of the United States,
and such other things as are the representative of rights,
privileges and values — rather than the values themselves,
in false imitation and similitude of the genuine coin,
money, etc., thing or character. ''A thing made falsely
and fraudulently in the imitation of and in the semblance
of that which is true."^ ''An imitation of something
made without lawful authority and with a view to defraud
by passing the false for the true. " ^ To copy or imitate
without authority or right and with a view to deceive
and to defraud.^ By the ancient law of England counter-

1— Abbot's L. Diet.; Glass v. 2^Eapalje & L. L. Diet.

State, 45 Tex. App. 605, 78 S. W. 3— State v. McKensie, 42 Me. 392 ;

1068. Denent v. State, 2 Head. (Tenn.),

387

388 Criminal Law

feiting the coin of the Reahn was a treason. By statute
of 25 Edward III, it was made high treason. Subse-
quently this was repealed by I Maiy, C. I., but again re-
stored by enactment of I Maiy, Stat., C. 6. By these
statutes clipping and defacing the coin was not made
penal; so we have the later statutes of 5 Eliz, c II, 18
Eliz, c I, 8 and 9 William III, c 26, and 7 Ann c 25, making
it a high treason to clip, wash romid or file for wicked
gain's sake any money of the realm, or other money
suffered to be current. Then lately we have 15 and 16
Geo. 2 c 28, providing that if any person colored, or al-
tered any shilling or six pence, was guilty of high trea-
son.*

§ 446. English Statutes. It may serve a useful purpose
to here insert the substance of the consolidated act of 24
and 25 Vict, c 29, relating the counterfeiting the coin
of the English government. There is a great similarity
between this statute and that of the United States and
of the several states. Thus:

Sec. 3. Impairing Gold and Silver Coin: Impairing,
diminishing or lightening any of the Queen 's gold and sil-
ver coin, w^ith intent that it should pass for gold or silver
coin, is felony, etc.

Sec. 4. By the Same Statute one having in his posses-
sion filings, clippings, dust, etc., was guilty of a felony.

Defacing the Coin. Defacing the Queen's coin, gold,
silver or copper, by stamping thereon any name or words,
although tlie coin may not thereby be lightened, is a
misdemeanor.

Buying and Selling Counterfeit Coin, etc. Any person
buying, selling, receiving or putting off any counterfeit

r>or>, 75 Am. Dcf. 747; U. S. v. nnry care. Glass v. State, 45 Tex.

HpraRUC, 48 Fed. 828; U. S. v. Mor- App. 605, 78 S. W. 1058.

row, 4 Wash. (U. S.) 733. The re- 4 — For a diacussion of the above

semblance of counterfeit coin to the statutes, see 4 Bla. 84, 85, 86, 87,

jjnnuinc, must be sufTificntly strong 88, 8f), 90; 1 Ilalc P. C. 224-231; 1

to dcopivc persons exercising ordi- Hawk P. C. 42.

Counterfeiting 389

coin for a lower rate or value than it imports, is guilty
of a felony.

Importing and Exporting Counterfeit Coin. Import-
ing or receiving into the United Kingdom from beyond
the seas, without lawful authority, any counterfeit gold
or silver coin, knowing the same to be false, is a felony.

Exporting Etc. Exporting or placing on board of any
vessel for purpose of being exported from the United
Kingdom any counterfeit coin of the Queen's current
coin without lawful authority, is a misdemeanor.

Uttering Counterfeit Coin. Tendering, uttering or put-
ting off counterfeit gold or silver knowing the same
to be false and counterfeit, is a misdemeanor.

Uttering Foreign Counterfeit Coin. Uttering foreign
gold or silver coin; for the third offense a felony.

Having Counterfeit coin in possession. Having three
or more counterfeit gold or silver coin in possession,
knowing the same to be counterfeit, intending to utter
or put them off, or any of them, is a misdemeanor. If
the coin is copper the imprisoimient was for one year.
Having five pieces of foreign counterfeit coin, the punish
ment is by imprisonment.

Making Coining Tests. Knowingly and without lawful
authority, making, mending, buying or selling or having
in custody or possession any coining instruments or ap-
paratus adapted and intended to make any gold or silver
or foreign coin, is a felony.

§ 447. Constitution of the United States does not limit
the powers of states. It is provided by the constitution
of the United States that congress shall have the power to
coin money and to regulate the value thereof and of
foreign coin; that congress provide for the punishment of
the counterfeiting the securities and cuiTent coin of the
United States.^ It is also provided by the constitution

5— Art. I, see. 8, Const. U. S.

390 Criminal Law

that no person shall be held to answer for a capital or
otherwise infamous crime, unless on a presentment or
indictment of a grand jury, except, etc.^ Under these
provisions of the constitutions delegating powers to con-
gress and guaranteeing to the citizens the important right
of a presentment or indictment of a grand juiy, two
veiy important questions have arisen, 1. That the state
govenunents could not legally in the face of these pro-
visions enact laws and inflict punishment for the counter-
feiting the coin and securities of the United States, be-
cause the constitution had conferred exclusive jurisdic-
tion upon the courts of the United States. This appears
to have been a mooted question for a long time, yet the
law is now well settled that the states have full power
to legislate upon this question and that the state courts
have full jurisdiction to punish for the counterfeiting
the government's coin and cun-ency, upon the theory
and for the reason mainly, that such acts are in the na-
ture of a fraud perpetrated upon the citizens of the states;
and because the constitution and the laws of the United
States have not prohibited such rights to the states.
Congress, however, recognizing that the provision of the
constitution in the absence of a right conferred by the
congress placed a prohibition upon the states, provided
by the act of 1825, that '* Nothing in this act contained
shall be construed to deprive the courts of the individual
states of jurisdiction of the laws of the several states
over offenses punishable by this act. " ' 2. The contention

6— Fifth Amendment to Conat. v. Howard, 51 Ind. 411; Id. 19

U. S. Am. St. Ilcp. 738; Dashing v. State,

7 — See tlie following: Matterson 78 Ind. :!.'57; Ex parte Geisler Girt.

V. State, 3 Mo. 421; Itouse v. State, Court Unites, N. 1). Texas, 50 Fed.

4 Ga. 136; Com. v. Fuller, 8 Mete. 411; U. S. v. Arjona, 120 U. S.

313; Hall.in v. People, 1 Doug. 470; People v. McDonnell, 80 Cal.

(Mich.) 207; Sutton v. State, 9 285. 22 P.ir. 199, l.i A. S. R. 159;

Uhio 138; Chess v. State, 1 Blackl. Fox v. State Ohio, 40 U. S. 410,

198; Donnell v. State, 3 Ind. 480; 12 TT. S. L. Ed. 213.
State V. Moore, Tnd. 43G; Snoddy

Counterfeiting 391

was held by the district courts of the United States that
in the prosecution for passing or uttering the counterfeit
coin of the government, that the same might be prose-
cuted by inforaiation, for the reason that the statute of
the United States failed to provide that the crime was
"infamous within the meaning of the constitution." This
question has forever been set at rest by a recent decision
of the Supreme Court of the United States wherein it is
held that, "A crime punishable by imprisonment for a
term of years at hard labor is an infamous crime, within
the meaning of the fifth amendment of the constitution;
and that the district court in holding the petitioner to
answer for such a crime, and sentencing him to such pun-
ishment, without indictment or presentment by a grand
jury, exceeded its jurisdiction, and he is therefore entitled
to be discharged." ^

§ 448. Custom cannot legalize a coin or currency. The

states have no right to make a coin of any character and
there can be no counterfeiting of a coin made contrary
to the constitution and laws of the United States. To
counterfeit a coin not current in the United States is no
crime.^ Where the prosecution was for counterfeiting
a coin called the California five dollar coin, it was held
that there could not be a counterfeiting of a coin put in
circulation contrary to the constitution and laws of the
United States and further that such coin could not be-
come valid through custom since custom could not legal-
ize what was illegal under the terms of the constitution of
the United States.^" But where under a law prohibiting
the circulation of bank bills of less than ten dollars, unless
made payable at one of the state banks, the uttering and
publishing of counterfeit bills made in imitation of the

8— Ex parte Wilson, 114 TJ. S. 417, (Mass.) 364; Fight v. State, 7 Ohio,

Id. 4 Am. Cr. Rep. 283. part 1, 180, 28 Am. Dec. 626.

9— U. S. V. Gardener. 10 Pet. 10— Com. v. Bond, 1 Gray (Mass.)

(U. S.) 618; Com. v. Bond, 1 Gray 364.

392 Criminal Law

genuine bills, was held to be indictable." So, also, it has
been held that where one has in his possession a genuine
bank note of a duly authorized state bank, which at the
time has suspended because of its insolvency, for the
purpose or intent to sell or otherwise dispose of,
was guilty under that provision of the United States
Statute reading as follows: ''Eveiy person having in his
possession or custody, except under the authority of the
secretaiy of the treasuiy or other proper officer, any
obligation or other security engraved and printed after
the similitude of any obligation or other security issued
under the authority of the United States, with the intent
to sell or otherwise use the same, etc. ' ' ^^ This seems to
be strongly in opposition to the doctrines of the above,
but the court justifies itself upon these reasons: ''The
object of the provisions of the statute under which the
indictment is framed is manifestly to preserve the in-
tegrity of the national treasuiy and banknote currency,
and to prevent the imposition on the public of worth-
less notes or obligations of any kind puiporting to be
genuine obligations of the United States. It seems to
the court that the fact that the note in question was
originally issued by a duly authorized bank and
was a legal note at the time of issuance, does not, after
it has become utterly worthless by the insolvency of the
bank, exempt the holder of it from prosecution if he has
it in possession with intent to sell or otherwise use and
pass it as a genuine note or obligation of the United
States." ^^ However, under this section of the law, where
the alleged fraudulent instrument purports to be after
the similitude of a United States banknote hut was not
signed or puiported to be signed as the law directs, it

11 — Thompson v. State, 9 Ohio \'.\ — United States v. Stevens, 52

St. 3^4; Com. v. Ilensley, 2 Va. Frd. lUp. 120.
Cas. 149.

12 — United Slates v. Stevens, 52
F.mI. lU'p, 120.

Counterfeiting 393

was held that the said instrument must be signed or
purported to be signed — or in other words the similitude
must be after a genuine instrument; that the similitude
is not sufficient which puii^orts to be an instrument not
authorized by law.^* This leads us to the conclusion
that a false instrument made after the similitude of an
instnmient which has not at any time possessed a strictly
legal existence, or where the false instrument fails to
purport to be after the similitude of the genuine instru-
ment in every particular which is essential to its legal
existence, is not guilty under this statute. And in keep-
ing with this it is no offense to put off a note of the late
Confederate government upon an ignorant man in the
night time as a genuine bill of the United States cur-
rency. ^^

§ 448a. As distinguished from forgery. The crime in
many particulars, to the lay mind, is similar to the crime
of forgery, but in a legal sense possesses distinct prin-
ciples and covers distinctly separate actions. "Counter-
feit" means, generally, the purported copy of a genuine
instrument or thing. Sometimes the simile is used that
a counterfeit is a picture, but this in a legal sense is not
literally true, since a picture actually gives the compo-
nent features of the original. When an instrument is
counterfeited three distinct crimes may grow out of it —
that is, three different acts may produce three different
crimes; First, the counterfeiting, which consists of the
making of spurious instruments; second, the mere at-
tempting to pass the instrument as genuine, which is
known in the law as uttering a counterfeit instrument;
third, the passing of the spurious instrument, which con-
sists in causing the same to be accepted by some other
person as genuine.

14— United States v. Williams, 14 15 — United States v. Wilson, 44

Fed. 550. Fed. Eep. 751.

394 Criminal Law

The acts herein described have been variously com-
bined by the statutes of the states. Thus, some statutes
make the mere possession of the counterfeit instrument
with intent to pass it as genuine a crime, whether the
possession is coupled with an attempt to pass it or not.^^
Others, again, make it a crime to have the possession of
instruments with which such instruments may be made,
printed or engTaved, such as blocks or dies, to make such
instruments.^''^

16 — Com. V. Price, 10 Gray 17 — People v. McDonald, 80 Cal.

(Mass.) 472, 71 Amer. Dee. 668. 285, 22 Pac. 160, 13 A. S. R. 150.

CHAPTER XXV

CONTEMPTS OF COURT

§449.

Contempts are a sort of Quasi
criminal offense.

§461.

§450.

Powers of legislatures.

§462,

§451.

As to powers of other as-

semblies.

§463,

§452.

Legislatures are possessed of

the same rights as courts.

§ 464,

§453.

Powers of English Parlia-

ment.

§465,

§454.

Powers of inferior legisla-

tures, city councils.

§466.

§455.

The power of the courts to
protect themselves is in-

§467,

herent.

§468,

§456.

Has been the law of England
for centuries.

§457.

Contempt committed in one
court cannot be interfered

§469,

with in another.

§470

§458.

The writ of habeas corpus
may be resorted to.

§459.

Conflict of authorities as to
right of appeal.

§471,

§460.

As to the power of the leg-
islature to abridge the com-
mon law.

§472

What is necessary for judg-
ment to show.

As to the powers of a court
not of record.

Appeals may be allowed by
statute.

The right to pardon for con-
tempts.

Contempts as criminal of-
fenses.

Newspapers.

As to the intent of the con-
temner.

Summary judgment of the
court where committed in
its presence.

Procedure in the matter of
constructive contempts.

In the absence of statute,
punishment at the pleasure
of court.

Contempts may be also crimes
against the general laws.

As to constitutional courts,
etc.

§ 449. Contempts are a sort of Quasi Criminal offense.
We find them classified as civil and criminal contempts.
The distinction seems to have grown out of the fact,
whether the contemnor had failed to do that which the
court had enjoined, or whether he had done something
disrespectful to the court, or had done something that had
obstructed the due administration of justice, or which
tended to bring the court in disrepute.^ The former

1 — Dahnke v. People, 168 111. Carnahan v. Carnahan, 143 Mich.
102, 48 N. E. 108, 39 L. R. A. 197; 390, 107 N. W. 73. 114 A. S. R.

395

396 Cetminal Law

being classified as civil and the latter as criminal con-
tempts. These again were subdivided into direct and
constructive contempts; the fonner are those committed
in the immediate presence of the conrt, and are sum-
marily punished, usually without information, formally
directed to the couii:, while the latter are such as are
committed out of the presence of the court and al-
ways tried upon foraial information filed with the court,
and due notice given and opportunity for hearing allowed.
Thus, a contempt may be defined as the failure or refusal
to do something commanded and enjoined by the court,
or the doing of some act, or the use of some language in
disrespect to the court, or may affect the due administra-
tion of justice, or which may have a tendency to hold the
court up to public ridicule or contempt.

§ 450. Legislatures are possessed of the same rights
and powers of courts. All legislative bodies have a right
to protect themselves substantially to the same extent
as the courts in the conduct of their business. The Con-
gress of the United States and the legislatures of the
several states, are empowered with authority to punish
their own members for disorderly conduct or the failure
to attend their sessions; to decide contested elections and
the right of any member to a seat on the floor; to deter-
mine the qualifications of their members; to exercise the
sole power of impeachment (except, of course, where the
power is by law coiifen'ed upon the courts to try them) ;
where the examination of a witness is required in the
due discliarge of these duties, may fine and imprison a
contumacious witness.*

noo, 8 Ann. Cas. .13; State v. 2— Sinking fund cnso. 99 IT. S.

Knight, 8 S. D. A. 509, 54 N. W. 718; Burnliani v. MoriLssy, 14 Gray

412, 44 A. S. R. 809; Gompera v. 220, 74 Am. Doc. 676; Anderson v.

Murk Htove Co., 221 U. 8. 418, 55 Dunn, G Wh. (U. S.) 204; State v.

(IVd.) 797, 34 L. "R. A. (N. S.) Matliows, 37 N. n. 450; Constitu-

874. tioii IT. s. Art. 1, sec. 5, clause 2;

Contempts of Court

397

§ 451. As to the powers of other assemblies, etc. All
public meetings and assemblies possess the power to eject
obnoxious or intruding persons from its presence. But
such bodies do not possess any power to fine and im-
prison for contempts. Public meetings, clubs, lodges and
associations may expel, dismiss and discharge any of its
members or may impose fine for unbecoming conduct or
failure to comply with its regulations, but beyond this
they have no authority. Where in connection with such
bodies a law of the state is violated the power rests solely
with the state to inflict a punishment.

§ 452. The powers of the legislatures, upon common
law principles. Legislative bodies generally possess no
inherent power to punish by fine and imprisonment for
contempts, in the absence of constitutional or statutory
provisions granting the power. No such power is granted
by the common law in terms. Hence in this country the
authority is derived from the constitution or from the
statute. Where certain powers are granted the authority
to enforce them is conferred by implication. Therefore,
any matters over which such bodies have jurisdiction
may be enforced upon the ground of necessity. The law
having authorized legislative bodies to convene for the
purpose of conducting public business, necessarily give
the authority to enforce needful rules and regulations,
for the proper conduct and dispatch of such business, and
to this extent may be considered a court. They may en-
force these rights by fine and imprisonment.^

(§20 this work); Burdett v.
Coleman, 14 East 163. See
note, Anderson v. Dunn, 61 Ohio
216; Kilburn v. Thompson, 103
U. S. 163, 26 U. S. (Fed.) 377;
People V. Keeler, 99 N. Y. 463, 2
N. E. 615, 52 Am. Eep. 49; Ex
parte Parker, 74 S. C. 466, 55 S. E.
122, 114 A. S. E. 1011, 7 Ann. Cas.
874.

3 — Anderson v. Dunn, 6 Wh. (U.
S.) 204; McCuUoch v. Maryland, 4
Wh, 316; Hale v. State, 55 Ohio
St. 210, 45 N. E. 199, 60 A. S. R.
691, 36 L. R. A. 254; Chicago, B.
& O. R. Co. V. Gildersleeve, 219 Mo.
170, 118 S. W. 86, 16 Ann. Caa. 749;
Bradly v. State, 111 Ga. 168, 36
S. E. 630, 78 A. S. R. 157, 50 L.
R. A. 691.

398 Criminal Law

§ 453. Powers of the English Parliament. The English
Parliament, under the common law, possessed all the
powers and jurisdictions of a high court of judicature,
and from its very organization has possessed the dual
powers of a court and a legislature. Originally Parlia-
ment was composed of one body, or department, and in
later times two were created, the one being termed
"House of Commons" and the other the ''House of
Lords, ' ' both being distinct from each other so far as the
control of their respective proceedings were concerned.
It has always been a court for certain purposes and al-
ways possessed the inherent power to protect its delibera-
tions by fine and imprisonment and other remedies and
penalties.

§ 454. Powers of inferior legislative bodies, such as
town councils, etc. Liferior quasi legislative bodies such
as town councils, city legislative bodies, conmiissioners '
courts and the like, have no authority to impose punish-
ment for the failure to comply with its rules and regula-
tions except such as are expressly confeiTed upon them
by law.

§ 455. The power of the courts to protect themselves
is inherent. The power of a court to inflict punishment
for contempts committed in its presence or against its
authority, or the failure to obey its orders or process,
the same being out of its presence, is a necessaiy and
inherent authority growing out of its constitution and
organization, for without sucli authority it would be im-
possible to conduct the business for which it is created.
It has been said, and with considerable show of reason,
tliat tliis power of a coiii-t to ])rotect its sittings and de-
liberations is similar to tlie right of self-defense.* The

4 — In the case of Rex v. Almon, 8 Wostminstor TTnll pnsspssps of vindi-
Ht. Trifil, pnfff H'A, tlip court hmvh: cMtiiii^ their own aiitliorily, is coeval
''The power wliirlj tlic ((unt in wilii llicir I'dunil.'it ion and institu-

Contempts of Coukt

399

power of the courts of this country is to a considerable
extent regulated by the statutes of the United States and
of the several states, yet we believe that in no instance
has the power to try contempts been conferred upon any
other tribunal to try and determine the contempt except
in the court in which the contempt occurred.^

§ 456. Has been the law of England for centuries.

The rule in this country is that a court is clothed with all
the power and authority necessary to hold for contempts
committed in its presence, and to inflict punishment by
fine and imprisonment. The general rule is that there is
no appeal to another tribunal. Some states have provided

tion. It is a necessary incident to
every court of justice, wliether of
record or not, to fine and imprison
for a contempt to the court, acted
in the face of it. The issuing of
attachments by the Supreme Court
of Justice in Westminster Hall for
contempts out of court stand upon
the same immemorial usages as sup-
ports the whole fabric of the com-
mon law; it is as much the Lex
Terrea, and within the exception of
Magna Charta, as the issuing any
other process whatever. I have ex-
amined very carefully to see if I
could find out any vestiges or traces
of its introduction but can find none;
it is as ancient as any other part of
the common law; there is no pri-
ority, or posteriority to be discovered
about it, and therefore cannot be
said to invade the common law but
to act in alliance and friendly con-
junction with every other provision,
which the wisdom of our ancestors
has established for the general good
of society. Some doubts were sug-
gested, whether even a contempt of
the court was punishable, by at-
tachment; but not only my brethren

and myself, but likewise all the
judges of England think that with-
out this power no court could pos-
sibly exist, nay, that no contempt
could be committed against us, we
should be so truly contemptible.
There is no period where it can be
said to have ceased or discon-
tinued." See also the following: 1
Am. Dee. 246; U. S. v. Hudson, 2
Cr. 32; Anderson v. Dunn, 6 Wh.
204; State v. White, 2 M. T. Cholt
136; U. S. V. New Bedford Bridge,
1 Weed & M. 440 ; Yates v. Lansing,
6 Am. Dec. 290, 9 Johnson (N. Y.)
395; Morrison v. McDonald, 21 Me.
550; State v. Capp, 15 N. H. 212;
Ex parte Adams, 25 Miss. 883;
Gates V. McDonald, 3 Post 356;
Skiff V. State, 2 la. 550; State v.
Middlebrook, 43 Conn. 257; People
V. Wilson, 64 111. 195; State v.
Woodfine, 5 Ired. 199; Ex parte
Eobertson, 19 Wall. 505.

5 — Ex parte Eowe, 7 Cal. 175;
People V. County Judge, 27 Cal.
151; Darley's Case, 3 Wheeler Cr.
Cas. 1; First Congregational
Church V, Muscatine, 2 la. 69.

100 Criminal Law

for appeals, but wliere the matter occurs in the immediate
presence of the court this discretion is usually beyond the
power of any other tribunal. The sentiment of a people
is always with their traditions, and they will suffer many
ills before they will consent to coiTect the mistake of
their fore-fathers. There appears to us to be three very
good reasons why this rule is wrong in principle. (1) It
violates one of the veiy basic principles of justice. It
grants the power to tiy, condemn and convict to the same
tribunal before which the alleged contempt was com-
mitted. No judge should be permitted to sit in judgment
in his own case, or in any case in which he has the slight-
est interest. The reasons assigned for allowing the judge
to sit in judgment summarily, are that the business of
the court could not be conducted in the absence of the
power to inflict immediate punishment. But is this liter-
ally true? The contemnor should be allowed the same
privilege as other persons accused of crime — a hearing
before an impartial tribunal. In many cases the judge
feels that he has been personally affronted and the chance
remains that to some extent his prejudice and passions
will color his judgment. (2) Our theory of govenmient
is that every person charged with crime should have an
impartial trial before a court or juiy of his countrymen.
This principle has been applied in the state of Okla-
homa for it is in its constitution that the defendant in
contemjjt proceedings is entitled to a jury trial. (3) In
almost all other crimes where there is infliction of punish-
ment an appeal is allowed to another tribunal. A writ
of habeas corpus is unavailing except where there
is a clear want of jurisdiction in the court rendering the
judgment of contemjit.^

G— Easton v. State, 39 Ala. 551, re Morris, 3S) Kjin. 28, 18 Pac. 171,

87 Aiiier. Dec. 49; Alderson v. Com- 7 A. S. R. 512, and note. In ro Wil-

nii»sion.s, 32 W. Va. 640, 9 S. E. 868, lianison, 26 Pa. St. 9, 67 Amer. Dec.

25 A. S. H. 840, 5 L. R. A. 334; In 374, and note.

Contempts of Court

401

§ 457. Contempt committed in one court cannot be in-
terfered with in another. There is no rule better estab-
Ushed than that this authority of a court to inflict
punishments for the contempts before it cannot be inter-
fered with by that of another court.® It is also applicable
to the inferior court as well as the superior. In the absence
of legislative action, this power is arbitrary. The judg-
ment on the contempt proceedings rests in the discretion
of the court before whom the contempt occurred. It
appears that if a statute fails to include in it certain
acts which are common law contempts, the common law
will not come to the aid of the statute and supply the

omission

8_We find the note of Clark v.
People, 12 Am. Dec. 184, this sum-
mary by the compiler. A judg-
ment for a contempt is not revisable
or reviewable in any other court.
This is general principle, supported
by a great many authorities, and
rests upon the same grounds as the
rule for forbidding the trial of con-
tempts in the first instance in any
other court, than the one in which
the contempt was committed. Dur-
ing the reign of James the I while
that sturdy champion of the common
law, Sir Edward Coke, and his
brethren of the king's bench were
engaged in a struggle against the
efforts of the court of chancery to
administer equitable relief, after an
adverse judgment at law, there were
several instances in which the law
courts released upon habeas corpus
prisoners who had been committed
for contempts in chancery. These
cases were reviewed by Mr. Senator
Piatt in Yates v. Lansing, 6 Am.
Dec. 290. The struggle was soon
abandoned and it became the estab-
lished doctrine of the English courts,
that if the tribunal pronouncing

C. L.— 26

judgment of contempt had jurisdie-
tion for that purpose, the judgment
could not be reviewed, in any other
court upon appeal, writ of error,
habeas curpus, or any other proceed-
ing. ' '

9 — An interesting case arose in
the troublous times of Chas. I. One
Chambers was committed to the
court of star chamber for infamous
mockery by saying at the council
table that the merchants of Eng-
land, etc., The sentence

was that he should pay a fine of
two thousand pounds and imprison-
ment until he should make his sub-
mission at the council table. He
sued out a writ of habeas corpus
which was returnable before the
king's bench and prayed to be de-
livered, because the sentence was un-
lawful. But all the court informed
him that the court of star chamber
was not erected by the 3 Hen. VII
C. I., but was a court for many
years, and one of the most high and
honorable courts of justice, and that
to deliver one who was committed
by the decree of one of the court
of justice was not the usage of that

402

Ceiminal Law

§ 458. Writ of habeas corpus may be resorted to. The
court ill the case of contempt has no right to render a
judgment and enforce it, where it has been arbitrarily
assumed. Thus in one case the court said, "A court may
have authority to hear and determine a cause; such power
does not authorize the court simply because it has juris-
diction to render some judgment, to trample down the
fundamental and constitutional rights by pronouncing
a sentence unauthorized by law."

AVhere the judgment is that the relator stands com-
mitted to prison mitil he pm'ges himself, there being no
limitation, as to the term of imprisonment, the same is
void and he may be discharged upon the wait of habeas
corpus. ^^ Hence the judgment should be specific as to the

court. Cro. Car. 168. A member of
the House of Commons was com-
mitted for contempt of the privi-
leges of the house and applied for
a release upon writ of habeas cor-
pus and in their opinion the judges
said in denying the application:
' ' The House of Commons is a su-
preme court of judicature with re-
spect to its own privileges, and es-
pecially its own members. This
court never discharges persons com-
mitted for a contempt to any su-
preme court, such as the two houses
of Parliament and the courts of
Westminster hall. The law has
entrusted to these the power of
judging of their own contempts in
tlie last resort. If there be any
appeal from them, it would detract
from their dignity and they would
cease to l)o supreme courts. Pas-
Ion's Case, 1 Edw. 111. Writs of
attachments and conimitiucnts for
contempts express no particulars of
the contempts, because if expressed
they could not bo cxninined. Tlie
legislature li.'is afliriiied .'iiid ap
jtroved of the process of contempts

as established by the common law.
620 Morrill 16, Acts 386; U. S. v.
Hudson, 7 Cranch. 32.

10— Es parte O 'Brian, 30 S. W.
(Mo.) 150; People v. Cassets, 5 Hill
164; Welsh v. Nash, 8 East Cit. 403;
Ex parte Clark, 126 Cal. 235, 58
Pac. 546, 77 A. S. E. 176, 46 L. E.
A. 835 ; Burnham v. Morrissey, 14
Gray (Mass.) 226, 74 Am. Dec. 676;
Ex parte Adams, 25 Miss. 883, 59
Am. Dec. 234; Ex parte Arnold, 128
Mo. 256, 30 S. W. 768, 49 A. S. E.
557, 33 L, E. A. 386; In re Faiitou
55 Neb. 703, 55 N. W. 447, 70 A. S
E. 418; Com. v. Perkins, 124 Pa
St. 36, 16 Atl. 525, 2 L. E. A. 223
Ex parte Parks, 37 Tex. App. 590
40 S. W. 300, 66 A. S. E. 835
State V. King, 17 La. Ann. 696
17 So. 254, 49 A. S. E. 374; Mis
kummins v. Shaver, 8 Wyo. 392
58 P:.c,. 411, 49 L. E. A. 831; Ex
liarte Warlioid, 40 Tex, App. 413, 50
S. W. 933, 76 A. S. E. 724.

11— Ex parte Kerby, 34 S. W.
(Texas) 635; Ex y)arte Eoberlson,
11 S. W. (Tex.) mU; I'iiitt v. liar
rison, 71 Am, Dec, 389; Bell v.

Contempts of Court

403

term of imprisonment, tliat is, the judgment should be
certain and fixed.

§ 459. Conflict in the authorities as to right of appeal.
There are authorities holding that a commitment for a
contempt may be reviewed by other courts upon appeal or
writ or error. These authorities appear to be based upon
the ground that contempts are criminal violations; that
when a statute allows the right of appeal in other crim-
inal actions, it by implication includes that of con-
tempts.^^ The general rule appears to be in the United

S.atc, 45 Am. Dec. 130; Ex parte
Grace, 17 la. 208; State v. Su-
]ic'rior Court, 56 Wash. 649, 106
I'ac. 150, 28 L. E. A. (N. S.)
576; State v. Bland, 189 Mo. 197,
88 S. W. 28, .3 Ann. Cas. 1044;
Karol V. Conlan, 155 Wis. 221, 144
N. W. 266, 49 L. E. A. (N. S.) 826;
Cooper V. People, 13 Colo. 337, 22
Pac. 700, 6 L. E, A., 430; Stewart v.
People, 3 Scam. 395; Ex parte
Thatcher, 2 Gilm. 170; Buel v.
Street, 9 John 441 ; McCurdie v. Sen-
ior, 4 Paige 378; Shannon v. State,
18 Wis. 604; Hendhouser v. U. S.
Ileisk, 702; Turner v. Com., 2 Met.
(N. Y.) 619 As to the proposition
that contempts are criminal cases,
see Hill v. Crandall, 52 111. 70;
State V. Sanvient, 24 La. Ann. 119;
and that the governor may pardon,
see same.

12— Casey v. State, 25 Tex. 380;
says, that the appeal does not lie
even where there is a jury trial.
That the contempt is not a crime,
as defined by the writer on the
criminal law, although they partake
of a criminal nature, but are not
crimes in the strictness of the term.
Lockwood V. State, 1 Ind. 161; Ex
parte Adams, 25 Miss. 883; Wilson

V. Williams, 36 Miss. 331; Shultock
V. State, 51 Miss. 50; Watson v.
Thomas, 6 111. 248; Patton v. Har-
ris, 15 B. Mon. 607; Floid v. State,
7 Tex. 215; Barley's Case, 3 Wheel.
Cr. L. L.; State v. Giles, 10 Wis.
101; Velor v. Barrton, 27 Vt. 56;
State V. Towle, 42 N. N. 540; Cas-
sart V. State: In this case the court
says that Digest title Criminal Pro-
ceedings, sec. 225: "Allowing ap-
peals and writs of error in criminal
cases, applies to prosecution by in-
dictment or presentment and is not
to extend nor in terms, to summary
convictions for contempt of court,
which though in the nature of crim-
inal proceedings, are not public
prosecutions for any criminal
charge, which an accused can be
put to answer by indictment, pre-
sentment or impeachment, and the
trial of which a jury can be em-
panelled." The power to punish
summarily and upon its own mo-
tion, contempts offered to its dig-
nity and lawful authority, is inher-
ent in every court.

Easton v. State, 39 Ala. 551;
Martin's Case, 5 Yeager 456; Peo-
ple v. Sturtevant, 9 N. Y. 263;
many other cases may be compiled

404

Criminal, Law

States that there is an appeal from a commitment by a
court of competent jurisdiction. There appears to be
some conflict of the cases on this point, but the great
weight of the authorities support the appeal or writ of
error, and the right to resort to the writ of habeas corpus
in the case of the want of the jurisdiction of the court
issuing the commitment and, of course, the right of the
legislature to grant the right. On a review of a con-
tempt proceeding (the court having jurisdiction) it is
presumed that the court properly considered all matters
offered as a defense or extenuation, and that its judg-
ment is filial.^' But where a commitment ordered by ^
court, not having jurisdiction, the supreme court will
grant mandamus, to compel the vacation of the order of
commitment, has been held in the state of Michigan."
So also, in the state of Colorado, the appellate court may
set aside an order made by a court having no jurisdic-
tion."

§ 460. As to the power of the legislature to abridge
the common law. There is no uniformity in the adju-
dicated cases, touching the right of the legislature to

oil this point. Iii the case of Clark
V. People, 12 Am. Dec. 178; says
that ' ' the power t/o punish for
contempt is an incident to all courts
of justice independent of statu-
tory provisions, and that the power
to enforce obedience of orders, pun-
isli for contempts by fine and im-
jirisonment, are powers which may
not be dispensed with because they
are necessary to the existence of all
others. The distinction that courts
of inferior jurisdiction, not hav-
ing a general power to fine and im-
prison, for contempts arc restricted
to such as are, committed in their
jirc'sence, will not alter the rule in
thi- present case. 'J'lie exercise of

tliis power, needs must rest in the
discretion of the magistrate and as
such is not subject to review in the
circuit court."

13 — Land & Water Co. v. Super-
ior Court of Fresno Co., 93 Cal.
131); Wilson v. Hickman, 35 W. Va.
7U5.

14— Swartz v. Barry, 51 N. W.
279 (Mich.), 90 Mich. 417.

15— Wyatt V. People, 28 Pac.
!H;1 (Cal.). The constitution guar-
antees the right to trial by a jury
and due process of law, do not ap-
ply to contempts. Also see Barry
V. Superior Court of the City and
<'(>iiiity of San Francisco, 1 Cal.
480. Also In re Barry, 4 Cal. 562.

Contempts of Court

405

abrogate or abridge the common law.^^ One line of the
cases hold that the legislatures have no right to abridge
the common law, by statute; that the power is inherent
in the court, and it is the prerogative of the court to
control its own matters as to its sittings and its judg-
ments, orders and decrees, while another line holds the
reverse. It appears to be agreed by all that the legis-
lature may provide the manner in which a contempt may
be presented, and also has the power to designate spe-
cifically what, in a given case, shall constitute punish-
ment. This rule, however, takes from the court the power
it possessed under the common law."

16 — In the case of State v. Gal-
loway & Ehea, 98 Am. Dec. 411,
the court says, "that if the judg-
ment for the contempt be for cause
for -which the court has no jurisdic-
tion, and it so appearing from the
record, the judgment is void and no
justification for the imprisonment.
It stands on the law of universal
application to the judgment of
courts, that if the court had no
jurisdiction, the judgment is void.
But if, therefore, it appears upon
the face of the judgment on the
record of the proceedings, upon
wliich the judgment is rendered
that the judgment is upon a cause
of contempt, for which the court
has no statutory power to punish,
or if it so appears, that the pun-
ishment inflicted is not within the
power prescribed by statute for such
cause, the judgment will be void
for want of jurisdiction of the
court, and shall be no justification
for such imprisonment or sentence,
and no sufficient answer to the writ
of habeas corpus.

The sixth subdivision of sec. 4105
of the Code of Tennessee was not
intended to embrace and do not em-

brace the vast undefined scope of
contempts at common law out side
of the classes prescribed by statu-
tory enactments.

The power to punish for con-
tempts, where limitations have
been put on the power by statute,
came under review in the case of
the United States for the Eastern
District of Pennsylvania, where
Mr. Justice Baldwin of the Supreme
Court of the United States, held in
the case Ex parte Poldson that the
act of Congress of March, 1831,
chap. 99, which is similar to the
Code of Tennessee on the subject,
withheld from the courts of the
United States, the common law
power to protect themselves, wit-
nesses and offices against the libels
of the press, though circulating and
published pending the trial of the
case.

For the views of Chancellor Kent,
see 1 Kent's Commentaries 301.

17— State v. Marrell, 16 Ark.
384, holds in effect that a statute
is not a limitation upon the power
of the court to punish for contempt,
based upon a statement of facts,
not included in those set out in the

406

Ckiminal. Law

The inile is general in the absence of statutory pro-
visions, that the court is empowered to fine and im-
prison and to do such other things it deems necessary to
protect itself. That this power is due them as a matter
of right; that this power cannot be delegated to or as-
sumed by another court, unless by express Jaw.^^

§ 461. What is necessary for judgment to show. At
common law the rule is believed to be well settled, that
the judgment of a committal for contempt, need not recite,
upon its face the facts upon which the commitment is based.
The common law did not, nor, excejot as modified by
statute, is any court limited to any particular state of
case.^* The whole matter rests in the sound discretion of

statute. If necessity arise in a par-
ticular case not included in the
statute, that the common law or
the inherent power of the court
could be resorted to, to aid the
court. See U. S. v. Holmes, 1
Wall., Jr. 1; Gallord v. GaUord,
44 Cal. 475.

In the case of Dunham v. State,
6 la. 245, the court held, that a
commitment for contempt would be
limited to the specific causes and
designations contained in the stat-
ute.

In Illinois the same rule is ad-
liered to. People v. Story, 79 111.
11145; Ex parte Robertson, 19
Wall. 505; U. S. Hudson, 7 Cr. .32;
Anderson v. Dunn, 6 Wh. 204; Peo-
ple V. Wilson, G4 111. 195; U. S. v.
New Bedford, 1 Wood. & M. 440.

18— State V. Woodfin, Trod. 152,
42 Am. Dec. IGl and note; Noal v.
State, 50 Am. Dec. 218 and note;
Nenl V. State, 50 Am. Dec. 281, 9
Ark. 354, and note; Easton v. State,
.39 Ala. 551, 87 Am. Dec. 491;
Clark V. State, Prccsc, 340 (Ii:.),
12 Am. Dec. 184, and note.

19 — From this rule of the com-
mon law, we think projKjr to do-
part to the extent to require, that
in the courts of this State, it shall
be essential, to the validity of a
judji^nent for contempt, that it
shall state upon its face the cause
of contempt alleged, as the grounds
of jurisdiction on which the .indff-
ment is rendered. The ruling made
here is the proper result from the
legislative abridgement of the in-
definite power of the common law
vested in the courts to punish for
contempts. The jurisdiction at
common law was indefinite and gen-
eral. By statute it is confined to
specific cause?. It is, therefore, in
pursuance with the policy indi-
cated by the legislature, and war-
ranted in our judgment by sound
principle, to hold that the alleged
cause of contempt upon which the
judgment, or the ground of juris-
diction, upon which the judgment
must rest for its validity. In this
way tlio jirnpcr power of the courts
to vindicate their dignity and
maintain their safety, efllciency

Contempts of Court

407

the judge. If the court has jurisdiction, it is not necessaiy
to recite in the judgment what grounds the commitment
was founded upon. The judgment imports upon its face
absolute verity, and no court of coordinate or superior
jurisdiction has any authority to review it. As stated
elsewhere, the presumption is that the court inquired
into all matters of defense and explanation on the part
of the accused; this presumption is one of law and not
of fact, and cannot be rebutted or inquired into in any
other court or in any other case. Even in cases where
the writ of habeas corpus is available, it is not permitted
to enter into the investigation of the irregularities on the
part of the trial court.^**

§ 462. As to power of courts not of record. There is a
great want of harmony in the authorities, as to whether
inferior courts or courts not of record possess the inherent
power to commit for contempts. Some of them hold that
there is no real difference between courts of record and
courts not of record; and in reason there is none. The
weight of authority appears to support the rule that all
courts have the power to commit for contempts regard-

and existence, may, to a large ex-
tent, be brought into harmony with
the protection and safety of the
citizen, against the inadvertent
or unauthorized exercise of the
power of the courts to punish con-
tempts." State V. Galloway &
Khea, 98 Am. Dee. 404; Eaton v.
State, 87 Am. Dec. 59.

In the case of Ex parte Simmons
the court says: "It does not seem
to us that this order can be im-
peached It was suggested that it
might — because it does not suffi-
ciently set out the facts on which
the contempt arose; and it was sup-
posed, that an order was void in
which a case of contempt is not

made out by a statement of proper
facts, and findings of the con-
tempt by the court upon those
facts." "But we do not hold that
such is the law. ' ' The court in the
case of Eaton v. State, continuing
and among other things says it
adopts the law laid down in the
Simmons case and then adds that
the appellant is without remedy in
any court or in any form.

20— See Ex parte McGill, 6 Tex.
App. 498; Peck v. Strauss, 33 Cal.
685; Owens v. Gonzales, 4 Dill. 438;
Ex parte Kellog, 56 Vt. 511; U. S.
V. Laurence, Black. 306 ; State v.
Brewster, 7 Vt. 118; Ex parte Ah
Men, 77 Cal. 178.

408

Criminal Law

less of the fact that some of them are deemed to be courts
of inferior jurisdiction. Especially is this true iu the case
the contempt is committed in the presence of the court.^^
Granting the inherent right in the superior court, then
for a better reason the same right should be given the
court of less jurisdiction ; there should be no difference in
the validity of the judgment of the courts of different ju-
risdiction, in so far as the rights to make and to enforce
their orders and judgments are concerned. The statutes,
however, usually grant to these inferior courts all
the authority necessarj'^ to carry on their business and to
protect themselves against the contempts, and disparage-
ments of orders and decrees.

§ 463. Appeals may be allowed by statute. Except
whore allowed by statute, the right to appeal from a com-
mitment is denied, in the case of contempt of court. The
writ of habeas corpus is available in two instances: (1) —
Where the court before whom the commitment lacks
jurisdiction. 2 — That the committing court should find
the factum of contempt, i. e., that there should be a judg-
ment reciting the contempt and a proper order entered
in the judgment records and a commitment following in
regular order after the judgment. No verbal order of
commitment is permissible.^^ In some instances it ap-

21 — Tlic following authorities
deny the aiilliority of inferior
rourt.s to commit for contempts, in
the aliHcnce of power conferred by
statute. Brooks v. Com., ]2 S. &
R. IT); Rutherford v. Holmes, GG N.
Y. 368; Morrison v. McDonald, 21
Me. 550; Ilaight v. Lucia, 36 Wis.
.3.55.

The following cases alliiin that
inferior courtH may commit for con-
tciiipts coinmitted in their jiresenre:
Liming v. nartliom. 2 liay 11; Mat-
ter V. Watson, 2 Nelson, 69 N. Y.
5.36; r.rown v. People, If) Til. 613;

Newton v. Lockland, 77 111. 103;
Clark V. IVoiile, 12 Am. Dec. 178;
Plunkett V. Hamilton, 136 Ga. 72,
70 S. E. 781, Ann. Cas. 1912 B,
1250, 35 L. R. A. (N. S.) 583;
F.'irnham v. Coleman, 19 S. Dak.
342, 103 N. W. IGl, 117 A. S. R.
944, and note 953; Goodhart v.
State, 84 Com. 60, 78 Atl. 853, Ann.
Cas. 1912 B, 1297.

22— Hurley v. Com., 188 Ma.ss.
■113, 74 N. E. 677, 3 Ann. Cas. 757,
and note; Shattock v. State, 51
Miss. 50, 24 Am. Rep. 624; State
V. (Jalloway, 5 Cold. (Tcnn.) 326,

Contempts of Court

409

pears that inaiidamus may be resorted to to compel the
committing court to revoke an order of commitment.
Also the writ of certiorari has been used for the same
puiTDose.^'

§ 464. The right to pardon for contempts. The trend
of the authorities are that the pardoning power of the
state may discharge one convicted of a contempt.^* A
majority of the cases that have been passed upon, sus-
tains the doctrine that the court's ruling may be vacated
in this way. In a civil case in the state of Texas, where
the conunitting judge was sued for ordering the sheriff
to hold and imprison the accused after the governor had
pardoned, the court held that the governor, under the
laws, had no pardoning power, for the reason that the
offense of contempts was not under the statute, a crime.

The rule is well settled in the Texas courts that con-
tempts are, in the absence of express statute, declaring
so, is not a crime.^^

§ 465. Are contempts criminal offenses? There ap-
pears to be no harmony in the authorities, whether con-

98 Am. Dec. 404 j Taylor v. Good-
rich, 40 S. W. (Tex.) 515; Ex parte
'Brian, 30 S. W. (Mo.) 160; Ex
parte Kerby, 34 S. W. (Tex.) 635;
Ex parte Burford, 1 Cranch. 456.

23— Harris v. State, 35 Ark. 418.

24 — As the pardoning power is
vested in the President of the
United States, exclusively, it fol-
lows that the court cannot remit the
penalty or discharge the offender
from his imprisonment, upon proof
of his ability to pay cost. In re
Miller, 7 Black. C. C. 32. This
case was decided upon a statute of
the United States permitting the
defendant to discharge himself,
upon proof of his inability to pay

costs. Sharp v. State, 102 Tenn.
9, 49 S. W. 752, 73 A. S. K. 851,
43 L. R. A. 788; Ex parte Hickey,
4 Smede & M. 783; a Miss. Case,
State V. Sauvinet, 24 La. Ann. 119,
13 Am. Eep. 115; Ee Simms, 54
Kans. 1, 25 L. R. A. 110.

The following case deny the
right to pardon for a contempt for
the reason that it is not a crime.
Taylor v. Goodrich, 40 S. W. (Tex.)
515; In re Chadwick, 67 N. W.
1074.

25— Crow V. State, 24 Tex. 12;
Casey v. State, 25 Tex. 384; State
V. Thunnond, 37 Tex. MO; Scott
V. State, 86 Tex. 321, 24 S. W. 780.

410 Criminal Law

tempts of court are civil or criminal. We find in the
books such expressions as "Contempts are Crimes and
Misdemeanors," while we find decisions and the language
of the judges, classing them sometunes one, and some-
times the other. They, in the strict technical sense, are
neither the one nor the other. The procedure generally is
entirely different from that in a criminal cause, and j^et
the judgment and the punishment is the same as that in
a criminal misdemeanor, i. e., by fine and imprisonment
in case the same is not paid, upon the same principle as
that of other minor crimes. The main distinction between
a civil and a criminal action is in the manner of en-
forcing redress; in the former the arm of the court in
the nature of a writ of execution issues to satisfy the
judgment by impounding the property of the defendant
in the execution; in the latter the judgment of conviction
is enforced either by imprisonment or the payment of
a sum of money, and in the event of the failure to pay
the same, a commitment to prison till it is extinguished
at the rate of so many dollars per day, or in some cases
until he purges himself. The weight of authority, and
as well as sound reason based upon the nature and the
object intended to be attained by the enforcement of a
commitment for contempt, constitutes it a crime.'^^

§ 466. Comments concerning cause pending. A reflec-
tion upon the court or judge, concerning a cause there
pending, may be punished as a contempt, whether it is
made in the presence of the court or not."

26 — For a full discussion of the 27 — Globe Newspaper Co. v.

same the following case will prove Com., 188 Mass. 449, 74 N. E. C82,

a benefit to the investigator. Ex 3 Ann. Cas. 761; Ex parte Barry,

parte Gould, 99 Cal. 300; Wyatt v. 85 Cal. G03, 25 Pac. 256, 20 A. S.

Peoph-. 17 Col. 252; Lester v. Peo- R. 218; In re Stusoc, 48 N. 11. 128,

pie, 150 Til. 408; Roberta v. Hack- 97 Am. Dec. 626; State v. Trugwell,

ncy, 109 Ky. 26.5, 58 S. W. 810; 10 Wash. 238, 52 Pac. 1056, 43 L.

In re Murphey, 39 Wis. 286. See R. A. 717; State v. Frew, 24 W.

;ilso ('. Y. C. 9, page 34. Vs. 416. In the matter of the im-

Contempts of Court

411

In order to liold a newspaper for contemptuous lan-
guage, writing and pictures, or other contemptuous re-
flection upon the court, it must be directed to and con-
cerning a cause then pending before it : It is not contempt
if directed to a cause then disposed of. It also may be a
contempt of court to reflect upon the officers of the court
or the jurors, witnesses, etc. It appears to be within
the inherent powers of the court to prohibit by order
newspapers from publishing the evidence in a cause then
pending, and a violation of the order is cause for
contempt proceedings.^^ Where the nature of the cause
demands it, the court may make an order that only such
persons may be present at the time of the trial as have
a ticket from the executive officer of the court allowing
them to be present. Any violation of this order would be
a cause for a commitment.^^

§ 467. As to the intent of the contemner. It is con-
tended by reputable authority that it is not permissible
to allow as a defense to a commitment for contempt that
the accused show that he did not intend a contempt of
the court.^° It may be said that this is the general rule,
but in some instances it will purge the party of the con-

peachment, Parsons, 1 Cal. App. 54;
Fleming's Case, 23 N. H. 162; Ex
parte Turner, 3 Mont. D. & D.
523; Tichborne v. Tichborne, 22 L.
T. W. 255; Kilcot v. Sharp, 52 N.
J. L. 154. Publications of news-
papers commenting upon the pro-
ceedings pending in court, which re-
flect upon judge, jury or parties, or
which impugn improper motives
to the court in the judgment in
the same is subject to commitment
for contempts. See following cases:
Meyers v. State, 46 Ohio St. 473;
Ex parte Berry, 85 Cal. 603; In re

Prior, 18 Kans. 72, 26 Am. R. 746,
and note.

28— King V. Clement, 4 B. & O.
218; Stewart v. People, 3 Scam.
395; Dunham v. State, 6 la. 245.
Courts have power by injunction to
prohibit a publication. Brooks v.
Evans, 29 N. L. J. L. 616.

29— Com. V. Jackson, 38 S. W.
(Ky.) 424; People v. Murrey, 50
N. W. 995.

30— Sharp v. State, 102 Tenn. 9,
49 S. W. 752, 73 A. S. R. 851, 43
L. R. A. 788; Re Sims, 54 Kans.
1, 25 L. R. A. 110.

412

Criminal Law

tempt, and especially is this true when it appears that
the objectionable language or acts are of no serious na-
ture.*^ The acts complained of are usually judged of
by the maimer in which it is giveii.^^

§ 468. Summary judgment of the court in contempt
committed in its presence. The general rule is, where
the contempt takes place in the presence of the court, is
for the court to deal with it in a summaiy manner, and
without notice to the relator.^* The early practice appears
to have been for the court to take the matter up at the
time and to order a judgment of commitment without any
notice or the granting to the relator time for his defense,
and tune for him to purge himself. But the court may
give time for the relator to purge himself and to file
an answer to the charge.

It is so repugnant to the spirit of our institutions,
not to allow the accused a fair and impartial trial where
he stands charged with any crime, that the courts, more
through their liberality, than any positive rule of law,
pemiit the relator in cases arising within their pres-
ence, to interpose his defense to his acts of contempt.

§ 469. Procedure in the matter of constructive con-
tempts. Constructive contempts, or contempts commit-
ted out of the presence of the court against which the

.31— People V. Wilson, 69 111. 219;
I'l'ople V. Frier, 1 Caines 484.

312— Henry v. Ellis, 49 la. 205;
People V. Frio, 2 Johns. 290; Rcx
V. Donnell, 14 Cox C. C. 474; U.
8. V. Late Coq)oration of Church
of Jesus Christ of the Latter Day
Saints, 21 Pac. (Utah) 524; State
V. Gil>8on, W. Va., 10 S. E. 58;
McCann.'ick v. Sheridan, 2 Op. Pac.
Utah, 24-26. In re Coper, 32 Vt.
258; State v. Crunun, 7 N. D. 299;
State V. Garland, 25 La. Ann. 532;

Snyder v. State, 52 Me. 152;
Fisher v. Procaseo, 2 Brosne, Pa.
127.

34— Arnold v. Com., 80 Ky. 300,
44 Am. Ecp. 480; State v. Kaiser
(Ore.), 8 L. H. A. 584, note 586,
and cases there cited. Cooper v.
People, 13 Colo. 337, 22 Pac. 790,
6 L. R. A. 430, and note. State v.
Shepherd, 177 Mo. 205, 76 S. W.
79, 99 A. S. H. 624; State v. John-
son, 77 Ohio St. 461, 83 N. E. 702,
21 L. R. A. (N. S.) 905.

Contempts of Court

413

same is directed, the practice is that the same be pre-
sented upon the affidavit, or upon the information '^ of
some person who knows of the contempt, setting fortli
the causes thereof. The best rule is for the informant to
know the statements he makes to be true, but this has
been allow^ed to be made upon the information and belief
of the party.'® The court may cause a rule that the
relator be given to a time certain to purge himself, but
in the case of a great and a flagrant contempt where
the facts are before the court, it seems that the rule may
not be made and an attachment may issue at once.'"' The
best practice is, however, to allow the relator time in
which to prepare his defense and to secure counsel after
notice.'^

§ 470. In the absence of statute, punishment at the
pleasure of the court. In the absence of a statute, pro-
viding otherwise, the punishment to be inflicted by the
court is entirely at its discretion. But usually it is by
fine and imprisonment, but it appears that at common
law in extreme cases the punishment sometimes was of
a more infamous nature.'^

In many of the jurisdictions the statutes specifically
designate the instances, and under what circumstances
contempts may be committed, but the discretion of the

35— In re Acock, 23 Pac. (Colo.)
1024; Davis v. Davis, 20 N. C. 170;
Ex parte Sterns, 77 Cal. 156; Ex
parte Ah Men, 77 Cal. 198; Ex
parte Fau Gen You, 19 Pae. (Cal.)
500.

36 — State v. Hutchings (Han),
26 Pac. 937; State v. Vincent, 26
Pac. (Kans.) 939; Ludden v. State
(Neb.), 48 N. W. 61.

37— Straight v. Williams, 18 Nev.
43; In re Judson, 3 Black. C. C.
148; Bullock v. McDoughno, 2
Pearson (Pac.) 195.-

38— In re Clark, 208 Mo. 121,
106 S. W. 990, 15 L. E. A. 389;
Ex parte Mylius, 6 S. Va. 406, 56
S. E. 602, 11 Ann. Cas. 812.

39—4 Black. 287; People v. Tool,
35 Colo. 225, 86 Pac. 224, 117 A.
S. E., 108, 6 L. E. A. (N. S.) 822;
State V. Woodfin, 5 Ired. (N. C),
42 Am. Dec. 161 ; People v. Mode,
92 N. Y. 415; Givson v. Hutchin-
don, 148 La. 139, 126 N. W. 790,
Ann. Cas. 1912 B, 1007; Ex parte
Looper, 61 Tex. App. 129, 134 S.
W. 345, Ann. Cas. 1913 B, 32.

414 Criminal Law

court to judge of the circumstances which constitute the
contempt is not usually restricted. As we have seen in
another page, if the court has jurisdiction, the judgTuent
is conclusive, and the judge's discretion is not review-
able in another tribunal.*"

§ 471. Contempts are crime against the general laws.
Many acts which are contempts of court are also of-
fenses against the criminal laws. When such proves
to be the case, an indictment will also lie, for the offense,
and may be punished in the court having jurisdiction of
the same, notwithstanding the same act has been pun-
ished as a contempt. Thus under many statutes certain
acts and the use of certain language are the violation of
the general laws and when directed to and concerning
the courts, are contempts and may be punished by both
and the infliction of punishment of either is no bar to the
conviction of the other.*^

§ 472. As to constitutional court, etc. The general
rule is believed to be that, in the matter of contempts
of court, that all constitutional courts are empowered
and inherently authonzed to punish all such acts and
conduct in the administration of the business of the court,
as it may deem to be for the best conduct of its business.
It appears that the legislature might provide the man-
ner, and the extent of the punishment, and the court
would be bound by the provision, in the absence of the
constitutional power. Yet, however, the court may be
controlled by the legislative act, if the court itself is not a
constitutional one. As we have said in another place

40 — State v. Mathews, 37 N. H. commits a party for contempt, its

400; Ex parte Robertson, 19 Wall. ndjiulicalion is a conviction and its

.505; .Jordan v. State, 14 Tex. 43G; commitment in consequence is ex-

Huntcr v. State, 6 Ind. 423; Ex ocutive. "

parte Kearney, 7 Wh. 38. The 41— State v. Woodfln, 42 Am. Doc.

fonrt finvK: "That uhon a coiirl Ifil.

Contempts of Court

415

the authorities were greatly divided, as to the power
of the legislature to interfere in abridging the court's
l)ower in this respect, yet the rule appears to be well set-
tled that if the constitution has not conferred the right,
the legislature may not interfere, and the reason advanced
for this is that the court itself being a constitutional
creature, adopted with all its common law powers,
nothing but a constitutional power can take from it
these powers.*^

42 — See the following: In the
case of Bradley v. State, 78 Am.
states report page 163, say: "So
while in this state courts created by
the legislature are bound by sec-
tion 4(U6 of the Civil Code, our
superior courts being created by the
constitution having the inherent
powers to decide what are con-
tempts and to punish for contempts,
cannot be controlled in this respect
by the legislature.

' ' The constitutional provision
giving the legislature the power to
limit the power to punish for con-
tempts does not authorize it to de-
fine or classify contempts, but only

the maximum amount of punish-
ment to be imposed after the con-
tempt has been adjudicated?"
State V. Morrill, 16 Ark. 384;
Carter v. Com., 96 Va. 791; Ex
parte Eobinson, 19 Wall. 505 ; Hale
v. State, 55 Ohio St. 210, 45 N. E.
199, 60 A. S. E. 691, 36 L. E. A.
254; Atwell v. United States, 162
Fed. 97, 89 C. C. A. 97, 15 Ann.
Cas. 253, 17 L. E. A. 1049; Ma-
honey V. State, 33 Ind. App. 655,
72 N. E. 151, 104 A. S. E. 276;
Burdett v. Com., 103 Va. 838, 48
S. E. 878, 106 A. S. E. 916, 68 L.
E. A. 251; Smith v. Speed, 11 Okla.
95, 60 Pac. 511, 55 L. E. A. 462.

CHAPTER XXVI

EXTORTION

§ 473. Definition.

§ 474. Officers of the government.

§ 475. Extortion by de facto officer.

§ 476. As to usurpers.
§ 477. Of the intent.

§ 473. Definition. An officer is one who represents the
eommnnity; in fact, he is an employee of the public, and
his compensation and duties are prescribed by law. He
is by reason of his position possessed of a great influ-
ence, and when inclined to abuse the confidence placed
in him, can do a great amount of evil, by reason of that
influence. In order that a check may be placed upon the
evil, which appears to have been extensively practiced,
in early times, the common law punished him who so
transgressed. The most common dereliction of which
the common law noticed, was an offense known in the
books as extortion, which consisted in the corrupt accept-
ing or demanding by an officer greater fees than was
allowed by law, or the accepting or demanding fees before
they were due, by color of his office.^

] — "Extortion signifies, in :iii
enlarged sense, any oppression
under color of right. In a stricter
sense, it signifies the taking of
money by an officer by color of his
office, cither where none is due, or
so much due, or when it is not
due." People v. Whaley, G Cow.
(N. Y.) 661; Eng. & Am. Ecly.
58.5.

"The ordinary meaning of the
word extortion is the taking or ob-
taining of anything from another
by nicnns of illegal compulsion or

()ji])ressive exaction. If an officer
(if llic law has a prisoner in his
custody and by promises or threats
induces him to make a confession
to a crime, such confession is re-
garded extorted or forced, and it
is not admissil)le against the pris-
oner. If such confession is made
to a person not in authority and
ill IK) way directly connected willi
tlie prosecution, the strictness of
llic rule is somewhat modified. The
word extort has acquired a tech-
nical me.'ining in the common law,

416

Extortion

417

§ 474. Officers of the government. Officer signifies an
officer of the law, as contradistinguished from an offi-
cer of a corporation or company. The term includes in
its meaning all persons who either by election or appoint-
ment hold an office, and all persons who assume to act as
officers and perform the duties thereof. This includes
all officers of the Federal and State governments as
sheriffs, marshals, officers of municipalities, mayors, jus-
tices of the peace, all county and state officers.^

§475. Extortion by de facto officer. Officer de facto
may commit this crime. One who assumes to perform the
duties of an office is not permitted to deny the authority
for his act, and is as responsible as if he had in fact
been a legal officer. If, therefore, he by color of his
office accept unlawfully and corruptly, money or other
thing of value not due him, or not yet due, or more than
is due, he is guilty of extortion. A person who under-
takes an office, although he might not have been elected
or duly appointed, and thereby have a defeasible title
only, or he having not been compelled to serve therein, is
yet, from the authority which he has assumed, bound
to perform all the duties, both commission and omission,
in the same manner, and with the same fidelity he would

and designates a crime committed
by an officer of the law, who, under
color of his office, unlawfully and
corruptly takes any money or other
thing of value, that is not due to
him, or more than is due, or be-
fore it is due. The officer must un-
lawfully and corruptly receive such
money or article of value, for his
own benefit or advantage." U. S.
V. Deavers, 14 Fed. Eep. 595.

"Extortion which is an offense
at common law, is defined to be the
abuse of public justice, which con-
sists in any officer unlawfully tak-
C. L.— 27

ing, by color of his office, from any
man, any money, or thing of value
that is not due him, or more than
is due, or before it is due, the pun-
ishment of which is fine and im-
prisonment, and sometimes a for-
feiture of office. Com. v. Michell,
3 Bush. (Ky.) 25, 96 Am. Dec.
192.

2— Com. V. Bagley, 7 Pick, 279;
State V. Merritt, 5 Sneed 67; Wil-
cox V. Bowers, 36 Mo. App. 327;
Com. V. Rhodes, 6 B. Mon. 171;
Com. V. Hogan, 9 Phila. 574; State
V. Morris, 33 N. J. L. 142.

418 Criminal Law

have perfonned in case his right to the office was legal and
unquestioned.^

§ 476. As to usurper. One who claims an office not in
existence, or one not created by law, or authorized by
law, does not come within the meaning of a de facto
officer, for a de facto officer is one who claims the right
to the office under a color of right, either by election,
appointment, or under some other state of circumstances,
authorized and created by law. So, if the constitution of
the state ^-^ ""^ -^ legislature, has not created the office, one
who assumes to be an officer can be nothing more than
an usui-jDer, and his acts in reference thereto cannot be
said to be by color of the office, for if there is no such
office, he acts without color of authority.* An officer can-
not be convicted for accepting and collecting fees, by
color of his office, which were unauthorized by the law.
The court said: "The amount being fixed by law for
specific services higher fee cannot be demanded, witliout
the party demanding the same being guilty of an of-
fense such as should be denounced and punished by our
law. But on the other hand it frequently occurs that
officers have reasonable grounds for believing and do
believe that they are entitled to fees, when in fact they
are not. Hence our code denounces the officer who de-
mands or receives higher fees than are allowed by law.®

§ 477. Of intent. In a criminal case of the grade of
felony, or a misdemeanor mala in se, intent must exist be-

3_Sellers v. State, 7 Rich. (S. 318, 29 S. E. 931, 68 A. S. R. 95;

C.) L. 308; State v. McEntyro, 3 Slate v. Cclenian, 99 Minn. 487,

Ired. (N. C.) 171; Ilerryton v. 110 N. W. 5, 116 A. S. R. 441,

State, 103 Ga. 318, 29 S. E. 931, note; Conn v. Michell, 3 Bush.

68 A. S. R. 95; State v. Calcnian, (Ky.) 25, 90 Anicr. Dec. 191, and

99 Minn. 487, 110 N. W. 5, 110 A. note; Kirhy v. State, 57 N. J. L.

8. R. 441, note; Com. v. Michell, 320.

.'. Hii.sh. (Ky.) 25, 90 Anirr. Dec. 5— Smitli v. State, 10 Tex. App.

101, anrl note. 113.

4 — Hcrryton v. State, 103 Ga.

Extortion 419

fore criminal liability. But in this crime it appears,
it is not necessary there should be a specific intent.
It appears that where the crime is small, or a misde-
meanor, no intent is necessary. The doing of the act
is sufficient. Thus: That a justice of the peace believed
he had a legal right to charge the fees he did, and in
good faith, in taxing and collecting the fees, constitute
no defense; the ignorance of the law is no excuse. If
so, the denser the ignorance, the greater would be the
exemption from liability. This rule might, under some
circumstances, be relaxed. But, as a general proposi-
tion, an officer who by color of his office, demands and
exacts greater fees than permitted under the law, is
guilty when it is shown that he has done so. Where
one pays to an officer greater fees than are permitted
under the law, he may recover the same from him by
suit.^

6— Cobbey v. Burks, 38 Am. Mout. 205, 50 Am. St. Eep. 498;

Rep. 364. See note to Extortion, Gardner v. People, 62 N. Y. 299;

vol. 19 Cly. Law and Psoc, page People v. O 'Brian, 96 Gal. 171.
38; Laggett v. Prideaux, 16

CHAPTER XXVII

EMBEZZLEMENT

§ 478. Definition. § 488.

§ 479. At common law, was not a
crime.

§ 480. Distinctly a statutory of- § 489.
fense.

§ 481. Kule as to clerks, servants § 489a
and the like.

§ 482. Of the kind of property.

§ 483. Property illegally acquired § 490.
by principal, agent may
embezzle. § 491.

§ 484. Eelation of trust, explana-
tion.

§ 485. Further considered. § 492.

§ 486. As to the class of persons.

§ 487. Explanation of the terms of
statutes.

The relation of trust ia not
dependent upon compensa-
tion.

Part owner not subject to
for joint property.

. To borrow money for spe-
cific purpose, failure to ap-
ply-

EmplojTuent when of special

nature.

The intent must exist at the
time of taking the prop-
erty.

Offering to restore may be
shown in mitigation.

§ 478. Definition. By laws of England the crime of
embezzlement was defined to be the unlawful and
fraudulent appropriation, to his own use, by a servant
or clerk of money or chattels, received by him for and on
account of his master or employer. A general American
definition is: the unlawful and fraudulent appropriation
of personal property to whom it has been entrusted.^
Under our statutes, every person to whom, has been en-
trusted the care, custody, or control of the personal
property of another, who fraudulently appropriates the
same to his own benefit, is guilty of embezzlement.

Embezzlement differs from larceny in this, that in the
former, the possession is acquired by legal means and with
legal consent of the owner, while in the latter the pos-

1—4 Bla. Com. 230, 232.

420

Embezzlement 421

session is acquired unlawfully and fraudulently, and with-
out the consent of the owner. Legal possession is the
controlling element of the crime, for embezzlement cannot
be committed, except where the possession of the prop-
erty has come legally into the hands of the accused
through and by reason of the terms of a trust. If the pos-
session is acquired unlawfully, it is larceny, false pre-
tenses or simple trespass, according to the circumstances.

§ 479. At common law was not a crime. At the com-
mon law, there were no means whereby a person sustain-
ing a fiduciary relation to another, could be punished for
converting to his own use and benefit, goods and chattels
which had been entrusted to his care, custody and con-
trol. Where a clerk or servant came into the possession
of goods of the master or employer, and converted the
same, before the master or employer secured the pos-
session, this conversion amounted only to a breach of
trust, and could not be punished under the principles of
law applicable to larceny.^ In consequence of the failure
of the law to reach this class of offenders, the 39 George
III, c. 85, was passed, and was entitled, ''An act to pro-
tect masters against embezzlements by their clerks and
servants." Two classes of offenders were intended to be
reached by this enactment: (1) At the common law it
was necessary that the property be in the possession of
the owner or his bailee, and theft could only be commit-
ted by another person taking it from that possession, and
since the possession of the clerk and the servant was that
of the owner, the conversion of the goods coming to his
possession for the master, before the master had gotten
it actually into his hands, was a breach of trust only. (2)
The goods of the owner being in the possession of tlia
bailee by his consent, the subsequent conversion of the
goods was only a civil trespass, or breach of trust, and

2—1 East P. C. 570.

422 Criminal, Law

not theft, and hence, as against these two classes of of-
fenders, the master had no remedy, except a right of
action for the conversion.* This statute was simply in-
tended to supply this defect in the common law of larceny.
It appears that m construing these statutes, an act that
amounted to larceny must be prosecuted as larceny and
not as embezzlement; in other words, an embezzlement
statute could not overlap and take jurisdiction of acts
which amounted to common law larceny. Thus, under a
statute: ''If any carrier or other bailee shall embezzle,
or convert to his own use, any money, goods, rights in
action, property, effects or valuable security, which shall
have come into his possession, or have been delivered to
him, or placed under his care or custody, such bailee, al-
though he shall not break any trunk, package, box, or
other thing in which he received them, shall be deemed
guilty of larceny, and on conviction, shall be punished
as in cases of larceny," the accused was indicted for the
crime of larceny, and the court held that the two offenses
are so far distinct in their character, that under an in-
dictment charging merely a larceny, evidence of embez-
zlement is not sufficient to authorize a conviction, and
that the indictment for the embezzlement must set out
the acts of embezzlement, notwithstanding that the statute
provides that he shall be punished as in the case of lar-
ceny.*

11" llie master or employer secured the actual or con-
structive possession of the goods, before the servant oi-
clerk, tliat possession amounted to the master's or em-
ployer's possession, and If the servant or clerk after-
wards came into the actual possession of the goods, and
converted it, this was larceny by the clerk.^

Thus to illustrate: B, clerking for C, receives money
for an article soUl, puts tlic money in his pocket, before

3—2 East p. C. 565. State v. Sin^o, 89 Ind. 2G4; Lcon-

4— Fulton V. State, 13 Ark. 1GS. :inl v. Rtatc, 7 'IVx. App. 418.
5— Kerr v. iVople, HO 111. QM);

Embezzlement 423

llie master secures the possession, this at common law is
nothing more than a breach of trust. But if the money
for which the article sold is placed in the till, and he
afterwards takes it and places it in his pocket with the
intent to appropriate it, it is larceny, for, the act of
placing it in the till transferred the possession to the
master, and took it from the clerk. So, again B, a servant,
secures the possession of goods consigned to C, before
it has finally reached the destination, or before C secures
the possession either actually or constructively, and con-
verts the same to his use; this is a breach of trust only,
for this is a possession for the owner; but if B deliver
the goods to C, and aftenvards converts them, it is lar-
ceny, for the reason that the possession is in him for
a particular purpose for the master, and by a fiction of
the law his possession is that of the master.^ It is there-
fore for the mere breach of trust, that the embezzlement
statutes are created. Thus, as where goods are shipped,
by common carrier, and they have reached the final des-
tination, they are deemed to be in the constructive pos-
session of the owner or consignee, and if the servant
gains the possession of the goods by a delivery by the
carrier, and converts them, before the consignee secures
the actual possession, this is by the common law, larceny,
and not embezzlement.''' So, also, goods delivered on be-
half of the master, by a third person, to the servant is
larceny if converted by the servant.®

§ 480. Distinctly statutory. This offense is distinctively
a statutoiy one. In the early ages of the law, the condi-

6— United States v. Clew, 4 W. Va. 146, 52 S. E. 30, 6 Ann.

Wash. C. C. 700; Johnson v. Com., Cas. 344; Conn v. Eyan, 155 Wis.

5 Bush. 431; Warmoth v. Com., 81 523, 31 A. S. E. 560, 15 L. E. A.

Ky. 133. 317, 30 N. E. 364; People v. Mil-

7— Moore v. United States, 160 ler, 160 N. Y. 339, 6 N. E. 418, 88

U. S. 268, 40 (L. ed.) 422; A. S. E. 546.

Egleston v. State, 129 Ala. 80, 30 8— People v. Burr, 41 How. Pr.

So. 582. Note where the matter is 295; Com. v. Doherty, 127 Mass.

fully presented. State v. Moyer, 58 26 ; Com. v. Berry, 99 Mass. 428.

424 Criminal Law

tions of society were not so complex as it has since grown
to be. The technical rules of the law had become so
fixed, that the extensions of the principles were found im-
possible of application and in many instances grave
wrongs were committed, and the offenders went free,
while in fact guilty of fraudulently converting to their
use the goods of their masters. The statutes of the sev-
eral states are to a great extent copied from the English
statutes, and undertake to meet and punish every case,
where one by reason of his employment, agency, or rela-
tion of confidence, acquires the possession of the per-
sonal property of another, and fraudulently converts the
same to his use and benefit.

The statutes of the American states are all modeled
after the English statutes, 39 George III, C. 85: "If any
servant or clerk, or any person employed for the purpose,
in the capacity of a servant or clerk, to any person or
persons whomsoever, to any coiporate or politic, shall,
by virtue of such employment, receive or take into his
possession, any money, goods, bonds, bill, notes, banker's
checks, or other valuable security or effects, for, or in the
name, or on account of his master or masters, or employ-
ers, and shall fraudulently embezzle, secrete, or make
away witli the same, or any part thereof; every such of-
fender shall be deemed to have feloniously stolen the same
from his master or masters or employer or employers, for
whose use or in whose name or names, or on whose ac-
count, the same was or were delivered to or taken into
the possession of such servant, clerk or other person, so
employed; althougli such money, or goods, bonds, bill,
note, bank draft, or otlier valuable security, was or were
received into the possession of his or their servant, clerk
or other person so employed. And eveiy sucli offender,
Ills adviser, procurer, or aider or abettor, being tliercof
lawfully convicted or attainted, sliall be liable to be trans-
pr)rt('(l to such parts beyond the seas, as his majesty, by
and witii the advice of his privy council shall appoint

Embezzlement 425

for any tenn not exceeding fourteen years. ' ' This statute
was amended by 7 & 8 George IV, c. 29, sec. 49: ''That if
any clerk or servant or any person employed for the pur-
pose or in the capacity of clerk or servant, shall by virtue
of such employment receive or take into his possession
any chattel, money or valuable security for, or in the
name or on the account of his master, and shall fraudu-
lently embezzle the same, or any part thereof, every such
offender shall be deemed to have feloniously stolen the
same from his master, although such chattel, money or
security was not received into the possession of such
master othenvise than through the actual possession of
his clerk, servant or other person so employed. ' ' ^

Statute 24 and 25 Vict, c. 96, sec. 98: "AVhosoever, be-
ing a clerk or servant, or being employed for the pur-
pose, or in the capacity of a clerk or servant, shall fraud-
ulently embezzle any chattel, money, or other valuable
security, which shall be delivered to, or received, or taken
into the possession by him for or in the name or on the
account of his master or employer, or any part thereof,
shall be deemed to have feloniously stolen same from his
master, although such chattel, money or other security,
was not received into the possession of such master or
employer other than by the actual possession of his
clerk, sen^ant or other person so employed." The stat-
utes of George III and IV both employed the phrase,
"by virtue of his employment." Therefore in order to
convict for the embezzlement it must be shown that the
property embezzled came into the defendant's possession,
"by virtue of his employment," "for or in the name, or
on account of his master or employer. ' ' ^° Hence under
these statutes the persons named in the statute receiv-
ing or coming into possession of the master's goods (as

9— Eex V. Thorley, 1 Moody C. C. 10— Eex v. Beaumont Dears C.

343; Rex v. Armon, 7 Cox C. C. 45; C. 270; Eex v. Harris, 6 Cox C. C.

Rex V. Latisberry, 5 Car. & Pac. 360.
156.

426 Criminal Law

set out in the statute) could not be held for the embezzle-
ment, if they acquired the possession other than *'by
virtue of their emploj^iient." The statute of Victoria
no doubt was enacted for the puiioose in part of remedy-
ing this defect of the former statutes, in order to hold all
parties (named in the statute) from converting property
which might come into their possession outside of their
employment. The careful reading of the statute, 24 and
25 Vict, will disclose that the phrase, "by virtue of his
emplojTnent, ' ' is left out of the enactment. The statutes
of the several states are in many respects similar to these,
and the construction placed upon them by the English
courts, become quite important to the investigator, and
under this later statute, a servant or clerk or other person
under the employment of another, who receives the goods
and chattels or money of his employer, is guilty of em-
bezzlement, if he fraudulently convert the same whether
he receive the same in the regular line of his employ-
ment or duty or without the scope of his authority. A
further discussion of these statutes will be found as we
proceed.

§ 481. Rule as to clerks, servants and the like. Upon
these statutes arose the contention, that they were merely
created for the purpose of making that larceny, which
was not so at common law; and again, that any act
which was larceny at common law, could not be included
in an embezzlement statute." Upon these points there
is a great conflict in the authorities, but the weight of
authority, and the trend of modern enactments is toward
relief in this respect.^''

11— Kor V. People, 110 111. 630; 581; People v. llenncssy, 15 Wend.

Htirk V. People, 91 N. Y. 5 ; Ful- 147; Calkins v. State, 98 Am. Dec.

ton V. 8tato, 13 Ark. KiS; Leon- 121. 8eo Extensive note. State v.

ard V. State, 7 Tex. App. 418. I'.uttlcr, 26 Minn. 00.

12 — People V. Dalton, 15 Wend.

Embezzlement 427

In the absence of constitutional inhibitions, there is no
sound legal reason why the legislature may not possess
authority to make any act embezzlement, which was lar-
ceny at the common law. But in the application of these
statutes, have arisen many nice and curious distinctions,
based upon the niles of the common law relating to
larceny. The contention being that if the servant or clerk
or other person mentioned by the statute, had the mere
custody or temporary charge of the master's property,
and converted the property to his use, he was not guilty
of embezzlement, but of common law larceny.^^ The con-
sequence has been that if the pleader failed to properly
determine the question whether the servant or clerk held
the possession or merely the custody of the property,
there would be a variance between the allegations of the
indictment and the proof, and the defendant would go
free, although in fact guilty of converting the goods.
Thus to obviate that perversion of law, statute 14 and
15 Vict., c. 100, sec. 13, provided that, "whoever on the
trial of an indictment for embezzlement, it should be
proved that the taking amounted to larceny, there should
not be an acquittal, but a conviction may be for the
larceny. ' ' ^*

Some of the statutes of the American states contain
similar provisions, authorizing the conviction of one upon
the indictment for the other.^^ So, it is generally con-
ceded it is believed that, on the account of the general
similarity of the crime of embezzlement and larceny, that
an indictment may contain one count for the embezzle-
ment and one for the larceny, and thereby meet the exi-
gencies of the case.^^

13 — Com. V. Simpson, 9 Mete. 15 — State v. Polard, 33 La. Ann.

138; Berry v. Com., 96 Am. Dec. 524; Wliitmore v. State, 11 Tex.

767; Powel v. State, 34 Ark. 693; App. 414.

Zysman v. State (Tex.), 60 S. W. 16— See Authorities collated on

669; State v. Wiugo, 89 Ind. 204. page 160, 98 Am. Dec, note Caul-

14 — State V. Parmer, 32 La. Ann. kins v. State.
565; Mayo v. State, 30 Ala. 32.

428 Criminal Law

§ 482. Of the kind of property. The property subject
to be embezzled is controlled by the statute. Those whose
investigation require particularity, the only safe course
to pursue is to consult the statute of the jurisdiction and
the decisions of the local courts. The statutes are not
uniform, and what in one statute may be subject of em-
bezzlement may not be in another. The nature and the
principles of the crime preclude other than personal
property. Real estate is not capable of being embezzled.
Of course, if real estate is converted into money or any
other character of personal property, it may be converted
and thereby become embezzlement. Where a statute
provides that all such property as is subject to larceny
may be embezzled, this would embrace both common law
and statutoiy larceny." The term "Property" used in
an embezzlement statute includes in its meaning, money,
as held in Texas case: " "Money or property" includes
promissory notes and bills of exchange.^® "Money in-
cludes gold, silver, copper or other coin, as well as bank
bills, government notes, and all other circulating me-
dium, current as money. ' ' ^° Shares of stock in a corpo-
ration or company are included in the term property.''^

§ 483. Property illegally acquired by principal, agent
may embezzle. The fact that an agent, servant or an
employee converts property, which has come into his
hands and which has been acquired by the principal in
the pursuit of an unlawful calling, and are but the fruits
of crime, or of some business which the law prohibits, he
is, nevertheless, guilty of embezzlement.^''

17— state V. Staler, 36 la. 321. ' 489, 126 Pac. 403, Ann. Cas. 1914 B,

18— Brown v. State, 23 Tex. App. 2ol ; State v. Farley, 71 W. Va.

214, 4 S. W. 588. 100, 76 S. E. 134, 42 L. R. A. (N.

19— State V. Orwig, 24 la. 102. S.) 49S.

20— People v. Williams, 60 Cal. 1. 22— Com. v. Smith, 129 Mass.

21— Taylor v. State, 29 Tex. 124; Com. v. Cooper, 130 Mass, 285.
App. 466; State v. Sage, 22 Idaho

Embezzlement 429

"If it were a fact that the defendant received money
as agent for his principal, acquired upon an illegal con-
sideration and in the transaction of an unlawful busi-
ness, did not constitute any valid or sufficient defense,
against the charge of embezzlement.^^

"If it is urged on the part of the appellant, that the
bank (a national bank) cannot under the law own per-
sonal property, or take mortgages, or other liens upon
such property, and therefore cannot hold the cotton in
question, as a pledge or security for the pajonent of
money advanced on the faith of it. " " We are aware of
no authority which goes to the extent of permitting
one charged with embezzlement of projjerty so situated,
or the theft of property, or any kind of fraudulent and
criminal appropriation or disposition of it, to raise the
question of ultra vires." ^ "The examination of the
authorities that where the money or property was ac-
quired by the defendants as agents and converted by
them, grew out of illegal transactions, and shows that the
law, in such cases, is that, if money has actually been
paid to an agent for the use of his principal, the legality
of the transaction of which it is the fruit does not affect
the right of the principal to recover it out of the agent's
hands, nor divest him of his right thereto. ' ' ^^

§ 484. Of the relation of trust, explanations of. The
phrase by virtue of his employment or some similar ex-
pression appears in the English statutes, and is used in
most of our American statutes. It is a condition prece-
dent to a conviction for embezzlement, that it appear
that the property was received and possession was ac-
quired, during the course, and by virtue of the employ-

23— state v. Tumey, 3 Cr. Lw. 25— State v. Williamson, 21 L. E.

Mag. 504; ShacT v. State, 80 Mo. A. 827, 118 Mo. 146.
358.

24— Leonard v. State, 7 Tex.
App. 418.

430 Criminal Law

meiit.'^^ If the property came into the possession of the
defendant, outside and independent of his employment or
agency, the conversion of the goods would not be embez-
zlement. This offense cannot be committed unless there
exists a relation of confidence between the prosecutor and
the defendant. If no such relation exists, then the taking
and converting of the property would be larceny, or the
trespass for which a right of action could be main-
tained, by the owner. So, it seems, that whether the stat-
ute employs the temi "by virtue" of his employment, or
not, yet if the relation exists as contemplated by the
statute, the crime would be committed. The rule to de-
termine the condition of trust or agency depends largely
upon the construction placed upon the particular statute.
But stated generally, so long as the acts are within the
scope of his authority, the fiduciary relation is main-
tained, and the conversion of the goods and properties
entrusted to the accused will constitute the offense.
AVhere possession is acquired by reason of the relation
of master and servant, and not in the line of the servant's
duty, the conversion of the goods under such circum-
stances is not embezzlement. Thus, where a servant
whose duty it was to lead a stallion, and who was charged
by the owner not to let Imn for more than thirty shillings
and for not less than twenty, but who in violation of his
instructions, let him for six, and converted the money, it
was held that he could not be convicted of embezzlement,
because he did not receive the money **by virtue of his
employment" in this, that he was only autliorized, as a
miiiiiunm to accept twenty shillings.

§ 485. Explanations — Continued. The doctrine of the
preceding section does not appear to have been followed

26 — Pullam v. State, 78 Ala. 31, iiio 7!> ; Heed v. State, 16 Tex. Apjt.

r.O Am. Hc|). 21; Com. v. O'Neally, r,{H); State v. Casey, 207 Mo. 1, 105

!»7 MasH. .'584; JVople v. Dalfon, 1'. S. W. (i4.'5, 120 A. S. R. :?r.7, l;^ Ann.

Wen.l. r,Hl ; Teoplo v. Alien, 5 De- Cas. 878.

Embezzlement 431

by subsequent adjudication. The rule is now well settled
that the agent, clerk, etc., coming into the possession of
property of his employer, by virtue of his employment,
but which is not in line of his duty, the conversion of the
property thus acquired, would come within the statute.
An illustration is found in the case where a clerk was
authorized and whose duty it was to accept and receipt
for moneys collected by others from customers, and who
collected money from a customer direct, and converted
it to his own use, it was held that he was guilty of em-
bezzlement.^''' It must, however, be understood that in
order to apply this rule the property must have been
accepted as the property of the employer, and on his
account. For if it is received by the agent for the pur-
pose of appropriating it to his own use, at the time of
the reception, it will be larceny. A statement of a rule,
based upon adjudications, which are in turn founded upon
a particular statement of fact, is only an evidence of what
the law is, in similar cases, and could not be invoked as a
rule in case of dissimilar facts. Clearly, if one holds
himself out to another as an agent- of a third person, when
in fact he is not, and thereby obtains the possession of
his propei'ty, upon the strength of such representations,
he would be guilty of larceny or false pretenses, and not
of embezzlement. So, if an agency or a relation of con-
fidence is once created and the property of the principal
is converted by the defendant, which has come to him
by reason of the relation, although it came not through
the line of his ordinary duties as such agent, he is not
permitted to terminate the relation at will, or caprice.^®

§ 486. Of the persons — Only such classes of person as
clearly in the statute, subject to. This being a penal stat-

27 — State v. Costing 89 N. C. money for them aiid deliver it to

511, Am. Cr. Eep., vol. 4, 169. his employers. He sold tfiem for a

28 — "The defendant agreed to less price than he was authorized

sell the shoes as instructed, get the to do, received the money for his

432

Crimhstal Law

ute its terms must be strictly construed, and no class of
persons can be included within its meaning, except those
that are definitely within its pui'view. Many terms are
used in these statutes. The most general being "clerk,"
"agent," "servant," "employee," "trustee," "bailee,"
"collectors," "attorneys" and "officers." It becomes
important to ascertain the meaning of these terms.

§ 487. Definition and explanation of terms of statute.
"Clerk" is confined to a specific kind of employment,
and ^ has been defined as a person employed to keep ac-
counts and to receive payment thereon,^" and includes
within its meaning commercial travelers, though their
compensation is by commission on sales.^^

The term ' ' agent ' ' includes all those who are authorized
by another to represent him in any specific capacity. It ^^
is more comprehensive than the tenn "clerk" or "serv-
ant," and grants full authority to act for the principal —
as the principal might act in his own person. It has been
held that it will not include a mere naked bailee, who
holds possession for the principal. ^^ The term * ' servant ' '

employers, and fraudulently dis-
posed of and applied it to his own
use. The money was not his; he re-
ceived it for his employers; it bc-
lonpcd to them, at all events, until
tlioy disowned the sale, and this
they did not do.

' ' An agent, clerk or scn'ant can-
not thus tlirow off his relation to
his oiiij)loycr and evade the stat-
ute. It <\()VH not lie in the moulli
of tlie defendant to say that lie
did not sell the shoes for his em-
ployer, and that the money was
not his." State v. Costin, 4 Am.
Cr. Rep. 169.

29 — Com. V. Libbey, 4.'> Am. Dec.
11, Met. (Mass.) 64; McCrnny v.
State, 51 Tex. App. 502, 103 8. W.

024, 123 A. S. E. 905, 14 Ann. Cas.
722

30— Com. V. King, 9 Cush. 284;
State V. Roubles, 43 La. Ann. 200,
9 So. 435, 20 A. S. R. 179.

31— State V. Farley, 71 W. Va.
ion, 76 S. E. 134, 42 L. R. A. (N.
S.) 498.

32— Brown v. State (Ala.), 3 S.
W. 816. In this case it was held
1li;i1 .-I iii:iil riilcr ciiiploycd by the
United States to carry the mail,
was not the agent of the sender of
a letter, who had deposited it in
the mail bags under his control.

:<;{— Pullam v. State, 78 Ala. 31,
GG Am. Kep. 21 ; Ilammel v. State,
5 Mo. 260.

Embezzlement 433

within the meaning of an embezzlement statute is any
person who is in the employ of another and who in the
discharge of his duties is subject to the immediate con-
trol and direction of the employer.^* But if he is not
subject to the immediate control and direction of the
employer, and is invested with any discretion concern-
ing the performance of his duties he is not a servant.
So, female servants, house servants, stage drivers, day
laborers, commercial travelers and collectors whose du-
ties are specifically defined and limited are servants
within the meaning of these statutes.^^ The term ''em-
ployee" seems to include any person employed in any
capacity, but in common parlance applies to those per-
sons who receive compensation for labor or personal serv-
ices rendered for another.^^ ''Trustee" is one to whom
property is intrusted for the benefit of another. The term
is more comprehensive than "bailee" and less compre-
hensive than "agent. "3^ Under the English statutes
"trustee" has been held to embrace a person who was
a secretary or treasurer of a bank, where by the rules
of the bank he was required to hold over money for the
trustees or directors of the bank.^s "Bailee" includes
those persons, who are authorized to keep, transfer and
deliver the property of another.^^ "Collectors" include
those persons who follow the specific and independent
business of collecting debts for other persons. But where
persons are employed in the business of collecting for
others, subject to the control and direction of the em-
ployer, they are agents.*** "Attorneys" are the agents

34— Gravatt v. State, 25 Ohio 39— People v. Peterson, 9 Cal.

St. 1G2. 313; Krause v. Com., 93 Pa. St.

35— People v. Sherman, 10 Wend. 418.

298, 25 Am, Dee. 563. 40— Campbell v. State, 35 Ohio

36— See Webster's Diet. St. 70; Com. v. Libbey, 45 Am.

37— Huchinson v. Com., 82 Pa. Dec. 185.
St. 472.

38 — Com. V. Turner, 97 Mass.
50.

C. L.— 28

434 Criminal Law

of their clients and if tliey collect the money of such and
convert it to their oAvn use and benefit it is embezzle-
ment.*^ The teiTii "office" is generally applicable to all
persons elected or appointed to perform political or mu-
nicipal duties, and it applies to the officers of corpora-
tions, which are merely private concerns.*^

§ 488. The relation of trust is not dependent upon com-
pensation. AVhere there is a fiduciaiy relation existing
between the parties it is immaterial that the accused
should have received a stipend, fee, salaiy, commissions,
or other compensation for his services.

If one assmnes to take charge of the property of an-
other, where he came lawfully into his possession, he
thereby becomes the agent, bailee, or custodian of the
property and is not pennitted to hide behind the want
of a compensation or a valid legal consideration as a de-
fense to the conversion of the goods." So, one incompe-
tent to contract may become the bailee of another.**

§ 489. Part owners not subject to embezzlement of joint
property. Part owners cannot be guilty of embezzling
property jointly owned for the possession of one co-own-
er is that of all. Where one receives money, a portion
of which belongs to himself as a commission on the whole
amount, he is not guilty of embezzlement, though he con-
vert the whole. This rule is based upon the condition
that the money becomes liis when he collects it, and mere-
ly creates a right against the principal lor a payment oi'
his commission.*^ 1 n other words, if the whole amount col-

41— People V. Treadwell, 69 Cal. St. 70; State v. Fraley, 71 W. Va,

226; State v. Bclden, 35 La. Ann. 100, 76 S. E. 134, 42 L. K. A. (N.

823. S.) 498.

42— People v. McKinney, 10 44— Kcgina v. Sectclift, 4 Mc-

Mk-li. 54; Statu v. lirandt, 41 la. Cord ;]87.

593; Com, v. Marressy, 86 Pa. St. 45— Stone v. Com. (Ky.), 46 S.

4H;. W. 221, 104 Ky. 220, 84 A. S. E.

43— Com. V. Sinilli, 129 MaHw. 452, 6 Am. & Knj,'. Kcly. Law 475.
104; Campbell v. State, 35 Ohio

Embezzlement 435

lected belongs to the principal, and the commission is to
be collected from the principal as an independent action
or transaction, the conversion would be embezzlement.*'^
So, upon this theory, seems to be based the proposition
that if a collector, engaged in the business of collecting,
his commissions become a part of the money collected,
he a co-owner with the principal, and hence a conversion
of the whole is not embezzlement.*'

§ 489a. To borrow money for specific purposes, failure
to do so not embezzlement. One who borrows money for
a specific purpose and agrees to apply it in payment
of a particular debt, is not guilty of embezzlement in
applying the money to other purposes, and in failing to
return it, where, the transaction is a loan for exchange.
The loan of money for exchange that is, to be used, the
title to it is transferred to the borrower.*^ The borrower,
in this case, does not become a bailee. AVhere property is
placed in the custody of a bailee, he has a right equivalent
to that of the owner, as against third parties, and for this
purpose, his title is complete, but as against the owmer,
the title is in the owner, and the conversion of the prop-
erty by the bailee would be embezzlement ; but in a loan
for exchange, the title to the thing lent is transferred to
the borrower, and he must bear all expenses, and is en-
titled to all of its increase, and by reason of said trans-
action, he does not thereby occupy a position of trust and
confidence with relation to the thing borrowed, but mere-
ly the obligation to repay the lender in kind, at a fixed

46— stone v. Com., supra. 46 S. W. 721, 84 A. S. R. 452; State

47— Clark v. Com. (Ky.), 29 S. v. Moyer, 58 W. Va. 146, 52 S. E.

W. 973; Com. v. Libbey, 45 Am. 30, 6 Ann. Cas. 344.

Dec. 185, 11 Met. (Mass.) 64; 48— Calwell v. Hall, 60 Miss.

McElroy v. People, 202 111. 473, 66 330; Pugh v. Paine, 62 Ala. 340,

N. E. 1058; Wallis v. State, 54 34 Amer. Eep. 24; State of Mon-

Ark. 61, 16 S. W. 822. See follow- tana v. Oskar Karri, 51 Montana

in{>; cases— Question of Commis- 157, 149 Pae. 956, L. E. A. 1916 F,

sions: Stone v. Com., 104 Ky. 220, 90.

436 Criminal Law

time. The transaction effecting chattels in general,
is what is known in the Roman law as the mutuum,
and is regarded in law in the nature of a sale. The law
is different, however, where the boiTower borrows a
specific article to be returned; in that event, he be-
comes a bailee, and his title is in the lender, and by the
transaction does not pass from him. Transactions often
occur where the money turned into the hands of the
holder does not pass title to him, and instances may be
found in that of stake holders, or where money is turned
for the puiT)ose of making a tender. The distinction is
not difficult of solution, all depending upon whether the
money is to be used in free exchange, or whether it is
to be used for a specific pui-pose, and then to be returned.*^

§ 490. As to emplojrment when of a special nature.
There is no uniformity in the early cases construing these
statutes, where the employment is of only a special na-
ture or limited to a particular transaction. One line of
adjudications maintaining that the relation of master
and servant is not created, unless the employment is of a
general nature. Thus if a person is given money to pay
to a third person, this does not make his act in
undertaking to deliver the money, a servant, within the
contemplation of the statute.*"

Whether this is a correct view to take, depends largely
upon the statute. As where the statute defines the per-
son as *'any officer, agent or clerk" it was held that a
person could not be convicted of the crime unless it ap-
peared that lie was in the regular employment of the
principal." This is very evident for the reason that the

49— Clark v. State, 61 Tex. Crini. 50— People v. Dalton, 15 Wend.

l?op. r)3t), 135 S. W. ."375; Welsh v. 581.

I'ri. pie, 17 111. ."iiM); Slato v. Hrvan, .".1— .Jolinsoii v. Stiito, !) Biixtcr

ir, X. V,. 104; IVoplo V. Tli.nn.is, 27D.
82 N. Y. Supp. 215; Com. v. Stone,
2:;(; Pnr. ?,r,, 84 Atlantic 659.

Embezzlement 437

terms of the statute designating the person, make only
such a class amenable to it, as in the ordinary and tech-
nical meaning of the terms used, imports a regular or
pei-manent employment. So, under this statute it was
held that a person who was sent upon en^ands occa-
sionally, did not come within the terms of the statute.
No class of persons engaged in the service of another is
amenable to the statute unless he come within the mean-
ing, and as we have said in another connection, this
being a penal statute it must be construed strictly. We
believe that the rule, more in accordance with sound rea-
soning is, that where the relation of trust is created by
the relation of the parties, property entrusted to one
whether in the capacity of regular employment or not,
if converted by him is embezzlement. So, where one was
employed to wait around the store and the business, and
the line of his duty being to sweep out the store and do
such things as he might be called upon to do in the
store as a man of all work; was entrusted with shoes to
sell at fifty cents per pair and he sold them at twenty-
five cents and converted them, he was held to be guilty
of embezzlement — and so far a servant; although his
defense in the case was that it was out of his line of
duty and hence not a servant.^''

§ 491. Of the intent. The appropriation of the prop-
erty must be made with the fraudulent or felonious intent
to deprive the owner of the property.^' It may be stated
that this intent, as a general rule, is to exist, at the time

52— state v. Costin, 89 N. C. 511; Smith v. State, 53 Tex. App. 117, 15

State V. Costin, 4 Am. Cr. Eep. Ann. Cas. 435, and note.
169; Com. v. Foster, 107 Mass. 53— Beaty v. State, 82 Ind. 228;

221; Campbell v. State, 35 Ohio State v. Lyon, 45 N. Y. L. 272;

70; State v. Foster, 37 la. 146. As Hoyt v. State, 50 Ga. 313; Com. v.

a further illustration: Tex. 1, see: Wilson, 7 Ky. E. 666; Com. v.

Eggleston v. State, 129 Ala. 80, 30 , 132 Mass. 246; Territory

So. 582, 87 A. S. R. 37, and note; v. Hale, 13 N. M. 181, 81 Pac.

438 Criminal Law

of the conversion of the property. As a general rule in
order to constitute a crime, a criminal intent, specifically
to commit that particular crime, is essential to it. This,
however, is not always the case. The exception is found
where the statute has created a crime out of the doing
or not doing of an act. If the statute is violated, then
the fact that the defendant did the prohibited act,
makes him guilty without a specific intent. The statute
levels its heavy hand upon the act and not upon the
intent with which the act was committed. This nile
though in particular instances has exceptions; as
where the person doing the act is a non compos
mentis, a lunatic, or an infant, or other incompetent
person whose acts are but the acts of inanimates,
or chance or fortune. But where a person otherwise com-
petent to direct his action and volition of will, does the
act prohibited, he then is taken in law to have intended
the consequences of his acts. So, where, tlie terms of the
statutes indicate the particular intent the government
to should allege and establish this intent. Where there
is no question as to the meaning of the statute as where
the terai is such as, ''wilfully," ''unlawfully," the in-
dictment will be sufficient if the statute is followed. In
truth, the better rule is to follow the words of the stat-
ute. But where the statute is silent as to the intent, then
it is not necessaiy to allege the intent with which the
conversion took place. So where the statute uses the
temi "embezzle" or "fraudulent misapply," an allega-
tion in the words of the statute is sufficient allegation of
the intent. So, where one converts the property entrusted
to him, wliether he have the intent to deprive the owner

.583, 13 Ann. Cas. 551; State v. A. S. R. 582; State v. McFetridge,

Sapo, 22 Idaho 489, 126 Pac. 403, S4 Wis. 473, 54 N. W. 1, 998, 20

Arm. Cas. 1914 B, 251; Kolu-nson L. U. A. 223; State v. Boacli, 147

V. State, 109 Ga. 504, 35 8. E. 57, I ml. 7t, 43 N. K. 940, 3() \j. U. A.

77 A. S. U. 392; People v. Warron, 17ii.
122 Midi. 504, 81 N. W. 3()0, 80

Embezzlement

439

of the property or not, the fact that he does use the prop-
erty for his benefit, comes within the prohibitions of the
statute, and his lionest intention to repay the same at
some future time will not operate as an acquittal.^* The
question, however, is one for the jury to determine, from
the fact and circumstances of the case.

§ 492. Offering to restore the property, may be shown
in mitigation. Some of the statutes contain a provision
that if after the finding of the indictment or information
an offer to restore, or a restoring the property may be
taken as a mitigation of the punishment. But the fact
that the accused after the conversion, and before the
indictment offers to restore the property will not operate
as a defense. This for the same reason that when an
intent and the concurrent act have consummated a crime,
no subsequent repentance will relieve it of its culpable
nature or character. The fact though that the property
has been restored or an offer to restore, is competent evi-
dence, upon the question of the mitigation of the pen-
alties of the law. It has been held under statutes of the
character referred to that the giving bond and security
to indemnify the principal from loss on the account of
his agency, etc., will not operate to the' advantage of the

54— state v. Trolson, 21 Nev.
419, 9 Am. Cr. Eep. 243; State v.
Pratt, 98 Mo. 482; State v. Combs,
47 Kaiis. 136; Leonard v. State, 7
Tex. App. 435; State v. Patterson,
66 Kans. 447; Purcell, 29 Tex.
App. 1, 13 S. W. 993; State v.
Noland, 19 S. W. (Mo.) 715; Con-
nor V. State (Tex.), 42 S. W. 981.
"It is necessary that some adverse
use or holding, be shown, depriving
the owner of his property, but there
is no prescribed set of circum-
stances, which will be necessary or
sufficient to show a fraudulent con-

version. The question is, does the
trustee exercise dominion over the
property entrusted to him, to the
exclusion or in the defiance of the
owner's right. If so, it Avould be
a conversion whether for his or
another's use? The term 'conver-
sion,' seems to have acquired a
technical meaning; that is detain-
ing goods so as to deprive the owner
of them — his dominion over them."
See Fitzgerald v. State (N. J.
L.), 14 Atl. 746; State v. Pierce,
42 N. W. 181, 77 la. 245.

440 Criminal Law

defendant who has appropriated the property to his bene-
fit, afid this, too, notwithstanding the deficit is actually
paid under the bonds and sureties of indemnity.

55— state v. Duerksen, 8 Okla. 1025. Mitigation by voluntary re-

Cr. Eep. 601, 129 Pae. 881, 52 L. turn: Stepp v. State, 31 Tex. App.

R. A. (N. S.) 1013, and note; State 349, 20 S. W. 753. See 52 L. R. A.

V. Baxter, — Ohio St. — , 104 S. E. (N. S.), page 1026.
331, 52 L. E. A. N. S. 1019, note

CHAPTER XXVIII

FALSE PRETENSES

8 493. Common law cheats.

§ 494. English statutes.

§ 495. Pretenses must relate to
some existing or past fact.

S 496. How strong shall the pre-
tense be.

§ 497. How shall the pretense be
effected.

§ 498. As to the promise and the
expression of opinion.

§ 499. Both sellers and purchasers
may be guilty of.

§500.

§ 501.

Difference between false pre-
tenses and non criminal
lie.
Eepresentation by act and by
silence.

§ 502. Of what elements composed.

§ 503. The intent must be to de-
fraud.

§ 504. Defendant must have knowl-
edge of the falsity of the
statement.

§ 493. Common law cheats and false pretenses. This
offense is purely statutory, and for this reason it may be
profitable to the reader to give a brief history of its
creation. Larceny at the common law covered all cases
of the appropriation of the property of another coming
into the hands of the taker without the consent of the
owner or his bailee; or where the owner parted with
temporary possession of his property upon some false
pretext or representation the intent being at the time
of making the representations to appropriate it to the
taker's own use and benefit.^

Common law cheats covered all that class of cases of
false and dishonest dealings effected by false or untrue
tokens or symbols, or representations, wherein the persons
generally might be imposed upon to their pecuniary dis-

1— State V. Eenickj 33 Ore. 584,
56 Pac. 275, 72 A. S. R. 758, 44 L.
R. A. 766; People v. Babcock, 7
John. (N. Y.) 201, 5 Am. Dee. 26;
Com. V. Ferguson, 135 Ky. 32, 121

441

S. W. 967, 21 Ann. Cas. 434, 24 L.
R. A. 1101, and note. See chapter
on Larceny, this work, 3 Greenl.
160; Easton v. State, 36 Miss. 593;
Taylor v. State, 32 Tex. App. 110.

442 Criminal Law

advantage, under such circumstances as common pru-
dence could not guard against. Common law cheats com-
prised three classes of offenses: (1) Offenses against pub-
lic justice; such as counterfeits of writings and public
documents generally. (2) Offenses against public health,
such as selling tainted meats and unwholesome provisions
generally, (3) Offenses against public economy, such as
false weights and measures, holding them out to the pub-
lic as tnie. Thus the reader will notice that the common
law only reached under the general title ' ' Cheats, ' ' such
cases of false and fraudulent practices as affected the
public in its aggregate capacity; that larceny reached
such false and fraudulent representations as induced an
individual to part with the temporary possession of his
property: Hence there are many cases of false and fraudu-
lent representations which cannot be prosecuted under
either of the said offenses which affected the rights of the
individual in the security of his property. This species of
cheats and swindling is known under the general name of
''False Pretenses," and is found in those cases, where by
false and fraudulent representation of a passed or exist-
ing fact, another is induced to part with the title to his
personal property. The mere parting with the possession
of the property without the intent to also part with the
title is not false pretenses, however, false and fraudnloiit
the representations may be.**

§ 494. English statutes. Since the statutes of the sev-
eral American states are in many respects modeled after
the English statutes, we deem it advantageous to the
reader to reproduce some of those early statutes here.
Statute 33 Hen. VJII, ch. 30, and Geo. II, eh. 24, are sub-
stantially as follows: "If any person defrauds another
of any valuable chattels by color of any false pretense,

2 — Com. V. Kichelbcrber, ll'.t l':i.
St. 2.')4; 4 Am. St. Ih-]). M'2, IIJ
.\tl. 42*J.

False Pretensfs 443

token or counterfeit letter of the owner, he shall be
punished, etc.," 52 Geo. Ill, ch. 64, extends the appli-
cation to bonds, bills of exchange, bank notes, securities
or orders for the payment of moneys or the transfer of
goods, or any valuable thing whatever.^ Seven and 8 Geo.
IV, ch. 29, sec. 53: "That a failure of justice frequently
arises from the subtle distinctions between larceny and
fraud and for remedy it is enacted that if any person
shall by any false pretense obtain from any other per-
son any chattel or other valuable security with intent
to cheat or defraud any person of the same, every such
offender shall be guilty of a misdemeanor, etc.— Pro-
vided, that if any person indicted for such misdemeanor,
it shall be proven that he obtained the property in ques-
tion in such a manner as to amount to larceny, he shall
not by reason thereof, be entitled to an acquittal of such
misdemeanor. ' ' ^

OF THE CHAKACTER OF THE PRETENSE

§495. The pretense must relate to some existing or
past fact.3 The statement as to a future event is too
remote — it is conjectural and it may in the course of
events become a fact or form an existence or it may not,
and one who acts upon it is fully aware of its doubtful
character. So, if a false statement is made in the form
of a promise to do or not to do a certain thing, it is not
a statement of a fact, but as to a future event, and is
not a false pretense within the meaning of the statute.
Thus a promise to employ another upon the strength of
which one is induced to deposit his money as security, is

3— Wilderson v. State (Ala.), 36 v. Ferris, 171 Ind. 562, 86 N. E.

So. 1004; State v. Briggs, 74 Kans. 993, 4 L. R. A. (N. S.) 173; Per-

377, 86 Pac. 447, 10 Ann. Cas. 904, kins v. State, 67 Ind. 270, 32 Am.

7 L. R. A. (N. S.) ; Com. v. Fur- Rep. 89; People v. Rothstein, 180

guson, 135 Ky. 32, 121 S. W. 967, N. Y. 148, 72 N. E. 999, 1 Ann.

21 Ann. Cas. 434, 24 L. R. A. (N. Cas. 978; Harton v. State, 85 Ohio

S.) 1101; Strong v. State, 86 Ind. State 13, 96 N. E. 797, Ann. Cas.

208; 44 Am. Rep. 292, N. E.; State 1913 B, 90.

444 Criminal Law

not a false pretense ; * nor in the case one parts with his
property upon the promise that bail will be made for
him ; ^ nor the promise to pay for goods npon the de-
livery.® But as to this latter there is a conflict of au-
thority. So where the accused falsely represented to the
prosecutor that his goods were about to be attached, un-
less he placed them in his hands, this was held not to be a
false pretense. Thus therefore the authorities are uni-
form in holding that a mere promise, although at the
time it is made, the promisor does not intend to perform
it, does not constitute the crime. But if the false state-
ment relates to a past or existing fact and is com-
bined with a promise of the perfonnance of something
in the future, this comes within the meaning of the
statute, although, both the promise and the statement of
the fact contributed to the inducement to part with the
property.' So, in the case of the promise of marriage,
although false, and property is parted with upon the
strength of it, yet it is not a false pretense. But if coupled
with the promise, there is a statement of a past or existing
fact which combined induces the parting with property,
it is a false pretense.

§ 496. How strong shall the false pretense be? Some
observ^ation may be indulged here as to the rule an-
nounced in the preceding section concerning the effect
of the promise made as an inducement. The false rep-
resentings of fact or facts past or existing must be the
prime moving cause.* Some (liflicully may be encoun-
tered ill sneli eases in detei'inining lln^ li-ne moving enuse.

4— Raincy v. People, 22 N. Y, 7— State v. Montgomery, 56 la.

41H; Cook v. State (Neb.), 98 N. I!)."), — N. W. 126; Com. v. Wal-

W. 8 in. lace, 114 Pa. St. 4nr,, 6 All. 685;

5— State V. Colley (La.), 2 So. Stale v. Vorl.ack, 66 Mo. 168; State

496; State v. Ilainca, 23 S. C. 1701 ; v. Cowdin, 28 Kans. 229.

State V, Whitney, .3 H. W. 5.37. 8— People v. Ilaynes, 14 Wend.

G— Allen v. State, 10 Tex. App. 516, 28 Am. Dec. 530; State v.

MiO. Thatcher, 35 N. J. L. 445.

False Pketenses 445

It appears that the statement as to the fact must be so
cogent that it alone would be sufficient to induce the
action of the prosecutor. Thus it has been held under
the laws of the state of Kentucky that if one obtains
the delivery of goods to him upon the promise to sell
them and turn the proceeds over to the person from
whom they were obtained will not constitute the crime
of "False Pretense."^ How strong shall this pretense
be? By what criterion shall we estimate the strength
of the false statement? It is a fact known to all
men, that all persons do not possess the same degree
of credulity: That a statement has probative force with
us in proportion to the extent of our observations and ex
periences in dealing with other persons, and our opinion
is controlled largely by what we know of the character
of the particular person. The law has not yet discovered
an arbitrary rule, but the most accurate and plausible
one is that the statements must be of that character which
a person of ordinaiy prudence and caution would have
given heed to.^° The statements must as a matter of
fact, be believed and acted upon; other\vise the false
statement made with the fraudulent purpose of obtaining
the property of another would be the attempted crime.
This rule though appeals to us as being very harsh and
imposes upon persons of weak minds. There are others,
too, of strong intellectuality but of physical defects such
as deaf and dumb and blind persons, who are easy marks
for crafty and designing persons. One court says: ''That
if false pretenses were made with the design of deceiving
and thereby obtaining credit or property, and have that
effect, the guilty party cannot escape on the ground of

9— Goekin V. Com., 3 Mete. (Ky.) App. 353; Walker v. State, 68

233. Fla. 278, 67 So. 94, L. E. A. 1915 C,

10— Shaffer v. State, 82 Ind. 221; 1161; State v. Keyes, 196 Mo. 136,

Com. V. Grady, 13 Bush. (Ky.) 93 S. W. 801, 7 Ann. Cas. 23, 6 L.

285; Buckalow v. State, 11 Tex. R. A. (N. S.) 369.

446 Criminal Law

the weak credulity of the victmi." It appears also that
if the stateraent is partly true and partly false and the
two conjointly contribute to the action of the party to
whom they are made for the pui^ose of deception and
to acquire his property, and the same would not have
been parted with except for the false statement, then it
would come Avithin the statute. The modern authorities
are to the effect that the question is one of fact for the
jury.^^ Yet eveiy verdict of a jury would not be sustained,
unless based upon false statement which so operates upon
the mind of the party imposed upon, as to be within
itself a moving cause for the action.

§ 497. How shall the pretense be effected? The pre-
tense may be either words, acts or appearances ; in fact,
any means which conveys to the party defrauded a cor-
rect meaning of the accused is sufficient. Thus as cited
in the old books where one representing himself as a
student of the University of Oxford wearing the uniform
of tliat order induced another to advance him goods, was
held to be a false pretense. ^^ Or where one writes his
name on the receipting part of a money order, thereby
holding out to the postmaster that he is the paj'^ee named
therein, although he makes no statement to that effect,
the same being an assumed name, was held in an English
case to be a false pretense; first, for the reason that the
signing his own name was not a forgery; second, be-
cause by presenting the order and signing his name
thereto he was holding out to the oflicer that he was the
person therein named." So where one makes out a false
statement of services of employees under his charge, he

11— state V. Fooks, 21 N. W. 314; Buck:iloo v. State, 11 Tex.

fjCl, 56 Ta. 196; Soiiahoo v. State, Api.. :};13.

27 S. W. 226; Woodbcrry v. State, JiJ— State v. GohK', GO la. 447, 15

r.O Ala. 242; Smitli v. State, 55 N. W. 272.

MisH. r,]:\. 14 — State v. Swan, 55 Wasli. G7,

12 — lolinson v. State, 36 Ark. 104 Pac. 14.5, 133 A. S. R. 1024, 19

42; Solhcrt v. State, 1 Tex. App. Ami. Tas. 1120, 24 L. R. A. 575;

OJO .

False Pretenses

447

himself being an agent or an officer, it being his duty to
make report to his principal or to another officer, is guilty
of the crime."

§ 498. As to promises and the mere expression of opin-
ion. The mere expression of an opinion, or assertion, or
declarations obviously false, or expressions of extrav-
agance do not come within the law.^^ If the party to
whom the statement is made knows the same to be false
he can not be deceived, and if the statements are made
under such circumstancs and under such conditions as
to indicate the falsity the declarant is not bound by
them. Plainer stated, it is necessaiy that the party be
in fact deceived; and this is not limited to the falsity
on the part of the declarant but must be believed by the
party acting upon them. So one who gives a check upon
a bank holding out that he has money in the bank is a
false pretense. This is, however, dependent upon the
intention of the party who gives it ; if he had an account
running and he gives the check not knowing that his
account has been exhausted he is not guilty, for his in-
tent was not to defraud. But if he gives a check upon a
bank upon which he has no funds to his knowledge or
upon a bank upon which he has never had any funds he
is guilty of the pretense.^''' The false assumption of
poAver to do something either physical, mental or spir-
itual or impossible, has been held in some early Eng-

Jones V. State, 97 Ga. 430, 25 S.
E. 319, 54 A. S. R. 383.

15 — Roberts v. People, 9 Colo.
458, 13 Pac. 630. See People v.
Donnalson, 70 Cal. 116, 11 Pac.
681.

16— Woodberry v. State, 69 Ala.
242, 44 Am. Rep. 516; People v.
Jordan, 66 Cal. 10, 40 Pac. 773, 56
Am. Rep. 73; Com. v. Beckett, 119
Ky. 817, 84 S. W. 758, 27 Ky. L.
Rep. 265, 115 A. S. R. 285, 68 L.

R. A. 638; People v. McAllister,
49 Mich. 12, 12 N. E. 891; Bucka-
lew V. State, 11 Texas App. 353 ;
State V. Bohle (Mo.), 81 S. W.
179; Wilkerson v. State (Ala.), 36
So. 1004, 140 Ala. 155; McPhersou
V. State (Tex. App.), 79 S. W.
522; Am. & Eng. Encly., vol. 7, 1st
ed., p. 707.

17 — People V. Donnalson, 70 Cal.
116; Com. v. Drew, 36 Mass. 179.

448 Ckiminal Law

lish cases to be within the rule. As in the case where
a Spiritualistic Medium obtains money upon the assump-
tion that he can do certain things of a supernatural
character. So in a Pennsylvania case it was Iield to be
a false pretense for a person to charge an admission
fee upon the false representation that he could call up
the spirits of deceased persons. This, however, does
not appear to be in keeping with the nile. The false
assumption of doing a thing w^hich carries incredulity
upon its face, and obviously false, no one can be ex-
pected to believe it. The declarations of one as to the
probable value of a stock of goods, being a mere ex-
pression of an opinion, is not a pretense, for it cannot
be taken as a statement of a fact. But ^vhere one makes
a statement as to his indebtedness which is false and
another is misled by it, whereby he parts with his prop-
erty or extends a credit, this is false pretense. So, if
one make a false statement as to his wealth, his social
standing or civic position whereby one is misled to hi
hurt, this would come within the meaning of the law.
It is believed that any false statement made as to the
ownership of property would be a false pretense, for
this is a statement of a fact upon which a person deal-
ing with the declarant, would have a right to give heed,
but it is gravely doubted that one would be expected 1 >
rely upon another simply because he occupied a high
social position, for this is not a statement equivalent to
a declaration that lie had property, upon whicli a credit
might be based. This, of course, is dependent upon cir-
cumstances and accompanying statements which com
bined, may bo equivalent to a statement of a fact. Thus,
for one to falsely state that he is an ofiicer, which car-
ries certain emoluments, and credit is extended, this is
a false pretense."

18 — United Stat«H v Farnham,
127 Fed. Rop. 478.

False Pketenses 449

§ 499. Both sellers and purchasers may be guilty of
false pretenses. Any attempt to cheat is regarded by the
law as criminal. So at the common law the seller who
had a false weight or a false measure or other false
token or symbol, which tended to cheat and defraud
everj^body in general, and which was not leveled at the
individual in particular, was guilty of the crime of
cheating. So under the statutes where the seller makes
representation of and concerning the quality, or quan-
tity, the circumstances being such as to give him special
knowledge, which is false and known by him to be such,
is guilty of false pretenses. As where the accused rep-
resented that a chain was of fifteen karat gold, when in
fact it was not and he knew it was not true, and the
fact being specially within his knowledge, it was held
to be a false pretense." But where the representation
is only an expression of an opinion as we have said in
the preceding section, it is not a false pretense. Where
one offers to sell property with latent defects, and by
his representation it iB made to appear that there are
none, and the buyer is induced to buy, this is a false
pretense for the reason that the purchaser cannot by
exercising ordinaiy caution discover the defect.'^ But
where a seller offers for sale a blind horse and represents
that it is not blind or sound as to sight, this would not
be a false pretense,*^^ because it is a statement that is
obviously false — a defect that any person may see. But
where the seller possesses a special knowledge, a false
representation as to the quality will be criminal.^^ As
where a horse is represented to be sound, but is in fact
blind but not apparent to the casual observer, but known
to the owner, this is a false pretense.

19— 21— state v. Delyon, 1 Bay (S.

20— Jackson v. People, 126 111. C.) 53.

139, 18 N. E. 286; State v. Mathews 22— Tatum v. State, 58 Ga. 409.

(Kan.), 10 L, K. A. 308. See Com. v. Jackson, 132 Mass. 16.
C. L.— 29

450 Ckiminal Law

As the law exacts honesty from the seller of goods, so
also it exacts it of the purchaser. Thus if he offers in
payment for the goods purchased a worthless check, this
is equivalent to the representation that the check will
be cashed when presented, and it is a false pretense.
And so it would be if a tender was made of a counter-
feit coin in the pajnnent. This, however, is apparently
in conflict with that rule to the effect that representations
made after the sale or delivery of the property is not a
false pretense. This is only applicable where a credit is
extended and not where the transaction is upon a cash
basis.^

§ 500. Difference between false pretense and a non-
criminal lie. This oifense may be defined to be the fraud-
ulent representation of and concerning an existing or
passed fact by one who knows the same to be false and
reasonably calculated to cause another person to part
with the title of something of value.^* There is very
little difference between this offense and a non-criminal
lie. But these statutes have deemed it worthy of pun-
ishment for one to represent to another that a certain
fact exists, when it is made with the intent to cheat him
of his property. It sometimes presents a question of
difficulty to deteraiine between the mere lie and tlio
** False Pretense." The gist of this offense, is upon the
representations made, the owner is induced to part with
the title to his property and not the possession
merely. We have seen in another connection tliat if the
owner parts with the possession only, induced thereto
by false representation, it is larceny. The representation
must be false and known to be false at the time tliey are
made, and made with the intent to defraud anotlior of

23— Foote V. Proplf, 17 Hun. (N. 119; Rox v. RatclifT, 6 Cox C. C.

Y.) 21«; Malcy v. Rtatc, 31 Tnrl. 02. 324; Alien v. State, 16 Tex. App.

24— State v. Mathews, 10 Tex. 150; .Tohnson v. State, 41 Tex. 65;

App. 279; Com. v. Drew, 36 Mass. McKinncy v. State, 11 Ark. 594.

False Pretenses 451

his property.^^ So it appears to be the law that notwith-
standing the accused intended to restore the property,
or at some time in the future to hold the owner harmless
against loss, yet nevertheless this would be obtaining
the goods under the false pretense. This for the very
evident reason that the owner parted with the title be-
lieving the statements to be true and which the defendant
knew to be false.''^ But if the party to whom the state-
ment is made knows that it is false, or is so absurd, or
improbable as to create a doubt in the mind of the party
to whom the same are directed as to its truth, the fraud-
ulent intent of the defendant would not constitute the
crime, for it is only upon the combined false statement
knowing the same to be false, and the consequent belief
in its truth by the party upon whom the fraud is intendel
to be perpetrated, concurring, constitutes the crime.'-'
The doctrine of '^ Caveat Emptor," but to a less degree
applies here as in civil matter. So if the statement of
the accused is made with the intent to deceive and with
the fraudulent intent to cause another to part with the
title of his property, yet nevertheless if the statement
is made in such a manner or discloses such facts as will
arrest the attention of a person of ordinary observatio:i
and prudence (for every one capable of contracting is re-
quired to exercise due caution and to rely upon a fair
use of his own faculties), it would not be a criminal
false pretense.^' But a false statement in explanation of
a patent defect, and which is known to be so, whereby
one is induced to part with his property thereon, is
criminal.^

25— Stringer v. State, 13 Tex. 27— Buckaloo v. State, 11 Tex.

App. 520; Dorsey v. State, 11 Ala. 352.

40; State v. Mathews, 44 Kan. 602, 28— State v. Young, 76 N. C..258;

25 Pae. 36 ; State v. Field, 118 Ind. Eainey v. State, 94 Ga. 599, 19 S.

491, 21 N. E. 252; Com. v. Coe, 115 E. 892; State v. Lambeth, 80 N. C.

Mass. 502. 296.

26— Com. V. Schwartz, 92 Ky. 510, 29— State v. Wilkinson, 103 N. C.

36 Am. St. Eep. 609, 18 S. W. 775. 337, 9 S. E. 415.

452 Ckiminal Law

§ 501. Representation by act and by silence. At the
common law the giving a check was held not be an in-
dictable cheat. Under these statutes of false pretenses,
there are numerous authorities to the effect that if the
defendant give his check in payment for the purchase price
of goods, the mere fact that he gives the check without
funds in the bank upon which he draws is a sufficient
false representation to constitute the crime, he, of course,
knowing that he has no funds upon which to draw.^°
There are cases (notably from the Texas court) holding
that this is not sufficient, unless at the time the check
is given the defendant, makes some statement, independ-
ent of the giving the check that he has money in the bank,
which acts as the primary cause of the credit. Others
again, holding that it is not sufficient, because the de-
fendant may have authority to overdraw his accounts, he
at the time having no funds to his credit.^^ These author-
ities, we believe, are against the spirit of the law. The
giving the check is certainly tantamount to saying to the
person granting the credit that the purchaser has money
in the bank upon which he has a right to draw, and upon
which an ordinarily prudent person is entitled to rely.
These kind of cases, of course, are dependent upon the
circumstances, and if the defendant honestly believed
that he had funds upon which to draw would not be
guilty.

§ 502. Of what elements composed. This offense is
composed of the following elements: (1) A false state-

30— People V. Donalson, 70 Cal. App. 104, 38 S. W. 1008, 66 A. S.

llti, 11 Pac. 681; Com. v. Drew, 10 K. 794; I3nrton v. People, 135 111.

I'ick. 179; Maley v. State, 31 Ind. 40.'), 25 N. E. 776, 25 A. S. R. 375,

192; Barton v. People, 135 111. 405, 10 L. R. A. 302; State v. Ilaimnclsy,

25 Am. St. Rep. 375; Lessor v. Peo- 52 Ore. 156, 96 Pac. 865, 132 A. S.

plo, 73 N. Y. 78. R. 686, 17 L. R. A. (N. S.) 244;

31— Blackwcll v. State 41 Tex. State v. Foxton, 166 la. 181, 147

App. 104, 51 S. W. 919, 96 Am. St. N. W. 347, 52 L. R. A. 919.
Rep. 778; Brown v. State, 37 Tox.

False Pretenses

453

ment or representation must have been made with an
intent of obtaining the property of another. (2) That the
statements were known by the party making them to
be false. (3) That the false statements should have
related to past or existing fact. (4) That the statements
were believed by the persons acting upon them. (5) That
the property was parted with upon the strength of the
false representations.

THEN AS TO THE INTENT

§503. The intent must be to defraud. There must
have been an intent and a purpose to defraud at the
time of making the false statements.

It is not essential that the false statements be made
to any particular person. If it is made under such con-
ditions and circumstances as to influence the action of
any person, it will be sufficient. As, for instance, a state-
ment is made publicly to a crowd of persons, or through
newspapers or otherwise, meaning thereby to influence
any person who may give heed.^^ Where the representa-
tions are made to an agent it need not be intended to de-
fraud the agent, but to defraud the owner.^' So it is

32— state v. Turley, 44 S. W.
267; Eex v. Liverlock, 18 Cox C. C,
104, 9 Am. Crim. Eep. 280; Lord
Eussell said: "The advertisement is
addressed to all persons to whose
knowledge it may come, and who
may desire to act upon it, and if a
particular person, after seeing and
hearing it, acts upon it, and goes to
the person from whom it proceeds,
and upon the faith of it parts with
his money or goods, it becomes an
advertisement to that particular per-
son, who is one of the class of per-
sons for whom it was intended. ' ' In
Rex V. Aspinal, 2 Q. B, D. 48, the
court uses the following language:
"To support a charge of obtaining
money, etc., by false pretenses, it is

necessary to show, and therefore to
allege, that the prisoner, with wicked
or criminal mind, stated something
which, if true, would be an existing
fact; that he did so with the intent
to procure money, etc.; that he
knew that the statement was — that
is to say, that so far as his mind
Avas concerned, he intended that his
statements should be — false ; that by
the statement, that he did so act on
the mind of the prosecutor as that
he did thereby obtain money, that
the statement was true in the sense
of being correct. ' '

33— People v. Wakely, 68 Mich.
297, 28 N. W. 871; State v. Turley,
44 S. W, 267,

454 Criminal Law

the same if the statement is made to the agent to bo
communicated to the principal, witli the intent to have
the principal to part with his property.^* So, also, if
the fraud is perpetrated through an innocent person as
agent of the wrong doer; as w^here A gives B a bogus
check to be passed upon any person w4io might be found
to cash it. The intent is a question of fact to be submitted
to the jury, and to be determined by the circumstances
of the particular case. The intent must be to acquire
the property and to have the title thereof divested out
of the owner, at the time the possession or the control
is yielded. The fact that at the time of acquiring the
property the falsifier intended at some future time to re-
turn the property or to pay for it, does not take it out
of the operation of the statute. If he carry the falsification
so far as to succeed in acquiring the property, the owner
relying upon the false statements, his actual intent in
the matter is immaterial, for his acts coupled with his
representations supersedes his actual intent to return
or repay. This, in common with all other offenses, the
essential act coupled with the intent to commit the crime,
is sufficient to constitute it, and no subsequent repentance
will relieve the culpability.^

§ 504. Defendant must have knowledge of the falsity
of the statements. It is an essential clement of the intent
that the defendant at the time of the false representation
knew that they were false and that ho intended to de-

34— State v. Crowley, 39 N. J. L. Wis. 650, 100 N. W. 578, 110 A.

l!fii; State V. Stewart, 9 N. D. 409, S. R. 972, 9 Am. Cas. 906; State v.

83 N. W. 869; Trcadwell v. State Stone, 95 S. C. 390, 76 S. E. 108,

(Ga.), 27 S. E. 785, 99 Ga. 779. U) L. R. A. (N. S.) 574; State v.

35— Com. V. Coc, 115 Mass. 481; Matliow, 44 Kans. 596, 25 Pac. 36,

State V. Tliatclier, 35 N. .F. L. 445; 10 L. R. A. 308; State v. McCor-

Ktato V. Nfimicr (la.), 24 N. W. mick, 57 Kan. 440, 46 Pac. 777, 57

247, 60 la. 634; Com. v. Swartz, 18 A. S. R. 341; State v. Ilani, 93 Mo.

fi. W. 775; State v. Wison (Mo.), 190, G 8. W. 96.
44 S. W. 722; ClawHon v. Case, 120

False Pretenses 455

fraud.'® The innocent statement of a false fact would
not constitute the intent required to constitute tlie offense,
notwithstanding he intended to defraud. It seems to be
the law that if the defendant with the intent to fraud
make a statement which he knows to be false at the
time he makes it, whereby he intends to get the property
of another, and before the property is delivered to him,
his statement becomes true, or he by his own act makes
them good, or cause them to become true, then there is
no false pretense,^' The defendant having the intent to
acquire the property of some person upon whom the pre-
tenses may operate, and upon the strength of the repre-
sentations any thing of value is delivered to him, to be
used as his own or as the property of any person other
than the owner, it is not material that the owner be in
fact injured, or that he lose any of his property or any
right to it. If the defendant believes the pretenses to
be false when in fact it is true, it's no crime.'®

§ 505. The intent of the prosecutor. The person upon
whom the false statement is intended to operate must
have believed that the statements were true, and that
he intended to part with the title of the property. If
the statements made to him were believed by him to be
true and he did not, however, part with the title of the
property, but the possession only, this is not false pre-
tense. The intention of the owner to part with the title
to his property where that intention is produced by n
false statement does not legally divest him of the title,
and the property is still his, and may be recovered by him

36 — Com. V. Devlin, 141 Mass. there is no criminal attempt, for it

423, 6 N. E. 64. follows there is change of purpose

37 — In re Snyder, 17 Kans. — , 2 by the person to obtain property

Am. Eep. 238. The court says: "If by a false pretense before any other

a party by his own acts makes a false wrongful act is committed than the

representation good, before the ob- making the false pretense, the

taining of the property, there is crime of attempt is taken away."

no consummation of the crime, and 38 — State v. Asher, 50 Ark. 427.

456 Criminal Law

by suit in replevin. Hence his intention in the premises
must have been the same as if he in fact was intending
to part with his title in fact. As we have in another page
stated, this intention must be formed upon representa-
tions which are not so unreasonable as to cany incre-
dulity upon their face. Statements which are obviously
false, or which persons of ordinaiy prudence and obser-
vation know to be false, is not sufficient to be the basis
for forming an intent to part with one's property. The
mere reliance upon the truth of the statements is, in some
cases, not enough. Thus where the law requires an in-
strument to be placed on record, and the representations
are that the property is free from incumbrance, when in
fact there is a mortgage on record, this is not a false
pretense. So, as we have stated elsewhere, the doctrine
of caviat emptor, applies and the party must to some
extent rely upon his own judgment. Whenever the na-
ture of the transaction is such as to require the party upon
whom the false pretense is attempted to be imposed, to
beware, or in other words, look out for himself, then this
is not a false pretense. Any statement of fact within
the knowledge of the defendant known to be false, and
not known to be false by the party upon whom imposed,
and upon whom there is no duty to make inquiry as to
its truth, and being relied upon by him, this is a false
pretense.*®

39— State v. Miller, 47 Ore. 562, S. E. 300, 45 L. E. A. 424. For

85 Pac. 81, G L. E, A. (N. S.) 365; a full discussion of tho principle

Cliancey v. State, 130 Ala. 71, 30 iiivolvod in this section, see the

So. 403, 89 A. S. E. 17; State v. note to Barton v. People, 25 Am.

MathcwH, 44 Kan. 591, 25 Pac. 30, St. Eep. 378 to 387, :uu\ tlie cases

10 L. E. A. 308; Lcfter v. State, cited.
153 Jnd. 82, 54 N. E. 439, 74 A.

CHAPTER XXIX

FORGERY

8 506. Definition.

§ 507. The crime, how committed.

S 508. Same, continued.

§ 509. Signing the name of another

as the agent.
§ 510. Subsequent ratification of

the act by principal.
§ 511. Falsely personating another.
§ 512. Altering ' the original entries

of books of account is.
§ 513. Antedating instrument is

when.
§ 514. Falsifying records is, when.
§ 515. Falsely reading instrument

to another who cannot

read.
§ 516. Instrument must affect prop-
erty.
§ 517. Of the statutes of the states.

§ 518. Specific intent to defraud.
§ 519. Recording instrument is suf-
ficient publication.
§ 520. Instrument must be set out

in words and figures.
§ 521. What instrument is the basis

of.
§ 522. Following the laws of the

statutes is sufficient.
§ 523. Indictment may contain

count for passing and for

the forgery.
§ 524. As to evidence.
§ 525. Law of Scotland.
§ 526. Passing is not proved till it

is shown that it passed to

another.
§ 527. The attempt.

§ 506. Definition and description. Forgery has been
defined to be the fraudulent making or altering any in-
strument in writing, w^hereby the right of another is
prejudiced.^ It is where the making and the altering of
a written or printed instrument, which if genuine, as
altered or made, would subject another to a suit or lia-
bility.^ The injury is not necessarily confined to the per-
son whose name is forged or against whom the false in-

1—4 Bla. 247; 3 Greenl, 103.

2—2 Greenl. 103. See note also.
In the case of Hamrick v. Dodd, 62
Tex. 75, the court said: ''Forgery
is the making of a false instrument
in writing Avithout lawful author-
ity, with intent to injury or de-
fraud, purporting to be the act of

another, in such manner that the
false instrument so made would if
true, have created, increased, dimin-
ished, discharged or defeated any
pecuniary obligation or would hav?
transferred, or would in some man-
ner have affected one's property."

457

458 Ceiminal Law

strmnent is made, it may be to another person whose
rights have been affected thereby. Nor is it essential
that any person be in fact injured by the forgery, it i;
sufficient that under any circumstances he, against whom
the forgery is made, might be liable under the instrument.
It is sufficient to a conviction that the malo animo existed
and that the forgery was made for the pui^Dose of de-
frauding. The intent to defraud is the gist of the offense
and where there is no such intent, there can be no guilt.
At the common law this offense was a misdemeanor only.
It is believed that in most of the American states, by
statute the crime is a felony. In some of the^e states
the crime is defined by statute, and the statute must be
resorted to. Or, to state it differently, the forgery of
the common law in the absence of the authority of the
statute can be resorted to for definition and description

As to what particular acts constitute the crime under
the statute, must be sought for there ; and this may be de-
termined by the common law if it is in force in that
jurisdiction. The making or altering must be of such
a character as to purport the writing or instrument to
be genuine upon its face; its validity must also appear
upon its face, although there may be latent defects which
affect the validity thereof. The deception is sufficient
if the instrument upon its face would deceive a person
of ordinary business capacity and the ordinaiy under-
standing, as to its legal effect.*

§ 507. The crime, how committed. The alteration may
be very slight, yet if it change the meaning and the

3—3 Grecnl. 103. Some forgeries Am. Eep. 46; Eollins v. State, 22

8uch as that of Royal charters were Tex. App. 548, 3 S. W. 759, 58 Am.

felonies. ^^cp- ('•'•^ ! ^1'^" ^- State, 44 Tex.

4—3 Greenl. 105; State v. App. 63, 68 S. W. 286, 100 A. S. R.

Chunc, 82 Kan. 338, 108 Pac. 789, 839. See note Arnold v. Cost, 22

20 Ann. Cas. 164, 27 L. R. A. (N. Am. Dec. 306; State v. Gryder, 44

S.) 1003; State V. Warren, 109 Mo. La. Ann. 962, 32 A. S. R. 358,

430, 19 S. W. 191, 32 A. S. R. 681; 11 So. 573.
Baysinger v. State, 77 Atl. 63, 54

FOEGEBY

459

effect of the instrument, it will be forgery. So, under
some circumstances, the changing of one letter or one
figure will be sufficient. It is immaterial that the entire
writing is changed, but the alteration must be of some
material part, and which affects its materiality.^ To
erase from or add to an instrument, matter which does
not affect its validity or legality, cannot constitute the
offense; such as to falsely affix the name of a witness
which the law does not require, or to add words which
the law would supply.^ Nor will the burning or other-
wise totally destroying an instrument. In one case it
was held that where an acquittance was written on the
back of a bond and afterwards totally erased, and it
being an entire instrument independent in its effect, from
that of the bond, that this did not constitute the forgery."^
Instruments which are prohibited by law, or such instru-
ments as have no validity by reason of the prohibitions
of the law such as lottery tickets, the lotteries which
they represent being contrary to public policy, are not
subject to forgery.* So, also, where banks, companies or
corporations are prohibited to issue certain kinds of
bills, coupons, tickets, etc., the making and the altering
of such instruments, is not forgery. Thus the rule, that
all forgeries and counterfeiting must be of instruments;
or things which if genuine would cany with it a liability
to some person.

5_State V. Stratton, 27 la. 420,
1 Am. Rep. 282; Gordon v. Com.,
100 Va. 825, 41 S. E. 746, 57 L. E.
A. 744; State v. Mitton, 37 Mont.
366, 96 Pac. 926, 127 A. S. R. 732;
Hendricks v. State, 26 Tex. App.
176, 8 A. S. R. 466, 9 S. W. 555, 8
Am. Cr. Rep. 276; Walker v. State,
127 Ga. 48, 56 S. E. 113, 119 A.
S. R. 314. See note, p. 317, Utter-
ing forged instrument. People v.
Lewinger, 252 111. 332, 96 N. E.

837, Ann. Cas. 1912 D 239; State
V. Hindrj-, 156 Ind. 392, 50 N. E.
1041, 54 L. R. A. 794; State v.
Higgins, 60 Minn. 1, 61 N. W. 816,
51 A. S. R. 490, 27 L. R. A. 74.

6 — Hunt V. Adams, 6 Mass. 519;
State V. Thornberry, 6 Ired. 79 (28
N. C), 44 Am. Dec. 67.-

7 — state V. Gherkin, 7 Ired. 7,
206.

8 — People V, Wilson, 6 Johns.
320.

460 Ceiminal Law

There is no difference in the principles governing the
two crimes except that the former is confined to the mak-
ing and altering of written or printed instiniments, pass-
ing among the people in their private capacity, while in
the latter it is the making and altering and debasing the
coin or bills issued by the govenmient in its representa-
tive capacity. Sometimes the tei*m ''counterfeiting" is
used in connection with the changing and alteration
of trade-marks of individual persons and of the seal of
private persons or corporations. The tenn ''coun-
terfeiting" used in such connection can mean nothing
more than forgery.

§ 508. As to how the crime may be committed — Con-
tinued. Forgeiy is committed by filling in the blanks
in blank notes, deeds, bonds, etc., to which a person's
name is written, when done without the authority of
the persons whose names are so attached. Thus an agent
who inserts in a blank check different amount tlian he
is authorized to do by his principal, is guilty of forgeiy.®
The making a false credit upon a promissory note, or
another w^ritten obligation, pui'porting to be the act of
the payee or obligee, or the altering or erasing a credit
made and signed by the payee. But where the charge is
that the forgery was committed by tearing off or detach-
ing the credit, has been held not to be within the terms of
the statute. The court said in disposing of the case that
' ' There is a clear distinction in case where a credit is en-
dorsed on the back of the note or due bill and signed by
tlic payee, or where the credits are endorsed by mutual
consent, and subsequently erased or altered with intent to
defraud, and where the credit is entered below the note,
on the same piece of paper, with intent to defraud. In the
first class of cases, the offense would be forgery witliiii

9— state V. Millnor, 33 S. W. 15; v. Com., 7.1 Am. Dtc .108, 3'J Pa.
Hooper V. Htatc, 30 Tex. App. 4112; St. .120.
State V. Kroegcr, 47 Mo. 552; Biles

Forgery 461

the meaning of the statute. In the latter, there being no
alteration or change in the words or figures, it would not
be. " It is clear, if the instniments are distinct and sep-
arate in legal meaning, the tearing off or detaching the
one from the other is not forgery, notwithstanding, they
may be written on the same piece of paper.^'' The agent
who exceeds the authority of his principal in filling out
blanks in commercial instruments, given him to fill out
and deliver and pass to others, is not necessarily guilty
of forgery; in order to create his guilty connection in
the transaction he must have done so for the purpose
of converting the funds of the principal to his own use.
If he merely exceed his authority, and thereby not in-
tending to defraud the owner, he will be subject to civil
liability only.

§ 509. Signing the name of another person as the a^ent.

Where one signs the name of another person, as agent,
and the fact of his agency appears upon the face of the
instrument, this is not forgery, notwithstanding, he was
not agent as the instrument represented. The reason
of the rule is apparent. Because the cheating or defraud-
ing — the essence of forgery — is intended to be accom-
plished by passing to another with the intent of deceiving
him, the instrument which purports to be the genuine
signature or instrument of another person than himself.
But in this character of case, notice is given to all per-
sons that he signed the instrument, and made the sig-
nature for and in the behalf of the principal, which
appears openly upon its face.^^ So, the making and ex-
ecuting a conveyance to land, by one who represents
himself to be the attorney in fact for such principal, is

10— state V. McLean, Aikens 1332, 16 So. 190, 49 A. S. K. 351;

311; State v. Thornburg, 6 Ired. Com. v. Baldwin, 77 Mass. 187, 11

79; Kegg v. State, 10 Ohio St. 75 Gray 197, 71 Am. Dee. 703; Mann

(28 N. C), 44 Am. Dec. 67; State v. People, 15 (N. Y.) Hun. 155;

V. Davis, 53 la. 252, 5 N. W. 147. People v. Bendit, 141 Cal. 274, 31

11— State V. Taylor, 46 La. Ann. L. E. A. 831.

462 Criminal Law

not forger^^, for the same reason. So, where one as the
agent of the principal signs checks, or where he signs
them as the agent when in fact he is not, but signs, "per
procuration, ' ' he is not guilty of f orgerj^ No one having
to do with the instiTiment so signed can be deceived as
to the making, and the signing, but as to the assumed
authority only.^^

§ 510. The subsequent ratiiicatioii of the act by prin-
cipal. No subsequent ratification of the act by the person
against whom the forgery has been directed will relieve
the act of its criminal nature. ^^ But where one commits
a forgery honestly believing that he has authority of the
persons whose act it purports to be, is not guilty.^* Where
one commits the culpable act with the consent of the
person whose act it purports to be, is also not guilty."

§ 511. Falsely personating another. Where A with a
fraudulent intent procures B to sign his name to an
instrument, which is the same name as that of C, and
subsequently passes the same as the act and instru-
ment of C, he is guilty of forgery whether B is an in-
nocent agent or not.^^ One falsely personating an-
other and signing his own name to an instrument, which
purports to be and is designed to be received as
the instrument of such other having the same name, is
guilty of forgery." So again A with intent to defraud
and deceive procures B to sign liis name, wliicli name is
designed at the time to be a fictitious and non-existent

12— state V. Wilson, 28 Minn. 52, 14— Sweet v. State, 28 Tex. App.

:< Ct. L. Map. 124, A. N. E. 28; 223, 12 S. W. .'"lOO.

In n; Tully, 20 Fed. Rep. 812; Pco- 15— McC'oy v. State, 32 Tox. App.

pie V. Bondit, 111 Cal. 274, 43 Pac. 233.

;»nl, 52 A. H. K. 18(5, 31 L. H. A. If. -TVol v. State, 33 S. W. 541,

831; Com. v. FoHtor, lU Mass. 311, 35 Tex. App. 308, 60 A. S. R. 49.

li> Am. Rep. 353. 17— Com. v. Baldwin, 71 Ajn.

13— Cauntce v. State, 33 S. W. D.c. 7('4, 11 (Jra.v 197 (Mass.).
127.

FORGEKY 463

person, forgery is committed by such transaction.^^ So,
also, thus, A, a real person, makes his genuine endorse-
ment on a note and B representing himself to be A and
thereby procures the payment of the note; ^^ so, where one
represents himself to the postmaster that he is the payee
in a money order, and signs the payee's receipt, as the
payee. But where one signs a fictitious name to a check
and passes it as his own, this is not forgery, for the credit
is given himself and not to the name.

Procuring a genuine signature by deception and fraud,
such as falsely reading an amount in a note intended to
be signed as a genuine instrument, at a less amount than
it purports to be is not forgery.^** As to the principle
here involved there appears to be a great conflict in the
authorities. In a Maine case the court held where the
grantee in a deed, which lawfully conveyed the land in-
tended to be conveyed, took it and submitted it to the
grantor, who acquiesced in it, and turned it to the grantee
and afterwards the grantee prepared another one in lieu
of the first, which contained matter not in the one sub-
mitted and which was signed by the grantor believing it
the same as the first, it was forgery.^^ The difference
in the views of the courts touching these disputed ques-
tions may be satisfactorily reconciled by drawing this
distinction. 1. Where the signature is obtained to an
instrument intended to be signed and the same is falsely
read, then the transaction does not amount to forgery.
But 2. Where the signature obtained to an instrument
not intended to be signed, but falsely represented to be
the one intended, is forgery.^

18— Browns' case, 1 Arch. Cr. 20— Hill v. State, 1 Yerg. 75;

PI.; Baldwin's case, supra; Bar- Com. v. Sonkey, 22 Pa. St. 390, GO

field V. State, 29 Ga. 127, 72 Am. Am. Dec. 91.

Dec. 1. 21— State v. Shartliff, 18 Me.

19— Baldwin v. Com., 71 Am.. Dec. 368.

704, supra. See Helvie's case re- 22 — See note, Arnold v. Cost, 22

f erred to therein. Am. Dec. 312.

•164 Criminal Law

§ 512. Altering the original entries of books of ac-
count, forgery. As a general rule a man may do with
that which is his as he likes, but this rule as all others
has its exceptions and limitations. So, in keeping with
this, a person engaged in commercial pursuits where it
becomes necessary to keep books of accounts, may keep
them best suited to his inclination, but this has its limi-
tations and exceptions. So where one makes entries and
alters his accounts, ledgers or other books kept for the
purpose of keeping track of his business, may do so at
his will so long as this does not injuriously affect the in-
terest of another person. Where the entry or altering of
an original entry is made to deceive and defraud another,
this is forgery.^^ As where A made a false entry in the
ledger under his control as cashier or clerk in a public
office for the purpose of defrauding and deceiving.^* So
again where the sergeant-at-aiTus of the legislature
falsely changed his accounts for stamps which were for
the use of the members of the legislature.^^ Thus it is for-
gery to alter the entries or to make false original entries
when such entries may be used as evidence against an-
other; ^^ the false manufacturing of written evidence
against another is forgeiy.^'^ There is no unifonnity
among the English and American authorities touching
the question wiietlier the false entries made in books of
entry by the agents, clerks or servants of another is for-
gery. In fact the English courts appear to be uniform
in holding that such false entries are not forgeries, al-
though made for tlie pui-pose of covering recent or remote

23— state v. Cliance, 82 Kan. 392, 25— Ilcnnesy v. State, 23 Tox.

108 Pac. 791, 20 Am. Ca.s. 134; App. L-j?, 5 S. W. 789.

State V. Young, 88 Am. Dec. 212, 20— Kopina v. Smith, Tox C. C.

46 N. 11. 260; Biles v. Com., 75 Am. 162.

Dec. 568, 32 Pa. St. 529; Bowman 27— In re 'J'ully, 'JU Fed. Kop.

V. State, 15 Ohio St. 717, 45 Am. SlU.
Dec. COl.

24 — People v. Phelp.s, 4!) How.
(N. Y.) Pr. 462.

Forgery 465

embezzlements. But the courts of the United States are
ahnost as uniform in declaring that such entries are for-
geries. Now reverting to the rule that one has the right
to make such disposition of those things which belong
to himself as he may desire, yet as we have stated, this is
dependent upon whether the matter will affect the owner
or another. But where one acts as the agent, the falsi-
fication of accounts which is made to cover peculation by
the agents, is clearly forgery, for his business is to keep
correct accounts of the business. It is to be observed that
the decisions of the court holding that such entries are
forgeries are not in keeping with the definition of forgery
at the common law, in the particular that the making and
altering of a writing, so as to come within the terais of
the definition must purport to be the act of some other
person other than the person making or altering the in-
strument. The review of the authorities do not throw a
very satisfactory light upon the subject.

§ 513. Antedating an instrument for the purpose of de-
frauding is forgery. Altering an instrument with the
fraudulent intent of effecting the interest of another per-
son by affixing an antedate thereto is forgery. Thus where
one falsely antedates a deed of conveyance for the pur-
pose of defrauding one to whom he had previously con-
veyed the same land.^' So, also if a genuine instrument
is altered as to make it appear as the act of a different
person, or even as a fictitious person. As where A pro-
cures his servant William Wilkerson to write his ac-
ceptance across the back of a bill, and thereafter filled
it out as a bill drawn upon William AVilkerson, Halifax,
a different person, it was held to be a forgeiy. So where
one induces another to sign the name of a third person
to an instrument, upon the persuasion that he has the

28 — Com. V. Baldwin, 71 Am. Dec. Eitson, cited by 8 Am. & Eng, Ency.
703, 11 Gray 197 (Mass.); Eex v. 472.

C. L.— 30

466

Criminal Law

legal authority to do so, for the purpose of deceit and
fraud, the act of such innocent agent is his act, and he is
guilty of forgeiy. As where A induces C, the daughter
of B, to sign the name of her father under the persuasion
that she possessed the authority to sign it.*^

§ 514. Falsifying records. Falsifying not only of rec-
ords but of books of accounts was an offense at common
law. This seems to have been a distinct offense at com-
mon law.^° But it is also supposed and is supported by
authority, that the altering and changing books of ac-
counts is a forgeiy. Falsifying records and all such mat-
ters are of the same character, and possess many of the
characteristics of that crime. As we have stated in a
preceding page that this character of offenses do not
cover the crune of forgery for the reason that one of the
essential elements of that offense is wanting. The
changing the record or the account, or to make a false

29— Gregory v. State, 20 Am.
Rep. 774, 2G Ohio St. 510. "There
are two theories in this case. If
either of them is true, the appellant
is guilty as charged. 1. That ap-
pellant procured J. T. Peel of Hays
County, Texas, to sign the name of
J. T. Peel of Montgomery County
to an appeal bond in a civil case.
2. That the appellant with fraudu-
lent intent, procured J. T. Peel of
Hays County to sign the bond, and
subsequently passed it as the sig-
nature of .1. T. Peel of Montgomery
County. If tlie testimony of J. T.
Peel is true then appellant procured
him to sign the name J. T. Peel
of Montgomery County to said
bond, and it nmtters not wliether .1.
T. Peel of Hays County was guilty
r.f forgery or not. The appellant
was not only guilty, but guilty as
princii).'il, for he was present at the
time the signafiire of .1. 'I'. I'eel

of Montgomery County was signed
to the bond by J. T. Peel of Hays
County, requesting him to sign the
same. If Peel of Hays County
signed the bond as a security there-
to, with full knowledge of its con-
tents and purpose, appellant was
nevertheless guilty of forgery, be-
cause the facts in the record show
that he intended to pass the bond
upon Die elork of Travis County as
having been signed by J. T. Peel
of IMontgomcry County. The first
theory needs no citation of author-
ity. In sui)port of the second we
cite the following: Ilocker v. State,
.3 S. W. 783 (Tex. App.) ; Com. v.
Stevens, 10 Mass. 181; Com. v. Fos-
ter, 114 Mas.H. 317; Barfiold v.
State, 20 Ca. 127. See I'eel v.
Slate (Tex. App.), 33 S. W. 541.
30— Buviers Law Diet., 15th Ed.
on, Kng. & Am. Knely. 801; Com.
V. Kste, 1 in Mass. 279, 2 N. E. 709.

Forgery 467

record or to make a false account does not necessarily
pui-port to be the act of another. Doing any of these
things which makes the account or the record speak
other than the truth is the common law offense. As early
as 8 Henry VI., Chap. 12, vacating and falsifying any
records of court and by 7 and 8 Geo. 1, Chap. 27, any
person maliciously altering or injuring any writ, record,
return, penal process, interrogatory, deposition, affidavit,
rule, order, or warrant of attorney, or any other orig-
inal document, of or belonging to any court of record,
relating to any matter, civil or criminal, or any other
paper document, was guilty of a misdemeanor. These
statutes appear old enough to be common law with us
in the several states, though we cannot point to adjudi-
cation on this subject. It is really unimportant, for the
several states have full and complete statute covering
this character of offenses. The destruction of deeds,
notes, bills, bills of exchange where the same is done
animus furandi may be reached, as common law larceny.
Or at least under the statutes. So if the mutilation was
done for the purpose of injuring the owner and not merely
to gain the property, it would be malicious mischief at
common law.

§ 515. Falsely reading an instrument to one who can
not read. Commenting upon the doctrine of section
513, the reader will note that the peculiar character of
the fraud is the paramount reason for bringing such acts
within the definition of forgery. There is authority that
falsely reading a genuine instrument within the hearing
of an illiterate person makes the act forgeiy. So, falsely
representing to another that an instrument is the one to
be signed as within his special knowledge and thereby
obtains his signature to a false instrument, is also for-
gery. In both cases the nature of the fraud is the same ;
it is an imposition upon another's confidence. There is a
duty resting on one who signs a paper to ascertain its con-

468 Criminal Law

tents. Aiid there can be no duty resting upon the other
party to the contract to inform him, unless there is
some substantial reason; as where there is a great dis-
parity in understanding, or in ability, either mental or
physical; or where he is in possession of facts which he
is bound by fairness to disclose. So if he undertakes to
read an instrument for the other's special knowledge he
is bound to read it correctly. Upon the authority of the
reported cases forgery may be assigned upon both class
of cases, yet upon a close adherence to the definition as by
common law, it can not be allowed. Lord Coke, 2 Inst.
269, says: "Where A makes a feoffment to B of certain
land, and afterwards makes a feoffment to C of the same
land, with a date before the feoffment to B, this was cer-
tainly making a false instrument in one's own name. Mak-
ing one's own act appear to have been done at a time,
when in fact it was not done. ' ' The court in a Massachu-
setts case commenting upon this case of Lord Coke 's says :
' ' We fail to understand upon what principle this case can
rest. If the instrument had been executed in the presence
of the feoffee, and antedated in his presence, it clearly
could not have been forgery. Beyond this, as the feoft"-
ment took effect not by the charter of feoffment but by
the livery of seizen, the entry of the feoffor, upon the
land with the charter and the livery of the twig or clod
in the name of the seizor, of all the land contained in the
deed, it is not easy to see how the date could be mate-
rial." '^ According to the law in our states as to the con-
veyance of land it is not necessary that there be a livery
of seizen, as at the common law and the reasoning of the
^Massachusetts court is hardly applicable here. So, in a
Tennessee case, wliore the law is that a justice of the
peace is required to make out a bill of cost of cases tried

31— Com, V. Baldwin, 11 Gray il. A. (N. S.) nS, soo note 17

(MaB8.) 197, 71 Am. Dec. 704; Ann. Caa. 703, sco not<3 120 li. K.

People V. PfcifTcr, 243 111. 200, 90 A. (N. S.) MiH.
N. P:. 080, 17 Ann. fas. 703, 26 L.

FORGEEY 469

before liim, and present the same to the county court for
approval and payment, but made out a wholly fictitious
bill and presented to the county court, as a true bill of
the cost, the court held he was guilty of forgeiy. *' For-
gery is one class of common law cheats ; manifestly the bill
of costs alleged to have been forged by Luttrell is a writ-
ing within the scope of the definition given." It is a
writing authorized and required by law to entitle a justice
of the peace to receive payment of cost in criminal cases.
If it be genuine it undoubtedly has ' ' legal efficacy and is
the foundation of legal liability, and if it be in due forai,
though not genuine, it may and will if used, operate to
the prejudice of another's right against whom the costs
are assessed; and in criminal cases where the judgment
is for the defendant to the prejudice of the county."
Hence we are of the opinion that if for no other reason,
the view of the court in this case, properly brings all such
cases as we have been discussing within the purview of
the definition of the common law. If not a forgery, it is a
common law cheat, and as the court says forgery itself is
a common law cheat.^^

CHARACTER OF INSTRUMENT

§ 516. Must affect the property. The instrument con-
templated by the law of which forgery may be assigned
is such an one as can be used perfectly or imperfectly as
evidence against the party in interest.^^ As a general rule
the false writing must affect or be calculated to affect
another in property rights, and subject him to some lia-
bility, if the writing in question was genuine, however
slight. So, writs, process of all kinds, and judgments is-
sued out of courts of justice may be the subject of forgery.
So, also, it may be deduced that where a writing of a na-
ture which within itself, affects a community as a body, or

32— Luttrell v. State, 1 S. W. 299; Clark v. State, 8 Ohio St. 630;
(Tenn.) 886. John v. State, 23 Wis. 504.

33 — State v. Thompson, 19 So.

470 Criminal Law

as a whole, forgeiy may be assigned because it affects the
many individuals — the public. A statute where it con-
fers a bounty upon all persons killing gophers when proof
is made to the board of super^dsors, by the presentation
before them a certificate of a justice of the peace, the
false signing of the justice of the peace, pui'porting to be
a certificate as the law requires, is forgeiy. The court
in a Missouri case says: "It is the felonious making of
the false instrument as true in fact which constitutes the
crime of forgeiy. It is not necessary for the indictment
to aver that the instrument would have conveyed the
land, if genuine. The question is whether, upon its face,
it will have the effect to defraud those who may act upon
it as genuine, as the person whose name is forged. "^^
As between the parties to a convej^ance of land, the for-
gery is complete without the acknowledgment, when the
signature of the purported owner is attached to the in-
strument.^^

§ 517. Of the statutes of the states. The statutes of tlie
'several states are not uniform in their terms, either in
the description of the various instruments of which for-
gery may be predicated, or in the respect to the legality
of the instrument, as puiiiorting a pecuniary obligation
and the consequent interest of another wliicli may be af-
fected tliereby. So, in the particular jurisdiction, the
rules of the common law may be greatly and materially
extended. Under a statute whicli defines forgery to bo
** where one without lawful autliority, and with intent to
injury or defraud, shall make a false instrument in writ-
ing, puiporting to be the act of another in such manner
tliat the false instrument so made would, if tnie, have
created, increased, diminislicd, discliargod or defeated
any pecuniary obligation, oi' would have transferred or
in any manner affected any ])i"oi)erty whatever," the

35 — State V. .Johnson, 96 Am. 36— State v. Fisher, 65 Mo. 437;

Dec. 158, 26 la. 407. State v. Tobie, 42" S. W. 1079.

Forgery 471

court held that the following writing was subject of for-
gery. "Mrs. A. C. Neal: Please send my diploma to me
by this young man, W. W. Wolf. ' ' We think this is an
undertaking in writing. It supposes a right in Wolf to
dispose of the diploma — that is to change the posses-
sion of it; and to change the possession of it would, in our
opinion, be a disposing of it within the meaning of the
statute." So, in accordance with this, if the instrument
if genuine, would transfer the possession of the property
merely, the act would be forgery.*''

Therefore, under statutes, the common law may be ex-
tended to cover matter, that could not be reached by it.
The instrument forged must, however, have some legal
force and effect, otherwise it will not be forgery; as where
the instrument is as follows : " To Any Railroad Superin-
tendent: The bearer, T. H. Whiley, has been employed
on the A. & S. R. R. as brakeman and freight hand. He
goes west to find a more lucrative position. Any courte-
sies shown him will be duly appreciated and reciprocated
should opportunity offer. H. A. Fonda, Superintend-
ent. ' ' ** Now where the instrument, if genuine, upon
which forgery is predicated, is wholly void by reason of
the failure of consideration, or for the failure to comply
with the law in the execution of the same, or for any
other reason, a conviction would be illegal. As where a
deed from a married woman, not having been acknowl-
edged according to the statute; or where a bill is void by
reason of not being attested by a witness; or where the
law requires a seal to be placed upon an instiTiment and
the same does not appear thereon; or where an agree-
ment fails to disclose a consideration; or where the statute
prescribes the form of an instrument unknown to the com-
mon law, so as to render any other form void.*^

37— Alexander v. State, 28 Tex. 39— Arnald v. Cost, 22 Am. Dec.

App. 187, 12 S. W. 595. 316. See note and cases cited.

38— Waterman v. People, 67 111.
91, 1 Am. Crim. Eep. 225.

•472 Criminal, Law

of the intent

§ 518. Specific intent to defraud. The mere act of
preparing a false instrument, purporting to be tlie act
of another, with no intent to defraud, is not forgery.
There must be a specific intent to defraud, but that intent
need not be to defraud any particular person, but any
person, finn, company or corporation, or the public, is
sufficient. The making the false instrument for the
purpose and with the intent to defraud constitutes the
crime. "\Yhere the fraudulent design exists in con-
junction with the making of the false instniment, it is im-
material that the fraud designed, or any fraud that might
have resulted, be in fact affected. The uttering and the
passing of the false instrument is not essential. Forgeiy
is one crime and the uttering and the passing of the same
is an entirely different one. Uttering consists in the at-
tempt to pass as genuine or in the actual passing of a
forged instrument knowing the same to have been forged.
The uttering consists of three elements which must con-
cur. 1. The accused must know that the instrument is
false. 2. That an attempt was made to pass it as a genu-
ine instrument, as that which it purported to be. 3. That
the paper appear upon its face as valid.*''

§ 519. Recording an instrument is sufficient publication.
The recording of a forged discharge to a mortgage, or the
recording of a forged deed to land is a sufficient uttering
and publishing of the forged instrument to warrant a con-
viction.*^ So, a draft made payable to accused, he know-

40— Full discussion of the qucs- 147 Mass. 585, 18 N. E. 587, 9 A.

tion of intent see the following S. R. 736, 1 L. R. A. 620; Allon

case's: Elsey v. State, 47 Ark. 572, v. State, 44 Tex. App. 63, 68 S. W.

2 S. W. 337; U. S. v. Mitchell, 1 286, 100 A. S. R. 830; State v.

Hall. 366; Couch v. State, 28 Ga. Cross, 101 N. C. 770, 7 S. E. 715,

367; Carver v. People, 39 Mich. A. S. R. 53; Barruii v. State, 15

7«6; Com. v. Sarlo (2 Binn.), 4 Ohio St. 717, 45 Am. Doc. 601.
Am. Dec. 446; People v. Caton, 25 41 — People v. Swctland (Mich.),

Mich. 390; State v. Calkins, 73 la. 43 N. W. 779, 77 Mich. 53.
128, 34 N. W. 777; Com. v. Brown,

Forgery

473

ing it to be a forgeiy and endorsed by him, is an utter-
ing.*2 Where a forged instrument was left in the posses-
sion of the prosecuting witness for his inspection and with
the intent thereby to induce him to extend a benefit to the
defendant, is also sufficient. Any act of the utterer in the
direction of obtaining money, profit, benefit or advantage
upon any forged paper, is the uttering of such paper,
whether he pass it or not. It is not necessaiy that any
person be actually deceived by the false instrument, or
that he be injured thereby.*^

§ 520. Instrument must be set out in words and figure.

The false instrument must be set out in the indictment,
in haec verba, and the allegation must affirmatively show,
that it was feloniously and falsely made with intent
to defraud.** Where the alleged forged instrument upon
its face is insufficient to show a liability, there must be an
allegation of facts to show the liability.*^ The reason
why the indictment should set out the instrument in full
in words and figures, is in order that the court may be
able to pass upon its validity. Where the term "tenor"
is employed in the discretion of the instrument, it means
the entire instrument in words and figures, but the term
"purport," being less comprehensive, only presents the
substance of the instrument or the conclusion of the
pleader.*^ In the allegation of fraudulent intent it is not
necessary to name the person defrauded. So, when
the alleged forged instrument cannot be produced,

42 — Timmons v. State (Ga.), 4
S. E. 766, 80 Ga. 216.

43— People v. Eathborn, 21 Wend.
505; People v. Bingham, 2 Mich.
550. See following cases: Mo-
loney V. State, 91 Ark. 485, 121 S.
W. 728, 134 A. S. E. 83, 18 Ann.
Gas. 480; State v. Sherwood, 90 la.
550, 58 N. W. 911, 48 A. S. E. 461;
State V. Blogitt, 143 la. 578, 121
N. W. 685, 21 .^nn. Gas. 231;

United States v. Carpenter, 151
Fed. 214, 81 C. G. A. 104, 10 Ann.
Gas. 509, 9 L. E. A. (N. S.) 1043.

44—3 Greenl. 104.

45 — People v. Kingley, 2 Cow.
522; Com. v. Houston, 8 Mass. 107;
U. S. V. Britian, 2 Mason 466; 1
Starkie's, 5 Am. ed. 382.

46 — State v. Gallendine, 8 la.
288; State v. Johnson, 26 la. 407,
96 Am. Dec. 158.

474 Ckiminal Law

is lost or in the possession of the defendant, it is
enough to allege that the instrument is lost and beyond
the reach of the grand jury, the tenor of which is to them
unknowm; but the pleader must give such description of it
as lay in his power.*^ At common law it appears to have
been necessary that the description of the instrument be
preceded by the phrase: "to the tenor following" or "in
the words and figures following. ' ' The practice generally
follow^s this manner of description, but any other tenns
are sufficient which in clear language describes the in-
strument. It is better to employ the phrase, "to the
tenor following" than "to the purport following," the
former being a much more comprehensive term, implying
an exact copy of the instrument, the latter, the substance.

§ 521. What instrument is the basis of forgery. An in-
strument which upon its face does not in any manner
create, increase, diminish, discharge or defeat a pecuniaiy
obligation, may by the emplojmient of extrinsic aver-
ments, be made the basis of forgery." As we have re-
marked in another connection the instrument in question
must show upon its face that it is of such a nature as to
create a liability, if it were genuine. This, however, is
not always true, for under some circumstances if the in-
strument appears to be legal and there is a latent defect
wliich may not be observed by a person possessing ordi-
nary business capacity, it would yet be forgery.*^ The
reason of this is evident from the fact that the fraud may
as effectually be made as if the instrument in fact pos-
sessed all legal attributes. When such a case presents
itself it will be necessary for the pleadiM- to cover the
inatlci- willi ;ii)pn)printe avennonts, toucliiiig its legality.

47— State V. Tingler, 9 S. E. 935, App. r,6Q; Waiiihlc v. State, 44 S.

.32 W. Va. r,4G; State v. Callahan, W. (Tex.) 827.

24 N. ?:. (Ind.) 732, 124 Ind. 3fi4. 49— TVoplc v. Stevens, 21 Wend.

48_Coyle v. State, 44 (Tex.) S. 409; Renil.crt v. State, 25 Am. Hep.

W. 1087; King v. State, 27 Tex. 639, 53 Ala. 467.

Forgery

475

Based upon the common law the general rule is that the
indictment must aver the name of the person who was
defrauded.^" It seems, however, that some of the statutes
provide that it is not necessary. That a general allegation
of intent to defraud is enough.^^ Where the forgery con-
sists in the alteration of an instrument the averments of
the indictment must set out wherein the alteration is made
material in charging a liability."

§522. Following the language of the statute is suf-
ficient. Usually it is enough to follow the language of
the statute in the averments of an offense. It is not, how-
ever, necessary that the exact language be followed, but
any averment that succinctly and particularly covers the
intent of the statute may be enough."^ The words of a
statute are not sufficient description of the offense unless
the language fully, clearly and explicitly define the of-
fense, without any uncertainty or ambiguity."" When
such is the case the pleader must employ such terms as
clearly and definitely cover the nature of the offense.

§ 523. The indictment may contain a count for the pass-
ing and the forgery. The indictment may contain a count
for the forgery and one for the uttering and passing.""
But as we have said in another connection these are dis-

50 — Russell on Crimes, 19 Am. ed.
807; Noakes v. People, 25 N. Y.
387.

51— Westbrook v. State, 23 Tex.
App. 401 ; State v. Warren, 109 Wo.
432; State v. Nelson, 28 La. Ann.
46; People v. Van Alstine, 57 Mich.
74, 23 N. W. 594.

52— State v. Fisher, 58 Mo. 256;
State V. Means, 47 La. Ann. 1535,
13 So. 514; People v. O 'Brine, 96
Cal. 171, 31 Pae. 45.

52a — Harrington v. State, 554
Miss. 490; State v. Fisher, 65 Mo.
438; State v. Stevens, 45 La. Ann.

702, 12 So. 883; Horton v. State,
53 Ala. 468; Travis v. State, 83
Ga. 373, 9 S. E. 1063; Labaithe v.
State, 6 Tex. App. 257.

52b— U. S. V. Caril, 105 U. S.
612; Poage v. State, 3 Ohio St.
229; State v. McKiernan, 17 Nev.
227, 30 Pac. 831.

52c — Foute v. State, 15 Lea.
715; Luttrell v. State, 1 S. W. 886;
State V. Keeter, 80 N. C. 472 ; Boles
V. State, 13 Tex. App. 650; State
V. Clement, 42 La. Ann. 583; Mc-
Cleland v. State, 32 Ark. 600.

476

Criminal Law

tinct and separate offenses and proof of the one is not ad-
missible to establish the other. So, where the indictment
is for the forgery, proof of the uttering and passing to an-
other is unlawful.^'^" The allegations are similar in many
respects. So in the main the allegations of the indictment
for the uttering is that of the forgery, yet there are ele-
ments in this offense that are not necessary in the offense
of forger}^, and which is veiy essential to be alleged in the
indictment for the uttering, and hence a count must be
laid for each. The authorities are not uniform in this
however."' We think however that weight of authority
is with the affirmative.

§ 524. Evidence is largely inferential. The evidence
in this class of offenses is largely inferential. The intent
to defraud is to be gathered from the circumstances sur-
roundincr the case. The fact that a man makes a false in-
strument, purporting to be the act of another person, is
very strong proof that he intended to defraud because of
the fact. Our experiences teach us that men ordinarily
do not make false instruments for other purposes than to
deceive. The instrument alleged to have been forged
must be offered in evidence if it is in existence. If not,
the indictment must allege this fact, and secondary evi-
dence may be offered, conformably with the allegation
of the indictment.^^ But even in this case the proof must
agree with the description and the legal import as that

52d— Luttrell v. State, 1 S. W.
(Tenn.) 886.

52e— Ball v. State, 48 Ark. 01.

53— Greenl. Sec. 107: "If tlio iii-
.Htruiiicrit said to be forged is in
(•xi.Htciicc and accesHible, it niu.st be
l)ro(luced at the trial. But in the
al»Hfnce of it, it bo proved that it
is in tJio priHonor's jiOHHCssion, or
to have been dcstrojx'd by him or
othorwiHc destroyed, without the

fault of the prosecution, is no legal
l)ar to proceeding in the trial,
though it may increase the diffi-
culty of proving the crime. Thus
when the forged deed was in the
])o.sHeasion of the prisoner, who re-
fused to produce it, it was held that
the grand jury might receive sec-
ondary evidence of its contents.
Notice must be given to the defend-
ant to produce it."

Forgery 477

set out in the indictment. It has long been held to be the
law that the mere omission of letters, or any additions
made to the instrument, which do not destroy the identity
of the paper or which does not affect its legality is not a
fatal variance. Thus where the instrument offered in evi-
dence as the instrument forged differs in any immaterial
sense from that recited in the indictment, the variance is
immaterial." So, words employed in the innuendo, differ-
ing in no material sense from those in the instrument
offered in evidence, is no variance. ^^ So, where there is
a difference as to date only it is immaterial.^®

§ 525. Laws of Scotland. The laws of Scotland upon
this subject of evidence in forgery cases is presented and
arranged in the order following: 1. The testimony of
the person whose name is alleged to have been forged. 2.
Testimony of a person who is acquainted with the hand
writing of the party whose name is alleged to have been
forged, who has seen him write. 3. Of a person who has
had correspondence with him but who has not seen
him write. 4. Comparing the instrument in question
with his genuine writing. 5. Testimony of that class
of persons who have by their business been accus-
tomed to compare hand writings." The general rule
of evidence is that the best evidence of which a
particular fact is capable of being proven is to be
produced by the party upon whom rests the burden
of establishing it. At the common law the party whose
name had been forged was not a competent witness
to establish the forgeiy, for the reason that his interest
in the subject matter precluded him. This rule how-
ever is not adhered to in this country at the present time,

54— People v. Phillips, 70 Cal. 61, N. W. 519; Com. v. Eoss, 2 Mass.

11 Pac. 493. 373.

55 — Alexander v. State (Tex.), 2 57 — Allison's Cr. Laws of Scot-

S. W. 595. land, 6 to 15.
• 56— State v. Blanchard (la.), 38

478

Criminal Law

although many early decisions may be fomid holding
such.^^

It is not necessarj^ that the party should testify. His
failure to testify that he did not make the instrument or
the signature, increases the difficulty of establishing the
fact of forgery. The testimony of any person who knows
anything of the hand writing of the person w^hose name is
alleged to have been forged is competent whether he be
an expert or simply one who has particular knowledge of
the hand writing in question.

A very frequent means of detecting forgery is to show
that the paper upon which the alleged forged instrument
is written bears the stamp of the manufactoiy subsequent
to the date of the paper. It is competent to show that
the defendant at other times offered or attempted to pass
the forged instrument. This is competent for the purpose
of showing the intent w^th which he attempted to pass
it.^^ It is also competent to show that at other times and
other places he had in his possession other forged instru-
ments which he attempted to pass, knowing them to be
forged. When such evidence is admitted it is for no other
puiTDOse than throwing light upon the intent of the ac-
cused, and it should not be admitted except upon the
explanation of the court to that effect.^" So where the
indictment is for the uttering or the passing of the forged
instrument, knowing it to have been forged, the same rule
will apply.^^ It appears, however, that in order to show

58 — The court in tlie following
states have held that the person
whose name has been forged is an
incompetent witness, on the ground
that he is a party in interest. 1
Mass. 7; 3 Mass. 82; 5 Mass. 261;
Vermont v. Tyler, 260; Ilcathton
V. State, 2 Ilayw. Conn., 1 Root.
296; 2 Rubs. Cr. L. 602; 2 Stake
Ev. 338.

59— Burks v. State, 24 Tex. App.

326; State v. Hodges, 45 (Mo.) S.
\V. 1003; People v. Kemp, 76 Mich.
410, 43 N. W. 439; Cross v. People,
47 111. 152, 95 Am. Dec. 474.

60— State v. Meyers, 82 Mo. 558;
State V. Hodges, 45 S. W. 1093.

61— People V. Frank, 28 Cal. 507;
Steele v. People. 45 111. 152; Com.
V. White, 145 Mass. 392, 14 N. E.
661 ; Ilani. v. State, 4 Tex. App.
645; Carver v. State. 39 Mich. 786.

Forgery

479

that an uttering has taken place it is necessary to prove
that the false paper has passed to another, or at least
some affirmative act of the accused has been made raising
the inference of his intent to pass it.^^ Nor is it essential
that the accused received or acquired any benefit from the
act.

§ 526. Proof of passing- is not made till shown it passed
to the person intended. Proof of uttering may be made
by any circumstance which shows that an attempt was
made to pass the instiTiment.

But the allegation of the indictment that the instru-
ment was passed is only proven when it is shown that the
possession of the forged paper was delivered to another
for the purpose of defrauding. It is also necessary to
show that utterer knew at the time that the instrument
was forged. The gist of the offense consists in the guilty
knowledge.^^

§ 527. Attempt to commit. At common law we find
the crime of forgery is controlled by the same rules as
other crimes as to the doctrine of attempts.^* The
books do not appear to give very many instances where
this has been before the courts, but this may be due in the
main to the fact that at common law, forgery is a misde-
meanor. There are some old statutes of England making
it felony. In general, it is a felony. Blackstone found
it to be a great species of fraud, and we also learn that
it was in some sense a crime against the King's reve-

62— Eathburn v. People, 21
Wend. 509; People v. Bingham, 2
Mich. 550.

63 — The allegation of uttering
and publishing is proved by evi-
dence that the prisoner offered to
pass tlie instrument to another per-
son declaring or asserting, directly
or indirectly, by words or actions

that it was good. The act of pass-
ing is not complete until the instru-
ment is received by the person to
whom it is offered. 3 Greenl. 110.
64 — Com. V. Foster, 114 Mass.
311, 19 Am. Eep. 353; Com. v. Eay,
3 Gray 446; State v. Aims, 2 Me.
365; Waterman v. People, 67 111.
91; see chap, on Forgery, this work.

480 Ckiminal Law

nues at common law and was a kind of treason, for
treason by the English law was in part the coiTuption
of the coin. So if it was a treason, all persons having
anything to do with it were guilty as principals; this may
be another reason ^vhy we do not find more in the books
about the attempt. Forgeiy consists in the making or
altering a material instrument with the fraudulent pur-
pose of cheating and defrauding another. There
seems to be no good reason why an attempt to do this
thing and for some unlooked-for circumstance, a fail-
ure occurs in the completion of it, is not an attempt
to do it.®^ The forgeiy is one crime and the uttering or
publishing it after it is completed is another and are
both substantive crimes, consisting of different ele-
ments. The uttering and publishing of a forged instru-
ment is the obtaining a benefit from it knowing it was
forged. The offer to utter is a crime, notwithstanding the
fraud is not actually perpetrated by receiving the benefit.
This is the attempt, but it has always been considered a
substantive offense, as much as the actually uttering,
or passing.

65 — iCunningham v. State, 49
Miss. 703; Raffcrty v. State, 91 la.
655.

CHAPTER XXX

HOMICIDE

528. Divisions of. § 549.

529. Murder defined.

530. Malice need not be against § 550.

the person killed.

531. Presumptions as to acts. § 551.

532. Express malice, how proved.

533. Presumption from proof of

corpus delicti. § 552.

534. Presumption as to continu-

ance of malice. § 553.

535. Ignorance and negligence of

physician. § 554.

536. Presumption as to first § 555.

wound. § 556.

537. Murder by other than physi- § 556a

cal means. § 557.

538. Person must be alive. § 558.

539. Dueling. § 559.

540. Definition. § 560.

541. At common law no degrees

of murder. § 561.

542. Murder by lying in wait,

poison, etc.

543. Specific intent to kill neces- § 562.

sary, when.
I 544. Under Federal Statutes no

degrees of murder. § 563.

: 545. Manslaughter defended. § 564.

I 545a. Cause for jury. § 565.

1 546. Presumption that defendant

acted upon provocation, § 566.

when. § 567.

! 547. Insulting word to female § 568.

relative.
j 548. What is cooling time. § 569.

Killing officer while making
arrest.

Peace officer must act in con-
formity to law.

Killing an officer in resist-
ance to arrest, malice pre-
sumed.

Involuntary manslaughter
defined.

Misdemeanors merely mala
prohibita.

Negligent acts.

Self defense, illustrations.

Apprehension of danger.

. Cowardice, fear, etc.

Threats to take life.

No felonious assaults.

Assault upon habitation.

Attack upon property other
than habitation.

Homicide committed in the
prevention of felony, jus-
tifiable.

The right of the members of
the family to defend each
other.

The degree of force used.

Non felonious assaults.

Wrongful act contributing
to the necessity to kill.

Eetreat and pursuit.

Spring guns.

Assault to murder, misde-
meanors at common law.

As to the intent.

§ 528. Divisions of homicide. Homicide is defined to be
the killing of a human being by himself or another.^

1—4 Blaekstone 178.

481

C. L.— 31

482 Criminal Law

Homicide by the common law is divided into five sub-
divisions: (1) Murder. Where the killing is done upon
malice, either express or implied. (2) Manslaughter.
Where the killing is committed in hot blood or sudden
passion or the unforeseen result of unlawful act, without
malice. (3) Justifiable. Where the killing is owing to
some unavoidable necessity without any will, intention
or desire, and without any inadvertence or negligence in
the party killing. (4) Excusable. Where the killing is
either committed in the lawful self-defense of one's per-
son, habitation or property, or where the killing is done
by mistake while engaged in a lawful pursuit, or where
the killing is committed in the prevention of a felony.^
(5) Suicide. Where one takes his own life.'

§ 529. Murder defined. Murder is defined by Sir Wm.
Blackstone: as 'Svhere a person of sound memoiy and
discretion unlawfully killeth any reasonable creature, in
being, and under the king's peace, with malice afore-
thought, either expressed or implied." * Thus it is gath-
ered from the definition that persons capable of commit-
ting murder must be possessed of sound memoiy and
discretion, idiots, lunatics and infants being incapable of
forming a criminal intent, are therefore exempt as in
other crimes.* The principal element of murder is malice.
Express malice is defined to be ''where one with delib-
erate mind and fomied design doth kill another." Also
where one without a previous fonncd design to kill an-
other, but with an intent to do an unlawful act, the
probable result of which is to deprive another of his life.®
This character of malice is evidenced by lying in wait,
former grudges, antecedent threats and ill will.''^ It is,

2— stop. Dig. Cr. L. 154. 6— Ex parte Wray, 30 Mips. G73.

3—4 Ulackstono 178, 9, 180, 181, 7—1 Hale P. C. 451; 4 Black-

182, 183. stone V.)<) ; -3 Grccnl. Rcdf. Ed. 130,

4_4 BlfickHtone 105. 131, 132.

5 — Sec Earl I^ivcrs case, 10 Horg.
St. Tr. 478. Chapter, PcrHon Ex-
empt from Crimes, this work.

Homicide

483

as distinguished from implied malice, very difficult of
definition. From its nature no explicit and general rule
or comprehension of facts can be included in general
definition. It must be left to the circumstances of each
particular case. It is generally conceded that an act or
a combination of acts and circumstances which show a
premeditation and formed design to take life is upon
express malice. Malice is that condition of the mind
which sanctions the commission of crime. So long as
this condition of the mind is not evidenced by an overt
act, the law cannot reach it. It has been defined by the
courts as a ' ' settled intention to do harm, " * ' ' a design
f omied of doing mischief to another, " ® ' ' means any
wicked and malicious intention of the mind, " ^° "a
wrongful act done intentionally and without just cause
or excuse." ^^

§ 530. Malice need not be against the person killed.

The malice need not be directed against the person killed.
It is sufficient if the act which results in death, emanates
from a mind fatally bent upon mischief and regardless
of social duty. This if A, wantonly and recklessly, and
in total disregard to the results to others, shoots into a
crowd of persons on the street and kills B, it is murder,
for the malice is presumed from the nature of the act.
But if he has a legal right to carry a loaded gun upon
the street and by the careless handling it is discharged
and kills B, it is not murder, but involuntaiy manslaugh-
ter, or negligent homicide, according to the circum-
stances, and the degree of negligence.^^ Usually there

8 — Star Chamber cases, 1630 Pac.
5.

9 — Eeg V. Mawbridge, Kely 119.

10— Eex V. Hovey, 2 B. & C. 268.

11— State V. Weimes, 66 Mo. 13 ;
Whereham v. State, 25 Ohio St.
601; Fouts V. State, 8 Ohio 98.

12— McPherson v. State, 22 Ga.
487; Sparks v. Com. (Ky.), 3 Bush.

Ill, 96 Am. Dec. 196; intention to
kill one and the blow falls upon an
other, murder. See Butler v. State,
125 111. 641, 18 N. E. 338, 8 A. S.
R. 423, 1 L. R. A. 211; Smith v.
Com., 19 Ky. 1073, 428 W. 1138;
Johnson v. State, 66. Ohio St. 50,
63 N. E. 607y 90 A. S. R. 561,- and
note. Adams v. State, 65 Ind. 565;

484

Cbiminal Law

must be a preconceived and a foiTned design to kill an-
other and it makes no difference how the design w^as car-
ried into effect, the killing will be murder whether the
intention was to kill a particular or any person.^'

§ 531. Presumptions as to acts. It is a presumption of
law that all persons intend the probable consequences of
their acts.^* Thus implied malice is a conclusion of law
deduced from fact. Thus the use of a deadly weapon is
presumed to be done with malice. It is a rebuttable pre-
sumption, however, and the malice is to be presumed
only upon all the circumstances.^^ This character of
malice is discoverable as an inference drawn from the
manner and the means by which death is produced. Thus
if A, upon a slight or inconsiderable provocation, used
a deadly w^eapon, malice will be presumed from its use,
and if he use a weapon not necessarily deadly, but in a
cruel and unusual manner, malice is presumed from the
manner of the use, and in both instances the killing is
murder. If the instrument is not a deadly one and the
same is not used in a cruel and brutish manner, death re-
sulting is only manslaughter.^^

§ 532. Express malice how proved. Malice is only dis-
coverable through the circumstances indicating the in-
tent of the act. Express malice is proved and presumed

State V. Hardz, 47 la. 647, 29 Am.
Rep. 496; State v. Vance, 17 la.
138; State v. Jones, 78 Mo. 77, 47
Am. Rep. 92; Am. & Eng. End.,
Vol. 9, p. 589.

13— Com. V. Dunn, 58 Pa. St. 9;
State V. Douglass, 28 W. Va. 297;
Harris v. State, 8 Tex. App. 90.

14 — Com. V. liaw^ins, 3 Gray
463; Erwin v. State, 29 Ohio St.
191.

15— Com. V. Webster, 5 Cush.
305; Hcarl v. State, 9 Med. 104.

16—3 Greenl. Red. Ed. 147 ; State
V. John, 172 Mo. 220, 72 S. W. 525,
95 A. S. R. 513; State v. Jackson,
36 S. C. 487, 15 S. E. 550, 31 A.
S. R. 890; Cupps v. State, 120 Wis.
504, 97 N. W. 210, 102 A. S. R.
DUG; Cornwcll v. State, 61 Tex. App.
122, 134 S. W. 221, Ann. Caa
1913 B 71 ; Brown v. State, 83 Ala.
33, 3 So. 857, 3 A. S. R. 685; Gib-
son V. State, 89 Ala. 121, 8 So. 98,
18 A. S. R. 96.

Homicide

485

upon the establishing an act committed with a sedate
and deliberate mind. Time itself is not an essence of the
malice, since if the act is committed with a deliberation
indicating a formed intention it is sufficient. This delib-
eration may be formed in an instant of time. Even an
act committed in hot blood may be committed in such a
manner that it will show a deliberation evidencing malice.
Thus where A makes an inconsiderable assault upon B,
and B draws his sword and runs him through, the act
of using the sword indicates the maligiiity and deliber-
ation of the act, since in the case of a simple assault no
necessity arises for the use of such weapon. Death re-
sulting in such case would be murder." Where a dan-

17 — Express malice may be in-
ferred by the proof of the cool,
calm and deliberate and circumspect
deportment and bearing of a party,
where the act is done immediately
prior or subsequent thereto; his ap-
parent freedom from passion or ex-
citement; the absence of any ob-
vious or known cause to disturb his
mind or to arouse his passions; the
nature and character of each act
itself; the instrument used and the
manner of committing the act; the
declarations of the party, showing
the state of his mind and the mo-
tives and the purposes with which
he acts; and all other facts and
circumstances connected with the
transaction and established by the
evidence, are to be taken into con-
sideration, in determining the state
of his mind, at the time the de-
termination to take life was formed.
Malice in its legal sense means the
intentional doing of a wrongful act,
without legal justification or excuse.
Evans v. State, 6 Tex. App. 513 :
"Malice is that condition of mind
which shows a heart regardless of
social duty, and fatally bent upon

mischief, the existence of which is
inferred from acts committed or
Avords spoken." Harris v. State,
8 Tex. App. 90; More v. State, 15
Tex. App. 1.

Express malice is malice in fact,
the actual evidence of which is a
question for the jury to determine
and consists of an actual and de-
liberate, intentional, unlawfully to
take the life of another person or
to do him some bodily harm. A
formed design not merely to take
away the life of the defendant, but
includes an intent to do an unlaw-
ful act, which may probably end in
destroying life. Cotton v. State, 32
Tex. 614. In the case the court
says : "In express malice, the ex-
ternal circumstances, the acts and
the conduct of the accused, at the
time, before and subsequent to the
killing indicate a cool and deliber-
ate mind and formed design to kill.
If so, there is express malice. There
is no certain and definite time nec-
essary to intervene between the
formed design to kill and the fatal
blow." Lewis v. State, 15 Tex.
App. 647; Com. v. Drumm, 58 Pa.

486

Criminal, Law

gerous or a deadly weapon is used without any specific
intent to kill, death ensuing is presumed to be upon malice
implied from the weapon used."

§ 533. Presumption from proof of corpus delicti. AVhen
an unlawful killing — the corpus delicti — is shown, it is
presumed to be murder, until the proof shows to the con-
trary. The unlawful killing being traced to the defend-
ant, the burden of proof is upon him to show that it was
upon extenuation or excuse. This appears to be the rule
by a weight of the authorities.^^ But there is a disposi-
tion in some of the more recent authorities to depart
from this rule. The states of New York and Iowa appear
to have taken the initiative in dissenting. But in the

St. 9; McAdams v. State, 25 Ark.
405, 69 N. C. 267, 26 Ark. 334, 12
Ohio 43, 28 Ga. 594, 31 Pa. St.
198, 65 111. 17; U. S. v. Cornell, 2
Mason 88, N. Y. 117, 32 Ver. 491,
10 Tex. 479.

18—4 Blackstone 200, 9 Mete.
103, 3 Greenl. 145; Com. v. Hop-
kins, 3 Gray 463; State v. Mc-
Donald, 32 Vt. 491. "That the use
of a dead weapon is a prima facie
evidence of malice; because a man
must be taken to intend the neces-
sary and usual consequences of his
acts. To shoot, stab or strike with
a bludgeon indicates a purpose to
take life ; but if one or the other
be employed to disable an adversary
in the very act of making a mur-
derous assault, tiien the presump-
tion is overcome ; where death en-
sues from a shot gun wound nr a
stab or other violent iiicanH, l)ut no
witncrsH saw the act done and the
circumstances are unknown and un-
proved by the state; Iktc tlic mode
of the killing raises a strong pre
sum[)tion of malice, if he offers no
explanation of the killing; if he

fails to show that it was on account
of necessity, done. Se defendendo,
the inference of malice from the use
remains. The fact that the law
allows a man to carry a pistol or
other deadly weapon does in no case
excuse him from an unlawful use of
it." Brown v. State, 83 Ala. 33,
3 So. 857, 3 A. S. R. 685; Delk v.
State, 135 Ga. 312, 69 S. E. 541,
Am. Cas. 1912 A 105; State v. Do-
herty, 72 Vt. 381, 48 Atl. 658, 82
A. S. R. 951; State v. Legg, 50 W.
Va. 315, 53 S. E. 545, 3 L. R. A.
(N. S.) 1152.

19— Mann v. State, 124 Ga. 700,
,53 S. E. 324, 4 L. R. A. (N. S.)
934; State v. Moore, 25 la. 128, 95
Am. Dec. 776; State v. Landgraf,
95 Mo. 97, 8 S. W. 237, 6 A. S. K.
26; State v. Alexander, 30 S. C. 74,
8 S. E. 440, 14 A. S. R. 879; Coffee
v. State, 3 Yerg. (Tenn.) 283, 24
Am. Dec. 570; People v. Schrayver,
42 N. Y. 1, 1 Am. Hep. 480; People
V. McLead, 1 Hill. l-'iO; People v.
Coltcral. IH .lolins. I'Jd; 2 Starkie's
Kv.. 4Kit.

Homicide

487

state of New York the authorities are conflicting and the
bulk as well as the weight of authorities there sustains
the rule. In those cases where there are no witnesses and
the mere fact of a killing is proved, it appears to be the
tendency of modern authority to acquit, unless the gov-
ernment by other evidence can establish independently
of the implication of malice by the mere fact of the un-
lawful killing, the malicious intent of the defendant.^

§ 534. Presumption as to continuance of malice. Malice
having been shown is presumed to continue up to and
including the fatal act.^^ But if there are circumstances
showing the act to have been upon a fresh provocation it
will relieve the act of this presumption. If, however, the
defendant resorts to any subterfuge to induce the de-
ceased to provoke the conflict, in order that he may have
occasion to kill him; this will sustain the presumption
that the killing was done upon the old malice. Thus if
A is traveling a road he has a right to travel, meets B
against whom he has a grudge and upon demonstrations
made by B that he intends to bring on a conflict and A,
acting upon the appearances of danger, kills him, this
rebuts the presumption of the former malice.^^

§ 535. Ignorance and negligence of physician. Where
a wound is inflicted in malice and from the nature of it.

20— stokes V. People, 53 N. Y.
— ; Tweedy v. State, 5 la. 433.

21— Stewart v. State, 1 Ohio 66;
30 Curwood ed. In the case of
Copeland v. State, 7 Humph. 429 ;
the court holds that not withstand-
ing there had been a grudge and
bad feelings between the deceased
and the defendant for many years,
but at the time of the homicide
there was a fresh provocation of-
fered by the deceased and since the
defendant had acted at the time this
fresh provocation had been given,

that the killing was the direct re-
sult of the second provocation and
that the presumption was overcome
and that the killing was presumed
to be upon the fresh provocation.
22— Lingo v. State, 29 Ga. 470;
Hays V. State, 23 Mo. 287; Adams
v. State, 47 111. 376; Gongales v.
State, 30 Tex. 203, 16 S. W. 978;
State V. Johnson, 47 N. C. 247, 64
Am. Dec. 742 ; Bolzer v. People, 129
111. 112, 21 N. E. 818, 4 L. K. A.
579.

488

Criminal Law

it is reasonably calculated to produce death, the igno-
rance or negligence of the attending physician in treat-
ing the wound, will not relieve the defendant from the
consequences of the act. Nor does the negligent actions
of the deceased, after the infliction of the wound and the
time of his death. This is true even if the negligence of
the deceased and the negligence and unskillfulness of the
physician contributed directly to the death.^^ But where
the wound is not necessaiily fatal, the gross negligence
and mismanagement of the physician attending on the

23—33 la. 270, 3 Greenl. 5 Ed.
139 and note. In the case of Mor-
gan V. State, 16 Tex. App. 593, the
eourt charged the jury as follows
and the same was adopted by the
Court of Criminal Appeals.

* * If the testimony should show
that the wound was inflicted by the
defendant and before the death of
the said Henderson, the j)hysician
in mistake as to the nature of the
injury operated upon the back part
of the head of deceased, and in so
operating inflicted injuries to the
head and brain of the deceased, and
that the death of deceased on the
24th day of January, from the
effects of the wounds inflicted by
tlie defendant and the physician,
then the jury must be satisfied from
the testimony that the wound in-
flicted by the defendant was clearly
sufiicient cause of the death without
the concurrence of that of the phy-
sician, and if the jury so find they
will find the defendant guilty. But
if the death of the deceased is
sliown to have been caused by the
joint effect of the wounds and that
inflicted ])y the physician and it
should not be made to clearly and
satisfactorily appear that the

wound inflicted by the defendant
was sufficiently the cause of the
death of Henderson, then the jury
should convict the defendant. If
the jury find from the testimony
that the defendant at the time and
the place did with a knife inflict a
wound in the head of the said Hen-
derson as charged, and they further
find that there had been gross neg-
ligence or manifestly improper
treatment of said Henderson by any
one or more of the physicians be-
tween the infliction of the wound
and the death which improper treat-
ment or negligence, if any, caused
the death of the said Henderson,
then the jury cannot find the de-
fendant guilty. If the wound was
not in itself mortal, and Henderson
died in consequence of the improper
treatment by his physicians, and
not of the wound, then the jury
find the defendant not guilty.
Sharp V. State, 51 Ark. 147, 10 8.
W. 228, 14 A. S. R. 27; Ilamblin
V. State, 81 Neb. 148, 115 N. W.
850, 16 Ann. Cas. 569; People v.
Kane, 213 N. Y. 260, 107 N. E.
(•.5;-), L. R. A. 1915 F, 607; Holly-
wood V. State, 19 Wyo. 493, 120
Pac. 471, Ann. Cas. 1913 E, 218.

Homicide 489

deceased will acquit the defendant if it is clearly shown
that the deceased died from the effects of such ignorance
and gross mismanagement and negligence.^

§ 536, Presumption as to first wound. If a fatal wound
is inflicted by A and a subsequent one by B, the tendency
of which is to accelerate the death, the homicide is pre-
sumed to be upon the first wound. If, however, B kills
the deceased by wound instantly, independently of the
wound inflicted by A, A is not guilty.^* If A kills B, who
is sick, and who in the course of events would have died
of such sickness in a short time, A is guilty of murder.^^
But where A by his own unlawful conduct caused another
to kill an innocent person, A cannot be held for the kill-
ing; as where an officer kills a person who is not engaged
in a riot in attempting to quell the riot, the rioters are not
guilty of the killing." But according to Hale, ' ' a husband
gave poison to his wife, intending that she should take it,
and she not knowing what it was, gave it to their child in
his presence and against the consent of the husband, and
the child took it and died, this was murder. " ^^ It ap-
pears, however, upon principle if the unlawful act is a
felony and it becomes necessary to kill the perpetrator in
order to prevent it, and by some unforeseen result an
innocent person is killed, it would be justifiable or excus-
able homicide in the party killing, for the law places the
duty upon us to prevent a known felony about to be com-
mitted in our presence.

24— Com. V. Cauffman, 10 Bush. Lewis, 124 Cal. 551, 67 Pae, 470, 45

495; McBeth v. State, 50 Miss. 81. L. E. A. 783.

Overruled by Crum v. State, 64 26— State v. Maren, 2 Ala. 275;

Miss. 1, 60 Am. Dee. 44; Morgan v. Com. v. Fox, 7 Gray 585; 3 Greenl.

State, 16 Tex. App. 593, § 259 this 141.

work. 27 — Bartlier v. People, 5 N. E.

25—9 Am. & Eng. End. 536; (111.) 338; Com. v. Campbell, 89

State V. Wood, 53 Vt. 560; Walter Mass. 541, 83 Am. Dec. 705, 9 Am.

V. State, 116 Ga. 537, 42 S. E. 787, & Eng. End. 536.

67 L. R. A. 426. See People v. 28—1 Hale P. C. 436.

490 Criminal Law

§ 537. Murder by other than physical means. There
seems to be some doubt whether an act or a series of
acts not causing any physical injury, such as an act
or a series of acts, declarations or statements which
produce death, operating only upon the mental facul-
ties or susceptibilities, are not too remote and in-
definite to subject the perpetrators to the penalties of
the law. There appears, to our mind, no difference in
principle, whether the death is produced by one means
or another if the facts show a malice, or circumstances
from which malice may be inferred. Why, if A knowing
the peculiar nervous condition of B, so press upon his
mind and nervous sensibilities as to produce his death
or cause him to do an act which results in his death,
would not this be murder as well as if he had given
him a fatal blow with a bludgeon?*^ Of course, if A
coerce B as to take from him the sustenance of life
this would be murder if he die from the effects of it.
If a woman be quick with child, and A knowing her
condition, maliciously frighten her so as to produce
miscarriage, whereby she dies, would not this be murder?
We conceive no difference between these cases and others
where there is a settled malice or intention to harm.'"

§538. Person must be alive. The person upon wliom
a wound is infhcted must be alive at the time the blow is
given. So if the death take place within a year and a
day from the original wound is taken to have been the
effect of such wound, but if occurring after that date
it is presumed to be upon other cause, and when this is

29 — Stephen's Dip. Cr. L. 157; A jJiTson may bo Riiilty through

Com. V. Kpotford, CG Mush. 176. iion-foaHaiu-e. Tims a failure to

30 — "Ho if ono under a well .supply a eliilil with food, and tlic

founded apjjrclienHion of personal cliiid dies, when it is his duty to

violence, does an act which causes do so." Harris' Cr. L. 134;

hi» death, as for instance jumps Hendrickson v. Com., 85 Ky. 281, 3

out of a window he who threatens S. W. Ififi, 7 A. H. K. 596.
is answeralde for the consequences.

Homicide

491

shown the defendant must be discharged.^^ In the case
of infanticide it is sufficient to show that the child had
breathed at the time of the injury. It is not necessary
that the umbilical cord be severed, but it must be shown
that the child had been completely expelled from the
mother, alive. It seems that it is not necessary to show
that the child breathed at the time of the injury unless
it clearly appears that it was dead, for many children do
not breathe immediately after being born and expelled
fram the mother.^^

§ 539. Dueling". Dueling properly is another form of
the law relating to homicide. All killing under agree-
ments to fight a duel is nothing but murder. The custom
of dueling has become obsolete, and the practice in our
country has fallen into disuse, for the moral susceptibili-
ties of the nation has revolted against the bloody custom.
Sir William Blackstone has it that no man has a right
to wanton with his life, nor has he right to agree with
another to fight with deadly weapons. The consent to an
assault as a defense is applicable only to those of slight

31—4 Blackstone 198; State v,
Williams, 2 Tex. App. 271; State
V. Cooper, 22 N. J. L. 52, 57 Am.
Dec. 214; Harris, 28 Tex. App. 308,
12 S. W. 1102, 10 A. S. E. 837;
State V. Winthrop, 43 la. 519, 22
Am. Eep. 527, § 259 this work.

32— Wallace v. State, 10 Tex.

App. 255; State v. , 7 Tex.

App. 570. In the case of Wallace
V. State, 10 Tex. App. 255, the
court says: "That homicide is de-
fined as the destruction of the
life of one human being by the act,
agency or the culpable omission
of another. The person upon whom
the homicide is alleged to have been
committed must be in existence by
actual and complete birth. In order
that a child be in existence, by

actual and complete birth, the par-
turition must be complete, and the
body of the child must be expelled
from the mother, and it must be
alive, having an independent ex-
istence. So that destruction of vi-
tality in a child before it is com-
pletely born, which causes death
after birth, is not homicide how-
ever culpable or under whatever
circumstances or with Avhat intent
done. But if the child be wholly
born alive, hoAvever frail it may be,
or however near extinction from any
cause, and another person inflict up-
on it any violence, intentionally, by
means or manner ordinarily calcu-
lated . to cause death, which cause
contributes or hastens its death,,
such person is guilty of homicide.

492 Criminal Law

injuries, inflicted upon another, which do him a small
hurt, and not to those graver kind, which may be reason-
ably calculated to result in death, or which may cause
a severe bodily hann.

One court says: "But deliberate dueling, if death
ensue, however fairly the combat may be conducted, is in
the eye of the law murder. The false principle of honor,
the law regards as furnishing no excuse for homicide.
He who seeketh the blood of another in compliance with
such punctilios, acts in open defiance of the laws of God
and the state and with that wicked purpose which is
termed ' ' malice aforethought. ' ' '^ Another : * ' We do not
think that if one man invites another to mortal combat
and that he who gives the invitation being already armed
can justifiably shoot the other before he anns himself.
There is far less excuse or justification in such circum-
stances than when two on mutual agreement go out and
figlit with deadly weapons; in this last case it is murder
if either slay the other, for the plain reason that there
is premeditation in each to kill the other; a fortiori,
would it not be murder in him who sent the challenge
and who slays his adversaiy before the combat begins.^*

§ 540. Definition. A duel is the fighting together of
two persons, by agreement, and who fight with deadly
weapons.^^ It is termed in common parlance "the code of
honor," and is conducted under certain lerms and agree-
ments, which is supposed to give each combatant an equal
sliow and a fair fight. The weapon must be a deadly one.
There must be a mutual agreement to fight, and in tliis
respect is similar to tlic ofTonso of "affray."

3.3— state V. Hill, 4 D. & B. 401. R. W. 1139, 123 A. R. R. 258, 14

34— State v. Evans, 44 Miss. 762; Am. Cas. 990, 15 L. R. A. (N. S.)

People V. Enoch, 13 Wend. (N. 988.
•y.) l.'')9, 27 Am. Doc. 192; Tur- 35—4 Black. 202; 1 Hale P. 0.

noT V. State, 119 Tonn. 663, 108 450.

Homicide 493

of the degrees of murder

§ 541. No degrees of murder at common law. At the
common law there were no degrees of murder. All un-
lawful homicide was either murder or manslaughter.
Homicide committed upon either express or implied
malice, was punishable with death. There were no dis-
tinctions as to the degree of punishment.^^ Under the
statutes of most of our states, murder has been divided
into two or more degrees. Usually homicide committed
upon express malice is murder of the first degree, and by
implied malice murder of the second degree. Murder
of the first degree is characterized by premeditation and
deliberation, not accompanied by circumstances of miti-
gation or extenuation.*''^ This malice, necessary to con-
stitute murder in the first degree may be inferred from
the circumstances of the case.** Under some of the stat-
utes the killing must have been the result of a specific
intent to take life. Such we believe to be the law in the
states of Texas, Delaware, Iowa, Maryland, Michigan,
Minnesota, Nevada, New Hampshire, Tennessee, Ohio, In-
diana, Illinois and perhaps some others. But where the
killing is committed in the perpetration or in the attempt
to perpetrate the crimes of rape, burglary, robbery and
arson, a specific intent is not required to be shown by
other evidence that the mere fact of the killing having
taken place while in the perpetration or in the attempt
to perpetrate the crimes mentioned. The fact that the
killing took place while committing any of these crimes
is by the statute made sufficient to create the express
malice essential to murder of the first degree. Just
what degree of *' premeditation and deliberation" neces-

3G— 4 Black. 202; 1 Hale P. C. 38— Hicks v. State, 6 So. 441, 25

' 450. ' Fla. 535; Nelson v. State, 101 Mo.

37— Copcland v. State, 7 Humph. 464, 14 S. W. 712; Jenkins v. State,

479; People v. Howe, 44 Cal. 96; 41 Tex. 128; Gonzallis v. State,

Felto V. U. S., 96 U. S. 699; Peo- 16 S. W. 12, Tex. App. 15. See

pk V. Fain, 25 Cal. 361. 10 N. E. 745.

494 Criminal Law

sary to constitute murder in the first degree does not ap-
pear to be well settled. The statutes being of different
phraseology, there is not a unifonnity of constniction.^'
Some holding that all murder upon express malice is
murder in the first degree and all murder upon implied
malice of the second degree. And this is the general
rule but there are cases of implied malice showing great
malignity and depravity, deliberation and premeditation.

§ 542. Murder by lying in wait, poison, etc. It is a

rule of law that when a person does a thing he is held
to have intended the ordinary and reasonable results of
his action, and when this stands alone without explana-
tion, he is conclusively presumed to have intended to do
the actual thing that occurred.*® In keeping with this,
one who lies in wait for another and kills him, he is re-
garded by the common law to have done the killing with
express malice. So if the proof shows that he did in fact
lie in wait, this shows that he possessed that degree of
deliberation necessary to constitute the malice. So in
response to this principle of the common law, the stat-
utes of the states have provided in a general way to
make that murder in the first degree which was murder
upon express malice by the common law. We find some
authorities, however, liolding that to have committed a
killing of a human being in the perpetration or the at-
tempted perpetration of the crimes of arson, burglary,
rape and robbery, or where the killing was while lying
in wait; by poison or starving or torture, was murder in
the first degree, whether the accused possessed the actual

39_T,anp v. Stato, 4 So. lioj). u-o; Landors v. State, 1 Tex. 462.

193, I'aliiiore v. .State, 21) Ark. 248; Tliis case in llie main is overruled

Moynahan v. Htate, 70 Ind. 12C, 30 in the case of Tooney v. State, 5

Atn. Hep. 178; liuel v. People, 78 Tex. App. 188; Maden v. State, 10'

N. Y. 492, 34 Am. Kep. r)r>r>; State Kans. 3r)G ; Farris v. Com., 14 Hush.

V. King, 24 Utah 482, C8 Pac. 418, 372; Mayher v. People, 10 Mirh.

91 A. H. R. 808. 212, 81 Am. Dec. 781, § 253 this

40—2 Btarkio ev. G73, title mal work.

Homicide 495

malice necessary to constitute the crime or not, i. e., pos-
sessed of express malice. The authorities are conflict-
ing, but the weight appears to be with the proposition
that all murder committed while attempting or perpe-
trating robbery, arson or rape, or all murder committed*
while lying in wait, or by poison, is murder of the first
degree, without showing the intent or the malice with
which the acts are committed.*^ There is authority for
the opinion that the government is required to prove
the malice and the intent in cases of murder by poison-
ing and by lying in wait. The difference in the cases
perhaps is due to the difference in the phraseology
of the statutes. Most of the statutes we believe use
the phrase "all murder committed while lying in
wait, etc.," in lieu of ''all homicide while lying in
wait. ' ' The opinion seems to prevail that the legislature
by using the phrase "all murder," etc., did not intend
and did not in fact change the common law, so as to
require less or greater proof than by the common law, in
establishing murder. The state of Pennsylvania appears
to have enacted one of the first statutes declaring that
all murder committed while lying in wait as murder in
the first degree. The statutes of Ohio provides that
' ' whoever purposely and either of deliberate and premed-
itated malice or by the means of poison, or in the per-
petration or in attempting to perpetrate any rape, arson,
robbery or burglary kills another is guilty of murder
of the first degree." Under this statute it has been held
that an intent to kill is essential.'*^ This statute employs
the phrase "kills another."

"If any person of sound mind shall purposely and
with premeditated malice, or in the perpetration or at-
tempt to perpetrate any rape, arson, robbeiy or burglaiy,
or by administering poison or causing the same to bp

• 41— Bethelheimer v. State, 54 42— Fouts v. State, 8 Ohio St. 98
Ind. 128; Fouts v. State, 8 Ohio it A
St. 98. ■■ ^'

496 Criminal Law

done, kill any human being, shall be deemed to be guilty
of murder in the first degree." Under this statute it has
been held that an intent to kill is not necessary.*^ So
under the provision of the criminal code of the state of
Texas: "All murder committed by poisoning, standng,
torture or with express malice or committed in the per-
petration or in the attempt at perpetration of arson,
rape, robbeiy or burglary, is murder of the first
degree." The court construing this statute, says
that '* murder in the first degTee then is constituted,
when the specific intention is to take life of the deceased,
or to do him some serious bodily harm, the doing of
which subsequently results in his death. AVithout such
intention malice aforethought is wanting and if death
ensues whether by poison or other means, it is not mur-
der in the first degree. But if malice aforethought is
shown to exist and the means be poison, then the killing
becomes ipso facto murder in the first degree."** The
most that may be said is that where the statute employs
the phrase "all murder, etc.," and other similar phrases,
then the modern doctrine or at least the tendency of the
courts is that it is as murder at common law and must
be so construed.**

§ 543. Specific intent to kill necessary, when. In some
of the states a specific intent to kill being necessaiy to
constitute murder in the first degree a homicide commit-
ted of a person other than the one intended to be killed,
is murder in the second degree only; this because that
express malice is essential to murder in the first degree.*®

43 — Stockston v. State, 7 Ind. Am. Kncl., vol. 9, p. rA8, and note.

326. Cuppa V. State, 120 Wis. 504, 97 N.

44— Tooney v. State, 5 Tex. App. W. 210, 102 A. S. R. 99G; State v.

1G3. Wells, 61 In. 620, 17 N. W. 90, 47

45— State v. Leak, 80 N. C. 403; Am. Kcp. 822; Dabney v. State, 113

State V. Waggoner, 78 Mo. 644, 47 Ala. 38, 21 So. 211, 59 A. S. R. 92.*
Am. Rep. 131; State v. Bottoms. 10 46— Musick v. State, 21 Tex. App.

Humph. (Tenn.) 103; Kng. and 69; Rnrfon v. State, 10 TIuiiipli.

Homicide 497

A previous formed intent to kill must be established in
order to authorize a conviction of murder in the first
degree, except murder committed while in the perpetra-
tion or the attempted pei^etration of rape, arson, rob-
bery and burglary; yet in some states it appears that in
intent to inflict serious bodily harm and death result as a
consequence, the act being malignant and deliberate, is
murder in the first degree.*"^

§ 544. Under federal statutes no degrees. Formerly
degrees of murder were applicable to the states only, the
statutes of the United States making no distinction, and
adopted the common law subdivision of this crime, mur-
der and manslaughter; but by Sec. 273 of the United
States Criminal Code, different degrees are provided for.
As to murder in the second degree, it may be generally
taken that the statutes of the various states make that
murder in the second degree, in those cases where the
killing is accompanied with circumstances of mitigation
and extenuation, which would not place the homicide
within the rules of the law covering manslaughter. It
may be taken to cover those cases where there is no well
defined purpose to take life, but under circumstances
from which malice may be inferred, or where the purpose
to take life may be from such circumstance as not to
attribute to the accused a deliberate and foimed to de-
sign to take life, upon cool and dispassionate reflection.
As where a person in the midst of a conflict forais the
design to kill his opponent, and immediately executes his
design. It is impossible to deduce a rule that may be
followed in all cases, and the most that can be said is
that each case must be governed by its particular cir-
cumstances.**

(Tenn.) 103; Johnson v. State, 30 48— Harris v. State, 36 Ark. 127;

Tex. App. 748. Musick v. State, 21 Tex. App. 69;

47— State v. O'Hara, 92 Mo. 59; Hill v. State, 11 Tex. App. 456;

Sweeney v. State, 25 Ark. 585. State v. Rebinson, 73 Mo. 306. See

C. L.— 32

498 Criminal Law

of manslaughter

§ 545. Definition of. ^Manslaughter is where the killing
is committed in hot blood, sudden passion, and without
justification or excuse, or is the unforeseen result of an
unlawful act, without malice either express or implied.^^
At the common law any unlawful killing, malice being
absent, is manslaughter. At the common law an unlawful
killing was divided into classes: Murder and man-
slaughter, and all other homicide was either justifiable
or excusable according to the circumstances.'*''

At the common law manslaughter was classed as vol-
untary^ and involuntary.

Voluntaiy manslaughter was an unlawful killing aris-
ing upon sudden heat or provocation, under such circum-
stances that showed a lack of a sedate and deliberate
action of the mind and fonned designed to kill. The
chief chara'cteristic of this offense is that the homicide
while not being justifiable or excusable, arises as the
result of hot blood or sudden passion arising out of an
adequate cause. A deliberate killing made while in hot
blood or sudden passion, but not arising upon an ade-
quate cause, or where the passion is the result of slight
or indifferent provocation, will not reduce the homicide
from murder to manslaughter. Tlie provocation must
be so overpowering as to temporarily dethrone reason
and to leave the mind in such a condition that it is in-
capable of cool reflection. This capacity need not go to
the extent of showing an utter want of reason, but must
be such a provocation that men of the ordinary control
of their passions would under similar circumstances, act
as the defendant. It must be so powerful Uiat at the
time of the fatal act the mind was incapable of fonning

!• Aim. & EiiK. Ency. 566 anfl 567; 158; State v. Ilockot, 70 In. 442;

for a full ritation of autlinritiffl. State v. SpannU'r, 40 la. 540; Perry

49—4 Black. 191; Ilcnton v. v. State, 43 Ala. 21.
State, 24 Tex. 454; Gann v. State, 50—4 Black. 190.

.30 Ga. 07; Bruner v. State, 58 Itul.

Homicide

499

a malicious intent." Manslaughter may be fairly defined
as a voluntaiy homicide committed under the immediate
influence of sudden passion arising from an adequate
cause, but neither justified or excused by law. By the
expression "under the immediate influence of sudden pas-
sion" is meant that the provocation must arise at the
time of the commission of the offense, and that the
passion was not the result of a former provocation. The
act of killing must be directly caused by the passion
arising out of the provocation given at the time of the
killing. It is not enough that the mind is merely agi-
tated. The passion may be either of the emotions of the
mind known as anger, rage, sudden resentment or terror,
rendering the mind incapable of cool reflection. By the
expression "adequate cause" is meant such as would
commonly produce a degree of rage, anger, resentment or
terror, in persons of ordinary temper sufficient to render
the mind incapable of cool reflection. Insulting words or
gestures or an assault and battery so slight as to show
no intention to inflict pain and unaccompanied with vio-
lence are not adequate causes. But an assault and batteiy
causing pain or bloodshed is an adequate cause, and will
reduce a killing from murder to manslaughter. "^^ Words,
however insulting and opprobrious and vile, will not of
themselves be an adequate cause sufficient to reduce delib-
erate killing in consequence thereof, from murder to man-
slaughter. But if parties engage in a mutual combat
brought on by words, this will reduce a killing to man-

slaughter."

51— Linch v. State (Ala.), 6 So.
551; Young v. State (Tenn.), 11
Humph. 200; State v. Hill, 4 D. &
B. 491 (N. C.) ; Erwin v. State, 29
Ohio St. 186; King v. State, 2 W.
Va. Cas. 78; 4 Black. 190; State
V. Brown, 58 Ind. 159; Harris' Cr.
L. 169; Perry v. State, 43 Ala. 21.

52— Farrar v. State, 29 Tex. App.

250, 15 S. W. 719; Powel v. State,
28 Tex. App. 393, 13 S. W. 599;
Evans v. State, 6 Tex. App. 513;
Eiehardson v. State, 9 Tex. App.
612; Hill V. State, 5 Tex. App. 2;
Ganzales v. State, 30 Tex. App.
203, 16 S. W. 978.

53— Powel V. State, 28 Tex. App.
393, supra; State v. Hill, 4 D. & B.

500

Criminal Law

§ 545a. Cause for jury. The latter part of the preced-
ing section is a mere statement of the general rule, that
terms of reproach, epithets of disparagement and other-
wise insulting language, however vile, degrading and
opprobrious, are not by themselves sufficient cause or
provocation to reduce a deliberate homicide with a deadly
weapon, from murder to manslaughter. This is the com-
mon law rule, and it appears to have been universally
adopted by the courts of the country. There, however, ap-
pears to be one exception recognized by them and espe-
cially the text writers, to the effect, if the assault is so
inconsiderable as to be short of an actual battery or the
touching of the person, words of insult and terms of re-
proach, accompanying such assault, may be considered
together as a sufficient cause to reduce a homicide com-
mitted under the influence of the passion kindled thereby,
from murder to manslaughter.^* The most advanced and
modern doctrine is, that it is a matter for the determina-
tion of the jury, whether such vile, opprobrious and in-
sulting language is a cause or provocation sufficient to
produce that degree of ungovernable passion whicli if

56-4; state v. Cooley, 19 N. M. 91,
140 Pae. 1111, 52 L. R. A. (N. S.)
230; State v. Harlley, 185 Mo. 669,
84 S. W. 910, 105 A. S. E. 608;
Com. V. Webster, S. Cush. (Mass.)
295, 52 Am. Dec. 711; State v.
Averill, 85 Vt. 115, 81 Atl. 461,
Ann. Cas. 1914 B, 1005.

-,4_G St. Tr. 771.

"It is (loul)tlc.ss, in one sense
the province of the court to define
what in law, will constitute a rca-
son.'ihlc or adequate provocation;
liut not, T think, in ordin.iry cases,
to dctt'rniine whether the provoca-
tion proved in the particular case
Muflicicnt or reasonable. 'Phis is cs-
Hontially a question rif f:i<t. to he
docidod with reference to the ]ie

culiar facts of every particular case.
As a general rule, the court after
informing the jury to what extent
the passion must be aroused and
reason obscured to render homicide,
murder, should inform them that
the provocation must be one, the
tendency of which would be to pro-
duce such a degree of excitement
and disturbance in tlie minds of
ordinary men; and if thoy should
find such ])rovocation from the
facts jiroved, and should find that
it did produce the effect in the par-
ticular in.'itancc, and that the hom-
ici<le was tlie result of such ))rovo-
ciition, it would give it the eliarac-
ler (if manslaughter.''

Homicide 501

taken together with all the circumstances of the particu-
lar case, would cause a person of ordinary temperament
and resentment to take life. If the jury believe that he
acted under the influence of the passion thus aroused, he
would be guilty of manslaughter.^^

§ 546. Presumption that defendant acted upon new
provocation, when. Wliere an accused is shown to have
had a previous malice against the deceased, and it can
be shown that the homicide was upon a fresh provocation,
he is entitled to this as against the presumption that the
killing was upon the old malice, and he will be presumed
to have acted upon the new provocation.^^ When an un-
lawful killing is traced to the accused it is presumed
to have been done with malice, and the onus of the proof
is upon him to show that it w^as done under circum-
stances of extenuation, justification or excuse.^'' A wound
inflicted deliberately with an instrument not within
itself calculated to inflict serious bodily harm and with-
out malice, will be manslaughter.^^ Thus, A strikes B
with his hand and he dies from the effects of the blow;
this will be manslaughter. But if he strike him with an
ax and he dies, this is murder, for the malice is presumed
from the instiimient used. So, if he strike him with an
instrument, which if used in an ordinary manner, would
not produce serious bodily harm, but if used in a cruel
and brutal manner and death foUow^s, as the probable
result of the manner of the use; this is murder, for the
malice is presumed from the manner of the use of the

55— Maher v. People, 10 Mich. 57— Stokes v. People, 53 N. Y.

212, 81 Am. Dec. 781. See a dis- 114, 13 Am. Eep. 492, 4 Black. 201;

cussion of the whole matter in Silvas v. State, 22 Ohio St. 90, 1

State V. Sealous Grugin, 42 L. E. East P. C. 224.

A. 774. 58—3 Greenl. 122 and note 8;

56— Copeland v. State, 7 Humph. U. S. v. Wiltberger, 3 Wash. 515.
(Tenn.) 342; Williams v. State, 3
Heish (Tenn.) 376; State v. Hill,
4 D. & B. 491.

502

Criminal Law

instrument. If a school master chastise his pupil in
such a manner as to produce death, this will be murder,
notwithstanding the same punishment would not prove
fatal if inflicted upon an adult person. A woman being
pregnant and the party assaulting knows this, and strikes
and she dies, caused partly by the wound and partly by
her condition, this will be murder, malice being pre-
sumed from the striking, knowing her to be in such a
condition.^®

§ 547. Insulting words to female relative. At the com-
mon law insulting words directed to a female relative
was not a sufficient excuse or justification to reduce a
homicide in consequence thereof from murder to man-
slaughter. But under the provisions of some statutes,
insulting words made concerning a female relative are
sufficient to reduce the killing to manslaughter, even
where it is connnitted deliberately and with the formed
purpose of killing.®** It is not necessary that the words

59— Muiphey v. State, 9 Colo.
435. "So one who commits an
assault and battery on another,
knowing or having reasonable cause
to believe that tiie other is sick and
suffering from disease and in such
a feeble and weakened condition,
that his attack will eiulangor her
life, inflicts great i)0(lily harm, or
hasten her death, which ensues, may
be found guilty of murder, since
this wouhl justify the jurj' in find-
ing inij)lic(l malice, though it would
not if lie was aware of lier
condition, and h.id no reason to
HUj)poH{! that his acts would do licr
any greater harm than it would
upon iKTHons in good healtli.''
Com. V. Fox, 7 Gray 585, this taken
from note to Sullivan v. People, G'.\
L. H. A., Hubflivision ''Assaults,"
37fi.

GO — "If you are satisfied that
defendant was a relative of An-
tonia Gaitau, and that the deceased
had used insulting words or con-
duct to her and the killing took
place immediately upon the happen-
ing of the insulting words or con-
duct or soon thereafter and the de-
fendant met the deceased after be-
ing informed of the same; then
under the law of manslaughter, the
defendant is guilty of manslaugh-
ter." Gaitau v. State, 11 Tex.
Ap]>. 544.

''If tlic defendant had Iktii in-
roriiicd thai Davidson Jiad used in-
sulting words towards the defeiul-
ant's wife and killed at his first
meeting thereafter, under the ini-
Tiiediate inlluence of ])assion jiris-
ing in his mind from such infor-
mation .■iiiij tli;i) such p;ission was

Homicide

503

be made in the presence of the slayer or in the presence
of the female. But it is necessary that the offensive mat-
ter must have been known to the defendant at the time
and it must also appear that the killing was under the
influence of the passion arising from the language used.
For the husband to kill a man in the act of adulteiy
with his wife was at the common law an adequate cause
for reducing a deliberate killing of the seducer from mur-
der to manslaughter. To have that effect he must have
been at the time of the discovery in the act of the adul-
tery."

§548. What is cooling time. Manslaughter arising
upon sudden passion from a provocation, the fatal act
must be committed while the defendant is laboring under
the direct and immediate influence of the insult.^'* If
sufficient time elapses from the time of the insult to
the time of the blow, to restore the normal condition of
the mind— sufficient "cooling time"— the homicide will
be murder either of express or implied malice. The law,
wisely recognizing the frailty of humanity, allows this
indulgence in favor of passion, and does not ascribe to it
''a heart fatally bent upon mischief." A malicious in-

sufficient to render liis mind incap-
able of cool reflection, then you
will find him guilty of manslaugh-
ter." Normals v. State, 26 Tex.
App. 221, 9 S. W. 606; Hill v.
State, 5 Tex. App. 2.

61—4 Black. 191. "So if a man
takes another in the act of adultery
■with his wife and kills him directly
upon the spot ; though this was al-
lowed by the laws of Solon as like-
wise by the Roman civil laws (if
the adulterer was found in the hus-
band's house), and also among the
ancient Goths; yet in England it
is not absolutely ranked in the class
of justifiable homicides, as in the

case of forcible rape, but it is
manslaughter. It was made the
lowest grade of it." State v. Sam-
uels, 48 N. C. 74, 64 Am. Dec. 596
(3 Jones law) 11; State v. Nei-
villes, 6 Jones 453; People v. Hor-
ton, 4 Mich. 67 ; Foster 296 ; Briggs
V. State, 29 Ga. 723, 76 Am. Dec.
630; Fredo v. State, 127 Tenn. 376,
155 S. W. 170, 11 L. R. A. (N. S.)
650; People v. Campbell, 50 Cal.
243, 43 Am. Eep. 257; Stevens v.
State, 137 Ga. 520, 73 S. E. 737, 38
L. R. A. (N. S.) 99.

62— -Bayctte v. State, 2 Tex.
App. 93.

504 Criminal Law

tent may be formed in an instant of time, and whether
the act is malicious or the result of uncontrollable pas-
sion, is to be gathered from the circumstances, and it is
for the jury to determine, whether there was sufficient
time for cool reflection.^^ To reduce a homicide from
murder to manslaughter, the provocation must be of a
nature of personal violence and amounting to an in-
fringement of the recognized and declared rights of an
individual to defend himself against the unlawful attacks
of another. The right which reduces homicide from
murder to manslaughter is founded upon that right which
nature has planted in the breast of eveiy man to protect
his person from the unlawful attacks of others, but aris-
ing from a cause inadequate to constitute complete justi-
fication for the killing, and which would in the absence
of passion thus excited be murder. The doing of a lawful
act no matter how oifensive to another is never in law
deemed a sufficient cause to justify or mitigate an act
of violence.^* To justify the reduction of a homicide
committed with a deadly weapon, from murder to man-
slaughter, the slayer must be free from fault in provoking
the conflict, which brought the assault upon himself. If
for instance he is a trespasser upon the premises of an-
other, and he refuses to rectify the wrong by leaving
the premises when requested by the owner to do so, and
tlie owner make an attack upon him for the purpose of
removing him and he kills the owner, this is murder."
So, in the case of the killing of an officer arresting an-
other, if the arrest is legal or upon legal authority, it
will be murder, and if without authority or legality, it

63— Com. V. Drum, HS Pa. St. 9; 64— State v. Lowery, 4 Nov. 161-

Com. V. Mink, 123 Mass. 442, 25 170.

Am. Rep. 109; Miller, 37 Ind. 432; 65— Hinton v. State, 24 Tex.

Patterson v. State, 60 Tnd. 185; 454; Lyons v. State, 22 Ga. .390;

Torn. V. Selfridge liar. & Thorn., Lingo v. State, 29 Ga. 484; Dill v.

Sclf-Defense 1 ; State v. Grugin, State, 25 Ala. 15.
147, 42 L. I{. A. 774.

Homicide 505

will be manslaughter.^® So in keeping with this principle,
it has been held that where the husband take another in
the act of enticing his wife from his house for the
purpose of dishonoring her, notwithstanding she consents
to such dishonor, he had the right to arrest him in the
highway, and if such person kill the husband in resist-
ing such restraint it will be murder."

This principle is best understood when it is remembered
that no one has the right to infringe upon the natural
rights of another, unless such rights and privileges have
been curtailed by the law. It appears to be in accord
with sound principles of the law, where if one is re-
strained in the free exercise of the privileges which
accompany his person, by another not having a color or
semblance of legal authority for his action in thus re-
straining or attempting to restrain him, to be justified
in resorting to any degree of force necessary to protect
himself. Thus if A is forcibly arrested or kidnaped he
certainly would be justified in forcibly freeing himself,
even to the taking the life of the kidnapper if no other
means could free him.

§ 549. Killing of officer while making arrest. As a fur-
ther discussion of this branch of homicide, illustrations
are found in the duties and relative rights of an officer
of the law and the citizen. An officer is nothing in effect
but an agent of the public with specified duties to per-
form and in the performance of such duties the law con-
fers upon him rights paramount to that of the otherwise
natural rigrhts of the citizen. To this end an officer armed

'O"

66— Roberts v. State, 14 Mo. 147, Slatin v. State, 30 Miss. 619; Oli-

55 Am. Dec. 97; Harrison v. State, ver v. State, 17 Ala. 587; Pond v.

24 Ala. 67, 60 Am. Dec. 450; 17 State, 8 Mich. 150; Dill v. State,

Law Times 222; State v. Pliver, 2 25 Ala. 15; Scott v. Com., 94 Ky.

Houston 608; Noles v. State, 26 511, 23 S. W. 210, 42 A. S. R. 371 ;

Ala. 31, 62 Am. Dec. 711; Galla- State v. Cooper, 112 La. 281, 36

her V. State, 3 Minor 270. So. 350, 104 A. S. R. 447.

67— State v. Croton, 6 Ired. 164;

506 Criminal Law

with a legal warrant for the arrest of a person may arrest
him, and if such person knows or has a reason to be-
lieve that such officer is acting in an official capacity, and
he purposely kill him in resisting, he is guilty of murder.
It is the duty of an officer to infonn a person about to
be arrested that he is an officer and that he has a war-
rant for his arrest. This special information is not,
however, necessary except in the case the party to be
arrested has no general information as to the official ca-
pacity of the purported officer. A person possessed
of the information that the officer has the legal right to
arrest him, it is his duty to submit to the restraint, and
it makes no difference whether the infonnation comes
from the officer or from other sources.^® But this is mod-
ified where the force or violence is excessive in making
the arrest. If the officer uses more force than is necessary
and the party resisting such force kills him he will be
guilty of manslaughter or justifiable homicide according
to circumstances.^® Thus it becomes necessaiy that an
officer inform the person to be arrested of his authority
for the arrest where such person is ignorant of that fact.
He must also execute the same in a legal way — that is,
use no more force than is necessary to make the arrest,
using force for force in the case of a misdemeanor. Where
lie uses excessive force he becomes then an aggressor and
where he is killed in resistance thereto it will be man-
slaughter in the slayer."''" Circumstances, however, show-
ing malice in the slayer at the time of the homicide, re-

68— Ogles V. Com., H S. W. 81(); Rtntc v. Bcnliani, 23 la. 154, 92 Am.

I'lastcrs V. State, 1 Tex. App. C73; Dec. 417.

Com. V. Drew, 4 Mass. .396; Oliver 70 — State v. Thompson, 9 la.

V. State, 17 Ala. 587; Pritchet v. 188, 74 Am. Dec. 342; State v.

State, 22 Ala. 39; State v. Crotoii, Sliiplcy, Id Minn. 223, 88 Am. Dec.

«J Ind. 104; KinR v. State, 89 Ala. 70; Stale v. Oliver (Del.), 2 IIouh-

43; State v. Alford, 80 N. C. 445; ton 585; State v. Stock.ston, 25

Starr v. 1'. S., 153 U. S. 614. Tex. 776. "The risht to rei)el

69 — People v. Ilorton, 4 Mich. force for force continues until the

67; State V. McDaniel, 8 MisH. 401; jierson attenii)t)ntr tiie unlawful

State V. Lambert, 23 Miss. 322; arrest presses forward with so

Homicide

507

gardless of the previous relation of the parties, will be
murder. In a leading case the language of the court is
that "A Peace officer has the right, and it is his duty,
to arrest one who is committing a breach of the peace in
his presence, and to use such force as necessary to effect
the arrest; and if the person disturbing the peace resists
arrest, and in so doing kill the officer, he is guilty of mur-
der, if he knew that the person attempting to make the
arrest was an officer; and guilty of manslaughter if he
did not know it. The law of self-defense, as applicable
to recounters between private persons does not apply,
unless the person resisting the arrest has reasonable
ground to believe, and does believe, that the officer is not
acting in good faith in the attempt to arrest, but is using
his official position to gratify personal feeling against the
person sought to be arrested, and that by submitting to
the arrest and to be disaraied, he will by reason of this
fact, be in danger of great bodily harm or of losing his
life. The officer being in the right, and in the discharge
of his duty, the person resisting does it at his peril, and
if he kill, he is guilty of murder or manslaughter, as it
may appear that he knew or did not know the character
in which the officer was acting.''^^

§ 550. Peace officer must act in conformity to law. As
we have stated a peace officer is created by law, for the
purpose of preserving the public peace and arresting
public offenders, yet their actions must be in conformity

r/iueh force tliat the person defend-
ing may choose between three
things: To retreat; to surrender
or to kill his adversary. If he can-
not disable his adversary without
killing him, he must retreat, sur-
render or incur the guilt of man-
slaughter." Buckner's case, 467,
Hor. & Thoni. Cr. Defenses, 716;
State V. Eoberts, 14 Mo. 146.

71 — Fleetwood v. Com., 80 Ky.
1, 4 Am. Cr. Eep. 36; State v.
Lovel, 23 la. 304, 20 Tex. App.
360; Pierce v. State, 17 Tex. App.
132, 22 S. W. 587; State v. Evans,
161 Mo. 95, 61 S. W. 500, 84 A. S.
R. 669; Robinson v. State, 93 Ga.
77, 18 S. E. 1018, 44 A. S. R. 127;
Miller v. State, 31 Tex. App. 600.
21 S. W. 925, 37 A. S. R. 836

508

Criminal Law

with the law. The provision of the common law gov-
erning the arrest of felons gives the right to the peace
officer to arrest without w^arrant any person committing
a felony in his presence, and in the execution of this part
of his duty may kill the offender if the arrest cannot be
made without resorting to such means; and this, too,
where the accused flees, and can only be apprehended by
this means." But in the case where the officer has a sus-
picion that a felony has been committed he may lawfully
make the arrest, but only as he is permitted to do, repel
force for force, as in cases of nonfelonious crimes. He
may stand his ground and if it becomes necessary to kill,
to presei-^e his life, he may justifiably do so. Where a
peace officer undertakes to arrest for a felony without
warrant, he does so at his peril and if he kills the sup-
posed felon Avhile fleeing from him, and it after transpires
that he was guilty only of a misdemeanor, the officer is
guilty of manslaughter.'^' But where he has a warrant for
the an-est of one charged with felony, he then may safely
kill to prevent an escape after the aiTcst. He may also
kill to effect the arrest where the accused resists. He
may pursue the felon w^ien no arrest has been made and
if the arrest cannot be made without killing, then he
may kill. But in this the jury must be satisfied that he
tried, in good faith, and with reasonable prudence and
caution, to make the arrest, and was unable, because of
the flight of the person, and that he resorted to this only
when all other proper means had failed."^* An officer

72 — Tliomas v. Kinkead, 55
(Ark.) 5(»2, L. R. A., vol. 15, p.
558, 29 A. S. R. 68, 11 S. W. 854;
fol.lwcll V. 8tate, 41 Tex. 86;
Write V. State, 44 Tex. 645; Head
V. Martin, 85 Ky. 480; Bryant v.
State, 65 N. C. .327; Clements v.
State, 50 Ala. 117; Rencau v. State,
2 Lea. 720; U. S. v. Clark, 31 Fed.
710.

73— Mary Petrie v. S. H. Cart-
wrifrht (Ky.), 59 L. R. A. 720;
Pfople V. Kilvington, 104 Cal. 86,
;i7 Tac. 799; State v. Evans, 161
Mo. 95, 61 S. W. 590.

74— State v. Iluntor, 106 N. W.
796, 8 L. K. A. 529; Tliomas v. Kin-
koad (Ark..), 15 R. L. A. 558;
Brown v. Weaver, 42 R. L. A. 423,
76 MisH. 7; McDaniol v. Stat*, 47

Homicide 509

under the rules of the common law may make an arrest
where a misdemeanor has been committed in his presence,
or where he has a warrant. Where resistance is offered
he is authorized to use force for force but is never justi-
fied in taking the life of the accused, unless he is com-
pelled to kill to preserve his own life. If he use more
force than is necessary to make the arrest, he becomes an
aggressor, and to kill, is manslaughter, at the least. An
officer has no right to kill a misdemeanant who flees from
arrest or who escapes from his custody. He may exert
such physical force as is necessary on the one hand to
effect the arrest or on the other to subdue the efforts of
the prisoner to escape. But he can neither take the life
of the accused, or inflict upon him serious bodily harm.'''^

§ 551. Killing' an officer in the resistance of arrest,
malice is presumed. It is the duty of the person to quietly
submit to arrest, where he .is in possession of information
which apprises him of the official capacity of the arrest-
ing officer. If, therefore, a person has knowledge of the
official capacity, and he resists arrest and kill the officer,
this is murder, and the malice is implied or presumed,
notwithstanding he may not have intended to have killed.
This is murder as borne out by the authorities. The pris-
oner is bound to submit to the arrest, and when he re-
sists he becomes a wrong doer, and a killing under such
circumstances would, according to the fact, be murder or
manslaughter, and in the case of it being murder the
malice is inferred.'^

Am. Dec. 93; Jackson v. State, 66 Groom v. State, 85 Ga. 718, 21 A.

Miss. 95. S. R. 179; Eoberts v. State, 14 Mo.

75— Thomas v. Kinkead, 15 E. L. 138; State v. Adams, 78 la. 292,

A. 55; State v. Taylor (76 Vt. I.) 43 N. W. 194; State v. Taylor, 70

42 L. E. A. 673 and note thereto; Vt. 1, 67 Am. St. Eep. 648, 39 Atl.

Smith V. State, 59 Ark 132, 26 B. W. 447; Hawkins v. Com., 14 B. Mon.

712, 43 A. S. E. 20. (Ky.) 395, 61 Am. Dee. 158.

76 — See the following cases:

510

Criminal Law

INVOLUNTARY MANSLAUGHTER

§ 552. Definition. Involuntary manslangliter is the un-
intentional killing of a human being, while in the pursuit
of an unlawful act or while executing a lawful act in an
unlawful manner." If the killing prove to be the un-
foreseen result of an unlawful act, it being within itself
a substantive misdemeanor, mala in se, it will be man-
slaughter.'^^ If the act attempted is a felony the killing
will be murder.''^ Gross negligence on the part of one,
upon whom rests a special duty, and in consequence of
such negligence the death of another is thereby caused,
this is manslaughter.^" As where a physician negligently
administers poison to another and death result as the
effect. So, also, certain of the employees of steam ships,
the operators of railway trains and those operating dan-
gerous machines are held to a strict caution in the man-
agement of the same, and any gross negligence, whereby
a person is killed is manslaughter. The careless handling
of fireamis and death result as a consequence is man-
slaughter. In cases of this character there may be a total
neglect to perform a positive duty or a gross negligence
in the performance of the duty. In either case the killing
as the result is manslaughter." Wherever the law places
a duty upon another to render protection and assistance
to some other person a failure or a refusal to perform the
duty and death follow as the reasonable result of such
neglect, it is murder or manslaughter, according <o llio

77— State v. Abarr, 31) la. 185;
.Johnson v. State, 94 Ala. 35, 10 So.
667.

78_Statc V. McNabb, 20 N. H.
16{t; State v. Smith, 32 Me. 369, 54
Am. Dec. 578.

79— State v. Meyers, 99 Mo. 107,
12 S. W. 516; Morgan v. State, 51
Ncl>. 672, 71 N. W. 788.

80— Fitzgerald v. State, 112 Al:i.
.'!», 20 So. 966; Smith v. Com.

(Ky.), 20 S. W. 229. The court
says: That "undoubtedly .ni act
may be so heedless and incautious,
nocOHsariiy to be deemed wanton
and unia.vful, althoufxh there need
not be any express intent to do
mischief, and the party who there-
by rauHes death will bo K">l*y of
manslaughter ' '

81_Com. V. Hart well, I'JS Mass.
415, 35 Am. Hep. 391.

Homicide 511

circumstances. Thus a switchman on a railroad is re-
quired for the proper and safe operation of railroad
trains, to open and close switches under his care and
when he negligently, without any intent on his part to
harm another, fails to open and close them and the train
is derailed and persons killed, is guilty of manslaughter.^^
So, the failure of an officer of a vessel to keep a proper
lookout.

§ 553. Misdemeanors merely mala prohibita. At the
common law the accidental killing of another while the
perpetrator was engaged in the attempt to commit some
misdemeanor, mala in se, or in some act the commission
of which entailed a wrong within itself, or in other words,
inherently evil, would be murder. So the accidental kill-
ing of another while in the attempted perpetration of a
felony was murder. A misdemeanor, mala prohibita, is
an act considered evil only because it is merely a police
regulation enacted for the purpose of preserving the
safety, comfort and the health of the community, and is
not of sufficient magnitude, to predicate a conviction for
manslaughter, if an inadvertence occur in the attempted
violation. If the conduct of the defendant coupled with
the doing of the prohibited acts, endangers the life, or
the tendency is greatly in that direction, this will be
sufficient to make the killing manslaughter.^^

§ 554. Negligent acts. Every person is bound under
the common dictates of justice to confine his conduct
within the legitimate limits of the law. We all have
rights recognized by the law and such rights are in the
main common to all of us. In exercising these rights we

82— state v. O 'Brian, 32 N. J. 83— See following cases: Thomp-

L. 1G9; Anderson v. State, 27 Tex. son v. State, 131 Ala. 18, 31 So.

App. 177, 11 Am. St. Eep. 33. See 725; Estell v. State, 51 N. J. L.

State V. Dorsey, 118 Ind. 167, 10 182, 17 Atl. 118; People v. Pearne,

Am. St. Eep. 111. 118 Cal. 154, 50 Pac. Eep. 376.

512 Criminal Law

are required to do so in a legal manner. None are allowed
to do a thing the law gives them a right to do in a negli-
gent manner. This rule is limited in application however,
to the extent that if the negligent act affects the doer
only, then no one can complain of the manner of its ac-
complishment. The penal law reaches and punishes such
acts in proportion to the injury done. This is illustrated
where one having the right to cany fireanns, but handles
them in such a manner that the life or the safety of others
are endangered; or where he does other acts in such a
manner as to accomplish such results.**

SELF DEFENSE

§ 555. Illustrations. Self defense is that right every
person has to protect his person from unlawful assaults,
and his habitation and his property from the unlawful
intrusion of others. "AVhere one in the lawful pursuit of
his business is attacked by another, under circumstances
which denote an intention to take away his life or do him
some bodily harai may lawfully kill the assailant, pro-
vided he use all the means in his power otherwise to save
his own life or prevent intended harm. Or where the
attack upon him is so sudden, fierce and violent that a
retreat would not diminish but increase his danger he
mav instantlv kill his adversarv without retreating at
all. Or where from the nature of the attack there is
reasonable ground to believe that there is a design to
destroy his life or commit a serious injury, the killing of
the assailant will bo excusable homicide, although it
might afterwards appear that no felony was intended."
In the case of sudden and unexpected assault whore there
is an apprehension of serious bodily injury to justify the
killing thorc must be a reasonable cause for such ai)pre-
hension, mere fear of the defendant that the assailant
will do him serious bodily injury or take his life, is not

84 — Sec authorities in preceding
Hcction.

Homicide

513

sufficient to excuse the killing.^^ But such apprehension
may be based upon appearances only.®^ There must be
a reasonable cause as viewed from the defendant's stand-
point, although it afterwards transpires that the appre-
hension was founded upon appearances and not reali-
ties. The court in one case says that ''When one
without fault himself is attacked by another in such a
manner or under such circumstances as to furnish rea-
sonable grounds for apprehending the design to take
. away his life or to do him some great bodily harm and
there is a reasonable ground for believing the danger im-
minent, and that such design will be accomplished, I think
that he may safely act upon appearances and kill the as-
sailant if that be necessary to avoid the apprehended dan-
ger and the killing will be justifiable, although it may
afterwards turn out that the appearances were false and
that there was in fact neither design to do him serious
injury, nor danger that it would be done.^''^

§ 556. Apprehension of danger. In an early Tennessee
case the court held that where the defendant was a timid
man and had used all the power at his command to escape
from an overbearing ' ' bully ' ' who had intimidated him to
such an extent as to take from him all responsibility and
malice pretense, might lawfully kill his assailant, continu-
ing, says: "That if the juiy believed that Granger was
in great bodily harm from Roach, or thought himself so,
then the killing would have been in self defense. "^^ It

85 — Dyson v. State, 26 Miss.
362; Williams v. State, 3 Heisk,
376; State v. Harris, 1 Jones 190;
Eippy V. State, 2 Head (Tenn.) 27.

86— Louge V. Com., 2 Wright
Penn. 261; People v. Shorter, 4
Barb. 460; Stewart v. State, 1
Ohio 71; Oliver v. State, 17 Ala.
587.

87 — People v. Shorter, 4 Barb.
460; Eoscoe Cr. Ev. 639; 1 Hale
C. L.— 33

P. C. 40; Foster Cr. L. 263; U. S.
V. Shulburg, 3 Wash. 515.

88 — Granger v. State, 5 Yearg.
459; Ripply v. State, 2 Head. 217;
Jackson v. State, Hor. & Thom.,
S. D. 476; People v. Williams, 32
Cal. 280; State v. Chandler, 5 La.
Ann. 490; State v. Chopin, 10 La.
Ann. 458; Gladen v. State, 12 Fla.
462; State v. O'Connor, 31 Mo.
389.

514

Ckiminal Law

appears that this case was afterwards overiniled. But
it has been followed by other cases. Fear, nervous excite-
ment or morbid apprehension of hann is no defense. The
jury are to judge whether the apprehension is reasonable,
determined from the surroundings and the circumstances
and to do this they may also take into consideration the
relative physical condition of the parties. The "test"
as contended by some of the courts is that the apprehen-
sion of danger must be so great as to create in the ac-
cused, as a man of ordinaiy prudence and caution a rea-
sonable belief that unless he acts at once some serious
bodily harm or death will be inflicted upon him. An
opposite view is taken by other courts.

If the apprehension of danger is the result of fear,
cowardice or congenital weakness, and not the result of
real or apparent danger, then there is no excuse for the
act unless the weakness of mind might amount to insanity
or idiocy. In determining whether the defendant's belief
of the apprehended danger is reasonable the jury should
do this through the eyes of the defendant. This is the
most liberal and modern doctrine. Who can say what
move, gesture or attitude of the deceased might have im-
pelled the defendant to the fatal act, believing himself to
be in danger of great bodily harm. Actus non facit renin
nisi mens sit rea, is a maxim of the law — the fact of intent
is to be gathered from the conditions and circumstances
surrounding a man.^®

89— llor. & TliDiii. Wilf-d, 251-2.
"The jury are instructed that in
determining the existence of ac-
tual or apparent dunpor, tliey are
to view tlie facts of tlic case from
the standpoint of the defendant,
at the time of the killing, placiri^^
MioniHolvoH in the position of tlie
defendant, at tlic time of the kill-
ing, taking into consideration the
threats made by tlio dfccasod

against the defendant, the general
reputation of the deceased for vio-
lence, the language of the de-
ceased just before and at the time
of the homicide, in determining
the guilt or the innocence of the
defendant." Varrovv v. State, 23
Tex. A pp. 4fi2; also ace Humphries
V. State, 25 Tex. A pp. 126.

"To justify the act thp evidence
must show that the defendant com-

Homicide

515

§ 556a. Cowardice, fear etc. — Different views. Pro-
ceeding further with the discussion of the preceding sec-
tion the observation is made tliat the courts seem to
be greatly out of harmony with each other. Tlie rule of
one line is that no consideration should be taken of the
susceptibility as regards fear, cowardice or^ physical
courage. This rule seems to be founded upon the tlieory
that when a man is placed in a position to acquire this
right of defense, he must be guided by and act upon such
impressions as would cause a man of ordinary prudence
and caution to act. This necessarily precludes a person
who is not possessed of that degree of physical courage
as possessed by the ordinary prudence and caution from
invoking the rule. Upon the otlier hand it is contended
by many authorities that the matter should be viewed
from the stand-point of the defendant, whether induced
thereto by cowardice, fear or timidity. This proposition
is so well stated that we reproduce the following which
strikes the writer as being the true rule supported by
sound reason, and in accordance with the highest dictates
of justice.^'* *'I do not think it proper that a jury should
be authorized to determine the standard of courage in a
case of self-defense, or whether the party attacked, in
what he did in his defense, acted cowardly and therefore
without warrant. There is no question of courage or

mitted the act as charged and that
there was at least an apparent ne-
cessity to ward off some unlawful
attack. It is not enough that the
defendant believed himself to be in
danger, unless the facts and cir-
cumstances are such that the jury-
can say that he had a reasonable
ground for his belief." Clampett
V. State, 9 Tex. App. 27; Case v.
State, 41 Tex. 182; Kelly v. State,
27 Tex. App. 502; McReynolds v.
State, 4 Tex. App. 327; Gongales
V. State, 30 Tex. App. 203; Kemp

V. State, 13 Tex. App. 561; Powell
V. State, 5 Tex. App. 234; Pugh v.
State, 2 Tex. App. 539; State v.
Perder, 27 Fla. 370, 26 Am. St. Rep.
75.

90 — People v. Lennon, 71 Mich.
298, 38 N. W. 82, 15 Am. St. Eep.
259; People v. McGinnis, 234 111.
68, 84 N. E. 687, 123 Am. St. Rep.
73. The view that cowardice no
defense. State v. Stockman, 82 S.
C. 388, 64 S. E. 595, 129 A. S. R.
888.

516 Ceiminal Law

cowardice in the case. I am aware that the rule laid
down by the trial court has been sustained in some cases,
collected and reported in Horrigan and Thompson's cases
of Self-Defense; but the doctrine or the reason given for
it is not in accord with the principles of self-defense, as
now almost universally held and enunciated by the courts
of this country.

The question to be determined is, Did the accused,
under all the circumstances of the assault, as it appeared
to him, honestly believe that he w^as in danger of his life
or great bodily hami and that it was necessary to do what
he did in order to save himself from such apparent threat-
ened danger? If so, the inquiry is ended. It can and
ought to make no difference whether he is a bold, strong
man, used to affrays and personal encounters, or a weak,
timid man unacquainted with broils or assaults, as to the
sufficiency of his reason for his action, if the jury be-
lieve that he acted honestly in fear of his life or great
bodily harm. The fact of his physical and mental make-
up, and his experience in danger are to be considered, it
is true, as bearing upon the honesty of his alleged belief,
upon which he bases his right to act; but in such con-
sideration the fact that the accused is weak, timid and
cowardly by nature is to be weighed in his favor and not
against him. To hold otherwise would be set at naught
and to rule at variance with the well-known laws of
human nature and to place the weak and timid at the
mercy of the strong. It is bad enough to be constitu-
tionally a coward, without having the law also declare
that the coward has no right to act in self-defense until
he reaches the point where a man of average courage
would have defended himself in the same manner, and
to have tlic quantum of courage necessary in such cases
determined l)y a Jmy sitting in safety and cool blood,
listening to wliat mnst always he a lainc recital of the
facts compared to their aj)i)earance at the time they oc-
curred.

Homicide 517

§ 557. Threats to take life. It is a settled principle
that a threat to take life or to do serious bodily injury
is no justification for a deliberate and premeditated hom-
icide. Threats that one will kill on sight will not alone
justify the threatened party to kill the other unless de-
ceased, at the time of the homicide, indicated by word
or act his intention to carry the threat into execution.
There must be an overt act on the part of the deceased,
indicating that he will attempt to carry the threat into
execution. The belief and apprehension of danger must
be founded upon circumstances showing that the defend-
ant had reasonable grounds to believe, and did believe,
that the threat would be executed. It must be shown that
the threats were communicated to the defendant prior
to the homicide. The character of the deceased for vio-
lence, as well as his hatred and animosity toward the
defendant, are proper matters for the consideration of
jury, in detennining the question of the reasonableness
of the defendant's fear of injury. The defendant will
not be justified if by design, contrivance or fault of his
own, an opportunity is afforded him for striking in his
defense. He must be free from f ault.^^

§ 558. Nonfelonious assaults. Where the defendant
brings on a nonfelonious assault, or where he engages in
a mutual combat, he will be compelled to retreat to the
wall as far as he can safely do so under the circumstances
before he will be justified in killing his adversary. The
danger of his life must be so powerful and imminent that

91— People V. Lamb, 41 N. Y. Bush. 312; Pridgeii v. State, 31

360; Harrison v. State, 24 Ala. 67; Tex. 420; Field v. State, 47 Ala.

State V. Scott, 2 Head. 217; Kippy 603; Alexander v. State, 25 Tex.

V. State, 26 Miss. 362; Lander v. App. 260, 7 S. W. 867, 8 A. S. K.

State, 12 Tex. App. 462; Evans v. 438; Huddleston v. State, 54 Tex.

State, 44 Miss. 762; Phillips v. App. 93, 112 S. W. 64, 130 A. S. E.

Com., 2 Duval 328; Carrico v. 875; George v. State, 145 Ala. 41.

Com., 7 Bush. 124; Young v. Com., 40 So. 961, 117 A. S. E. 17.
8 Bush. 481; Bohannan v. Com., 6

518 Criminal Law

there is iio other alternative but to kill his adversary in
order to save it.^^ So where one by his own aggression
brings on a conflict, but without malice and an attack
is made upon him in defense thereof is greatly in excess
of the original provocation, must also retreat to the wall
in order to invoke the rule of self-defense, for the kill-
ing of his adversary,^^ So, if one brings on the conflict
for the purpose of inducing another to assault him with
the view of creating a pretext for killing him and does
kill him it is murder notwithstanding he may have re-
treated to the wall before killing him. The original
transaction being conceived in malice and begun with
the intent of killing, the whole is colored with his ma-
licious intent and extends through the entire transac-
tion.^* But if he abandons the fight in good faith and
retreat to a place of safety and he is then pursued by
his adversaiy who makes a fresh attack upon him, and
he is forced to kill him in order to save his life, this is
justifiable. In such a case the presumption is that the
killing is upon the last assault, the malice in the first
being abandoned. In one case the court says: ''Where
he has succeeded in wholely withdrawing himself from
the conflict, and that so palpably, as at the same time to
manifest his own good faith and to remove any just ap-
prehension from his adversary, he is again remitted to
his right of self-defense and may make it effective by op-
posing force to force, and wlien all other means have
failed may legally, upon tlic instincts of self preservation,
save his life by sacrilicing of one who persists in endan-
gering it." ®'^ This, however, is opposed by other authori-

92— Com. V. Drew, 68 Pcnn. St. 91— Shoflfor v. State, 15 Ohio St.

563; State v. Bcnhani, 23 la. 151, 47, 86 Am. Doc. 470.
92 Am. Dec. 417. 95— AdaiiiH v. State, 47 111. 376;

93— State v. Hill, 4 D. & J J. 190; .^holTcr v. State, 15 Ohio St. 47, 86

Ilollis V. State, 8 Tex. App. 620; Am. Dec. 470.
GanzalcH v. State, 30 Tex. App. 203,

16 S. W. 978; runninKhain v. State,

17 Tex. App. 89.

Homicide 519

ties which insist that where one being in the original
wrong however slight the wrong may be, yet he has
transgressed a right belonging to another and having
provoked the necessity for his ultimate action, cannot
take advantage of his own wrong and claim immunity
therefor.®^

§ 559. Assault upon habitation. One who is assailed
in home or house is not comjielled to retreat before he
is justified in killing his assailant. He must, however,
resort to all means in his power to resist and repell the
attack before he is justifiable. A man's home is his
castle, and he has the legal right to protect it against
the unlawful attacks of others.^^ He may stand his gromid
and resist force for force and when he has exhausted
all means short of retreating he may safely kill his as-
sailant. A stranger has no legal right to the house of
another unless he is there with the consent of the owner
and a mere trespasser may be ejected and the owner
may use all force necessary to effect it, short of killing
him, and in this case it will be manslaughter.**

§ 560. Attack upon property other than habitation. An
attack upon the property of another other than the habi-
tation, will not reduce a homicide in defense thereof to
manslaughter, where the circumstances are such as to
show malice.** Where one peaceably trespasses upon

96— Stewart v. State, 1 Ohio 66; note to Newmon v. State, 58 Tex.

Kemp V. State, 12 Tex. App. 561. App. 443, 126 S. W. 578, 21 Ann.

97_Carroll v. State, 23 Ala. 28, Cas. 718.

58 Am. Dec. 282; Gresher v. People, 98— State v. Patterson, 12 Am. L.

53 m. 295; People v. Coughlin, 67 Reg. N. S. 647; People v. Walsh, 43

Mich. 466, 35 N. W. 72; State v. Cal. 447; People v. Horton, 4 Mich.

Peacock, 40 Ohio St. 333; Hor & 67.

Thorn, Vol. 1, p. 861; State v. Per- 99— Harris v. State, 24 Ala. 67;

kins, 88 Conn. 360, 91 Atl. 265, L. Com. v. Drew, 4 Mass. 391; Patter-

E. A. 1915 A 73; Brinkley v. State, son v. State, 12 Am. L. Eeg. N. S.

89 Ala. 34, 8 So. 22, 18 A. S. R. 87. 647; Hor & Thorn, Self Defense,

A full collection of eases are given Vol. I, p. 861.
and full discussion of the matter in

520

Criminal Law

the property of another he should be requested to desist
by the owner and if he refuse to do so the owner may use
force to eject him.^ The force should be in proportion
to the emergency, and the owner may not resort to force
till a request is made to desist. After such request it is
the duty of the trespasser to desist and when he fails
to do so he becomes a wrongdoer and the owner is guilty
of manslaughter if he kills him. But where there is a
forcible intrusion or trespass upon the property of an-
other, other than the habitation, the intruder may be
resisted by sufficient force to eject him, and if the object
of the trespasser is to commit a felony or to inflict a se-
rious bodily injury upon the owner or the person in the
rightful enjoyment of the property, killing him in its
protection will be justifiable.^

1 — Pierce v. State, 17 Tex. App.
232, 22 S. W. 587.

2— People V. Payne, 8 Cal. 341;
McPherpon v. State, 22 Ga. 478;
People V. Eector, 19 Wend. 569;
Lilly V. State, 20 Tex. App. 1; Peo-
ple V. Flannagan, 66 Cal. 2; Koack
V. People, 77 111. 25. In the case of
Beard v. United States, Justice Har-
lan, of the Supreme Court says
East in his pleas of the Crown says:
"A man may repel force for force
in defense of his person, habitation
and property, against one who mani-
festly intends and endeavors, V)y vio-
lence or surprise, to commit a known
felony, such as murder, rape, l)ur-
glary, robbery, arson and the like,
upon cither. In these cases he is not
required to retreat, but may pursue
liis adversary until he has .secured
liiniseif free from all diinger; and if
lie kill in so doing it is called justi
(iable Hclf-d(!fen.sc; as on the other
li.ind, the killing by such felon i.-.
iminler. Hut a bare fear of any
of tlicKC offonHCH, however well

grounded, as that another lies in
wait to take away another's life —
iinaeeompanied with any overt act
indicative of such intention, will
not warrant in killing that other
by way of prevention. There must
be an actual danger at the time."
Pajie 271, Foatcrs' Crown cases.
"Ill the case of justiliable self-
defense, the injured person may re-
pel force for force in the defense
of his person, habitation or prop-
erty, against one who manifestly in-
tendeth and endeavoretli, with vio-
lence or surprise, to commit a
known felony upon either. In the
cases he is not required to retreat,
but may pursue his adversary till he
liiidi'lli liiiiiscll' <iiit 111' (laii;;i'r, and,
if in a conllict iielween them, lie
happeneth to kill, such killing is
justifiable." Chap. 3, p. 273, I3i.sh.
Cr. L., \()1. I, i>. Had. "Wlicn- an
attack is made with murder nr in
tent, there being sullicient overt act,
the iierson attacked is under no duty
tit (l\. And it is llic s.-mic wlicic tlic

Homicide

521

§ 561. Homicide committed in the prevention of a fel-
ony justifiable. If A intercedes to stop a fight or brawl
between B and C and so announces his intention to inter-
cede in a friendly manner, and he is intentionally killed
by either B or C, it is murder. And if he in good faith
intercedes to prevent a felony from being committed
upon either B or C, he will be justified in using just such
force as is necessary to prevent it, and if a homicide is
peiT3etrated in prevention it will be justifiable. It need not
be an actual necessity to take life. It seems, that if the
circumstances and accompanying conditions creates a

attack is ^vith a deadly weapon, for
in this case the person attacked may
well assume that the other intends
murder, Avhethcr he does in fact or
not." Wharton: "A man may repel
force by force in defense of his per-
son, habitation or property against
any one or many who manifestly in-
tend and endeavor to commit a
known felony by violence or surprise,
or either. In such case he is not re-
quired to retreat, but pursue his ad-
versary until he find himself out of
danger, and if in the conflict be-
tween them he happens to kill him,
such is justifiable. ' ' 2 Whart. Cr.
L., 1010.

In our opinion the court below
erred in holding that the accused,
while on his premises outside of his
dwelling house was under a legal
duty to get out of the way, If he
could, of his assailant, who accord-
ing to one view of the evidence had
threatened to kill him, in the execu-
tion of that purpose, had armed him-
self with a deadly weapon, mth
that weapon concealed upon his per-
son, went to the defendant's prem-
ises, despite the warning of the
latter to keep away, and by word
and act indicated his purpose to at-

tack the accused. The defendant
was where he had a right to be,
when the deceased advanced upon
him in a threatening manner, and
with a deadly weapon; and if the
accused did not provoke the as-
sault, and had at the time a reason-
able cause to believe, and in good
faith believed, the deceased intended
to take his life, or do him great
bodily ha nil, he was not obliged to
retreat, nor to consider whether he
could safely retreat but was entitled
to stand his ground, and meet any
attack made upon him with a deadly
weapon, in such Avay and such force
as, under all the circumstances, he
at the moment honestly believed,
and had reasonable grounds to be-
lieve it was necessaiy to save his
life, or to protect himself from
great bodily injury." 158 U. S.
550, 9 Am. Gr. Eep. 324. People
V. Dann, 5'3 Mich. 490, 19 N. W.
159, 51 Am. Eep. 151; State v.
Moore, 31 Conn. 470, 83 Am. Dec.
159; Uttcrback v. Conn., 105 Ky.
723, 40 S. W. 479, 88 A. S. R.
328; Brown v. State, 98 Miss. 786,
54 So. 305, 34 L. R. A. (N. S.)
811.

522 Criminal, Law

well founded belief that a felony will be committed it is
sufficient.^ The defendant must act non-negligently. To
kill a person after he has escaped (a felony having been
committed) will be murder or manslaughter, according
to the circumstances. It seems that the states where
the stealing of certain animals is made a felony, such as
horses, especially where the theft is punished capitally,
the killing of the thief while he is endeavoring to escape
will be justifiable; but if the felon had taken the horse
and disposed of it he would not be justified in killing
him. So, also, if a forceable robbery is committed it
seems that one would be justified in killing the robber,
especially so if the robbery is a felony. Upon sound
authority if a felony at common law has been reduced to
a misdemeanor by statute a killing will not be justifiable.*

§ 562. The right of the members of the family to defend
each other. It is a well established doctrine of the com-
mon law that the father, the mother, the son, the daughter,
the brother, sister, and others of kin, were allowed to de-
fend the others against the assaults of third persons. The
authorities are not very clear, but the reason for this
seems to have been because of the relation these parties
held to each other. There is also a doctrine of the com-
mon law, yet not so well defined, that a stranger may
interfere for the purpose of defending anotlier against
the assaults of a third party. This latter was placed upon
the ground that the majesty of the law must be upheld,
and the duty was imposed upon the citizen to exercise his
sound judgment in interfering for tlic prevention of
any felony that may be about to be committed in his
presence, Tlie failure to exercise this riglit does not
seem to have Ix'on, except in certain instances, such a
V)reacli of positive law, as demanded punishment. So,
we gatlier from the reason of the law that strangers

.3— Dell V. Kfiite, 25 Ala. If); 4--Kf:ito v. Kiiflierfonl, 1 Hawks,

Oliver V. State, 17 Ala. 587. 457 Ilor. & Thorn. Co. Defenses 734.

Homicide

523

were not so iiiucli to defend against the assaults of an-
other, or to intercede in the behalf of another, as it was
his duty and his right to interfere to prevent a felony
or any breach of the peace and to maintain good order
in the community. Yet we find authorities maintaining
that a stranger may defend another where such per-
son might have defended himself. There is no ques-
tion that this is true as to the father, son, mother, daugh-
ter, brother, sister and husband and wife (at common
law), the servant and the master, and that each of these
might defend for the other where he might defend for
himself.* The distinction again is noticed, the law recog-
nizing the higher obligations due from each of these
classes of persons to the others, by reason of their rela-
tionship wisely permitted the one to defend for the other.
Thus any of these persons seeing or knowing that any
of them are engaged or about to be engaged in a fight,
the law does not require them to consider who is the
aggressor if the person occupies the relationship as here-
in indicated if at the time it appears to him that some
great bodily injury or death will be inflicted upon such
person.^ If, however, he knows that the person he is
defending is in the wrong he will not be permitted to
offer self-defense for his acts, because the law will not
permit him to defend where the other could not. The
fact that the one had forfeited his right to self-defense
by his acts if unknown to the other is immaterial. By

5 — Campbell v. Com., 88 Ky. 402,
21 Am. St. Eep. 348; Estep v. Com.,
86 Ky. 39, 9 Am. St. Eep. 260; Shu-
mate V. State, 38 Tex. App. 266.

6— Eoss V. Com. (Ky.), 58 S. W.
89; State v. Hickman, 95 Mo. 322,
6 Am. St. Eep. 54; Standley v. Com.,
86 Ky. 440, 9 Am. St. Eep. 305, 6
S. W. 156. This case contends that
a brother may not defend for the
brother where that brother may not

defend for himself. See following
cases bearing upon the question :
Crawford v. State, 96 Ga. 701, 17 S.
E. 620, 35 A. S. E. 535; People v.
Cook, 39 Mich. 236, 33 Am. Eep.
380; Patten v. People, 18 Mich. 314,
100 Am. Dec. 173; State v. Turner,
246 Mo. 598, 152 S. W. 313, Ann.
Cas. 1914 B, 451, see 13 Am. cas.
note 1055.

524

Criminal Law

some authorities this is denied. The stranger who in-
terferes in the fight of another is required at his peril
to ascertain for himself that he is not the aggressor.

§ 563. Degree of force used. When one is attacked, he
may employ just such force as is necessary to repel
the attack and no more; and if in return for the attack
the assailed uses force greatly in disproportion to the
assault made upon him, he then becomes the aggressor,
and if in hot blood kills his adversaiy, he will be guilty
of manslaughter. So, also, in case of mutual combat
between A and B, and A presses B to the wall and B
kills him this is manslaughter.'' But if B, after retreat-
ing in good faith as far as he can, A pursuing him, dan-
ger being imminent and threatening, and reasonable that
serious bodily injury will be inflicted on him can safely
kill A.

§ 564. Nonfelonious assaults. Where a nonfelonious
assault is made upon another the person assailed has
no right to resort to extreme means in repelling the
attack. If he does he then in turn becomes the aggres-

7— People V. Adams, 47 111. 376,
State V. Isooc, 25 Tex. 74. A per-
fect self defense can only obtiiin
and avail where the party pleading
it acted from necessity and was
wholly free from wrong or blame
in causing or producing the neces-
frity which required his action. If,
however, he was in the wrong it'
lie was himself violating, iiikI in tlic
act of violating, the law, and on
account of his own wrong was placed
in a juiHition wliore if Ijccanic iicccs-
Hary for him to (IcfriKi liiiiisclt'
against an attack rriail<' iipuii liiin-
Holf wliifli was sii|ii'riii<liic('<l as
crt'afcd liy liis nwn wrong, tiicii the

law justly limits his right of self
del'enso, and regulates it accord-
ing to the magnitude of his own
wrong." Eeed v. State, 14 Tex.
App. 500. If the original wrong of
the defendant was or would have
been a misdemeanor, the homicide
growing out of, or occasioned by it,
though in self-defense from an as-
sault made uiion him, would be man-
slaughter if committed under the
immediate influence of sudden pas-
sion arising from an adequate cause,
sncli, for instance, as anger, rage,
terror, or resentment." Speannan
V. Stale, 123 Tex. App. 244, 4 S. W.

r,Hn.

Homicide 525

sor.* If the assaulting party accompanies his assault
with threatening gestures, indicating an intention to do
the assailed an injury, he is justified in resorting to force
to repell the attack. He is, however, held to a strict
caution in not stepping beyond the necessities of the
case. If the assault is of a felonious character he may
according to the circumstances resort to severer meas-
ures. A person assaulted is not required, in order to
preserve his right of self-defense, to wait till a threat-
ened battery is actually made upon him before he be-
gins to ward off the injury threatened.^ Where the
party making the assault is greatly superior in strength
to the party assailed this will not justify him in resort-
ing to a knife and to stab the assailant. He is, however,
entitled to resort to a greater force than he would if
their relative physical prowess were equal or nearly so.
Care in all cases is enjoined that resistance to the attack
does not exceed the bounds of defense.^"

§ 565. Wrongful act contributing to necessity to kill.
It is not every wrongful act of the accused which con-
tributes the necessity for him to take life in order to
presei^^e his own that cuts off his right of self-defense.
Thus as we have seen in a preceding page where he
brings on a conflict nonfelonious in its character, the
assailed is not authorized to repell the attack by means
deadly in its nature or by force greatly in excess of that
of the assault. If by reason of the excess of force the
attacking party is forced to the wall he will be justified
if he killed to protect his life. But if the nature of the
attack in the first instance is felonious, or in other words,
will result in death or serious bodily injury, or likely to
do so, and the assailed forces the assailant to the wall

8— state V. Waggoner, 33 Ind. 9— State v. Stockton, 25 Tex.

533; rislier v. Bridges, 4 Blatchf. 777; State v. Mitchell, 41 Ga. 537.

548; State v. Morgan, 3 Ired. 186 10— State v. Bruwell, 63 N. C.

(N. C), 38 Am. Dec. 714. 561.

526 Criminal. Law

and he kill hiiii, then he is not entitled to his self-defense.
So, in keeping with this rule, the adulterer, who by his
owm wrongful act — the adultery with the deceased's
wife, is not entitled to right of self-defense, where he
kills the husband in defense to the attack of the husband,
who attempts to kill him for the adulteiy.^^ At the com-
mon law the husband detecting the wife in the act of
adulter}^, was guilt}' of manslaughter only if he kill her;
and so if he kill the paramoor.^'^ But under the law of
Georgia, where the right of the husband to kill the se-
ducer of his wife in the act of adulterj^ with her is justi-
fiable homicide, it has been held that if the husband has
known of the illicit- relation between the wife and her
paramoor, and after the adultery deliberately lays a
trap for the purpose of catching them in the act of adul-
tery in order that he may create the act for the justifica-
tion of killing the paramoor, the paramoor killing the
husband in the protection of himself, is entitled to his
right of self-defense.^^

§ 566. Retreat and pursuit. The right to retreat and
kill one who pursues depends upon the right to pursue.
If A brings on a conflict with B and makes a felonious
assault upon him, but abandons the conflict in good faith,
and the circumstances clearly indicate his abandonment
and his intention to quit the fight, and so retreats, upon
principle B being out of danger or the apprehension of
danger of a felonious nature is bound to check his pur-
suit, for there is no necessity for the defense to his per-
son. Such being the circumstances of the case he pur-
sues in a murderous assault upon A, A having retreated
as far as he can and there being no way to escape the

11— Dabney V, State, 113 Ala. 38, 12— State v. ilcrnll, 10 Am. St.

r,9 Aim. St. Rep. 92, 21 So. 211; 294, 97 Mo. 105, also casos cifcd

McNeil V. State, 102 Ala. 121, 48 in iioto 1.

Am. St. Rep. 17, aiifl note 1.1 So. 13— Wilkerson v. State, 91 On.

3r.2; State v. Samuel, 04 Am. Dec. 729, 44 Am. Si. Hep. 03.
.'590, 3 .Tones L. 74.

Homicide 527

danger to liis life may safely kill B. B has the right to
pursue as long as A's intention is to continue the fight,
but when this intention is abandoned his right to pursue
ceases. At the point where A repents and the circum-
stances show that he has acted upon it, B's right to pur-
sue also ceases.^* The right of pursuit is dependent
upon the appearances as they are presented to the ac-
cused. If the circumstances would cause a reasonably
and cautious and prudent man to believe that the fight
had been abandoned, then he must stop the pursuit.^^
Where the pursuer has been by the wrongful act of his
adversary rendered incapable of knowing that the fight
has been abandoned, he is not reriiitted to his right of
self-defense; as where the act of the defendant had had
the result of depriving his pursuer of his reason, and
thereby had no power of knowing that the fight had
been abandoned, it was held that he was not entitled to
his self-defense, notwithstanding the facts were suffi-
cient to show that he had abandoned the fight in good
faith. Some of the authorities go so far as to hold thn-
where the defendant assails another with a deadly
weapon he must fairly notify his antagonist that he has
abandoned the fight; and if the circumstances are such
that he cannot inform him, it is his fault and that he
must take the consequences. This is in keeping with
the maxim of the law ''that a man must first do equity
before he is entitled to it. ' ' ^^

§ 567. Spring" gnns. The rule of the common law is
as we have in other parts of this work explained, justi-

14— Evans v. State, 33 Ga. 4; 15— Stoffer v. State, 15 Ohio St.

People V. Button, 105 (Cal.) 628, 47, 86 Am. Dec. 470; State v.

46 Am. St. Rep. 259; Palmer v. Eodges, 18 Kans. 78, 26 Am. Rep.

State, 9 Wyo. 40, 87 Am. St. Rep. 754; People v. Button, 46 Am. St.

910, 59 P. 793; Stoffer v. State, 15 Eep. 259.

Ohio St. 47, 86 Am. Dee. 470; John- 16— State v. Smith, 10 Nev. 106;

son V. State, 58 Ark. 57, 23 S. W. People v. Hecker, 109 Cal. 451, 42

7; People v. Simons, 60 Cal. 72. P. 307.

528 Criminal Law

fied the killing another for making an assault upon the
home or the castle for the puipose of injuring another
person therein. It also justified the killing of one in the
act of committing a felony in the prevention thereof.
The felony, however, wherein this justification was per-
mitted was of those which were of a forcible nature,
such as murder, mayhem and the like, rape, robbery
and burglary. For the last of these, to kill the burglar
was justified upon the theoiy that the crmie combined
both the assault upon the home— the dwelling house,
and the consequent disturbance of the inhabitants, and
the trespass upon the property. At the common law
the killing of another in the protection of his property
was never justified where that property w^as other than a
home. It is to be noted that the reason for the doctrine
was founded upon the inalienable right to protect one-
self from assault upon his person and his dwelling house.
In the application of the doctrines herein set out the
English courts at a very early date held that as a mat-
ter of law one setting a spring gun, or other destruc-
tive engine capable of infiicting death or great bodily
harm for the purpose of preventing the burglary of his
goods, and thereby killed one attempting the burglary
was justified. Up to a few years ago this seems to have
been the i-ule in the American states. There are a few
cases, however, opposing this view and holding tliat the
matter is at least of niLxed law and fact, and that the
juiy should determine from the facts botli the intent
with which tlie guns were set, and also the right and the
necessity of the defenchuit to set the guns or engines for
the protection of his pr()i)erty. We are impressed with
tlic justice and the humanity of these dissenting courts,
and we believe that the doctrine here announced is sup-
ported by tlie princii)k's (.1" llic hiws of homicide." The
rule ol' tlic English conrts, succinctly stated, justified the

17— statu V. I'.i.rr, II \V.i>li. Al.lridi v. State, 53 N. H. 398, 16
•181, 48 A. H. R. 890, 30 P. 1080; Ami. I»'.p. :«:?9.

Homicide 529

killing by the means of the spring gun during absence
of the owner if the killing would have been justified if
the defendant had been there in person and did the deed."

ASSAULTS TO MURDER

§ 568. Misdemeanors at common law. The statutes of
the several states contain many different provisions con-
cerning assaults of an aggravated nature; such as as-
saults with intent to kill, assaults to murder, the ad-
ministration of poisons with the intent to kill or mur-
der, assault with intent to commit rape, and many oth-
ers, a full description of which may be obtained by tak-
ing a look into the statutes. An assault upon another,
which resulted in the death of the party assailed, was
at the common law either murder or manslaughter.
These were felonies; but all other assaults were misde-
meanors, and if the assault was attended with a felon-
ious intent, the intent had the effect of aggravating the
offense, and were known as assaults of an aggravated
nature, being high misdemeanors, and was pmiished
sometimes very severely. But where the assaults were
of a less aggravated nature, the punishment inflicted
was apportioned to the gravity, and was very slight as
in the fonn of simple assault and battery. Hence, all
assaults to commit murder was at common law misde-
meanors. Death inflicted at common law, whatever the
means used and the manner of inflicting it, neither les-
sened nor increased the amount of the punishment, but
the manner and sometimes the means have been so re-
volting, that the legislatures have sought to make at-
tempts at death, or assaults to kill, with intent to mur-
der, with certain means, as more reprehensible than the
same thing attempted by other less shocking. Such as
the attempt to administer poison, to assault an officer
of the United States, is made more reprehensible than

18—1 Hor. & Thomp. Cr. 479, son v. State, 59 Ala. 1, 31 Am. Ren.
83 Am. Dec. 159, and note: Simp- 1, see note 15 Am. Cas. 584

C. L.— 34

530 Criminal Law

other persons, for the reason we suppose, because an
officer ought not to be hindered in the discharge of his
official duties. Hence, because of the different wordings
of these statutes, curious questions have arisen.

§ 569. As to the intent. The general rule is that if the
assault was made with the intent to kill, but for some
reason failed it then would be an assault with intent to
murder, if it had been murder if the killing had actually
occurred.^® This is the rule, in attempts to commit
crimes in general — that there must be a specifical intent
to commit the crime in full. If a blow, actuated by
malice, or under such circumstances as malice may be
presumed, is directed to A with intent to kill him, and
for some cause unlooked for it falls upon C, the killing
of C is murder, notwithstanding the intent was to kill
A only. Now the question has arisen in the application
of this rule, whether an assault to murder can be predi-
cated upon the wound inflicted upon C, there being no
intent to kill him. There are conflicting authorities
along this lino, but the weight of the adjudications is
believed to be with the affirmative.^" The question has
also arisen, when under the terms of tlie statute murder
is divided into two or more degrees, and a specific intent
to kill is necessaiy to constitute murder in tlie first de-
gree, whether if the blow killed C it would be of the
same degree as if A had been killed, that is, murder in
the first degree; and wlietlier if the blow intended for A
had falk'Ti upon C, but had not killed him, this would
constitute an assault to murder C. As to the former, it
has been held that the killing C by mistake would be

19— Hall V. state, 9 Fla. 203; 257, 69 Me. 1G3; Perry v. People, 14

Htatc V. Nicholds, 8 Conn. 490; 111. l!M5; V:iii(U'riii;iik v. People, 47

Nancy v. State, G Ala. 483; State ill. 122; State v. Meadows, IH W.

V. .lohn.Hon, 4 Mo. 018; SutchilTo v. Va. CIS; Dunnway v. Peojiic, lie

State, IH Ohio 469, 51 Am. Dec. 459. la. 333, f)! Am. K. p. 080; McGehee,

20— Gilman v. State, 31 Am. Kep. r)2 Am. Kcp. 209, 62 Mitw. 772.

Homicide 531

murder in the second degree.^^ As to the latter, the
writer has not found an adjudication that covers the
precise question. An assault with a deadly weapon, but
from the use of which no death results, does not raise
the presumption of an intent to kill, but the fact that
one shoots at another with a pistol is very strong proof
that he intended to kill. ''When a specific intent is
required to make an act an offense, the doing of the act
does not raise a presumption that it was done with the
specific intent. "^^

21 — Bonfonti v. State, 2 Minn. 21 Am. Eep. 152; People v. Mise,

123; Pruet v. State, 20 Tex. App. 80 Cal. 42, 22 P. 80; Scott v. State,

129; McCullough v. State, 24 Tex. 49 Ark. 156; State v. Hickman, 95

App. 125; Woods v. State, 27 Tex. Mo. 322, 6 Am. St. Eep. 54; Steffy

App. 393 ; Bratton v. State, 10 v. People, 130 111. 98, 22 N. E. 861 ;

Hump. 103. Maher v. People, 10 Mich. 212, 81

22— Patterson v. State, 85 Ga. 131, Am. Dec. 781.

CHAPTER XXXI

LARCENY

§ 570. Definition and description. § 585.

§ 571. At the common law the prop- § 586.

erty must not savor of the

soil. § 587.

§ 572. Severing from the soil and

aspotation at the same time § 588.

is not.
§ 573. Wild animals at the common § 589.

law was not subject to. § 590.

§ 574. At common law dogs and cats

were not subject to. § 591.

§ 575. Choses in action, at common

law not. § 592.

§576. Furtlier discussion. §593.

§ 577. Of the title and possession of § 594.

property.
§ 578. One with the bear possession

of property not a bailee.
§ 579. Conversion of property after §

term of bailment, is. §

§ 580. Larceny of goods of a de- §

ceased person laid in the

administrator.
§ 581. Rule as to lost property. §

§ 582. Allegation of property when

in corporation.
§ 583. Ac(|uiring the possession of §

property by trick or fraud.
§ 584. Larceny wherfe the property is §
delivered for a special ])ur- §
pose.

Wife's possession.

Larceny involves two ques-
tions of possessions.

Where one has the right and
the title to the property.

Property need not be taken
Lucri Causa.

No repentance is a defense.

Rule in estimating the value
of property.

Rule as to minors and de-
ceased person.

As to the consent, etc.

Entrapping the thief.

Of the attempt.

RECOVERS.

595. Substantive offense.

596. Englisli statutes.

597. Tlie receiver need not have
the actual manual posses-
sion of property.

598. Receivers need not intend to
acquire an interest in tlic
jiroperty.

')[){). Stolen goods restored to

owner.
COO. English Statutes.
GOl. Tlici'1 bote.

§ 570. Definition and description. Larceny is the
frauduh.'iit taking' and carry iiii;;- away of personal prop-
erty belon«^iii^ to another, from liis j)ossession, or from
the possessidH of sonic person h()hlin«2^ tlie same for him,
without his consciil, and wilh Ihc inlcnl (o dcpi-jve the

532

Larceny

533

owner of the value of the same, and to appropriate it
to the benefit of the person taking.^ The crime consists
of the following elements: 1. The taking with a fraudu-
lent intent. 2. Must be taken from the owner or from
some person holding the same for him. 3. The property
must be personal property. 4. The property must be
taken with the fraudulent intent to deprive the owner
of its value. 5. Must be taken with the intent to appro-
priate the property or its value to the taker's benefit.
6. The property must be carried away.^

OF THE PROPERTY

§ 571. At the common law the property must not savor
of the realty. Only personal property is capable of be-
ing stolen. Personal property may be defined as any
movable material substance, capable of being handled.
At the common law chattels real were not subject of lar-
ceny. The rule was that the chattel real must be severed
from the realty, and permitted to remain in that condition
for a period of time supposed to be sufficient to give the
property the character of personalty. No precise time
appears to have been agTced upon, but the act of tak-

1 — House V. State, 19 Tex. App.
277; Harris v. State, 22 Tex. App.
670, 3 S. W. 477.

2—4 Bla. Com. 230; 3 Coke's
Inst., 107; State v. South, 28 N. J.
L. 28, 75 Am. Dec. 456; Crowell v.
State, 24 Tex. App. 404, 6 S. W.
318. See 12 Am. & Eng. Encly.
Law, p. 761: "The definition of
larceny said Baron Parke, are none
of them complete. Mr. East's is
the most complete, but that wants
some little explanation. His defini-
tion is: The wrongful or fraudu-
lent taking and carrying away, by
any person, of the mere personal
goods of another, from any place,
with felonious intent to convert them

to his the taker (s), own use, and
make them his own property. This
defective in not stating what the
definition is of felonious, in this
definition is. It may be explained to
mean that there is no color of right
or excuse for the act, and the intent
must be to deprive the owner, not
temporarily, but permanently of his
property. ' ' People v. Hoban, 249
111. 303, 88 N. E. 806, 16 Ann. Cas.
226, 22 L. E. A. (N. S.) 1132;
Adams v. Com., 153 Ky. 88, 154 S.
W. 381, 44 L. R. A. (N. S.) 637, 1;
Black v. State, 83 Ala. 81, 3 So.
814, 3 A. S. R. 691; State v. Powel,
103 N. C. 421, 9 S. E. 627, 14 A. S.
R. 821, 4 L. R. A. 291.

534 Cbiminal Law

iiig and carrying away must have been at a different
time from that of the severing the thing from the soil.
But a moment or an instant of time seems to have been
enough to change the character of the thing severed. In
the absence of statutes, this rule is generally adhered to
in the several jurisdictions. The modem authorities sup-
port the doctrine that the aspotation at the time of the
detaching of the thing is theft, if it is done with a feloni-
ous intent. The following instances may partially illus-
trate the character of the property that comes within
the rule. Thus trees previously severed," or felled; tur-
pentine which has flowed out into the troughs made to
catch it as it flows from the trees, and in a state that it
may be dipped out;* doors, windows, blinds and lead
pipe fixed to a building, belts connecting machineiy in
mills and the like are, when severed, subject to acts of
larceny.^ So, also, a key in a door, brass on a tombstone,
but a gold nugget which had been dislodged from its
vein is said to savor of the soil, and is not subject to
theft.«

§ 572. Severing from soil, and aspotation at the same
time, is not larceny. Where the defendant was indicted
for grand larceny in detaching and appropriating four
chandeliers from a gas pipe into which they had been
screwed, and attached to the ceiling of the prosecutor's
house, the court used the following language: "Tf we
adhere to the common law rule, it will be found that
fixtures, when they are attached to tlie freehold or savor
of the realty, cannot be made the subject of larceny
wlien severed and carried away by one continuous act.
AVlicii dotoiTnining the property taken was a part of the
realty, or mere personal cliattcl, the test seems to have

3_8tnte v. Park.-r, :\\ Ark. ].')H, I'.tr,; H.-.i-jjcr v. 8t;il(«, 1 Tox. App.

36 Am. Rep. G. 26.

4 — Stnto V. Moore, 11 ln'<l. 70. C, lloNkiii v. 'rcrr.iiicc, it.' Am.

5 — lacksori v. State, 11 Ohio St. D.c 120, .'") Hlatclif. 417.

Larceny 535

been, would the property alleged to have been stolen
have passed from the owner to the vendee upon a con-
veyance of the freehold? At the common law, things
real or things that savored of the realty, could be con-
verted by the thief into personalty, if after detaching
them he left them on the soil of the owner, for a moment
of time merely, and returning, carried them off; but if
left in the hands of the thief until he leaves the premises,
it is part of the premises. There is little reason for the
rule, and modem authorities, instead of following the
common law on the subject, apply it only to things aris-
ing out of or growing upon the land and such as adheres
to the freehold, but not to personal chattels constructive-
ly annexed thereto. The chandeliers having been tem-
porarily placed in the building for the use of the tenant,
the detaching them constituted theft of them. ' ' ^

§ 573. Wild animals at common law was not subject
to larceny. Wild animals, in a state of nature, ferae
naturae, are Nulius bona, no one's property, and at the
common law were not subject to larceny for the reason
that in such a state they belonged equally to all of the
community, and the first reclaiming them from their wild
and natural state acquired a specific property in them to
the exclusion of all other persons.^ This rule is appli-
cable to all kinds and character of wild and unreclaimed
animals, fowls, birds and fishes in public waters, which
were good for food when reclaimed and became actually
under the control of the captor. In order to acquire this
specific interest in the property it was or is not necessaiy

7— Smith V. Com., 29 Am. Rep. S.) 965; State v. Fox, 83 Conn.

402, 77 Ky. 14 Bush. 31; Guthrie 286, 76 Atl. 302, 19 Ann. Cas. 682.

V. Jones, 108 Mass. 191; Jarechi v. See 49 L. E. A. (N. S.) 965.
Philharmonic Society, 21 Am. Eep. 8 — Com. v. Boeman, 8 Gray

78, 79 Pa. St. 403; State v. Klink- (Mass.) 497; State v. Krider, 78 N.

enberg, 76 Wash. 466, 136 Pac. Ann. C. 481; Warren v. State, 1 la. 106;

Cas. 1915 D, 468, 49 L. E. A. (N. Haywood v. State, 41 Ark. 479.

536

Criminal Law

to so confine them as to preclude their escape under any
circumstances. A confining which reduces them to actual
possession, where they may be readily reached, will be
a sufficient reclaiming to subject him who steals them
to the penalties of larceny .» Thus bees in a hive, fish
in a private pond or in waters owned by another, deer
in a park, rabbits in a Avarren, become the property of
those who capture them and so confine them, and the
' taking of them by another, animus furandi, is larceny.^®

§ 574. At common law dogs, cats, songbirds, ferrets,
not subject to larceny. The general rule at the common
law was, that wild animals and wild fowls and the like,
should, after reclamation, be fit for food, in order to be
subject in the hands of the captor to larceny." To this
there appears to have been an exception in the case of
songbirds and hawks. There was a olass of wild ani-
mals, although easily domesticated, not being good for
food, was not subject to larceny, such as ferrets, coons,

9 — "Where the animals or other
creatures are not domestie, but ferae
naturae, hirceny may, notwithstand-
ing, he committed of them, if they
are fit for food for man, and dead
and reclaimed (and known to be so)
and confined, 'i lius fish in a tank
or net, or as it seems, in any otiier
enclosed i)lace wiiich is private pro])-
erty, and where they may be taken
at any time at the jileasure of the
owner, the taking of them with felo-
nious intent will be larceny." 2
Husscl on Trimes. State v. Sliaw,
60 L. R. A. 481.

10 — In the case of State v. Shaw,
00 L. R. A. 481, "The trial judge
seems to have directcfl the jury to
return a verdict of not uuilty f)n the
theory tli;it tin- fish should have been
confined ho that there was no ]ios
Miliility of eseajie. We think this

doctrine is both unnecessarily tech-
nical and erroneous. For example,
bees in a hive may be the subject of
larceny, yet it is possible for the
bees to leave the hive at the same
place at which they entered. To
acquire a property right in animals
ferae naturae, the pursuer must
bring them into his power and con-
trol, and so maintain his control as
to show that he does not intend to
abandon them again to the world at
large." Sec following: Magner v.
I'.-ople, 97 111. 320; State v. Goer,
1:5 L. K. A. 804, IGl N. S. r)18, 40
L. Ed. 703; State v. l?ep- T^-* Ta.
30.^, 73 N. W. 829, Gf) A. S. H. 403,
40 L. R. A. 087; People v. Miller,
109 N. Y. 339, 02 N. K. US, H8 A.
S. |{. .'')40, and note.

11— Com. v. noeman, S (Iray 197;
State v. Turner, 00 N. C. 018.

Larceny 537

monkeys and squirrels and the like.^^ Oysters reclaimed
from a bed in the waters, or where they are planted and
proi:)agated, being highly valued as food for man, is sub-
ject of larceny.^^ So, the eggs of wild birds are not
subject to larceny, unless they are known to be good for
food, and it appears that when the indictment is for
stealing eggs it should affirmatively appear that the
eggs were the eggs of domesticated fowls. Also, as a
general rule, all domesticated animals, at the common
law, were subject to larceny, but to this there is an
exception in the case of dogs and cats.^^ These latter
were classed as domesticated animals, but were not re-
garded as being of sufficient value to make it larceny to
steal, although a civil suit for damages could be main-
tained for the conversion of the dog. It is indeed a vei'y
curious distinction. There is no dumb animal that ex-
hibits a higher sense of affection for his owner, or which
possesses a higher degree of intelligence. The notion
of our ancestors seem to have been that those things
wTiich were maintained for the purpose solely to gratify
a whim, or the pleasure of the owner, such as that of
dogs and cats, which were not valuable for any other
purpose, did not possess sufficient value to be subject to
the crime. There appears at this late date no reason
for the rule, but adjudicate cases in this countiy, as well
as of the mother country, adhere to it, and it may be said
that, except where provided by statute, the stealing and
carrying away of a dog or a cat with intent to thereby
acquire the ownership, will not come within the pur\aew
of the law relating to larceny.^^ As to the crime of

12—66 N. C. 618, 20 Am. Dec. 86 N. Y. 365. This case held tliat

573. a dog was subject to larceny, but

13 — Taylor v. State, 27 N. J. L. for the reason tliat the statute had

117, 72 Am. Dec. 347. created such. See also the follow-

15 — State V. Harriman, 75 Me. ing case for a further discussion of

562, 46 Am. Eep. 423n. the sul)ject: People ex rel. Shand

16— Ward v. State, 48 Ala. 161, v. Tighe, 35 N. Y. 305; King v.

17 Am. Kep. 31; Mullany v. People, Hayes, 80 Me. 206, 13 Alt. 882;

538 Criminal Law

malicious mischief, the poisoning or otherwise injuring
them, is subject to the penalties of the law, as of other
personal property. Whether this was tnie at the com-
mon law we are unable to refer to a case expressly hold-
ing it, yet we are of the opinion that it has grown up
with the various statutes upon the subject passed by the
mother country as well as our own.^'^ As against the
police power of the state, the owners of dogs and cats
have only a qualified property therein, for it has long
since been conceded, that the legislature, where not pro-
hibited by the constitution, are authorized to provide
that a tax or a license may be placed upon their owners,
and upon the failure to pay the tax or license as pro-
vided, such property may be confiscated by the killing
of the anunals or otherwise disposing of them. And for
this there appears to be one reason sanctioned generally,
that the power of confiscation is derived from the power
of the state to provide for the discontinuance and abate-
ment of a public nuisance, or public danger, and that
the same is not in deprivation of "due process of law." "

§ 575. Choses in action, deeds, notes, and such like,
was not larceny. Choses in action, including notes, deeds,
bank bills, all written evidences of debt from one per-
son to another, as evidenced by account books, or other
instruments in writing, at tlio conmion law were not
subject to larceny, but it ai)pears that theft of the ])aper
on wliicli the matter was wiittcii was subject to ])unish-

Lynn v. State, 25 S. W. 779. This Mease, 69 Mo. App. 581. See fol-
ca«e holds that under tlic coiiMfitii- lowiiifr cases: State v. Sumner, 2
tion of the state the legLslature had Ind. 377; Nchr v. State, 35 Neb.
no autliority to confer upon cities 038, ]7 L. K. A. 771, 53 N. W.
of the state the riglit liy ordinances 589; State v. Marsliall, 13 Tex. 55;
to authorize lior ofliccrs to kill do^s, ITnrnoss v. State, 127 Ind. 425; Pat-
under the power to exercise the po ton v. State, 21 L. ii. A. 732.
lice power of the state, as bcin>,' in 18 — IlaRH'Ttown v. Witner, 86 Me.
controversion of ".Jiie process of 2'X\, 37 Atl. DO.I, :!!l I,. U. A. 649;
law." Independent v. Truevalie, 15 Kans.
17— State V. I.atiium, 35 N. C 3S 7(i ; Curtis v. Topeka, 30 Kan.s. 76.
(13 Ircd, L.). Contra; State v. .59 Am. Rep. 529; Frederick Fox

Labceny

539

ment as larceny, for the reason that there was an inde-
pendent and intrinsic value, although slight, existing in
the paper. ^® By statute in most of the several jurisdic-
tions, almost all kinds of written instruments, as in the
nature of notes, bills, deeds, mortgages, debentures, cou-
pons, tickets, passes and permits, upon railroad cars,
and to all kinds of entertainments where a charge is
made, tickets or permits given by common carriers, or
any other means whereby a valuable right is conveyed
to or exists in another written or printed, or engraved
or lithographed upon paper or other substance; and all
others means whereby a right to another is conveyed, is
made larceny when taken and carried away with the
intent to secure the property therein.^" A pension check
is made larceny to steal, according to the statute of
North Carolina.^^ So, also, the stenographic report of
witness's testimony, being of no value except for use
in a trial of a cause in court, is subject to larceny, and
the value of such testimony to the person who can use it,
is the standard of value.'^'^

§ 576. Further discussion of larceny of choses in action,
etc. In order to render promissory and bank notes or
other paper evidences of debt or obligation subject to
larceny, there must be a valid and existing obligation
to pay something of value; or some valid and existing
right.^^ The rule may be stated to be, that where there

Eesp. V. Humane Society, 31 L. E.
A. 681; Sentell v. N. O. R. R. Co.,
166 U. S. 698.

19— U. S. V. Davis, 5 Mason 356;
4 Blatchf. 234; Thomason v. State,
22 Ga. 499; Gulp v. State, 1 Part
(Ala.) 33, 26 Am. Dec. 357. See
note 88 A. S. K. 586; Calentine v.
State, 50 Tex. App. 151, 94 S. W.
1061, 123 A. S. R. 837; Patrick v.
State, 50 Tex. App. 496, 98 S. W.
840.

20 — See the statutes of the several
states.

21—4 S. E. 357.

22— People v. McGrath, 17 Pac.
(Utah) Am. Dig. 1888, p. 819.

23 — People v. Loomis, 4 Den. (N.
Y.) 380; Wilson v. State, 1 Parb.
(Ala.) 118; State v. McClellon, 82
Vt. 361, 23 L. R. A. (N. S.) 1063
and note 73 Atl. 993. See cases cited.

. 540 Criminal Law

exists any written evidence of a claim to specific prop-
erty, or any written evidence of any debt, or any written
contract, or contract, the interest in which is based upon
a future contingency, or any existing or tangible right in
and to any material thing, or to the use that may be de-
rived from it, is subject to larceny, under the provisions
of our statutes,^*

OF THE OWNERSHIP AND POSSESSION

§ 577. Of the title and the possession of property. The
possession of personal property may be, for convenience,
divided into two classes. (1) Where the title and the
possession are in the same person or persons at the same
time. (2) Where the title and the possession are in
different persons at the same time. In the latter case,
the person holding the title is the bailor, and the person
holding the possession is the bailee. Larceny may be
committed by stealing the propertj^ from either. If,
from the nature of the bailment, each have equal right
or control of the property, it will be necessary for the
accused to show the consent of one or the other in order
to set up consent to take the property as a defense.^^ If
one has the possession, and the other has the title, and
the control remains in the person having the possession,
then his consent is sufficient to negative a felonious in-
tent. Thus, the ownership of a check is sufficiently laid
in a person, whom it is proven had it in liis possession,
control and custody. ^^ So, where the ownership and pos-
session, at the time of tlio larceny, are alleged to be in
the owner, and the evidence shows that the actual care,
colli i(»l ;iii(] iiiaiiagemeiil of the i)r()perty is in ;i l)ailee,

24— People v. McUratli, J7 Thc Wert ham v. State, 5(3 'I'ux. App. 253,

IIG; People V. Loomis, 4 Denio 909; 120 S. W. 4:{9, 14 Ann. Cas. 134.
Htato V. .JaMK-H, 52 N. H. f)7; Vaiiulit 25— IIouHe v. State, 19 Tex. App.

V. .StaU-, 135 Wis. 6, 114 Nev. 51H, 227.

128 A. S. ]{. 1008, 32 L. T?. A. (N. 26— State v. Ilislidp, \ S. K. 357,

8.) 234. Note 88 A. S. |{. 5HC.. 98 N. C. 773.

Larceny 541

it is fatal variance.^'' One cannot commit larceny of his
own property, the possession being in himself.^* Where
the management or control is in that of another person,
the owner may be guilty of larceny if he takes and car-
ries away the property animus furancli, because he has
no right to take the possession from his bailee.^ Thus,
a mortgagor, the possession of the mortgaged property
being in the mortgagee, has no right to the property,
and to take and cany the same away, without the con-
sent of the mortgagee, is larceny.^** So, one may com-
mit larceny of the property in which he has an interest,
his co-owner having possession. But, however, a crop-
per, it seems, is not guilty of larceny for converting crops
in which the owner of the land has an interest.^^ The
mere ownership of the land confers no right to the pos-
session, and a disposal of the crop by the tenant is not
larceny.^'^ But Avhere the land is leased for a share of
the crop raised, to be divided after gathering, the title
of the whole will be that of the tenant, until the division
and delivery.^' So, also, under a statute which creates
a lien on the crops raised on the landlord's land, but
declares the possession shall be deemed to be in the land-
lord, a tenant who converts a portion of the crop after
gathering was held to be guilty of larceny.^* In general,
one joint owner or joint tenant cannot be guilty of lar-
ceny of the goods of himself and co-tenant, or co-owner,
unless goods be taken from the possession of the bailee,
whose possession is exclusive.*^

27— Conner v. State, 6 S. W. 31— Bell v. State, 7 Tex. App. 25.

(Tex.) 138. 32— Robinson v. Kruse, 29 Ark.

28— People v. McKinloy, 9 Cal. 575.

250; Williams v. State, 6 S. W. 357. 33— Sargent v. Consier, 66 111. 245.

29— State v. McCoy, 17 N. C. 474; 34— Vai-ner v. Spencer, 72 N. C.

Rex V. Brandley, Euss & R. 478. 381.

30— People v. Long, 50 Midi. 249, 35— Spivey v. State, 26 Ala. 90;

15 N. W. 105; Braley v. Rose, 47 Long v. State, 27 Ala. 32.
la. 651.

542 Criminal, Law

§ 578. One with the bare possession of property is not
a bailee. One who has the bare possession or charge
of the personal property of another, is not for that rea-
son a bailee of the goods, within the meaning and appli-
cations of the law. Thus, a mere sen^ant, or employee,
who has the charge of the master's property is not a
bailee, and if he takes the property with the fraudulent
intent to convert it, is guilty of larceny.^^ As where a
person to whom certain rings were entrusted to sell for
cash or on instalment, or to return them in seven days,
and Avho is to have commissions on the sales, and who
sells part of the goods and uses the money to leave the
countiy, and ships the balance of the goods to the place
of his destination, it was held by the Minnesota court
to be proper to convict of larceny.^' In this case, how-
ever, it would appear that the circumstances would veiy
clearly create the relation of bailor and bailee, and it is
perhaps taking an extreme view of it to say that he was
guilty of larceny." But where I deliver goods to a
man, he has the possession of the goods, and he may have
an action of trespass if they are taken out of his pos-
session. But my butler, or cook, who is in my house, has
charge of my food and plate, has no possession of them,
nor has an action for the possession as the bailee has;
and to steal the plate, it is larceny, and so it is for a
food. So, if a liotolkee])('r sets a piece of plate before
a man to drink in it, and he cany it away, it is lar-
ceny; for it is no bailment, but a special use to a special
pui-poso. Tlic servant who keeps a key to his master's
i-oom is no l)ail('(', but lias only bare custody. And
where a person is employed to drive cattle, sells
them, it is larceny; for ho has the custody merely,
and not the right to possession, although the inten-

:<fi— Stjito V. DaviH, 03 N. C. ry56; 4 Cox C. C 221; U. S. v. Hlcw, 4

r!irv<-ll V. Htntf!, M Ark. 093; Ktjjfc Wash. 700.

V. Srhcin^'in, 20 Wis. 74; MnrciiH v. 37 — State v. Fislu>r (Minn.), 37

Wtate, 26 In<l. HM ; Rtx v. IlawkinH, N. W. 948, 38 Minn. 378.

Larceny 543

tion to convert them was not conceived until after they
were delivered to him. So, a carter going away with
his master's cart w^as held to be guilty of felony. If
A ask B, who is not his servant, to put a letter in the
post, telling him that it contains money, and B breaks
the seal and abstracts the money before he puts the let-
ter in the post, he is guilty of larceny. So, if a mas-
ter delivers property into the hands of a serv^ant for a
special purpose, as to leave it at the house of a friend,
or to get change, or deposit with a banker, the servant
is guilty of larceny for converting it to his own use, for
it still remains in the constructive possession of the
owner. So, where a lady asked the prisoner to secure
for her a railroad ticket and handed him the money to
pay for it, and instead of purchasing it, runs away
with it and converts it to his own use, it is larceny. So,
if a banker's clerk is sent to the bank vault to secure
money for a particular purpose, and he takes the oppor-
tunity to secure the same for his own use, or where a
merchant entrusts goods to his clerk to deliver to his
customer, and he appropriates them to his use, is
guilty of larceny. And if several persons play to-
gether at cards and deposit money for that purpose,
not parting with their property therein, and one
of them takes all the money from the custodian, he is
guilty of larceny. And if a bag of wheat is delivered
to a warehouse man, merely for safe keeping, and he
take all of it out of the bag and disposes of it, it is lar-
ceny. And where a banker's clerk took notes from the
till, under color of a check from a third person, which
check he obtained by making a fictitious balance in the
books in favor of the third person, it was larceny. A,
employed as a clerk in the daytime, not residing in the
house, takes a bill of exchange w^hich he received from
the owner in the course of business, with direction to
foi'\\^ard by post to a correspondent, and converts it to
his use, is guilty of larceny. So, where goods have

544 Criminal Law

not been reduced to the owner's possession, actually, yet
if he has intrusted them to another to be delivered to
his servant and they are delivered and the servant con-
verts them to his own use he may be guilty of larceny.^^
But w^here one loaned his horse to ride to a certain point,
and who after reaching the point of destination traded
the horse for an overcoat, the court of Texas held, that
since the accused had legal possession, free from fraud
in acquiring the possession, he was not guilty of lar-
ceny.^*

§ 579. Conversion of property after term of bailment.
At the common law, property coming into the hands
of a bailee, and converted by him after the term of
bailment was terminated, was guilty of larceny; or if
coming into possession of goods by contract (such as
common carriers and bailees for hire), and then broke
the original packages intrusted to their care and con-
trol, and converted any of it, were also guilty of larceny,
because, by the act of breaking the packages, the bail-
ment terminated, and they became wrongdoers, and their
original and lawful control and possession ceased.**
Generally, it may be said, that a baik^e having the pos-
session of the property of the bailor, docs anything
which lias the effect to tenninate the contract of bail-
ment, at that instant he ceases to have possession of
the bailor's goods in a legal sense, and if he convert them
to his use and benefit, he will be guilty of larceny."

38 — I. ("riiniiKil L:i\v Magazine, 40 — Com. v. nrown, 4 Mass. 580;

pages 562-3-4, ;iim1 .iiithorities cited. 2 Iviissoll on Crs. 155-156; IT. S. v.

39_Stoc"kly v. St:ite, 6 S. W. Blew. 4 Wash. 700; .State v. Fair-

(Texas) 5:}8. liarc cliar^e or ])os- daiigli, L'O f'onn. 47. 76 Am. Dec.

WHsion, no hailment, see Ilollirook v. 590; StJite v. IJiiniii, 1()4 N. C. 4 Hi,

State, 107 Ala. 1.54, 18 So. lOD, 54 79 S. E. 417, 47 L. U. A. (X. S.)

A. S. K. 65; Slate v. Fairdaugli, 852. See note to lliis last, also

29 f'onn. 47, 76 Am. Dec. 690; state lu.te 88 A. S. U. 57i;.

V. Hnnin, 164 N. C. 416, 79 S. 10. 1 1 -Starkie Ev., 448; lUi.ssell on

417, 17 I.. If. A. (N. S.) 852. Crs. 59; People v. Nidiolds, 17 X.

Larceny 545

There is quite a subtlety of reasoning in this doctrine
of the common law, but the real reason for the rule, or
rather the exception to the rule, was that the act on the
part of the bailee, of breaking the package, being an
act not authorized by the agreement of bailment, that
he became a trespasser, and thereby terminated the
bailment, yet, however, as concerns the rights of the
parties, considered as civil liability, it is not true that
the bailment ceases, for looking at it in the light of
the law it is a mere breach of contract for which the
bailor has his right of action for damages for the broken
contract, though he might maintain his action in replevin
for the possession of the property after the breach. If
the entire thing was taken, without the breaking of the
package, this itself was a termination of the contract,
but since the act of terminating the contract and the
conversion were simultaneous, or the same act produced
the two results, the conversion animus furandi, and the
termination of the bailment, it was regarded as no lar-
ceny, for to make it larceny it was necessary that the
bailment terminated before the conversion take place.

§ 580. Larceny of deceased person, laid in the adminis-
trator, executor, etc. The property of a deceased per-
son's estate is subject to larceny. The indictment may
lay the ownership in the executor or the admin-
istrator. In the case of a minor the ownership may
be laid in the name of the minor, if he appears to be of
full growth, and capable of attending to his own af-
fairs; this, however, is applicable to the larceny of the
personal apparel of the minor. If the clothes belong to
a minor of tender age, then ownership may be laid in
the father, if none, then in the mother, and if no mother,
then in the guardian.*^ But the general rule appears
to be, that if the property is other than the personal

Y. 114; State v. Fairclaugh, 27 42— Phillips v. State (Tenn.), 3

Conn. 47. S. W. 434.

C. L.— 35

546 Criminal Law

apparel of the minor, the ownership must be laid in the
guardian. So, also, the larceny of the grave clothes or
the shroud of a deceased person, the ownership may
be laid in the executor or the administrator, and in the
event of no executor and administrator, then in the
person who bore the expenses of the burial and last sick-
ness. A dead man's body is not capable of larceny for
the reason that there cannot exist the elements of prop-
erty in the body. It is true that there is a qualified
property in the body, as regards his immediate rela-
tives, sufficient to authorize them to recover the body
for the purpose of burial, but there is not such property
that would reach the person who might steal it animus
furandi, as in the case of stealing for the pui-pose of
dissection. Our statutes have laws against the desecra-
tion of the graves of the dead, and perhaps there are
some statutes which make it larceny for one to steal a
dead body of a person, where he does so for the pur-
pose of acquiring a profit from it. So, if the coffin of a
person prepared for burial is stolen, the ownership must
be laid in the name of the person who bore the expenses
of the burial.*^

§ 581. Rule as to one v/ho finds lost property. Lost
property is subject to be stolen, although it is not in the
actual possession of any person. So, where one finds
property, he is bound to make an elTort to liiid tlif owirm'.
Tliis, however, is not re([uired where there are no marks
or other evidences upon tlic thing itself indicating the
owner. The efToii to lind the owner ninst be an iion-
est one, and not ;i incic pretext or su))terfuge. So, if
tin- fiiKk'r liave or can aciiniic the name of the owner,
or any circumstance wliicli will lead to the ti"ue owner,
a conversion of the i)i'op('rty will constitntc larceny of
tlic goods.** 'I'lie statute of the several states perhaps

43— state v. I>!i])ko, (JS Mo. 208. S. E. 078; H.-iKikI.t v. Htiit.-, I;i.

44— Roberts v. State, 83 Ga. 369, 706; 29 N. W. 602.

Larceny

547

cover partially, the condition and the circumstances
under which larceny of lost property may be penal. If
the finder acquire the property, and at the time he have
no fraudulent intent to convert the property to his own
use, then it is not larceny, although he may afterward
convert it with a fraudulent intent.*^ There is some
conflict in the authorities, but the modem rule seems
to be that if the finder has no means of ascertaining the
name of the owner, at the time of finding the goods, then
there is no larceny if he converts the goods, and makes
no efi'ort to find the owner. Under the laws of Texas,
the finder must have a felonious intent to appropriate
the property to his own use and benefit at the time of
finding."*^ So, if the finder, at the time he found the goods,
did not know who owned them and there was nothing
upon them showing to whom they belonged, then the con-
version is not larceny.*'

§ 582. Allegation of ownership, when in a corporation.
Larceny of goods belonging to a corporation, the owner-
ship must be laid in the name of the corporation, and it
must also affirmatively appear that the corporation has
been duly incorporated.*^ As to this, however, there are
authorities to the effect that it is not necessary to allege

45— Baker v. State, 29 Ohio St.
184, 23 Am. Rep. 731, 2 Am. Cr.
Rep. 337; Wilson v. State, 20 Tex.
App. 662; Martenz v. State, 16 Tex.
App. 112; Allen v. State, 91 Ala.
19, 24 A. S. R. 856; Brewer v.
State, 93 Ark. 470, 125 S. W. 127,
20 Ann. Cas. 1378, 30 L. R. A. (N.
S.) 339; State v. Courtsol, 89 Conn.
564, 94 Atl. 973, L. R. A. 1915 A,
465; State v. Clifford, 14 Nev. 72,
33 Am. Rep. 526. See note 20 Ann.
Cas. 1378. See note 30 L. R. A. (N.
S.) 339.

46— Wilson v. State, 8 So. 665, 20

Tex. App. 662; Martcnoz v. State,
16 Tex. App. 112.

47— State v. Dean, 49 la. 150, 31
Am. Rep. 143; State v. Wiston, 9
Conn. 527; State v. Comvay, 18 Mo.
321; Hunt v. Com., 13 Gratt (Va.)
757, 70 Am. Dec. 443 ; People v. An-
derson, 14 Johns (N. Y.) 294.

48— Martin v. State, 5 S. W. 859;
State V. Mead, 27 Vt. 722; Coken v.
People, 5 Park Crim. R. 330; Wal-
lace V. People, 63 111. 45 L.; People
V. Swartz, 32 Cal. 160; White v.
State, 5 S. W. 857, 24 Tex. App. 233,
5 A. S. R. 880.

548 Criminal Law

the fact of incorporation, if the name is correctly set
out, and the proof shows a de facto existence of the com-
pany or corporation.^^ Although the authorities are
very conflicting, yet we are of the opinion that upon the
general principles of the criminal law, the accused
should be entitled to a strict construction of the law;
that he should be particularly informed as to the par-,
ticular crime he has committed, and as to whom he has
trespassed against. That it would be just to the defend-
ant, as well as a better practice, to require the allega-
tion of the legal incorporation of the company. It is
true that it might be somewhat inconvenient to the gov-
ernment to prove the incorporation, yet that being with-
in the power of the prosecution to do so, should be done.
In view of the great conflict of the authorities, touching
this question, no writer perhaps is justified in undertak-
ing to lay down a general rule, and the rule of the local
jurisdiction should govern as to its necessity.

§ 583. Acquiring the possession of property by trick,
fraud, etc. The taking and carrying away the property of
another with his consent, unless the consent is acquired
througli some pretext, subterfuge, or false representa-
tions, willi the intent at the time of acquiring the pos-
session to appropriate the ])roperty to the use and benefit
of tlic person taking, is not larceny.^" A trespass is

49 — State V. Grant, in S. E. 554, poiiil was raised in llic following

104 N. C. 908; State v. Shields, 89 cases, wlioiv it is licld that it was

Mo. 259, I. S. W. 247; Broatlnvait V. not noi-ossary to the sutlicicncv of

State, 45 N. W. (Neb.) 247, 28 Neh. an indictment that it slioukl allege

8.32. In the case of State v. Shields, cither that the owner of the prop-

I. S. \V. .'{.'iCi, the court says: "The crtv was a corjiorat ion, or ;is such,

H|icci(ic objection made to tlie in- it was capalde of owniiit,' iiroi)crt y. "

flictinent, is that it neitlier alleges People v. McClocky, 5 J'arker Crim.

that the Missouri Pacific K'aiiro.id |{. 57; Com. v. Williams, 2 Cush.

Co. was a corjioral ion, nor that as 58.3; State v. Scripture, 42 N. H.

such, it wa« capaide of owning prop- 485; State v. T?:ind, ;i8 N. H. 210.

erty. The jirccisc question presented 50 — licwer v. C«)ni., 15 S. & P.

has not as T am aw.-ire been passed !•:< ; K(dlogg v. State, 26 Ohio St.

njion by this court; Imt the identical 15; Pitts v. State, 5 Tex. A]ip. 122;

Larceny 549

one of the essential elements of larceny. The consent
of the owner, or the person who has the control of the
property, relieves the act of its larcenious nature. A
consent obtained by one from another to turn over to him
the possession of his property through fraud, subterfuge,
or device, is no consent in law, for no one is held to in-
tend that which he does, unless he has been fairly and
honestly dealt w^ith. So, if then no consent has been
given, it follows that the trespass has been committed;
and this brings us to consider under what circumstances
larceny will be committed, where the consent of the
owner has been gained by fraud, device or subterfuge.^^
The party making the pretext, fraud, device or subter-
fuge, must intend at the time animo furandi, to steal the
property, and with such intent may commit larceny only
where the owner intended to part with the possession
merely and not the title. By determining whether, in a
given case, the crime has been committed (where the
possession has been acquired by fraud, trick or device),
it is necessary only to determine whether the owner
intended to part with the title or the possession. If it
was the former, he is guilty of some other offense, and
if the latter, "larceny." ^^ An illustration of the larceny
may be found in the case where one hires a horse with
the intent at the time to convert it. Although this may
be doubted.^^ But where one, Lewis, pretended to have
a check for $500, on the faith of which he secured one,
0, to loan him $90, as follows: Loomis and Lewis threw
dice, Lewis losing. Then Lewis agreed to divide with 0,
but he declined to have anything to do with it. Then
Loomis put up what was called $100, and Lewis having

Loomis V. People, 67 N. Y. 322, 23 ler v. Com., 788 Ky. 15, 39 Am. Rep.

Am. Rep. 123. 194; People v. Rea, 66 Cal. 423, 56

51— State V. Edwards, 51 W. Va. Am. Rep. 102.

220, 41 S. E. 429, 59 L. R. A. 465; 53— Semples Case, I. Leach C. L.

Stakey v. Com., 7 Leigh. 757. 420; State v. Edward, note 52 supra.

52 — State v. Edwards, supra; Mil-

550 Criminal Law

ten dollars, applied to for a loan of $90 more, saying:
*'I am sure to beat him again and you can have your
money back. If I do lose, I have the check for $500, and
we will go to the bank and have the check cashed, and you
can have the money." let him have the money, the
dice were thrown, and Loomis won. Lewis wanted to
let him have $100 more, but he refused, and Lewis put
up the check against the money of Loomis and then lost,
and then declared that he had nothing to pay with. He
and Loomis went away with the money of O, the court
held that O did not part with the title of the money,
and that it was larceny." So, again, where the prosecu-
tor being intoxicated, was enticed into a room where a
game of "faro" was being played by the conspirators.
The game being known as a "brace" game, and was so
conducted that conspirators always won, and it was
impossible for others to win. And the prosecutor gave
the confederate of the conspirator ten dollars to bet at
three different times, always losing. The court held
"that when the money was given to the confederate to
bet, it ought not to be assumed that the prosecutor meant
more than it should be hazarded on the game, and to
part with his property* if it was lost. But if by consent
of the conspirators they knew that the money would bo
lost, they were guilty, precisely, as if they had taken
the money and divided it between them." " Tims, again,
A, is the bailee of B, (\ representing himself 1<> A, that
he is B, and demands llic possession of the goods, and A
yields the i)()Ssession, believing that C is B, and then C
converts the goods, it is larceny. 11 would be "false
])retenses," however, if A, being the owner of the goods,
intended to i)ait with 1li«' title as well as the i)ossession
to (\ believing him 1o he 11"" The books are full of re-

54 — Edwards CaHc, supra; Miller v. i.awk-HS, Ki:'. Mass. 42;"); Williaiiis

V. Com., Bupra. v. Slate, 4!t I ml. 'M]7; Slarlcy v.

r)4b— State V. nrown, 2r) In. r)()l ; State, G (Tex.) 588; lieskeii v.

Com. V. Collins, ll" Allen IKl ; ("oin. State, IM Tex. A). p. 'J7.") ; Hrown v.

Larceny 551

ported cases, giving examples of the doctrines of the
text, and because of this we do not cumber these
pages with further illustrations, suffice it to say
that the question is one exclusively for the jury to de-
termine, whether under the circumstances the accused
intended feloniously to get the possession of the prop-
erty for the purpose of converting it to his own use and
benefit, and whether under the circumstances the owner
intended to part with the title.

§ 584 — Larceny where the property is delivered for a
special purpose. Still another doctrine of the law of lar-
ceny is, that if the property is delivered by the owner
to another for a special purpose, although the relation
of master and servant does not exist between them, the
conversion of the property subsequently, whether the
intention existed at the time of the deliveiy to convert
the same animo furandi, or not, is larceny; for in this
case he is the mere custodian and not the bailee of the
owner." But in the case where A hires his horse to B
to ride to a certain point and to be returned, and after
the termination of the contract of bailment B converts
the horse to his use, it is larceny. This is, however, a
much disputed question, for there is a gTeat conflict in
the authorities along this line, and the most that can be
said is that the rule of the local courts perhaps is the
rule to be guided by. The courts of Texas hold that if
the accused came into the possession of the property
without any intention at the time of converting the prop-
erty, a subsequent conversion of it did not constitute
larceny. A contraiy view is maintained in some of the

state, 9 Tex. App. 81; State v. State v. Stone, 68 Mo. 101; People
Coombs, 55 Me. 477; Norton v. v. Moore, 37 Hun (N. Y.), 84; Dig-
State, 4 Mo. 461; State v. Unity, 88 nowitty v. State, 17 Tex. App. 521,
S. W. Eep. 12. 67 Am. Dec. 670. See also Morton
55— Smith v. People, 53 N. Y. v. Gloster, 46 Me. 520; Com. v.
Ill, 13 Am. Eep. 474; Miller v. Whit«, 11 Cush. 483.
Com., 78 Ky. 16, 39 Am. Eep. 194;

552

Criminal Law

other states, to the effect that it is not essential to the
crime under such circumstances that the intent to con-
vert the property exist at the time of the securing the
possession, but that it is enough if the intent existed at
the time of the conversion.^^ We speak here particularly
of a lawful possession, as distinguished from a posses-
sion gained by some fraud or subterfuge. But where
the mere possession of the property is acquired through
deceit, trick or fraud, with no intention at the time of
acquiring the possession, to steal the property, and after-
wards an intention is conceived to steal it, a conversion
of it under such condition of fact is larceny; for the
original transaction is tainted with fraud, is in effect no
consent in a legal sense. This doctrine is sound in prin-
ciple as well as in justice, although the authority to sup-
port it is confined to a few cases."

§585. Wife's possession. At connnon hiw the wife
was for all intents and puiposes the servant of the hus-
band, and her possession of his property was a qualified
possession, being in the nature of a mere custodian. She
had no right to give the possession of the goods to an-
other. It appears to have been the rule at the com-
mon law, that the consent of the wife could not be pleaded
by the accused, especially where the wife had delivered
her husband's goods to her paramore." In some of the

56— Boatty v. State, 61 Miss. 18;
Ellis V. Poople, 21 How. 356; State
V. iiuiiiphery, 32 (t. 5fiS), 78 Am.
Dec. 605.

57— Wilson v. State, 96 Ark. 148,
131 S. W. 336 Ann. Cas. 1912 B, 339,
41 L. K. A. (N. S.) 549. See notes
to Am. Cas. an*! L. H. A. In tliis
case at bar the ])riHoner obtained tlic
pOHsession of the property by fr;iinl.
This ncKatives the idea of contrael,
or that the poB-session of the prisoner
was a lawful one, when he sold the

horse. He was not the bailee of the
owner, but was a wronj^ doer from
the bi'f^inninfi;; and the owner had a
riffht to reelaini his ]ini|Mity ;i1 any
time. 11 liMs been dcciilcil tliiit wlicii
a person hires ;i horse Id ;;(> to :i
ceitaiii plaee, and f^oes lu'vond lliat
pl;icc, that snbse<pient aet is tortu-
ous. S. V. Coomes, 55 Mc
Am. Dec. 610.

58 — People v. Seliuylx r,
572.

177, 92

(i Cow.

Larceny 553

states where the common law is in force, this is no doubt
the rule, but generally, it may be said that the statutes
of the several states have changed the rule, and the
wife's consent may be a good defense, for it is not any
longer recognized as sound principle that the wife is the
servant of the husband; and conceding that the property
of the household is that of the husband yet, she is the
bailee of the goods, and her consent will be the consent
sufficient to relieve the act of its larceneous nature. So,
at the common law the wife could not steal the property
of the husband, for the reason that, the wife and the hus-
band were considered and taken to be but one person, in
law. Though, if the wife entered into a conspiracy with
other persons, and take the property of the husband,
animo furandi, the other conspirators were guilty of lar-
ceny though the wife would not be. But where one
merely aids the wife in securing the goods and trans-
ferring them from the husband's house, not being on
terms of criminal intimacy with the wife, he could not
be convicted for the larceny, for the wife's possession is
that of the husband's (or merely the custodian of the
property), could not legally give possession to another
person, but when she forfeited her place as a conjugal
partner, by living in adultery, a deliveiy of the husband's
property to her paramore was considered a trespass, and
he thereby became guilty of larceny.^^ Although, where
the wife takes the property to her paramore 's quarters,
and place them in his room, it is said not to be larceny
in the paramore.^" It is pertinent to say in this connec-
tion, that, no general rule can be given that will have uni-
versal and uniform application to the laws of the several
states, for by reason of the statutes of several of the
states married women are given property rights, and

59— state v. Parker, 26 Ala. L. J. 46, 13 Am. St. Rep. 96, 22 P. 67;

423. People v. Miller, 169 N. Y. 339, 62

60— Coomes v. State, 17 Tex. App. N. E. 418, 88 Am. St. Rep. r)46.

258. See People v. Swalen, 80 Cal. note 597.

554 Criminal Law

marital rights not accorded her by the laws of our an-
cestors. The rules of the local courts will perhaps be
the best guide to the law in this respect. So, in a Texas
case where the prisoner's defense was that he had ob-
tained the consent of the wife to take the property, and
where the particular property was claimed to be the
property of the wife, the court held, ' ' that although the
cow may have been the separate property of the wife, he
(the husband) had the sole management of the same
during the marriage and, prima facie, the wife could not
legally consent to the taking of the cow, without being
joined in such consent by her husband. ' '

§ 586. Larceny of property involves two questions of
possession. This crime involves two questions of pos-
session. In a general sense, it is the same in both in-
stances, yet there is a quality of difference, which is
noticeable and requires special mention. In the first in-
stance the property may be in the actual or constructive
possession of the true owner, or the bailee or special
owner. As where the goods have been lost; or where the
goods have been forgotten; or where it is in the possession
of a servant; or where the goods have been placed in the
mere care, or custody for a special purpose, of another
person; as wliere one gives a bill of money to another to
change, or wliore the goods have been placed in the care
of a common cmrier; or where llu' innkeeper places his
phite Ix'fore his guests; or cattle is delivered to a driver to
])la('(' in j)ns1ur('; or the possession of the wife of the lius-
hand's goods; or Uie cleik ol' his master's goods; and
many otlier like instances, the aelnal ])()ssessi()n is not
cither in tlie owner or Uie special owner, but by con-
st lucl ion of hiw is said to l)e in them, and the taking
the property by any othei- person I'loni Iheif actnal pos-
session, withont tlu' consent of the trne or special
ownei- will be hnceiiy. So, again, stock upon the
range, in the aceustoiiii'd jthMce of feeding is in tlic

Larceny 555

constructive possession of the owner or bailee and the
taking the same therefrom is larceny. But in the second
instance the possession of the goods must be taken into
the actual manual grasp of the accused, or of his confed-
erate, and actually carried away — there must be a lease
on — a breaking of the possession of the owner or bailee,
and the property come under his actual control, as against
the owner. There are apparent exceptions to this rule
but uijon close analysis they disappear. As where a child
or some innocent agency is induced to take the posses-
sion of the goods for the thief, or where stock upon the
range is pointed out to another and the property is deliv-
ered to him by the thief, in any event the continuity of
the owner's possession must be broken by an affirmative
act which changes the actual possession to the taker.^^

OF THE INTENT

§587. Where one has the right and the title to the
property, etc. A fraudulent taking is a wrongful taking
— a taking without any legal right. Where a person has
any legal right to the possession or the title to property
iiot inconsistent with the right to the possession in some
other person, the taking is not a fraudulent taking, in
the sense of taking animo furando, and is not larceny.
The possession of another's personal property, acquired
through any subterfuge, false representations, trick or
device, and it being the intention of the person so acquir-
ing possession, to thereby obtain the opportunity of con-
verting the property to his own use and benefit, is guilty
of larceny if he convert the property.^^ But if the owner
is induced to part with the title and the possession of the
property, and the same is afterwards converted, it is

61— Thompson v. State, 94 Ala. 101, 14 S. W. 390, 25 A. S. E. 717;

535, 10 So. 520, 33 A. S. R. 145, and State v. Chambers, 22 W. Va. 770,

note; Adams v. Com., 153 Ky. 88, 46 Am. Rep. 550.

154 S. W. 381, 44 L. R. A. (N. S.) 62— Williams v. State, 11 S. W.

637 J Harris v. State, 29 Tex. App. 680; State v. Johnson, 12 S. W. 500;

odd

Criminal Law

"False Pretenses." But if the owner intended to part
with the possession of the property temporarily, this is
larceny.®^ There must be a felonious intent, to take and
appropriate the property or the value thereof, to the use
and benefit of the person taking, or for the use and benefit
of some other person, though such other person may not
know that it has been taken for his use.^* The fraudulent
taking must exist at the time of the taking.^* If the
property is taken from the owner, under such circum-
stances as reasonably indicates that the taking was non-
felonious, although there may have been the necessaiw
trespass, there is no larceny. As where the property is
taken by mistake ; where tlie taken is in the open, in view
of the owner, in full daylight ; where it is taken under the
honest belief that it belongs to the taker; where the
same is taken in cases of public necessity, as in the case
of emergency or danger to the public.

Johns V. State, 7 Cal. 460. "The
judgment of the lower court is re-
verscfl, and sent back for new trial ;
in which trial, if any instruction be
moved for as the evidence may re-
quire, the court is directed to in-
struct the jury, that if tliey find
from the evidence, that the prisoner
witli a felonious intent obtained
the possession of the \vatcli l)y false
and fraudulent pretenses and after-
ward carried away Ihe same, without
the consent of tlic owner, or clerk,
the prisoner is puilty of theft."
Blunt V. Com., 4 Leigli. (i8i).

63—4 So. (Ala.) 69; 8 8. W. 47;
13 A. (Pa.) 422; 7 S. E. 489-90; 40
N. W. Ta. 107. "Fraudulent taking
of property embraces the idea tliat
the party taking, knows at the
time, that it is not his own, and that
to take it with the intent, af tlie
time to de[irive the owner of if, and
to appropriate it, to liis own use."
IIouHc V. Stale, H» Tex. Aj»p. L'li7.

64— State v. Slengerland, 19 Nev.
135; Reopas v. State, 8 Tex. App.
49. "To constitute theft, there
must be not only the fraudulent tak-
ing, liut also the intent to appro-
))riati' tlie iiroperty to the taker's
use and lienefit, tiiougli it was taken
with the intent to destroy it, not
only to prevent his detection, or else
to repayment of its value to K — . "
Dignowitty 's case, 17 Tex. App. 530;
.ludge Wheeler says: "To constitute
the felonious intent, it is not nec-
essary th;it the taking l)e done lucri
cmusd ; taking with intent of de-
stroying the ])roperty will be suf-
ficient to coiisl itiite tlie ofl'cnse, if
done to serve tht> olTender or another
jx-rson, though not in a pecuniary
way." Stegall v. State, 32 Tex.
Ajip. 10.

(•).')— Hambo V. State, 28 Tex. App.
33; Hcrnandes v. State, 20 Tex. A]»ii.
ir.l; Taylor v. Slate, 25 Tex. Ajip.
H7; Hrooka v. St^ite, 2(i Tex. A].]..

Larceny 557

§ 588. Property need not be taken lucri causa. It is not

requisite to larceny, that the j)roperty be taken lucri
causa — that is, with an intent to acquire a pecuniaiy in-
terest in the property. "Taking- with the intent of de-
stroying will be sufficient to constitute the offense if done
with the purpose of serving the offender or another,
though not in a pecuniary way.^^ There is a line of au-
thority holding that the intent must be to acquire the
property for the benefit of the offender. The better and
more modern doctrine is, that there may be larceny where
the offender intends wholely to deprive the owner of the
property; as where the defendant secretly took the mule
of B and carried it to a secluded place and killed it; there
being ill-feeling between the defendant and the owner,
and the evidence showing that it was done with no intent
of gain, the court held that it was larceny.®' The defend-
ant may be actuated by three different motives. (1)
Where he takes it for the purpose of deriving a pecuniary
benefit to himself. (2) Where he takes it for the purpose
of serving the interest of another person. (3) Where
he takes it for the purpose of wholely depriving the-
owner of the property or its use.®' Where one hires a
horse for a temporary purpose, when in fact he resorts
to that for the purpose of converting the property, the
conversion is complete when he puts it to some use for
his benefit, whether he sells it or not. The fact that he
ignores the right of the owner in the property is suffi-
cient to his conviction. His intention is shown by the

184; People v. Eeynolds, 2 Mich. 67— Warden v. State, 60 Miss.

422; Blunt v. Com., 4 Leigh. 680; 638, 57 Am. Dee. 274; Vaugn v.

Bailey v. State, 58 Ala. 414; Mur- Com., 10 Gratt (Va.) 758; Diek v.

phey V. ? ? ,63 Ind. 223 ; Starck Steele, 64 Miss. 77, 60 Am. Rep. 46 ;

V. State, 30 Am. Rep. 214; State v. Slegall v. Steele, 40 Am. St. Rep.

Wood, 46 la. 116; State v. Cliford, 761.

14 Nev. 72, 33 Am. Rep. 526; see 68— Davis v. State, 10 Lea

57 Am. Dec. 275. (Tenn.) 707.

66— Digno'i\-itty v. State, 17 Tex.
App., 67 Am. Dec. 670.

558 Criminal Law

fact that ho has resorted to the fraud and it has the
effect of vitiating the whole transaction from its begin-
ning.^^

§ 589. No repentance is a defence to larceny. AVhere
one has committed the trespass, accompanied with the
necessaiy criminal intent, no subsequent repentance and
restoring of the property will relieve the act of its crim-
inal nature."^" This, however, is dependent upon the cir-
cumstances in determining whether the intent really ex-
isted at the time of the taking of the property. As where
the taker believes honestly that he has an interest in the
property, or where he is mistaken, or where the taking
is for the purpose of protecting and caring for the prop-
erty, or where it is taken for the good of the public; '^ in
short, under any and all circumstances which reasonably
show that the taker did not intend to deprive the owner
of the same. Usually the intent is a question of fact to
be gathered by the jury from the facts proven, but this
is not always true, since upon the proof of the existence
of certain facts the inference as a matter of law may be
drawn, as in the case of the one who gains the consent of
the owner and the possession of liis property through
some fraudulent pretense with the intent to deprive the
owner of it. The inference that he intended to convert
the property is not dependent upon the rnrtlicr fact that
he sold or otherwise disposed of the ])ro))erly.''' As to
this there is a contrariety of opinion, however.

§ 590. Rule in estimating the value of the property,
in estimating IIh' vahic of tlic goods alleged 1o he stok'n,

(jy—State v. 11uiiii)1rtv, :'>'J. \'t. \hx. :ii'>!>; I'liclps v. I'lopli^, ."..") 111.

569, 78 Am. Dec. GO.'S; for :i con :^'M ; \U'\A<s v. St;ilf, l.') '!\>x. 650.

trary view, see Fcltor v. Htate, c-ilnl 72— State v. lliiDii.hrcy, 32 Vt.

by the aJ.ove caHe, 9 Vcrj;. 39H. 5C.9, 78 Am. Dec. (iOC); hoo I.ew.T v.

7(1 — Coin. V. Ma.HOii, 105 Ma.s.s. ("oiii., 15 Scr^. ^: If- !'.'5 ; St.itc v.

16.3; Com. v. Toney, 97 Mass. 5M. Ilol a, 57 Am. \)r>\ 1271, ;mi(! iioto

71 -Hoc 8t.'itc V. llolnirH, 57 Am. tlicrrto.

Larceny 559

the rules of the law of civil matters are to be followed.
At the common law it was necessary to allege the value
of the thing stolen for the purpose of showing whether
the crime was a grand or a petit larceny. Where the
thing has a market value it is sufficient to prove that
value. '''^ Where the thing has a special value such as the
stenographic report of the testimony of a witness, it is to
be shown in what particular it is valuable to the owner.'*
As a general rule it must be shown that the property was
taken for the purpose of acquiring the property for pecu-
niary gain, but not always so, as we have explained in a
preceding section. It may be for the benefit of the prin-
cipal actor, or for some other person, although not a party
to the theft. In many instances under the statutes for the
larceny of particular property, the value is immaterial,
for the reason that the crime is constituted by the larceny
of that thing regardless of the value; such as the larceny
of horses, cattle, sheep, hogs, etc. Or where the statutes
makes it a crime to steal property from a particular place,
such as a dwelling house, or from the person. Proof that
the thing designated by the law has been stolen is suffi-
cient, or where the crime is for stealing goods from a
house or from the person, proof that any article has so
been stolen, is enough.'''^ The value of notes, bonds, mort-
gages, and other commercial paper, must be alleged to be
of a particular value. Bank notes, and other paper of a
recognized and established value, may be alleged to be of
the value shown upon their face. Money and coin may
be alleged to be of the value represented by the face of
the bill or coin.

73— state v. Haggard, 160 Mo. 75— Show v. State, 5 S. W. 317;

469, 61 S. W. 184, 83 Am. St. Eep. see 28 Tex. App. 493, 13 S. W. 784 ;

484; Burrows v. State, 137 Ind. 474, Territory v. Pendey, 22 Pac. (Mont.)

45 Am. St. Eep. 210; Printz v. Peo- 760; State v. Carter, 5 S. W. 906;

pie, 42 Mich. 144, 36 Am. St. Eep. State v. Eiloy (Mo.), 13 S. W. 1036;

437, 3 N. W. 306. Lopez v. State, 20 Tex. App. 780;

74 — Jones v. State, 44 N. W. State v. Daniels, 118 111. 301 ; Adams

(Neb.) 436. v. State, 60 Ala. 52.

560 Ckiminal Law

§ 591. Rule as to minors and deceased persons. Where
a woman, though a minor, is the occupant of a room, and
her clothing is stolen, the indictment charging ownership
in her is proper. Where the shroud and the coffin of a
dead person is stolen, it is proper to allege o^vnership in
the person who furnishes them."'^ Larceny from a cor-
poration, it is as a general rule proper to allege the cor-
porate name, and that it was duly incorporated, and that
ownership is in it.'' Li other larceny the name of the
owner must be alleged and where the possession is in a
special owner then the allegation that it was taken from
him. Thus an allegation of possession and ownership in S is
not sustained where the evidence shows that S was the
owner, though the cattle were running in a range, other
than that of his residence, and near the residence of B,
and that they had been under B's control and management
for about four years. It is sufficient to lay the ownership
in the bailee, and where the bailment extends to the
actual care, control and management, this is suffi-
cient ownership and possession to constitute larceny
where the property is taken w^ithout his consent.''
Where the indictment lays the ownership and
possession in one and the same person, but the proof
shows the ownership to be as alleged, and the possession
wholly in another, who had the control and management
of the property this is a variance fatal to the indictment.
But where the indictment alleges the ownersliij) and pos-
session in one person, i)r()(it' of joint ownership and i)OS-
session with another will sustain the allegations as laid.'®
Ownership nuist be made in the name of a c(ninty, town-
ship, or municipal corporation, where the property is of
such communal nature.'® The agents or officers are not

7r> -state V. Doppko, GH Mo. 208. State v. Parncll, 9 K. E. 627, 10.1

Supra 8 .'380. N. V. 424; Williams v. State, 5 S. W.

77_Hmitli V. State, 28 Ind. :i21; 12U; WiUiimis v. State, S. W. .1.')7.
State V. ShirldH, 89 Mo. 2.'59; .see 70— Smith v. State, 6 S. W. 40.

State V. .JeiikinH, 78 N. C. 478. 80— Stat«- v. ncnrh, CM Mo. 78;

78_Htatr V. Allrn, 9 S. E. 62rt ; StHte v. Morg.an, (lit S. W. 970.

Larger: y 561

bailee, or special owners, and the property cannot be laid
in tliem.^^ Where the property is owned by persons
jointly or as partners it is a sufficient allegation to lay
the ow^nership in the persons or in the firm nanie.^^

§ 592. As to the question of consent, to the taking, etc.
It is a necessary allegation that the property was taken
without the consent of the owner. Where the property
is taken with the legal consent of the owner there is no
trespass, and there is no crime, except where the owner
gives the consent through some misapprehension, mis-
take, or some fraud, which as we have endeavored to
show in a previous connection, is no consent in law, al-
though it is in fact. So, where the allegation is that the
property belongs to several different parties, as joint
owners, proof of the consent of one is not siifficient to
warrant an acquittal, unless under the circumstances of
the particular case the one giving the consent had the
right to do so. So, the converse of the proposition is
true. If the proof shows the taking to be without the
consent of one only, this is not sufficient, but it must go
farther and show the want of consent of all.^^ Yet this
might not always be literally true, as where the true
owner of the goods is a minor of tender age, or of a non-
compos mentis or lunatic, without a legal guardian, the
property in the possession and under the care and control
of another person, the want of the consent of these in-
competents or the failure to show that they had not con-
sented to the taking would not authorize an acquittal.^

81— state V. Jenkins, 78 N. C. App. 619; Williams v. State, 19 Tex.

478; People v. Bennett, 37 N. Y. App. 270; Williamson v. State, 13

117, Tex. App. 574; Com. v. Smith, 116

82 — Com. V. O 'Brian, 12 (Mass.) Mass. 40.

Allen 183; Westby v. State, 73 84— Stewart v. People, 64 Am.

S. W. 960 (Tex.); Porter v. Com., St. Rep. 133, 172 111. 464; see au-

61 S. W. 16, 22 Ky. Rep. 657. thorities cited in note.

83— Williams v. State, 23 Tex.

C. L.— 36

562 Criminal Law

§ 593. Entrapping the thief. Just how far and to what
extent the owner may go in entrapping and inveigling
another he suspects of stealing his property in aiding
and assisting him in the act, is not very well settled. It
is one of the cardinal principles in the crime of larceny
that consent of the owner to the taking of his property
is a valid defense. It should not be so broadly stated,
for the opposite of this is true. The prosecution is re-
quired to allege and to prove that there was not consent
of the owners. Therefore any state of case which shows a
consent to the taking is not larceny. It is also a well
settled principle of the law that where one is suspected
of intending crime — that of larceny or burglary and
some others, it is permissible to resort to the aid of de-
coys, and other means for the purpose of entrapping in
the act. It seems that the weight of the authorities es-
tablishes file rule, that if the owner of the property does
nothing to contribute to the original design of the thief,
but does create or contribute to the creation of the oppor-
tunity for the larceny of the property or in any other
way provide for the detection of the thief, and all the
essential acts and constituents of the crime is committed
by the suspect, then this is not consent by the owner.^**
Differently stated — the owner of the property may stand
by and watch or hiy tlie tra]) for the thief, but lie must
not contribute t<» the forming of his intent to take the
goods, and all the overt acts necessary to constitute the
crime must be committed liy the accused. So, also, ''where
each of tlic oxcrt acts going to make up the crime are
personallv done l>y tlic (ict'ciKlant, and with criminal
intent, iiis guilt is complete, no matter what motive may
prompt, oi- what acts done l)y the l)arty who is with
liim, and appaicnt ly assisting him." Counsel have cited

Rf)— Viiincr V. State, 72 CJji. 74."); lliis chhc, K emit v. St.-ile, 11 lliimiili.

Alexander v. State, 12 Tex. Tttd; :V2i)\ Coiiiior v. People, IS ("olo. :i7.3.

People V. llanHeliiian, 7(5 Cal. W.o, <t :u] Am. St. \U]>. U'.t").
Am. 8t. H»'p. 2.38; 8ce caHes cite<l in

Larceny 563

and commented upon several cases upon which detectives
figured, and which defendants were adjudged guiltless
of the crimes charged. But this feature distinguishes
them, that some act essential to the crime charged was
in fact done by the detective, and not by the defendant;
and this act not being imputable to the defendant, the
latter 's guilt was not made out. The intent and
the act must combine; and all the elements of the
act must exist, and be imputable to the defendant.'^
This manner of apprehending those who would engage in
a criminal enterprise is veiy strongly condemned by
many of our judges, and only pennitted and endorsed
by others upon the broad ground of the necessity of the
case. The rule is no doubt well established, and allowed
within the limitation here given.®'''

§ 594. Of the attempt. One failing in his effort to com-
mit the crime of larceny may be convicted of the crime
of attempt. Thus the taking the personal property of
another, with a fraudulent intent to deprive him of the
goods is the gravimen of the crime of larceny. If, in try-
ing to effect the larceny by taking the goods into his
possession, the accused is thwarted in his effort, which
but for the obstruction the larceny w^ould have been com-
pleted, he is guilty of the attempt. Thus as where one
runs his hand into the pocket of another for the purpose
of taking his money therefrom, and finds nothing; or
who is scared away; or is beat off by the owner; or makes
a burglarious entry in a house for the purpose of steal-
ing and find that he cannot steal, because he cannot get
the safe open, where the money is concealed.^® To con-
stitute the completed larceny it is necessary that the

86 — State V. Jansen, 22 Kans. 498. 80 Fed. Eep. 513; Stale v. Jansen,

Opinion by Justice Brewer. State v. 22 Kansas 498 ; Love v. People, 160

Hayes, 105 Mo. 76, 24 Am. St. Eep. 111. 508.
360. 88— People v. IMoran, 123 X. Y.

87— State v. Hull, 33 Or. 56, 72 254, 25 N. E. 412; MeDormott v.

Am. St. Eep. 694; U. S. v. Jones, People, 5 Park Cr. 104; McSay v.

564 Cbiminal Law

goods come into the actual manual control of the thief;
and any attempt to commit this crime which falls short
of the actual control of the goods coupled with the in-
tent, will make the attempt. Attempt to rob consists in
the taking the property from the person, with the intent
to deprive the owner of the same, but which fails of com-
pletion for some intervening cause. This offense is known
in the books as an assault to rob. The distinction be-
tween this crime and the common larceny, is that in the
former the property is taken from the person, and of
course combines in the act the elements of an assault — the
force applied to the person, and the taking; and in the
latter combines in the act the trespass, and the taking.*'

§ 595. Substantive offense of receivers. The offense
of receiving presupposes a principle. At the common
law it was known as a compounding of larceny, and ap-
pears to have been a misdemeanor. It is a substantive
and independent offense, but accessorial in its nature,
and corresponds to accessory after the fact to the prin-
cipal crime. At the common law it was not regarded,
though, as an accessory after the fact. This offense
however was something more than an accessory and con-
sisted in the accepting the stolen property from the
principal in the crime, or any of his confederates, know-
ing tlie property to have been stolen with the intent
(1) to (IctVaud \hv owner of his i)roperty, (2) with the
intent to aid tlie felon to escape, and (3) where he in-
tends to receive a reward from the owner for the return
of the property.®®

People, fi I'jirk Cr. ]14; Com. v. l)e accoiiii)aiiied l)y a oriiiiiii:il intent
McDonald, r> CuhIi. :}G.'3; Clark v. to aid the thief, or reciiviiifj a re-
state, 80 Tenn. .'31 1. ward for restorinR the jiroperty to
89 — Archiholds <'r. Law 445. the owiut, or .•m intint in some dthcr
90 — "To conHtitute the offense of way to derive ]in)fit from the art.
reeeivin(j Htolen ]iroperty, knowing Tlifre mnst he K"''*y knowledge, a
the Hame to have been .slolm, tiic fr.nidiilcnt intriil, concurrent with
act of receiving or conccalinK, mnst the act." Arcin v. Htate, -(> 'i'ex.

Larceny 565

§ 596. Eng^lish Statutes. By statute of 4 W and j\[ c
9, and 5 Ann, c. 31, the receiver of stolen goods was
an accessory. By a later statute it was created into
a substantive offense, and the offender could be convicted
whether the principal had or not. This substantive of-
fense was a misdemeanor, and the statute left it at the
option of the government to proceed against the accused
for the misdemeanor, for the receiving, or defer the trial,
until after the trial and conviction of the felon, and then
proceed against him for the accessory, but in no instance
could he be convicted for more than one or other of the
offenses. The subject was again legislated upon by 7 and
8 George 4 C. 29. 24 and 25 Vict, enlarged and extended
the crime so as to include almost all kinds, of receiving of
stolen goods, knowing them to be stolen, which was a fel-
ony at the common law. In most of the states of the
Union accessories are regarded as substantive crimes; as
so are receivers of stolen goods, and the conviction for
these crimes are not dependent upon the conviction of the
principal felon. At the common law the crime of receiving
was limited to the receiving of goods that had been stolen
and not to the receiving of goods that had been embez-
zled. This perhaps was because there was no crime
known to the common law as embezzlement. Llany of the
states extend the crime to both stolen and embezzled
goods.®^

§ 597. The receiver need not have the actual manual
possession of property. The goods must be received to
complete the crime. It is not, however, necessary that
they come into the actual physical possession of the ac-

App. 205; Nourse v. State, 2 Tex. Also following: Shreidley v. State,

App. 304; Laurance v. State, 1 23 Ohio St. 130; Turner v. State,

Humph. 231; Harrell v. State, 5 40 Ala. 21; Jordan v. State, 56 Ga.

Humph. 69; Eice v. State, 3 Heisk. 92; Lowndge v. State, 6 Mo. 594:

226; Wright v. State, 5 Yerg. 154; Hatchett v. Com., 75 Va. 925; Ogdcn

4 Bla. Com. 133. v. State, 12 Wis. 532, 78 Am. Doe

91 — See statutes of the states. 754.

566 Criminal, Law

cused, it is enough that they come under his control.^^
Thus if they are delivered into the hands of an innocent
agent, for him, or into the possession of one under the
influence or his coercion, this is the receiving. But receiv-
ing the goods under such circumstances as will constitute
him a principal in the second degTee will not constitute
the otf ense. Any act that will make the accused an acces-
sory before the fact will not lapse, and thereby make the
offense of receiving upon any subsequent acts connected
with the stolen goods after they are stolen. The goods
must be received from the thief or from his confederate.
The receiving from a receiver is not sufficient to consti-
tute the crime. This is not understood to mean that there
cannot be more than one person principals in the receiv-
ing, for this as other crimes may be participated in by
more than one person. The receiving must also be after
the crime of larceny is completed. The gist of the offense
consists in the guilty knowledge of the accused. This
knowledge coupled with the intent to defraud the owner
of the property, concurrent with the receiving, will be
enough to make the crime. "If the property was received
or concealed with the pur])ose and intent of restoring it to
the owner witliout reward, or with any other innocent in-
tent, tlie mere knowledge that it was stolen would not
make the criminal act."^^ The question of the proof of
knowledge is to be proven by tlie circumstances, and such
other facts as will be of sufficient probative force to con
viiice the jury beyond a reasonable doubt that the accused
had sucli laiowlcdge.

§ 598. Receivers need not intend to acquire an inter-
est in the property. Auain, as to Ihe intent of the ac-
cuscfl, it iii;iy he said lo !)(• Ilu' deductions from the au-

02— Htnto V. TmiiiT, 1!» l.-i. Ill; lidf); Noiirso v. State, 'J Tux. App.
HvKwn V. Hill, 2 C & \i. 278. :^()4; hcc Kox. v. Wliitc, I. F. & I"\

!i:{- Arcid v. Kl.-itc, 2(i Tex. A]. p. fWif).

Larceny 567

thorities, that it is not necessary to the intent that the
accused intend to derive any benefit from the goods re-
ceived, personal to himself, yet with the necessary guilty
knowledge, he receive the property from the felon with
the intent to derive any personal benefit from it will be
enough, for it would deprive the owner of it and thereby
defraud him. The concealing of the goods, or holding
them for the reward w^ould also have the effect of de-
frauding the owner, as also would the aiding the thief to
escape by secreting the property. So, also, the property
must be received with the consent of the felon, for if taken
without the consent of such person or his agent or rep-
resentative, it may, according to the circumstances, be
theft in him. At the common law the mere possession
of knowledge of the fact that a person has committed
the crime of theft made him guilty of the misprision.'

§ 599. Stolen goods restored to owner. A statute was
created during the reign of George I which prohibited
the acceptance of stolen goods for the purpose of accept-
ing a reward from the owner for the return, or in leading
the owner to find his goods. The earliest statute creat-
ing this offense provided, that unless the person offering
to aid the owner to his stolen goods should cause the
thief to be apprehended and brought to trial, and also to
give evidence against him, should himself be guilty of a
felony.^^ This statute, 4 Geo. I, C, ii, perhaps is com-
mon law in this country, but the nature of the offense
is so closely allied to that of accessory before or after
the fact, that it would be indictable as such; or at least
indictable as a receiver of stolen goods.

94 — See following cases: State v. the mere knowledge that a crime

Guild, 149 Mo. 370, 73 Am. St. Eep. has been committed is indictable,

395; Castleberry v. State, 35 Tex. see note to Wright v. State, 26 Am,

App. 382, 60 Am. St. Eep. 53; Dec. 261.
Cooper V. State, 29 Tex. App. 8, 25 95—4 Blackstone 132.

Am. State Rep. 712 and note. That

568 Criminal Law

§ 600. English statutes. Receiving stolen goods, know-
ing them to be stolen, w^as by the ancient common law
a misdemeanor, and was a substantive and independent
offense. But at a later period of our judicial history,
3 and 4 W. & M., c. 9 and 5 Ann., c, 31, made the receiver
an accessory to the principal felon. But because the
common law accessory after the fact could not be con-
victed unless the principal had been convicted previous-
ly, by a subsequent statute the above statutes were re-
pealed, and the original provisions of the common law
were reenacted. This statute made this an independent
and substantive offense, and the receiver was punished
for his part in the theft of the property, whether the
principal offender was ever convicted or not.®^ The
offense did not depend upon the fact whether the theft
was grand or petit larceny.

§601. Theft-bote. This offense was defined at the
common law to be where, a person robbed of his
goods learns who stole them and with knowledge
agrees to receive the goods, or payment from the thief,
and withhold prosecution. This otfense is a com-
pounding of the larceny. Misprision and the com-
pounding of offenses, w^ere at common hiw an offense,
and consisted of withholding the knowledge from
the officers of the law that a felony had been committed.
Tlie compounding of tlio felony is, however, distin-
guished from that of misprision in this, that the com-
pounding consisted in Ihc owner, or tlie person against
whom the offense was committed, for a consideration of
some cliaracter, agreeing witli the felon not to prosecute
him."

or.- 4 Blafkstnno 1.^3; Foster .309; Dpere v. Wolf, fif) In. .'^2, 21

.37.3. N. W. 1G8; Ford v. Chitty, 52 111.

!•: t I'.ljickHtono 13.3; 4 HI:ick :!1.3.
Htonc 363; Htanley v. .JoncH, 7 l'>iii^'.

CHAPTER XXXII

LIBEL

§ 602. Definition.

§ 603. Justification.

§ 604. Tcmlency to bring on a
Ijreach of the peace.

§ 605. Libel per se, what is.

§ 606. What is indictable libel.

§ 607. Publication of the proceed-
ings of court.

§ 608. What matters are privileged,
in court proceedings.

§ 609. As to legislature.

§ 610. Communications between per-
sons in interest.

§611. IiKjuiries as to another's char-
acter.

§612. Keports of mercantile
agencies.

§ 613. Candidates for office.

§ 615. Public officers.

§ 616. Elements of the offense.

§ 617. What constitutes publication.

§ 618. Criminal slander.

§ 602. Definition. A libel is a malicious publication,
expressed either in printing or writing, or by signs, pic-
tures, effigies and the like, tending either to blacken the
memory of one dead, or the reputation of one alive, and
expose him to public hatred, contempt or ridicule.^ The

1— Com. V. Clap, 3 Am. Dec. 212,
4 Mass. 163, 3 Greenl. Ev. 164. Ac-
cording to Russell, and the authori-
ties to which he refers, the crime
of libel and indictable slander, is
committed by the publication of
writings blaspheming the Supreme
Being, or the doctrines of the Cliris-
tian Religion, into contempt and
ridicule; or tending by their immod-
esty, to corrupt the mind and destroy
the love of decency, morality and
good order; or wantonly to defame,
or indecorously to calumniate econ-
omy, order and the constitution of
things, Avhich make up the general
system of the laws and government
of the country; to degrade the ad-

ministration of the government or
of justice ; or to cause the animosi-
ties between our own and any for-
eign government, by personal abuse
of its sovereign, its ambassadors, or
other public ministers; and by ma-
licious defamation, expressed in
printing or writing, or by signs or
pictures, tending either to blacken
the memory of one who is dead, or
the reputation of one who is living,
and thereby expose him to public
hatred, contempt and ridicule. This
descriptive catalogue embraces all
the several species of this offense,
wliich are indictable at the common
law.

569

570 Ceiminal Law

person whose character is maligned, may have his suit
in the civil tribunals for damages — which may in a sense
compensate him for his wounded feelings and loss of
reputation. The public also has a right, which has been
violated for the following reasons: 1. Because such acts
are calculated, primarily, to bring on breaches of the
public peace, and disturbances of the good order of the
community. 2. Because such acts have a tendency to
corrupt public morals. 3. Because such acts may have
a tendency to hold the government in contem])t and be
tlierefore subversive of good order and quietude.^

§ 603. Justification. This offense, according to an
eminent judge, consists in the malice of tlie ])ublication,
or the intent to defame, the reputation of another. In
the definition of libel as an offense, it is not considered
or taken into account that the publication is false; be-
cause a person may maliciously publish the trutli against
another with the intent to defame his character, and the
publication even if it is time, the tendency of it is to
infhime the passions, and to excite revenge. The defend-
ant cannot justify himself for publishing a libel by merely
proving the trutli of the statements of the publication. If
the law permitted the truth of the words to be a justifica-
tion the effect would be a greater injury to the party li-
beled. Although the trntli of words is no justification in
a ciiiiiiiial i)i'osecution for libel, yet the defendant may

l: — TIr' Htiite takt's noti<-e of :i lilu-l liln'l iiniv eoiilniu inattiT in lU'roffa-

agaiiist a private individual, wlicrc lion of tlic Christian Kcdigion, or of

the hiiifjuafji' is a nicic di'tnnial inn llic pnldic morals. But as already

of himself, only because it tends to said, wlun tlic .•linr.ictcristics are

a lircrudi of the peace. The moment absent. Die j> round ol' the state's in-

thi' individual ceases to be an abso tcrt'erence is the tendency to cause a

hite private ])erson, other reasons ap Imm adi of the peace.- State v. ller-

ply, for if he is a member of the rick (Wis.),.'! Cr. Law IMa^., p. 177;

jiovernmcnf, or liiieli-il in conm-clion State v. llaskins, 101) la. (ir)!!, 80 N.

with the ailministrafion <.f juslier, \V. KKi.H, 77 A. W. H. rM), 47 L. H.

the CHHPncc of tiie (dT.nsc may lie A. L'L'M ; Com. v. Morris, 1 Va. Cas.

tlio confemiit of ko^"'"'"'"' . "'" "'"' '"". •' Am. Dec. r>ir).

Libel

571

repel the charge by proving that the publication was for a
justifiable purpose, and not malicious, nor with the intent
to defame.'

§ 604. Tendency to bring" on a breach of the peace.

Where the alleged libel is directed to a private individ-
ual, the gist of the offense consists in the tendency to
bring on a breach of the peace, and in these cases, or
in case the libel is alleged to be of and concerning a
person dead, no truth of the words are permitted as a
justification, because the tendency to a breach of the
peace is as great in the one case as in the other. And in
the case of the defamation of the dead, the tendency
would be greater than in the case of the living. The rule
has a different application, however, when the person
alleged to be libeled is a public officer connected with ad-
ministration of the govenmient, or is a candidate for
office.* The rule herein given is the rule of the com-
mon law, and of course in those jurisdictions where the
common law^ is the rule of action, this would be the
American rule. But many of the states by statute and
constitutional provisions allow the truth of an alleged
libel to be proven, in negativing malice. In some cases
there is authority for proving malice in fact, notwith-
standing the pul)lication is a privileged one. So, where
a privileged publication is made from malicious motives,
and for the sole purpose of injuring, a conviction will be
sustained.^

3— Com. V. Clap, 3 Am. Dec. 212,
4 Mass. 163, Parsons, Judge.

4r— Com. V. Clap, 3 Am. Dec. 212.

5—3 Greenl. Ev., Sec. 177, p. 151;
Com. V. Clap, supra, Parsons, J.,
says: "But the publication of a li-
bel maliciously by and with the in-
tent to defame, whether it be true
or not, is clearly an offense against
the law, on sound principles, which
must be adhered to so long as the

tendencies are to breaches of the
peace. If the language is action-
able, the publication is then pre-
sumed to be malicious, unless the
occasion rendered, prima facie priv-
ileged. If so, then the legal effect
of the privilege is to rebut the legal
inference of malice arising from the
Avords, and the burden of proN-ing
malice in fact or ex])ress malice, is
then uiioii the ]ihiintifV; and tliis is

572

Criminal Law

§ 605. Libel per se, what is. When the objectionable
language is written or printed and published, imput-
ing to another any act, the tendency of which is to dis-
grace him, or to deprive him of the confidence and the
good w411 of society, or to lessen its esteem for him, is
actionable per se, and a foundation for an indictment.^
Sometimes the matter itself is not the basis for a prose-
cution for libel, but comments made in reference thereto
completes the libel. As in the case of the publication of
the proceedings in courts of justice. Matters before the
courts for judicial determination, and the proceedings
therein may be published, if accurately and truthfully
done, and cannot be said to cast reflection upon the par-
ties thereto of which they have any right to com-
plain, but if comments thereon are published, together
with the report which casts insinuations or aspersions
upon a man's character, are indictable as libel.'' It seems,
however, that criticisms and opinions may be expressed
upon established facts. Attorneys at law may commit
this offense by setting out disgraceful and dishonorable
conduct in their pleadings, when such allegations are not
material, or are improper.^

§ 606. What is indictable libel. At common law the
general rule was, that every malicious publication which
was calculated to bring reproach ui)()n another, or to
discredit him in society, by charging him with dishonor-

not sliown \>y tlie mere falsity of tlie
liuhlication, in the absence of evi-
dence that the pul)lisher knew it to
be false." Stewart v. Hall, 83 Ky.

, .33 S. W. 420; adojited in the

case of Com. v. Smith, 33 S. W. 4'J(t;
Com. V. Duonc (Pa.) 1 liurncy, GOl,
2 Am. Dec. 497; Baxter v. State,
34 Tex. App. r,]r,, 31 S. W. 394, .IS
A. H. S. 72(1; Richmond v. State, .18
Tex. App. 43.'), 12G S. W. .'■)9G, 137
A. S. U. !»73.

6_Stat(' V. Sniiloy, 37 Ohio St.
30, 41 Am. Rv[K 4s7.

7 — Com. V. Blanding, 15 Am. Dec.

210, 3 rick. 304.

8— State V. Sheridan, 14 Id.aho
222, 93 P. GM, 15 L. K. A. (N. S.)
497; P.-ilmer v. Concord, 48 N. H.

211, 97 Am. Dec. 00.1; Sqviires v.
State, 39 Tex. App. 9f), 45 S. W.
147, 73 A. S. K. 904; State v. Brady,
44 Kan.s. 43.'), 21 A. S. R. 296;
Sf;itc V. i'.iirnliMni, 9 N. H. 34, 31

Libel 573

able conduct, whether time or not, was indictable libel.
But to this rule there were some exceptions, and the truth
of the charge was permitted to be shown in justification.
Thus, summarized by Parker, C. J.: "These exceptions
are all founded in regard to certain public interests,
which are more important than the character or tran-
quillity of any individual. All proceedings in legisla-
tive assemblies, whether by speech, written documents,
or otherwise, are protected from scnitiny elsewhere than
in those places themselves, because it is essential to the
maintenance of public liberty, that in such assemblies
the tongue and the press should be wholly unshackled.
So, in courts of justice, in which the reputation of in-
dividuals may be involved, are to be free from ani-
madversions, because the investigation of right involves
and demands the utmost latitude of inquiry, and men
ought not be deterred from prosecuting or defending
these by fear of punishment or dangers. The right of
complaining to any public constituted body, if the mal-
versation or oppressive conduct of any of its officers or
agents, with a view of redress for actual wrong, or the
removal of an unfaithful officer may be justified, because
the case will show that the proceedings do not arise
from malicious motives, or if it does, because the com-
mon interest requires that such representations should be
free. And there are cases of mere private import, such
as an honest, though mistaken character of a servant,
which when questioned by anyone having an interest, the
law considers innocent. These cases are all provided for
by the common law, and they go far to render hamiless
that much descried rule, that the truth is no defense in
a prosecution for libel." ®

Am. Dec. 217. Yet if in these in- able to the law. Com. v. Blanding,

stances, necessary indulgence is supra.

abused, for malicious purpose, a pre- 9 — Com. v. Blanding, 15 Am. Dec.

tense only being made, of the form 218-219; Lock v. King, 1 Smeed

of legislative or judicial process, the 131; Ashley v. Young, 2 Burr 802;

party so conducting himself is amen- Thorn v. Blancherd, 5 Johns. 508 ;

574

Criminal Law

§ 607. Publication of proceeding- in court. By the
law of England at one time the publication of exparte
aflidavits, and other proceedings in the courts of an ex-
parte nature, was an exception to the rule that proceed-
ing in the courts of justice might be published without
incurring the liability of libel.^" The reasons assigned
for this exception of the rule seems to have been, that
the party against whom the defamatory language had
been directed had not had an opportunity to be heard
upon the matter set out in such proceedings, and the in-
ference was, that he was slandered without the oppor-
tunity of being heard. Preliminary hearings, deposi-
tions taken before magistrates and the like included
most of such instances in which the exception became .
operative. This rule seems not to any great extent have
found favor in the courts of the American states, at least
we have not come across any adjudication sustaining the
doctrine in a criminal case." This rule probably does
not prevail in the American states in the matters of

state V, Torbusgh, 32 S. Dak. 870,

143 N. W. 279, Ann. Cas. 1916 A,
424; State v. Scfrit, 82 Wash. 520,

144 P. 725; People v. Stranch, 153
111. App. 544; see 247 111. 220, 93 N.
E. 126; State v. Tolley, 23 N. Dak.
136 N. W. 784.

10 — Starky on .slaniliT, 265.

11 — In the case of the Cincinnati
Gazette v. Tijnl)prlake, wliich was a
suit for lilic'l for the ]Mil(lic:ition of
an exparte ailidavit, i)reliiiiinary to
an ariTHt, the court held, that ari
action in the w;i_v of .-i civil suit
coulrl he maintained. l'>ut tlie court
.said: "W'v do not wish to l>e umler
stood a.H denying the right to ])ul)-
linh, without malice a fair ami full
report of judicial proceedings lie
fore examining courts, whereas in
thiH country, such proceedings arc
held jiuhlicly in the presence of the

party accused, and with full oppor-
tunity of defense on his part. This
question we neither deny nor assert,
for that question is not before us."
78 Am. Dec. 285, 10 Ohio St. 548.
Lord Ellensborough in Rex v. Fisher,
said: "Trials at law fairly reported,
although they may occasionally
]irovt' injurious in imiividiKils, liave
been held to be privileged. Let them
continue so jirivilegeil. The benefit
they )iroduce is great and perjnanent,
.iiicl tlic r\\\ Hint arises from them is
III re rind incidental. I'.ut these ])re-
liminary examinations li:ive no such
privilege. Their only tendency is to
prejudge those whom the law still
presumes to be liiii(i<-eiit, ami to poi-
.son the .sources of justice." Cited
in the case of Cincinnati (i.-izette v.
Tiiiiberlake, sujjra.

Libel 575

preliminary trials before justices of the peace, and other
inferior courts, for the reason that defendants in these
matters have ample o])portunity to defend against any
charge. In Ireland the rule was denied before the
Queen's Bench, for a newspaper's publication of proceed-
ings, although the same reflected upon the character of
the defendant.

§ 608. What are privileged in court proceedings. Any

defamatory testimony given by a witness in a cause,
when the statement of the witness is a material matter
in the cause in which he gives it, is privileged.^^ So are
the pleadings and statements by attorneys made in a
cause pending in a court having jurisdiction.^^ So, also,
are the statements of the judges made in a cause then
pending.^*

§ 609. As to legislatures. The legislative bodies of the
country, organized and engaged in the public's business,
are by reason of the nature of the business, exempt from
criminal liability for utterances made therein, or for the
publication of any of the matters before them. No one
shall be questioned as to his conduct and speech therein,
except by the bodies themselves. This limitation is of
course confined to the duties incident to the public's busi-
ness. Where remarks or statements are made deroga-
tory to another, unofficially, it loses its privileged charac-
ter. So, also, those persons who publish the proceed-
ing had before a legislative body is privileged for the
same reason that proceeding before the court are privi-
leged.^**

§ 610. Communications between persons in interest.
Communications made by one to another in and concern-

12—13 Eng. & Am. Encly., p. 408. 15— Com. v. Blanding, 15 Am. Dec.

13—13 Eng. & Am. Encly., p. 40P 210; Coffin v. Coffin, 4 Mass. 1, 1

and authorities cited. Kent 235.

14— Taylor v. Goodrich, 40 S. W.
(Tex.) 515.

576 Criminal Law

ing matters of which they are mutually interested, or
otherwise privy are privileged. As is also any com-
munication in which a duty or obligation is due the pub-
lic that the information be given. ^^

§ 611. Inquiries as to another character. Answers
made to inquiries of and concerning the character of
another person under circumstances reasonably indicat-
ing that the inquiries are made for innocent and laud-
able purposes, are privileged. So, where a person in
good faith, with the view of dealing with another, makes
inquiries of third persons concerning his character, is not
criminally libel. ■^'''

§ 612. Reports of mercantile agencies. Reports made
by mercantile agencies to their customers of the finan-
cial condition of other persons are privileged, if there
is no malice and no defamation. Such communications
and reports must be made to persons that are interested
particularly in the matter reported. For it is held that
it is not a privileged connnunication for a mercantile
agency to report generally the financial and personal
character of a person which may go to all its subscribers
alike."

§ 613. Candidates for office. Persons who become
candidates for oflice thereby place their characters and
fitness for official position in issue — it being a matter of
public interest. Where a written statement is ])ublishod
effecting one's character, fitness and qualifications for
such positions, done in good faitli and free from malice,
for tlio ])iii-])osr' of iiifonniiig \\w ]nil)lic or the electors

If — Vanwick v. Aspenwall, 17 N. 18— Stato v. Lonsdale, 48 Wis.

V. 100; KinjT V. Patterson, 49 N. .1. 348, 4 N. W. .390; Bradstrcct v. Gill
L. 417, fiO Am. Krp. 622. (Tex.), 9 S. W. 753.

17— State V. Londale, 48 Wis. 34H,
4 N. W. 390; Storey v. Challcnds,
8 C. & P. 2.3.4.

Libel

577

is privileged.^^ But in a Texas case, wliere the prose-
cutor was a nominee of the Democratic party, and the
defendant made and forged a writing purporting to be
the act and writing of the prosecutor, setting forth and
expressing faith in the third party platfomi, and prom-
ising to become one of their number for the next suc-
ceeding two years, and a further expression of belief
in the American Protective Association as the coming
party, the communication marked ''confidential" and
directed to the People's Party Club, Texas; was held to
be nonprivileged.^"

§ 615. Public officers. Public officers and their offi-
cial actions may be commented upon. One charging an
officer with official misconduct, before the accused is
entitled to the defense of privileged communication, he
must show the truth of what he says. "If it be found
that the occasion was of itself a proper one, the defend-
ant may justify the publication by proving the truth of
the matter alleged. But in such case the justification
must be as broad as the charge. It seems to be going
quite far enough for any useful pui^ose, to hold that
an individual may, without actual necessity, publish
what is false of another, if he had probable cause for
doing, and was actuated by good motives. The authori-
ties, it is believed, will carry us no further. " ^^

19— Com. V. Clap, 3 Am. Dec. 212;
Blanding v. Com., 15 Am. Dee. 210.

20 — ' ' The charge that the prose-
cutor, Walker, -nhile ostensibly a
Democrat and the nominee of the
Democratic Party, had written and
signed a secret circular, and sent the
same abroad to certain parties ab-
negating a belief in the principles of
the party, -whose cause he was openly
espousing, and professing belief in
the Populist, the opposing party;
thus treacherously seeking their sup-

C. L.— 37

port in the election. If such cir-
cular was true, he was acting the
part of a hypocrite and a traitor;
and certainly in our opinion, if
guilty of such conduct, it was cal-
culated to bring him into disgrace
and reproach among gentlemen, arid
should justly subject him to the con-
tempt of all honorable persons. '.'
Squires v. State (Tex.), 45 S. W.
147.

21 — State V. Burnham, 31 Am.
Dec. 223, 13 Am. & Eng. Encly. 430.

578 Criminal Law

§ 616. Elements of the offense. This crune is com-
posed of three elements, which is required by the govern-
ment to be proven before a con\T.ction can be had. (1)
The defamatoiy matter must be in writing, signs, pic-
tures, effigies, or in some other form of like character.
(2) The said defamatoiy matter must be published. (3)
Malice. The failure to prove any one of these elements
wdll not warrant the conviction. The mere printing and
the publication will not in all cases be sufficient to con-
vict. In a great many cases the publication of the libel-
ous matter is sufficient to establish the malice. In other
words, actual malice is not in all cases required to be
proven. Yet there are cases where the actual malice is
to be proven.

§ 617. What constitutes publication. The publication
in criminal libel is sufficient if the same is read and seen
only by tlie one defamed.^'^ A different rule it seems
prevails in civil libel. In the latter the publication to
be the basis of damages must have been published
to some third party. The mailing a defamatoiy com-
munication to another is a sufficient publication, the pre-
sumption being that it was received by the party to
whom it was directed in due course of the mails.^^ The
deliveiy of a communication, defamatoiy in its nature,
by any third person, even unread and seen by him, to
one for whom it was intended, is sufficient. So, where
one publishes a defamation concerning another, and wlio
at the time expresses disbelief in its trullifulness, is yet,
nevertheless, guilty of the libel; for tlie pul)lication is
just as injurious in effect, or at least some otln^- person
may believe it and thereby injure the party libeled. So,
also, where one being the part owner in a newspaper,
in wliicli a defamatory publication appears against liis

22--Ptate v. Avery, 7 Conn. 226.
23— Rtatf V. Ilcrrick, .3 Cr. Law
Mhr. 179.

Libel 579

wishes, the other owners who publish it with knowledge
of its true character are guilty of the libel. '^^

§ 618. Criminal slander. The books sometimes speak
of criminal slander, but this may be explained by say-
ing that at common law the defamatory statement ver-
bally made was not criminally punished. Tlie term
"criminal slander" can only have reference to statutory
provision, which makes certain oral statements made
of or concerning the character of another, criminal. Most
of the states have statutes which in terms provide that
an imputation of the want of chastity shall be punished
criminally. A slander at the common law had reference
to oral words and statements made of another, imputing
to him some disgraceful conduct, or which was calcu-
lated to injure his standing and his character, or which
had the tendency to do so, or which injured him in his
business, trade or profession. Redress consisted in a suit
for damages for the loss of reputation, business and the
like.

24 — Com. V. Chambers, 3 Cr. Law
Mag. 543.

CHAPTER XXXIII

KIDNAPPING AND FALSE IMPRISONMENT

§ 619. Definition. § 623. Indictment.

§ 620. Kidnapping and false impris- § 624. Form of indictment of false

onnient. imprisonment held to be

§ 621. Of false imprisonment. good.

§ 622. The person must be taken

against his will.

§ 619. Definition of kidnapping. Kidnapping or steal-
ing by force, any man, woman, or child, and cariying
them from their country to another, was by the com-
mon hnv a misdemeanor, and punished by fine and im-
prisonment. The common law confined the offense to be
the transporting a person beyond the reahn or beyond
the colonies. '* Kidnapping is unquestionably a very
heinous crime, as it robs the king of his subjects and
banishes a man from his countiy. "^ This idea of the
common law has not been adopted in the American states,
but a more liberal doctrine has been adopted, and the
offense seems to be complete, Avhen the person coerced,
is forceably carried from his place of residence, or domi-
cile to that of another. The better doctrine is, that any
power brouglit to bear which produces a fear, will con-
stitute the crime.

§ 620. Kidnapping and false imprisonment. False
iniprisonnu'iit is a common hnv offense, and its under-
lying principles, are not very unlike those governing
"man stealing or kidnapping." "It is treated (speak-
ing of kidnapping), as an aggravatod species of false

1 — » I'.la. 2I!»; ('lick v. State, V. :i7H; Sl.itc v. Uollins, H N. II.
?. T.'x. 2H2: H.-iddcn v. Ppoj)Ie. 25 N. 5^0; Moo.ly v. People, 20 III. :nr).

r)80

Kidnapping and False Imprisonment 581

imprisonment. All the ingredients in the definition of
the latter offense being necessarily comprehended in the
former, with the additional ingredient of carrying the
person imprisoned out of his own country and beyond
the protection of its laws," ^

§ 621. Of false imprisonment. We have grouped
''kidnapping and false imprisonment," together in dis-
cussion because the principles are almost the same as
stated in a preceding page. "Every confinement of a
person is imprisonment, whether it be in a common
prison, or in a private house, or in the stocks, or by
forcibly detaining in the streets," ^ AVhen the imprison-
ment is shown to have existed, then it is incumbent
upon the defendant to show that he did not imprison, or
to show some kind of justification for the arrest or de-
tention.* The crime of false imprisonment is made out
when it is shown that the defendant arrested another
under an illegal waiTant. So it seems that if the arrest
is upon legal authority, but the party is detained for a
longer time than is necessaiy, this will make the false
imprisoimient.^ One who arrests must do so at his peril.
for if his authority is not in confonnity to the law, the
detention is false imprisoimient.^ So, also, if one is act-
ing as an assistant of an officer he does so at his peril,
for he is required to ascertain for himself that the offi-
cer is authoiized to act.'^ But a person who as a mere
observer stands by and witnesses the arrest of another
person, is not guilty if he does nothing to prevent it.
So, an'esting another by authority of an invalid munic-
ipal ordinance is false imprisonment in the officer.®

2 — Note to People v. DeLeon, 4 5 — Lavina v. State, 63 Ga. 513.

Am. St. Rep. 447; People t. De- 6 — Mitchell v. State, 12 Ark. 50.

Leon, 109 X. Y. 226, 16 X. E. 46, 4 7— Mitchell v. State. 12 Ark. 50.

A. S. R. 444. 8 — State v. Hunter. 106 N. C. 796,

3— Flovd V. State, 12 Ark. 43. 11 S. E. 366.

4— Flovd V. State, 12 Ark. 43.

582 Ceiminal Law

§ 622. The person must be taken against his will. At
the common law kidnapping* seems to have been such a
taking as was by actual force and against the positive
will of the party, and carried beyond the seas, or beyond
the realm. The reason of the crime seems also to have
been based upon two causes: 1. That it was an offense
against the person and personal liberty. 2. That by
such an act the king lost a subject. Anciently the sub-
jects of the British Government were not permitted to
leave the kingdom without the consent of the king or
his officers. At the common law it was an essential in-
gredient that the person be taken from the realm. To
take him by force. To take him and place him in a se-
cret prison within the kingdom w^as false imprisonment
and not kidnapping. The crime of kidnapping the per-
son must be carried beyond the realm, in the false im-
prisonment he need not be.® Taking a child under the age
of discretion, non compos mentis, lunatics, and persons
othei'wise unconscious and incapable of giving a con-
sent, was by the common law equivalent to taking against
the will of the party. So, under the terms of a statute
of New York using the words ' ' seizes, confines, inveigles
or kidnaps another with intent to cause him, without
authority of law, to be secretly confined or imprisoned
within the st;ito, or to bo sent out of the state, or to ))e
sold as a slave, or in any way be held to service, or kej)!
oi- hold against his will," oiio who by false and fraudu-
lent representations induces another to go beyond the
state, such consent is equivalent to ** against lior will." "
"Any throats, fraud or appeal to the fears of the indi-
vidual, which subjects the will of the person abducted
as fnlly 1o flio control of tho other as if actual force was

9—4 Bla.'219, 1 Eaat P. C 4W. 10— People v. DeLcon, 109 N.

See State v. Itollins, 8 N. TI. r,r,()\ V. 220, 4 Am. St. Rep. 444. K) N.
<'lick V. Stntc, .3 Tex. 280. K. 4fi.

Kidnapping and False Imprisonment 583

employed will make the offense as complete as by the
use of physical force and violence. ' ' ^^

§ 623. Indictment. For our present purpose no bet-
ter statement of the requisite of the indictment can be
made than the following: *'The requisites in an indict-
ment for kidnapping at common law would seem to be:
1. An averment of an assault. 2. The carrying away or
transporting of the party injured, from his own country
into another, unlawfully and against his will. ' ' ^^ The
indictment should state specifically the fact and circum-
stances which constitutes the offense. The statute may
be followed, but the general rule will apply in the case
as in others, that if the statute is not specific enough,
then the pleader will be required to plainly set out the
offense so as to come within the term of the statute and
the principles of the offense.

§ 624. Form of indictment of false imprisonment held

to be good. That C D on the day of 184 — ,

with force and arais, at , in and upon A B in the

peace, etc., did make an assault, and him, the said A B,
did then and there beat, wound and ill treat, etc., and
him, the said A B, then and there unlawfully and in-
juriously against the will, and without the consent of
him, the said A B, without any legal warrant, authority
or justifiable cause whatsoever, did imprison, confine
and detain, for a long time, to wit: three days, and etc.,
against the peace and dignity of the state of Arkansas^*

11— Moody V. People, 20 111. 315; 13— Floyd v. State, 12 Ark. 43;

Note to People v. DeLeon, 4 Am. Mitchell v. State, 12 Ark. 50.
St. Eep. 444.

12 — Note to People v. DeLeon,
4 Am. St. Rep. 449, and cases cited.

CHAPTER XXXIV

MALICIOUS MISCHIEF
§ 625. The offense at common law. § 626. The intent.

§ 625. The offenses at common law. There is some
doubt whether this offense was punishable at common
law. At least it is doubtful whether it is considered so
in the several jurisdictions. The court in an Arkansas
case says that, '*It is difficult to state with minute pre-
cision what is necessary to constitute malicious mischief
at common hiw. It has been so much legislated upon,
and at such an early day, that its common law limits
are indistinct. Blackstone classes it along with larceny
and forgeiy, and after treating of larceny, says, 'mali-
cious mischief,' or damage, is the next species of injury
to private property which the law considers a public
crime. This is such as is done animo furandi, or with
an intent of gaining by another man's loss, which is
some, though a weak excuse, but either out of a spirit
of wanton cruelty, or bhick and diabolical revenge, in
wliich it bears a new rehition to the crime of arson; for
as that afreets llie lial»i1ati()ii, so this does the other prop-
erty of individuals. And, tlierefore, any damage aris-
ing for this mischievous disposition, tliougli only Ires-
pass at coniiiioii l.'iw, is now, by a niultiinde of statutes,
made penal In the liiuliest degree. Some judges, ivlyiug
on this passage, and the understanding the word 'tres-
pass' therein according to its modern siguilication, have
denied that thi' olTense of malicious iniscliiel' existed
under the eonunon h'lw of this countiy. Hut upon a
careful reading it is obvious that tlu' W(U-(1 'trespass' is
used by Bhu'kstone in this passage in the sense of 'mis-

584

Malicious Mischief 585

demeanor.' Without further discussion it is sufficient
to say, that according to the weight of authority, and
the better and prevailing opinion, the offense of malicious
mischief exists under the common law of this country. ' ' ^
There is other authority sustaining this conclusion of
the court, and we believe that it may be prosecuted in
the absence of a statutoiy prohibition under the com-
mon law. Practically, it is of very little importance,
whether we consider it a crime at common law, for the
statutes of the states provide by minute particulars what
shall constitute the crime.

§ 626. Intent. It is very evident that at the common
law, and by the early statutes upon this subject, the
character of injuiy to the private property of the in-
dividual was a very material matter in deteiTiiining the
intent. The intent must have been predicated upon some
ill will against the owner of the property, and not against
the property itself.^ This is also true in a large propor-
tion of the statutes of the states. The mere willful kill-
ing the stock of another for the purpose of preventing
trespassing is not malicious mischief. There are statutes
however making it a penal offense to cruelly abuse ani-
mals, the ingredients of which is not dependent upon an
intent to do the owner any injury, but to prevent the
cruelty to the animal. The act of abuse is sufficient to
cover the intent. In order to prevent trespass and injury
to property, the owner may in the defense of his property
totally destroy such trespassing property. Thus, where
the statute used the phrase "unlawful and willful de-
stiniction," etc. The court says that, '*If it was intended
that the act alone should constitute the crime, iiTespective

1— state V. Watts, 48 Ark. 56, 3 State, 51 Miss. 353; Newton v.

Am. St. Eep. 216, See Wright v. State, 3 Tex. App. 245. See cases

State, 76 Am. Dee. 656 and note. compiled 14 Am. & Eng. Encly.. p.

2— Wright V. State, 30 Ga. 325, 11.
76 Am. Dee. 656; Thompson v.

586 Criminal Law

of the motive, then I do not think the legishiture would in
enacting the section have used the expression 'unlaw-
fully.' It would have been sufficient to have said 'will-
fully.' The intent to destroy undoubtedly existed; but if
the jury should believe to be shown by evidence that the
act was in the defense of the possession of property, the
criminality was lacking which constitutes the punishable
offense against the people. ' ' ^

3— People V. Kane, 131 N. Y.
Ill, 27 Am. St. Eep. 575, 29 N. E.
1015.

CHAPTER XXXV

MAYHEM

§ 627. Defined. § 630. "What included under the

§ 628. Early English Statutes. statutes.

§ 629. What was included at com- § 631. As to the intent,

men law. § 632. The indictment.

§ 627. Offenses at common law defined. Mayhem at
common law is defined to be, violently depriving another
of the use of his members, as may render him less able in
fighting either to defend himself or to annoy his enemy.^
This offense at common law confined itself to those mem-
bers and parts of the body which are used in the defense
of one's person from a violent assault. To cut off the
nose or the ear, the absence of which only disfigures and
does not weaken the body, was not mayhem at common
law.^ It can be gathered from all the ancient authori-
ties that originally mayhem extended to those parts of
the body more or less suited for the defense of the realm,
and not to those limbs used in defense of the person
only; but however this may be, there are many statutes
which seem to be common law with us, with provisions,
such as cutting out the tongue, putting out the eye,
slitting the nose, cutting off the nose, castration, etc.,
which was mayhem, and punished as a felony.

§ 628. Early English statutes. The first of these stat-
utes, 5 Heniy IV, C. 5, created to remedy the mischief
of beating, wounding or robbing a man, putting out his
eye, cutting out his tongue to prevent him from giving
evidence against the perpetrator, may be common law

1—4 Bla. 205. 2—4 Bla. 205 and 206.

587

588 Criminal Law

with us. 37 Henry, provides, that any man who mali-
ciously and unlawfully cuts off the ear of any of the king 's
subjects, shall forfeit tribble damages to the party ag-
grieved, and also the further punishment of fine and
imprisonment at the suit of the king. Another statute,
said by Blackstone to be known as the Coventry Act,
22 and 23, Charles II, is enacted, that if any person shall,
with malice aforethought, lying in wait, unlawfully cuts
out or disable the tongue, puts out the eye, slits the nose,
or slits or cuts off or disables any limb or member of any
other person, with the intent to maim or disfigure, such
person, his counselors, aiders and abettors shall be
guilty of felony, without the benefit of clergy. All the
foregoing were repealed by 9 Geo. IV, c. 31, and 7 and 8
Geo. IV, 27. Whether or not all or any of the above stat-
utes are common law with us, appears to make no dif-
ference, since quite all of the states have statutes enlarg-
ing or curtailing them, but all are modeled after these
English examples.'

§ 629. What was included at common law. It may be
deduced with a degree of certainty, that at common law
the offense of mayhem included only those limbs or
members of the body used in the defense of one's per-
son, or such othei parts of the body, the loss of which
tended to decrease the courage and manhood of the
individual. Anciently it was a misdemeanor, and as such
in this country is punished by fine and imprisonment,*
in some instances, but very often is a felony and pun-
ished by imprisonment in the penitentiary.

§ 630. Of what is included in the crime under the stat-
utes. At the common law, the cutting off the ear or the

3—4 Bla. 205, 207, 1 East P. ('. Tligli v. Strife, 20 Tex. App. 545,

393, 394, 1 nawltH. P. C. 108; Green 10 8. W. 238, 8 A. S. R. 488.
V. State, 151 Ala. 14, 44 So. 104, 4—4 Bla. 20.'"), .'} Bla. 14.').

12.'') A. S. R. 17, 15 Am. Tas. 81 ;

Mayhem 589

nose, or the mere wounding of the body of another was
not mayhem. "Maiming" as used in the statutes is
synonymous with the common law ''mayhem," and are
but equivalent words, the difference being in the orthog-
raphy and not in meaning.^ So, under the terms of a stat-
ute providing it a felony to cut out or disable the tongue,
put out an eye, slit a nose, bite off or cut off a nose or lip
or cut off or disable any limb or member of any person,
with intent to maim or disfigure, an ear could not be dis-
abled within the meaning of the statute, and was not
included therein,® At the common law the wounding or
the injury of any part of the body, so as to have the ef-
fect to abate or lessen the courage, the physical and men-
tal ambitions, such as castration, or the permanent in-
jury to the organs of generation, was sufficient to con-
stitute the offense. So, under a statute making it may-
hem to "willfully and maliciously to injure, wound, or
disfigure the private parts of another with the intention
to maim or disfigure, the malicious injuring the private
parts of a female was held to amount to the crime of may-
hem.' To maliciously deprive another of a front tooth,
or to maliciously shoot off the toe, constitutes the crime. ^
As we have seen at the common law the offense was con-
stituted, only where a person was rendered less able to
defend himself or to be impaired in his ability to annoy
his enemy, by a permanent injury to those parts and mem-
bers of his body which lessened his physical prowess, or

5 — State V. Johnson, 58 Ohio St. 8 — Baker v. State, 4 Ark. 56;

flep. 417, 51 N. E. 40, 65 Am. St. State v. Briley> 8 Port. 412. See

Rep. 770; Websters' Unabridged note to State v. Johnson, 65 Ain.

Dictionary. St. Eep. 770; State v. Ma Foo,

6— United States v. Askins, 4 110 Mo. 7, 33 Am. St. Eep. 415;

Cranch. C. C. 98; Molette v. State, State v. Bowers, 24 Tex. App. 542,

49 Ala. 18; People v. Golden, 62 5 Am. St. Rep. 901; Davis v. State,

Cal. 542; State v. Conahan, 10 22 Tex. App. 45.
Wash. 268.

7— Kitchens v. State, 80 Ga. 812;
Moore v. State, 4 Chand. 170.

590 Ceiminal Law

diminished his courage. The question of the mere dis-
figurement of his person did not enter into the elements
of the crime. But under the statutes, the common law
is enlarged so as to include those injuries which mar the
beauty, comeliness and completeness of the body. So,
generally it may be said that our statutes make any cut-
ting off of the lip, the cutting off of the ear, the slitting or
biting off of the nose, cutting off the finger, the arm,
the hand, the toe, foot, the leg, or any member of the
body, or of injury to the organs of generation, or the put-
ting out the eyes, or the injury thereto, mayhem.^

§ 631. As to the intent. There must be a willful and
malicious intent to injure the person in the manner pro-
vided by the statute, it is not required to have been done
with premeditation. The intention is to be presumed
from the manner and the means of inflicting the injury.
A willful act is one connnitted with an evil intent, with-
out reasonable grounds to believe it lawful, and without
legal justification. A malicious act is one done in a state
of mind which shows a heart regardless of social duty,
and fatally bent on mischief. A wrongful act intention-
ally done without legal justification or excuse. Under
the statute of the state of New York a premeditated de-
sign, is nccessaiy to, the conviction, and it must be pleaded
and proved. And under such statute it appears that the
premeditation will not be presumed from the act itself.*®
But this rule stands in conflict with great weight of
authority.

§ 632. The indictment, it is a safe rule, in most cases,
to follow the staluk's in the matter of drawing indict-
ments, but this is not required as an absolute rule of

9_Bower8 v. State, 24 Tex. Ap].. 1 Ark. 50; State v. Hair, 37 Minn.

542; id. .1 Am. St. l?cp. 901; Peo- .I.')!.

pic V. Wright, 3 CiU. 5G4; State v. 10- T.illv v. People, 67 N. V. IT.;

Kkidniore, 87 N. C. 509; Molettc v. State v. Cody, 18 Or. .infi.
State, 49 Ala. 18; Baker v. State,

Mayhem 591

pleading, for any other way of stating the constituents
of a crime, if it is clearly and definitely stated and free
from ambiguity is enough. The statement of the facts
constituting the crime must be clearly brought within
the meaning of the terms of the statute, for if not, there
will arise the question of variance; as where an indict-
ment charging the biting to have been done with the in-
tent to maim, it is not supported by evidence of biting
with intent to disfigure. ^^ This same authority holds
that, where the indictment fails properly to charge the
mayhem, that a conviction for an assault and battery
either of the simple or the aggravated kind may be had.
The indictment must allege the intent with which the
act was committed, and under most statutes, it is not
necessary to allege that the act was premeditated and
deliberately designed, but that it was willfully and ma-
liciously done. It is not necessary to employ the word
"feloniously" done. Where the statute is in the dis-
junctive, the indictment must be in the conjunctive. This
is a common and universal rule of pleading in a crim-
inal cause. ^^

11— state V. Johnson, 58 Ohio St. 45; State v. Vowels, 4 Or. 325;
417, 65 Am. St. Eep. 770. Tully v. People, 67 N. Y. 15.

12— Davis V. State, 22 Tex. App.

CHAPTER XXXVI

MISPEISIONS
§ 633. At conuHoii law. § 634. What constitutes.

§ 633. At common law. Misprisions are common law
offenses. There are misprisions of treasons and felonies.
Owing to the provisions of the constitution and the stat-
utes we have no misprisions of treason in the United
States, except such as is provided by the Statutes of the
United States. In the absence of statute or constitutions
in the several states the common law may be resorted to
for indictment. Misprision is where any person having
knowledge that a felony or a treason has been committed
refuses or neglects to inform the government, through its
officers, that such crime has been committed. The books
hold, that merely having knowledge of the commission
of any of these otfenses puts upon one the duty of dis-
closing it. This doctrine of the connnon law is sound
and just for many reasons. And especially is it true as
to the crime of treason, for the duty to preserve the gov-
ernment is the paramount duty of every citizen in re-
turn for the protection of life, the preservation of prop-
erty and tlie personal security which it guarantees to
him. The same duty, but in a less pressing degree, rests
upon him in the case of felony. But where he lias only
a passing knowledge of the connnission of a felony, there
seems, from the woigiil of reason and the authorities
themselves, that no positive duty exists to seek out the
ofTicers and inform them of the ci-iinc, but a I'efusal to
disclose sndi knowledge, when caUed npon to do so,
would be .'III indiclnble olTeiise,^ lor this wonld place him
in the attitnde of ;in necessoiy after the fact.

1 — 1 I'.lack.sloiK- 121.

502

Misprisions 593

§ 634. What constitutes. Misprisions appear to denote,
generally, any concealment of a crime, and it may apply
to any considerable misdemeanor, which has no specific
name given to it,^ by law. The offense of misprision is a
misdemeanor. By the laws of England, misprision of
treason was punished as treason, principally, we suppose,
because treason has no accessories, either before or after
the fact, all being principals who had anything to do
with it. In this crime the doctrine of intent does not ap-
pear to accord with the general doctrine, in this that, the
mere failure to give information, becomes criminal with-
out the least action in the commission of the substantive
offense. A person who may happen to know of the com-
mission of the crime, and who could not have avoided
the knowledge, is held responsible for the failure to dis-
close it.^ From the nature of the offense, no conviction
could be had until the substantive offense is proven. This
crime is in the nature of an accessory after the fact. Al-
most all the states in the United States have statutes cov-
ering and defining as a substantive offense the act of
aiding and abetting the escape of one charged with crime.
This offense has almost become obsolete, the statutes of
the several states having taken the place of the common
law misprision. Yet in the absence of a statute the com-
mon law may be resorted to and enforced.

2—3 Coke Inst. 36; 4 Blackstone Melton v. State, 43 Ark. 367; State
119. V. Davis, 14 E. I. 281.

3 — Cooper v. Johnson, 81 Mo. 483;

C. K— 38

CHAPTER XXXVII

MONOPOLIES

FORFSTALLING, EeGRATING AND ENGROSSING

§ 635. Old statutes of England may
be common law here.

§635. Old statutes of England may be common law
here. Some old statutes of England prohibited monop-
oly in any trade or business. Those statutes, however,
appear to be common law with us. In another connec-
tion we have seen that any combination to raise the price
of products, or to restrict trade, or to cripple the free
conduct of business, is at the common law a criminal con-
spiracy. So the common law offenses of forestalling, re-
grating and engrossing might be indictable when ac-
complished through a conspiracy. There appears to
be no reason why we should not indict under the
common law principles any attempt to forestall a
market whereby it is intended to raise the price of any
commodity where such forestalling or engrossing would
have the effect to cheat or coerce persons to purchase at
the price set by such forestaller or engrosser, by monop-
olizing the market, or acquiring all or such a quantity
of the thing desired as to take from the purchaser the
riglit to purchase from whom and where he desired.
Wlicn.' the circumstances are such as to put it in the
power of a person, or a c()m])iiiation of persons, to compel
and coerce the connnuiiity, or any great number of per-
sons, to buy any article at more than a fair price, by buy-
ing all of such commodity with tlic intent to lioard or
withliohl it from the market, until such time as .'in ad-
vance ill IIk' price could l)o ol)ti>in(Ml, is an offense ;iiid
couhl l»e iiidicled ;il eoiniiioii l;i\v. Moih-rn cor])orat ions,

594

Monopolies 595

syndicates, trusts and monopolies, as operated, are very
much similar in their effects, as the acts which were
intended to be regulated by the common law indict-
ments under the offenses of forestalling, regrating and
monopolies. The main difference appears to be in the
scope and the harmful results, rather than in prin-
ciple. These modern combinations of trade are more
oppressive and hurtful to the community, for the reason
that a greater number of persons are effected by it. An
application of the common law to the conditions of our
country by a sound and broad minded judiciary could,
in our opinion, meet all the violations of the restraints
of trade and suppress monopolies.^

1 — 5 and 6 Edward VI and all the Common Law crimes appears to
other statutes of England affecting have been repealed, 7 and 8 Vict.

CHAPTER XXXVIII

NUISANCES

§ 636. Subdivisions. § 645. Exposure in private place.
§ 637. Bawdy and disorderly houses § 646. Statutes.

defined. § 647. Gaming and gaming houses.

§ 638. Gossip, scandal, etc. § 648. Obstruction of highways, ne-
§ 639. Married women. cessity justifies.

S 640. Common scolds. § 649. Custom will not justify.

§ 641. Offensive trades. § 650. Public shows.

§ 642. Public health. § 651. Drunkenness, punished as a
§ 643. Eavesdropping. nuisance.

§ 644. Exposing the person.

§636. Subdivisions. Under the general tenii ''Nui-
sances" many offenses are indictable, such as "Bawdj^
Houses, " " Common Scolds, " " Disorderly Houses, '"' Of-
fensive Trades," "Eavesdropping," "Exposing the Per-
son in an Indecent Manner," "Gaming Houses," and
' ' Public Shows ' ' and the like. All of these are common
law offenses and indictable in the absence of statutory
provisions regulating them. We shall in the following
pages briefly discuss each of these in subheads as follows,
viz.: (1) Bawdy and Disorderly Houses; (2) Common
Scolds; (3) Offensive Trades; (4) Eavesdropping; (5)
Exposing the Person in an Indecent Manner; (6) Gam-
ing Houses; (7) Public Shows; (8) 0])structing Public
Iligliways; (9) Drunkenness.

BAWDY AND DISORDERLY HOUSES

§637. Defined. A disorderly house is defined to be one
kept in such a way as to disturl) or scandalize the public
generally, or the inhabitants of a particuhir neighbor-
liood, or the passersby.^ There is very little difference be-

1— state V. Martin, 77 N. J. Law N. J. Law 7, 58 Atl. Hv^k CC. Sec-

652, 73 Atl. Rep. 548, 24 L. R. A. Vol. 5, Amer. and Eng. Encly. L.,

(N, 8.) 507, 134 A. S. R. 814, 18 page 693; and auihoritirs tlicro

Annofntrd f'odc; Moore v. Hcrk, 71 cited. Stato v. Wilson, iCl N. C 60H.

596

Nuisances 597

tweeii a disorderly house and a bawdy house. So, for
this reason we have gi'ouped them together. A disorderly
house may be any house where the inmates behave so
badly as to become obnoxious and offensive to the neigh-
borhood, or to the public generally, and this includes in
its scope a bawdy house and houses where gaming is car-
ried on. Thus it is said a disorderly house, in its more
restricted sense, is a house where persons abide and to
which they resort, and the manner in which they conduct
themselves, disturbs the quiet of the neighborhood; in
its more enlarged sense, includes bawdy houses, gaming
houses and places of like character to which people resort
promiscuously for purposes injurious to the public morals
or the public health, convenience or safety. Nor is it
essential that there be any disorder or disturbance, in
the sense that it disturbs the public peace or the quiet of
the neighborhood. It is enough that the acts there done
are contrary to sound morality.^

§ 638. Gossip, scandal, etc. From the observations of
the preceding section, the rule may be gathered that if
the inmates, or inhabitants, are engaged in doing those
things which are calculated to subvert the morals of the
community, or which, or the tendency of which, is disturb-
ing to the quiet and repose of the community, by creating
gossip and scandal, the offense is committed, whether the
inmates are guilty of disorderly and noisy conduct or not.
Hence a bawdy house is a disorderly house whether the
acts of the inmates are disorderly or not. If the acts
are contrary to and inimical to good morals, or are im-
moral in fact, although acts are quietly and peaceably
done, the offense has been committed nevertheless. A
woman who lives by herself and is accustomed to receive
men, for illicit intercourse, is not, merely because she is
unchaste, guilty of keeping a bawdy house. Nor does

2— Vol. 5, Amer. and Eng. 89; Clark v. Com., 79 Ky. 359;
Enely. L., page 693; Wait v. Peo- Fletcher v. State, 48 Ark. 60.
pie, 40 Colo. 136, 104 Pacific Rep.

598 Criminal Law

a single act of intercourse, nor the habitual intercourse
of the same persons, constitute the crime of keeping a
bawdy house.'

§ 639. Married women. Ordinarily, as we have in an-
other connection shown, a married woman could not be
guilty of committing a crime in the presence of her hus-
band, or where her husband was so near to her as to raise
the presumption that he exercised an influence over her,
yet in the offense before us, because of its nature, which
in many instances can be committed by females only, or
largely so by them, the wife has been held responsible
criminally for keeping a bawdy house, notwithstanding
her husband lived with her.'* Any person who establishes
or maintains a house of ill-fame is responsible. So
if one knowingly pennits his house to be used by prosti-
tutes for the purpose of plying their vocations, will be
guilty of keeping a bawdy house.^

§ 640. Common scolds. This offense consists, in the
loud, bickering, scolding, obscene, indecent and scof-
fing language of a woman, under such circumstances as
to become offensive, and disturbing to the public, and as
such is a common nuisance. In some of the states where
the common law is in force it is indictable as a com-
mon nuisance.^ But in the American states it may be
said llial tlic offense has become obsolete, the same
liaving been superseded by other statutory crimes. This
offense was regarded by our Puritan fathers as very
grave in niir own connlry, and il was for a long time

3—5 Anier. & Eng. Endy. L., 5— Kinji v. People, S3 N. Y. 587 ;

page CO.j; State v, Evnns Ircd N. Scarbroiifjli v. State, 46 Ga. 20;

C, page 003; Calrlwcll v. State, 17 Drake v. State, 14 Neb. 535, 17 N.

Conn. 407; Com. v. Lourbcrt, IL' W. 117.

Allen (MasH.) 177. — lames v. Com., 12 S. & R. 236;

4— Com. V. Cheney, lit Mass. Com. v. Molin, 52 Ta. St. 243, 91

281; Com. v. Hopkins, 43 Amer. Aineriean Derisions 153. Tlio eourt

Rep. 527, 133 Mass. 38; Com. v. in tliis case did not punish the

Oaka, 113 Miihs, 8. Ducking Stool.

Nuisances 599

after the landing of the Pilgrim Fathers before the same
was discontinued. It was regarded as so reprehensible,
that the ordinary punishment, fine and imprisonment,
was denied the victim, and a rude and barbarous con-
trivance known as the ducking stool was devised by some
lover of human rights, whereby she was strapped and
pinioned and ducked in a pond.

§ 641. Offensive trades. Offensives trades or occupa-
tions, where the effect is to disturb the public comfort,
or to impai'r or injure the health of the community, are
indictable offenses.' Examples appear in the business
of operating slaughter pens and houses, soap factories
and the like, which emit offensive odors, to such an ex-
tent as to have the effect of producing unhealthfulness
and discomfort in the community. The keeping and the
maintaining a powder house, so close to the habitation
of another, or in the vicinity where other persons are
at work, or where they may lawfully go for the purpose
of recreation or business, is indictable, because the same
becomes a menace to the safety of such persons.

§ 642. Public health. Indictments will lie at common
law for the sale of unwholesome foods, such as tainted
meats, adulterated wines, milk, etc. As early as the
51 Hen. Ill, 6, the sale of unwholesome meats, or cor-
rupted wines, and flesh bought from a Jew was pro-
hibited. The law is not confined to unwholesome meats
and the like, but may extend to any and all acts that
may tend to or does in fact endanger the health of the
public. It is clearly a criminal offense to place a person
afflicted with a contagious disease in a public street, or
other public place, where the disease might be communi-
cated to other persons. To corrupt a fountain or a well

7— Com. V. Upton, 6 Gray 473;
Stetson V. Faxon, 31 Am. Dee. 133,
and note.

600 Ckiminal Law

of water; to expose unwholesome and noxious poisons
and gasses in such a manner as to become offensive and
promotive of the ill health of the community, are indict-
able. Also, noxious trade or business conducted in such
a way as to affect the public health to its hurt, by be-
coming offensive to the sight, hearing or smell, are com-
mon nuisances and were at the common law indictable.*

EAVESDROPPING

§ 643. Defined. The common law for the purpose of
maintaining inviolate those things relating to the do-
mestic life free from the intrusion of strangers, punished
by fine and imprisonment, any person guilty of stealthy
listening to the conversation taking place in another's
house.® This offense is known as ''eavesdropping," and
is said to consist, particularly^, in listening at a man's
window, or w^all, or other part of his house, in order to
hear what is going on in the inside, and make it the gos-
sip of the neighborhood.^'' The cases are very rarej and
it is doubted that a single case in recent years could be
found. In one case it ^vas held that where one was em-
ployed by the husband to listen to the conversation of
the wife with another, on the inside of the house, while
he was stationed at her window on the outside, did not
constitute the offense. This was so decided upon the
theory, that a man has the right to ascertain the conduct
and conversation of his wife, by a resort to such means
if he so desired. ^^ [jooking in tlio house would not con-
stitute the offense, l)ut listening in a stealthy manner
wonhl, I'oi- llx- gist of the crime is the stealthy listening.^''

EXPOSING THE PERSON

§ 644. Defined. Tiiis offense consists in the exposure of
the naked person, or a part of it, in a public place in a

8—4 Blackstone 102, 2 K.-ist I'. Ins. Co., 122 (!:i. ]W, f.K S. 10. 68,

(',. 822, EaHt Kiii; '.i Greof. 184; (i!» L. 1*. A. HH. Km A. S. R. 1042.

Com. V. Tipton, G Gray 473. 11— Com. v. Lovctt, 4 Cl.irk Gri.

9 — 1 UliickHfoiic 168. 12— Com. v. Mungct, 4 Clark 6.

10 — Pavcsicli V. Now Engl.'iii'i I,.

Nuisances 601

manner and under circumstances reasonably calculated to
shock the feelings of refinement and chastity, or which
is calculated to corrupt the moral sensibilities of those
witnessing it. The exposure must be intentional, and it
may be shown by a negligent or willful act. If a person
by accident expose his naked body it can be no offense,
however shocking to the sensibilities it may be to those
who witness it. Public shows, theaters, and like exhibi-
tions, which for the occasion permit the unnecessary ex-
posure of the naked body, is an indictable offense.^^

§ 645. Exposure in private place. At the common law
there is no oft'ense where the exposure occurred in a pri-
vate place. The exposure must be in a public place, and
must have been seen by other persons. There appears

to be a conflict in the authorities, w^iether the offense
could be committed if seen only by one person. In a
comparatively recent case the court held, that at the
common law, the offense could not be committed unless
the exposure could have been seen.^* It also further
declared, that the offense at the common law was punish-
able because it was a public nuisance, and hence the
nuisance could not be committed unless seen by someone.
It was declared in the same case, that the indecent ex-
posure in a private house to one person only, being a
female, was sufficient to constitute the crime. Substan-
tiallj^, the same is held in another case, where a man
made an indecent exposure of his person to a woman,
and at the time solicited carnal intercourse, she opposing
and objecting.^^

§ 646. Statutes. What conditions and circumstances
will constitute this offense within the meaning of the

13— Knowles v. State, 3 Day 103- 15— State v. Millard, 18 Vt. 574,

108. 46 Am. Dec. 170.

14— Com. V. Warden, 128 Mass.
52, 35 Am. Eep. 357.

602 Criminal Law

law depends upon the facts of the particular case. The
statutes of the several jurisdictions sufficiently describe
the kind of place in which it would become an offense to
expose one's person. Ordinarily, all stores, shops, offices,
streets, alleys and highways, all theaters, shows and ex-
hibitions of all kinds, and any other place where people
resort for business or pleasure. The common law nui-
sance has been almost superseded by the statutes. The
law governing the same is to a great extent controlled
by the local statute.

§ 647. Gaming and gaming houses. The keeping a
house where persons conunonly resort for the pui-poses
of gaming, was at the common law a nuisance, and pun-
ishable as a misdemeanor by fine and imprisonment.
Upon the principles announced in the discussion of the
offense of "disorderly houses," the keeping and main-
taining a gaming house would be a disorderly house.
Permitting single acts of gaming in one's house does
not make the offense. So, the keeping and maintaining
an inn or a tavern, or a tippling shop, or the like place,
where disorderly and noisy, indecent, or disturbing con-
duct is carried on will constitute the same a disorderly
house, and a common nuisance. ^^

OBSTRUCTIONS TO HIGHWAYS

§ 648. Necessity may justify. The obstruction of the
connnoii higliways, where by the free use of same for
llie ])ui-poses of travel is by any moans impeded or im-
paired, is at the connnon law a iniblic; nuisance, and
indictaljh' as sucli. Nol every obstruction of street or
highway will ('(nistitute tlio crime, altliough it might
tend to iiicdiivenience the ti-ax-eliiig i)ul)lic. Whore one
lives ill a city, those niMiclos from necessity iTMiuirod to
bo f)lace(| upon the inihlic streets, in order that they

]6_nnrk v. Com., 79 Ky. 3r)<i; St:itc, H Hl.-ickl. (fiKl.) 'jor.; IIuImt
1 Hawk 1*. C. 09.3; Hlcnliiin' v. v. S|;,tr. 'jr, In. I. 17r>.

Nuisances 603

may be removed by the owner to such places as he wants
to keep them, such use of the streets will not make the
offense. Thus, in one case the court says: ''That it is
tnie, that necessity justifies actions, which would other-
wise be a nuisance." It is also true, that this necessity
need not be absolute; it is enough if it be reasonable.
No one has the right to throw wood or stone in the streets
which has the effect of obstructing the travel in the
same. Public necessity sometimes justifies this action,
as the case of building houses, the material may be placed
in the street provided it be done so as to cause the least
inconvenience. Merchants and others engaged in vend-
ing merchandise have no right to obstruct the public
streets and sidewalks for the purpose of showing their
wares.-^''

§ 649. Custom will not justify. A public nuisance can-
not be legalized by custom or by the permissive use for
a long time of the streets or highways for any purpose
not for travel and convenience of the public. Thus, where
a constable had gathered the goods of several execu-
tion debtors, and placed them on the sidewalk, as had
been the custom of the officers for many years prior
thereto, the court held, that it was an obstruction to the
free passage of travelers, and therefore criminal.^*

§ 650. Public shows. The exhibition of the nude body
in shows and theaters and entertainment of like char-
acter, is an indictable offense as a common nuisance,
where the exposing of the nude person was obnoxious to
decencj^ and shocking to the moral sensibilities. Any
public show or exhibition tending to corrupt the good

17 — Com. V. Passamore, 1 S. & R. 19 — People v. Cunningham, 43

219; People v. Cunningham, 43 Am. Am. Dec. 717.
Dec. 709 (N. Y.), 1 Denio 524; Peo-
ple V. Harton, 64 N. Y. 620; Judd
V. Fargo, 107 Mass. 267.

604 Criminal Law

morals of the community, or to shock the sense of re-
finement of tliose persons witnessing, is a common nui-
sance at common law. It seems that the offense is made
if the thing itself is indecent or immoral or will have
the effect of producing immorality or a tendency thereto.
Thus, if the thing exhibited is indecent or vulgar, as the
exhibition of a picture of a naked man full of eruptive
sores.^®

DRUNKENNESS

§ 651. This offense is punished as a nuisance. Drunk-
enness is an indictable offense at the common law. A
limitation, however, was placed upon the drunkenness
when committed in private — that is, private drunken-
ness was no crime. The common law permitted the in-
dividual to drink all the liquor he wanted, this being a
question of his own. The criminal law does not under-
take to notice the degree of moral turpitude in the prac-
tice of drunkenness, aside from the bad effects it is cal-
culated to have upon public morals, and the tendency
toward the disturbance of the peace. Drunkenness in
a public place is a crime because the conduct of a drunken
man in a public place is disturbing to the quiet and the
good order of the community, provocative of breaches
of the peace, corruptive of the morals, and calculated
to produce terror and alarm in tlic inhabitants. The
common l;i\\ jjunishcd it more as a conunon nuisance
tli.iii a specific offense. ^^ We have seen that where a
man's conduct is such as to become oppressive, obnox-
ious, disturbing, creating or calculated to disturb, ter-
lori/.c or ;il;iiin others in n pu])li(' place, is a })ublic nui-
sance. So, also, any act tlmt has a tendency to corrupt
the morals of tlie community is a pu])lic nuisance, and

oo_ppoplc V. MiilIiT, Ofi N. Y. 21—3 Grool. ISl; Siiiitli v. State,

408, 48 Am. Hop. (i.'};"); People v. 1 IIuiiii)li. 'MO; Com. v. JJoom-, 2

KiiHtman, 188 N. Y. 478, 8 N. K. Gray 74; State v. Waller, 3 Mur.

4rjO, 11 Ann. fas. 302, find note. 229.

Nuisances 605

as such is punishable as crime. Drunkenness notoriously
indulged in is a crime, and in the absence of a statute
punishing the acts of drunkenness, may be prosecuted
as a public nuisance. Cursing, swearing, loud and boister-
ous and indecent language blasphemously engaged in
a public place is also indictable as a nuisance.^''

22— state v. Powell, 70 N. C. 68. v. Graham, 3 Sneed. (Tenn.) 134;
See following cases: State v. Brown, State v. Locker, 50 N. J. L. 512,
38 Kan. 390, 16 Pac. 259; State 14 Ayl. 749.

CHAPTER XXXIX

PERJURY

§ 652. Defined. § 661.

§ 653. Was anciently a misde-
meanor.

§ 654. An oath must have been ad- § 662.
ministered in accordance
with the established form § 663.
or substance of the law.

§ 655. Corporeal oaths distinguished

from others. § 664.

§ 656. Oath must be properly ad-
ministered. § 665.

§ 657. Must be administered in con-
formity to the law. § 666.

§ 658. No difference whether wit-
ness voluntarily or involun- § 667,
tarily appear and testify.

§ 659. Administering oath, statute § 668,
must be followed.

§ 660. Oath must be administered by § 669
one authorized to do so.

Who was empowered at com-
mon law to administer
oaths.

Oath must be administered
in the officer's jurisdiction.

Court must have jurisdiction
of the person, subject mat-
ter.

Must be prosecuted in the
Federal Court, when.

Testifying to fact believed
to be true, is not perjury.

Testimony must have been
wilful and corrupt.

]\Iust have been matter ma-
terial to issue.

Witness compelled to testify
against himself not perjury.

Rule as to corroboration.

§652. Perjury defined. Perjury is an offense which
specifically affects the administration of justice. Con-
sists in the willful and corrupt false oath taken in the
course of justice, touching;- some material point at issue.
Defined by Mr. Bishop: ''Perjury is the willful giving
under oath in a judicial proceeding or course of justice
of false testimony material to the issue or point of in-
quiry.

)j 1

§ 653. Was anciently a misdemeanor. At common law
this offense was a misdemeanor, but at one time by some

1 other definitions; 1 Hawks.
I'. C, p. 429; Lord Coke, 3 Inst.

104, 4 nia. 1.H7, 3 Green Ev. 188,
2 Kuss. on Cr. 590.

606

Perjury 607

of the earlier statutes was punished with death. In the
American states it is punished universally as a felony
by statute. In general, at the common law, perjury was
confined to the willful and corrupt testimony given in
any judicial proceeding, or in the course of administra-
tion of justice, and was limited to such acts as was re-
quired to be made in connection with a cause then pend-
ing, or of one that would in all probability be pending
at some future time. The statutes have in many instances
extended the crime to all false oaths. The crime may be
said to contain the following elements: 1. An oath must
have been administered in accordance with established
form or substance of the law. 2. It must have been ad-
ministered by one authorized by law to do so. 3. That
the testimony must be false. 4. That the testimony must
have been given willfully and corruptly. 5. Tliat the
testimony must have been of some matter, material to
the issue or point in controversy. 6. That the testimony
or false oath must have been relating to some matter
pending in the course of justice, or in some proceeding
that was likely to come up in the course of justice.^

§ 654. An oath must have been administered in ac-
cordajice with the established form or substance of the
law. An oath is a solemn appeal to God, made in the
presence of one authorized by law to administer it, to
witness the truthfulness of testimony about to be given
touching any matter of fact to be inquired about in any
judicial proceeding or course of justice. Lord Coke in
institutes: ''An oath is an affirmation or denial by any
Christian of anything lawful and honest, before one or
more that have authority to give the same, for the ad-

2— O'Eeeley v. People, 86 N. Y. S. E. 684; People v. Teal, 196 N.

154, 40 Am. Eep. 525. See follow- Y. 372, 80 N. E. 10&6, 17 Am. Cas.

ing cases bearing upon the question 1175, 25 L. E. A. (N. S.) 120; State

perjury and which in the main con- v. Dayton, 23 N. J. L. 40, 53 Am.

firms the text. McDonaugh v. Dec. 270; State v. Shupe, 16 la.

State (Tex.), 84 S. W. 594, 122 A. 36, 85 Am. Dec. 485.

608 Ckiminal Law

vancement of truth and riglit, calling Almiglity God to
witness that his testimony is true." Anciently there
was no fomi of a legalized oath, except under the sanc-
tion of the Christian religion, calling upon God to wit-
ness the truthfulness of the testimony. By modem in-
dulgence, those holding religion differing from common-
ly recognized Christianity, are permitted to affirm as to
the truthfulness of their testimony. An affinnation is
the same as an oath, except that the appeal is not made
to God or the Supreme Being to witness the truthful-
ness of the oath. An affirmation is to be administered
in a manner most binding upon the conscience. The
right to affinn is a statutory provision, amendatoiy of
the common law oath, and is designed to meet the views
of all persons, who from religious reasons, prefer to
make an affirmation. It was originally designed to meet
the views of those who believed that it was in violation
of scriptural ordinances to swear. Among these we find
the Quakers, ]\Ioravians, Separatists and others unneces-
sary to mention.

§ 655. A corporeal oath distinguished from others. A
corporeal oath is distinguished from other oaths in this,
that fonnerly it was required to lay the finger or hand
upon the Holy Bible, or to kiss it in confinnation of the
truthfulness and sacredness of the asseveration.^ This
w^as called the corporeal oath, from the fact of bodily tak-
ing hold of the Bible, l^ui now the tenn "coi-poreal
oath" and the term "oath" are used indiscriminately,

6_The terms "Corporeal Oaths" People, 59 Barb. 531. The term
and "Solemn Oath" are used "Corporeal Onth" iinist 1k' cousid-
synonyniously, and the oath that is ered as applvinj,' to :iiiy bodily as-
taken with uplifted hand may be sent to the oath of the witness,
properly described by .itlicr tenn. State v. Norris, supra, 85 Am. Dee.
.lackson v. State, 1 Ind. 184; State 496 and note Stnfc v. Xhupv. IC) l:i.
V. Norris, 9 \. II. 90; Ilnrns v. 26.

Pekjury 609

and it is only a matter of form to require the kissing
of the bible. And, so far as the pains and penalties of
perjury are concerned, the consequences are the same.
The practice of kissing the Bible has fallen into disuse,
except in some of the Federal courts the practice is still
followed, apparently for the purpose of giving a greater
solemnity to the proceedings. It is more in accordance
with American plans and institutions to disregard
this formula of the common law. It is familiar to those
who have opportunities of observation that an affirma-
tion is as likely to elicit the truth as the corporeal oath.

§656. Oath must be properly administered. Where
one had prepared and signed an affidavit and presented
it to an ofiicer of the law who was authorized to admin-
ister oaths, and the officer affixed his jurat thereto, but
did nothing else toward having the same sworn to, the
court held, that perjury could not be predicated upon it,
because the same had not been properly administered.
And for the further reason, that some form of oath has
always been required in order that the sworn may be
distinguished from the unsworn, and the sanction of
religion add its binding and solemn force to the act.'

§ 657. Must be administered in conformity to the sub-
stance of the law. The binding effect of the oath con-
sists in its being administered in conformity to the sub-
stance of the law. It is not essential to the validity of
an oath, that it was not administered in conformity to
any special form. It is not even necessary, where the
statute prescribes the form of the oath, to follow the
exact wording, verbatum, of the oath, but if the sub-
stance of the oath is given, then the mandates of the law
are complied with.* It, of course, is better to always
follow the wording of the statute.

7— O'Eeilly v. People, 40 Am. 270; Faith v. State, 32 Tex. 375;
Rep. 526, 1 Phil, on Ev. 15. State v. Kane, 26 Me. 33.

8 — State V. Dayton, 53 Am. Dee.
C. L.— 39

610 Ceiminal X^aw

§ 658. Those who voluntarily appear on same plane
with those involuntarily appearing. All persons who
appear and testify in a cause are bound under the law
to speak the truth concerning the matters of which they
testify, and it makes no difference whether the appear-
ance was involuntary or voluntaiy. So, where one testi-
fies voluntarily to a statement of facts without objec-
tion, to which he might have interposed a plea of privi-
lege, upon the grounds that he could not be compelled
to testify to matters which would have the effect or the
tendency to incriminate himself, is guilty of perjury if
he gives false testimony.^ So, also, where he is an in-
competent witness.^" This latter refers particularly to
that class of persons who are qualified to testify, except
where the law has placed disabilities upon them in par-
ticular instances, as where the husband and wife are
not permitted to testify against each other, or that a
party shall not testify in his own behalf, etc. But the
rule would not apply to persons in totem in capax, such
as infants and insane persons.

§ 659. What the statutes require must be done. In gen-
eral, where the statutes require a thing to be done,
then in the main, it must be perfonned in the man-
ner directed. Statutes veiy often provide who shall
administer oaths, in particular matters and under
what circumstances they may be given, and how taken,
and where such is the case there can be no per juiy unless
the statute lias been followed in a substantial manner."
Thus, if it is provided that the oath should be admin-
istered by a certain officer, it will be no perjury unless it
was administered as directed. If tlie affidavit is to be

9 — Mackiii v. People, .56 Am. Rep. discussion of the competency of Wit-

167. nosses.

10 — Chnnilicrlain v. roopln, 2.3 N. 11— Stato v. Dayton, f).! Am. Doc.

.T. R.*!, HO Am. Doc. 2r,r^: Pratt v. 270; State v. Gates, 17 N. II. .37.3;

I'ri.c, II Won<l. 128; United States State v. Trask, 42 Vt. 152; Com. v.

V. Grankond, W Fv<\. 672, for a Carol, 105 Mass. 582.

Pee JURY 611

taken under certain circumstances, then the conditions
should be complied with; as where the statute requires
that an affidavit should be reduced to writing, it is no
perjury to swear to the facts unless in writing.^^

§ 660. The oath must have been administered by one
authorized to do so. There is no validity or binding
force to an oath in law unless it is administered by one
whom the law has conferred the authority to administer
it. The authority is not acquired by implication, but
must be by express authority of law. At the common
law perjuiy was assigned upon oaths taken in some ju-
dicial proceeding, but under our statutes it is not con-
fined to judicial proceedings only, but to all oaths which
the particular statute declares to be perjury or false
swearing. Under this, the authority may very properly
be arranged under three heads. 1. The officer or person
administering the oath must be authorized to adminis-
ter the oath as the law directs. 2. The officer or person
administering the oath must administer the same within
the territorial jurisdiction conferred by the law. 3. The
court in which the false oath is given must have juris-
diction of the subject matter and of the persons.^'

§ 661. Who empowered to administer oath at common
law. At the common law the judge, or the clerk under
the direction of the judge, could administer the oaths in
the proceeding before the court. But the statutes of
the several jurisdictions provide specifically who shall
administer oaths, and where such is the case the person
or officer so named must administer it. But it has been
held, that where one- without authority administered an
oath in the presence of the court or judge, that perjury

12 — Covey v. State, 23 Tex. App. and note; Melford v. Teonton, 10

388, 5 S. W. 283. Okla. 741, 63 Pae. 958, 54 L. R. A.

13— United States v. Hall, 131 U. 513; State v. Townley, 67 Ohio St.

S. 50, 33 (M. S. L. Ed.) 97; State 21, 65 N. E. 149, 93 A. S. R. 636

V. Shupe, 16 la. 26, 85 Am. Dec. 496 and note.

612 Criminal Law

could be assigned upon the false testimony given under
it.^* In another case, however, the court held, that where
a deputy administered the oath that he was not under
the circumstances of the particular case the mouthpiece
of the judge, and hence the perjuiy is groundless. ^^ Offi-
cers de facto, as well as officer de jure, have authority if
they are the officers designated by the law to administer
oaths. Xot so, however, an usuiTDer, who without right,
assumes to perform the duties of an officer.^^ So, an arbi-
trator, upon whom the law has not conferred express
authoritv to administer an oath to a witness, false testi-
mony is not perjury,^''' nor where a notaiy public admin-
isters the oath, when the law provides that it shall in the
particular case be administered by a court or justice of
the peace. ^^

§ 662. The cath must be administered in the territorial
jurisdiction of the officer. Where the oflicer is limited
by the law to a certain territorial jurisdiction in which
he has authority to act, an oath administered by him in
any other place than the law provides would not sub-
ject one to porjuiy for false swearing. An oath without
authority is void and perjury is not assignable upon it
for the reason that if no authority, then no injuiy can
occur by the false oath. Perjuiy is criminal because
the effect of false swearing is to injure another against
whom it is directed. For we have been told by Sir Wm.
Blackstone, that if a perjurer by his testimony convicts
another of a capital offense, he is himself guilty of the
capital offense. It is self-evident that a state or county
officer would have no authority to administer oaths in

14 — Stevens v. State, 1 Swan. ].57. 17 — State v. .Jackson, 36 Ohio St.

15— People V. Cohen, 118 Cal. 74, 281.
50 Pac. 20. 18— State v. McHusky, 8 McCord

16— Morforfl v. Territory, 10 Okla. I.. 308.
741, 54 L. R. A. 513. Ex parte
Warrl, 173 V. R. 452.

Perjuby 613

the territorial jurisdiction of another state. So, ordi-
narily, notaries public are confined to the limits of the
county of their residence, and so all county officers are
confined to their own counties. ^^

§ 663. The court must have jurisdiction of person and
subject matter. As we have seen, the court before whom
the alleged oath has been taken must have jurisdiction
of the person and the subject matter of the controversy
in order that perjury may be assigned upon the false
testimony. In the preceding section we have called at-
tention to the fact that an officer must not go beyond
the limits of the subdivision over which he has juris-
diction to perfoi-m the act of administering an oath, and
in the present section we confine ourselves to the juris-
diction of the court, where it is dependent upon the au-
thority over the parties to the action and to the authority
over the subject matter. Of course, there is no general
rule which will meet all cases, for the several statutes
have different provisions covering the circumstances in
which the several courts obtain jurisdiction over the
parties to the suit, and also over the matter in contro-
versy. But no judgment can be properly rendered
against a person unless he is within the jurisdiction of
the court in accordance with the statute, or where he
has waived his rights. It is elementaiy that in suits of
a civil nature the defendant may waive his right
as a non-resident, and may place himself within the
jurisdiction of the court, but where the defendant does
not appear, no judgment of a personal nature can be
rendered against him, and the same would be void for
the want of jurisdiction of the court over the person,
and perjury conmiitted by him in a trial of the matter
would not be subject of conviction. So, if the court has

19— Eoss V. State, 55 Ga. 192, 21 State, 90 Tenn. 501, 17 S. W. 107,
Am. 278; People v. Kelley, 38 Cal. 25 A. S. K. 700, 15 L. R. A. 381,
145, 99 Am. Dec. 360; Exum v. S. W. 25, A. S. R. 703.

614 Criminal Law

no jurisdiction of the subject matter, then the judgment
is void, and false swearing in the proceeding would not
be perjury. If, however, the judgment has been rendered
irregularly, then perjuiy may be assigned upon the false
oath. So, the rule may be stated generally, that if the
judgment is in a court, for any reason having no juris-
diction, the proceedings are void, and the false swearing
is not perjury.^"

§ 664. What perjury must be prosecuted in the federal
courts. Any false oath taken in a matter affecting the
United States is prosecuted in the federal courts.^^
There are a great many matters over which the United
States has jurisdiction, the oaths affecting which are
administered by state officers, or officers whose authority
is derived from state laws, are under the laws of the
federal government empowered to administer oaths in
particular instances, with alike binding force as if they
were in fact federal officers. In such cases perjury is
prosecuted in the federal courts.^^ All perjury arising
in a state jurisdiction, of and concerning matter over
which the state government has jurisdiction is prose-
cuted in the state court. So, also, if by the laws of one
state the officers of another state are empowered to ad-
minister oaths effecting matters in controversy in the
former, the latter has jurisdiction over the prosecution of
the perjury.^'

20 — For a full discussion of the ford v. Territory of Okla., W Okla.

subject of the text see following 741, 54 L. K. A. and the note thore-

cases: Buell v. State, 45 Ark. 330; under.

People V. Cohen, 118 Cal. 74, 50 Pac. 21— Brown v. U. S. Circuit Court,

20; Ferfoot v. Com., 89 Ky. 174," 12 May, 1875.

S. W. 189; Butler v. State, 36 Tex. 22— U. S. v. Bailey, 9 Pet. 238;

App. 483, 38 S. W. 787; State v. State v. Adams, 4 Black. 146; Peo-

Gallinion, 24 N. C. (2 I. Red.) 374; pie v. Kelly, 38 Cal. 145, 99 Am. Doc.

Steinson v. State, 6 YearR. 531; 360; Ex parte BriRRs, 2 Woods 428;

State V. Wimhorly, 40 La. Ann. 460, State's coiirts liavc no jurisdiction

4 So. 161 ; Maynard v. People, 135 arising under an act of congress.

111. 416, 25 N. E. 740; State v. Mc- 23— Stewart v. State, 22 Ohio St.

Cone, 59 Vf. 117, 7 Atl. 406; Mor- 477; People v. Martin, 175 N. V.

Perjury 615

§665. Testifying to facts believed to be true is not
perjury. The oath must be false., If the witness testi-
fies to what he believes to be true, it is not perjury,
although it was in fact false. In fact, it appears to be
the rule, that if the accused makes oath that he believes
a statement to be true, when there is not a reasonable
ground to warrant such belief, he nevertheless will be
guilty of the perjury.^* As to this there is a conflict of
authority. But it would no doubt be perjury if the state-
ment is known to be false at the time of making the
statement on oath, that he believed it to be true. If
there is any inadvertence in making the oath, such as
negligence in ascertaining the true facts, without any
intention of making a false statement, it is not perjury.
But if, however, the testimony is recklessly and wantonly
given in total disregard whether the statement is true
or false, it is quite clear that perjury might be assigned.
Thus, if a witness makes a statement as true, when in
fact he does not know whether it is true or false, he is
guilty of perjury .^^

§666. The testimony must have been given wiUfuUy
and corruptly. This proposition is essentially contained
in the preceding subdivision. Perjury, in common with
all other crimes, must be assigned upon a criminal in-
tent a malo animo. Thus, for a witness to seek legal
advice as to the propriety of testifying to certain facts,
and thereupon being advised that he may, without testi-
fying falsely, testify to such facts honestly and in good
faith, it is not perjury. So, also, where one swears to
an affidavit, prepared by one in whom he has confidence,
upon a statement made by him, known to be time,
will not be guilty of the false swearing if he hon-

315, 67 N. E. 589, 96 Am. St. Eep. U. S. v. Adkins, Sprague, 558; State

628. V. Cruikshank, 6 Black. 62; Pattrick

24—3 Greenl. Sec. 200; see note, v. Smoke, 3 Straub. 147; State v.

page 169. Knox, Phill (N. C.) 312; People v.

25— IT. S. V. Shellmire Bald, 370; McKlnney, 3 Park Cr. Law 570.

GIG Criminal Law

estlv believed lie was in fact swearing to the truth, al-
though in fact it was false.^^ Where a person does a
thing upon a mistake of the facts, he cannot be said to
have done it with a criminal mind. Thus, a false state-
ment made through inadvertence or under agitation, or
by mistake, is not perjury, although the statement may
have been willfully made,^' under the conscientious belief
at the time that he was speaking the truth.

§ 667. The testimony must be of some matter material
to the issue or point in controversy. If the fact or facts
testified to are immaterial in the matter at issue, al-
though false and deliberately testified to, it is not per-
j^j.y 28 rpjjg question of the materiality of the alleged
false testimony is a question of law for the court to
determine, and not one of fact for the jury. It is not
necessary that the evidence be believed, or that it in
fact had any bearing upon the final results of the con-
troversy.^^ It seems, that it is sufficient if it might have
had, and was given purposely and with tlie intent to
deceive. An extrajudicial oath, being one not author-
ized by law, although it may be regarded as binding
upon the conscience, is not the basis of perjury, although
false. Incompetent testimony, although erroneously ad-
mitted by the court in the exercise of his legal judg-
ment, being false, is subject of perjury.^"

o6_u. s. V. Stanley, 6 McLean Nelson v. State, 47 Miss. G21 ;

409; State v. Conner, 3 McLean 573; Beaclicr v. Anderson, 45 Mich. 543,

Tuttlc V. People, 36 N. Y. 431. 8 N. W. 539; State v. Meadow, 54

27— Garza v. State, 47 S. W. 983 Vt. 126.
(Tex.): There are nunierons an- 29 — Ilanipera Cane, 3 Lean 230;

thoritics which Hnjjport this doctrine. Wood v. Poojile, 59 N. V. 117; I'ol-

Sce 2 Ed. Kng. & Am. Encly. 22 l:inl v. People, 09 Til. 148.
title Perjury. 3n— U. S. v. (Irottkau, :',i) F.'il.

28— Martin v. Miller, 2s Am. Dec. Kcj). 072; Slmri) v. White, 21 Teini.

342, 4 Mo. 47; People V. McDermott, 434; Von Stcenheru v. Kofz, 10

8 f'al. 288; Com. v. Parker, 2 Cush. .Johns. 1(>(); ("hamherlaiii v. People,

212; Ciiirrii.. v. Com., 7". V;i. 922; 23 N. V. 85.

Perjury 617

§ 668. Witness compelled to testify against himself,
false testimony is not perjury. We have incidentally
mentioned in other places that a party may, in matters
pending before the courts, or in the course of adminis-
trative justice, waive certain of his rights personal to
himself. Such as his right or privilege to be sued in
the county or state of residence, his right to interpose
his plea of former conviction or acquittal, his right to
a jury trial in misdemeanors, his right that a jury in a
felony case, of which he is a defendant, may separate
before a verdict, unless he interpose an objection; to
these and many other rights or privileges which are per-
sonal to him he is taken as having consented to, that is,
waived his privilege. So, where a witness has a privi-
lege of not testifying in a cause, he may interpose this
upon the ground that his testimony may tend to crimi-
nate him, but if he fails to do so with full knowledge
that he has such right, and he testify falsely, he is guilty
of perjury. As where he is defendant in a criminal
prosecution he is not compelled to testify, but he may
waive this right or privilege and thereby become guilty
of perjury.^^ If, however, he is compelled to testify
against himself, and make statements that are untrue,
he, it appears is not guilty of perjury.

§ 669. Rule as to corroboration. The ancient rule was,
that in the case of perjury, the testimony of two wit-
nesses to the alleged false oath was necessary to a con-
viction.'^ This has been, however, modified, and it seems,
that in the absence of a statute peiTiiitting it, one cor-

31— Mackin v. People, 115 111. IJnited States, 231 U. S. 710, 58 L.

312, 56 Am. Kep. 167. Ed. 448.

32 — See following cases which 33 — 4 Black. 358; 2 Euss. on

illustrate the rule and the principle: Crimes 179; 1 Greenl. 356; State

People V. Cohill, 193 N. Y. 232, 20 v. Peters, 107 N. C. 876.
L. E. A. (N. S.) 1084; Cameron v.

618 Ceiminal Law

roborated by evidence aliunde, is sufficient.^* The old
rule was founded upon the assumption, that the oath of
one man was as likely to be true as that of another, and
hence the oath of but one witness only balanced the
oath of the defendant. The logic of the rule has been
recognized by the judicial literature of the whole coun-
try. Even the statutes require that one witness be cor-
roborated by some kind of evidence which strengthens
him. Under the penal code of Texas, which requires that
no conviction can be had unless by the testimony of two
credible witnesses, or one credible witness strongly cor-
roborated, it has been held, that if only one witness has
testified without corroboration, the court must instruct
the jury to acquit.^ ^Vliere, however, there is any
corroboration, the matter rests with the jury as to the
credibility of the witness and the sufficiency of the cor-
roboration.

34—1 Greenl. 375; Underhill on See 18 Tex. App. 134, 26 Tex. App.
Ev. 382. 14, 30 Tex. App. 284; Gartner v.

35— Cox V. State, 3 Tex. App. 479; State, 16 Tex. App. 215.

CHAPTER XL

PREVENTIVE JUSTICE

§ 670. 'J'he law as at common law. § 674. Considered under the statutes.

§ 671. Security may be required § 675. The extent of the threat and
after conviction. the probable cause of in-

§ 672. At common law was confined jury,

to gross misdemeanors.

§ 673. At common law was not re-
garded as punishment.

§ 670. The law as common law. Another principle of
the common law which inflicts a kind of negative pmi-
ishment is known in the books as '' preventive justice."
The punishment is not for what actually takes place as
the result of a violation of the criminal law, but is for
what is in anticipation only. Where it is known that
an offense is about to be committed, or there is a just
cause to believe that one will be committed, founded
upon some threat against the life of another, or to do
some great harm, or commit some gross misdemeanor,
the magistrate is authorized under the common law to
cause the person to be apprehended, and require him
to enter into security that he will not commit the things
charged against him, and upon his failure or refusal
to enter into the security, he may be committed to prison
at the discretion of the court, in order that the threat-
ened injury may be averted.^ It is not sufficient that
a mere suspicion exist that an offense or threatened
injury will be inflicted; there must be something more
tangible; there must be sufficient evidence to satisfy the

1—4 Black. 252-255 ; State v. Gil-
liland, 51 W. Va. 278, 41 S. E. 131,
90 Am. St. Eep. 793.

619

620 Criminal Law

magistrate that a crime will be committed, or that the
threats are of such a serious nature as to make it prob-
able that the threatened injury will be inflicted, unless
prevented. The common law in this respect has rarely
been resorted to in this country for authority to pro-
ceed in the matter of preventing the commission of of-
fenses. There seems to be only a few cases where the
common law alone has been resorted to. The reason for
this is, of course, because the states have provided, by
statute, means to reach all matters of this kind.

§ 671. Security may be required after conviction. The

principles of the common law did not confine the right
and power of the courts to prevent the commission of
an offense in the first instance, but was empowered to
prevent the repetition of the same offenses or offense of
the same or like kind after the conviction and the assess-
ment of the punishment under the judgment of the court
for the offense committed. There has been some ques-
tion in this country, w^hether this imposition of the court
upon the defendant after the commission of the offense,
and in addition to the punishment imposed for its vio-
lation, could be legally done, and the most recent case
has held, that where the offense is a connnon law offense,
and the punishment is a common law punishment, it may
be done. But where the statute has provided for the
punishment of crimes, that punishment must be inflicted
only; as in the case of selling liquor without a license
from the state, the judgment of the court was that
the defendant pay the sum of fifteen dollars and the
costs of the prosecution, and in addition, that he give
bond, with good security, in the penalty of five hundred
dollars, conditioned to be of good behavior towards all
tlie citizens of the state, and not to sell intoxicating
dri]iks for a pr-riod of twelve months. This power of the
couiis at the connnon law seemed to be a discretionary
one. and that it was n(»l always inflicted except Avhere the

Pkeventive Justice 621

court thought that it would be for the best interests of
the country, or wliere he thought that from the nature
of the crime, or the inclination of the particular defend-
ant, the crime would be repeated, or attempted, to the
annoyance of the people, or even of particular persons.
This discretion must be a legal one, and not arbitrary,
on the same plane and governed by the same authority
which a court of justice has in any case to determining
a matter which is by the law submitted to his sound
judgment.^

§ 672. At the common law power was confined to gross
misdemeanors. The evidence appears at this time very
meager why the common law only granted the right after
conviction to require the giving security against the
repetition of the convicted crime. ^ It is most probable
that it was confined to gross misdemeanors, for the rea-
son that the punishment for the commission of a felony
was death, and because the misdemeanors of the les-
ser grades were not of sufficient magnitude to warrant
the apprehension of any serious consequences from the
repetition. For in the nature of the punishment for the
felony, the accused being executed, could not as a matter
of fact recommit the offense, and that in the misdemean-
ors of the lesser grades no great harm could follow the
repetition. The power of the courts, where there was a
threatened injury, was not confined to gross misdemean-
ors merely, but extended to felonies as well, for there
was a greater apprehension in a threatened felony than
there possibly could be in that of gross misdemeanors.
"If a person has been convicted of a misdemeanor, it is
usually part of the judgment that he shall find security
for his good behavior for some time.

2— State V. Gilliland, 51 W. Va. 3— State v. Gilliland, 51 W. Va.

278, 90 Am. St. Eep. 793, and note. 278, 90 Am. St. Eep. 793. See note
See following cases: 1 Cox C. C. 413. to this case.

622 Ceiminal. Law

§ 673. At the common law was not regarded as punish-
ment. Blackstoiie in his commentaries did not regard
this power, or rather, this exercise of power of the court
punishment. But under tlie statutes it appears to be
considered by the courts as a punishment. This is no
doubt the correct view. There is strong reason, from
a close reading of the commentaries of Sir William
Blackstone, that he regarded it as a punishment. This
view is strongly supplemented by the effect of the judg-
ment in this, that in the failure or refusal to give the bond
or the security as required, the alternative judgment is
imposed that the defendant be imprisoned until he com-
ply with it.*

§ 674. Considered under the statutes. It has been held
constitutional for the legislature to enact, that the judge
or the court tiying a case, in addition to the punishment
provided by tlie statute, may at his discretion, impose the
requirement that the defendant enter into security to
refrain from commission of like offenses, and insure his
good behavior for a term of years, or in default, to be
committed to prison until security is given.^ In a Penn-
sylvania case it was held that even where the defendant
had been acquitted that the court may for the pui*pose
of preventing a repetition of the crime impose the pen-
alty of security.^ The powers generally possessed by
the courts under the various statutes are that the magis-
trate or judge iqioii whom the jurisdiction is conferred
have a summary discretion. That as a rule there is no
appeal from tlie judgment of the magistrate. From the
nature of the oljject intended to be corrected, it is neces-
sary tliat tlie magistrate have summary powers and au-
thority, for if it were otliei-wise, the crinK^ intended to

Black. 2.')2. . 6— Baml)er v. Com., lo I'ii. St.

5— Stntc V. Chnndlrr, .Tl Kan.s. ,'<.39.
201, 1 P.ac. 787; Rtntc v. Ptunonter,
no KnnH. 8.'57, 56 Pac. 11.32.

Preventive Justice 623

be prevented would in all probability be committed be-
fore the remedial processes of the law could be placed
in operation.''^ The courts appear to be almost unani-
mous in holding that it is within itself in the nature of
a crime but the defendant is not entitled to all rights in-
cident to other crimes. Such as the right to an appeal,
jury trial and the like. The proceeding is usually begun
by affidavit of the party against whom threats of injury
have been made, and then upon a warrant of arrest issued
by the magistrate based upon it. The initiation may
be made by the state in its name. The manner of pro-
ceeding in the matter is controlled by the statute, and the
terms thereof should be substantially complied with.'

§ 675. The extent of the threat and probable cause of
injury. We have seen that the justice or the magistrate
must exercise a sound and legal discretion in the mat-
ter of requiring the security. This discretion must be
founded upon evidence, and not upon the private and
independent opinion of the justice, unless the same
comes within his knowledge as facts. But usually the
statutes require that some proceeding be begun before
the justice by the affidavit of the person injured or some
person for him.® This may usually be done by some one
who occupies the relation of protector of another. The
essentials of the affidavit is provided by the statute, and
the same should be followed in its language, unless there
is some reason requiring clearer allegations. The facts
of the particular case may require, in order to reach
the intents or the probable execution of the evil inten-
tions of the accused, allegations to extend to the varied
transaction of the parties.^" Under the Indiana statute

7— Howard v. State, 121 Ala. 23, 9— State v. Sargent, 74 Minn. 245,

25 So. 1000; State v. Locut, 93 N. 76 N. W. 1129; State v. Bass, 75

C. 577. N. C. 139.

8— State V. Sayer, 35 Ind. 379; 10— Reg. v. Dunn, 12 A. & F. 599;

State V. Steward, 48 Ind. 146. State v. Bass, 75 N. C. 139.

624 Criminal Law

it is sufficient to allege that the affiant has just cause
to fear that violent injuiy to his person will be inflicted
by the respondent; that the affiant has just cause to
fear, and does fear, that the defendant "will kill and
murder" him.^^ The investigation must be made with
the view of preventing an injury which is imminent or
probably so.

11— Beckwith v. State, 21 Ind,
225; State v. Davis, 138 Ind. 11, 37
N. E. 397.

CHAPTER XL I

PRISON BREACH, ESCAPE AND RESCUE

§ 676. Defined. § 682. When a prisoner may be dis-

§ 677. What the indictment must charged.

show. § 683. Voluntary escapes defined.

§ 678. Officers neglect of duty. § 684. Resisting the service of legal

§ 679. Prisoners escaping. process.

§ 680. Defendant may break, -when.
§ 681. Prisoner must be held by legal

warrant.

§ 676. Prison breach, escape and rescue, defined. Each
of these is a distinct offense from the other, but are very
closely allied, aiid it presents some nice distinctions, to
determine the elements of each. The principles governing
them seem to be obscured by the lapse of time. The books
contain a frequent reference to them, but are so limited
in the discussion that it is difficult to discover with
accuracy the principles which control them. In the
absence of statutoiy provisions covering these offenses
the common law could no doubt be resorted to. Most
of the states have ample provisions covering such con-
ditions, and it is improbable that it will be necessary to
be controlled by the common law, except in rare instances.

§ 677. What the indictment must show. It is neces-
sary, in order to convict one for escaping from prison,
to allege in the indictment, and this sustained by proof,
that the imprisonment was legal. If one is unlawfully
placed in prison his escape therefrom is no crime.^ But
if placed there upon legal process, it is no defense to

1 — State V. Leach, 18 Am. Dee.
118; Com. v. Barker, 133 Mass. 399;
State V. Beebe, 13 Kans. 589.

c. L.— 40 625

626 Criminal Law

show that the accused was aftenvards acquitted of the
crime for which he was confined at the time of the
escape. The escape is a substantive crime, and the law
for the good of society enforces the restraint of those
charged with crime, until such time as the truth of the
matters may be legally inquired into and judgment there-
on had. It therefore becomes of the utmost importance
that the defendant to a criminal charge be compelled to
appear at the time of the investigation, and that he be
punished if he is found to be guilty. So, the court in
one case says: ''He escaped from his imprisonment for
an alleged burglaiy, and has never been convicted of
such burglary. His offense then comes within the let-
ter of the statute. AVhen a party is in legal custody and
commits an escape, we do not depend upon some future
contingency as to whether such an escape is an offense
or not. '"^

§ 678. Officers negligent of duty. At the common law
an officer who neglected to poiform his official duties was
guilty of a misdemeanor, and punished by fine and im-
prisonment. This is known in the books as non-
feasance. It simply means that the officer charged by
law to do a certain thing has failed to do it. The law
looks upon an omission by an officer to do what the law
requires him to do as criminal, for the reason that if
those through whom the functions of the govenmient
are performed failed to do their duty, the government
itself would come to naught. Hence, the intent need not
be willful or malicious.^ But an officer who purposely
and corruptly does a thing in connection with his offi-
cial duties, which is not allowed by law, or does such
acts as do not come witiiiii the exercise of a reasonable
discretion, is guilty of a common law misdemeanor. The
name <»r lliis offense! is "malfeasance^"

2— stilt.- V. Lewis, 19 Kans. 200. 3—2 Hi.sh. 970; 4 Black. 141.

Prison Breach, Escape and Rescue 627

§ 679. Prisoner escaping. A prisoner who voluntarily
and without force escapes from an officer, or his place
of confinement, was indictable at common law, and the
punishment was by fine and imprisonment.* Prison
breach and rescue is a common law felony, where the
prisoner was convicted as a felon. And it also seems
to have been the law, that if the prisoner was convicted
of a misdemeanor, then in that case the person who
aided the escape was guilty of a misdemeanor. Tliese
crimes are surrounded by very great obscurity, and a
very few cases can be found that will throw any great
light upon the subject. The offenses seem to be defined
separately, thus: prison breach is where one, being a
prisoner confined in prison, breaks the walls or bars of
his prison and makes his escape. Rescue appears to
be that where the prisoner's escape is effected by a third
person by fOrce. This was a treason, a felony or a mis-
demeanor, according to the charge against the prisoner.^

§ 680. Defendant may break, when. The defendant
may in the proper case break and escape from prison
without incurring the penalty of the law; as where it is
necessary to preserve life, or free himself from infec-
tious diseases. But it was held in one case, that an
escape for the purpose of avoiding and on account of
uncleanliness, filth and vermin, was no justification in
the absence of an application to the sheriff, to clean the
jail.^

§ 681. Prisoner must be held by a legal warrant to
arrest. One charged and arrested for crime must be
held by virtue of a legal and valid wan-ant of arrest.
If an officer arrests another, and confines him without
proper legal authority, he has no right over the personal
liberty of the defendant, and the defendant not only has

4—4 Black. 130 ; 4 Black. 131. 6 — State v. Davis, 14 Neb. 439.

5 — State V. Lewis, 19 Kans. 266.

628 Ceiminal Law

the right of escape from such confinement by peaceable
means, but may, in the exercise of legal self-defense, free
himself by any force found necessary to accomplish his
freedom^

NEGLIGENT ESCAPE

§ 682. When may a prisoner be discharg-ed. Prisoners
in the custody of the law legally must be so held until
properly discharged by due course of law. In another
connection we have briefly discussed the liability of an
officer, or other persons, who were the legal custodians
of a prisoner. It is the duty of the officer to securely
hold all prisoners and cannot be heard to say in his de-
fense that the escape occurred without his knowledge or
consent. It appears, that at the common law, an escape
under any circumstances other than that of an act of
God, or some calamity over which the jailor could have
no control, would constitute the negligent escape. It was
not necessary that there was any affinnative acts of
negligence on the part of the jailor, but he was at his
peril required to have the prisoners safely kept. A
negligent escape, as the same is generally construed in
the books, means any escape of a prisoner, who is imme-
diately pursued and captured. Keepers of prisoners are
Ttot permitted to defend an escape on the ground that the
prison house is defective, whicli thereby facilitate the
escape of the prisoners.^

7 — In the case of the State v. necessary to effect his object. This

Leach, 7 Conn. 452, the court says imprisonment is confessed to have

ill jiart: "The act of the prisoner lieen illegal, llcnce it results that

was so far from being a high crime the keeper of the jail, is vested with

and misdemeanor that it was justi- no authority; the building in which

fiable; and here it is not intended to the prisoner was condned is not a

HUgg(?st that a prisoner might not jail, but as to liim, a mcri' jirivate

do acts, which would l)e unjustifi- building, and hence, he might regain

able, in order to escape from unlaw- that liberty of wliich lie was unjustly

ful imprisonment. He might not, deprived."

for example, kill the jailor, or set 8 — If slicrilTs were piiinitleil to

the pri.son on fire, or totally demolish be oxcu.sed for escapes <in tlie jdea

it; for the acts miglit not be at all oi' defective jails, it would lie equiv-

Prison Breach, Escape and Rescue

629

VOLUNTARY ESCAPES

§683. Same, defined. A voluntary escape, is where
an officer having the custody of a prisoner charged with
crime, knowingly and willingly grants him his liberty.
"A negligent escape as contradistinguished from a vol-
untary escape, is where the party arrested or imprisoned,
escapes against the will of him in whose custody or
prison he is lawfully detained, and is not taken before
he is lost sight of." It is voluntary escape to allow
the prisoner to go at large upon his promise to appear,
although he fulfills his promise. It appears, that if the
custodian acts in good faith, believing that he is acting
as the law authorizes, this may be pleaded as a justifi-
cation.^

§ 684. Resisting the service of legal process. Purpose-
ly and willfully resisting the service of legal process is
an indictable offense at common law. It is known as
an offense against justice and the due administration
of government for the reason that the courts could not
carry out the purposes for which they are created unless
the power was given somewhere to enforce the obedience
to its process. It is an indictable crime with us. The
crime is very reprehensible for the reason that a resis-
tance of the process of the court, and of the officers of

alent to a judicial or legislative re-
lease, of all responsibility, for the
safety of prisoners, especially in the
present condition of our society, to
ensure escapes, it would only be nec-
essary for the sheriff and jailor to
retire to rest and sleep at night. If,
in the morning their prisoners were
found to be gone, they would only
have to plead a defective jail, and
thus would society be at the mercy
of criminals, irresponsible officials,
and disorderly persons. The court
announced also in this opinion that

the rule had, from the very earliest
time, in England, in both criminal
and civil causes, been, that the sher-
iff could not excuse himself, for an
escape, except where the same re-
sulted from an act of God or public
enemy. It also announces the fact
that no other case in the American
reported cases could be found involv-
ing this question." State v. Hunter,
94 N. C. 829.

9— Merhan v. State, 46 N. J. L.
355; Ex parte Rittenhouse, 4 N. J.
L. 230.

630 Criminal. Law

the government, prevent or tends to prevent the due
administration of the laws and thwarts the ends of jus-
tice. This is a misdemeanor, and was punished by fine
and imprisoimient.^*' An ofiicer has the right to use force
in the execution of the writ and process placed in his
hands to execute. The force, however, must be only com-
mensurate with the needs of the case, otherwise the offi-
cer will be a trespasser.

10 — Lawson's Case simplified, page civil process would have the right
101. The circumstances would be to use force in serving it.
very grave where an officer serving

CHAPTER XLII

RAPE

§ 685. Definition. § 690. Assault to rape under tlie

§ 686. The character of force neces- statutory age.

sary. § 691. Assault may be committed by

§ 686a. Application of the doctrine husband upon wife, when,

of force. § 692. Boy under age of fourteen

§ 687. Consent, resistance, the ex- may commit assault.

tent thereof. § 692a. At common law emission

§ 688. By whom committed. and penetration necessary.

§ 689. Of the force necessary to as-
sault to rape.

§ 685. Rape, definition of. Mr. Wharton defines rape
as follows: "Rape is the act of a man having unlawful,
carnal intercourse or carnal knowledge of a woman with-
out her conscious and voluntary permission." Mr.
Greenleaf in his work on evidence : ' ' Rape is the unlaw-
ful carnal knowledge of a woman by force and against
her will. ' ' ^ Mr. Harris in his criminal work defines the
offense to be the ' ' carnal knowledge of a woman against
her will." Sir Wm. Blackstone: ''Rape is the carnal
knowledge of a woman forcibly and against her will. ' ' ^
Lord Hale : * ' Rape is the carnal knowledge of any woman
above the age of ten years against her will, and of a
woman child under the age of ten years, with or against
her will." This offense, by the ancient common law,
was punished by the infliction of death. Other defini-
tions are: ''Rape is the unlawful carnal knowledge of
a woman by force and against her will." "It seems,
therefore, that rape is an offense in having unlawful and
carnal knowledge of a woman by force and against her

1—3 Greenl. on Ev. 209. 2—4 Bla. 210.

631

632 Crimi^v^vl Law

will. "^ "Eape has been defined to be the having un-
lawful and carnal knowledge of a woman by force and
against her will." ^

§ 686. The chajacter of force necessary to constitute
the crime. The burden of this crime consists in the sense
of shame, degradation and humiliation consequent upon
llie act, and the forceful violation of the person and the
insult to virtue. Anciently, the idea prevailed, that rape
could not be connnitted by any other means than force,
or threats of physical violence. A general American
definition of rape may be ventured ''as the unlawful
carnal knowledge of a ^voman, Avithout her consent, ac-
complished by force, threats 'or fraud. At the common
law, in certain instances, rape could not be committed
where the female gave her free and voluntary consent
to the act of intercourse where her consent was obtained
by trick, subterfuge or fraud. ^ Such as where one rep-
resents liimself to be the husband of the female under
such circumstances as deceives her as to that fact, and
obtains her consent to an act of intercourse. An in-
dictment for rape charging force, proof is admissible to
show that tlic unlawful intercourse committed upon a
woman was under some trick, or fraud, which caused
her to give consent to the act, believing that the defend-
ant, was her hus])and.^ But we believe that the weight
of the aul lioiilics are to the effect that an act of carnal
intercourse induced l)y tlic fi-,-nid of the defendant, wlio
personates tlic Inisbaud, is not tlie force necessary to
constitute the offense.''' P)nt wliei-e the act of intercourse

3—1 l(;iul<s. r. C. I -J I L'; Cm re v. .1—3 Grcenl. Ev. 211.

State, 11!» (la. 418, 4(5 K. E. G71, 6— Payne v. State, 38 Tox. App.

1(10 A. S. H. 182; ("rosswi-ll v. State. 494, 70 Am. St. Rep. TfiO, 40 S. W.

13 Mich. 427, 87 Am. Doc. 774; (J04, 7G A. S. U. 712.

State V. Tuttlo, 67 Oliio St. 4 Ki, Cii 7— Lewis v. State. :!i) Ala. HI, 08

N. E. ri24, 93 A. S. R. (589; State v. Am. Dec. 1 K!; Taviie v. State, cited

T.iinjT, 21 Nov. 209, 28 Pnc. 23.'), 37 aliovo. State v. Miirpliey, hold that

.\. S. H. ."jOf). con.seTit nht.aiiied hy ]>eis()iiali()ii of

4 — 1 UuHH. on <'r., 3 Kd. 07.1. tlic hushaiul is nipe. See following

Rape

633

is committed upon a woman insensible from the effects
of intoxicating liquor given her by the defendant, or
where slie is in that condition not by the act of the de-
fendant,^ or where she is in such deep sleep as to be un-
conscious of the act; or where her powers of resistance
have been overcome by chloroform, or other drugs of
like character, such as ether, force is implied.* One court
has said: "It is true that the element of force need not
be actual, but may be constructive or implied. If the
woman is mentally unconscious from drink or sleep, or
from other cause is in a state of stupefaction, so that
the act of the unlawful carnal knowledge on the part of
the man was committed without her conscious and vol-
untaiy permission, the idea of force is necessarily in-
volved in the wrongful act itself — the act of penetration.
But even in cases of this kind the intent to use force,
if necessary to accomplish the offense, is essential to
criminality." Wliether intercourse with non-resisting
or non-consenting idiotic or insane woman is rape de-
pends upon her capacity and the nature of the act.^"
Fraud, as by personating the woman's husband; or where
she consents to the act under the belief, fraudulently
induced by the defendant, that it is necessary medical
treatment, does not supply the want of force."

§ 686a. In the application of the doctrine of force. Some
question may be found in the authorities to the effect
that if the act of copulation took place while the woman

cases: Eex v. Clark, 6 Cox C. C.
413; Eeg v. Barrow, 11 Cox C. C.
191; Eeg v. Williams, 8 Cox C. C.
223; Wyatt v. State, 2 Swan.
(Tenn.) 394.

8— Com. V. Burke, 105 Mass. 376,
7 Am. Eep. 531.

9— Payne v. State, 40 Tex. App.
202, 76 A. S. E. 712, 49 S. W. 694;
Lewis V. State, 30 Ala. 54, 68 Am.
Dec. 113.

10— State V. Lung, 21 Nev. 209,
37 Am. St. Eep. 505, 28 P. 235, 37
A. S. E. 505; McQuirk v. State, 84
Ala. 435, 5 Am. St. Eep. 381, 4 So.
775, 5 A. S. E. 381.

11— State V. Lung, 21 Nev. 209, 37
Am. St. Eep. 506, 28 P. 235; Don
Moran v. People, 25 Mich. 12, Am.
Eep. 283; People v. Coswell, 13
Mich. 433, 87 Am. Dec. 774; Eegina
V. Barrett, 12 Cox C. C. 498.

634 Ceimtnal Law

was asleep, that such act of copulation, standing alone,
did not present a sufficient amount of force to consti-
tute the crime of rape by force. There appears to be a
great want of harmony in the authorities, but in the
case of Payne V. State, a case from the state of Texas,
the court in discussing this phase of the case says : ' ' The
second position urged by the state is that, the woman
being asleep when penetrated, rape is the result, though
no greater force is used than that involved in the act.
We have given this proposition thorough investigation.
Our researches leads us to this conclusion: if the statute
defines rape to be carnal knowledge of a woman by force
and Svithout' her consent, then the proposition above
stated is correct. If, on the other hand, the statute de-
fines rape to be the carnal knowledge of a woman by
force, and 'against' her consent, then the proposition
is not correct. We are not inclined to make the dis-
tinction between the terms 'without consent' and
'against consent,' because we believe there is really, in
effect, no difference between the expressions. If the
female is asleep, of course, she cannot give her consent,
but if she is willing to the act, there is tacit consent, and
there need not be express consent; so that in the final
analysis the act must be against her will and consent,
and the force used is only such force as may be used
in the act of copulation." ^^ From our investigation of
the authorities, we believe the view of the court in this
case, presents tiic coi-rect analysis of tlie authorities, at
least is in accordance witli the highest dictates of jus-
tice."

§ 687. Consent and the resistance, the extent thereof.
The act of intercourse must be without the consent and

12 — Payiio V. Rtntn, 40 Tox. Apji. 13— S(>o followiiif^ rnsp.s: Coiii. v.

202, 70 Am. St. Kcp. 713, 28 P. 235, Burke, 105 Masa. 370; l?(>fri„a v.

37 A. R. R. 50.'); Lewis v. Stale, 30 Young, 14 Cox C. C 114; h'cx v.

Ala. r,4, OH Am. Doc. 113. Mnyois, 12 Cox C. ('. .til; I'coplc

Rape 635

against the will of the woman in order to constitute the
crime of rape. As we have seen in the preceding pages,
that if the female is in such a condition, mentally, that
she cannot give rational consent and acquiescence to
the act, then there is no consent, and the act of inter-
course would be against her will; as where she is so
soundly asleep, or in a state of stupefaction produced
by the act of the defendant, or known by him to exist
at the time of the act. So, a consent induced by such
an array of force as to overcome the resistance of the
woman, taking into consideration the conditions and
the relative strength of the female and the ravisher, is
not consent.^* There must be a consent in good faith,
free from any compulsion. We do not believe that the
law is that a woman should resist to her utmost physi-
cal ability; when the circumstances are such as to ap-
peal to her reason that if she resists further that she
will suffer some serious bodily harm, then her yielding
to the act is not a consent. The consent must not be
controlled or dominated by fear. "A consent obtained
by a fear of bodily harai, or personal violence, is no
consent; and, though a man lay no hands on a woman,
yet, if by an array of physical force, he so overpowers
her mind that she dares not resist, he is guilty of rape
by having the unlawful intercourse." When the propo-
sition is, that the crime was accomplished by force or
threats, the threats employed must be such as might
create a just fear of death or of serious bodily harm,
taking into consideration the relative strength of the
parties, the condition of health, and other circumstances
of the case, showing the mind of the female. But where
force is used, it appears that it is not essential to con-
stitute the crime, to show that the female had a reason-

V. Griffin, 117 Cal. 583, 49 P. 711, 39 Fla. 155, 63 Am. St. Rep. 159;

59 A. S. R. 216. Eice v. State, 35 Fla. 236, 48 Am.

14— Bailey v. Com., 82 Va. 107, St. Eep. 245; Whittaker v. State.

4 Am. St. Eep. 88; Boyle v. State, 50 Wis. 518, 36 Am. Eep. 856.

636 Ceiminal, Law

able apprehension of death or serious bodily harm if
she did not yield; it must appear to her, that if she had
not yielded, that he would have accomplished his pur-
pose regardless of her resistance. It is not required of
the woman that she use all power of resistance at her
command; it is sufficient that she resisted as long as
under the circumstances she believed her personal safety
would permit. ^^

§ 688. By whom can the crime of rape be committed.

The husband has the legal right to the enjoyments in-
cident to the marriage relation, and for this reason is
incapable of committing the crime of rape upon his own
wife in person.^^ He, however, may be convicted as
principal in standing by, aiding and abetting another
in the ciime upon her. Thus, where the husband stood
by, and refused to aid the wife, while another raped
her, whom he had employed to seduce her for the pur-
pose of securing evidence to support a decree of divorce,
it was held that he was guilty of rape." So, also, a
woman lierself is incapable of committing the crime,
yet it lias been held that she may be convicted as a
principal in the second degree. So, also, for the same
reason, a male person under the age of fourteen years
of age, where it is shown that he possesses a mischievous
understanding, may be convicted as principal in the sec-
ond degree." At the common law a hoy under the age
of fourteen years of age was incapable of connnitting
the crime of rape, because he was conclusively presumed
to be i)liysieally incapable of consummating the act."

15— Hapnniian v. State. 47 la. Mich. 2H0, 4 Am. St. Rop. 857, 28

151; Bast) v. (State, 15 Tex. App. N. W. 896.

62; Fit/.herald v. State, 20 Tex. Ajip. 18— Law v. Coin., 75 Va. 885, 40

280. Am. Hep. 750.

10— State V. Dowoll, 106 N. C 1<)- Stevens v. State, 11 Ga. 225;

570, 11 S. E. 525. State v. PurIi, 7 .lom-s (N. C) 61;

17_Note Sniitli v. State, 80 Am. Williams v. State, 14 Olii.t St. 466;

Dec. .36.3; Proplc v. Cliapman, 62 Com. v. (irccn, 2 l'i<-k. .3H(i; Stale

Rape 637

This rule, at the common law, appears to have been
arbitrary, and never was relaxed. It was founded upon
the universal experience of the peoples who formed and
constituted the system of ''common law," that male per-
sons under the age of fourteen years of age, were physi-
cally incapable of propagating his kind. Scientifically,
it appears, that the power of male persons to reproduce
his kind is dependent upon climatic conditions, and that
of the peculiarity of the race, to some extent at least,
to which he may belong. That the age of puberty is
higher or lower, accordingly, as we proceed toward the
tropics, or the colder latitudes. Upon these considera-
tions some of the states of the Union depart from the
mle of the common law, holding that the presumption
may be rebutted by proof of capacity or existing
puberty.^" The rule in one of the states is, that the com-
mon law rule has no application whatever. In those
states where the common law rule is adhered to, a male
person under the age of fourteen is conclusively pre-
sumed to be incapable of committing an attempt to com-
mit rape. Some others, that it is incumbent upon the
prosecution to prove the capacity of the defendant to
commit rape, to authorize the conviction for the assault
or the attempt. Generally, we believe the application of
the rule of the common law in the states of the Union,
is in keeping with our conditions, and the policy of our
laws.

ASSAULTS WITH INTENT TO COMMIT RAPE OR ATTEMPTS TO

COMMIT RAPE

§ 689. Of the force necessary to constitute assault to
rape. To authorize a conviction for an assault with
intent to rape, it must be shown that the intention of

V. Cunningham, 100 Mo. 382; Foster 4 Am. St. Rep. 207; Gordon v. State,

V. Com., 96 Va. 306, 70 Am. St. 93 Ga. 531, 44 Am. St. Rep. 189, 21

Rep. 846, 31 S. E. 22. S. E. 54.
20— Healman v. Com., 84 Ky. 457,

638 Ceiminal Law

the defendant was, if it became necessary, to force com-
pliance with his desires at all events and regardless of
any resistance the woman might offer.^^ The force used,
or attempted to be used, must be such as might reason-
ably be supposed sufficient to overcome resistance, tak-
ing into consideration the relative strength, the age of
the prosecutrix, and the other circumstances surround-
ing the transaction.^'^ In some of the states the offense
is constituted by showing threatening gestures, or by
words accompanying them, an immediate intention,
coupled with the ability to enforce his desires.^' To
constitute this crime two elements are essential. The
first is, that there must be an intent to commit the crime
of rape, and the second is, that the rape shall be com-
mitted by force. The crime of rape is committed in
three different ways. The first by force. The second
by fraud. The third by threats. The first and the third
of these may be the force necessarj^- to commit the crime
of rape, and it may be that the fraud in some instances
may also be the force, or at least the constructive force
necessary to constitute the crime. As a distinction be-
tween an ''assault with intent" and the "attempt" to
commit rape is, that in the former, it is necessary that
the element of assault made upon the person of the fe-
male be present with the intent to commit the crime
of rape, while in the latter, it is not necessaiy, in all
cases, that there should be the force or the assault. As
where the statute provides, that rape may be committed
})y obtaining the consent of the female by some trick
or fraud, the attempt might be effectual without any

21— .state V. Preston, 74 Mo. 24; 23— State v. Limp, 21 Nov. 209,

Shiclfls V. State, 32 Tex. .\iip. 408; .37 Am. St. Rep. Wo; See Glover v.

Saddler v. State, 12 Tex. App. 194. Com., 86 Va. 382; Cunningham v.

22— Jones v. State, 18 Tex. App. Com., 88 Va. 37; State v. Dalton,

48.T; Burnoy v. State, 21 Tex. App. lOfi Mo. 4(i3 ; State v. Sclioyer. 104

56.5; Miller v. State, 23 Tex. App. Mo. 441, 24 Am. St. Hep. 344.
204; ThomaH v. State, 16 Tex. A])p.
.'535; Iruin v. State, 9 Tex. App. 06.

Rape 639

element of actual force. This is instanced where some
stupefying drug is administered, or where the accused
obtains consent of the female under circumstances which
induces her to believe that it is her husband, or where
the crime is committed while the female is asleep. The
attempt to commit the crime is complete, when the ac-
cused, with the intent to have carnal intercourse of a
female under the circumstances provided by the statute,
does any act which it would be necessaiy to do in ac-
complishing his purpose, aside from acts of mere prepa-
ration. One court says, that an attempt to commit a
crime can only be made under circumstances, which,
had the attempt succeeded, would have been the entire
substantive offense. The result we gather from these
principles is, that for a man to be guilty of an attempt
to commit rape, he must have intended to have used the
force necessary to accomplish his purpose, notwithstand-
ing the woman's resistance, or in the Case of the con-
structive force, to either destroy her power to resist him
by the administration of liquor or drugs, or to take ad-
vantage of the fact that she was already mentally or
physically unable to resist. There must have been some
act done, and a concurring intent, to constitute the
attempt.

§ 690. Assaults to rape under statutory age. There is
a great want of harmony in the authorities upon the
question whether an assault with intent to rape can be
perpetrated upon a female under the statutory age of
consent. One line of the American authorities, and it
appears the unanimous holdings of the English courts,
sustain the negative, while perhaps the weight of the
American authorities, the affirmative. Wliere a statute
defined rape: "Rape is the carnal knowledge of a woman,
without her consent, obtained by force, threats, or fraud,
etc., or the carnal knowledge of a female under the age
of fifteen yeai ., other than the wife of the person, with

640 Criminal, Law

or without her consent, and with or without force,
threats, or fraud." The 'court, after a very elaborate
discussion, hekl, that the female consenting, there could
not be an assault with intent to rape — that the consent
in fact, took from the act, the essential element of the
assault, and that such consent could not be superseded
by the lack of power to give a legal consent. Upon the
authority of this case the clause 'Svith or without con-
sent" presupposes that the female could give consent
in fact to the act, notwithstanding the consummated
crime — the rape — is committed whether she give her
consent or not to the act. It was also further held, that
it could not have been in the contemplation of the legis-
lature to make an ineifectual attempt to commit the
crime of rape, with the actual consent of the female, an
assault. It is also upon the authority of this case that
the doctrine is advanced, that no element of assault
enters into an ineffectual attempt or endeavor to have
carnal intercourse of a female under the statutory age of
consent, when she consents to the act — that upon the
principles of the common law an assault to rape cannot
be predicated upon the consent of the prosecutrix. In
other words, that there can be no assault with intent
to rape unless there is force — that in order that such
attempt be converted into a crime, the legislature is
required to make it such." It is believed that most
of the states have construed similar statutes to mean
that it becomes an assault with intent to rape, or at
least an attempt to rape, where the female gives the con-
sent where slie is under the prohibited age.^^ It is also
lield, tliat the accused is required, at his peril, to as-

24— Htinlin v. State, 46 8. W. 'Jll, 4G A. R. K. 234, 39 Tac. (iO?;

803. This casp is very extensive State v. Rlirover, 24 A. S. R. 344,

(liacusidon of the jn itui|ilos involved. 104 Mo. 441 ; State v. Neely, 21 Am.

Warren v. State, 41 S. W. 634. Itc]!. 496; Com. v. Murpliey, 165

2.1 Rhorles v.' State, 1 Cold. 350; ^ra,sH. 66, 52 A. S. R. 496, 42 N. E.

State V. Houx, 109 Mo. 32, A. S. R. 504; .JackHon v. State, 44 A. S. R.

686; People v. Venlegrecn, 106 Cal. 25, 91 Gu. 3

Rape 641

certain the true age of the female before he may legally
indulge in such adventures — that it is not a defense that
he believed her to be beyond the prohibited age. The
state is required, however, to allege and prove that the
act was committed under the age prohibited by the
statute.*^^

§ 691. The assault may be committed by the husband
upon the wife. An assault with intent to commit rape
may be committed upon the wife by the husband, where
by force he compels her to submit, and a third party
to attempt to commit the act of carnal intercourse with
her. There is some doubt whether a third party could
justify himself for the attempted forceful intercourse,
because of the compulsion of the husband. Whether one
has the right to attempt a rape or carnal intercourse
upon a female, where he is compelled to do so through
some force which may endanger his personal safety, has
not to our knowledge been authoritatively decided, al-
though there is some dicta on the subject.^'' A hus-
band may also be a principal to the rape of his wife,
where he stands by and watches her violation, and ac-
quiesces in the act of another person. At the common
law he would be a principal in the second degree.*^^ So,
where a female stands by, aids or assists a male to rape
another female, she is for a like reason guilty at com-
mon law as principal of the second degree.^®

§ 692. A boy under the age of fourteen years of age
may commit an assault to rape. This was not permitted
at the common law. The reason being that a boy of that
age was conclusively presumed incapable of committing

26— state v. Houx, 209 Mo. 654, 280, 4 A. S. E. 857, 28 N. W. 896,

23 A. S. R. 686; Com. v. Murphey, 68 Am. Dec. 264; Com. v. Fogerty,

165 Mass. 66, 52 A. S. E. 496. 8 Gray (Mass.) 489.

27— State v. Dowell, 106 N. C. 29— State v. Jones, 83 N. C. 605,

722, 19 A. S. E. 568, 11 S. E. 525. 35 Am. Eep. 586 ; State v. Com., 46

28— People v. Chapman, 62 Mich. la. 265.
C. L.— 41

642 Criminal Law

the crime of rape, because of the physical inability of
procreating his kind. As we have said in another con-
nection, the male's capacity to procreate is dependent
upon climatic conditions, many of the courts of the states
have held that the presumption is rebuttable, and the
state may show this power or ability in the male under
fourteen years.'®

§ 692a. Necessary at the coimnon law to prove pene-
traticn and emission. It was an essential element of the
crime of rape, at the common law, to show both the pene-
tration and the emission of the male organ into that of
the female.^^ At this time it is onlj^ necessary to show
that there was some penetration. If the male organ is
inserted into the libia of the female organ it is suffi-
cient.'^ To make proof of the penetration the testimony
of the prosecutrix may be relied on as sufficient. But
where the defendant denies the rape the prosecutrix' tes-
timony must be corroborated by the circumstances.''
Proof of particular act of unchastity is not admissible,
except with defendant. The general reputation of the fe-
male 's unchastity may be put in evidence for the purpose
of negativing the want of the consent to the act, but
not for the purpose of justification or excuse for the act.

30— Heilman v. Com. (Ky.), 4 1S7 ; Hnrrison v. State, 70 Wis. 448.

Am. St. Rep. 207; Gordon v. State 36 N. W. 1; Bean v. People (111.).

(Ga.) 44. 16 N. E. 656; People v. Bates, 38

31— Fitzgerald v. State, 20 Tex. N. W. 231; Lynn v. Com. (Ky.),

App. 281. 13 S. W. 74. This case holds that

32 — Witten v. State, 15 S. W. 871. corrohoratibn is not necessary Bur-

33— Rodgers v. State, 1 Tex. App. nett v. State, 83 Ala. 40, 3 So. (ill2.

CHAPTER XLIII

EOBBERY

§ 693. Definition. § 697. Property from whom taken.

§ 094. Taking property from a § 698. Value and the amount thereof.

debtor. § 699. The intent must be fraudu-

§ 694a. Nature of the force. lent.

§ 695. Of the degree of fear. § 700. Proof.
§ 696. Sodomy, charge of sufficient § 701. Of the assault.

fear.

§ 693. Definition. Robbery is the felonious taking of
property from the person of another by force, or by
putting in fear.^ The offense itself contains an element
of assault as well as of larceny. To constitute it, the
property must be actually taken into the possession of
the robber.^ It appears that the extent of fear is meas-
ured by that degree of force, or threatened force, to pro-
duce in the mind a reasonable apprehension of physical
injury, sufficient to overcome one's will.^ The taking-
need not be direct from the person, but taking the goods
in the presence of the owner is sufficient. What would
in the particular case constitute the crime in the presence
of the owner must be governed by the circumstances.
If the conditions are such as to indicate a direct personal
control, the construction is that it is from the person.

§ 694. Taking property from a debtor. The property
of which robbery is committed, must be other than the
property of the robber. Therefore, it has been held, that

1—3 Coke Inst. 68. State v. Carr, 43 la. 418; McCor-

2— Coffit V. State, 27 Tex. App. mack v. State, 26 Tex. App. 678;

608. Britt v. State, 7 Hump. (Tenn.) 4.1.

3— Long V. State, 12 Ga. 298;

643

644 Criminal Law

''the owner of property entitled to the possession, cannot
be guilty of robbery, although he takes it from another
by violence and by putting in fear of life." The indict-
ment must allege that the property is that of another
person than the defendant.* So, where one assaults his
debtor for the pui^DOse of inducing him thereby to pay
him, although he use violence and putting in fear, is
not guilty of the crime if the debtor parts with his prop-
erty to pay the debt in consequence of the assault.^

OF THE FOKCE

§ 694a. Nature. The force must be of such a nature as
to overcome the person robbed regardless of his resis-
tance — that is, the robber's intention must be to over-
come resistance at all events. The violence must be used
before and at the time of the robbery. The degTce or
extent of force is so closely allied to that of ''appre-
hended force producing fear," that it is rather a meta-
physical deduction to draw the distinction. "No sudden
taking unawares from the person, even done with force,
as by snatching a thing from one's hand, or out of his
pocket, is sufficient to constitute robbery." But where
a lady came out of a theater and a diamond ring was
snatched from her ear, tearing it, but the robber failing
to get the possession, the ring having fallen in her hair,
where it was afterAvards found, this was held to be rob-
l)eiy by force. So, where a watch was snatched from
the person, and the guard was thereby broken which was
around the neck of the owner, this was robbeiy.® If
tlicre is resistance it is robbery, although the property
may be acquired by stealth or sudden jerk. A non-forc-
iblo theft of property from the person is not robben%

4_Smiloy v. State, 30 Tex. App. State v. Ilolloway, 41 Ta. 200, 20

314; Brown v. State, 28 Ark. 128. Am. Rep. 586.

5— Chilrls v. State, Sup. Court 8— State v. McCune, 5 R. T. 60, 70

1875; Brown v. State, 28 Ark. 128; Am. If op. 176n.

Robbery

645

except in the instance of theft accomplished through fear,
which is within itself a constructive force.®

OF THE FEAR

§ 695. The degree. There is no very well defined rule
as to the degree of fear, but as we have previously re-
marked, "the degree of fear is measured by the degi'ee
of force or threatened force calculated to produce in the
mind a reasonable apprehension of physical injury suffi-
cient to overcome one's will.^'' Mr. Harris in defining
the degree of fear says; "What is the degree of fear?
On the one hand, the fear is not confined to the appre-
hension of bodily injuiy, and on the other, it must be of
such a nature, as in reason and common experience is
likely to induce a person to part with his property,
against his will and to put him, as it were, under a tem-
porary suspension of the power of exercising it through
the influence of the terror impressed." " The fear need
not be actual, but the circumstances must be of such a
nature as to create an implication in law — that is, ' ' if the
fact be laid to be done violently and against the will,
actual fear need not be proved, at the trial, because, un-
der such circumstances, the law will presume fear.^^ The
fear, then, is not measured in any wise by the relative
degree of personal courage or cowardice. The fear or

9 — Brennon v. State, 25 Ind. 403;
State V. John, 5 Jones (N. C.) 163.

10 — "If the transaction be at-
tended Avith such circumstances of
terror, such threatening by -words
or gestures, as common experience,
are likely to create an apprehension
of danger and to induce a man to
part with his property for the
safety of his person, he is put in
fear. Actual fear need not strictly
and precisely proved, for the law, in
odium spoliatiris, will presume fear,

when there appears to be just ground
for it. ' ' Long v. State, 12 Ga, 293 ;
see 12 Am. & Eng. Enely. of Law,
page 421, note.

11 — State V. Parson, 44 Wash.
299, 87 Pac. 349, 120 A. S. R. 1003.

12— State V. Lamb, 42 S. W. 827;
State V. Stinson, 124 Mo. 447, 27
S. W. 1098; State v. Lawler, 130
Mo. 366, 32 S. W. 979; Jones v.
State, 48 Tex. App. 363, 88 S. W.
217, 122 A. S. R. 759, 13 Ann. Cas.
455, 1 L. E. A. (N. S.) 1024.

646 Criminal Law

apprehension is not confined to the fear or apprehension
that violence will be done the owner or the person in the
possession of the property, but it may be a fear that
violence may be inflicted upon another person under the
immediate charge of the owner or person in the posses-
sion. As where a person is walking with his wife and
child, who delivered his property to the robber upon the
threat, that unless he did so, he would kill the child.

§ 696. Sodomy. Another instance of putting in fear,
gathered from the authorities, is where one is induced
to part with his property by a threat from another to
prosecute him for the crime of sodomy, or the crime
against nature. The character of fear, in this instance,
is the apprehension that one's character or reputation
will thereby suffer. This, also, seems to be sustained
by some American authority.^* In no other case, is a
fear that one's character or reputation will be damaged
by a threat to prosecute for an alleged crime is suffi-
cient to constitute the fear contemplated by the law.
Why this particular charge is sufficient to create a fear,
to constitute robbery, does not veiy clearly appear. But
we are lead to suppose, that the crime being one of a
nature so vile and degrading, that one would readily
part with his property tlirough the threat that he would
be so charged.

AS TO THE TAKING AND CARRYING AWAY

§ 697. From whom taken. This, like larceny, the prop-
erty must be taken from the possession of the owner
or the person in control, and into the manual posses-
sion of the robber. U must be taken from liis person or
from his immediate presence under such circumstances
as indicate and establisli manual possession. This of-

14— Long V. State, 12 Ga. 298;
Britt V. State, 7 Hump. 45.

llOBBERY ^ 647

fense consists of the elements of two crimes, larceny and
assault, and it cannot be committed when either one or
the other is absent. If the property is taken from the
person, and immediately thereafter the robber loses con-
trol of the same, it then is nevertheless robbery; but if
the same is not taken from the owner, and carried from
his possession, it is not robbery.^^

OF THE VALUE

§ 698. Extent of. To assault another for the purpose of
taking- from him a thing of no value, would not be rob-
bery, for the assault must be for the purpose of acquiring
something of value. ^^ However, it is necessary to show
that it was of some value, although it was slight. If, how-
ever, the assault was made with intent to rob, or take
property from the person, and the robber was mistaken
as to the property and there was none, he would in this
instance be guilty of an assault to rob.

OF THE INTENT

§ 699. Must be fraudulent. The intent must be to take
the property with the fraudulent purpose of acquiring
an interest in the same and to deprive the owner of it.
It must be a taking, animus furandi, and so if the
assault is made for any other purpose, it is not robbery,"
The intent must exist before the assault for an intent
to take the property after the assault is complete, and
the taking follow, it would be simple larceny. So, then,
the intent must not only be to steal the property, but

15— Adams v. Com., 153 Ky. 88, 10 Tex. App. 8; Wesley v. State,

154 S. W. 381, 44 L. E. S. (N. S.) 61 Ala. 282; Jackson v. State, 69

637 ; McAllister 65 W. Va. 97, 63 S. Ala. 249 ; Contra, State v. Perley,

E. 758, 131 A. S. R. 955; see note 86 Me. 427. 30 Atl. 74, 41 A. S. E.

131 A. S. E. 955; People v. Camp- 564; Ward v. State, 35 Tex. App.

bell, 231 111. 391, 84 N. E. 1035, 123 170, 60 A. S. R. 31.
A. S. E. 107, 14 Ann. Cas. 186. 17— Garrity v. State, 70 111. 83;

16— Arnold v. State, 52 Ind. 281, Hope v. People, 38 Am. Eep. 460,

21 Am. Rep. 175; Williams v. State, 83 N. Y. 418.

648 Ceiminal Law

must be to tal^e it by force or fear." That is, the in-
tent must exist before the assault is made, creating the
opportunity for the larceny, by putting in fear of bodily
harm, or by actual force. No repentance on the part of
the robber, coupled with an offer to restore the property,
will relieve the act of its felonious character, and in
this respect it is different from embezzlement, in which
crime the accused is peraiitted to show that he offered
to restore the property embezzled, for the purpose of
mitigating the offense.

§700. Of the proof. It is necessary to allege and
prove, in addition to the elements of larceny, that the
property was taken from the person, or from the imme-
diate presence of the party robbed, with force or fear
and against the will of the party robbed.^^ It appears
that it is not necessary to allege any particular value
of the property, but the proof must show that the prop-
erty has some value, although a veiy small value will
be sufficient, unless it becomes necessary in order to
comply wdth the direction of a statute; as where there
are degrees of the crime, dependent upon the value of
the property.^" It is also necessary to allege and to
prove the name of the person robbed; and it is also
necessary to prove the property actually passed to the
possession of the accused. If it passes to his possession,
then this is within itself, sufficient taking and carrying
away, and in k'gal parlance, corresponds to the term
**aspotavit," "ai)propriation," "conversion" and the
like, used in the ))ooks. The taking of the property
without detaching it from the person is not sufficient

18— Shinn v. State, 31 Am. Ecp. 50 la. 595, 9 N. W. 91Gj .Tames v.

110, 04 Ind. 18; Hanson v. State, State, 53 Ala. 380.

43 Ohio St. 370. 20— Com. v. White, 133 Pa. St.

19_Stcagar v. State, 99 Am. Dec. 182, 19 Atl. 350; Rex. v. Morris (C.

472, 39 Ga. 503; State v. Lcighton, & P.) 347.

ROBBEEY 649

proof to constitute the taking the possession, and carry-
ing away.^^

§ 701. Assault. Generally an indictment to rob carries
with it the power to convict for the assault to rob, if the
evidence fails to establish the robbeiy. But a convic-
tion could not follow upon an indictment for an assault
with intent to rob, for the simple assault only. Likewise,
a conviction for an attempt to steal could properly fol-
low, under an indictment for the larceny. The general
rule is that upon an indictment for an offense, the failure
to convict for the substantive crime the conviction of
the attempt may follow, as the allegation of the requi-
sites of the crime intended to be committed, is necessary,
even when the indictment is only for the attempt. The
contrary of the rule is also true that upon an indictment
for the attempt, the conviction for the substantive crime
is not permitted.22 The conviction of the defendant
upon an indictment for the substantive crime is a com-
plete bar to a further prosecution for the attempt, or the
substantive offense, but if indicted in the first instance
for the attempt, and acquitted, he might be convicted
for the substantive offense upon an indictment for that
offense.^'

21—1. Hale P. C. 533; Eex. v. 87; State v. Lewis, 30 Ala. 54, 68

Lapin, 1 Leach C. C. 360, 6 Am. Am. Dec. 113; State v. Summers, 1

Dec. 358. Mo. App. 374.

22— West V. State, 21 S. W. 23— State v. Womack, 41 La. Ann.

(Tex.) 686; Hill v. State, 53 Ga. 635; State v. Bronnon, 55 Mo. 63.

126; People v. Pawson, 56 N. Y. 17 Am. Rep. 643.
126; State v. McLaughlin, 44 Iowa

CHAPTER XLIV

SEDUCTION

§ 702. At the common law. § 705. Previous chaste character.

§ 703. Definition. § 705a. Burden of proof, conflict of

§ 704. Of the promise of marriage. decision.

§ 702. At the common law. At the common law se-
duction was not a crime. The father had a right of
action against one who had seduced his daughter. The
husband also had his action for damages against one
committing adultery with his wife. The two actions
seem to have been allowed upon different reasons. The
father's action was allowed upon the tlieoiy that it was
a trespass by reason of the assault, and the consequent
loss of services. It was founded upon the theory of
master and servant, and not upon the relation of par-
ent and child. In the case of the husband, he was al-
lowed damages because of the casting upon him for his
care and protection of spurious issue, and also perhaps
for the consequent loss of services. As we have ex-
plained there was no crime for the adulteiy, for the
common law did not undertake to correct the wrong ex-
cept to allow the husband the right of action against
the seducer. The seduction of the daughter, it seems,
might be accomplished in any manner that induced her
to yield her virtue. It was not dependent upon the prom-
ises of marriage, or any other specified cause. • For the
purpose of meeting this flagrant breach of sound moral-
ity the statutes of the several states have provided in
particular what shall constitute the criminal offense of
seduction, of which we shall see as we proceed.

§ 703. Definition. This crime consists in the persuad-
ing or inducing a woman of previous chaste character
to depart from tlie path of virtue, by the use of seduc-
tive arts, persuasions, blandishments and wiles which
have tlie effect upon her to cause her to yield her vir-
tue to the seducer,^ as her first act. Many of the statutes

1— Putman v. State, 29 Tex. App, 454, 25 Am. St. Kep. 738, 16 S. W.

650

Seduction 651

of the several jurisdictions are in many respects simi-
lar, but in others dissimilar. Most of them provide that
if the female is induced to yield herself to the embraces
of the seducer by a promise of marriage, that this con-
stitutes the crime unless the marriage is in fact consum-
mated before prosecution. Some statutes make this only
seduction when the promise is made to a female within a
certain age, and all women acting upon promises of mar-
riage over the statutory age and thereby yielding their
virtue, does not constitute the crime in the seducer. It
seems that unless the statutes set out specifically what
shall constitute the inducement, then any inducement
which has the effect of persuading her to consent to the
act will be sufficient. There must be some kind of de-
ception practiced by the defendant, and believed by the
prosecutrix, some imposition relied upon by her, which
caused her to yield herself to him. The mere mutual
desire to engage in illicit intercourse is not sufficient.
In other words, the female must be imposed upon, and
because of the imposition she gives her consent to the
act.^ If she yields by threats, fear or force, this is not
seduction.

§ 704. Of the promise of marriage. As we have said,
the statutes of most of the states provide that if the
female is induced through the promise of marriage to
yield her virtue, this is seduction. Thus it will be seen
that it is necessary that the female be unmarried at the
time the promise is made. It is believed that in all or
most of the states the female must be unmarried. If
there is any statute of any of the states making it seduc-
tion to obtain the consent of a married woman to an act
of carnal intercourse, by inducing thereto by any kinds of
flattery, persuasion, blandishment or wiles our investi-
gation of the subject has not disclosed it. It is not neces-
sary, however, that the man be legally able to consum-

97 ; state V. Patterson, 57 Am. Eep. 2— Powel v. State, 20 So. 4;

374, 88 Mo. 88. Smith v. State, 107 Ala. 139.

652 Ceiminal Law

mate the maniage.^ It is sufficient if the female believed
that he could do so, and that he would do so. It seems
that it is not necessary that the seduction take place at
the time of the promise, but if the act follow the promise
as the legitimate sequence of such promise, this will be
seduction. If the intercourse follow the promise of an
infant male person otherwise incapable of contracting,
and not permitted under the laws to form a contract of
marriage, then it is no defense to the charge that he
w^as an infant.* The question w^hether the promise was
relied upon is one of fact to be determined by the jury,
taking into consideration the circumstances of the par-
ticular case. No general rule can be given which can be
made to all cases. The opportunities of the prosecutrix
for receiving the flatteries and the amenities of the oppo-
site sex, her previous opportunities for association with
men, her education and her station in life may be taken
into consideration to determine whether she was in fact
deceived and imposed upon. As where a young man of
eighteen years of age frequently staying up with a young,
unsophisticated countiy girl to midnight, and told her
there was no harm in having illicit intercourse and that
nearly everybody did it,^ the court held that a convic-
tion was proper. A young girl might be made to yield
to the blandishment of a lover, and believing the truth-
fulness of his statements, in good faith extend the
favor of her virtue, whilst the same promises and protes-
tations to an older and more mature woman be looked
upon as mere folly and idle prating.

It is not every promise of marriage a woman is en-
titled to rely upon. As where the man is known to the
woman to be married at the time, she is bound by this
knowledge, for slie cannot be deceived by a promise

3_Cnllalian v. State, 30 Am. Ecp. noto, Konyon v. Tcoplc, 26 N. Y.

211; State v. Adams, 42 Am. St. 203, 84 Am. Dec. 117.

Rep. 790. 5— State v. IIiKflon, 32 la. 262;

4_Peoplc V. Kchoo, 128 Cal. 224, note to Bradshaw v. Jones, 76 Am.

69 Am. St. Bep. 52; case cited in St., page 671.

Seduction

653

which she knows cannot be fulfilled.^ So it has been
held that where there is an abrupt and blunt off^j" of
marriage upon the condition that she yield her virtue,
there is not seduction, but something more of barter
and sale.' So, there can be no seduction where the
promise is to marry in the event of pregnancy.* The
promise must be one that is calculated to win the con-
fidence and allay the suspicions of a modest woman.

§705. Previous chaste character. It is one of the

essential elements of this crime that the female must,
prior to the time of the actual intercourse, have been
of a chaste character. It seems that most of the statutes
are uniform as to the requirement that the prosecutrix
be of a chaste character before the acts of seduction.
Some of the statutes employ the terms "previous chasti-
ty" and ''previous chaste character." The courts ap-
pear to be a unit in the construction of these statutes,
that the prosecutrix must in fact be chaste, and not
merely that she has that repute among her friends and
acquaintances. Actual personal virtue is required on the
part of the prosecutrix, and this immediately preceding
the seduction.^ There are authorities holding that in
the absence of a statute setting forth "specifically that
the female be of a previous chaste character, or an-
other equivalent term or phrase, that it is necessary to
show that she was of a chaste character or in other

6— People V. Kehoe, 69 Am. St.
Eep. 54.

7— People V. Clark, 33 Mich. 112;
State V. Eeeves, 10 Am. St. Eep.
349.

8 — For a full discussion and cita-
tion of cases on this subject, see
note to Bradshaw v. Jones, 76 Am.
St. Eep. 659.

9 — The female must have been
actually chaste before she yields her
virtue to the seducer. English case,
Eex. V. Moon, 1910 IK. and B. 818,
repeated in 19 Ann. Cas. 442. See

cases in American state, collated by
states in note 19 Ann. Cas. 444; a
few of the cases cited are: Cluckett
V. State, 71 Ark. 398, 75 S. W. 1;
Kerr v. U. S., 7 Ind. Territory 486,
104 S. W. 809; Com. v. Wright, 27
S. W. 815; Putman v. State, supra;
People V. Hubbard, 92 Mich. 322,
52 N. W. 729; Carroll v. State, 74
Miss. 688, 60 A. S. E. 539; Andre
V. State, 5 la. 389, 68 Am. Dec.
708; People v. Nelson, 153 N. Y. 90,
60 A. S. E. 592.

654 Ckiminal Law

words was chaste. It is inconsistent with the generic
meaning of the word "seduction" to suppose the exist-
ence of the crime without showing at the time of the
commission of the offense, the actual chastity of the
prosecutrix. Virtue may be lost and yet reclaimed. So,
it perhaps is not the law that if it be shown that a fe-
male has at one time prior to the alleged seduction been
of unchaste character, that she is unchaste at the time
alleged. There must of course be evidence showing that
the vicious acts and habits have ceased and that the
former way of living and conduct have in good faith
been changed. The question of the chastity of the pros-
ecutrix is one of fact for the jury to determine upon all
the circumstances of the case.^" And for the purpose of
determining this it is proper to put in evidence the
acts of the prosecutrix, and her general conduct toward
other gentlemen; facts and circumstances showing a de-
bauched mind, such as lewd conduct and behavior. The
presumption prevails that the prosecutrix is at the time
of the alleged seduction chaste. The burden is upon the
defendant to show that she was not chaste. If he shows
that at one time in her life she was unchaste, then the
burden is upon the prosecution to show that at the time
alleged she has reformed and that she was of chaste char-
acter. Where a reasonable time has elapsed between the
previous act of intercourse and the alleged seduction the
presumption prevails that she has reformed."

§705a. Burden of proof— Conflict of decision. The
courts appear to be hopelessly in conflict, in tlie opinion
whetiier tlie prosecutrix is to be presumed to have been
chaste, prior to the intercourse with tlic defendant, whom
slie charges with liaving seduced lier. Some maintain
tliat previous chaste character is one of the elements of
the crime, and as such, it devolves upon the state to
prove that she was such.''^ Others maintain that all

10— 8t«to V. f^nrp, 132 Mo. 165; 11— People v. Squires, 49 Mich.

Wison V. State, 73 Ala. 527; State 487; People v. Nelson, supra.
V. Moore, 78 la. 494. 12— Dalas v. State, 3 A. L. R.

Seduction

655

females are presumed to be chaste, and that unchastity
is a defense which the defendant may maintain, if he
can. The former argue, that the defendant enters
into his trial with the presumption of innocence, until
his guilt is proven, beyond a reasonable doubt; and
that when a female is so unfortunate as to be a pros-
ecutrix in a charge of this kind, the presumption in her
favor must give way to that of innocence of the defend-
ant. It is admitted by all authorities that women gen-
erally are presumed to be chaste, up to the time her
character is brought in question in the prosecution for
seduction. ^^ The best that can be said is that the deci-
sions of the local jurisdiction in which the question
arises is the rule to be followed. The position taken by
the courts of Oklahoma that chastity is presumed until
defendant overcomes by proof, of unchastity, is more
in accordance with sound reason and justice to innocent
females. The law itself makes it a crime, only because
it is an imposition upon an immature and pliable na-
ture.^*

1459; Zabriski v. State, 43 N. J. L.
640, 39 Am. Eep. 610.

13— State V. Kelley, 245 Mo. 489,
43 L. K. A. New Series 476, 150 S.
W. 1057; State v. McMahon, 234
Mo. 611, 137 S. W. 872; State v.
Cook (Mo.), 207 S. W. 831.

■14— Marshall v. Territory, 2 Okla.
136; but in Diffey v. State (1913),
10 Okla., Grim. Ecp. 190, 135 Pac.
942, in answer to the contention that
prosecutrix in rape was not shown
to have been of previous chaste and
virtuous character, the court said:
' ' The law presumes that a female
is chaste and virtuous, and this pre-
sumption authorizes the jury to as-
sume at the outset that the prosecu-
trix was chaste and virtuous. If
any evidence is introduced tending
to show a want of previous chaste
and virtuous character, then the
state is required to establish the

previous chaste and virtuous char-
acter of the prosecutrix beyond a
reasonable doubt." In Com. v. Al-
len (1890), 135 Pa. 483, 19 Atl. 957,
a prosecution for rape, the court
said: "There was no need for the
commonwealth to prove her to be
of good repute until her character
had been attacked. The law pre-
sumes it to be good. If it was not,
that was a matter of defense. A
man who seeks to escape conviction
for an offense of this nature upon
the ground that the female child he
has abused is not of good repute
must show it. The law will not help
him out with presumptions. See also,
to the same effect, under the same
statute, Com. v. Howe (1908), 35
Pa. Super. Ct. 554, same case on
other appeals in (1909), 38 Pa. Su-
per. Ct. 208, and (1910), 42 Pa.
Super. Ct. 136.

CHAPTER XLV

SODOMY

S 706. Defined. § 707a. Sodomy per os.

§ 707. As to the assault.

§ 706. Sodomy is copulation of persons with each other
against nature, or with beasts. At the common law it is
a felony and punishable with death. At common law it
was not very fully defined. Blackstone defining it as the
infamous crime against nature.^

By the law of the ancient Goths the sodomites were
punished by burning alive. This crime is particularly
detestable. That there is consent on the part of both
parties is no defense, as there is in the crime of rape.'
At common law it appears that there was some ques-
tion whether both penetration and emission was neces-
sary to complete the crime; but now it is pretty gen-
erally conceded that penetration alone is sufficient. This
offense can be committed between males and females as
well as between males. A man and his wife might be
guilty of the offense.*

§ 707. An assault with intent to commit sodomy is an
indictable attenii)t to commit the crime. It appears
til at both parties may be guilty of the attempt to com-
mit tlie crime, when for any reason there is a failure to
penetrate. All the states we presume have statutes cov-

2—4 Bla. r:oiii. 21.'). 4 — Lewis v. State, 30 Tex. Ay\}.

3_Tf conmiittcd on a boy under 37, Gl Am. Si. Uvy. 8.31; Prindle

the a^e of fourteen years, the adult v. State, 31 Tex. A\)\). r>r>], 37 Am.

person is K^uWy only. 1 TIale 470; 3 St. Rep. 833; Peoi)lo v. llodK'kin, 94

InHt. ',[). Mich. 27, 34 Am. St. Kcp. 321.

G5G

Sodomy 657

ering in particular this crime and the attempt. A solici-
tation to commit this crime is criminal attempt.^

§ 707a. Per os. This crime, as defined above, has been
adopted in many of the several states by legislative
enactment, and from the construction placed thereon by
the courts two lines of decisions have arisen: One hold-
ing that copulation per os, that is by mouth, constitutes
the crime of sodomy ; ^ and the other, that it does notJ
Perhaps the latter is the rule in the majority of the
several states of this country. Apparently there is a
conflict in the courts. The crime at common law was
confined to the offense between human beings, per anus.
The crime derived its name from the practices of the
Sodomites, the city of Sodom, and the condemnation of
the inhabitants, as recorded in holy writ, is familiar to
every bible reader. Historically, these abominable prac-
tices, it is stated, have been common in all ages, and
epochs. The reason is not very apparent why the com-
mon law did not sufficiently define the crime except upon
the theory that the same was so contrary to human na-
ture, and disgusting to the higher sensibilities of the
race. The courts of this country, however, with more
than veneration, have construed, in accordance with the
common law, that the penetration per the mouth did
not come within the definition of Sodomy. As before
stated, penetration is essential, but emission is not. At
one time the ancient common law required both, but
by the statute of 9 George I, 14 C. 31, this was abolished,
and since that time penetration is the only essential.

5— Eex. V. Hickman, 1 Moody 34; 101 N. E. 620, 45 L. R. A., N. S.

Davis V. Brown, 27 Ohio 326; Estes 473; State v. Start, 65 Ore. 178,

V. Carter, 10 la. 400; Fennel v. 132 Pac. 572, 16 L. E. A., N. S. 260.

State, 32 Tex. 378, 39 Tex. 290, 29 7— Note 21st Am. Gas. 336, and

Tex. 44. authorities referred to.

6— Grover v. State, 170 Ind. 450,

C. L.— 42

CHAPTER XLVI

SUNDAY LAWS AND OFFENSES AGAINST RELIGION

§ 708. Cliristianity as a part of the
common law.

§ 709. No punishment for non-ob-
servance of religion.

§ 710. Divisions of the offense.

§ 711. Definition of Blackstone.

§ 712. Profane swearing a public
nuisance.

§ 713. Single instances of swearing
not punishable.

S 714. Non-observance of religion,
whether common law.

§ 715. Sustained upon what grounds.

§ 716. Municipal regulations.

§ 717. Sunday laws constitutional.

§ 718. Same continued.

§ 718a. Power conferred upon city
governments.

§ 719. As to the statutes.

§ 720. Exceptions to labor.

As to those persons who ob-
serve a day other than Sun-
day.
As to the intent.

§ 721.

§722.

§ 708. Christianity a part of the common law. By the
law of England, many acts were punished, as being
against religion, which is not recognized in the United
States.^ There is no doubt that Christianity, is a part
of the common law of this countiy, and in many instances
it may be resorted to in punishment of such flagrant
blasphemous and wicked attacks upon the Christian re-
ligion, as tends to lower the standard of morality in the
community, or to lessen the respect due God and re-
ligion.2 Comimm law "Blasphemy" and "Profaness"
are fully recognized, as being a part of the common law
of the United States, although it may be understood, that
the several states have statutes,— in some instances en-
larging, and in others curtailing the common law. In the
United States there is no established or state religion,
;uid the law as such, does not assume to punish irreligion.

1_4 Bla. GO, Kill) Title Witchcraft,
Heresy and the like.

2— PcojjIo v. l{uK(,'Ic8, H Johns.
290, 3 Grecnl. Ev. 08; Vidol v. Ge-

rard's Executor, 2 llow. 127; See
Tpdcgraft v. Com., 11 Serg. & R.
394; Com. v. K.ial.i.id, 20 Pick. 206;
State V. Chandler, 2 Ilerring 553.

(J58

Sunday Laws, Offenses Against Religion 659

§ 709. No punishment for the nonobservance. The an-
cient ideas and doctrines seem to have been, that the
state had the right to punish for the mere nonobservance
of religion, and especially irreligion, where there was no
pretension whatever to its observance.^ From whence
can a government derive its authority to punish for the
nonobservance of religion, or any offenses it may deem
to be against religion? As the ministers of God? Cer-
tainly not. For whatever might have been the notion
of the early English writers and law makers, the doctrine
is long since exploded that the community has the right
to prescribe religious doctrines and observances to the
individual. The true doctrine seems to be that the com-
munity has a right to punish offenses against religion to
the extent of protecting the morals and good order of the
community, and not for the specific purpose of inspiring
confidence and belief in God and religion.*

Such acts as are purposely contumaciously and mali-
ciously made, either spoken or written, against God and
religion, have by experience been found, provocative of
disorder and corrupting to public morals. Hence, punish-
ment for such acts follow, because they are directed
against the welfare of the community, and not merely
against God and religion. As Ave have seen elsewhere, all
immoralities are not within the powers of the legisla-
ture, since many immoral and irreligious acts are left
to the individual conscience for rectification. In such
instances the community is deemed not to be affected by
such acts. Thus, the vice of lying, however immoral, is
non-criminal. Profanations made in private, however
coarse and vulgar, are not punishable by express law.

3—4 Bla., see chap. 4 sub. tit., P. C. 1 to 36, 2 Chitty Cr. Laws,

Apostasy, Heresy, Nonconformity, 33 to 34.

Blasphemy, offenses against the es- 4 — Kuggles v. People, 5 Am, Dec.

tablished church, etc.; See 1 East. 335.

660 Criminal Law

§ 710. Division of offenses. It can make veiy little dif-
ference in the application of punisliments for offenses
against religion, whether the injury be to religion in the
abstract, or to the morals of the community. Since in
either case the effect is the same upon society, we shall
treat of these offenses under the heads: (1) Blasphemy,
(2) Profane swearing, (3) Nonobservance of the Sabbath.

§ 711. Definition of Blackstone. Blasphemy as defined
by Blackstone (and adopted by the American courts), is
an offense immediately against God and religion, denying
His being or providence; or by contumacious "reproaches
of our Savior Christ. In general tenns this ottense con-
sists, in speaking evil, either orally or in writing, of God
and the Holy Scriptures, with unholy and mischievous
purpose, deteriorating from the proper reverence for the
Deity. Judge Kent, in Ruggles v. People, says: The
authorities show that Blasphemy against God, and Con-
tumacious Reproaches, and Profane Ridicule of Christ or
the Holy Scriptures (which are equally treated as blas-
phemy), are offenses punishable at common law, whether
by words or writing. The consequences may be less ex-
tensively pernicious in the one case than in the other,
but in both instances the reviling is still an offense,
because it tends to corrupt the morals of the people, and
destroy good order. Such offenses, have always been con-
sidered independent of any religious establishment, or
rites of the church. They are treated as affecting the
essential interests of cix il society. * Jesus Christ was a
bastard and liis mother was a wliore;' wliy shouhl not
tliis language contained in the indictment, be an offense
witli us? There is notliing in our manners or institutions
wliicli has prevented tlie application, or tlie necessity of
the common law. We stand equally in need now, as for-
merly, of 11i;i< nior.'il (lis('ii)line, and those princii)lcs of
virtue, wiiich helj) <o hind society. The people of this
state in common with the people of the country, ])rofess

Sunday Laws, Offenses Against Religion 661

the general doctrines of Christianity, as the rule of their
faith and practice; and to scandalize the author of these
doctrines, is not only, but even in respect to the obliga-
tions due to society, is a gross violation of decency and
order. Nothing could be more offensive to the virtuous
part of the community, or more injurious to the tender
morals of the young, than to declare such profanity
lawful.'"^

PROFANE SWEARING

§ 712. Form of a public nuisance. While this offense
is a species of blasphemy, its criminality appears to rest,
almost upon entirely different reasons. Common swear-
ing, cursing, and profanity, are pronounced criminal only
where they take the form of a public nuisance, and as
such are indictable at common law,^ Hence, swearing in
private, or in a low tone of voice, is not indictable.'' In
general, under the statutes, swearing is criminal only
when it takes the form of a nuisance, or the tendency of
which, is to provoke breaches of the peace. Loud, bois-
terous, vulgar and indecent language used in a public
place may be abated as a common nuisance.

§ 713. Single instances not punishable. Profanity is
indictable when it becomes a public nuisance, and when
it is shown that the swearing or profane language is
offensive to the public.^ It is not necessary to show that

5 — Euggles V. People, 5 Am. Dec.
335; Cities Taylors Case, 1 Vent.
293, 4 Bla. 59, 1 East. P. C. 3.

6 — State V. Gaines, 40 Am. Dee.
64.

7 — ' ' To become a public nuisance,
the conduct of tlie party must pass
beyond the point of being injurious
to the individuals, and be hurtful
and offensive to the community; and
it may be difficult to prove, that the
use of profane words, but for the
space of five consecutive moments,

could so inconvenience the commu-
nity as to amount to a nuisance;
yet we can suppose such cases, and
surely, the fact that it may be dif-
ficult to establish an offense and
punish the offender could not be a
valid reason for relaxing the law
with regard to it." State v. Crisp,
39 Am. Rep. 713.

8 — Gaines v. State, 40 Am. Eep.
64; State v. Graham, 3 Sneed. 134.
"Any words imparting an impreca-
tion of divine vengeance, or implor-

662 Criminal Law

the name of the deity has been used.® The single in-
stance of a profane oath, not repeated, nor in a loud voice,
has been held, not to be per se, indictable.^" Yet, under
some circumstances a single oath might become offensive
to the public.

NON-OBSERVANCE OF THE SABBATH

§ 714. Whether common law. All Christian communi-
ties have for centuries, observed one day in seven, as a
day of rest and worship. It is immaterial, so far as
these pages are concerned, whether the failure to observe
the Sabbath was common law in England or not. At a
very early period, the English parliament enacted stat-
utes prohibiting secular pursuits on the sabbath, and in
some form or other punished the failure to worship God.
It is also unimportant, whether these statutes could be
common law in our states, for it has always been the
policy of our nation to prohibit the following of manual
occupations on the Sabbath. Every state of this Union
have statutes covering in particular all violations of the
Sabbath, such as laboring in the field, attending the ex-
cliange, the marts of commerce, keeping open shop, or
office, and many other kinds of secular pursuits. The
genius of our institutions (while, in sentiment, is em-
bedded in the doctrines of the Christian religion, as ob-
served in the mother country), yet limit her prohibitions
against secular pursuits only, and not against the privi-
k'ge to worsliip God according to the dictates of the indi-
vidual."

iiiK flivinc condcmnatioii, so used as the oatli is often repeated, although

fo coiislituto a puldic nuisance would ui)on the same occasion, and for llic

sunicc. " period of five miimtcs, tlic ofl'cnso

9 — Gaines v. State, 40 Am. Eep. of <'()niiii(iii miisanco is comiilrli'. "

r.4; Calcomh v. State, 8 Conn. STf}; State v. Crisp, .^0 Am. l?op. 713,

Cif.d \>y fhc court in rminos v. State, Hf) N. C. 528.

H,ij,rji. 11 — Bloom v. Kichanls, 12 Oliio St.

10— GninoH v. State, supra, citrs 'M)l.
State V. Graham, .1 Snocd. 134. "If

Sunday Laws, Offenses Against Religion 663

§715. Sustained upon what grounds. The statutes
against Sabbath breaking are sustained by the courts,
mainly upon the reason that laboring and following the
usual occupations on that day, is corruptive to public
morals and subversive of the best interests of society.
Most of the state constitutions guarantee to every person
the privilege of worshiping God in his own fashion, and
in his own way. In view of these provisions, many cases
have been before the courts claiming that the prohibi-
tions against laboring on the Sabbath was contrary to
these constitutional provisions. These statutes have in
an unbroken line of decisions, been held to be constitu-
tional.^^

§ 716. Municipal regulations. The court in a leading
case, in constniing the effect of such statutes and the
right of the legislature to enact them, says : * * Of course,
it is no objection, but upon the contrary, is a high recom-
mendation to a legislative enactment, based upon justice
and public policy, that it is found to coincide with the
precepts of pure religion; but the fact is nevertheless
true, that the power to make the laws rests in the legisla-
tive control, over things temporal and not over things
spiritual. We are then to regard the statute under con-
sideration, as a mere municipal or police regulation,
whose validity, is neither strengthened nor weakened by
the fact that the day enjoined is the Sabbath day. Wis-
dom requires that men should refrain from labor at least
one day in seven, and the advantages of having the day
of rest fixed, and so fixed that it will happen at regular
recurring intervals, are too obvious to be overlooked. It
is within the constitutional competence of the general as-
sembly, to require this cessation of labor and to name
the day of rest. But regarding it as an exercise of legis-

12— Shovcr V. State, 10 Ark. 259; St. 391; See Spccklet v. Com., 49
Scales V. State, 47 Ark. 476, 58 Am. Am. Dec. 518, 8 Pa. St. 312. See
Eep. 768 ; Bloom v. Richards, 2 Ohio note 58 Am. Kep., page 772.

664 Criminal Law

lative authority, the acts would not have had, neither
more nor less validity, had any other day been fixed." ^'

§ 717. Sunday laws constitutional. Therefore as an-
nounced in the foregoing pages, statutes regulating the
doing of anything on Sunday is within the police power
of the state, and cannot be said to be in contravention of
those constitutional provisions guaranteeing religious
freedom. The idea is not that the state shall compel the
observance of Sunday as a religious duty, but that in the
government of civil society, it becomes necessary, in con-
sideration of man's moral, mental and physical welfare,
to enforce the observance of one day in seven as a day
of rest.^* Hence, it is now well settled, that the state in the
exercise of its inherent police power, may limit, restrict,
or prohibit, any class of labor or acts which is deemed to
be for the benefit of the community; and to this end may
prohibit the running and the operation of railroad trains
on the Sabbath, and that too, notwithstanding that the
road may be interstate in its operations. No better expo-
sition can be made than in the language of Judge Green :
''The statute was passed for the sole purpose of promot-
ing the mental, moral and physical well being of our
people, by providing that they should rest a seventh part
of their time from labors of every description, and that
tliis rest should l)o at regular intervals. The legislature
liad no sort of purpose in doing so, to regulate in any way
interstate commerce. It does not propose to trammel, hin-
der or shackle commerce. It was intended for, and is,
only an internal policy law; and though it may have some
incidental effect upon the interstate commerce of the de-
fendant, that fact according to all the authorities, does

13— Bloom V. Richards, 2 Ohio St. Rprccht v. Com., 8 Pa. St. 312, 49

391; 8co also Society v. Conibarn, Am. Dec. 518.

Pa. St. 125, 91 Am. Dor. 139; Gablo 14— State v. Orlonns JudRC, 39

V. HouHton, 29 Tex. 235; State v. La. Ann. 132; Rprcrht v. Com., 49

Orloans .TiiflRe, 39 La. Ann. 132; Am. Doc. 518, 8 Pa. St. 312.

Sunday Laws, Offenses Against Religion 665

not make such a law unconstitutional as regulating inter-
state commerce; for it does not regulate it in the consti-
tutional sense of the word." ^^

§ 718. Continued. The views expressed by Judge Green
in the foregoing section, is doubted, and the question
viewed from the authorities, is not a settled one. But it
appears to us, reason, conscience and justice, is with
the views of the court in the West Va. case above referred
to.ie

§ 718a. Power conferred upon city governments. Be-
fore leaving this branch of the law, attention is called to
the fact that the state legislatures, usually, have author-
ity to confer upon the municipal governments of cities
and towns, the power to regulate the proper obsei'vance
of the Sabbath. The question, however, of the limit and
extent of power placed upon such municipal bodies, is
properly referable to the local constitutional and statu-
tory provisions of the state.^'' The right of the legislature
and the municipal governments of cities and towns, to
place restrictions on the sale of specific articles, or the
pursuit of particular trades or business, to the exclusion
of others, has been denied, but the courts seem to be
uniform in holding that such statutes and municipal
regulations are not constitutional, because of discrimi-
nation.^*

§ 719. As to statutes. The statutes vary in the several
jurisdictions, and what may be prohibited in the one,
might not be in another. No useful purpose can be sub-
served in this connection by enumerating the provisions of

15 — State V. Baltimore Eailroad App. 597; State v. Langstone, 88 N.

Co., 24 W. Va. 783. C. 692.

16— Norfolk Ry. Co. v. Com., 13 18— People v. Scranton, 61 Mich.

S. E. 340; See authorities cited. 244; Ex parte Sundstrom, 25 Tex.

17— Flood V. State, 19 Tex. App. App. 133; State v. Walsh, 36 Conn.

584; Angerhoffer v. State, 15 Tex. 215.
App. 613 ; Bohney v. State, 21 Tex.

QQQ Criminal Law

any particular statute. They are in many respects similar
in phraseology, and in the construction placed upon them
by the courts. But owing to their difference in language,
no general rule can be deduced. In general these statutes
prohibit all employments or laboring on the Sabbath, but
exceptions are often met with where the thing is one of
necessity; such as open drug stores, meat markets, news
stands, and the like.^^

§ 720. Labor excepted. Most statutes recognizing the
justice and the importance of at all times protecting the
citizen in his person, and in the security of his property,
except labor and other acts which are found to be neces-
sary to be performed on the Sabbath. Thus, cooking and
preparing the necessary food and drink, would in the
absence of a statute be free, from the nature of the thing,
from interference of the penal law. But the necessity of
the matter must be governed by the surroundings and the
circumstances. By the authority of Holy Writ, we have
the right to take the ox from the ditch. Again, acts of
charity are exempt, such as proceed from a sense of
moral duty; as instanced in the attendance of church; the
burial of the dead; the ministering to the sick and reliev-
ing the distressed; even such acts entail labor. All those
things, that as well could have been performed on an-
other day, is without the exceptions.^"

§ 721. These who observe a day other than Sunday.
Statutoiy provisitms in some of the several jurisdictions,
out of respect to the religion of a party of its citizens, who
desiic lo observe some other day tiian the first day of the
week as their day of rest and worship, are permitted to

19 — People V. Scranton, 61 Mich. 20 — 8cc Statutes of several states.

244, 28 N. W. 81 ; Rtato v. Ohiiicr, Also 24 Am. & I'^iir. Encly. 543-544-

34 Mo. 115; Ilcllaines v. Adcr- 515, and cases cited.
conibre, 40 Am. Kcp. 684, 15 S. C.
110.

Sunday Laws, Offenses Against Religion 667

follow the ordinary pursuits on the day regularly ap-
pointed by the law as a day of rest, without incurring the
penalty incident thereto, in other persons ; provided, how-
ever, such persons observe some other day as a day of rest
in good faith.^^

§ 722. The intent. A criminal intent, is as necessary to
constitute this offense as in any other crime, that is, an
insane person will not be subject to the operation of the
law; nor would one who is forced or coerced, but one who
acts contrary to the prohibitions of the law, is not ex-
cused from its penal consequences because he may believe
that it is his duty to violate such prohibitions. So, in the
case one believes, from a sense of religious duty, that he
should not so observe the day set apart as Sunday, be-
cause it is contrary to his religious convictions, is never-
theless guilty if he does an act contrary to the statutes.^^

§ 723. There are many offenses at common law and old
statutes of England that are not indictable offense in
this country. The principles involved in these however,
have been reaffirmed and carried into the statutes of the
United States and of the several states, in an extended
and modified form; this principally because of the
changed conditions, and the difference in the form of
government and nationality; and again because of the
utter extinction of the reasons that gave rise to the
original crimes.

21— Johns V. state, .78 Ind. 332,
41 Am. Eep. 577n; Liberman v.
State, 26 Neb. 464; Com. v. Has.,
122 Mass. 40; Scales v. State, 47
Ark. 476, 58 Am. Eep. 768.

22 — In the case of Scales v. State,
47 Ark. 476, the court said: "The
appellants are reduced to this: that
because he conselentiouslv believes

that he is permitted by the law of
God to labor on Sunday, he violates
with impunity a statute making it
illejral to do so. But a man's reli-
gious belief cannot be accepted as a
justification for committing an overt
net made criminal by the law of the
laud. ' '

CHAPTER XLVn

TREASON

§ 724. Not indictable as at common
law offense in this country.

§ 724. This crime by the laws of England — the common
law oifense, is not indictable in this country. At the
common law the crime was divided into two classes, viz. :
high and petit treason. High treason consisted in the
attempt to exercise royal power; killing the king's father,
or his messengers; to compass or imagine the king's
death; to violate the king's daughter, unmarried; or the
wife of the eldest son, or the king's companions; levying
war against the realm; adhering to the king's enemies; to
counterfeit the king's great or privy seal, to counterfeit
the king's money, or kill the chancellor, treasurer, or the
justices. Petit treason consisted, in the killing of the hus-
band by the wife, the killing by a servant his master, and
an ecclesiastic, his lord or ordinaiy. Petit treason was
founded upon the theory that, in the domestic life of the
subject, the wife and the servant stood in the same rela-
tion to the husband and the master, as the husband to
the king.^ Hence, if cither proved recreant to the
ol)lig{itions he owed to his king or the lord or master,
he was guilty of treason. In the soil of our institutions,
sucli plants cannot grow, for the reason that we have
no king, and for the reason that we have come to place
\V(»iii;iii upon ;i iil.Miic wllli llic iiu'ii. In \':\v\, \\\ovo was at
common law no reason for tlie petit treason, because
llic wife was i)unished for nmrder only and not for
treason; and so was the servant for the killing of the

1—4 lllack. 75-80.

668

Treason 669

master. So in fact there was no petit treason. The term
petit treason, denoted a social position — a position of in-
feriority and servitude — of duties and obligations. In
our country the tlieoiy of law is, that all persons are equal
in all things — except that the wife in many jurisdictions
has restrictions placed upon her as to the right to hold
and dispose of her property — but as to the operation of
the criminal law, all are equal. The principle of the com-
mon law, as to high treason, especially in the sense that
it is a crime against Government, applies with equal force
to all govenmients. The right of the government to
protect itself against the machinations and subversive
acts of its citizens and its enemies, looking to its impair-
ment or destruction, is inherent. We believe that all
political economists hold as an abstract proposition, that
the highest obligation of the citizen, is to uphold and de-
fend his government, and all certainly agree that the gov-
ernment has the right to demand and the power to en-
force obedience to its laws.

CHAPTER XLVIII

tnSTLAWFUL ASSEMBLIES

§ 725. Definition and explanation.
§ 726. This offense as disturbance of
the peace.

§ 725. Definition and explanation. An unlawful assem-
bly is the meeting together of three or more persons for
the pui^Dose of doing some unlawful act or in disturbing
the peace in a tumultuous manner, to the terror of the
people.^ The gist of the offense is the meeting together of
three or more persons with the intent to do some unlawful
act. The intention may not be to do any particular un-
lawful act, it is sufficient that some thing unlawful is in-
tended to be done. It is not necessaiy that there should
as a matter of fact be any unlawful act committed by the
body or any one of them. Two elements appear to be
necessary to complete the crime. 1. The intent to do
something the law looks upon as being reprehensible. 2.
The meeting of three or more together with such intent.
Closely allied to this offense, is that of rout and riot.
To be exact, an unlawful assembly is the meeting together
of three or more persons, under such circumstances, and
accompanied with such disturbing manifestations as to
terrorize and otherwise frighten the people having no
ostensible legal, moral, or beneficial purpose in view.
Rout seems to be very well defined as the noisy and up-
roarious procession of an unlawful assembly on its route
to execute the judgment and decree of the assembly.*
Riot is the execution of the judgment and the decree of
the unlawful assembly. The conmion law offense of rout

1 — Spires v. People, 3 Am. St. for <hc purpose of boating I) who

Rep. 329. lives a mile off; Ihcy ro to D's

2 — State V. Suinner, 2 Speer. 599; .-md beat him. At A 's house it is

Justice Stevens illustrated as fol- an unlawful assembly, on the road

lows: A, B .'ind <"' nifot al A 's housr it is a rout and the nttnck is a Rinj.

670

Unlawful Assemblies 671

and riot must proceed from an unlawful assembly as a
l^redicato. Riot must be participated in by at least three
persons, and they must have a common purpose, and their
acts directed to the same end jointly, although they sep-
arately perform different parts of the common purpose.
All persons engaged in these offenses are principals and
punished alike.^ But where there are other crimes grow-
ing out of the unlawful acts, such as homicide and the
like, the rioters will be guilty as principals, especially
so if there was an intent to kill.

§ 726. This offense as a disturbance of the peace. Re-
ally this offense includes within its scope all meetings of
three or more persons, who assemble with a common in-
tent and purpose of tumultuously proclaiming their
intent to incite and advise others to acts of violence. It
is in the nature of a conspiracy participated in by three
or more. Under the statute of the state of New York
which in terms provides that * * in order to constitute the
crime of unlawful assembly, three or more persons, being
assembled, should attempt, or threaten any act tending
toward a breach of the peace, or an injury to person or
property, or any unlawful act." Held that the offense
can be only committed when there is a concert or combi-
nation of three or more persons who unite in the attempt
or in the threat to do one or more of the things provided
and specified in the statute." ''A threat made by one or
by two persons only, in which no others participate,
would not be indictable under this statute, although made
in the assembly of many persons. It was also the rule at
the common law that three or more persons should be
assembled and participate in the unlawful purpose in
order to constitute the offense of unlawful assembly, or
the cognate offenses of rout and riot." If one person
make a threat then it must be shown that at least two

3— state V. Brizil, Eice 257; Scott
V. United States, Morris 142.

672 Ckimixal Law

others participated, and adopted it by their act and con-
duct.* "If any person encourages, promotes, or takes
part in riots, whether by words, signs or gestures, or by
wearing the badge or ensign of the rioters, he himself is
to be considered a rioter." ^ It seems that this may be
proved by the applause given by others while one of the
party is delivering phillipics or the utterance of threats
against others, or the advising of resorting to unlawful
means to relieve a supposed grievance.^

4:— People V. Most, 128 N. Y. 108, 6— Spies v. People, 3 Am. St. Eep.

26 Am. St. Eep. 453. 320, and note.

5 — Clifford v. Brandon, 2 Camp.
370; adopted in the above case.

A FOREWORD

The succeeding jjages are an attempt to gather together
all the General Federal Criminal Laws. No attempt has
been made to give the laws applicable to the District of
Columbia, Hawaii, Porto Rico, the Philippine Islands,
Alaska, the National Parks, or any other which relate
to our foreign jurisdiction.

No attempt has been made to cite the several changes
through which any act has passed, but the intention has
been to give citation to the particular act, so that it
may be located as the last expression of Congress, by
reference to the Act and the Statute at Large where it
may be found.

The Criminal Code has been preserved as in the original

Act.

Several of the more recent acts have been copied in
full, such as the National Prohibition Act, the Espionage,
Search WaiTant, and some others. Offenses relating
to the same general subject have been grouped together
in the same chapter, such as the chapter of Interstate
Commerce and the National Prohibition Act, and Com-
mon Carriers.

The index refers to the Criminal Code sections as car-
ried into the section of this book, and thus readily located.

J. E. G.

C. L.— 43

PART III

The Criminal Statutes of the United States of a

General Nature.

This includes Criminal Code, Act of March 4, 1909,
and all other criminal violations, which relate to the
United States proper.

The local laws relating to the District of Columbia,
Hawaii, Porto Eico, the Philippine Islands and Alaska,
and such as regnilate the several National Parks is not
given.

Arranged in thirty-nine chapters. The Crimi-
nal Code is preserved entire, as in the original
enactment. The chapters have been subdivided
to suit the arrangement of tlio chapters of this
book.

The index to the Criminal Code is the same as
that in 35 Statutes at Large and the same plan is
followed through the entire Index.

PART THREE

CHAPTER XLIX

OFFENSES RELATING TO AGENTS ABROAD

§ 727. Making false oath or account
by consular officer, perjury,

§ 728. Consular officers must account
for all moneys, penalty em-
bezzlement.

§ 729. Consul or commercial agent
must perform duties, neg-
lect, penalty.

§ 730. False certificate by consul,
vice consul or agent as to
property, punishment.

§ 731. Perjury may be committed

before a Secretary of Lega-
tion and Consular officer
and may be prosecuted in
any district of U. S.

§ 732. Assaulting public minister of
the II. S., penalty.

§ 733. "Writ of process sued out
against foreign minister.

§ 734. Person suing out process
against public foreign min-
ister deemed violator of
public peace, punishment.

§ 727. Making false oath or account by consular officer,
perjury. Every consular officer, in rendering his account
of fees received shall furnish a full transcript of the reg-
ister which he is required to keep, and make oath that, to
the best of his knowledge, the same is true, and contains
a full and accurate statement of all fees received by him,
or for his use, for his official services as such consular
officer, during the period for which it purports to be ren-
dered. Such oath may be taken before any person hav-
ing authority to administer oaths at the port or place
where the consular office is located. If any such consular
officer wilfully and comiptly commits perjury, in any
such oath, within the intent and meaning of any Act of
Congress now or hereafter made, he may be charged, pro-
ceeded against, tried and convicted, and dealt with in the
same manner, in all respects, as if such offense had been
coromitted in the United States, before any officer duly

675

676 Criminal Law

authorized therein to administer or take such oath, and
shall be subject to the same punishment and disability
therefor as are or shall be prescribed for such offense.^

§ 728. Consular officers must account for all moneys —
Penalty, embezzlement. Every consular officer who wil-
.fully neglects to render true and just quarterly accounts
and returns of the business of his office, and of moneys
received by him for the use of the United States, or who
neglects to pay over any balance of said moneys due to
the United States at the expiration of any quarter, before
the expiration of the next succeeding quarter, or ^vho
shall receive money, property, or effects belonging to a
citizen of the United States and shall not within a reason-
able time after demand made upon him by the Secretaiy
of State or by such citizen, his executor, administrator,
or legal representative, account for and pay over all
moneys, property, and effects, less his lawful fees, due to
such citizen, shall be deemed guilty of embezzlement, and
shall be punishable by imprisonment for not more than
five years, and by a fine of not more than two thousand
dollars.''

§ 729. Consul or commercial agent must perform du-
ties; neglect, penalty. If any consul or commercial agent
neglects or omits to perfomi, seasonable, the duties im-
posed upon him by the laws regulating the shipment and
discharge of seamen, and the reclamation of deserters on
board or from vessels in foreign ports, or is guilty of any
malversation or abuse of power he shall be liable to any
injured person for all damage occasioned thereby; and
for all malversation and corrupt conduct in office, he shall
be punishable by imprisonment for not more than five
years and not less than one, and by a fine not more than

1— R. S. 1728, 11 Stat. 68.
2— R. 8. 1734, Act Dec. 24, 1898,
30 Stat. 771.

Offenses Relating to Agents Abroad 677

ten thousand dollars and not less than one thousand
dollars.^

§ 730. False certificate by consul, vice-consul or agent
as to property — Punishment. If any consul, vice-consul,
commercial agent, or vice-commercial agent falsely and
knowingly certifies that property belonging to foreigners
is property belonging to citizens of the United States, he
shall be punishable by imprisonment for not more than
three years and by a fine of not more than ten thousand
dollars.*

§ 731. Perjury may be committed before a secretary
of legation and consular officer and may be prosecuted in
any district of U. S. Eveiy secretaiy of legation and con-
sular officer is hereby authorized, whenever he is required
or deems it necessary or proper so to do, at the post, port,
place, or within the limits of his legation, consulate, or
commercial agency, to administer to or take from any
person an oath, affirmation, affidavit, or deposition, and to
perform any notarial act which any notary public is re-
quired or authorized by law to do within the United
States. Every such oath, affirmation, affidavit, deposition,
and notarial act administered, sworn, affirmed, taken,
had or done, by or before any such officer, when certified
under his hand and seal of office, shall be as valid, and of
like force and effect within the United States, to all in-
tents and purposes, as if administered, sworn, affirmed,
taken, had or done, by or before any other person within
the United States duly authorized and competent thereto.
If any person shall wilfully and corruptly commit per-
jury, or by any means procure any person to commit per-
jury in any such oath, affirmation, affidavit, or deposition,
within the intent and meaning of any act of Congress now
or hereafter made, such offender may be charged, pro-
ceeded against, tried, convicted, and dealt with in any

3— R. S. 1736, 5. Stat. 397. 4— R. S. 1737, 2 Stat. 204.

678 Criminal Law

district of the United States, in the same manner, in all
respects, as if such offense had been committed in the
United States, before any officer duly authorized therein
to administer or take such oath, affirmation, affidavit, or
deposition, and shall be subject to the same punishment
and disability therefor as are or shall be prescribed by
any such act for such offense ; and any document pui-port-
ing to have affixed, impressed or subscribed thereto or
thereon the seal and signature of the officer administer-
ing or taking the same in testimony thereof, shall be
admitted in evidence without proof of any such seal or
signature being genuine or of the official character of such
person; and if any person shall forge any such seal or
signature, or shall tender in evidence any such docu-
ment with a false or counterfeit seal or signature thereto,
knowing the same to be false or counterfeit, he shall be
deemed and taken to be guilty of a misdemeanor, and on
conviction shall be imprisoned not exceeding three years
nor less than one j^ear, and fined in a sum not to exceed
three thousand dollars, and may be charged, proceeded
against, tried, convicted, and dealt with therefor, in the
district where he may be arrested or in custody.**

§ 732. Assaulting public minister of the United States
— Penalty. Every person who violates any safe conduct
or passport duly obtained and issued under authority of
the United States; or who assaults, strikes, wounds, im-
prisons, or in any other manner offers violence to the per-
son of a public minister, in violation of the law of nations,
shall be imprisoned for not more than three years, and
fined, at the discretion of the court.®

§ 733. Writ or process sued out against foreign min-
ister — Void. AVlienever any writ or process is sued out

5— n. S. 1750, 11 Stat. 61.
6— K. S. 40C2, Act Apr. 30, 1790,
1 Stat. 118.

Offenses Relatixc to Agents Abroad 679

or prosecuted by any person in any court of the United
States, or of a State, or by any judge, whereby the person
of any public minister of any foreign prince or State,
authorized and received as such by the President, or any
domestic or domestic servant of any such minister, is
arrested or imprisoned, or his goods or chattels are dis-
trained, seized, or attached, such writ or process shall
be deemed void.'

§ 734. Person suing out process against public foreign
minister deemed violator of public peace — Punishment.
Whenever any writ or process is sued out in violation
of the preceding section, every person by whom the same
is obtained or prosecuted, whether as party or as attor-
ney or solicitor, and every officer concerned in executing
it shall be deemed a violator of the laws of nations and a
disturber of the public repose, and shall be imprisoned
for not more than three years, and fined at the discretion
of the court.®

7— E. S. 4063. Act Apr. 30, 1790, 8— E. S. 4064, Act Apr. 30, 1790,
1 Stat. 117. 1 Stat. 118.

CHAPTER L

PROVISIONS RELATING TO BIRDS

§ 735.

§ 736.

§737.
§738.

Migratory and insectivorous
birds shall be under the
protection of the govern-
ment and unlawful to kill,
punishment.

Migratory Bird Treaty Act,
Acts relating to migratory
birds, unlawful.

Regulation allowing hunting.

Shipments contrary to state
laws, prohibited.

§ 739. Arrest for violations.

§ 740. Punishments for violations.

§ 741. Open season.

§ 742. Taking, etc., for scientific or
breeding purposes.

§ 743. Invalidity of any clause.

§ 744. Inconsistent laws repealed.

§ 745. Breeding on farms not pro-
hibited.

§ 735. Migratory and insectivorous birds shall be under
the protection of the government and unlawful to kill —
Punishment. All wild geese, wild swans, brant, wild
ducks, snipe, plover, woodcock, rail, wild pigeons, and all
other migratory game and insectivorous birds which in
their northern and southern migrations pass through or
do not remain permanently the entire year within the
borders of any State or Territoiy, shall hereafter be
deemed to be within the custody and protection of the
Government of the United States, and shall not be de-
stroyed or taken contrary to regulations hereinafter pro-
vided therefor.

The Department of Agriculture is hereby authorized
and directed to adopt suitable regulations to give effect
to the previous paragraph by prescribing and fixing
closed seasons, liaving due regard to the zones of tem-
perature, breeding lial)its and times and line of migratory
(light tliereby eiia])rmg the department to select and des-
ignate suitable districts for difTercnt portions of tlie
country, and it shall be unlawful to shoot or by any de-

680

Pkovisioxs Relating to Birds 681

vice kill or seize and capture migratory birds within the
protection of this law during said closed seasons, and
any person who shall violate any of the provisions or
regulations of this law for the protection of migratory
birds shall be guilty of a misdemeanor and shall be fined
not more than $100 or imprisoned not more than ninety
days, or both, in the discretion of the court.

The Department of Agriculture, after the preparation
of said regulations, shall cause the same to be made
public, and shall allow a period of three months in which
said regulations may be examined and considered before
final adoption, permitting, when deemed proper, public
hearings thereon, and after final adoption, shall cause the
same to be engrossed and submitted to the President of
the United States for approval: Provided, however. That
nothing herein contained shall be deemed to affect or
interfere with the local laws of the States and Territories
for the protection of non-migratory game or other birds
resident and breeding within their borders, nor to pre-
vent the States and Territories from enacting laws and
regulations to promote and render efficient the regula-
tions of the Department of Agriculture provided under
this statute.'^

MIGRATORY BIRD TREATY ACT

§ 736. Acts relating to migratory birds, unlawful. Sec.
2. That unless and except as permitted by regulations
made as hereinafter provided, it shall be unlawful to
hunt, take, capture, kill, attempt to take, capture or kill,
possess, offer for sale, sell, offer to purchase, purchase,
deliver for shipment, ship, cause to be shipped, deliver
for transportation, transport, cause to be transported,
carry or cause to be carried by any means whatever, re-
ceive for shipment, transportation or carriage, for export,

1— Act Mar. 4, 1913, 37 Stat.
847.

682 ^ Criminal Law

at any time or in any manner, any migratory bird, in-
cluded in the tenns of the convention between the United
States and Great Britain for the protection of migratory
birds conchided August sixteenth, nineteen hundred and
sixteen, or any part, nest, or egg of any such bird.

§ 737. Regulation allowirg hunting. Sec. 3. That sub-
ject to the provisions and in order to carry out the pur-
poses of the convention, the Secretary of Agriculture is
authorized and directed from time to time, having due
regard to the zones of temperature and to the distribu-
tion, abundance, economic value, breeding habits, and
times and lines of migratoiy flight of such birds, to deter-
mine when, to what extent, if at all, and by what moans,
it is compatible with the terms of the convention to allow
hunting, taking, capture, killing, possession, sale, pur-
chase, shipment, transportation, carriage, or export of
any such bird, or any part, nest, or egg thereof, and to
adopt suitable regulations pennitting and governing the
same, in accordance with such determinations, which reg-
ulations shall become effective when approved by the
President.

§ 738. Shipments contrary to state laws, prohibited.
Sec. 4. That it shall be unlawful to ship, transport, or
carrj^, by any means wiiatever, from one State, Territory,
or District to or through a foreign country, any bird, or
any part, nest, or egg thereof, captured, killed, taken,
shipped, transported, or carried at any time contrary to
the laws of the State, Territoiy, or District in which it
was captured, killed, or taken, or from which it was
shipped, transported, or carried. It shall be unlawful to
import any bird, or any part, nest, or egg thereof, cap-
tured, killed, tnken, sliijiped, transported, or carried con-
trary to the laws of any Province of the Dominion of
Canada iji which the same was captured, killed, or taken,
or from which it was shipped, transported, or carried.

Provisions Relating to Birds 683

§ 739. Arrest for violations. Sec. 5. That any em-
ployee of the Department of Agriculture authorized by
the Secretary of Agriculture to enforce the provisions of
this Act shall have power, without waiTant, to arrest
any person committing a violation of this Act in his pres-
ence or view and to take such person immediately for
examination or trial before an officer or court of com-
petent jurisdiction ; shall have power to execute any war-
rant or other process issued by an officer or court of
competent jurisdiction for the enforcement of the pro-
vision of this Act; and shall have authority, with a
search warrant, to search any place. The several judges
of the courts established under the laws of the United
States, and United States commissioners, may, within
their respective jurisdictions, upon proper oath or affir-
mation showing probable cause, issue warrants in all such
cases. All birds, or parts, nests, or eggs thereof, cap-
tured, killed, taken, shipped, transported, carried, or pos-
sessed contrary to the provisions of this Act or of any
regulations made pursuant thereto shall, when found, be
seized by any such employee, or by any marshal or deputy
marshal, and upon conviction of the offender or upon
judgment of a court of the United States that the same
were captured, killed, taken, shipped, transported, car-
ried, or possessed contrary to the provisions of this Act
or of any regulation made pursuant thereto, shall be for-
feited to the United States and disposed of as directed
by the court having jurisdiction.

§ 740. Punishments for violations. Sec. 6. That any
person, association, partnership, or corporation who shall
violate any of the provisions of said convention or of this
Act, or who shall violate or fail to comply with any regu-
lation made pursuant to this Act, shall be deemed guilty
of a misdemeanor and upon conviction thereof shall be
fined not more than $500, or be imprisoned not more than
six months, or both.

QS4: Criminal Law

§ 741. Open season. Sec. 7. That nothing in this Act
shall be constnied to prevent the several States and Ter-
ritories from making or enforcing laws or regulations
not inconsistent with the provisions of said convention
or of this Act, or from making or enforcing laws or regu-
lations which shall give further protection to migratory
birds, their nests, and eggs, if such laws or regulations do
not extend the open seasons for such birds beyond the
dates approved by the President in accordance with sec-
tion three of this Act.

§ 742. Taking, etc., for scientific or breeding purposes.
Sec. 8. That until the adoption and approval, pursuant
to section three of this Act, of regulations dealing with
migratory birds and their nests and eggs, such migratory
birds and their nests and eggs as are intended and used
exclusively for scientific or propagating purposes may
be taken, captured, killed, possessed, sold, purchased,
shipped, and transported for such scientific or propa-
gating purposes if and to the extent not in conflict with
the laws of the State, Territory, or District in which they
are taken, captured, killed, possessed, sold, or purchased,
or in or from which they are shipped or transported if
the packages containing the dead bodies or the nests or
eggs of such birds when shipped and transported shall be
marked on the outside thereof so as accurately and
clearly to show the name and address of the shipper and
contents of the package.

Sec. 9. Tliat the unexpended balances of any sums
appropriated by the agricultural appropriation Acts for
the fiscal years nineteen hundred and seventeen and nine-
teen liuTidred and eighteen, for enforcing the provisions
of the Act approved March fourth, nineteen hundred and
thirteen, relating to the protection of migratory game and
insectivorous ])irds, arc hereby reappropriated and made
availa])l(' nnlil expended for the expenses of carrying
into effect the provisions of this Act and regulations made

Provisions Relating to Bikds 685

pursuant thereto, including the payment of such rent, and
the employment of such persons and means, as the Secre-
tary of Agriculture may deem necessaiy, in the District
of Columbia and elsewhere, cooperation with local au-
thorities in the protection of migratory birds, and neces-
sary investigations connected therewith: Provided, That
no person who is subject to draft for service in the army
or navy shall be exempted or excused from such service
by reason of his employment under this Act.

§ 743. Invalidity of any clause. Sec. 10. That if any
clause, sentence, paragraph, or part of this Act shall, for
any reason, be adjudged by any court of competent juris-
diction to be invalid, such judgment shall not affect, im-
pair, or invalidate the remainder thereof, but shall be con-
fined in its operation to the clause, sentence, paragraph,
or part thereof directly involved in the controversy in
which such judgment shall have been rendered.

§ 744. Inconsistent laws repealed. Sec. 11. That all
Acts or parts of Acts inconsistent with the provisions of
this Act are hereby repealed.

§745. Breeding on farms not prohibited. Sec. 12.
Nothing in this Act shall be construed to prevent the
breeding of migratory birds on farms and preserves and
the sale of birds so bred under proper regulation for the
purpose of increasing the food supply.

Sec. 13. That this Act shall become effective immedi-
ately upon its passage and approval.

Act of Congress, July 3, 1918. Part 1, 40 U. S. Stat, at
Large, pages 755-756 and 757.

CHAPTER LI

ADMIKALTY AND MARITIME JURISDICTION
CHAPTER ELEVEN

Offenses Within the Admiralty and Maritime and the Territorial
Jurisdiction of the United States

Penal Code Act, March 4, 1909

§ 746. Places within or waters upon
which sections of this chap-
ter shall apply.

§ 747. Murder,

§ 748. Manslaughter.

§ 749. Punishment for murder; for
manslaughter.

§ 750. Assault with intent to com-
mit murder, rape, robbery,
etc.

§ 751. Attempt to commit murder
or manslaughter,

§ 752. Rape.

§ 753. Having carnal knowledge of
female under sixteen.

§ 754. Seduction of female passen-
ger on vessel.

§ 755. Payment of fine to female se-
duced ; evidence required ;
limitation on indictment.

§ 756. Loss of life by misconduct of
officers, etc, on vessels,

§ 757. Maiming.

§ 758. Robbery,

§ 759. Arson of dwelling houses.

§ 760. Arson of other buildings, etc.

§ 761. Larceny,

§ 762. Receiving, etc., stolen goods.

§ 763. Laws of States adopted for
punishing wrongful acts,
etc.

§ 746. Maritime and territorial jurisdiction prescribed.
Sec. 272. Tlio crimes and olTi'iiscs defined in this chapter
shall be jiuiiished as herein prescribed:

First — When conmiittod upon the hii>h seas, or on any
other waters within the admiralty and maritime jurisdic-
lioii of tlie United States and out of tlie jurisdiction of
any i)articular State, or wlien committed witliin the
admiralty and maritime Jurisdiction of the United States
and out of the jurisdiction of any particular State on

G86

Admiralty and Maritime Jurisdiction 687

board any vessel belonging in whole or in part to the
United States or any citizen thereof, or to any corporation
created by or under the laws of the United States, or of
any State, Territoiy, or District thereof.

Second — When committed upon any vessel registered,
licensed, or enrolled under the laws of the United States,
and being on a voyage upon the waters of any of the
Great Lakes, namely: Lake Superior, Lake Michigan,
Lake Huron, Lake Saint Clair, Lake Erie, Lake Ontario,
or any of the waters connecting any of said lakes, or
upon the River Saint Lawrence where the same consti-
tutes the International boundary line.

Third — When committed within or on any lands re-
served or acquired for the exclusive use of the United
States, and under the exclusive jurisdiction thereof, or
any place purchased or othenvise acquired by the United
States by consent of the legislature of the State in which
the same shall be, for the erection of a fort, magazine,
arsenal, dockyard, or other needful building.

Fourth — On any island, rock, or key, containing de-
posits of guano, which may, at the discretion of the Presi-
dent, be considered as appertaining to the United States.

§ 747. Murder. Sec. 273. Murder is the unlawful killing
of a human being with malice aforethought. Every mur-
der perpetrated by poison, lying in wait, or any other
kind of wilful, deliberate, malicious, and premeditated
killing; or committed in the perpetration of, or attempt
to perpetrate, any arson, rape, burglary, or robbery; or
perpetrated from a premeditated design unlawfully and
maliciously to effect the death of any human being other
than him who is killed, is murder in the first degree. Any
other murder is murder in the second degree.

§748. Manslaughter. Sec. 274. Manslaughter is the
unlawful killing of a hmnan being without malice. It is
of two kinds :

688 Criminal Law

First. Voluntary — upon a sudden quarrel or heat of
passion.

Second. Involuntaiy — in the commission of an unlaw-
ful act not amounting to a felony, or in the commission
of a lawful act which might produce death, in an unlawful
manner, or without due caution and circumspection.

§ 749. Punishment for murder; for majislaughter. Sec.
275. Every person guilty of murder in the first degree shall
suffer death. Every person guilty of murder in the second
degree shall be imprisoned not less than ten years and
may be imprisoned for life. Every person guilty of volun-
tary manslaughter shall be imprisoned not more than ten
years. Every person guilty of involuntaiy manslaughter
shall be imprisoned not more than three years, or fined
not exceeding one thousand dollars, or both.

§ 750. Assault with intent to commit murder, rape,
robbery, etc. Sec. 27G. AVhoever shall assault another
with intent to commit murder, or rape, shall be impris-
oned not more than tw^enty years. AVhoever shall assault
another with intent to commit any felony, except murder,
or rape, shall be fined not more than three thousand dol-
lars, or imprisoned not more than ten years or both.
"Whoever, with intent to do bodily harm, and without just
cause or excuse, shall assault another with a dangerous
weapon, instrument, or other thing, shall be fined not
more than one thousand dollars, or imprisoned not more
than five years, or both. Wliocvor shall unlaw^'ully strike,
beat, or wound another, sliall be fined not more than five
hundred doUars, or imprisoned not more than six months,
or botli. Whoever shall unlawfully assault another, shall
be fined not more than throe hundred dollars, or impris-
oned not more than three months, or both.

§ 751. Attempt to commit murder or manslaughter.
Sec. 277. Wlioever shall attempt to commit murder or

Admiralty and Maritime Jurisdiction 689

manslaughter, except as provided in the preceding sec-
tion, shall be fined not more than one thousand dollars
and imprisoned not more than three years.

§ 752. Rape. Sec. 278. Whoever shall commit the crime
of rape shall suffer death.

§ 753. Having- carnal knowledge of female under six-
teen. Sec. 279. Whoever shall carnally and unlawfully
know any female under the age of sixteen years, or shall
be accessoiy to such carnal and unlawful knowledge be-
fore the fact, shall, for a first offense, be imprisoned not
more than fifteen years, and for a subsequent offense be
imprisoned not more than thirty years.

§ 754. Seduction of female passenger on vessel. Sec.
280. Every master, officer, seaman, or other person em-
ployed on board of any American vessel who, during the
voyage, under promise of marriage, or by threats, or the
exercise of authority, or solicitation, or the making of
gifts or presents, seduces and has illicit connection with
any female passenger, shall be fined not more than one
thousand dollars, or imprisoned not more than one year,
or both; but subsequent intermarriage of the parties may
be pleaded in bar of conviction.

§ 755. Payment of fine to female seduced; evidence re-
quired; limitation on indictment. Sec. 281. AAHien a per-
son is convicted of a violation of the section last preced-
ing, the court may, in its discretion, direct that the
amount of the fine, when paid, be paid for the use of the
female so seduced, or her child, if she have any; but no
conviction shall be had on the testimony of the female
seduced, without other evidence, nor unless the indict-
ment is found within one year after the arrival of the
vessel on which the offense was committed at the port of
its destination.

C. L.— 44

69C Criminal Law

§ 756. Punishment for loss of life by misconduct of of-
ficers, owners, charterers, inspectors, etc., of vessels.

Sec. 282. Every captain, engineer, pilot, or other person
employed on any steamboat or vessel, by whose miscon-
duct, negligence, or inattention to his duties on such ves-
sel the life of any person is destroyed, and eveiy owner,
charterer, inspector, or other public officer, through whose
fraud, neglect, connivance, misconduct, or violation of
law the life of any person is destroyed, shall be fined not
more than ten thousand dollars, or imprisoned not more
than ten years, or both: Provided, That when the owner
or charterer of any steamboat or vessel shall be a coi'po-
ration, any executive officer of such corporation, for the
time being actually charged with the control and man-
agement of the operation, equipment, or navigation of
such steamboat or vessel, who has knowingly and wil-
fully caused or allowed such fraud, neglect, connivance,
misconduct, or violation of law, by which the life of any
person is destroyed, shall be fined not more than ten
thousand dollars, or imprisoned not more than ten years,
orljoth.

§757. Maiming-. Sec. 283. Whoever, with intent to
maim or disfigure, shall cut, bite, or slit, the nose, ear, or
lip, or cut out or disable the tongue, or put out or destroy
an eye, or cut off or disable a limb or any member of
another person ; or whoever, with like intent, shall throw
or pour upon another person, any scalding hot water,
vitriol, or other corrosive acid, or caustic substance what-
ever, shall be fined not more than one thousand dollars,
or imprisoned not more than seven years, or both.

§ 758. Robbery. Sec. 284. Whoever, by force and vio-
lence, oi- ]>y j)iilfiiii;- III Tear, shall feloniously take from
the pei"S()ii oi- presence of another anything of value, shall
be imprisoned not more than fifteen years.

C. L.— 44

Admiralty and Maritime Jurisdiction 691

§759. Arson of dwelling house. Sec. 285. ^Vlioever
shall wilfully and maliciously set fire to, burn, or attempt
to bum, or by means of a dangerous explosive destroy or
attempt to destroy, any dwelling house, or any store,
bam, stable, or other building, parcel of a dwelling house,
shall be imprisoned not more than twenty years.

§ 760. Arson of arsenal, etc., other building, etc. Sec.
286. Whoever shall maliciously set fire to, burn, or at-
tempt to bum, or by any means destroy or injure, or
attempt to destroy or injure, any arsenal, armory, mag-
azine, ropewalk, shiphouse, warehouse, blockhouse, or
barrack, or any storehouse, bam or stable, not parcel of
a dwelling house, or any other building not mentioned
in the section last preceding, or any vessel built, building,
or undergoing repair, or any lighthouse, or beacon, or any
machinery, timber, cables, rigging, or other materials
or appliances for building, repairing, or fitting out vessels,
or any pile of wood, boards, or other lumber, or any mili-
tary, naval, or victualing stores, arms, or other munitions
of war, shall be fined not more than five thousand dollars
and imprisoned not more than twenty years.

§ 761. Larceny. Sec. 287. Whoever shall take and
carry away, with intent to steal or purloin, any personal
property of another, shall be punished as follows: If the
property taken is of a value exceeding fifty dollars, or is
taken from the person of another, by a fine of not more
than ten thousand dollars, or imprisonment for not more
than ten years, or both ; in all other cases, by a fine of not
more than one thousand dollars, or by imprisonment not
more than one year or both. If the property stolen con-
sists of any evidence of debt, or other written instrument,
the amount of money due thereon, or secured to be paid
thereby, and remaining unsatisfied, or which in any con-
tingency might be collected thereon, or the value of the
property the title to which is shown thereby, or the sum

692 Ckimixal Law

which might be recovered in the absence thereof, shall be
deemed to be the value of the property stolen.

§ 762. Receiving-, etc., stolen goods. Sec. 288. Whoever
shall buy, receive, or conceal, any money, goods, bank
notes, or other thing which may be the subject of larceny,
which has been feloniously taken, stolen, or embezzled,
from any other person, knowing the same to have been
so taken, stolen or embezzled, shall be fined not more
than one thousand dollars and imprisoned not more than
three years; and such person may be tried either before
or after the conviction of the principal offender.

§ 763. Laws of states adopted for punishing wrongful
acts, etc. Sec. 2'-^9. Whoever, within the territorial limits
of any State, organized Territory, or District, but within
or upon any of the places now existing, or hereafter re-
served or acquired, described in section two hundred and
seventy-two of this act [746], shall do or omit the doing
of any act or thing whicli is not made penal by any law
of Congress, but which if committed or omitted within
the jurisdiction of the State, Territory, or District in
which such place is situated, by the laws thereof now in
force would be penal, shall be deemed guilty of a like
offense and be subject to a like punishment; and everj^
sucli Slate, Territorial, or District law shall, for the pur-
poses of this section, continue in force, notwithstanding
any subsequent repeal or amendment thereof by any such
State, Territory, or District.

CHAPTER LII

VIOLATION OF THE CENSUS LAWS

§ 764. All persons over 18 years to
answer questions by cen-
sus enumerator, punishment
for inaccurate information.

§ 765. Unlawful use of frank cen-
sus matter, punishment.

§ 766. Willfully Avithholding infor-
mation by officer religious
organization, etc., to cen-
sus taker.

§ 767. Census mail frank, illegal
use of, punishment.

§ 768. Punishment for securing pay
for appointment of census
employee, etc.

§ 769. Census employee neglecting
duty without cause, false
swearing, false returns, etc.

§ 770. Consideration or fee for ap-
pointment under census act
illegal, punishment.

§ 771. Officers and employees fail-
ing to perform duty under
census act, punishment.

§ 772. Persons over twenty-one years
of age required to give in-
formation to census taker.
Eefusal; punishment.

§ 773. Ecfusing information to cen-
sus director relative to
hides, etc.; punishment.

§ 774. Penalty for briljing officer.

§ 775. Officers neglecting to perform
official duties; penalty.

§ 776. Persons over twenty-one years
must answer questions of
census taker; penalty.

§ 764. All persons over 18 years to answer questions by-
census enumerator — Punishment for inaccurate informa-
tion. That it shall be the duty of all persons over eighteen
years of age when requested by the Director of the Census,
or by any supendsor, enumerator or special agent, or
other employee of the Census Office, acting under the
instructions of the said director, to answer correctly, to
the best of their knowledge, all questions on the census
schedules applying to themselves and to the families to
which they belong or are related, and to the farm or
farms of which they or their families are the occupants;
and any person over eighteen years of age who, under
the conditions hereinbefore stated, shall refuse or wilfully
neglect to answer any of these questions, or shall wilfully

693

694 Criminal Law

give answers that are false, shall be guilty of a misde-
meanor, and npon conviction thereof shall be fined not
exceeding- $100.

And it is hereby made unlawful for any individual,
committee, or other organization of any kind whatsoever,
to offer or render to any supervisor, supervisor's clerk,
enumerator, interpreter, special agent, or other officer or
employee of the Census Office engaged in making an
enumeration of population, either directly or indirectly,
any suggestion, advice, or assistance of any kind, with
the intent or purpose of causing an inaccurate enumera-
tion of population to be made, either as to the number of
persons resident in any district or community, or in any
other respect; and any individual, or any officer or mem-
ber of any committee or other organization of any kind
whatsoever, who directly or indirectly offers or renders
any such suggestion, advice, information, or assistance,
with such unlawful intent or purpose, shall be guilty of
a misdemeanor, and upon conviction thereof shall be fined
not exceeding $5,000.

And it shall be the duty of every owner, proprietor,
manager, superintendent, or agent of a hotel, apartment
house, boarding or lodging house, tenement, or other
building, when requested by the Director of the Census,
or by any supervisor, enumerator, special agent, or other
employee of the Census Office, acting under the instruc-
tions of the said director, to furnish the names of the
occupants of said hotel, apartment house, boarding or
lodging house, tenement, or other building, and to give
thereto free ingress and egress to any duly accredited rep-
resentative of the Census Office, so as to peiTuit of the
collection of statistics for census purposes, including the
proper and correct enumeration of all persons having
their usual place of abode in said liotel, apartment house,
boarding or lodging liouse, tenement or otlier building;
and any owner, proprietor, manager, superintendent, or
agent of a hotel, apartment house, boarding or lodging

Violation of tue Census Laws 695

house, tenement, or other building who shall refuse or
wilfully neglect to give such infoiination or assistance
under the conditions hereinbefore stated shall be guilty
of a misdemeanor, and upon conviction thereof shall be
fined not exceeding $500.^

§ 765. Unlawful use of frank census matter, punish-
ment. That all mail matter, of whatever class or weight,
relating to the census and addressed to the Census Office,
or to any official thereof, and indorsed ''Official business.
Census Office," shall be transmitted free of postage, and
by registered mail if necessary, and so marked: Pro-
vided, That if any person shall make use of such indorse-
ment to avoid the payment of postage or registry fee on
his or her private letter, package, or other matter in the
mail, the person so offending shall be guilty of a misde-
meanor and subject to a fine of $300, to be prosecuted in
any court of competent jurisdiction.^

§ 766. Wilfully withholding information by officer re-
ligious organization etc., to census taker. That it shall
be the duty of every owner, official, agent, person in
charge, or assistant to the person in charge, of any com-
pany, business, institution, establishment, religious body,
or organization of any nature whatsoever, to answer com-
pletely and correctly to the best of his knowledge all
questions relating to his respective company, business,
institution, establishment, religious body, or other organi-
zation, or to records or statistics in his official custody,
contained on any census schedule prepared by the Di-
rector of the Census under the authority of this Act, or of
the Act to provide for a permanent Census Office, ap-
proved March sixth, nineteen hundred and two, or of
Acts amendatory thereof or supplemental thereto; and

1— Sec. 23, Act March 3, 1919, 40 Stat. 1301. Also Sec. 29, Act
40 Stat. 1299. July 2, 1909, 36 Stat. 10.

2— Sec. 29, Act March 3, 1919,

696 Criminal Law

any person violating the provisions of this section by re-
fusing or wilfully neglecting to answer any of said ques-
tions, or by wilfully giving answers that are false, shall
be guilty of a misdemeanor, and upon conviction thereof
shall be fined not exceeding $10,000, or imprisoned for a
period not exceeding one year, or both so fined and im-
prisoned.^

§ 767. Census mail frank, illegal use of — Punishment.
That all mail matter of whatever class or weight, relating
to the census and addressed to the Census Office, or to
any official thereof, and indorsed "Official Business,
Census office," shall be transmitted free of postage, and
by registered mail if necessaiy, and so marked ; Provided,
that if any person makes use of such indorsement to
avoid postage or registry fees on his or her private
letter, package or other matter in the mail, the person so
offending shall be guilty of a misdemeanor and subject
to a fine of $100, to be prosecuted in any court of com-
petent jurisdiction.*

§ 768. Punishment for securing- pay for appointment of
census employee, etc. That if any person shall receive or
secure to himself any fee, reward, or compensation as a
consideration for the appointment or employment of any
person as supervisor, enumerator, or clerk, or other em-
ployee, or shall in any way receive or secure to himself
any part of the compensation paid to any supervisor,
enumerator, clerk, or other employee, he shall be deemed
guilty of a felony, and upon conviction thereof shall be
fined not more than $;},()()() and be imprisoned not more
than five years."^

3— Sec. 24, Act March 3, 1919, .5— Sec. 21, Act March 3, 1919,

40 Stat. 1300. 40 Stat. 11299.

4— Act -M.'irch 3, 1919, 40 Stat.
1301.

Violation of the Census Laws 697

§ 769. Census employee neglecting duty without cause,
false sweai'ing-, false returns, etc. That any supervisor,
supervisor's clerk, enumerator, interpreter, special agent,
or other employee who, having taken and subscribed the
oath of office required by this Act, shall, without justi-
fiable cause, neglect or refuse to perfonn the duties en-
joined on him by this Act shall be deemed guilty of a
misdemeanor and upon conviction thereof shall be fined
not exceeding $500 ; or if he shall, without the authority
of the Director of the Census, publish or communicate
any information coming into his possession by reason of
his employment under the provisions of this Act, or the
Act to provide for a permanent Census Office or Acts
amendatory thereof or supplemental thereto, he shall be
guilty of a felony and shall upon conviction thereof be
fined not to exceed $1,000 or be imprisoned not to exceed
two years, or both so fined and imprisoned in the dis-
cretion of the court ; or if he shall wilfully and knowingly
swear or affirm falsely as to the truth of any statement
required to be made or subscribed by him under oath by
or under authority of this Act or of the Act to provide
for a pennanent Census Office or Acts amendatory thereof
or supplemental thereto, he shall be deemed guilty of
perjury, and upon conviction thereof shall be fined not
exceeding $2,000 or imprisoned not exceeding five years,
or both; or if he shall willfully and knowingly make a
false certificate or a fictitious return he shall be guilty
of a felony, and upon conviction of either of the last
named offenses he shall be fined not exceeding $2,000 or
be imprisoned not exceeding five years, or both; or if any
person who is or has been an enumerator shall knowingly
or wilfully furnish or cause to be furnished, directly or
indirectly, to the Director of the Census or to any super-
visor of the census any false statement or false infonna-
tion with reference to any inquiry for which he was au-
thorized and required to collect information he shall be
guilty of a felony, and upon conviction thereof shall be

698 Crimixai. Law

fined not exceeding $2,000 or be imprisoned not exceeding
five years or both.^^

§ 770. Consideration or fee for appointment under
Census Act illegal — Punishment. If any person shall re-
ceive or secure to himself any fee, reward, or compensa-
tion for the appointment or employment of any person
as supervisor, enumerator, or clerk or other employee, or
shall in any way receive or secure to himself any part of
the compensation paid to any supervisor, enumerator or
clerk or other employee, he shall be deemed guilty of a
misdemeanor, and u^jon conviction thereof shall be fined
not more than three thousand dollars and be imprisoned
not more than five years.^

§ 771. Officers and employees failing to perform duty
under Census Act — Punishment. Any supervisor, super-
visor's clerk, enumerator, interpreter, special agent, or
other employee, who, having taken and subscribed the
oath of office required by this Act, shall, without justifi-
able cause, neglect or refuse to perform the duties en-
joiyed on him by this Act, shall be deemed guilty of a
misdemeanor, and upon conviction thereof shall be fined
not exceeding five hundred dollars; or if he shall, without
the authority of the Director of the Census, publish or
communicate any information coming into his possession
by reason of his employment under the provisions of this
Act, or the Act to provide for a permanent Census Office,
or Acts amendatory thereof or supplemental thereto, he
shall be guilty of a misdemeanor and shall upon convic-
tion thereof be fined not to exceed one thousand dollars,
or be imprisoned not to exceed two years, or both such
fine and iiiij)ris()iinieiit, in tlie discretion of the court; or
if Jic shall wilfully and knowingly swear to or affirm

5a— Sec. 22, Act March 3, 1919, 6— Sec. 21, Act .July 2, 1909, 36

40 Htat. 1299. Stat. 8.

Violation of the Census Laws 699

falsely, lie shall be deemed guilty of perjury, and upon
conviction thereof shall be imprisoned not exceeding five
years and be fined not exceeding two thousand dollars;
or if he shall wilfully and knowingly make a false cer-
tificate or a fictitious return, he shall be guilty of a mis-
demeanor, and upon conviction of either of the last-named
offenses he shall be fined not exceeding two thousand
dollars and be imprisoned not exceeding five years ; or if
any person who is or has been an enumerator shall know-
ingly or wilfully furnish, or cause to be furnished, di-
rectly or indirectly, to the Director of the Census, or to
any supervisor of the census, any false statement or false
information with reference to any inquiry for which he
was authorized and required to collect information, he
shall be guilty of a misdemeanor, and upon conviction
thereof shall be fined not exceeding two thousand dollars
and be imprisoned not exceeding five yearsJ

§ 772. Persons over twenty-one years of age required
to give information to census taker — Refusal — Punish-
ment. It shall be the duty of all persons over tAventy-one
years of age when requested by the Director of the Cen-
sus, or by any supervisor, enumerator, or special agent,
or other employee of the Census Office, acting under the
instructions of the said Director, to answer correctly, to
the best of their knowledge, all questions on the census
schedules applying to themselves and to the family to
which they belong or are related, and to the farm or
farms of which they or their families are the occupants;
and any person over twenty-one years of age who, under
the conditions hereinbefore stated, shall refuse, or wil-
fully neglect to answer any of these questions, or shall
wilfully give answers that are false, shall be guilty of a
misdemeanor, and upon conviction thereof shall be fined
not exceeding one hundred dollars.

7— Sec. 22, Act July 2, 1909, 36
Stat. 8.

700 Ckimixal Law

And it shall be the duty of every owner, proprietor,
manager, superintendent, or agent of a hotel, apartment
house, boarding or lodging house, tenement, or other
building, when requested by the Director of the Census,
or by any supei-visor, enumerator, special agent, or other
employee of the Census Office, acting under the instruc-
tions of the said Director, to furnish the names of the
occupants of said hotel, apartment house, boarding or
lodging house, tenement, or other building, and to give
thereto free ingress and egress to any duly accredited
representative of the Census office, so as to permit of the
collection of statistics for census pui'poses, including the
proper and correct enumeration of all persons having
their usual place of abode in said hotel, apartment house,
boarding or lodging house, tenement, or other building;
and any owner, proprietor, manager, superintendent, or
agent of a hotel, apartment house, boarding or lodging
house, tenement, or other building who shall refuse or
wilfully neglect to give such information or assistance
under the conditions hereinbefore stated shall be guilty of
a misdemeanor, and upon conviction thereof shall be
fined not exceeding five hundred dollars.®

§ 773. Refusing information to census director relative
to hides, etc. — Punishment. Chap. 263. An Act authoriz-
ing and directing the Director of the Census to collect and
pul)lish monthly statistics concerning hides, skins, and
leather.

Be it enacted by the Senate and House of Representatives
of tlie United States of America, in Congress as-
sembled :

That tlie Director of tlie Census be, and he is hereby,
aull)()i'iz(;d and directed to collect and publish statistics
monthly concerning —

(a) Tlie (|nanti1if's and classes of hides and skins,

8— Sec. 23, Act July 2, 1909, 36
Stnt. 0.

Violation of the Census Laws 701

owned or stored, and tlie quantities and classes of such
products disposed of during the preceding census month
by packers, abattoirs, butchers, tanners, jobbers, dealers,
wholesalers, importers and exporters;

(b) The quantities and classes of hides and skins in
the process of tanning or manufacture, the quantities and
amount of finished product for the preceding month ;

(c) The quantities and classes of leather owned or
stored and manufactured during the preceding census
month by tanners, jobbers, dealers, wholesalers, im-
porters, exporters, and establishments cutting or consum-
ing leather.

Sec. 2. That the information furnished by any indi-
vidual establishment under the provisions of this Act
shall be considered as strictly confidential and shall be
used only for the statistical purposes for w^hich it is sup-
plied. Any employee of the Bureau of Census, who, with-
out the ^vritten authority of the Director of the Census,
shall publish or communicate any infoiTuation given into
his possession by reason of his employment under the pro-
visions of this Act shall be guilty of a misdemeanor and
shall, upon conviction thereof, be fined not more than
$1,000 or imprisoned not more than one year, or both.

Sec. 3. That it shall be the dutj^ of every owner, presi-
dent, or treasurer, secretary, director, or other officer
or agent of any abattoir and of any packing, tanning,
jobbing, dealing, wholesaling, importing, or exporting
establishment where hides and skins are stored or sold,
or leather is tanned, treated, finished, or stored, or any
establishment is engaged in the cutting of leather or in
the production of boots and shoes, gloves, saddlery, har-
ness, or other manufactures of leather goods, wherever
leather is consumed, when requested by the Director of
the Census or by any special agent or other employee of
the Census Office acting under the instructions of said
director to furnish completely and accurately to the^best
of his knowledge, all the information authorized to be

702 Crimixal Law

collected by section 1 of this Act. The demand of the
Director of the Census for such information shall be
made in writing or by a visiting representative and if
made in writing shall be fonvarded by registered mail
and the registry receipt of the Post Office shall be ac-
cepted as prima facie evidence of such demand. Any
owner, president, treasurer, secretary, director, or other
officer or agent of any establishment required to fur-
nish information under the provisions of this Act, who
under the conditions hereinbefore stated shall refuse or
wilfully neglect to furnish any of the information herein
provided for or shall wilfully give answers that are false,
shall be guilty of a misdemeanor and upon conviction
thereof, shall be fined not more than $1,000.^

OFFICERS OF CENSUS AND EMPLOYEES

§ 774. Penalty for bribing officer. That if any person
shall receive or secure to himself any fee, reward, or com-
pensation for the appointment or employment of any per-
son as supervisor, enumerator or clerk or other employee,
or shall in any way receive or secure to himself any part
of the compensation paid to any supei-visor, enumerator
or clerk or other employee, he shall de deemed guilty of a
misdemeanor, and upon conviction thereof shall be fined
not more than three thousand dollars and be imprisoned
not more than five years.^°

§ 775. Officers neglecting to perform official duties —
Penalty. That any supervisor, supervisor's clerk, enum-
erator, inteiT^reter, special agent, or other employee, who,
having taken and subscribed the oath of office required
by this Act, shall, without justifiable cause, neglect or
refuse to perform the duties enjoined on him by this Act,
shall be deemed guilty of a misdemeanor, and upon con-

9— Approved June 5, 1920. 41 10— Sec. 21, Act July 2, 1909,

Stat. 1057. 36 Stat. 8.

Violation of the Census Laws 703

viction thereof shall be fined not exceeding five hundred
dollars ; or if he shall, without the authority of the Direc-
tor of the Census, publish or communicate any informa-
tion coming into his possession by reason of his employ-
ment under tlie provisions of this Act, or the Act to pro-
vide for a permanent Census Office, or Acts amendatory
thereof or supplemental thereto, he shall be guilty of a
misdemeanor and shall upon conviction thereof be fined
not to exceed one thousand dollars or be imprisoned not
to exceeding two years, or both so fined and imprisoned,
in the discretion of the court; or if he shall wilfully and
knowingly swear to or affirm falsely, he shall be deemed
guilty of perjury, and upon conviction thereof shall be
imprisoned not exceeding five years and be fined not ex-
ceeding two thousand dollars; or if he shall wilfully "and
knowingly make a false certificate or a fictitious return,
he shall be guilty of a misdemeanor, and upon conviction
of either of the last-named offenses he shall be fined not
exceeding two thousand dollars and be imprisoned not ex-
ceeding five years ; or if any person who is or has been an
enumerator shall knowingly or willfully furnish, or cause
to be furnished, directly or indirectly, to the Director of
the Census, or to any supervisor of the census, any false
statement or false information vrith. reference to any iii-
quiiy for which he was authorized and required to collect
information, he shall be guilty of a misdemeanor, and
upon conviction thereof shall be fined not exceeding tw^o
thousand dollars and be imprisoned not exceeding five
years."

§ 776. Persons over twenty-one years must answer
questions of census taker — Penalty. That it shall be the
duty of all persons over twenty-one years of age when re-
quested by the Director of the Census, or by any super-
visor, enumerator, or special agent, or other employee of
the Census Office, acting under the instructions of the

11— See. 22, Act July 2, 1909, 36
Stat. 8.

704 Criminal Law

said Director, to answer correctly, to the best of their
knowledge, all questions of the census schedules applying
to themselves and to the family to which they belong or
are related, and to the fann or farms of which they or
their families are the occupants; and any person over
twenty-one years of age, who, under the conditions here-
inbefore stated, shall refuse, or wilfully neglect to answer
any of these questions, or shall wilfully give answers that
are false, shall be guilty of a misdemeanor, and upon con-
viction thereof shall be fined not exceeding one hundred
dollars.

And it shall be the duty of every owner, proprietor,
manager, superintendent, or agent of a hotel, apartment
house, boarding or lodging house, tenement, or other
building, when requested by the Director of the Census,
or by any supervisor, enumerator, special agent, or other
employee of the Census Office, acting under the instruc-
tions of the said Director to furnish the names of the
occupants of said hotel, apartment house, boarding or
lodging house, tenement, or other building, and to give
thereto free ingress and egress to any duly accredited
representative of the Census Office, so as to permit of the
collection of statistics for census purposes including the
proper and coiTect enumeration of all persons having
their usual place of abode in said hotel, apartment house,
boarding or lodging house, tenement, or other buihling;
and any owner, proprietor, manager, superintendent, or
agent of a liolel, apartnicnl house, boarding or lodging-
house, tenement, or other l)uilding wlio shall refuse or
wilfully neglect to give such information or assistance
undci- llic conditions hereinbefore stated shall be guilty
of a misdemeanoi'. and u\h)u conviction thoi-col' shall be
lined not exceeding live liundred dollars. ^'^

Substantially as the Census Act of 1919. The Act of
1909 does not appear to he expressly repealed, repetition
of each iu-i does not appeal- to be of serious importance

12— Sec. 23, Art .liilv 2, 1000, 36
Rtfif. R.

CHAPTER LIII

OFFENSES AGAINST THE ELECTIVE FRANCHISE AND CIVIL

EIGHTS OF CITIZENS

CHAPTER THREE
Penal Code Act, March 4, 1909

§ 778. Conspiracy to injure, etc.,

persons in the exercise of

civil rights.
§ 779. Depriving citizens of civil

rights under color of State

laws.
§ 780. Conspiring to prevent officer

from performing duties.
§ 781. Unlawful presence of troups

at elections.
§ 782. Intimidation of voters by

officers, etc., of Army or
Navy.

§ 783. Officers of Army or Navy
prescribing qualifications
of voters.

§ 784. Officers, etc., of Army or
Navy interfering with offi-
cers of election, etc.

§ 785. Persons disqualified from
holding office ; when sol-
diers, etc., may vote.

§ 778. Conspiracy to injure, etc., persons in the exercise
of civil rights. See. 19. If two or more persons conspire
to injure, oppress, threaten, or intimidate any citizen in
the free exercise or enjoyment of any riglit or privilege
secured to him by the Constitution or laws of the United
States, or because of his having so exercised the same,
or if two or more persons go in disguise on the highway,
or on the premises of another, with intent to prevent or
hinder his free exercise or enjoyment of any right or priv-
ilege so secured, they shall be fined not more than five
thousand dollars and imprisoned not more than ten years,
and shall moreover, be thereafter ineligible to any office,
or place of honor, profit, or trust created by the Consti-
tution or laws of the United States.

§ 779. Depriving- citizens of civil rights under color of
State laws. Sec. 20. Whoever, under color of any law,
statute, ordinance, regulation, or custom, wilfully sub-
jects, or causes to be subjected, any inhabitant of any
State, Territory, or District to the deprivation of any

C. L.-4.5 705

706 Ceimixal Law

rights, privileges, or immunities secured or protected by
the Constitution and laws of the United States, or to dif-
ferent punishments, pains or penalties, on account of
such inhabitant being an alien, or by reason of his color,
or race, than are prescribed for the punishment of citi-
zens, shall be fined not more than one thousand dollars,
or imprisoned not more than one year, or both.

§ 780. Conspiring to prevent officer from performing
duties. Sec. 21. If two or more persons in any State,
Territory, or District conspire to prevent, by force, in-
timidation, or threat, any person from accepting or hold-
ing any office, trust, or place of confidence under the
United States, or from discharging any duties thereof;
or to induce by like means any officer of the United States
to leave any State, Territoiy, District, or place where his
duties as an officer are required to be performed, or to
injure him in his person or property on account of his
lawful discharge of the duties of his office, or while en-
gaged in the lawful discharge thereof, or to injure his
property so as to molest, interrupt, hinder, or impede
him in tlie discharge of his official duties, each of such
persons shall be fined not more than five thousand dol-
lars, or imprisoned not more than six years, or both.

§ 781. Unlawful presence of troops at elections. Sec.
22. Every officer of the Anny or Navy, or other person
in the civil, militaiy, or naval service of the United
States, who orders, brings, keeps, or has under his au-
thority or control any troops or armed men at any place
where a general oi' special election is held in any State,
unless such force be necessary to repel armed enemies of
the United States, shall be fined not more than live thou-
sand dollars and imprisoned not more than five years.

§ 782. Intimidation of voters by officers, etc., of Army
or Navy. Sec. 2."!. lOvei'v ollicer oi' otiicr person in the mili-
tary or naval service of* Ihc I'nitcd Slates who, by force,
thrc.'il, iiiliiiiidntion, orch'r, .-idvice, or othei'wise, prevents,

Offenses Against the Elective Fkanchise 707

or attempts to prevent, any qualified voter of any State
from freely exercising the right of suffrage at any gen-
eral or special election in such State shall be fined not
more than five thousand dollars and imprisoned not more
than five years.

§ 783. Officers of Army or Navy prescribing- qualifica-
tions of voters. Sec. 24. Every officer of the Army or
Navy who prescribes or fixes, or attempts to prescribe or
fix, whether by proclamation, order, or othei^vise, the
qualifications of voters at any election in any State shall
be punished as provided in the preceding section.

§ 784. Officers, etc., of Army or Navy interfering with
officers of election, etc. Sec. 25. Eveiy officer or other
person in the military or naval service of the United
States who, by force, threat, intimidation, order, or other-
wise, compels, or attempts to compel, any officer holding
an election in any State to receive a vote from a person
not legally qualified to vote, or who imposes, or attempts
to impose, any regulations for conducting any general
or special election in a State different from those pre-
scribed by law, or w^ho interferes in any manner with
any officer of an election in the discharge of his duty,
shall be punished as provided in section twenty-three
[782].

§785. Persons disqualified from holding office; when
soldiers, etc., may vote. Sec. 26. Every person convicted
of an offense defined in the four preceding sections [781,
782, 783, 784] shall in addition to the punishment therein
prescribed, be disqualified from holding any office of
honor, profit, or trust under the United States; but noth-
ing therein shall be construed to prevent any officer, sol-
dier, sailor, or marine from exercising the right of suf-
frage in any election district to which he may belong, if
otherwise qualified according to the laws of the State
in which he offers to vote.

CHAPTER LIV

VIOLATIONS BY COMMON CAERIEE

§ 787. Maliciously opening or break-
ing car ; Act July 14, 1870 ;
punishment.

§ 788. Wilful failure of carrier sub-
ject to interstate regula-
tions to comply with law;
punishment.

§ 789. Common carrier not allowed
to transport diseased
plants.

§ 790. Officers of corporations en-
gaged in commerce as a
common carrier who em-
bezzles, etc.; punishment;
conviction in State court a
bar.

§ 791. Penalties and punishment to
common carrier for viola-
tion of laws relating to
common carriers.

§ 792.

§793.

§794.
§795.

§ 796.
§ 797.

Making false entries by com-
mon carrier in accounts;
penalty.

Who with intent to defraud
makes or utters false bill
of lading, etc.; punishment.

Illegal act of common carrier
by water.

Common carrier and its agent
must not disclose informa-
tion, concerning shipment,
etc.

Refusal to carry mail by wa-
ter-carrier; punishment.

Unlawful to be officer of more
than one carrier; punish-
ment.

§ 787. Maliciously opening- or breaking car, Act July
14, 1870 — Punishment. Any ])orson maliciously opoiuuii:,
brcakiuj^, or eiilcriiig, by any moans wliatever, any car,
vessel, vehicle, warehouse, or ])a.ckage containing; any
such merchandise so delivered foi* transportation, or re-
moving!;, injurin*^, breaking, or defacing any lock or seal
placed upon such car, vessel, vehicle, warehouse, or pack-
age, or aiding, abetting, or encouraging any other person
or persons so to remove, break, injure, or deface such
locks or seals, or to open, brejik, or enter such car, vessel,
or vehicle, with intent to remove or cause to be removed
iinlawfnlly miiv niercluindise therein, or in any manner
to injure or (Icfrand I he United States; and any person

708

Violations by Common Carrier 709

receiving any mercliandise unlawfully removed from
any such car, vessel, or vehicle, knowing it to have been
so unlawfully removed, shall be guilty of felony, and in
addition to any penalties heretofore prescribed shall be
punishable by imprisonment for not more than six
months nor more than two years.^

§788. Wilful failure of carrier subject to interstate
regulations to comply with law — Punishment. Anything
done or omitted to be done by a corporation common car-
rier, subject to the Act to regulate commerce and the
Acts amendatory thereof, which, if done or omitted to be
done by any director or officer thereof, or any receiver,
trustee, lessee, agent, or person acting for or employed
by such corporation, would constitute 'a misdemeanor
under said Acts or under this Act, shall also be held to
be a misdemeanor committed by such corporation, and
upon conviction thereof it shall be subject to like penal-
ties as are prescribed in said Acts or by this Act with
reference to such persons, except as such penalties are
herein changed. The wilful failure upon the part of any
carrier subject to said Acts to file and publish the tariffs
or rates and charges as required by said Acts, or strictly
to observe such tariffs changed according to law, shall
be a misdemeanor, and upon conviction thereof the cor-
poration offending shall be subject to a fine of not less
than one thousand dollars nor more than twenty thou-
sand dollars for each offense; and it shall be unlawful
for any person, persons, or corporation to offer, grant,
or give, or to solicit, accept, or receive any rebate, con-
cession, or discrimination in respect to the transporta-
tion of any property in interstate or foreign commerce
by any common carrier subject to said Act to regulate
commerce and the Acts amendatory thereof whereby any
such property shall by any device whatever be trans-

1— Act July 14, 1870, K. S. 2998,
16 Stat. 271.

710 Criminal Law

ported at less rate than that named in the tariffs pub-
lished and filed by such carrier, as is required by said
Act to regulate commerce and the Acts amendatory
thereof, or whereby any other advantage is given or dis-
crimination is practiced. Every person or corporation,
whether carrier or shipper, who shall, knowdngly, offer,
grant or give, or solicit, accept, or receive any such re-
bates, concession, or discrunination shall be deemed
guilty of a misdemeanor, and on conviction thereof shall
be punished by a fine of not less than one thousand dol-
lars nor more than tw^enty thousand dollars: Provided,
That any person, or any officer or director of any corpo-
ration subject to the provisions of this Act, or the Act to
regulate commerce and the Acts amendatory thereof, or
any receiver, trustee, lessee, agent, or person acting for
or employed by any such corporation, who shall be con-
victed as aforesaid, shall, in addition to the fine herein
provided for, be liable to imprisonment in tlie peniten-
tiary for a tenn of not exceeding two years, or both such
fine and imprisonment, in the discretion of the court.
Every violation of this section shall be prosecuted in
any court of the United States having jurisdiction of
crimes within the district in which such violation was
committed, or through which the transportation may
have been conducted; and whenever the offense is begun
in one jurisdiction and c()mi)leted in another it may be
dealt with, iiKinired of, tried, detennined, and punished
in either jurisdiction in the same manner as if tlie offense
had been actually and wholly conunitted therein.

In construing and ('iifoi-cing the provisions of this
section, the act, omission, oi- failure of any officer, agent,
or other person acting foi' or employed by any conmion
carrier, or shipper, acting within the scope of his employ-
ment, shall in every case be also deemed to be the act,
omission, (n- failure of such carrier or shipper as w^ell as
that of tin; person. W licncNci- any (•.■nriei' iil(>s with the
Interstate ( 'onnncrcc ( 'oinniission oi' pul)lishes ;i particu-

Violations by Common Carrier 711

lar rate under the provisions of the Act to regulate com-
merce or Acts amendatory thereof, or participates in any
rates so filed or published, that rate as against such car-
rier, its officers or agents, in any prosecution begun under
this Act shall be conclusively deemed to be the legal rate,
and any departure from such rate, or any offer to depart
therefrom, shall be deemed to be an offense under this
section of this act June 29, 1906, 34 stat. 587.

§ 789. Common carrier not allowed to transport dis-
eased plants. That any person who shall violate any of
the provisions of this Act, or who shall forge, counterfeit,
alter, deface, or destroy any certificate provided for in
this Act or in the regulations of the Secretary of Agricul-
ture, shall be deemed guilty of a misdemeanor and shall,
upon conviction thereof, be punished by a fine not exceed-
ing five hundred dollars or by imprisonment not exceed-
ing one year, or both such fine and imprisonment, in the
discretion of the court: Provided, That no common car-
rier shall be deemed to have violated the provisions of
any of the foregoing sections of this Act on proof that
such carrier did not knowingly receive for transportation
or transport nurseiy stock or other plants or plant prod-
ucts as such from one State, Territory, or District of the
United States into or through any other State, Territoiy,
or District; and it shall be the duty of the United States
attorneys diligently to prosecute any violations of this
Act which are brought to their attention by the Secre-
tary of Agriculture or which come to their notice by other
means.''

§ 790. Officers of corporations engaged in commerce as
a common carrier who embezzles, etc.; punishment; con-
viction in State court a bar. Every president, director,
officer or manager of any firm, association or corporation

2— Sec. 10, Act Aug. 20, 1912, 37
Stat. 318.

712 Ckimixal Law

engaged in eonmierce as a common carrier, who embez-
zles, steals, abstracts or wilfully misapplies, or wilfully
pei-mits to be misapplied, any of tli« moneys, funds, cred-
its, securities, property or assets of such firm, association
or corporation, arising or accruing from, or used in, such
commerce, in w^hole or in part, or wilfully or know^ingly
converts the same to his own use or to the use of another,
shall be deemed guilty of a felony and upon conviction
shall be fined not less than $500 or confined in the peniten-
tiary not less than one year nor more than ten years, or
both, in the discretion of the court.

Prosecutions hereunder may be in the district court of
the United States for the district wherein the offense may
have been committed. That nothing in this section shall
be held to take aw^ay or impair the jurisdiction of the
courts of the several States under the laws thereof; and a
judgment of conviction or acquittal on the merits under
the law^s of any State shall be a bar to any prosecution
hereunder for the same act or acts.^

§791. Penalties and punishment to common carriers
for violation of laws relating to common carriers. That
any common carrier subject to the provisions of this Act,
or, whenever such commor carrier is a corporation, any
director or officer thereof, or any receiver, trustee, lessee,
agent, or person acting for or employed by such corpora-
tion, who, alone or with any other corporation, company,
person, or party, shall wilfully do or cause to be done, or
shall willingly suffer or permit to be done, any act, mat-
ter, or thing in this Act prohibited or declared to be un-
lawful, or who shall aid or abet therein, or shall wilfully
omit or fail to do any act, matter, or thing in this Act re-
quired to be done, or shall cause or willingly suffer or
permit any act, matter, (»i- tiling so directed or required
by this Act to be done n<»t to be so done, or who sliall aid

3— Sec. 9, A.I Oct. in, 11)14, 38
Stat. 7:}3.

Violations by Common Carrier 713

or abet any such omission or failure, or shall be guilty
of any infraction of this Act for which no penalty is
otherwise provided, or who shall aid or abet therein, shall
be deemed giiilty of a misdemeanor, and shall, upon con-
viction thereof in any district court of the United States
within the jurisdiction of which such offense was com-
mitted, be subject to a fine of not to exceed five thousand
dollars for each offense : Provided, That if the offense for
which any person shall be convicted as aforesaid shall be
an unlawful discrimination in rates, fares or charges for
the transportation of passengers or property, such per-
son shall, in addition to the fine hereinbefore provided
for, be liable to imprisonment in the penitentiary for a
term not exceeding two years, or both such fine and im-
prisonment, in the discretion of the court.

Any common carrier subject to the provisions of this
Act, or, whenever such common earner is a corporation,
any officer or agent thereof, or any person acting for or
employed by such corporation, who, by means of false
billing, false classification, false weighing, or false report
of weight, or by any other device or means, shall know-
ingly and wilfully assist, or shall willingly suffer or per-
mit, any person or persons to obtain transportation for
property at less than the regular rates then established
and in force on the line or transportation of such common
carrier, shall be deemed guilty of a misdemeanor, and
shall, upon conviction thereof in any court of the United
States of competent jurisdiction within the district in
which such offense was committed, be subject to a fine of
not exceeding five thousand dollars, or imprisonment in
the penitentiary for a term of not exceeding two years, or
both, in the discretion of the court, for each offense.

Any person, corporation, or company, or any agent or
officer thereof, who shall deliver property for transpor-
tation to any common carrier subject to the provisions
of this Act, or for whom, as consignor or consignee, any
such earner shall transport property, who shall know-

714 Criminal Law

inerlv and wilfiillv, directlv or indirectlv, himself or by
employee, agent, officer or otherwise, by false billing,
false classification, false weighing, false representation
of the contents of the package of the substance of the
property, false report of weight, false statement, or by
any other device or means, whether with or without
the consent or connivance of the earner, its agent, or
officer, obtain or attempt to obtain transportation for
such property at less than the regular rates then estab-
lished and in force on the line of transportation; or
who shall know^ingly and wilfully, directly or indirectly,
himself or by employee, agent, officer, or otherwise, by
false statement or representation as to cost, value, na-
ture, or extent of injury, or by the use of any false bill,
bill of lading, receipt, voucher, account, claim, certificate,
affidavit, or deposition, knowing the same to be false,
fictitious, or fraudulent, or to contain any false, fictitious,
or fraudulent statement or entry, obtain or attempt to
obtain any allowance, refund, or payment for damage
or otherwise in connection with any allowance, refund,
or payment for damage or otherwise in connection with
or growing out of the transportation of or agreement
to transport such property, whether with or without the
consent or connivance of the carrier, whereby the com-
pensation of such carrier for such transportation, either
before or after payment, shall in fact be made less than
the regular rates then established and in force on the
line of transportation, shall be deemed guilty of fraud,
which is hereby declared to be a misdemeanor, and shall,
upon conviction thereof in any court of the United States
of conipclciit Jurisdiction within the district in which
such olTense was wliolly or in ])art committed, ])e subject
for eacli offense to a fine of not exceeding five thousand
dollars or iniprisonmeiit in the penitentiary for a term
not exceeding tw<» years, oi' both, in the discretion of the
courl : Provided, That the penalty of iini)risonment shall
not apply to artificial persons.

Violations by Common Carrier 715

If any such person, or any officer or agent of any
such corporation or company, shall, by payment of
money or other thing of value, solicitation, or othenvise,
induce or attempt to induce any common carrier sub-
ject to the provisions of this Act, or any of its officers
or agents, to discriminate unjustly in his, its, or their
favor as against any other consignor or consignee in the
transportation of property, or shall aid or abet any com-
mon carrier in any such unjust discrimination, such per-
son or such officer or agent of such corporation or com-
pany shall be deemed guilty of a misdemeanor, and shall,
upon conviction thereof in any court of the United States
of competent jurisdiction within the district in which
such offense was committed, be subject to a fine of not
exceeding five thousand dollars, or imprisonment in the
penitentiary for a term of not exceeding two years, or
both, in the discretion of the court, for each offense;
and such person, corporation, or company, shall also,
together with said common carrier, be liable, jointly or
severally, in an action to be brought by any consignor
or consignee discriminated against in any court of the
United States of competent jurisdiction for all damages
caused by or resulting therefrom.*

§ 792. Making false entries by common carrier in ac-
counts — Penalty. The Commission may, in its discretion,
prescribe the forms of any and all accounts, records,
and memoranda to be kept by carriers subject to the
provisions of this Act, including the accounts, records,
and memoranda of the movcAient of traffic as well as
the receipts and expenditures of moneys. The Commis-
sion shall at all times have access to all accounts, rec-
ords and memoranda kept by carriers subject to. this
Act, and it shall be unlawful for such carriers to keep
any other accounts, records, or memoranda than those

4— June 18, 1910, Sec. 10, 36
Stat. 549.

716 Ckiminal Law

prescribed or approved by the Commission, and it may
employ special agents or examiners, who shall have au-
thority mider the order of the Commission to inspect
and examine any and all accounts, records, and memo-
randa kept by such carriers. This provision shall apply
to receivers of carriers and operating trustees.

In case of failure or refusal on the part of any such
carrier, receiver, or trustee to keep such accounts, rec-
ords, and memoranda on the books and in manner pre-
scribed by the Commission, or to submit such accounts,
records, and memoranda as are kept to the inspection of
the Commission or any of its authorized agents or ex-
aminers, such caiTier, receiver, or trustee shall forfeit
to the United States the sum of five hundred dollars for
each such offense and for each and every day of the con-
tinuance of such offense, such forfeitures to be recover-
able in the same manner as other forfeitures provided
for in this Act.

Any person who shall wilfully make any false entry
in the accounts of any book or accounts or in any record
or memoranda kept by a carrier, or who shall wilfully
destroy, mutilate, alter, or by any other means or device
falsify the record of any such account, record, or memo-
randa, or who shall wilfully neglect or fail to make full,
true, and correct entries in such accounts, records, or
memoranda of all facts and transactions appertaining
1() the carrier's business, or shall keep any other ac-
counts, records, or memoranda than those prescribed or
approved by the Commission, shall be deemed guilty of
a misdemeanor and shall be subject, u]-)on conviction in
any court of the United States of competent jurisdic-
tion, to a fine of not less than one thousand dollars nor
more than five thousand dollars, or imprisonment for
a term not less tlian one year nor more than tlirce years,
or botli sucli fine and inii)risoiiiii('iil : l*rovidod, Q^hat the
(yonunission may in its discretion issue orders specify-
ing Hiirh operating, accounting, or financial papers, rec-

Violations by Common Carrier 717

ords, books, blanks, tickets, stubs or documents of car-
riers which may, after a reasonable time, be destroyed,
and prescribing the length of time such books, papers,
or documents shall be preserved.

Any examiner who divulges any fact or information
which may come to his knowledge during the course of
such examination, except insofar as he may be directed
by the Commission or by a court or judge thereof, shall
be subject, upon conviction in any court of the United
States of competent jurisdiction, to a fine of not more
than five thousand dollars or imprisomrient for a terai
not exceeding two years, or both.

That the circuit and district courts of the United
States shall have jurisdiction, upon the application of
the attorney-general of the United States at the request
of the Commission, alleging a failure to comply with
or a violation of any of the provisions of said Act to
regulate commerce or of any Act supplementary thereto
or amendatory thereof by any common carrier, to issue
a writ or writs of mandamus commanding such common
carrier to comply with the provisions of this Act, or any
of them.

And to carry out and give effect to the provisions of
said Act, or any of them, the Commission is hereby au-
thorized to employ special agents or examiners who shall
have power to administer oaths, examine witnesses, and
receive evidence.^

§793. Who with intent to defraud makes or utters
false bill of lading, etc. — Punishment. Any person who,
knowingly or with intent to defraud, falsely makes,
alters, forges, counterfeits, prints or photographs any bill
of lading purporting to represent goods received for
shipment among the several states or with foreign na-
tions, or with like intent utters or publishes as true and
genuine any such falsely altered, forged, counterfeited,

5— Act Aug. 9, 1916, 39 Stat. 441.

718 Criminal, Law

falsely printed or photographed bill of lading, knowing
it to be falsely altered, forged, counterfeited, falsely
printed or photographed, or aids in making, altering,
forging, counterfeiting, printing or photographing, or
uttering or publishing the same, or issues or aids in issu-
ing or procuring the issue of, or negotiates or transfers
for value a bill which contains a false statement as to
the receipt of the goods, or as to any other matter, or
who, with intent to defraud, violates, or fails to comply
with, or aids in any violation of, or failure to comply
with any provision of this Act, shall be guilty of a mis-
demeanor, and, upon conviction, shall be punished for
each offense by imprisonment not exceeding five years,
or by a fine not exceeding five thousand dollars, or both.®

§ 794. Illegal act of common carrier by water. It shall
be unlawful for any common carrier by water, or other
person subject to this Act, either alone or in conjunc-
tion with any other person, directly or indirectly —

First. To make or give any undue or unreasonable
preference or advantage to any particular person, local-
ity, or description of traffic in any respect whatsoever,
or to subject any particular person, locality, or descrip-
tion of traffic to any undue or unreasonable prejudice
or disadvantage in any respect whatsoever.

Second. To allow any person to obtain transportation
for property at less than the regular rates then estab-
lished and enforced on the line of such carrier, by means
of false billing, false classificaticm, false weigliing, false
report of weight, or b> any other unjust or unfair de-
vice or means.

Third. To induce, persuade, or otherwise influence
any marine insurance company or underwriter, oi- agent
thereof, not to give a competing carrier by water as favor-
able a rate of insurance on vessel or cargo, having due

6_Scc. 41, Act AiiR. 29, 10 If,,
Sec. 41, 39 Stat. 544.

Violations by Common Careier 719

regard to the class of vessel or cargo, as is granted to
such carrier or other person subject to this Act.''^

§ 795. Common carrier and its agent must not disclose
information concerning shipment, etc. It shall be unlaw-
ful for any common carrier subject to the provisions of
this Act, or any officer, agent, or employee of such com-
mon carrier, or for any other person or corporation law-
fully authorized by such common carrier to receive in-
formation therefrom, knowingly to disclose to or permit
to be acquired by any person or corporation other than
the shipper or consignee, without the consent of such
shipper or consignee, any information concerning the
nature, kind, quantity, destination, consignee, or rout-
ing of any property tendered or delivered to such com-
mon carrier for interstate transportation, which infor-
mation may be used to the detriment or prejudice of
such shipper or consignee, or which may improperly dis-
close his business transactions to a competitor; and it
shall also be unlawful for any person or corporation to
solicit or knowingly receive any such information which
may be so used: Provided, That nothing in this Act
shall be construed to prevent the giving of such infor-
mation in response to any legal process issued under the
authority of any state or federal court, or to any officer
or agent of the Government of the United States, or
of any State or Territory, in the exercise of his powers,
or to any officer or other duly authorized person seek-
ing such information for the prosecution of persons
charged with or suspected of crime ; or information given
by a common caiTier to another carrier or its duly au-
thorized agent, for the purpose of adjusting mutual traf-
fic accounts in the ordinary course of business of such
carriers.

7— Act Sept. 7, 1916, 39 Stat.
7.^4.

720 Criminal Law

Any person, corporation, or association violating any
of the provisions of the next preceding paragraph of this
section shall be deemed guilty of a misdemeanor, and for
each offense, on conviction, shall pay to the United
States a penalty of not more than one thousand dollars.*

§ 796. Refusal to carry mail by water-carrier — Punish-
ment. Provided, That out of this appropriation the post-
master-general is authorized to provide difficult or emer-
gency mail service in Alaska, including the establish-
ment and equipment of relay stations, in such manner as
he may think advisable, without advertising therefor.

For inland transportation by steamboat, or other power-
boat routes or by aeroplanes, $1,185,000: Provided,
That the contract now in force for cariying the mail on
Lake Winnepesaukee from the postoffice at Laconia, New
Hampshire, shall be readjusted so that the yearly sal-
ary paid the carrier, who furnishes his own equipment,
shall be $1,800 per annum: Provided further. That here-
after, when there is no competition on a route and the
rate of compensation asked is excessive, or no proposal
is received, the postmaster-general may require that the
mails be carried as freight or express, and it shall be
unlawful for any common carrier by water to refuse to
carry the mails when so required, and the penalty for
such offense shall be a fine of five hundred dollars. Each
day of refusal shall constitute a separate olfense.®

(Beginning with the first proviso of paragraph on
"Office of the second assistant, etc.," including punish-
ment.)

§ 797. Unlawful to be officer of more than one carrier —
Punishment. "(12) After December 31, 1921, it shall
be unlawful for any person lo liold the position of officer

8— Act AuR. 9, 1917, 40 Stat. 272.
9— Cli.'ip. 117, Act July 2, 1918,
40 Stat. 747.

Violations by Common Carrier 721

or director of more than one carrier, unless such hokling
shall have been authorized by order of the Commission,
upon due showing, in form and manner prescribed by
the Commission, that neither public nor private interests
will be adversely affected thereby. After this section
takes effect it shall be unlawful for any officer or director
of any carrier to receive for his own benefit, directly or
indirectly, any money or thing of value in respect of the
negotiation, hypothecation, or sale of any securities is-
sued or to be issued by such carrier, or to share in any
of the proceeds thereof, or to participate in the making
or paying of any dividends of an operating carrier from
any funds properly included in capital account. Any
violation of these provisions shall be a misdemeanor, and
on conviction in any United States court having juris-
diction, shall be punished by a fine of not less than one
thousand dollars nor more than ten thousand dollars, or
by imprisonment for not less than one year nor more
than three years, or by both such fine and imprisonment,
in the discretion of the court. ' ' ^°

10— See. 489, Act March 1, 1920,
41 Stat. 496.

C. L.— 46

CHAPTER LV

COPYEIGHTS AND PATENTS

§ 799. Inserting or impression any
notice of copyright upon
any uncopyrighted article
with fraudulent intent ;
punishment.

§ 800. Any person who shall wilfully
and for profit infringe any
copyright secured by Act
March 4, 1909, guilty of
misdemeanor.

§ 801. Criminal prosecutions under
Copyright Act, March 4,
1909, must be instituted
within three years after
cause of action arose.

§ 802. False affidavit to claim to
copyright.

§ 803. In case Copyright of a book
officers showing that it has
been printed from type set
in the U. S.

PATENTS

§ 804. Any person who marks upon
anything made, used or
sold by him for which he
has no patent, the name of
the real patentee is sub-
ject to a penalty.

§ 805. In contests over patents, wit-
nesses who refuse to testify
in disobedience to sub-
poena, guilty of contempt.

§ 799. Inserting- or impressing- any notice of copyrig-ht
upon any uncopyrighted article with fraudulent intent
—Punishment. That aii\- person who, with fraudulent
intent, shall insert or impress any notice of copyright
required by this Act, or words of the same purport, in
or upon any uncopyrighted article, or with fraudulent
intent shall remove or alter the copyright notice upon
any article duly copyrighted shall l)e guilty of a mis-
demeanor, i)Uiiishal)le by a line of not less than one hun-
dred dollars and not more than one thousand dollars.
Any per.s^ui who shall knowingly issue or sell any jirticle
bearing a notice of rniled States (•o])yi-ight which has
not been copyrighted in lliis coiiidi-y, oi- who shall know-
ingly ini[)ort any aiticle hearing- sncli notice or woi'ds of
the same pui-port, which has not been copyi-ighted in

722

COPYEIGHTS AND PATENTS 723

this country, shall be liable to a fine of one hundred dol-
lars.^

§ 800. Any person who shall wilfully and for profit in-
fringe any copyright secured by Act of March 4, 1909
guilty of misdemeanor. That any person who wilfully
and for profit shall infringe any copyright secured by
this Act, or who shall knowingly and wilfully aid or
abet such infringement, shall be deemed guilty of a mis-
demeanor, and upon conviction thereof shall be punished
by imprisonment for not exceeding one year or by a
fine of not less than one hundred dollars nor more than
one thousand dollars, or both, in the discretion of the
court : Provided, however. That nothing in this Act shall
be so construed as to prevent the performance of religious
or secular works such as oratorios, cantatas, masses, or
octavo choruses by public schools, church choirs, or vocal
societies, rented, borrowed, or obtained from some public
library, public school, church choir, school choir, or vocal
society, provided the performance is given for charitable
or educational purposes and not for profit.^

§ 801. Criminal prosecutions under Copyright Act,
March 4, 1909, must be instituted within three years after
cause of action arose. That no criminal proceeding shall
be maintained under the provisions of this Act unless
the same is commenced within three years after the cause
of action arose.^

§ 802. False affidavit to claim to copyright. That any
person who, for the purpose of obtaining registration
of a claim to copyright, shall knowingly make a false
affidavit as to his having complied with the above con-
ditions (Section 16, Act of March 4, 1909), shall be

1— Sec. 29, Act Mar. 4, 1909, 35 3— Sec. 39, Act Mar. 4, 1909, 35
Stat. 1082. Stat. 1084.

2— Sec. 28, Act Mar. 4, 1909, 35
Stat. 1082.

724 Criminal Law

deemed guilty of a misdemeanor, and upon conviction
thereof shall be punished by a fine of not more than one
thousand dollars, and all of his rights and privileges
under said copyright shall be forfeited.*

§ 803. In case copyright of a book, officers showing that
it has been printed from type set in the United States.
In the case of the book the copies so deposited shall be
accompanied by an affidavit, under the official seal of any
officer authorized to administer oaths within the United
States, duly made by the person claiming copyright or
by his duly authorized agent or representative residing
in the United States, or by the printer who has printed
the book, setting forth that the copies deposited have
been printed from type set within the limits of the United
States or from plates made within the limits of the United
States from type set therein; or, if the text be produced
by lithographic process, or photo-engraving process, that
such process was wholly performed within the limits of
the United States, and that the printing of the text and
binding of the said book have also been performed within
the limits of the United States. Such affidavit shall state
also the place where and the establishment or establish-
ments in which such type was set or plates were made
or lithographic process, or photo-engraving process or
printing and binding were performed and the date of the
completion of the printing of the book or the date of
publication.^

PATENTS

§804. Any person who marks upon anything made,
used or sold by him, for which he has no patent, the name
of the real patentee, is subject to a penalty. Every per-
son wlio, ill any mamicr, marks upon anything made,
used, f)r sold l)y liiiii for which ho has not obtained a

4— Sec. 17, Act Mar. 4, 1909, 35 5— Sec. 16, Act Mar. 4, 1909, 35

Stat. 1079. Stat. 1079.

Copyrights and Patents 725

patent, the name or any imitation of the name of any
person who has obtained a patent therefor without the
consent of such patentee, or his assigns or legal represen-
tatives; or

Who, in any manner, marks upon or affixes to any
patented article the word ''patent" or "patentee," or the
"letters-patent," or any word of like import, with in-
tent to imitate or counterfeit the mark or device of the
patentee, without having the license or consent of such
patentee or his assigns or legal representatives; or

Who, in any manner, marks upon or affixes, to any
unpatented article the word "patent," or any word im-
porting that the same is patented, for the purpose of
deceiving the public, shall be liable for every such of-
fense, to a penalty of not less than one hundred dollars,
with costs; one-half of said penalty to the person who
shall sue for the same, and the other for the use of the
United States to be recovered by suit, in any district
court of the United States within whose jurisdiction such
offense may have been committed.®

§ 805. In contests over patents witnesses who refuse to
testify in disobedience to subpoena, guilty of contempt.

Whenever any witness, after being duly served with such
subpoena, neglects or refuses to appear, or after appear-
ing, refuses to testify, the judge of the court whose clerk
issued the subpoena may, on proof of such neglect or
refusal, enforce obedience to the process, or punish the
disobedience, as in other like cases. But no witness shall
be deemed guilty of contempt for disobeying such sub-
poena, unless his fees and traveling expenses in going
to, returning from and one day's attendance at the place
of examination, are paid or tendered him at the time of
the service of the subpoena; nor for refusing to disclose
any secret invention or discovery made or owned by him-
self.^

6— E. S. 4901, Act July 8, 1870, 7— Act July 8, 1870, R. S. 4908,
16 Stat. 203. 16 Stat. 204.

CHAPTER LVI

CUERENCY AND COINAGE

CHAPTER SEVEN

Offenses Against the Currency, Coinage, etc.

Penal Code Act, March 4, 1909

§ 807. Obligation or other security § 820.
of the United States de-
fined. § 821.

§ 808. Forging or counterfeiting
United States securities.

§ 809. Counterfeiting national-bank § 822.
notes.

§810. Using plates to print notes §823.
without authority, etc.

§811. Passing, selling, concealing, §824.
etc., forged obligations. § 825.

§ 812. T.Tking impressions of tools,

implements, etc. § 826.

§ 813. Having in possession unlaw-
fully such impressions. § 827.

§814. Buying, selling, or dealing in

forged bonds, notes, etc. § 828.

§ 815. Secreting or removing tools

or material used for print- § 829.

ing bonds, notes, stamps,

etc. § 830.

§ 816. Counterfeiting notes, bonds,

etc., of foreign govern- § 831.
mcnts.

§ 817. Passing such forged notes,
bonds, etc.

8 818. Counterfeiting notes of for- 8 832.
rign banks.

8 Hi;t. I'.'issing sufh counterfeit bank
notes.

72(;

Having in possession such
forged notes, bonds, etc.

Having unlawfully in posses-
sion or using plates for
such notes, bonds, etc.

Connecting parts of different
instruments.

Counterfeiting gold or silver
coins or bars.

Counterfeiting minor coins.

Falsifying, mutilating, or
lightening coinngo.

Debasement of coinage by of-
ficers of the mint.

Making or uttering coins in
reseml)lance of money.

Making or issuing devices of
minor coins.

Counterfeiting, etc., dies for
coins of the United States.

Counterfeiting, etc., dies for
foreign coins.

Making, importing, or having
in possession tokens, prints,
etc., similar to United
States or foreign coins.

Counterfeit ol)ligations, se-
curities, coins, or materia 1
for counterfeiting, to be
forfeited.

Currency and Coinage 727

§ 833. Issue of search warrant for § 836. Mutilating or defacing na-

suspccted counterfeits, etc., tional-bank notes.

forfeiture. § 837. Imitating United States se-

§ 834. Circulating bills of expired curities or printing busi-

corporations. ness cards on them.

§ 835. Imitating national-bank notes § 838. Notes of less than one dol-

with printed advertise- lar not to be issued.

ments thereon.

§807. "Oblig-ation or other security of the United
States" defined. Sec. 147. The words ''obligations or
other security of the United States" shall be held to
mean all bonds, certificates of indebtedness, nation-bank
currency, coupons, United States notes, treasury notes,
gold certificates, silver certificates, fractional notes, cer-
tificates of deposit, bills, checks, or drafts for money,
drawn by or upon authorized officers of the United States,
stamps and other representatives of value, of whatever
denomination, which have been or may be issued under
any act of congress.

§ 808. Forging or counterfeiting United States securi-
ties. Sec. 148. Whoever, with intent to defraud, sliall
falsely make, forge, counterfeit, or alter any obligation
or other security of the United States shall be fined not
more than five thousand dollars and imprisoned not more
than fifteen years.

§ 809. Counterfeiting national bank notes. Sec. 149.
Whoever shall falsely make, forge, or counterfeit, or
cause or procure to be made, forged, or counterfeited,
or shall willingly aid or assist in falsely making, forg-
ing or counterfeiting, any note in imitation of, or pur-
porting to be in imitation of, the circulating notes issued
by any banking association now or hereinafter author-
ized and acting under the laws of the United States; or
whoever shall pass, utter, or publish, or attempt to pass,
utter, or publish, any false, forged, or counterfeited note,
purporting to be issued by any such association doing a

728 Crimtn-al Law

banking business, knowing the same to be falsely made,
forged, or counterfeited; or whoever shall falsely alter,
or cause or procure to be falsely altered, or shall will-
ingly aid or assist in falsely altering, any such circu-
lating notes, or shall pass, utter, or publish, or attempt
to pass, utter, or publish as true, any falsely altered or
spurious circulating note issued, or purporting to have
been issued, by any such banking association, knowing
the same to be falsely altered or spurious, shall be fined
not more than one thousand dollars or imprisoned not
more than fifteen years.

§810. Using- plates or print notes without authority,
etc. Sec, 150. Whoever, having control, custody, or pos-
session of any plate, stone, or other thing, or any part
thereof, from which has been printed, or which may be
prepared by direction of the Secretary of the Treasury
for the puiTOOse of printing, any obligation or other se-
curity of the United States, shall use plate, stone, or
other thing, or any part thereof, or knowingly suffer the
same to be used for the purpose of printing any such or
similar obligation or other security, or any part thereof,
except as may be printed for the use of the United States
by order of the proper officer thereof; or whoever by
any way, art, or means shall make or execute, or cause
or procure to be made or executed, or shall assist in
making or executing any plate, stone or other thing in
the likeness of any ])lnk' designated for the printing of
such ()l)ligation or otlier security; or whoever shall sell
any sucli plate, stone, or other thing, or bring into the
United Slates or any place subject to the jurisdiction
thereof, from any foreign place, any such plate, stone,
or oilier thing, except under the direction of the Secre-
tary of the Trensnry or other |. roper officer, or with any
otlx-r iiitciil, ill citiier case, than Hint such plate, stone,
or other tiling, hi- used Tor the pi-inting of tlu^ obliga-
tions or oilier securities of the United States; or who-
ever shall have in his control, custody, or possession any

Currency and Coinage 729

plate, stone, or other thing in any manner made after or
in the similitude of any plate, stone, or other thing, from
which any such obligation or other security has been
printed, with intent to use such plate, stone, or other
thing, or to suffer the same to be used in forging or
counterfeiting any such obligation or other security, or
any part thereof; or whoever shall have in his posses-
sion or custody, except under authority from the Sec-
retary of the Treasury or other proper officer, any obli-
gation or other security made or executed, in whole or
in part, after the similitude of any obligation or other
security issued under the authority of the United States,
with intent to sell or otherwise use the same; or who-
ever shall print, photograph, or in any other manner
make or execute, or cause to be printed, photographed,
made, or executed, or shall aid in printing, photograph-
ing, making or executing any engraving, photograph,
print, or impression in the likeness of any such obliga-
tion or other security, or any part thereof, or shall sell
any such engraving, photograph, print, or impression,
except to the United States, or shall bring into the United
States or any place subject to the jurisdiction thereof,
from any foreign place any such engraving, photograph,
print, or impression, except by the direction of some
proper officer of the United States; or whoever shall
have or retain in his control or possession, after a dis-
tinctive paper has been adopted by the Secretary of
the Treasury for the obligations and other securities
of the United States, any similar paper adapted to the
making of any such obligation or other security, ex-
cept under the authority of the Secretary of the Treas-
ury or some other proper officer of the United States,
shall be fined not more than five thousand dollars, or
imprisoned not more than fifteen years, or both.

§ 811. Passing, selling, concealing, etc., forged obli-
gations. Sec. 151. Whoever, with intent to defraud,
shall pass, utter, publish, or sell, or attempt to pass,

730 Crimixal Law

utter, publish, or sell, or shall bring into the United
States or any place subject to the jurisdiction thereof,
with intent to pass, publish, utter, or sell, or shall keep
in possession or conceal with like intent, any falsely
made, forged, counterfeited, or altered obligation or other
security of the United States, shall be fined not more
than five thousand dollars and imprisoned not more than
fifteen years.

§812. Taking impressions of tools, implements, etc.
Sec. 152. Whoever, without authority from the United
States, shall take, procure, or make, upon lead, foil,
wax, plaster, paper, or any other substance or material,
an impression, stamp, or imprint of, from, or by the use
of any bedplate, bedpiece, die, roll, plate, seal, type,
or other tool, implemont, instrument, or thing used or
fitted or intended to be used in printing, stamping, or
impressing, or in making other tools, implements, in-
struments, or things to be used or fitted or intended to
be used in printing, stamping, or impressing any kind
or dcscriptron of obHgatron or other security of the
United States now authorized or hereafter to be author-
ized by the United States, or circulating note or evidence
of debt of any banking association under the laws thereof,
shall be fined not more than five thousand dollars, or
imprisoned not more than ten years, or both.

§813. Having in possession unlawfully such impres-
sions. Sec. 15;5. Wlioever, with intent to defraud, shall
have ill liis jxjsscssion, keeping, custody, or control,
witlioiil aiilliority from the United States, any imprint,
stamp, oi- iiiipicssion, taken or made ui)on any substance
or material wliatsoevei', or any tool, im])leiiien1, instru-
ment, or tiling, used, or fitted or inleiided to be used,
for any of the ])urposes nienlioiied in the preceding sec-
tion; or \vhoe\-er, with intent lo del'i-uud, shall sell, give,
or <lelivei- any such iinpriiil, staiu}), or inii)ression to

Currency and Coinage 731

any other person, shall be fined not more than five thou-
sand dollars, or imprisoned not more than ten years,
or both.

§ 814. Buying-, selling, or dealing in forged bonds,
notes, etc. See. 154. Whoever shall buy, sell, exchange,
transfer, receive, or deliver, any false, forged, counter-
feited, or altered obligation or other security of the
United States, or circulating note of banking associa-
tion organized or acting under the laws thereof, which
has been or may hereafter be issued by virtue of any
act of Congress, with the intent that the same be passed,
published, or used as true and genuine, shall be fined
not more than five thousand dollars, or imprisoned not
more than ten years, or both.

§ 815. Secreting, or removing tools or material used
for printing bonds, notes, stamps, etc. Sec. 155. Who-
ever, without authority from the United States, shall
secrete within, embezzle, or take and carry away from
any building, room, office, apartment, vault, safe, or other
place where the same is kept, used, employed, placed,
lodged, or deposited by authority of the United States,
any bed piece, bed plate, roll, plate, die, seal, type, or
other tool, implement, or thing used, or fitted to be used
in stamping or printing, or in making some other tool
or implement used or fitted to be used in stamping or
printing any kind or description of bond, bill, note, cer-
tificate, coupon, postage stamp, revenue stamp, fractional
currency note, or other paper, instrument, obligation,
device, or document, now or hereafter authorized by
law to be printed, stamped, sealed, prepared, issued,
uttered, or put in circulation on behalf of the United
States; or whoever, without such authority, shall so
secrete, embezzle, or take and carry away any paper,
parchment or other material prepared and intended to
be used in the making of any such papers, instruments,

732 Criminal Law

obligations, devices, or documents; or whoever, without
such authority shall so secrete, embezzle, or take and
cany away any paper, parchment, or other material
printed or stamped, in whole or part, and intended to
be prepared, issued, or put in circulation on behalf of
the United States as one of the papers, instruments,
or obligations hereinbefore named, or printed or stamped,
in whole or part, whether intended to issue or put the
same in circulation or not, shall be fined not more than
five thousand dollars, or imprisoned not more than ten
years, or both.

§816. Counterfeiting notes, bonds, etc., of foreign
government. Sec. 156. "Whoever, within the United
States, or any place subject to the jurisdiction thereof,
with intent to defraud, shall falsely make, alter, forge,
or counterfeit any bond, certificate, obligation, or other
security in imitation of, or purporting to be an imita-
tion of, any bond, certificate, obligation, or other security
of any foreign government, issued or put forth under
the authority of such foreign government, or any treas-
ury note, bill, or promise to pay issued by such foreign
government, and intended to circulate as money, either
by law, order, or decree of such foreign government;
or whoever shall cause or secure to be so falsely made,
altered, forged, or counterfeited, or shall knowingly aid
or assist in making, altering, forging, or counterfeiting,
any such bond, certilicate, obligation, or other security,
or any such treasury note, bill, or promise to pay, in-
tended as aforesaid to circulate as money, shall be fineil
not more than five thousand dollars, and imprisoned not
more than five years.

i^ 817. Passing such forged note, bonds, etc. Sec. 157.
W'Ikk'vci- williin llie Tnilcd States or any jdace subject
to llic Jurisdiction lli('i-(M»r, knowingly and will) intent
1<» defraud, sliall ullcr, p.-iss, or put olT, in i);iynK;nt or

Currency and Coinage 733

negotiation, any false, forged, or counterfeited bond,
certificate, obligation, security, treasuary note, bill, or
promise to pay, mentioned in the section last preceding,
whether the same was made, altered, forged, or counter-
feited within the United States or not, shall be fined
not more than three thousand dollars and imprisoned
not more than three years.

§ 818. Counterfeiting notes on foreign bank. Sec. 158.
Whoever, within the United States or any place sub-
ject to the jurisdiction thereof, with intent to defraud,
shall falsely make, alter, forge or counterfeit, or cause
or procure to be falsely made, assist in the false mak-
ing, altering, forging, or counterfeiting of any bank
note or bill, issued by a bank or corporation of any for-
eign country, and intended by the law of usage of such
foreign country to circulate as money, such bank or cor-
poration being authorized by the laws of such country,
shall be fined not more than two thousand dollars and
imprisoned not more than two years.

§ 819. Passing such counterfeit bank note. Sec. 159.
Whoever, within the United States or any place subject
to the jurisdiction thereof, shall utter, pass, put off, or
tender in payment with intent to defraud, any such false,
forged, altered, or counterfeited bank note or bill, as
mentioned in the preceding section [818], knowing the
same to be false, forged, altered, and counterfeited,
whether the same was made, forged, altered, or counter-
feited within the United States or not, shall be fined
not more than one thousand dollars and imprisoned not
more than one year.

§ 820. Having in possession such forged notes, bonds,
etc. Sec. 160. Whoever, within the United States or
any place subject to the jurisdiction thereof, shall have
in his possession any false, forged, or counterfeit bond.

734 Criminal Law

certificate, obligation, security, treasury note, bill,
promise to pay, bank note, or bill issued by a bank or
corporation of any foreign countiy, with intent to utter,
pass, or put off the same, or to deliver the same to any
other person with intent that the same may thereafter
be uttered, passed, or put off as true, or shall knowingly
deliver the same to any other person with such intent,
shall be fined not more than one thousand dollars and
imprisoned not more than one year.

§ 821. Having- unlawfully in possession or using plates
for such notes, bonds, etc. Sec. IGl. Whoever, within
the United States or any place subject to the jurisdic-
tion thereof, except by lawful authority, shall have con-
trol, custody, or possession of anj^ plate, stone, or other
thing, or any part thereof, from which has been printed
or may be printed any counterfeit note, bond, obliga-
tion, or other security, in whole or in part, of any foreign
government, bank, or corporation, or shall use such plate,
stone, or other thing, or knowingly pennit or suffer the
same to be used in counterfeiting such foreign obliga-
tion, or any part thereof; or whoever shall make or
engrave, or cause or procure to be made or engraved,
or shall assist in making or engi'aving, any plate, stone,
or other thing, in the likeness or similitude of any plate,
stone, or other thing designated for the printing of the
genuine issue of the obligations of any foreign govern-
ment, bank, or corporation; or whoever shall print,
photograph, or in any other manner make, execute, or
sell, or cause to be printed, photographed, made, exe-
cuted, or sold, oi- slinll aid in jn-iiitiiig, photographing,
making, executing, or selling, any engraving, ])h()to-
grapli, jiiiiit, ()i- impression in llic likeness of any gen-
niiie note, bond, (-l)ligaii<in, oi- otiiei- secniily, or any
p.irt tiierenf, of niiy foreign government, 1)ank, or cor-
l»orntioti; or wlioover slinll In-ing into tin- United States,
• »r ;iny place snl)j<'el to tlie jnri^diel ion thereof, any

Currency and Coinage 735

counterfeit plate, stone, or other thing, or engraving,
photograph, print, or other impression of the notes,
bonds, obligations, or other securities of other foreign
governments, bank, or corporation, shall be fined not
more than five thousand dollars, or imprisoned not more
than five years, or both.

§ 822. Connecting parts of different instruments. Sec.

162. Whoever shall so place or connect together dif-
ferent parts of two or more notes, bills, or other genuine
instruments issued under the authority of the United
States, or by any foreign government, or corporation,
as to produce one instrument, with intent to defraud,
shall be deemed guilty of forgery in the same manner
as if the parts so put together were falsely made or
forged, and shall be fined not more than one thousand
dollars, or imprisoned not more than five years, or both.

§ 823. Counterfeiting gold or silver coins or bars. Sec.

163. Whoever shall falsely make, forge, or counterfeit,
or cause or procure to be falsely made, forged, or counter-
feited, or shall willingly aid or assist in falsely making,
forging, or counterfeiting any coin or bars in resem-
blance or similitude of the gold or silver coins or bars
which have been, or hereafter may be, coined or stamped
at the mints and assay offices of the United States, or
in resemblance or similitude of any foreign gold or silver
coin which by law is, or hereafter may be, current in the
United States, or are in actual use and circulation as
money within the United States; or whoever shall pass,
utter, publish, or sell, or attempt to pass, utter, publish,
or sell, or bring into the United States or any place
subject to the jurisdiction thereof, from any foreign
place, knowing the same to be false, forged, or counter-
feit, with intent to defraud any body, politic or corporate,
or any person or persons whomsoever, or shall have in
his possession any such false, forged, or counterfeit coins

736 Criminal Law

or bars, knowing the same to be false, forged, or counter-
feited, with intent to defraud any body, politic or cor-
porate, or any person or persons whomsoever, shall be
fined not more than five thousand dollars and imprisoned
not more than ten years.

§ 824. Counterfeiting minor coins. Sec. 164. Who-
ever shall falsely make, forge, or counterfeit, or cause
or procure to be falsely made, forged, or counterfeited,
or shall willingly aid or assist in falsely making, forging,
or counterfeiting any coin in the resemblance or simili-
tude of any of the minor coins which have been, or here-
after may be, coined at the mints of the United States;
or whoever shall pass, utter, publish, or sell, or bring
into the United States or any place subject to the juris-
diction thereof, from any foreign place, or have in his
possession any such false, forged or counterfeited coin,
with intent to defraud any person whomsoever, shall be
fined not more than one thousand dollars and imprisoned
not more than three years.

§825. Falsifying, mutilating, cr lightening coinage.
Sec. 165. AVhoover, fraiuhilcntly, by any art, way, or
means, shall deface, mutilate, impair, diminish, falsify,
scale, or lighten, or cause or procure to be fraudulently
defaced, mutilated, impaired, diminished, falsified,
scaled, or lightened, or willingly aid or assist in fraudu-
lently defacing, mutilating, impairing, diminishing, fal-
sifying, scaling, or lightening, the gold or silver coins
which have been, oi- which may hereafter be, coined at
the mints of the United States, or any foreign gold or
silver coins which arc by law made current or are in
actual use or circulation as money within the United
States or in any place subject to the jurisdiction thereof;
or whoever shall f)ass, utter, ])ublisii, or sell, or atttMupt
to pass, nttci-. piildisli, or sell, or bi-'iiig into the Tnitcd
States or any place subject to the jurisdiction thereof,

Currency and Coinage 737

from any foreign place, knowing the same to be defaced,
mutilated, impaired, diminished, falsified, scaled, or
lightened, with intent to defraud any person whomso-
ever, or shall have in his possession any such defaced,
mutilated, impaired, diminished, falsified, scaled, or
lightened coin, knowing the same to be defaced, mu-
tilated, impaired, diminished, falsified, scaled, or light-
ened, with intent to defraud any person whomsoever,
shall be fined not more than two thousand dollars and
imprisoned not more than five years.

§ 826. Debasement cf coinage by officers of the mint.

Sec. 166. If any of the gold or silver coins struck or
coined at any of the mints of the United States shall
be debased, or made worse as to the proportion of fine
gold or fine silver therein contained, or shall be of less
weight or value than the same ought to be, pursuant
to law, or if any of the scales or weights used at any
of the mints or assay offices of the United States shall
be defaced, altered, increased, or diminished through the
fault or connivance of any officer or person employed
at the said mints or assay offices, with a fraudulent in-
tent; or if any such officer or person shall embezzle any
of the metals at any time committed to his charge for
the purpose of being coined, or any of the coins struck
or coined at the said mints, or any medals, coins, or other
moneys or said mints or assay offices at any time com-
mitted to his charge, or of which he may have assumed
the charge, every such officer or person who commits
any of the said offenses shall be fined not more than ten
thousand dollars and imprisoned not more than ten years.

§827. Making or uttering coins in resemblance of
money. Sec. 167. Whoever, except as authorized by
law, shall make or cause to be made, or shall utter or
pass, or attempt to utter or pass, any coins of gold or
silver or other metal, or alloys of metals, intended for

c. L.— 47

738 Criminal Law

the use and purpose of current money, whether in the
resemblance of coins of the United States or of foreign
countries, or of original desigii, shall be fined not more
than three thousand dollars, or imprisoned not more than
five years, or both.

§ 828. Making or issuing devices of minor coins. Sec.
168. "Whoever, not lawfully authorized, shall make,
issue, or pass, or caused to be made, issued, or passed,
any coin, card, token, or device in metal, or its com-
pounds, which may be intended to be used as money
for any one-cent, two-cent, three- cent, five-cent, now or
hereafter authorized by law, or for coins of equal value,
shall be fined not more than one thousand dollars and
imprisoned not more than five years.

§ 829. Counterfeiting, etc., dies for coins of the United

States. Sec. 169. AVhoever, without lawful authority,
shall make, or cause or procure to be made, or shall
willingly aid or assist in making, any die, hub, or mold,
or any part thereof, either of steel or plaster, or any
other substance whatever, in the likeness or similitude,
as to the design or the inscription thereon, of any die,
hub, or mold designated for the coining or making of
any of the genuine gold, silver, nickle, bronze, copper,
or other coins of the United States, that have been or
hereafter may be coined at the mints of the United States;
or whoever, without lawful authority, shall have in his
possession any such die, hub, or mold, or any part thereof,
or shall pennit the same to be used for or in aid of
the counterfeiting of any of the coins of the United
States hereinbefore mentioned, shall be fined not more
than five thousand dollars and imprisoned not more than
ten years.

§ 830. Counterfeiting, etc., dies for foreign coins. Sec.
170. Whoever, within the United States or any place

CUREENCY AND CoiNAGE 739

subject to the jurisdiction thereof, without lawful au-
thority, shall make, or cause or procure to be made, or
shall willingly aid or assist in making, any die, hub, or
mold, or any part thereof, either of steel or plaster, or
any other substance whatever, in the likeness or simili-
tude, as to the design or the inscription thereon, of any
die, hub, or mold designated for the coining of the genu-
ine coin of any foreign government; or whoever, with-
out lawful authority, shall have in his possession any
such die, hub, or mold, or any part thereof, or shall con-
ceal, or knowingly suffer the same to be used for the
counterfeiting of any foreign coin, shall be fined not
more than two thousand dollars, or imprisoned not more
than five years, or both.

§ 831. Making, importing, or having in possession
tokens, prints, etc., similar to United States or foreign
coins. Sec. 171. Whoever, within the United States or
any place subject to the jurisdiction thereof, shall make,
or cause or procure to be made, or shall bring therein,
from any foreign country, or shall have in possession
with intent to sell, give away, or in any other manner
use the same, any business or professional card, notice,
placard, token, device, print, or impression, or any other
thing whatsoever, in the likeness or similitude as to
design, color, or the inscription thereon, of any of the
coins of the United States or of any foreign country
that have been or hereafter may be used as money, either
under the authority of the United States or under the
authority of any foreign government, shall be fined not
more than one thousand dollars. But nothing in this sec-
tion shall be construed to forbid or prevent the printing
and publishing of illustrations of coins and medals, or
the making of the necessary plates for the same, to be
used in illustrating numismatic and historical books and
journals and the circulars of legitimate publishers and
dealers in the same.

740 Ceiminal Law

§ 832. Counterfeit obligations, securities, coins, or ma-
terial for counterfeiting, to be counterfeited. Sec. 172.
All counterfeits of any obligation or other security of
the United States or of any foreign government, or coun-
terfeits of any of the coins of the United States or of
any foreign goveniment, and all material or apparatus
fitted or intended to be used, or that shall have been
used, in the making of any such counterfeit obligation
or other security or coins hereinbefore mentioned, that
shall be found in the possession of any person without
authority from the Secretaiy of the Treasury or other
proper officer to have the same, shall be taken possession
of by any authorized agent of the Treasury Department
and forfeited to the United States, and disposed of in
any manner the Secretary of the Treasury may direct.
A\lioever having the custody or control of any such coun-
terfeits, material, or apparatus shall" fail or refuse to
surrender possession thereof upon request by any such
authorized agent of the Treasury Department, shall be
fined not more than one hundred dollars, or imprisoned
not more than one year, or both.

§ 833. Issue of search warrants in certain cases for
suspected counterfeit obligations, securities, or coin, or
material for counterfeiting, forfeiture. Sec. 17.3. The
several judges of courts established under the laws of
the United States and TTnited States commissioners may,
upon proper oath or ailirmatioii, within their respective
jui-isdictions, issue a search warrant authorizing any
marshal of the United States, or any other person spe-
cially mentioned in such warrant, to enter any house,
store, bnilding, hoai, oi- other place named in such war-
laiil. in which there shall api)ear probable cause for be-
lieving that Iho manufacture of counterfeit money, or
Iln' concoalniciil (tf (•(tinitcrfcil money, <>r Ihc manufac-
lni-c or concc'iliiiriil of countcflVil oldigalions oi* coins
(,r the Initrd States (»r ol" aii_\' foreign govcninicnt, oi'

Currency and Coinage 741

the manufacture or concealment of dies, hubs, molds,
plates, or other things fitted or intended to be used for
the manufacture of counterfeit money, coins, or obliga-
tions of the United States or of any foreign government,
or of any bank doing business under the authority of
the United States or of any State or Territory thereof,
or of any bank doing business under the authority of
any foreign govenmient, or of any political division of
any foreign government, is being carried on or practiced,
and there search for any such counterfeit money, coins,
dies, hubs, plates, and other things, and for any such
obligations, and if any such be found, to seize and secure
the same and to make return thereof to the proper au-
thority; and all such counterfeit money, coins, dies, hubs,
molds, plates, and other things, and all such counter-
feit obligations so seized shall be forfeited to the United
States.

§ 834. Circulating bills of expired corporations. Sec.
174. In all cases where the charter of any corporation
which has been or may be created by act of Congress
has expired or may hereafter expire, if any director,
officer, or agent of the corporation, or any trustee thereof,
or any agent of such trustee, or any person having in
his possession or under his control the property of the
corporation for the pui-pose of paying or redeeming its
notes and obligations, shall knowingly issue, reissue, or
utter as money, or in any way knowingly put in circu-
lation any bill, note, check, draft, or other security pur-
porting to have been made by any such corporation
whose charter has expired, or by any officer thereof, or
purporting to have been made under authority derived
therefrom, or if any person shall knowingly aid in any
such act, he shall be fined not more than ten thousand
dollars, or imprisoned not more than five years, or both.
But nothing herein shall be construed to make it un-
lawful for any person, not being such director, officer.

742 Criminal Law

or agent of the corporation, or any trustee thereof, or
any agent of such trustee, or any person having in his
possession or under his control the property of the cor-
poration for the purpose hereinbefore set forth, who has
received or may hereafter receive such bill, note, check,
draft, or other security, bona fide and in the ordinary
transaction of business, to utter as money or otherwise
circulate the same.

§ 835. Imitating national banking notes with printed
advertisements thereon. Sec. 175. It shall not be law-
ful to design, engrave, print, or in any manner make or
execute, or to utter, issue, distribute, circulate, or use
any business or professional card, notice, placard, circu-
lar, handbill, or advertisement in the likeness or simili-
tude of any circulating note or other obligation or security
of any banking association organized or acting under
the law^s of the United States which has been or may be
issued under any act of Congress, or to write, print, or
othenvise impress upon any such note, obligation, or
security, any business or professional card, notice or
advertisement, or any notice or advertisement of any
matter or thing whatever. Whoever shall violate any
provision of this section shall be fined not more than one
hundred dollars, or imprisoned not more than six months,
or both.

§ 836. Mutilating or defacing national bank note.
Sec. 176. Whoever shall mutihile, cut, deface, disfigure,
or perforate with hok's, or unite or cement together, or
do any other thing to any bank bill, dral'l, note, or other
evidence of debt, issued by any national banking asso-
ciation, or shall cause or procure tlie same to be done,
witli intent to render such bank bill, draft, note, or other
evidence of debt unfit to bo reissued by said association,
sliall 1)(' fined not more llinii one liiindi-cd dollars, or im-
prisoned not iiioi'c llinii six intiiitlis, oi- both.

Currency and Coinage 743

§ 837. Imitating- United States securities or printing
business cards on them. Sec. 177. It shall not be lawful
to design, engrave, print, or in any manner make or exe-
cute, or to utter, issue, distribute, circulate, or use, any
business or professional card, notice, placard, circular,
handbill, or advertisement, in the likeness or similitude
of any bond, certificate of indebtedness, certificate of de-
posit, coupon. United States note. Treasury note, gold
certificate, silver certificate, fractional note, or other ob-
ligation or security of the United States which has been
or may be issued under or authorized by any act of Con-
gress heretofore passed or which may hereafter be
passed; or to write, print, or otherwise impress upon any
such instrument, obligation, or security, any business or
professional card, notice, or advertisement, or any notice
or advertisement of any matter or thing whatever. Who-
ever shall violate any provision of this section shall be
fined not more than five hundred dollars.

§ 838. Notes of less than one dollar not to be issued.

Sec. 178. No person shall make, issue, circulate, or pay
out any note, check, memorandum, token, or other obliga-
tion for a less sum than one dollar, intended to circulate
as money or to be received or used in lieu of lawful
money of the United States; and every person so offend-
ing shall be fined not more than five hundred dollars, or
imprisoned not more than six months, or both.

CHAPTER LYIl

OFFENSES EELATING TO CUSTOMS AND DUTIES

§ 840. Locks and fastenings may be § 850.
put on vessel by inspector,
if locks are broken master
is responsible.

§ 841. Master of any vessel who in- § 851.
tentionally obstructs officer
lawfully going on board
shall be punished. § 8;"2.

§ 842. Officers collecting imports
under authority of U. S.
shall own vessel; punish-
ment.

§ 843. Entering goods for transpor- § 853.
tation with intent to draw
back the duties and same
landed in U. S. unlawful ; § 854.
punishment.

§ 844. Obliteration of any marks

put on j)ackages by revenue § 855.
officer penal.

§ 845. Importer or proprietor of

warehoused goods guilty of § 856.
crime if warehouse fraudu-
lently opened.

§ 84G. Fraudulently concealing
goods from public or pri-
vate warehouse guilty as
mider Section 298G, II. S.

§ 847. It is a felony for failure of
owner or master to pro-
ceed to jiort of destination.

§ 848. Fraudulently and knowingly
imjxirtiiig goods that is
contrary to l;i\v; punish-
ment.

§ 849. Ref using to aasiHt officers in
iii.'iking Hcarcli or seizure

§857.

§ 858.

nii.sdcmcanor.

Unlawful for any officer of
U. S. to receive any por-
tion of informer's com-
pensation ; penalty.

Officer under custom laws re-
bating any fine or penalty
guilty of felony.

Any person knowingly and
wilfully with intent to de-
fraud U. S. smuggle any
goods into U. S. under Act
Feb. 27, 1877; penalty.

Unauthorized person break-
ing, etc., seal car or vessel
guilty of felony.

A vessel must discharge the
cargo in day time unless
licensed to do otherwise.

Unloading vessel in violation
Sec. 25, Act June 26, 1884;
penalty.

Under Act Oct. 3, 11)13, pro-
test may be filed against
the decision of the collec-
tor as to the rate of cus-
tom duties as to contingent
fee in ros])ect to rct'overy ;
unl.'iw fill ; jiunisliincnt.

Under Act Oct. 3, 1913, the
general appraisers of mer-
chandise authorized to ad-
minister oaths to witnesses.

WiU'iillv :iii(l <'orru|il ly swear-
ing falsely by any person
in examination before gen-
eral ;i]i|irais('r of inerchnn-
dise.

744

Offenses Relating to Customs and Duties 745

§ 859. Giving or offering to give a § 860. Any officer or employee ac-

bribe to employee of the cepting bribe under Act

IT. S., Act Oct. 3, 1913; Oct. 3, 1913; punishment,
punishment.

§ 840. Locks and fastenings may be put on vessel by
inspector. If locks are broken master is responsible. The
inspector who may be put on board of any vessel shall
secure, after sunset in each evening, or previous to his
quitting the vessel, the hatches and other communica-
tions with the hold of such vessel, or any other part there-
of he may judge necessary, with locks or other proper
fastening, which locks or other fastenings shall not be
opened, broken, or removed until the morning following,
or after the rising of the sun, and in the presence of the
inspector by whom the same were affixed, except by
special license from the collector of the port, and the
naval officer, if any, first obtained. If the locks or other
fastenings, or any of them, are broken or removed con-
trary to this section, or if any merchandise or packages
are clandestinely landed, notice thereof shall be imme-
diately given by the inspector to the collector and naval
officer, if any, of the port where the vessel may be; and
the master of such vessel shall, for each and every of-
fense, be liable to a penalty of five hundred dollars.^

§ 841. Master of any vessel who intentionally obstructs
officer lawfully going on board shall be punished. If any
master of a vessel coming into or having arrived at any
port within the United States shall obstruct or hinder,
or shall intentionally cause any obstruction or hindrance
to any officer in lawfully going on board such vessel, for
the purpose of carrying into eifect any of the revenue
laws of the United States, he shall for every such offense
be liable to a penalty of not more than five hundred dol-
lars nor less than fifty dollars.'^

1— R, S. 3070, Act Mar. 2, 1799, 2— R. S. 3068, Act Mar. 2, 1799,
1 Stat. 668. 1 Stat. 678.

746 Criminal Law

§ 842. Officers collecting imports under authority of
U. S. shall own vessel. Punishment. No person employed
under the authority of the United States, in the collec-
tion of duties or imports or tonnage, shall own, either in
whole or in part, any vessel, or act as agent, attorney, or
consignee for the owner or owners of any vessel, or of
any cargo or lading on board the same; nor shall any
such person import, or be concenied directly or indirectly
in the imporiation of any merchandise for sale into the
United States. Every person who violates this section
shall be liable to a penalty of five hundred dollars.*

§ 843. Entering" goods for transportation with intent
to draw back the duties and same landed in U. S. un-
lawful. Punishment. If any merchandise entered for
exportation, with intent to draw back the duties, or to
obtain any allowance given by law on the exportafion
thereof, shall be landed within any port within the limits
of the United States, all such merchandise shall be sub-
ject to seizure and forfeiture, together with the vessel
from which such merchandise shall be landed, and the ves-
sels or boats used in landing the same; and all persons
concerned therein shall, upon indictment and conviction
thereof, suffer imprisonment for a term not exceeding
six months. For discoveiy of frauds and seizure of mer-
chandise relanded contrary to law, the several ofTicers
establislied by this title shall have the same poAvers, and,
in case of seizure, the same proceedings shall be had as
ill tlie case of merchandise imported contrary to law.*

§ 844. Obliteration of any marks put on packages by
revenue officer penal. Any person convicted of altering,
defacing, or ohlilci-ating any mark wliicli has been placed
by any officci- dl' I lie rcvciinc on any package of ware-
s—Act M.'ir. 2, 1799, R. S. 2638, 4— J{. H. .3019, Act Mar. 2, 1799,
1 H»at. 695. 1 Stat. 692.

Offenses Relating to Customs and Duties 747

housed merchandise shall be liable to a penalty of five
hundred dollars for every such offense.^

§ 845. Importer or proprietor of warehoused g^oods
guilty of crime of warehouse fraudulently opened. If
any importer or proprietor of any warehoused merchan-
dise, or any person in his employ, shall, by any con-
trivance, fraudulently open the warehouse, or shall gain
access to the merchandise, except in the presence of the
proper officer of the customs, acting in the execution of
his duty, such importer or proprietor shall be liable to a
penalty of one thousand dollars for every such otfense.^

§ 846. Fraudulently concealing goods from public or
private warehouse guilty as under section 2986, R. S.
If any warehoused merchandise shall be fraudulently
concealed in or removed from any public or private ware-
house, the same shall be forfeited to the United States;
and all persons convicted of fraudulently concealing or
removing such merchandise, or of aiding or abetting
such concealment or removal, shall be liable to the same
penalties as are imposed for the fraudulent introduction
of merchandise into the United States.""

§ 847. It is a felony for failure of owner or master not
to proceed to port of destination. If the owner, master,
or person in charge of any vessel, car, or other vehicle
so sealed, shall not proceed to the port or place of des-
tination thereof named in the manifest of its cargo,
freight, or contents, and deliver such vessel, car, or vehi-
cle to the proper officer of the customs, or shall dispose
of the same by sale or otherwise, or shall unload the
same, or any part thereof, at any other than such port

5— Act Aug. 6, 1846, E. S. 2985, 7— E. S. 2987, Act Aug. 6, 1846,
9 Stat. 55. 9 Stat. 55.

6— E. S. 2986, Act Aug. 6, 1846,
9 Stat. 55.

74:8 Ceiminal Law

or place, or shall sell or dispose of the contents of such
vessel, car, or other vehicle, or any part thereof, before
such delivery, he shall be deemed guilty of felony, and
on conviction thereof, before any court of competent
jurisdiction, pay a fine not exceeding one thousand dol-
lars, or shall be imprisoned for a teim not exceeding five
years, or both, at the discretion of the court; and such
vessel, car, or other vehicle, with its contents, shall be
forfeited to the United States, and may be seized wher-
ever found witliin the United States, and disposed of
and sold as in other cases of forfeiture. Nothing in this
section, hoAvever, shall be constmed to prevent sales of
cargo, in whole or in part, prior to arrival, to be deliv-
ered as per manifest, and after due inspection.®

§ 848. Fraudulently and knowingly importing goods
that is contrary to law. Punishment. If any person shall
fraudulently or knowingly import or bring into the
United States, or assist in so doing, any merchandise,
contrary to law, or shall receive, conceal, buy, sell, or in
any manner facilitate the transportation, concealment,
or sale of such merchandise after importation, knowing
tlie same to have been imported contraiy to law, such
merchandise shall be forfeited and the offender shall be
fined in any sum not exceeding five thousand dollars nor
less than fifty dollars, or be imj)risoned for any time not
exceeding two years, or both. Whenever, on trial for a
violation of this section, the defendant is shown to have
or to have had possession of such goods, such possession
sliall 1)0 deemed evidence sufficient to aulliorize convic-
tion, unless tlie defendant shall explain the possession to
the satisfaction of llie jniy.®

§ 849. Refusing to assist officers in making search or
.seizure misdemeanor, isvery oflicci- or other person au-

8— H. K. 3104, Act .June 27, 1864. 9— K. H. 3082, Act July 18, 18(i6,

13 Stat. 197. 14 Stat. 179.

Offenses Relating to Customs and Duties 749

tliorized to make searches and seizures by this title,
shall, at the time of executing any of the powers con-
ferred upon him, make known, upon being questioned,
his character as an officer or agent of the customs or Gov-
ernment, and shall have authority to demand of any per-
son within the distance of three miles to assist him in
making any arrests, search, or seizure authorized by this
title, where such assistance may be necessary; and if
such person shall, without reasonable excuse, neglect or
refuse so to assist, upon proper demand, he shall be
deemed guilty of a misdemeanor, punishable by a fine of
not more than two hundred dollars, nor less then five
dollars.^"

§ 850. Unlawful for any officer of U. S. to receive any
portion of informer's compensation. Penalty. Except
in cases of smuggling as aforesaid, it shall not be law-
ful for any officer of the United States, under any pre-
tense whatever, directly or indirectly, to receive, accept,
or contract for any portion of the money which may,
under any of the provisions of this or any other act,
accrue to any such person furnishing information; and
any such officer who shall so receive, accept, or contract
for any portion of the money that may accrue as afore-
said shall be guilty of a misdemeanor, and, on conviction
thereof, shall be liable to a fine not exceeding five thou-
sand dollars, or imprisonment for not more than one year,
or both, in the discretion of the court, and shall not be
thereafter eligible to any office of honor, trust, or emolu-
ment. And any such person so furnishing infonnation
as aforesaid, who shall pay to any such officer of the
United States, or to any person for his use, directly or
indirectly, any portion of said money, or any other valu-
able thing, on account of or because of such money, shall

10— E. S. 3071, Aet July 18, 1866,
14 Stat. 180.

750 Criminal Law

have a right of action against such officer or other per-
son, and his legal representatives, to recover back the
same, or the value thereof."

§ 851. Officer under custom laws rebating any fine or
penalty guilty of felony. That it shall not be lawful for
any officer or officers of the United States to compromise
or abate any claim of the United States arising under
the customs law^s, for any fine, penalty, or forfeiture in-
curred by a violation thereof; and any officer or person
who shall compromise or abate any such claim, or at-
tempt to make such compromise or abatement, or in any
manner relieve or attempt to relieve from such fine, pen-
alty, or forfeiture, shall be deemed guilty of a felony,
and, on conviction thereof, shall suffer imprisonment not
exceeding ten years, and be fined not exceeding ten thou-
sand dollars; provided, however, that the Secretary of
the Treasury shall have power to remit any fines, penal-
ties, or forfeitures, or to compromise the same, in ac-
cordance with existing law."

§ 852. Any person knowingly and willfully with intent
to defraud U. S. smuggle any goods into U. S. under Act
Feb. 27, 1877. Penalty, if any person shall knowingly
and willfully, with intent to defraud the revenue of the
United States, smuggle, or clandestinely introduce, into
the United States, any goods, wares, or merchandise, sub-
ject to duty by law, and which should have been invoiced,
without paying or accounting for the duty, or shall make
out or pass, or attempt to pass, tlirough the custom-
house any false, forged, or tVandulciit invoice, every such
person, his, lier, or their aiders, and abettors, shall be
deemed guilty of a iiiisdemeanoi-, and on conviction
thereof slinll be (iiicd in any sum nol exceeding five thou

11— See. 7, Act June 22, 1874, 12— Sec. 10, Act June 22, 1874,

18 Stat. 187. 18 Stat. 190.

Offenses Relating to Customs and Duties 751

sand dollars, or imprisonment for any term not exceed-
ing two years, or both, at the discretion of the court.^'

§ 853. Unauthorized person breaking-, etc., seal car or
vessel gnilty of felony. If any unauthorized person or
persons shall willfully break, cut, pick, open, or remove
any wire, seal, lead, lock, or other fastening or mark
attached to any vessel, car, or other vehicle, crate, box,
bag, bale, basket, barrel, bundle, cask, trunk, package,
or parcel, or anything whatsoever, under and by virtue
of this title and regulations authorized by it, or any
other law, or shall affix or attach, or any way willfully
aid, assist, or encourage the affixing or attaching, by
wire or otherwise, to any vessel, car, or other vehicle,
or to any crate, box, bale, barrel, bag, basket, bundle,
cask, package, parcel, article, or thing of any kind, any
seal, lead, metal, or anything purporting to be a seal
authorized by law, such person or persons shall be deemed
guilty of felony, and shall be imprisoned for a term not
exceeding five years, or shall pay a fine of not exceed-
ing one thousand dollars, or both, at the discretion of
the court.^*

§854. A vessel must discharge the cargo in daytime
unless licensed to do otherwise. Except as authorized
by Sec. 24 Act June 26, 1884, no merchandise brought in
any vessel from any foreign port shall be unladen or de-
livered from such vessel within the United States but in
open day — that is to say, between the rising and the set-
ting of the sun — except by special license from the col-
lector of the port, and naval officer of the same, where
there is one, for that purpose, nor at any time without a
permit from the collector, and naval officer, if any, for
such unloading or delivery.^^

13— Act Feb. 27, 1877, 19 Stat. 15— Sec. 25, Act June 26, 1884,

247. 23 Stat. 59.

14— Act Feb. 27, 1877, 19 Stat.
248.

752 Crimixal Law

§ 855. Unloading vessel in violation of Sec. 25, Act
June 26, 1884. Penalty. If any merchandise shall be
unladen or delivered from any vessel, contrary to this
section, the master of such vessel, and every other per-
son who shall knowingly be concerned, or aiding therein,
or in removing, storing, or othenvise securing such mer-
chandise, shall each be liable to a penalty of four hun-
dred dollars for each offense, and shall be disabled from
holding any office of trust or profit under the United
States, for a term not exceeding seven years; and the
collector of the district shall advertise the name of such
person in a newspaper printed in the state in which he
resides, within twenty days after each respective con-
viction.^^

§ 856. Under Act, Oct. 3, 1913, protest may be filed
against the decision of the collector as to the rate of cus-
tom duties as to contingent fee in respect to recovery.
Unlawful. Punishment. That the decision of the collec-
tor as to the rate and amount of duties chargeable upon
imported merchandise, or upon merchandise on which
duty shall have been assessed, including all dutiable
costs and charges, and as to all fees and exactions of
whatever character (except duties on tonnage), shall be
final and conclusive against all persons interested there-
in, unless the owner, importer, consignee, or agent of
such merchandise, or the person paying such fees,
cliarges, and exactions other than duties, shall, within
tiiirty days after, l)ut not befor(\ such ascertainment
and licjuidalion of duties, as well in cases of merchan-
dise entered in bond as for consumption, or within fifteen
days afier the payment of sueli fees, charges, and ex-
actions, if dissatislied with such decision imposing a
hiirher i-.-itc of duty, or a greater ehnrge, fee, oi' exaction,

1<; Act Mur. 2, 17i»!l, 1 St.it. iW't.

Offenses Relating to Customs and Duties 753

than he shall claim to be legally payable, file a protest
or protests in writing with the collector, setting forth
therein distinctly and specifically, and in respect to each
entry or payment, the reasons for his objections thereto,
and if the merchandise is entered for consumption shall
pay the full amount of the duties and charges ascer-
tained to be due thereon. Such protest shall be deemed
to be finally abandoned and waived unless within thirty
days from the date of filing thereof the person who filed
such notice or protest shall have deposited with the col-
lector of customs a fee of $1.00 with respect to each pro-
test. Such fee shall be deposited and accounted for as
miscellaneous receipts, and in case the protest in con-
nection with which such fee was deposited shall be finally
sustained in whole or in part, such fee shall be refunded
to the importer, with the duties found to be collected in
excess, from the appropriation for the refund to im-
porters of excess of deposits. No agreement for a con-
tingent fee in resjDect to recovery or refund under pro-
test shall be lawful. Compliance with this provision
shall be a condition precedent to the validity of the pro-
test and to any refund thereunder, and a violation of this
provision shall be punishable by a fine not exceeding
$500, or imprisonment for not more than one year, or
both.

Upon such pajTiient of duties, protest, and deposit of
protest fee, the collector shall transmit the invoice and
all the papers and exhibits connected therewith to the
board or nine general appraisers, for due assignment and
detemiination as provided by law; such determination
shall be final and conclusive upon all persons interested
therein, and the record shall be transmitted to the proper
collector or person acting as such, who shall liquidate
the entry accordingly, except in cases where an appeal
shall be filed in the United States Court of Customs Ap-

C. L.— 48

754 Criminal Law

peals within the time and in the manner provided for by-
law."

§ 857. Under Act, Oct. 3, 1913, the general appraisers
of merchandise authorized to administer oaths to wit-
nesses. The general appraisers, or any of them are here-
by authorized to administer oaths, and said general ap-
praisers, the boards of general appraisers, the local ap-
praisers, or the collectors, as the case may be, may cite
to appear before them, and examine upon oath any
owner, importer, agent, consignee, or other person touch-
ing any matter or thing wliich they, or either of them,
may deem material respecting any imported merchandise
then under consideration or previously imjported within
one year, in ascertaining the classification or dutiable
value thereof or the rate or amount of duty; and they,
or either of them, may require the production of any let-
ters, accounts, contracts, or invoices relating to said mer-
chandise, and may require such testimony to be reduced
to writing, and when so taken it shall be filed and pre-
served for use or reference until the final decision of the
collector, appraiser, or said board of appraisers shall be
made respecting the valuation or classification of said
merchandise, as the case may be ; and such evidence shall
be given consideration in all subsequent proceedings re-
lating to such merchandise.^^

§ 858. Willfully and corruptly swearing falsely by any
person in examination before general appraiser of mer-
chandise. If any person so cited to appear shall neglect
or refuse to attend, or shall decline to answer, or shall
refuse to answer in writing any interrogatories, and sub-
scribe his name to his deposition, or to produce such
papers when so required by a general appraiser, or a
board of general appraisers, or a local appraiser, or a

17— Act Oct. 3, 1913, 38 Stat. 18—38 Stat. 188.

187.

Offenses Relating to Customs and Duties 755

collector, lie shall be liable to a penalty of not less than
$20 nor more than $500; and if such person be the owner,
importer, or consignee, the appraisement which the board
of general appraisers or local appraiser, or collector
where there is no appraiser, may make of the merchan-
dise shall be final and conclusive; and any person who
shall willfully and corruptly swear falsely on an exam-
ination before any general appraiser, or board of gen-
eral appraisers, or local appraiser or collector, shall be
deemed guilty of perjury; and if he is the owner, im-
porter, or consignee, the merchandise shall be forfeited,
or the value thereof may be recovered from him.^^

§ 859. Giving- or offering to give a bribe to employee
of the U. S. Act, Oct. 3, 1913. Punishment. Any person,
who shall give, or offer to give, or promise to give, any
money or thing of value, directly or indirectly, to any
ofdcer or employee of the United States in consideration
of or for any act or omission contrary to law in connec-
tion with or pertaining to the importation, appraisement,
entry, examination, or inspection of goods, wares, or mer-
chandise, including herein any baggage or of the liquida-
tion of the entry thereof, or shall by threats or demands
or promises of any character attempt to improperly in-
fluence or control any such officer or employee of the
United States as to the performance of his official duties
shall, on conviction thereof, be fined not exceeding $2,000,
or be imprisoned at hard labor not more than one year,
or both, in the discretion of the court; and evidence of
such giving, or offering, or promising to give, satisfac-
tory to the court in which such trial is had, shall be re-
garded as prima facie evidence that such giving or offer-
ing or promising was contrary to law, and shall put upon
the accused the burden of proving that such act was in-
nocent and not done with an unlawful intention.'^®

19— Act Oct. 3, 1913, 38 Stat. 20— Act Oct. 3, 1913, 38 Stat. 191.

188.

756 Ceiminal Law

§ 860. Any officer or employee accepting bribe under
Act Oct. 3, 1913. Punishment. Any officer or employee
of the United States who shall, excepting for lawful
duties or fees, solicit, demand, exact, or receive from any
person, directly or indirectly, any money or thing of
value in connection with or pertaining to the importa-
tion, appraisement, entiy, examination, or inspection of
goods, wares, or merchandise, including herein any bag-
gage or liquidation of the entry thereof, on conviction
thereof shall be fined not exceeding $5,000, or be impris-
oned at hard labor not more than two years, or both, in
the discretion of the court; and evidence of such solicit-
ing, demanding, exacting, or receiving, satisfactory to
the court in which such trial is had, shall be regarded
as prima facie evidence that such soliciting, demanding,
exacting, or receiving was contrary to law, and shall put
upon the accused the burden of proving that such act
was innocent and not with an unlawful intention.^^

21— Act Oct. 3, 1913, 38 Stat. 192.

CHAPTER LVIII

OFFENSES RELATING TO OFFICIAL DUTIES

CHAPTER FIVE
Penal Code Act, March 4, 1909

§ 862. Officer, etc., of the United

States guilty of extortion.

§ 863. Receipting for larger sums

than are paid.

§ 864. Disbursing officer unlawfully

converting, etc., public

money.

§ 865. Failure of treasurer, etc., to

safely keep public money.

§ 866. Custodian of public money

failing to safely keep, etc.

§ 867. Failure of officer to render

accounts, etc.
§ 868. Failure to deposit as re-
quired.
§ 869. Provisions of the five pre-
ceding sections, to whom
applicable.
§ 870. Record evidence of embezzle-
ment.
§ 871. Prima facie evidence.
§ 872. Evidence of conversion.
§ 873. Banker, etc., receiving de-
posit from disbursing offi-
cer.
§ 874. Embezzlement by internal-
revenue officer, etc.
§ 875. Officer contracting beyond

specific appropriation,
§ 876. Officer of United States court
failing to deposit moneys,
etc.
§ 877. Receiving loan or deposit

from officer of court.
§ 878. Failure to make returns or
reports.

§879.
§880.

§ 881.

§882.

§883.
§884.

§885.
§886.

§887.

§888,

§889.

§890.

§891

§ 892

Aiding in trading in obscene
literature.

Collecting and disbursing of-
ficers forbidden to trade in
public property.

Certain officers forbidden to
purchase, etc., witness, etc.,
fees.

Falsely certifying, etc., as to
record of deeds, etc.

Other false certificates.

Inspector of steamboats re-
ceiving illegal fees.

Pension agent taking fee, etc.

Officer not to be interested in
claims against the United
States.

Member of Congress, etc.,
soliciting or accepting
bribe, etc.

Offering, etc., Member of
Congress bribe, etc.

Member of Congress taking
consideration for procuring
contract, office, etc.; offer-
ing Member consideration,
etc.

Member of Congress, etc.,
taking compensation in
matters to which United
States is a party.
Member of Congress not to
be interested in contract.
Officer making contracts
with Member of Congress.

757

758

Criminal Law

§ 893. Contracts to which two pre-
ceding sections do not ap-

piy-

§ 894. United States officer accept-
ing bribe.

§ 895. Political contributions not to
be solicited by certain of-
ficers.

§ 896. Political contributions not to
be received in public offices.

§ 897. Immunity from official pro-
scription.

§ 898. Giving money to officials for

political purposes prohib-
ited.

§ 899. Penalty for violating pro-
visions of four preceding
sections.

§ 900. Governmental officer, etc.,
giving out advance infor-
mation respecting crop re-
ports.

§ 901 . Government officer, etc.,
knowingly compiling or is-
suing false statistics re-
specting crops.

§ 862. Officer, etc., of the United States guilty of extor-
tion. Sec. 85. Eveiy officer, clerk, agent, or employee
of the United States, and every person representing him-
self to be or assuming to act as such oflScer, clerk, agent,
or employee, who, under color of his office, clerkship,
agency, or employment, or under color of his pretended
or assumed office, clerkship, agency, or employment, is
guilty of extortion, and every person who shall attempt
any act which if perfonned would make him guilty of
extortion, shall be fined not more than five hundred dol-
lars, or imprisoned not more than one year, or both.

§ 863. Receipting for larger sums than are paid. Sec.
86. Whoever, being an ollicer, clerk, agent, employee,
or other person charged with the payment of any appro-
priation made by Congress, shall pay to any clerk or
other employee of the United States a sum less than that
provided by law, and require such employee to receipt or
give a voucher for an amount greater than that actually
paid to, and received by liim, is guilty of embezzlement,
and shall be fined in double tiie amount so withheld from
any employee of the Government and imprisoned not
moi-c llinn two years.

ij 864. Disbursing officer unlawfully converting, etc.,
public money. Sec. <S7, W'iiocver, being a disbursing of-
licrr of tlic IJiiilcd States, or a person acting as such, shall

Offenses to Official Duties 759

in any manner convert to his own use, or loan with or
without interest, or deposit in any place or in any man-
ner, except as authorized by law, any public money in-
trusted to him; or shall, for any puipose not prescribed
by law, withdraw from the treasurer or any assistant
treasurer, or any authorized depositary or transfer, or
apply, any portion of the public money intrusted to him,
shall be deemed guilty of an embezzlement of the money
so converted, loaned, deposited, withdrawn, transferred,
or applied, and shall be fined not more than the amount
embezzled, or imprisoned not more than ten years, or
both.

§ 865. Failure of treasurer, etc., to safely keep public
money. Sec. 88. If the Treasurer of the United States
or any assistant treasurer, or any public depositary, fails
safely to keep all moneys deposited by any disbursing
officer or distributing agent as well as all moneys de-
posited by any receiver, collector, or other person having
money of the United States, he shall be deemed guilty
of embezzlement of the moneys not so safely kept, and
shall be fined in a sum equal to the amount of money so
embezzled and imprisoned not more than ten years.

§ 866. Custodian of public money failing* to safely
keep, etc. Sec. 89. Every ofticer or other person charged
by an Act of Congress with the safe-keeping of the pub-
lic moneys, who shall loan, use, or convert to his own
use, or shall deposit in any bank or exchange for other
funds, except as specially allowed by law, any portion of
the public moneys intrusted to him for safe-keeping,
shall be guilty of embezzlement of the money so loaned,
used, converted, deposited, or exchanged, and shall be
fined in a sum equal to the amount of money so embez-
zled and imprisoned not more than ten years.

§ 867. Failure of officer to render accounts, etc. Sec.
90. Every officer or agent of the United States who, hav-

760 Crimixal Law

ing received public money which he is not authorized
to retain as salaiy, pay, or emolument, tails to render
his accounts for the same as provided by law shall be
deemed guilty of embezzlement, and shall be fined in a
sum equal to the amount of the money embezzled and
imprisoned not more than ten years.

§ 868. Failure to deposit as required. Sec. 91. AVho-
ever, having money of the United States in his posses-
sion or under his control, shall fail to deposit it with the
treasurer, or some assistant treasurer, or some public de-
positary of the United States, when required so to do by
the Secretaiy of the Treasury, or the head of any other
proper department, or by the accounting officers of the
treasury, shall be deemed guilty of embezzlement thereof,
and shall be fined in a sum equal to the amount of money
embezzled and imprisoned not more than ten years.

§ 869. Provisions of the five preceding sections, to
whom applicable. Sec. 92. The provisions of the preced-
ing sections shall be construed to apply to all persons
charged with the safekeeping, transfer, or disbursement
of the public money, whether such persons be indicted
as receivers or depositaries of the same.

§ 870. Record evidence of embezzlement. Sec. 93.
Upon the trial of any indictment against any person for
embezzling public money under any provision of the six
preceding sections [858* 859, 860, 861, 862, 863], it shall
be sufficient evidence, prima facie, for the purpose of
sliowing a balance against such person, to produce a
transcript from the books and proceedings of the treas-
ury, as required in civil cases, under the provisions for
flic scfflcincnl of accounis between llic United States
;iii(l fcc('i\'crs of piililic iiioiicy.

Offenses to Official Duties 761

§ 871. Prima facie evidence. Sec. 94. The refusal of
any person, wlietlier in or out of office, charged with the
safe-keeping, transfer, or disbursement of the public
money to pay any draft, order, or warrant, drawn upon
him by the proper accounting officer of the Treasury, for
any i^ublic money in his hands belonging to the United
States, no matter in what capacity the same may have
been received, or may be held, or to transfer or disburse
any such money, promptly, upon the legal requirement
of any authorized officer, shall be deemed, upon the trial
of any indictment against such person for embezzlement
prima facie evidence of such embezzlement.

§ 872. Evidence of conversion. Sec. 95. If any officer
charged with the disbursement of the public moneys ac-
cepts, receives, or transmits to the Treasury Department
to be allowed in his favor any receipt or voucher from a
creditor of the United States without having paid to
such creditor in such funds as the officer received for
disbursement, or in such funds as he may be authorized
by law to take in exchange, the full amount specified in
such receipt or voucher, every such act is an act of con-
version by such officer to his own use of the amount speci-
fied in such receipt or voucher.

§ 873. Banker, etc., receiving deposit from disbursing
officer. Sec. 96. Every banker, broker, or other person
not an authorized depositary of public moneys, who shall
knowingly receive from any disbursing officer, or col-
lector of internal revenue, or other agent of the United
States, any public money on deposit, or by way of loan
or accommodation, with or without interest, or other-
wise than in payment of a debt against the United States,
or shall use, transfer, convert, appropriate, or apply any
portion of the public money for any purpose not pre-
scribed by law ; and every president, cashier, teller, direc-
tor, or other officer of any bank or banking association

762 Criminal Law

who shall violate any provision of this section is guilty
of embezzlement of the public money so deposited,
loaned, transfeiTed, used, converted, appropriated, or ap-
plied, and shall be fined not more than the amount em-
bezzled, or imprisoned not more than ten years, or both.

§ 874. Embezzlement by internal revenue officer, etc.

Sec. 97. Any officer connected with, or employed in, the
Internal-Eevenue Service of the United States, and any
assistant of such officer, who shall embezzle or wrong-
fully convert to his own use any money or other prop-
erty of the United States, and any officer of the United
States, or any assistant of such officer, who shall embezzle
or wrongfully convert to his own use any money or prop-
erty which may have come into his possession or under
his control in the execution of such office or emplojanent,
or under color or claim of authority as such officer or
assistant, whether the same shall be the money or prop-
erty of the United States or of some other person or
party, shall, where the offense is not otherwise punish-
able by some statute of the United States, be fined not
more than the value of the money and property thus em-
bezzled or converted, or imprisoned not more than ten
years, or both.

§ 875. Officer contracting beyond specific appropria-
tion. Sec. i)S. Whoever, being an officer of the United
States, shall knowingly contract for the erection, repair,
or furnishing of any public building, or for any public
improvement, to pay a hirger amount than the specific
sum appropriated for sucli purpose, shall be fined not
more than two thousand dollars and imprisoned not more
than two years.

§ 876. Officer of United States court failing to deposit
moneys, etc. Sec 1M>. Whoever, l)oiiig a clerk or other
officer of a court of llic United Slates, shall fail forth-

Offenses to Official Duties 763

with to deposit any money belonging in the registry of
the court, or hereafter paid into court or received by the
officers thereof, with the treasurer, assistant treasurer,
or a designated depositary of the United States, in the
name and to the credit of such court, or shall retain or
convert to his own use or to the use of another any such
money, is guilty of embezzlement, and shall be fined not
more than the amount embezzled, or imprisoned not more
than ten years, or both; but nothing herein shall be held
to prevent the delivery of any such money upon security,
according to agi'eement of parties, under the direction
of the court.

§ 877. Receiving loan or deposit from officer of court.

Sec. 100. Whoever shall knowingly receive, from a clerk
or other officer of a court of the United States, as a de-
posit, loan, or otherwise, any money belonging in the
registry of such court, is guilty of embezzlement, and
shall be punished as prescribed in the preceding section.

§ 878. Failure to make returns or reports. Sec. 101.
Every officer who neglects or refuses to make any re-
turn or report which he is required to make at stated
times by any Act of Congress or regulation of the De-
partment of the. Treasury, other than his accounts, with-
in the time prescribed by such Act, or regulation, shall
be fined not more than one thousand dollars.

§ 879. Aiding in trading- in obscene literature. Sec.
102. Whoever, being an officer, agent, or employee of
the Government of the United States, shall knowingly
aid or abet any person engaged in violating any provi-
sion of law prohibiting importing, advertising, dealing
in, exhibiting, or sending or receiving by mail, obscene
or indecent publications, or representations, or means for
preventing conception or producing abortion, or other
article of indecent or immoral use, or tendency, shall be

764 Crimixal Law

fined not more than five thousand dollars, or imprisoned
not more than ten years, or both.

§880. Collecting ajid disbursing- officers forbidden to
trade in public property. Sec. 103. Whoever, being an
officer of the United States concerned in the collection
or the disbursement of the revenues thereof, shall carry
on any trade or business in the funds or debts of the
United States, or of any State, or in any public property
of either, shall be fined not more than three thousand
dollars, or imprisoned not more than one year, or both,
and be removed from office, and thereafter be incapable
of holding any office under the United States.

§ 881. Certain officers forbidden to purchase, etc., wit-
ness, etc., fees. Sec. 104. Whoever, being a judge, clerk,
or deputy clerk of any court of the United States, or of
any territoiy thereof, or a United States district attor-
ney, assisting attorney, marshal, deputy marshal, com-
missioner, or other person holding any office or employ-
ment, or position of trust or profit under the Govern-
ment of the United States, shall, either directly or in-
directly, purchase at less than the full face value thereof,
any claim against the United States for the fee, mileage,
or expenses of any witness, juror, deputy marshal, or
any other officer of the court whatsoever, shall be fined
not more than one thousand dollars.

§ 882. Falsely certifying, etc., as to record of deeds,
etc. Sec. 105. Whoever, being an ofiicer or other person
autiiorizx'd by any law of the United States to record a
conveyance of real property or any other instrument
which by such law may be recorded, shall knowingly
certify falsely thai such conveyance or instrument has
or has not been recorded, shall be lined not more than
one thousand dollars, or imi)risoned not more than seven
years, or both.

Offenses to Official Duties 765

§883. Other false certificates. Sec. 106. Whoever,
being a public officer or other person authorized by any
law of the United States to make or give a certificate or
other writing, shall knowingly make and deliver as true
such a certificate or writing, containing any statement
which he knows to be false, in a case where the punish-
ment thereof is not elsewhere expressly provided by law,
shall be fined not more than five hundred dollars, or im-
prisoned not more than one year, or both.

§ 884. Inspector of steamboats receiving illegal fees.
Sec. 107. Every inspector of steamboats who, upon any
pretense, receives any fee or reward for his services, ex-
cept what is allowed to him by law, shall forfeit his of-
fice, and be fined not more than five hundred dollars, or
imprisoned not more than six months, or both.

§ 885. Pension agent taking fee, etc. Sec. 108. Every
pension agent, or other person employed or appointed by
him, who takes, receives, or demands any fee or reward
from any pensioner for any service in connection with
the payment of his pension, shall be fined not more than
five hundred dollars.

§ 886. Officer not to be interested in claims against the
United States. Sec. 109. Whoever, being an officer of
the United States, or a person holding any place of trust
or profit, or discharging any official function under, or
in connection with, any Executive Department of the
Government of the United States, or under the Senate
or House of Representatives of the United States, shall
act as an agent or attorney for prosecuting any claim
against the United States, or in any manner, or by any
means, othei*wise than in discharge of his proper official
duties, shall aid or assist in the prosecution or support
of any such claim, or receive any gratuity, or any share
of or interest in any claim from any claimant against

766 Ceiminal Law

the United States, with intent to aid or assist, or in con-
sideration of having aided or assisted, in the prosecution
of such claim, shall be fined not more than five thousand
dollars, or imprisoned not more than one year, or both.

§ 887. Member of Congress taking consideration for
procuring- contract, office, etc.; offering member consider-
ation, etc. Sec. 110. Whoever, being elected or ap-
pointed a member of or Delegate to CongTcss, or a resi-
dent Commissioner, sliall after his election or appoint-
ment and either before or after he has qualified, and dur-
ing his continuance in office, directly or indirectly, ask,
accept, receive, or agree to receive any money, property,
or other valuable consideration, or any promise, con-
tract, undertaking, obligation, gratuity, or security for
the payment of money or for the delivery or conveyance
of anything of value to him or to any person with his
consent, connivance, or concurrence, for his attention to,
or services, or with the intent to have his action, vote,
or decision influenced, on any question, matter, cause, or
proceeding, which may at any time be pending in either
House of Congress or before any committee thereof, or
which by law or under the Constitution may be brought
before him in his official capacity, or in his place as such
Member, Delegate, or Resident Commissioner, shall be
fined not more than tliree times the amount asked, ac-
cepted, or received, and imprisoned not more than three
years; and shall, moreover, forfeit his office or place, and
thereafter be forever disqualified from holding any office
of honor, tiiist, or profit under the Government of the
United States.

§ 888. Off'ering, etc., member of Congress bribe, etc.
Sec. 111. Wlioovor slwill i)r()mise, offer, or give, or cause
to Itf |ii()inisc(l, (tlTered, or given, any money or other
lliiiig of value, or sliall mal\o or louder any contract,
und(!rtakiiig, ol)ligaiioii, gratuity, or security for the

Offenses to Official Duties 767

payment of money or for the delivery or conveyance of
anything of value, to any member of either House of
Congress, or Delegate to Congress, or Resident Commis-
sioner, after his election or appointment and either be-
fore or after he has qualified, and during his continuance
in ofifice, or to any person with his consent, connivance,
or concurrence, with intent to influence his action, vote,
or decision, on any question, matter, cause, or proceed-
ing which may at any time be pending in either House
of Congress, or before any committee thereof, or which
by law or under the Constitution may be brought before
him in his official capacity or in his place as such Mem-
ber, Delegate, or Resident Commissioner, shall be fined
not more than three times the amount of money or value
of the thing so promised, offered, given, made, or ten-
dered, and imprisoned not more than three years.

§889. Member of Congress taking consideration for
procuring contract, office, etc.; offering member consid-
eration, etc. Sec. 112. Whoever, being elected or ap-
pointed a Member of or Delegate to Congress, or a Resi-
dent Commissioner, shall, after his election or appoint-
ment and either before or after he has qualified, and dur-
ing his continuance in office, or being an officer or agent
of the United States, shall directly or indirectly take,
receive, or agree to receive, from any person, any money,
property, or other valuable consideration whatever, for
procuring, or aiding to procure, any contract, appointive
office, or place from the United States or from any offi-
cer or department thereof, for any person whatever, or
for giving any such contract, appointive office, or place
to any person whomsoever; or whoever, directly or in-
directly, shall offer, or agree to give, or shall give, or
bestow, any money, property, or other valuable considera-
tion whatever, for the procuring, or aiding to procure,
any such contract, appointive office, or place, shall be
fined not more than ten thousand dollars and imprisoned

768 Criminal Law

not more than two years; and shall, moreover, be dis-
qualified from holding any office of honor, profit, or trust
under the Government of the United States. Any such
contract or agreement may, at the option of the Presi-
dent, be declared void.

§ 890. Member of Congress, etc., taking compensation
in matters to which United States is a party. Sec, 113.
Whoever, being elected or appointed a Senator, Mem-
ber of, or Delegate to Congress, or a Resident Commis-
sioner, shall, after his election or appointment and either
before or after he has qualified, and during his contin-
uance in office, or being the head of a department, or
other officer or clerk in the employ of the United States,
shall, directly or indirectly, receive, or agree to receive,
any compensation whatever for any services rendered or
to be rendered to any person, either by himself or an-
other, in relation to anj^ proceeding, contract, claim, con-
troversy, charge, accusation, arrest, or other matter or
thing in which the United States is a party or directly
or indirectly interested, before any department, court-
martial, bureau, officer, or any civil, military, or naval
commission whatever, shall be fined not more than ten
thousand dollars and imprisoned not more than two
years; and shall, moreover, thereafter be incapable of
holding anj^ office of honor, trust, or profit under the Gov-
ernment of the United States.

§ 891. Member of CongTess not to be interested in con-
tract. Sec. 114. Wliocvor, ])eiiig elected or appointed a
I\r('nib('i- of (»!• Delegate to Congress, or a Resident Com-
missioner, shall, afler his election or a]ipointment and
eitlier bcfnic or .-irtcr lie lias (pialified, and during his
('oiitimiaiK'c ill office, directly oi" indirectly, himself, or
by any otlicr person in Jnisl foi- liini, or for his use or
])enefit, on his accoiint, iiiMJcrtako, execute, liold, or en-
joy, in whole or in pnil, .iny contract or agreement, made

Offenses to Official Duties . 769

or entered into in behalf of the United States by any of-
ficer or person authorized to make contracts on its be-
half, shall be fined not more than three thousand dollars.
All contracts or agreements made in violation of this sec-
tion shall be void; and whenever any such sum of money
is advanced by the United States, in consideration of any
such contract or agreement, it shall forthwith be repaid;
and in case of failure or refusal to repay the same, when
demanded by the x^roper officer of the department under
whose authority such contract or agreement shall have
been made or entered into, suit shall at once be brought
against the persons so failing or refusing and his sure-
ties, for the recovery of the money so advanced.

§ 892. Officer making contracts with member of Con-
gress. Sec. 115. Whoever, being an officer of the United
States, shall on behalf of the United States, directly or
indirectly make or enter into any contract, bargain, or
agreement, in writing or othei^wise, with any Member
of or Delegate to Congress, or any Resident Commis-
sioner, after his election or appointment as such Mem-
ber, Delegate or Resident Commissioner, and either be-
fore or after he has qualified, and during his continuance
in office, shall be fined not more than three thousand dol-
lars.

§ 893. Contracts to which two preceding sections do
not apply. Sec. 116. Nothing contained in the two pre-
ceding sections [891, 892] shall extend, or be construed to
extend, to any contract or agreement made or entered
into, or accepted, by any incorporated company, where
such contract or agreement is made for the general bene-
fit of such incorporation or company ; nor to the purchase
or sale of bills of exchange or other property by any
Member of or Delegate to Congress, or Resident Commis-
sioner, where the same are ready for delivery, and pay-

C. L.— 49

770 Criminal. Law

inent therefor is made at the time of making or entering
into the contract or agreement.

§ 894. United States officer accepting bribe. Sec. 117.
AVlioever, being an officer of the United States, or a per-
son acting for or on behalf of tlie United States, in any-
official capacity, mider or by virtue of the authority of
any department or office of the Government thereof; or
whoever, being an officer or person acting for or on be-
half of either House of Congress, or of any committee
of either House, or of both Houses thereof, shall ask, ac-
cept, or receive any money, or any contract, promise,
undertaking, obligation, gratuity, or security for the pay-
ment of money, or for the deliveiy or conveyance of any-
thing of value, with intent to have his decision or action
or any question, matter, cause, or proceeding which may
at any time be pending, or which may by law be brought
before him in his official capacity, or in his place of trust
or profit, influenced thereby, shall be fined not more than
three times the amount of money or value of the thing
so asked, accepted, or received, and imprisoned not more
than three years; and shall moreover, forfeit his office or
place and thereafter be forever disqualified from holding
any office of honor, trust, or profit under the Government
of the United States.

§ 895. Political contributions not to be solicited by cer-
tain officers. Sec. 118. No senator or Representative in,
or Delegate or Resident Commissioner to Congress or
Senator, Representative, Delegate, or Resident Commis-
sioner elect, or officer or employee of either House of Con-
gress, and no executive, judicial, militaiy, or naval offi-
cer of the United States, and no clerk or employee of any
department, branch, or bureau of the executive, judicial,
or military or naval service of tlio United States, shall,
directly or indirectly, solicit or receive, or be in any
manner concerned in soliciting or receiving, any assess-
ment, subscription, or contribution for any political pur-

Offenses to Official Duties 771

pose whatever, from any officer, clerk, or employee of the
United States, or any department, branch, or bureau
thereof, or from any person receiving any salary or com-
pensation from moneys derived from the Treasury of the
United States.

§ 896. Political contributions not to be received in pub-
lic offices. Sec. 119. No person shall, in any room or
building occupied in the discharge of official duties by
any officer or employee of the United States mentioned
in the preceding section [895], or in any navy-yard, fort,
or arsenal, solicit in any manner whatever or receive any
contribution of money or other thing of value for any
political purpose whatever.

§ 897. Immunity from official proscription. Sec. 120.
No officer or employee of the United States mentioned in
section one hundred and eighteen [895], shall discharge,
or promote, or degrade, or in any manner change the offi-
cial rank or compensation of any other officer or em-
ployee, or promise or threaten so to do, for giving or
withholding or neglecting to make any contribution of
money or other valuable thing for any political purpose.

§ 898. Giving money to officials for political purposes
prohibited. Sec. 121. No officer, clerk or other person
in the service of the United States shall, directly or
indirectly, give or hand over to any other officer, clerk,
or person in the service of the United States, or to any
Senator or Member of or Delegate to Congress, or Resi-
dent Commissioner, any money or other valuable thing
on account of or to be applied to the promotion of any
political object whatever.

§ 899. Penalty for violating provisions of four preced-
ing sections. Sec. 122. Whoever shall violate any pro-
vision of the four preceding sections [889, 890, 891, 892]
shall be fined not more than five thousand dollars, or im-
prisoned not more than three years, or both.

772 Criminal Law

§ 900. Governmental officer, etc., giving- out advance
information respecting crop reports. Sec. 123. AVho-
ever, being an officer or employee of the United States
or a person acting for or on behalf of the United States
in any capacity, under or by virtue of the authority of
any department of office thereof, and while holding such
office, emplojanent, or position shall, by virtue of the
office, employment, or position held by him, become pos-
sessed of any information which might exert an influence
upon or affect the market value of any product of the
soil grown within the United States, which information
is by law or by the rules of the department or office re-
quired to be Avithheld from j)ublication until a fixed
time, and shall willfully impart, directly or indirectly,
such information, or any part thereof, to any person
not entitled under the law or the rules of the depart-
ment or office to receive the same or shall, before such
information is made public through regular official chan-
nels, directly or indirectly speculate in any such product
respecting which he has thus become possessed of such
information, by buying or selling the same in any quan-
tity, shall be fined not more than ten thousand dollars,
or imprisoned not more than ten years, or both; Pro-
vided, That no person shall be deemed guilty of a viola-
tion of any such rule, unless prior to such alleged
violation he shall have had actual knowledge thereof.

§ 901. Government officer, etc., knowingly compiling or
issuing false statistics respecting crops. Sec. 124. Who-
ever, being an officer or employee of the United States,
and whose duties recpiire the comjiilntion or report of
statistics or information relative to the products of the
soil, shall knowingly compile for issuance, or issue, any
false statistics or information as a report of the United
States, shall be fined not more than five thousand dollars,
or imprisoned not more than five years, or both.

CHAPTER LIX

ESPIONAGE ACT

S 903. Espionage Act, detailing cir- § 919.
cumstances made criminal
against Governinent; pun-
ishment for violation.

§ 904. Espionage Act amended by
Act of May 16, 1918, ap-
proved June 15, 1917.

§ 905. Making false statements, wil- § 920.
fully to interfere with na-
tional forces.

§ 907. Punishment for concealing of- § 921.
fenders, etc.

§ 908. Communicating foreign gov-
ernment plans for defense;
punishment. § 922.

§ 909. Designation of other prohib-
ited places.

§ 910. Court-martial, etc., jurisdic- § 923.
tion not affected.

§ 911. All possessions of the United

States included, offenses on § 924.
high seas, etc.

§ 912. Former act repealed. § 925.

§ 913. Vessels in ports of the United
States.

§ 914. Forfeiture of vessel if owner

refuses to obey rules, etc. § 926.

§ 915. Injury, etc., of vessel by

owner, etc., unlawful. § 927.

§ 916. Enforcement by the Presi-
dent. ' § 928.

§ 917. Injuring vessels engaged in

foreign commerce; punish- § 929.
ment.

§ 918. Interference with foreign § 930.
commerce by violent means.

773

Enforcement of neutrality,
maintenance of neutrality,
clearance or departure
withheld from vessel carry-
ing arms, etc., to a bellig-
erent when United States
is neutral.

Detention of private warlike
vessel to prevent use
against friendly nation.

Sending out armed vessel for
delivery to belligerent na-
tion at peace with United
States, unlawful.

Clearances, etc., manifests to
be delivered before depar-
ture of vessels.

Kefusal of clearance, etc., if
statements believed to be
false, etc.

Punishment for unlawful de-
parture, etc.

Interned belligerent aliens,
leaving limits, etc., without
permission, to be arrested,
etc.

Organizing expeditions
against friendly powers.

Enforcement by the Presi-
dent.

Compelling foreign vessels to
depart.

Former resolution and con-
flicting laws repealed.

Seizure of arms and other ar-
ticles intended for export.

t (■

Criminal Law

§ 931. Further detention, etc., ap-
plication to court for war-
rant,

§ 932. Petition of owner for restora-
tion.

§ 933. Libel proceedings for condem-
nation and sale of seized
property.

§ 93-4. Admiralty procedure to gov-
ern trials.

§ 935. Lawful export trade not in-
terfered with.

§ 936. Discretionary release of prop-
erty.

§ 937. Enforcement by the Presi-
dent.

§ 938. Certain exports in time of
war unlawful.

§ 939. Punishment for violation.

§ 940. Clearance refused vessel
carrying prohibited ar-
ticles.

§ 041. Disturbance of foreign rela-
tions.

§ 942. Punishment for falsely as-
suming to be foreign offi-
cial.

§ 943. Punishment for acting for
foreign government without
recognition.

§ 944. * ' Foreign government. ' ' Use
of term construed.

§ 945. Punishment for conspiracy in
United States to injure
property in foreign country
at peace therewith.

g 946. Passports.

§ 9\7. Punishment for false state-
ments in n])iilication.

§ 948. Ulegally using passport of
another.

§ 949. Punishment for counterfeit-
ing, forging, etc., pass-
ports.

§ 950. Counterfeiting government
seal.

§ 951. Punishment for forging, etc.,
any Government seal.

§ 952. Punishment for forging, etc.,
naval, military, or official
passes or permits.

§ 953. Use of mails, matter violat-
ing provisions of this act
nonmailable.

§ 954. Letters, etc., advocating trea-
son, resistance to law, etc.,
nonmailable.

§ 955. Punishment for violation.

§ 956. General provisions, prior of-
fenses, etc., subject to
former laws.

§ 957. Alien anarchists, etc., ex-
cluded admission.

§ 958. Deportation after entry if
member of excluded classes.

§ 959. Punishment for returning
after deportation.

§ 960. Foreign travel, acts of, made
unlawful during time of
war.

§ 961. Passports required for all
entries and departures of
citizens.

§ 062. Punishment for violation.

§ 963. Meaning of terms "United

States" and "person."
§ 964. An act to regulate further
the entry of aliens into the
United States.

TITLE I. ESPIONAGE

^ 903. Espionage Act — Detailing: circumstances made
criminal against government, punishment for violation.
Tliat (a) wlioevcr, i'oi- tlic i)urposc of obtainiii<; infer-

Espionage Act 775

mation respecting the national defense with intent or
reason to believe that the information to be obtained is
to be used to the injury of the United States, or to the
advantage of any foreign nation, goes upon, enters, flies
over, or otherwise obtains information concerning any
velle, aircraft, work of defense, navy yard, naval station,
submarine base, coaling station, fort, battery, torpedo
station, dockyard, canal, railroad, arsenal, camp, factory,
mine, telegraph, telephone, wireless, or signal station,
building, office, or other place connected with the na-
tional defense, owned or constructed, or in progress of
construction by the United States or under the control
of the United States, or of any of its officers or agents,
or within the exclusive jurisdiction of the United States,
or any place in which any vessel, aircraft, arms, muni-
tions, or other material or instruments for use in time
of war are being made, prepared, repaired, or stored,
under any contract or agreement with the United States,
or with any person on behalf of the United States, or
otherwise on behalf of the United States or any pro-
hibited place within the meaning of section six of this
title; of (b) whoever for the purpose aforesaid, and
with like intent or reason to believe, copies, takes, makes,
or obtains, or attempts, or induces or aids another to
copy, take, make, or obtain, any sketch, photograph,
photographic negative, blue print, plan, map, model, in-
strument, appliance, document, writing, or note of any-
thing connected with the national defense; or (c) who-
ever, for the purpose aforesaid, receives or obtains or
agrees or attempts or induces or aids another to receive
or obtain from any person, or from any source whatever,
any document, writing, code book, signal book, sketch,
photograph, photographic negative, blue print, plan,
map, model, instrument, appliance, or note, of anything
connected with the national defense, knowing or having
reason to believe, at the time he receives or obtains,
or agi'ees or attempts or induces or aids another to re-

( I

"6 Criminal Law

ceive or obtain it, that it has been or will be obtained,
taken, made or disposed of by any person contrary to
the provisions of this title; or (d) whoever, lawfully or
unlawfully having possession of, access to, control over,
or being intrusted with any document, writing, code
book, signal book, sketch, photograph, photogTaphic neg-
ative, blue print, plan, map, model, instrument, appli-
.ance, or note relating to the national defense, wilfully
communicates or transmits or attempts to communicate
or transmit the same to any person not entitled to re-
ceive it, or wilfully retains the same and fails to deliver
it on demand to the officer or employee of the United
States entitled to receive it; or (e) whoever, being in-
trusted with or having lawful possession or control of
any document, writing, code book, signal book, sketch,
photograph, photographic negative, blue print, plan, map,
model, note, or information, relating to the national de-
fense, through gross negligence permits the same to be
removed from its proper place of custody or delivered
to anyone in violation of his tiiist, or to be lost, stolen,
abstracted, or destroyed, shall be punished by a fine of
not more than ten thousand dollars, or by imprisonment
for not more than two years, or both.^

§ 904. Espionage Act, approved June 15, 1917, amended
by Act of May 16, 1918. Be it enacted by the Senate
and llouhc of Kepreseiitntiv(>s of the United States of
America in Tongi-ess asse'nil)kMl, That section " three of
title one of the Act entitled "An Act to i)uiiish acts
of interference with llie foreign ivlations, the neutrality,
and the foreign eonnnerce ol" the Tnited States, to })unisli
espionage, and Ijetter to eiit'oice the criminal laws of the
Tnited States, and for otiiei- purposes," approved June
15, 1917, l)e, and the same is hereby amended so as to
read as follows:

1— Hec. 1, Act Juno 1.1, KM 7, Ki
Htat. 217.

Espionage Act 777

''Sec. 3. Whoever, when the United States is at war,
shall wilfully make or convey false reports or false state-
ments with intent to interfere with the operation or
success of the military or naval forces of the United
States, or to promote the success of its enemies, or shall
wilfully make or convey false reports or false statements
or say or do anything except by way of bona fide and
not disloyal advice to an investor or investors, with in-
tent to obstruct the sale by the United States of bonds
or other securities of the United States or the making
of loans by or to the United States, and whoever, when
the United States is at war, shall wilfully cause or at-
tempt to cause, or incite or attempt to incite, insub-
ordination, disloyalty, mutiny, or refusal of duty, in the
military or naval forces of the United States, or shall
wilfully obstruct or attempt to obstruct the recruiting
or enlistment service of the United States and whoever,
when the United States is at war, shall wilfully utter,
print, write, or publish any disloyal, profane, scurrilous,
or abusive language about the form of government of
the United States, or the Constitution of the United
States, or the military or naval forces of the United
States, or the flag of the United States, or the uniform .
of the Army or Navy of the United States, or any lan-
guage intended to bring the fonn of government of the
United States, or the Constitution of the United States,
or the military or naval forces of the United States,
or the flag of the United States, or the uniform of the
Army or Navy of the United States into contempt, scorn,
contumely, or disrepute, or shall wilfully utter, print,
write, or publish any language intended to incite, pro-
voke, or encourage resistance to the United States, or to
promote the cause of its enemies, or shall wilfully display
the flag of any foreign enemy, or shall wilfully by utter-
ance, writing, printing, publication, or language spoken,
urge, incite, or advocate any curtailment of production
in this country of the prosecution of the war in which

778 CfiiMiXAL Law

the United States may be engaged, with intent by such
curtaihnent to cripple or hinder the United States in
the prosecution of the war, and whoever shall wilfully
advocate, teach, defend, or suggest the doing of any of
the acts or things in this section enumerated, and who-
ever shall by word or act support or favor the cause of
any country with which the United States is at war or
by word or act oppose the cause of the United States
therein, shall be punished by a fine of not more than
ten thousand dollars or imprisonment for not more
than twenty years, or both: Provided, That any em-
ployee or official of the United States Government who
commits any disloyal act or utters any unpatriotic or
disloyal language, or who, in an abusive and violent
manner criticizes the Anny or Navy or the flag of the
United States shall be at once dismissed from the sen^-
ice. Any such employee shall be dismissed by the head
of the department in which the employee may be en-
gaged, and any such official shall be dismissed by the
authority having power to appoint a successor to the
dismissed official."^

§ 905. Making false statement, wilfully to interfere
with national forces. If two or more persons consi)ire
to violate the ]>rovisions of sections 2 or 3 of this
title [Sees. 904, 907], and one or more of such persons
does any act to elTect the object of the conspiracy, each
of the parties to such conspiracy shall be punished as in
said .sections provided in the case of the doing of tlie act
the accomplishment of which is the object of such con-
spiracy. Except as above provided conspiracies to com-
mit offenses under this title shall ])e punished as provided
by section thirty-seven of the Act to codify, revise, and
amend the penal laws of the United States approved
March 4, 1909.3

2— Sec. 1, Act May 16, 1018, 40 3— Sec. 3, Act .Tunc !.'>, 1910, 40

Stat. 553. Rfat. 219, Act.

Espionage Act 779

§ 907. Punishment for concealing offenders, etc. Who-
ever harbors or conceals any person who he knows, or
has reasonable grounds to believe or suspect, has com-
mitted, or is about to commit, an offense under this title
shall be punished by a fine of not more than ten thousand
dollars, or by imprisonment for not more than two years,
or both.^

§ 908. Communicating- foreign government plans of
defense; punishment, (a) Whoever, with intent or rea-
son to believe that it is to be used to the injury of the
United States or to the advantage of a foreign nation,
communicates, delivers, or transmits, or attempts to, or
aids or induces another to, communicate, deliver, or trans-
mit, to any foreign government, or to any faction or
party or military or naval force within a foreign coun-
try, whether recognized or unrecognized by the United
States, or to any representative, officer, agent, employee,
subject, or citizen thereof, either directly or indirectly,
any document, writing, code book, signal book, sketch,
photograph, photographic negative, blue print, plan, map,
model, note, instrument, applicance, or information re-
lating to the national defense, shall be punished by im-
prisonment for not more than twenty years: Provided,
That whoever shall violate the provisions of subsection
(a) of this section in time of war shall be punished by
death or by imprisonment for not more than thirty years ;
and (b) whoever, in time of war, with intent that the
same shall be communicated to the enemy, shall collect,
record, publish, or communicate, or attempt to elicit any
infomiation with respect to the movement, numbers, de-
scription, condition, or disposition of any of the armed
forces, ships, aircraft, or war materials of the United
States, or with respect to the plans or conduct, or sup-

5 — Sec. 5, Act June 15, 1919, 40
Stat. 219.

780 Criminal Law

posed plans or conduct of any naval or military opera-
tions, or with respect to any works or measures under-
taken for or connected with, or intended for the fortifi-
cation or defense of any place, or any other information
relating to the public defense, which might be useful
to the enemy, shall be punished by death or by imprison-
ment for not more than thirty years.®

§909. Designation of other prohibited places. The
President in time of war or in case of national emergency
may by proclamation designate any place other than
those set forth in subsection (a) of section 1 hereof in
wliich anything for the use of the Army or Navy is
being prepared or constructed or stored as a prohibited
place for the purposes of this title: Provided, That he
shall determine that information with respect thereto
would be prejudicial to the national defense.''

§ 910. Courts-martial, etc., jurisdiction not affected.
Nothing contained in this title shall be deemed to limit
the jurisdiction of the general courts-martial, military
connnissions, or naval courts-martial under sections 1342,
134.3, and 1624 of the Revised Statutes as amended.'

§ 911. All possessions of the United States included,
offenses on high seas, etc. The provisions of this title
sliall extend to all Territories, possessions, and places
sn])joct to the Jurisdiction of tlic United States whether
or not contiguous thereto, and offenses under tliis title
when committed upon the high seas or elsewhere within
tlie admiralty and maritime jurisdiction of the United
States and outside the territorial limits thereof shall
be yjiiTiisliablc licreuTider.®

6— Sec. 2, Act June 15, 1917, 40 8— Sec. 7, Act June 15, 1917, 40

Stftt. 218-19. , Stat, 210.

7_Scc. 6, Art .Tnno 15, 1917, 40 9— Spc. 8, Act .Ttinr 1.", 1017, 40

Stat. 219. Stat. 219.

Espionage Act 781

§ 912. Former act repealed. The Act entitled ' ' An Act
to prevent the disclosure of national defense secrets,"
approved March 3, 1911, is hereby repealed.

TITLE II. ESPIONAGE

§ 913. Vessels in ports of the United States. When-
ever the President by proclamation or Executive order
declares a national emergency to exist by reason of actual
or threatened war, insurrection, or invasion, or disturb-
ance, or threatened disturbance of the international re-
lations of the United States, the Secretary of the Treasury
may make subject to the approval of the President, rules
and regulations governing the anchorage and movement
of any vessel, foreign or domestic, in the territorial
waters of the United States, may inspect such vessel at
any time, place guards thereon, and, if necessary in his
opinion in order to secure such vessels from damage or
injury, or to prevent damage or injury to any harbor
or waters of the United States, or to secure the ob-
servance of the rights and obligations of the United
States, may take, by and with the consent of the Presi-
dent, for such purposes, full possession and control of
such vessel and remove therefrom the officers and crew
thereof and all other persons not specially authorized
by him to go or remain on board thereof.

Within the territory and waters of the Canal Zone
the Governor of the Panama Canal, Avith the approval
of the President, shall exercise all the powers conferred
by this section on the Secretary of the Treasury."

§ 914. Forfeiture of vessel if owner refuses to obey
rules, etc. If any owner, agent, master, officer, or per-
son in charge, or any member of the crew of any such
vessel fails to comply with any regulation or rule issued
or order given by the Secretary of the Treasuiy or the

10— Sec. 9, Act June 15, 1917, 11— Sec. 1, June 15, 1917, 40

40 Stat. 219. Stat. 220.

782 Crimixal Law

Governor of the Panama Canal under the provisions of
this title, or obstructs or interferes with the exercise of
any power conferred by this title, the vessel, together
with her tackle, apparel, furniture, and equipment, shall
be subject to seizure and forfeiture to the United States
in the same manner as merchandise is forfeited for viola-
tion of the customs revenue laws; and the person guilty
of such failure, obstruction, or interference shall be fined
not more than ten thousand dollars, or imprisoned not
more than two years, or both.^^

§ 915. Injury, etc., of vessel by owner, etc., unlawful.
It shall be unlawful for the ow^ner or master or any
other person in charge or command of any private vessel,
foreign or domestic, or for any member of the crew or
other person, within the territorial waters of the United
States, wilfully to cause or permit the destruction or
injuiy of such vessel or knowingly to permit said vessel
to be used as a place of resort for any person conspiring
with another or preparing to commit any offense against
the United States, or in violation of the treaties of the
United States or of the obligations- of the United States
under the law of nations, or to defraud the United States,
or knowingly to pennit such vessels to be used in viola-
tion of the rights and ()])ligations of the United States
under the law of nations; and in case such vessel shall
be so used, with tlie knowledge of the owner or master
or otlier person in cliargc or connnand thereof, the vessel,
togetlicr with her tackle, apparel, funiiture, and equip-
ment, sliall !)(' subject to seizure and forfeiture to the
United States in tlie siiiiic iii.-iiiiicr as merchandise is
I'm Icilcd \\)i xiolntion lor llic customs revenue laws;
and whoever violates tliis section shall be fined not more
than ten thousand dollai's, or imprisoned not more than
two years, or both.^^

12— Sec. 2, Act Juuo LO, JiUT, 13— Sec. .3, June 15, 1917, 40

40 Stat. 220. Stat. 220.

Espionage Act 783

§ 916. Enforcement by the President. The President
may cmpU:)y such jjart of the land or naval forces of the
United States as he may deem necessary to carry out
the purpose of this title.^*

TITLE III. ESPIONAGE

§ 917. Injuring- vessels engaged in foreign commerce,
punishment. Whoever shall set fire to any vessel of
foreign registry, or any vessel of American registry en-
titled to engage in commerce with foreign nations, or to
any vessel of the United States as defined in section 310
of the Act of March 4, 1909, entitled "An Act to codify,
revise, and amend the penal laws of the United States,"
or to the cargo of the same, or shall tamper with the
motive power or instrumentalities of navigation of such
vessel, or shall place bombs or explosives in or upon
such vessel, or shall do any other act to or upon such
vessel while within the jurisdiction of the United States,
or, if such vessel is of American registry, while she is
on the high sea, with intent to injure or endanger the
safety of the vessel or of her cargo, or of persons on
board, whether the injury or danger is so intended to
take place within the jurisdiction of the United States,
or after the vessel shall have departed therefrom; or
whoever shall attempt or conspire to do any such acts
with such intent shall be fined not more than ten thou-
sand dollars, or imprisoned not more than twenty years,
or both.^^

TITLE IV. ESPIONAGE

§ 918. Interference with foreign commerce by violent
means. Whoever, with intent to prevent, interfere with,
or obstruct or attempt to prevent, interfere with, or ob-
struct the exportation to foreign countries of articles

14— Sec. 4, 40 Stat. 220, Act June 15— Sec. 1, Act June 15, 1917,
15, 1917. 40 Stat. 221.

784 Criminal Law

from the United States shall injure or destroy, by fire
or explosives, such articles or the places where they may
be w4iile in such foreign commerce, shall be fined not
more than ten thousand dollars, or imprisoned not more
than ten vears, or both.^^

TITLE V. ESPIONAGE

§ 919. Enforcement of neutrality, maintenance of neu-
trality, clearance or departure withheld from vessel
carrying- arms, etc., to a belligerent when United States
is neutral. During a w^ar in which the United States is
a neutral nation, the President, or any person thereunto
authorized by him, may withhold clearance from or to
any vessel, domestic or foreign, which is required by
law to secure clearance before departing from port or
from the jurisdiction of the United States, or, by service
of formal notice upon the owner, master, or person in
command or having charge of any domestic vessel not
required by law to secure clearances before so depart-
ing, to forbid its departure from port or from the juris-
diction of the United States, whenever there is reason-
able cause to believe that any such vessel, domestic or
foreign, whether reciuiriiig clearance or not, is about to
carry fuel, arms, ammunition, men, supplies, dispatches,
or information to any warsliip, tender, or supply shij)
or a foreign belligerent nation in violation of the laws,
treaties, or ol)ligations of llic I'liilcd States under the
law of nations; and it siiali thereupon he unlawful for
such vessel to depart.^'^

i} 920. Detention of private warlike vessel to prevent
use against friendly nation. During a war in wliicli tiie
I'nitcd States is a nentinl nation, the l*resi(kMit, oi- any
l)erHon tliereunto authoiized by iiini, in;iy detain any
armed vessel owned wholl\ or in p.nl by American citi-

16_Sec. 1, Act June IT,, I'M 7, 17— Sec. 1, Act Jiino L'5, 1917,

40 Stat. 221. 40 Stat. 221.

Espionage Act 785

zens, or any vessel, domestic or foreign (other than one
which has entered the ports of the United States as a
public vessel), which is manifestly built for warlike pur-
poses or has been converted or adapted from a private
vessel to one suitable for warlike use, until the owner
or master, or person having charge of such vessel, shall
furnish proof satisfactory to the President, or to the
person duly authorized by him, that the vessel will not
be employed by the said owners, or master, or person
having charge thereof, to cruise against or commit or
attempt to commit hostilities upon the subjects, citizens,
or property of any foreign prince or state, or of any
colony, district, or people with which the United States
is at peace, and that tlie said vessel will not be sold or
delivered to any belligerent nation, or to an agent, offi-
cer, or citizen of such nation, by them or any of them,
within the jurisdiction of the United States, or, having
left that jurisdiction, upon the high seas.^^

§ 921. Sending- out armed vessel for delivery to bellig-
erent nation at peace with United States, unlawful. Dur-
ing a war in which the United States is a neutral nation,
it shall be unlawful to send out of the jurisdiction of the
United States any vessel built, armed, or equipped as
a vessel of war, or converted from a private vessel into
a vessel of war, with any intent or under any agreement
or contract, written or oral, that such vessel shall be
delivered to a belligerent nation, or to an agent, officer,
or citizen of such nation, or with reasonable cause to
believe that the said vessel shall or will be employed
in the service of any such belligerent nation after its
departure from the jurisdiction of the United States.^®

§ 922. Clearances, etc., manifests to be delivered before
departure of vessels. During a war in which the United
States is a neutral nation, in addition to the facts re-

18— Sec. 2, Act June 15, 1917, 19— Sec. 4, June 15, 1917, 40

40 Stat. 222. Stat. 222.

C. L.— 50

786 Criminal Law

quired by sections 4197, 4198, and 4200 of the Revised
Statutes to be set out in the masters' and shippers'
manifests before clearance will be issued to vessels bound
to foreign ports, each of which sections of the Revised
Statutes is hereby declared to be and is continued in
full force and effect, eveiy master or person having
charge or command of any vessel, domestic or foreign,
whether requiring clearance or not, before departure of
such vessel from port shall deliver to the collector of
customs for the district wherein such vessel is then lo-
cated a statement duly verified by oath that the cargo
or any part of the cargo is or is not to be delivered to
other vessels in port or to be transshipped on the high
seas and, if it is to be so delivered or transshipped, stat-
ing the kind and quantities and the value of the total
quantity of each kind of article so to be delivered or
transshipped, and the name of the person, corporation,
vessel, or government, to whom the delivery or trans-
shipment is to be made; and the owners, shippers, or
consignors of the cargo of such vessel shall in the same
manner and under the same conditions deliver to the
collector like statements under oath as to the cargo or
tlio parts tlioroof Inden or shipped by them respectively.^"

§ 923. Refusal of clearance, etc., if statements believed
to be false, etc. W'lienever it appears that the vessel is
not entitled to clearance or wlienever there is reasonable
cause to believe that the additional statements under
oatli required in tlie foregoing section [922] are false,
tlie collector of customs for the district in which the ves-
sel is located may, subject to review by tlie Secretaiy of
(yonimerce, refuse clearance to any vessel, domestic or
foreign, and l)y rdiiii.il notice served upon the owners,
masters, or person oi- persons in commaiHi or charge of
any doniostic vessel I'oi' which clearance is not required

20— Sec. 4, .lunc 15, 1917, 40
Stat. 222.

Espionage Act 787

by law, forbid the departure of the vessel from the port
or from the jurisdiction of the United States; and it
shall thereupon be unlawful for the vessel to depart.^^

§ 924. Punishment for unlawful departure, etc. Who-
ever, in violation of any of the provisions of this title,
shall take, or attempt or conspire to take, or authorize
the taldng of any such vessels, out of port or .from the
jurisdiction of the United States, shall be fined not more
than ten thousand dollars, or imprisoned not more than
five years, or both; and, in addition, such vessel, her
tackle, apparel, furniture, equipment, and her cargo shall
be forfeited to the United States.^^

§ 925. Interned belligerent aliens, leaving limits, etc.,
without permission, to be arrested, etc. Whoever, be-
ing a person belonging to the armed land or naval forces
of a belligerent nation or belligerent faction of any na-
tion and being interned in the United States, in accord-
ance with the law of nations, shall leave or attempt to
leave said jurisdiction, or shall leave or attempt to leave
the limits of internment in which freedom of movement
has been allowed, without permission from the proper
official of the United States in charge, or shall wilfully
overstay a leave of absence granted by such official,
shall be subject to aiTest by any marshal or deputy
marshal of the United States, or by the military or naval
authorities thereof, and shall be returned to the place
of internment and there confined and safely kept for
such period of time as the official of the United States
in charge shall direct; and whoever, within the jurisdic-
tion of the United States and subject thereof, shall aid
or entice any interned person to escape or attempt to
escape from the jurisdiction of the United States, or
from the limits of intennnent prescribed, shall be fined

21— Sec. 5, June 15, 1917, 40 22— See. 6, June 15, 1917, 40

Stat. 222. Stat. 222.

788 Criminal Law

not more tliau one thousand dollars, or imprisoned not
more than one year, or both.^^

§ 926. Organizing- expeditions against friendly powers.
Section 13 of the Act entitled "An Act to codify, revise,
and amend the penal laws of the United States," ap-
proved March 4, 1909, is hereby amended so as to read
as follows:

"Sec. 13. Whoever, within the territory or jurisdic-
tion of the United States or of any of its possessions,
knowingly begins or sets on foot or provides or prepares
a means for or furnishes the money for, or who takes
part in, any military or naval expedition or enterprise
to be carried on from thence ag'ainst the territory or
dominion of any foreign prince or state, or of any colony,
district, or jjeople with whom the United States is at
peace, shall be fined not more than $3,000, or imprisoned
not more than three years, or both." '^^

§ 927. Enforcement by the President. That the Presi-
dent may employ such part of the land or naval forces
of tlie United States as he may doom necessary to carry

out llic ])iir])oses of tliis titlc.^^

§ 928. Compelling foreign vessels to depart. Section
1.") of the Act ciilith'd "An Act to codify, revise, and
amend tiic jx'iial laws ol' IIk; United States," approved
Marcli 4, 1909, is liereby amended so as to read as fol-
h)ws:

"Sec. 1.'). II sli;ill he l.'iwfnl for the I'lX'sidcnl lo em-
ploy such pail of the land or na\al forces of tlie United
Slates, or of the militia thereof, as lie may deem neces-
sary to compel any foreign vessel to depart from the

23— Hoc. 7, .Tune 1.", 1017, Id 25— Sec. 9, June 1.'5, 1917, 40

Stat. 223. Stat. 223.

24— Sec. H, . I line 1.1, 1!M7, •10
Stat. 223.

Espionage Act • 789

United States or any of its possessions in all cases in
which, by the law of nations or the treaties of the United
States, it ought not to remain, and to detain or prevent
any foreign vessel from so departing in all cases in
which, by the law of nations or the treaties of the United
States, it is not entitled to depart." ^^

§ 929. Former resolution and conflicting' laws repealed.

The joint resolution approved March 4, 1915, ''To em-
power the President to better enforce and maintain the
neutrality of the United States," and any Act or parts
of Acts in conflict with the provisions of this title are
hereby repealed.^''

TITLE VI. ESPIONAGE

§ 930. Seizure of arms and other articles intended for
export. Whenever an attempt is made to export or ship
from or take out of the United States, any arms or muni-
tions of war, or other articles, in violation of law, or
whenever there shall be known or probable cause to be-
lieve that any such arms or munitions of war, or other
articles, are being or are intended to be exported, or
shipped from, or taken out of the United States, in vio-
lation of law, the several collectors, naval officers, sur-
veyors, inspectors of customs, and marshals, and deputy
marshals of the United States, and every other person
duly authorized for the purpose by the President, may
seize and detain any articles or munitions of war about
to be exported or shipped from, or taken out of the
United States, in violation of law, and the vessels or
vehicles containing the same, and retain possession there-
of until released or disposed of as hereinafter directed.
If upon due inquiry as hereinafter provided, the prop-
erty seized shall appear to have been about to be so un-

26— Sec. 10, June 15, 1917, 40 27— Sec. 11, June 15, 1917, 40
Stat. 223. Stat. 223.

790 . Ceiminal Law

lawfully exported, shipped from, or taken out of the
United States, the same shall be forfeited to the United
States.28

§ 931. Further detention, etc., application to court for
warrant for. It shall be the duty of the person making
any seizure under this title to apply, with due diligence,
to the judge of the district court of the United States,
or to the judge of the United States district court of
the Canal Zone, or to the judge of a court of first in-
stance in the Philippine Islands, having jurisdiction over
the place within which the seizure is made, for a warrant
to justify the further detention of the property so seized,
which warrant shall be granted only on oath or affirma-
tion showing that there is known or probable cause to
believe that the property seized is being or is intended
to be exported or shipped from or taken out of the United
States in violation of law; and if the judge refuses to
issue the warrant, or application therefor is not made
by the person making the seizure within a reasonable
time, not exceeding ten days after the seizure, the prop-
erty shall forthwith be restored to the owner or person
from whom seized. If the judge is satisfied that tli(»
seizure was justified under the provisions of this title
and issues wan-nnt accordingly, tlion tlie ]iroperty shall
be detained ])y tlie person seizing it until Uic I*resident,
who is hereby expressly authorized so to do, orders it
to be restored to the owner or claimant, or until it is
discharged in due course of law on petition of the claim-
ant, or on trial of condemnation proceedings, as here-
inafter provided.^^

§ 932. Petition of owner for restoration. The owner
or claimant oi" any property seized under this title may,
at any tim(! before condemnation proceedings have been
instituted, as hereinafter provided, file his petition for

28— Sec. 1, .Tunc l.*), 1917, 40 29— Sec. 2, .Tunc 1.5, 1917, 40

Stat. 224. Stnt. 224.

Espionage Act 791

its restoration in the district court of the United States,
or the district court of the Canal Zone, or the court of
first instance in the Philippine Islands, having jurisdic-
tion over the place in which the seizure was made, where-
upon the court shall advance the cause for hearing and
determination with all possible dispatch, and, after caus-
ing notice to be given to the United States attorney for
the district and to the person making the seizure, shall
proceed to hear and decide whether the property seized
shall be restored to the petitioner or forfeited to the
United States.^"

§ 933. Libel proceedings for condemnation and sale of
seized property. Whenever the person making any
seizure under this title applies for and obtains a war-
rant for the detention of the property, and (a) upon
the hearing and determination of the petition of the
owner or claimant restoration is denied, or (b) the owner
or claimant fails to file a petition for restoration within
thirty days after the seizure, the United States attorney
for the district wherein it was seized, upon direction of
the Attorney General, shall institute libel proceedings in
the United States district court of the Canal Zone or
the court of first instance of the Philippine Islands hav-
ing jurisdiction over the place wherein the seizure was
made, against the property for condemnation; and if,
after trial and hearing of the issues involved, the prop-
erty is condemned, it shall be disposed of by sale, and
the proceeds thereof, less the legal costs and charges,
paid into the Treasury.'^

§ 934. Admiralty procedure to govern trials. The pro-
ceedings in such summary trials upon the petition of the
owner or claimant of the property seized, as well as in
the libel cases herein provided for, shall conform, as
near as may be, to the proceedings in admiralty, except

30— Sec. 3, June 15, 1917, 40 31— Sec. 4, June 15, 1917, 40
Stat. 224. Stat. 224.

792 Criminal Law

that either party may demand trial by jury of any issue
of fact joined in such libel cases, and all such proceed-
ings shall be at the suit of and in the name of the United
States: Provided, That upon the paj-ment of the costs
and legal expenses of both the summary trials and the
libel proceedings herein provided for, and the execution
and delivery of a good and sufficient bond in an amount
double the value of the property seized, conditioned
that it will not be exported or used or employed contrary
to the provisions of this title, the court, in its discretion,
may direct that it be delivered to the owners thereof or
to the claimants thereof.^^

§ 935. Lawful export trade not interfered with. Ex-
cept in those cases in which the exportation of arms and
munitions of war or other articles is forbidden by procla-
mation or otherwise by the President, as provided
in section 1 [930] of this title, nothing herein contained
shall be construed to extend to, or interfere with any
trade in such commodities, conducted with any foreign
port or place whatsoever, or with any other trade which
might have been lawfully carried on before the passage
(.(' Iliis litlc, under ihc law of nations, or under the
treaties or conventions entered into by the United States,
oi- niidci- tlic laws thereof.''

§ 936. Discretionary release of property. V]Mm pay-
TiK'iit (»r tiic costs and li'gal c'xi)enscs incurred in any
sucli summary trial for ])()ssession or libel proceedings,
tlic President is here])y autliorized, in his discretion, to
Older llie i-ele;ise and restoration lo Hie owner or claim-
ant, as the case may be, of any property seized or con-
demned under tlie provisions of tliis title.'*

32— See. r,, .Tunc 1.5, 1017, 40 .•{4— Sec. 7, June l.^, 1917, 40

Htnt. 225. Stnt. 22.5.

33— See r>. .Tiino 1.5, 1017, 40
Htat. 225.

Espionage Act 793

§ 937. Enforcement by the President. The President
may employ such part of the land or naval forces of the
United States as he may deem necessary to carry out
the purposes of this title.'^

TITLE VII. ESPIONAGE

§ 938. Certain exports in time of war unlawful. When-
ever during the present war the President shall find the
public safety shall so require, and shall make proclama-
tion thereof, it shall be unlawful to export from or ship
from or take out of the United States to any country
named in such proclamation any article or articles men-
tioned in such proclamation, except at such time or times,
and under such regulations and orders, and subject to
such limitations and exceptions as the President shall
prescribe, until otherwise ordered by the President or
by Congress: Provided, however. That no preference
shall be given to the ports of one State over those of
another.^^

§ 939. Punishment for violation. Any person who
shall export, ship, or take out, or deliver or attempt to
deliver for export, shipment, or taking out, any article
in violation of this title, or of any regulation or order
made hereunder, shall be fined not more than ten thou-
sand dollars, or, if a natural person, imprisoned for not
more than two years, or both ; and any article so delivered
or exported, shipped, or taken out, shall be seized and
forfeited to the United States; and any officer, director,
or agent of a cornoration who participates in any such
violation shall be liable to like fine or imprisonment, or
both."

35— Sec. 8, June 15, 1917, 40 37— Sec. 2, June 15, 1917, 40
Stat. 225. Stat. 225.

36— Sec. 1, June 15, 1917, 40
Stat. 225.

79-i Criminal Law

§ 940. Clearance refused vessel carr3dng' prohibited ar-
ticles. Wlieiiever there is reasonable cause to believe
that any vessel, domestic or foreign, is about to carry-
out of the United States any article or articles in viola-
tion of the provisions of this title, the collector of customs
for the district in which such vessel is located is hereby
authorized and empowered, subject to review by the Sec-
retary of Commerce, to refuse clearance to any such
vessel, domestic or foreign, for which clearance is re-
quired by law, and by fomial notice served upon the
owners, master, or person or persons in command or
charge of any domestic vessel for which clearance is
not required by law, to forbid the departure of such vessel
from the port, and it shall thereupon be unlawful for
such vessel to depart. Whoever, in violation of any of
the provisions of this section [940] shall take, or attempt
to take, or authorize the taking of any such vessel, out of
port or from the jurisdiction of the United States, shall
be fined not more than ten, thousand dollars, or impris-
oned not more than two years, or both ; and, in addition,
such vessel, her tackle, apparel, furniture, equipment,
and her forbidden cargo shall be forfeited to the United
States.

TITLE VIII. ESPIONAGE

§ 941. Disturbance of foreign relations. Whoever, in
relation to any dispute or controversy between a foreign
government and the United States, shall wilfully and
knowingly make any untrue stateuiciit, either orally or
in writing, under oath before any person authorized and
<iiij)Owerc<l to ndininistcr oaths, which the afliant has
knowledge or reason to believe will, or may be used to
influence the measures or conduct of any foreign gov-
ernment, or of any officer or agcuit 4)f any foreign gov-
ernment, to tlic injury of tin- Tnitcd Slates, or with a
view or intent to influence any measure of or action by
the Govenmient of the United States, or any branch

Espionage Act 795

thereof, to the injuiy of the United States, shall be fined
not more than five thousand dollars, or imprisoned not
more than five years, or both.^*

§ 942. Punishment for falsely assuming- to be foreign
official. Whoever within the jurisdiction of the United
States shall falsely assume or pretend to be a diplomatic
or consular, or other official of a foreign government
duly accredited as such to the Government of the United
States with intent to defraud such foreign government
or any person, and shall take upon himself to act as
such or in such pretended character shall demand or
obtain, or attempt to obtain from any person or from
said foreign government, or from any officer thereof,
any money, paper, document, or other thing of value,
shall be fined not more than five thousand dollars, or
imprisoned not more than five years, or both.^^

§ 943. Punishment for acting for foreign government
without recognition. Whoever, other than a diplomatic
or consular officer or attache, shall act in the United
States as an agent of a foreign government without prior
notification to the Secretary of State shall be fined not
more than five thousand dollars, or imprisoned not more
than five years, or both.'*''

§944. "Foreign government," use of term construed.

The words ''foreign government," as used in this Act
and in sections 812, 813, 817, 826, 827, 828 and 829,
of the Act of March 4, 1909, entitled "An Act to codify,
revise, and amend the penal laws of the United States,"
shall be deemed to include any Government, faction, or
body of insurgents within a country with which the

38— Sec. 1, June 15, 1917, 40 40— Sec. 3, June 15, 1917, 40
Stat. 226. Stat. 226.

39— Sec. 2, June 15, 1917, 40
Stat. 226.

796 Criminal Law

United States is at peace, which Goveniment, faction,
or body of insurgents may or may not have been recog-
nized by the United States as a Government."

§ 945. Punishment for conspiracy in United States to
injure property in foreign country at peace therewith.
If two or more persons within the jurisdiction of the
United States conspire to injure or destroy specific prop-
erty situated within a foreign countiy and belonging
to a foreigii Government or to any political subdivision
thereof with which the United States is at peace, or any
railroad, canal, bridge, or other public utility so situated,
and if one or more of such persons commits an act within
the jurisdiction of the United States to effect the object
of the conspiracy, each of the parties to the conspiracy
shall be fined not more than five thousand dollars, or im-
prisoned not more than three years, or both. Any indict-
ment or information under this section shall describe the
specific property which it was the object of the conspiracy
to injure or destroy.*^

TITLE IX. ESPIONAGE

§ 946. Passports. Before a passport is issued to any
person by or under authority of the United States such
person shall subscribe to and submit a written applica-
lioii duly verified by liis oath before a person authorized
and empowered to administer oaths, which said applica-
tion shall contain a true recital of eacli and every matter
of fact wliicli may be required by law or by any miles
autlioi-i/.('(l liy law to be slntcd ;is a ])n'r(Miuisite to the
issuance of any sucli i)assport. Clerks of United States
courts, agents of tiie I)('i)artnu'nt of State, or other Fed-
eral officials authorized, or who may be nutliorized, to
take ])assj)ort applications and administer oaths thereon,
.shall collect, foi- all services in connection therewith, a

41_8ec. 4, .June m, 1917, 40 42— Sec. fj, June in, 1917, 40

Stat. 226. Stat. 226.

Espionage Act 797

fee of one dollar, and no more, in lieu of all fees pre-
scribed by any statute of the United States, whether the
application is executed singly, in duplicate, or in tripli-
cate."

§ 947. Punishment for false statements in application.
Whoever shall wilfully and knowingly make any false
statement in an application for passport with intent to
induce or secure the issuance of a passport under the
authority of the United States, either for his own use
or the use of another, contrary to the laws regulating
the issuance of passports or the rules prescribed pursu-
ant to such laAvs, or whoever shall wilfully and know-
ingly use or attempt to use, or furnish to another for
use, any passport the issue of which was secured in any
way by reason of any false statement, shall be fined not
more than two thousand dollars, or imprisoned not more
than five years, or both.**

§ 948. Illegally using passport of another. Whoever
shall wilfully and knowingly use, or attempt to use, any
passport issued or designed for the use of another than
himself, or whoever shall wilfully and knowingly use
or attempt to use any passport in violation of the con-
ditions or restrictions therein contained, or of the rules
prescribed pursuant to the laws regulating the issuance
of passports, which said rules shall be printed on the
passport; or whoever shall wilfully and knowingly fur-
nish, dispose of, or deliver a passport to any person, for
use by another than the person for whose use it was
originally issued and designed, shall be fined not more
than two thousand dollars, or imprisoned not more than
five years, or both.**

43— Sec. 1, June 15, 1917, 40 45— See. 3, June 15, 1917, 40
Stat. 227. Stat. 227.

44— Sec. 2, June 15, 1917, 40
Stat. 227.

798 Criminal Law

§ 949. Punishment for counterfeiting", forging, etc.,
passports. AVhoever shall falsely make, forge, eoimter-
feit, mutilate, or alter, or cause or procure to be falsely
made, forged, counterfeited, mutilated, or altered any
passport or instrument purporting to be a passport, with
intent to use the same, or with intent that the same may
be used by another; or whoever shall wilfully or know-
ingly use, or attempt to use, or furnish to another for
use any such false, forged, counterfeited, mutilated, or
altered passport or instrument purporting to be a pass-
port, or any passport validly issued which has become
void by the occuiTence of any condition therein pre-
scribed invalidating the same, shall be fined not more
than two thousand dollars, or imprisoned not more than
five years or both.*^

TITLE X. ESPIONAGE

§ 950. Counterfeiting government seal. Whoever shall
frauduk'ntly or wrongfully affix or impress the seal of
any executive department, or of any bureau, commission,
or office of the United States, to or upon any certificate,
instrument, commission, document, or paper of any de-
scription; or whoever, witli knowledge of its fraudulent
character, shall with wrongful or fraudulent intent use,
])uy, procure, sell, or transfer to another any such certifi-
cate, instrument, commission, document, or paper, to
wliicli or upon which said seal has been so fraudulently
aflixed or inipres.scd, sliall be fined not more than five
thousand (h)lhirs, or imprisoned not more than five years,
or both.*'

i;; 951. Punishment for forging, etc., any government
seal. Wlioovor shall falsely make, i'orge, counterfeit,
mutilate, or alter, or cause or procure to be made, forged,

4G_Scc. 4, .Tunc 14, 1917, 4(1 47— Sec. 1, .Tuno }5, 1917, 40

Stat. 227. Stat. 227.

Espionage Act 799

counterfeited, mutilated, or altered, or shall willingly
assist in falsely making, forging, counterfeiting, mutilat-
ing, or altering, the seal of any executive department,
or any bureau, commission, or office of the United States,
or whoever shall knowingly use, affix, or impress any
such fraudulently made, forged, counterfeited, mutilated,
or altered seal to or upon any certificate, instrument,
commission, document, or paper, of any description, or
whoever with wrongful or fraudulent intent shall have
possession of any such falsely made, forged, counter-
feited, mutilated, or altered seal, knowing the same to
have been so falsely made, forged, counterfeited, mu-
tilated, or altered, shall be fined not more than five thou-
sand dollars, or imprisoned not more than ten years, or
both.*8

§ 952. Punishment for forgoing-, etc., naval, military, or
official passes or permits. Whoever shall falsely make,
forge, counterfeit, alter, or tamper with any naval, mili-
tary, or official pass or permit, issued by or under the
authority of the United States, or with wrongful or fraud-
ulent intent shall use or have in his possession any such
pass or permit, or shall personate or falsely represent
himself to be or not to be a person to whom such pass
or pei-mit has been duly issued, or shall wilfully allow
any other person to have or use any such pass or permit,
issued for his use alone, shall be fined not more than
two thousand dollars, or imprisoned not more than five
years, or both.*^

TITLE XII. ESPIONAGE

§ 953. Use of mails, matter violating provisions of this
Act nonmailable. Every letter, writing, circular, postal
card, picture, print, engraving, photograph, newspaper,

48— Sec. 2, June 15, 1917, 40 49— Sec. 3, June 15, 1917, 40
Stat. 228. Stat. 228.

800 Criminal Law

pamphlet, book, or other publication, matter, or thing,
of any kind, in violation of any of the provisions of this
Act is hereby declared to be nonmailable matter and
shall not be conveyed in the mails or delivered from
any post office or by any letter carrier: Provided, That
nothing in this Act shall be so construed as to authorize
any person other than an employe of the Dead Letter
Office, duly authorized thereto, or other person upon a
search warrant authorized by law, to open any letter
not addressed to himself.^"

§954. Letters, etc., advocating treason, resistance to
law, etc., nonmailable. Every letter, writing, circular,
postal card, picture, print, engraving, photograph, news-
paper, pamphlet, book, or other publication, matter or
thing, of any kind, containing any matter advocating or
urging treason, insurrection, or forcible resistance to any
law of the United States, is hereby declared to be non-
mailable.^^

§ 955. Punishment for violations. Whoever shall use
or. attempt to use tlio mails or Postal Service of the
T^iiitod States for tlic transmission of any matter de-
chncd by this title to be nonmailabk', sliall be lined not
more than iive thousand dollars, or imprisoned not more
than five yeai's, or botli. Any person violating any pro-
vision of tliis title may bo tried and punished either in
the disti-ict i)i which the unhiwful matter or publication
was mailed, or 1(» which it was carried by mail for de-
li\-ci-y according to tiu' direction thereon, or in which it
was caused to he dc'livei-ed by mail to the person to
whom it was addressed. ^'^

50_8or. 1. .Tunc l.'j, 1917, 40 52— Sec. .3, June 15, 1917, 40

Stat. 229. Stat. 230.

51_Sec. li, .June 15, 1917, 40
.St;.f. 2^0.

Espionage Act 801

TITLE XIII. ESPIONAGE

§956. General provisions, prior offenses, etc., subject
to former laws. Offenses committed and penalties, for-
feitures, or liabilities incurred prior to the taking effect
hereof under any law embraced in or changed, modified,
or repealed by any chapter of this Act may be prosecuted
and punished, and suits and proceedings for causes aris-
ing or acts done or committed prior to the taking effect
hereof may be commenced and prosecuted, in the same
manner and with the same effect as if this Act had not
been passed.^'

§ 957. Alien anarchists, etc., excluded admission. Be

it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled,
That aliens who are anarchists; aliens who believe in
or advocate the overthrow by force or violence of the
Government of the United States or of all forms of law ;
aliens who disbelieve in or are opposed to all organized
government; aliens who advocate or teach the assassina-
tion of public officials; aliens who advocate or teach the
unlawful destruction of property; aliens who are mem-
bers of or affiliated with any organization that enter-
tains a belief in, teaches, or advocates the overthrow by
force or violence of the Government of the United States
or of all forms of law, or that entertains or teaches dis-
belief in or opposition to all organized govenmaent, or
that advocates the duty, necessity, or propriety of the
unlawful assaulting or killing of any officer or officers,
either of specific individuals or of officers generally of
the Government of the United States or of any other
organized government, because of his or their official
character, or that advocates or teaches the unlawful de-
struction of property shall be excluded from admission
into the United States.^*

53-

—Sec. 3, June 15,

1917,

54_Sec. 1, Oct. 16, 1918, 40 Stat,

Stat.

231.
C. L.— 51

1012.

802 Criminal Law

§ 958. Deportation after entry if member of excluded
classes. That any alien who, at any time after enter-
ing the United States, is found to have been at the time
of entry, or to have become thereafter, a member of any
one of the classes of aliens enumerated in section 1 of
this Act, shall, upon the warrant of the Secretary of
Labor, be taken into custody and deported in the manner
provided in the Immigration Act of Februaiy 5, 1917.
The provisions of this section shall be applicable to the
classes of aliens mentioned in this Act irrespective of
the time of their entry into the United States.^^

§959. Punishment for returning after deportation.
That any alien who shall, after he has been excluded and
deported or arrested and deported in pursuance of the
provisions of this Act, thereafter return to or enter the
United States or attempt to return to or enter the United
States shall be deemed guilty of a felony, and upon con-
viction thereof shall be punished by imprisonment for
a term of not more than five years; and shall, upon
termination of such imprisonment be taken into custody,
upon the warrant of the Secretaiy of Labor, and de-
ported in the manner provided in the Lnmigration Act
of February 5, lOl?.'*^

§ 960. Foreign travel, acts of, made unlawful during
time of war. Be it enacted by tlie Senate and House
of Representatives of the United States of America in
Congress assembled. That when the United States is at
war, if tlio President shall find that the public safety
requires that restrictions and prohibitions in addition to
those provided otherwise than by this Act be imposed
upon the departure of persons from and their entiy into
the United States, and shall make public proclamation

55_Scc. 2, Oct.. IG, 1918, 40 Stat. , 56— Sec. 3, Oct. 16, 1918, 40 Stat.
1012. 1012.

Espionage Act 803

thereof, it shall, until otherwise ordered by the Presi-
dent or Congress, be unlawful —

(a) For any alien to depart from or enter or attempt
to depart from or enter the United States except under
such reasonable rules, regulations, and orders, and sub-
ject to such limitations and exceptions as the President
shall prescribe;

(b) For any person to transport or attempt to trans-
port from or into the United States another person with
knowledge or reasonable cause to believe that the de-
parture or entry of such other person is forbidden by
this Act;

(c) For any person knowingly to make any false state-
ments in an application for permission to depart from
or enter the United States with intent to induce or se-
cure the granting of such permission either for himself
or for another;

(d) For any person knowingly to furnish or attempt
to furnish or assist in furnishing to another a permit
or evidence of permission to depart or enter not issued
and designed for such person's use;

(e) For any person knowingly to use or attempt to
use any permit or evidence of permission to depart or
enter not issued and designed for his use;

(f) For any person to forge, counterfeit, mutilate, or
alter, or cause or procure to be forged, counterfeited,
mutilated, or altered, any permit or evidence of per-
mission to depart from or enter the United States;

(g) For any person knowingly to use or attempt to use
or furnish to another for use any false, forged, counter-
feited, mutilated, or altered permit, or evidence or permis-
sion or any peraiit or evidence or permission which,
though originally valid, has become or been made void or
invalid." ■ ■ •

57— Sec. 1, May 22, 1918, 40 ■ • •

Stat. 559.

804 Criminal Law

§ 961. Passports required for all entries and departures
of citizens. That after such proclamation as is provided
for by the preceding section [960] has been made and
published and while said proclamation is in force, it shall,
except as otherwise provided by the President, and sub-
ject to such limitations and exceptions as the President
may authorize and prescribe, be unlawful for any citizen
of the United States to depart from or enter or attempt
to depart from or enter the United States unless he bears
a valid passport.^'

§ 962. Punishment fcr violation. That any person who
shall wilfully violate any of the provisions of this Act
[Sees. 959, 960], or of any order or proclamation of the
President promulgated, or of any permit, rule, or regula-
tion issued thereunder, shall, upon conviction, be fined
not more than $10,000, or, if a natural person, imprisoned
for not more than twenty 5'ears, or both; participates in
sucli violation shall be punished by like fine or imprison-
ment, or both; and any vehicle or any vessel, together
with its or her appurtenances, equipment, tackle, apparel,
and furniture, concerned in any such violation, shall be
forfeited to the United States.'^^

§963. Meaning- of terms "United States," and "per-
son." That the term " Ignited States" as used in this Act
includes the Canal Zmic and all territory and waters, con-
tinental or iiisnlai", subject to llio jurisdiction of the
T'nited States.

The word "person" as used herein shall be deemed to
mean any individual, partnership, association, company,
or other unincorporated body of iiidividnals, or corpora-
tion, or body politic.*^"

58— Sec. 2, May 22, 1918, 40 60— Sec. 4, May 22, 1918, 40

Stat. 559. Stat. 559.

59— Sec. .H, May 2L', 1918, 40
Stat. .'59.

Espionage Act 805

§ 964. An Act to regulate further the entry of aliens
into the United States. Be it enacted by the Senate and
House of Representatives of the United States of America
in Congress assembled, That if the President shall find"
that the public safety requires that restrictions and pro-
hibitions in addition to those provided otherwise than by
this Act be imposed upon the entry of aliens into the
United States, and shall make public proclamation there-
of, it shall, until otherwise ordered by the President or
Congress, be unlawful —

(a) For any alien to enter or attempt to enter the
United States except under such reasonable rules, regula-
tions, and orders, and subject to such passport, vise, or
other limitations and exceptions as the President shall
prescribe ;

(b) For any person to transport or attempt to trans-
port into the United States another person with knowl-
edge or reasonable cause to believe that the entrv of such
other person is forbidden by this Act ;

(c) For any person knowingly to make any false
statement in an application for a passport or other per-
mission to enter the United States with intent to induce
or secure the granting of such permission, either for him-
self or for another;

(d) For any person knowingly to furnish or attempt to
furnish or assist in furnishing to another a viseed pass-
port or other permit or evidence of permission to enter,
not issued and designed for such other person's use;

(e) For any person knowingly to use or attempt to use
any viseed passport or other permit or evidence of per-
mission to enter not issued and designed for his use;

(f) For any person to forge, counterfeit, mutilate, or
alter, or cause or procure to be forged, counterfeited,
mutilated, or altered, any passport, vise or other pennit
or evidence of pemiission to enter the United States;

(g) For any person knowingly to use or attempt to use
or furnish to another for use any false, forged, counter-

806 Ckimikfal Law

feited, mutilated, or altered passport, permit, or evidence
of pemiission, or any passport, permit, or evidence of per-
mission which, though originally valid, has become or
been made void or invalid.

Sec. 2. That any person who shall wilfully violate any
of the provisions of this Act, or of any order or proclama-
tion of the President promulgated, or of any permit, rule,
or regulation issued thereunder, shall, upon conviction,
be fined not more than $5,000, or, if a natural person, hn-
prisoned for not more than five years, or both; and the
officer, director, or agent of any corporation who know-
ingly participates in such violation shall be punished by
like fine or imprisonment, or both; and any vehicle or
any vessel, together with its or her appurtenances, equip-
ment, tackle, apparel, and furniture, concerned in any
such violation, shall be forfeited to the United States.

Sec. 3. That the term "United States" as used in this
Act includes the Canal Zone and all territory and waters,
continental or insular, subject to the jurisdiction of the
United States.

The word "person" as used herein shall be deemed to
mean any individual, partnership, association, company
or other unincorporated body of individuals, or corpora-
tion or body politic.

Sec. 4. That in order to carry out the purposes and
provisions of this act the sum of $600,000 is hereby ap-
propriated.

Sec. 5. That this act shall take effect upon the date
wlicn the provisions of this act of congress approved the
22(1 (lay of May, 1918, cnlilled "An act to prevent in time
of war (l('])arture from and entry into the United States,
colli r;irv to llie public safety," shall cease to be opera-
tive, aiKJ slinli continue in force and ('ffect until and in-
cliidiiiL,'- llic 411i day of March, 1921. ( P)y lapse of time,
became law witliout approval of President.) Received by
the Pn.'sidcnt, Oct. 29, 1919. 41 Stat. 354. Chap. 104.

CHAPTER LX

OFFENSES AGAINST THE EXISTENCE OF THE GOVERNMENT

CHAPTER ONE

Penal Code Act, March 4, 1909

§ 966. Treason. § 971. Seditious conspiracy.

§ 967. Punishment of treason. § 972. Recruiting soldiers or sailors

§ 968. Misprision of treason. to serve against the United

§ 969. Inciting or engaging in re- States.

bellion or insurrection. § 973. Enlistment to serve against

§ 970. Criminal correspondence with the United States.

foreign governments.

§ 966. Treason. Sec. 1. Whoever, owing allegiance to
the United States, levies war against them or adheres to
their enemies, giving them aid and comfort within the
United States or elsewhere, is guilty of treason.

§ 967. Punishment of treason. Sec. 2. Whoever is con-
victed of treason shall suffer death; or, at the discretion
of the court, shall be imprisoned not less than five years
and fined not less than ten thousand dollars, to be levied
on and collected out of any or all of his property, real and
personal, of which he was the owner at the time of com-
mitting such treason, any sale or conveyance to the con-
trary notwithstanding; and every person so convicted of
treason shall, moreover, be incapable of holding any office
under the United States.

§ 968. Misprision of treason. Sec. 3. Whoever, owing
allegiance to the United States and having knowledge
of the commission of any treason against them, conceals,
and does not, as soon as may be, disclose and make known
the same to the President or to some judge of the United
States, or to the governor or to some judge or justice of a

807

808 Criminal Law

particular state, is guilty of misprision of treason and
shall be imprisoned not more than seven years and fined
not more than one thousand dollars.

§ 969. Inciting" or engaging- in rebellion or insurrection.

Sec. 4. Whoever incites, sets on foot, assists, or engages
in any rebellion or insurrection against the authority of
the United States or the laws thereof, or gives aid or
comfort thereto, shall be imprisoned not more than ten
years, or fined not more than ten thousand dollars, or
both; and shall moreover, be incapable of holding any
office under the United States.

§ 970. Criminal correspondence with foreign govern-
ments. Sec. 5. Every citizen of the United States,
whether actually resident or abiding within the same, or
in any place subject to the jurisdiction thereof, or in any
foreign country, without the permission or authority of
the government, directly or indirectly, commences or car-
ries on any verbal or written correspondence or inter-
course with any foreign government or any officer or
agent thereof, with an intent to influence the measures or
conduct of any foreign government or of any officer or
agent thereof, in relation to any disputes or controversies
witli the United States, or to defeat the measures of the
government of tlio United States; and every person, be-
iTig a citizen of (»r i-(>sid(Mi1 within llic Tnitod States or in
any y)lac(' su])je('1 lo tlic Jniisdid ion llici-col", and not duly
aullioi'i'/cd, counsels, ;i(l\ iscs, or assists in any such corro-
spoiidence witli sncli intent, shall he liiu'd not more ilian
five tliousand dollars and imjjrisoned not more than three
years; hut nothing in this section shall he construed to
abridge the I'iglit of a citizen to apply, himself or his
agent, to any I'oi-eign govei'nnient oi* the agents thereof
for redress ol" any injnry which he may have sustained
froni snch govei'nineiit oi- anv of its agents or snhj(^cts.

Offenses Against Existence of Government 809

§ 971. Seditious conspiracy. Sec. 6. If two or more per-
sons in any state or territory, or in any place subject to
the jurisdiction of the United States, conspire to over-
throw, put down, or to destroy by force the Government
of the United States, or to levy war against them, or to
oppose by force the authority thereof, or by force to pre-
vent, hinder, or delay the execution of any law of the
United States, or by force to seize, take, or possess any
property of the United States contraiy to the authority
thereof, shall each be fined not more than five thousand
dollars, or imprisoned not more than six years, or both.

§ 972. Recruiting soldiers or sailors to serve against
the United States. Sec. 7. Whoever recruits soldiers or
sailors within the United States, or in any place subject
to the jurisdiction thereof, to engage in armed hostility
against the same, or opens within the United States, or in
any place subject to the jurisdiction thereof, a recruiting
station for the enlistment of such soldiers or sailors to
serve in any manner in armed hostility against the
United States, shall be fined not more than one thousand
dollars and imprisoned not more than five years.

§ 973. Enlistment to serve against the United States.
Sec. 8. Every person enlisted or engaged within the
United States or in any place subject to the jurisdiction
thereof, with intent to serve in armed hostility against
the United States, shall be fined one hundred dollars and
imprisoned not more than three years.

CHAPTER LXI

OFFENSES AGAINST THE OPERATIONS OF THE GOVEENMENT

CHAPTER FOUR

Penal Code, Act March 4, 1909

975,
976,

977,

978,

979.

980.

981.

982.

983.

9,84.
985.

§ 99,G.

8 987,
988.
989.

9 990.

!»9I.
992.

Forgerj' of letters patent.
Forging bids, public records,

etc.
Forging deeds, powers of

attorney, etc.
Having forged papers in

possession.
False acknowledgments.
Falsely pretending to be

United States officer.
False personation of holder

of public stock.
False demand on fraudulent

power of attorney.
Making or presenting false

claims.
Embezzling arms, stores, etc.
Conspiracy to commit offense

against the United States;

all parties liable for acts

of one.
Delaying or defrauding cap-
tor of claimant, etc., of

prize property.
Bribery of United States

officer.
Unlawfully taking or using

papers relating to claims.
PorHons interested not to

act as agents of the Gov-
ernment.
Enticing desertions from the

niilifary or naval servico.
Enticing away workmen.
Injuries to fortifications,

harbor dcfenBcs, etc.

§ 993.

§ 994.

§ 995.

§ 996.

§ 997.

§ 998.

§ 999.

§ 1000.

§ 1001.
§ 1002.

§ 1003.

§ 1004.

§ 1005.

§ 1006.
§ 1007.

g 1008.

Unlawfully entering upon
military reservation, fort,
etc.

Robbery or larceny of per-
sonal property of the
United States.

Embezzling, stealing, etc.,
public property.

Receivers, etc., of stolen
public property.

Timber depredations on pub-
lic lands.

Timber, etc., depredations
on Indian and other reser-
vations.

Boxing, etc., timber on pub-
lic lands for turpentine,
etc.

Setting fire to timber on
public lands.

Failing to extinguish fires.

Fines to be paid into school
fund.

Trespassing on Bull Run Na-
tional Forest, Oregon.

Breaking fence or gate in-
closing reserved lands, or
driving or permitting live
stock to enter upon.

Injuring or removing posts
or monuments.

Interrupting surveys.

Agreement to prevent bids
at sale of lands.

Injuries to United States
telegraph, etc., lines.

Offenses Agaixst Operation" of Govenment 811

§ 1009. Counterfeiting weather fore- § 1022.
casts.

§ 1010. Interfering with employees § 1023.
of Bureau of Animal In-
dustry.

§ 1011. Forgery of certificate of en-
try.

§ 1012. Concealment of destruction § 1024.
of invoices, etc.

§ 1013. Eesisting revenue officer, § 1025.
rescuing or destroying
seized property.

§ 1014. Falsely assuming to be a § 1026.
revenue officer.

§ 1015. Offering presents to revenue

officer. § 1027.

§ 1016. Admitting merchandise to § 1028.
entry for less than legal
duty. § 1029.

§ 1017. Securing entry of merchan-
dise by false samples, etc. § 1030.

§ 1018. False certification by consu-
lar officer.

§ 1019. Taking seized property from § 1031.
custody of revenue officer.

§1020. Forging or altering ship's

papers or custom-house § 1032.
documents.

§ 1021. Forging military bounty-
land warrant, etc.

Forging, etc., certificate of
citizenship.

Engraving, etc., plate for
printing or photographing,
selling, or bringing into
United States, etc., cer-
tificate of citizenship.

False personation, etc., in
procuring naturalization.

Using false certificate of
citizenship, or denying
citizenship, etc.

Using false certificate, etc.,
as evidence of right to
vote, etc.

Falsely claiming citizenship.

Taking false oath in natural-
ization proceedings.

Provisions applicable to all
courts of naturalization.

Shanghaiing and falsely in-
ducing person intoxicated
to go on vessel prohibited.

Corporations, etc., not to
contribute money for po-
litical elections, etc.

Hunting birds, or taking
their eggs from breeding
grounds, prohibited.

§975. Forgery of letters patent. Sec. 27. "\\nioever
shall falsely make, forge, counterfeit, or alter any letters
patent granted or puiporting to have been granted by the
President of the United States; or whoever shall pass,
utter, or publish, or attempt to pass, utter, or publish as
genuine, any such forged, counterfeited, or falsely altered
letters patent, knowing the same to be forged, counter-
feited, or falsely altered, shall be fined not more than five
thousand dollars, and imprisoned not more than ten years.

§ 976. Forging bids, public records, etc. Sec. 28. Who-
ever shall falsely make, forge, or counterfeit, or cause
or procure to be falsely made, altered, forged, or coun-

812 Criminal Law

terfeited, or willingly aid, or assist in the false making,
altering, forging, or counterfeiting, any bond, bid, pro-
posal, contract, guarantee, security, official bond, public
record, affidavit, or other writing for the purpose of de-
frauding the United States; or shall utter or publish as
true, or cause to be uttered or published as true, or have
in his possession with the intent to utter or publish as
true, any such false, forged, altered, or counterfeited
bond, bid, proposal, contract, guarantee, security, official
bond, public record, affidavit, or other writing, for the
purpose of defrauding the United States, knowing the
same to be false, forged, altered, or counterfeited; or shall
transmit to, or present at, or cause or procure to be trans-
mitted to, or presented at, the office of any officer of the
United States, any such false, forged, altered, or counter-
feited bond, bid, proposal, contract, guarantee, security,
official bond, public record, affidavit, or other writing,
knowing the same to be false, forged, altered, or counter-
feited, for the purpose of defrauding the United States,
shall be fined not more than one thousand dollars, or im-
I3risoned not more than ten years, or both.

§ 977. Forging deeds, powers of attorney, etc. Sec.
21). Whoever shall falsely make, alter, forge, or counter-
feit, or cause to procure to be falsely made, altered,
forged, or counterfeited, or willingly aid, or assist in the
false making, altering, forging, or counterfeiting, any
deed, power of altorney, order, certificate, receipt, con-
tract, or other writing, for the pui*pose of obtaining or re-
ceiving or of enabling any other person, either directly or
indirectly, to obtain or receive from the United States, or
any of their officers or agents, any sum of money; or who-
ever shall utter or publish as true, or cause to be uttered
or published as true, any such false, forged, altered, or
counterfeited deed, power of attorney, order, certificate,
receipt, contract, or other writing, with intent to defraud

Offenses Against Operation of Govenment 813

the United States, knowing the same to be false, altered,
forged, or counterfeited; or whoever shall transmit to,
or present at, or cause or procure to be transmitted to, or
presented at, any office or officer of the Government of the
United States, any deed, power of attorney, order, certifi-
cate, receipt, contract, or other writing, in support of, or
in relation to any account or claim, with intent to defraud
the United States, knowing the same to be false, altered,
forged, or counterfeited, shall be fined not more than one
thousand dollars and imprisoned not more than ten years.

§ 978. Having forged papers in possession. Sec. 30.
Whoever, knowingly and with intent to defraud the
United States, shall have in his possession any false,
altered, forged, or counterfeited deed, power of attorney,
order, certificate, receipt, contract, or other writing, for
the purpose of enabling another to obtain from the United
States, or from any officer or agent thereof, any sum of
money, shall be fined not more than five hundred dollars,
or imprisoned not more than five years.

§ 979. False acknowledgments. Sec. 31. Wlioever, be-
ing an officer authorized to administer oaths or to take
and certify acknowledgments, shall knowingly make any
false acknowledgment, certificate, or statement concern-
ing the appearance before him or the taking of an oath
or affirmation by any person with respect to any proposal,
contract, bond, undertaking, or other matter, submitted
to, made with, or taken on behalf of, the United States,
and concerning which an oath or affirmation is required
by law or regulation made in pursuance of law, or with
respect to the financial standing of any principal, surety,
or other party to any such proposal, contract, bond, un-
dertaking, or other instrument, shall be fined not more
than two thousand dollars, or imprisoned not more than
two years, or both.

814 Criminal Law

§ 980. Falsely pretending to be United States officer.
Sec. 32. Whoever, with intent to defraud either tlie
United States or any person, shall falsely assume or pre-
tend to be an officer or employee acting under the author-
ity of the United States, or any department, or any officer
of the government thereof, and shall take upon himself
to act as such, or shall in such pretended character de-
mand or obtain from any person or from the United
States or any department; or any officer of the govern-
ment thereof, any money, paper, document, or other valu-
able thing, shall be fined not more than one thousand
dollars, or imprisoned not more than three years, or both.

§ 981. False personation of holder of public stock. Sec.
33. Whoever shall falsely i3ersonate any true and lawful
holder of any share or sum in the public stocks or debt of
the United States, or any person entitled to any annuity,
dividend, pension, prize money, wages, or other debt due
from the United States, and under color of such false
personation, shall transfer or endeavor to transfer such
public stock or any part thereof, or shall receive or en-
deavor to receive the money of such true and lawful
liolder thereof, or the money of any person really entitled
to receive such annuity, dividend, pension, prize money,
wages, or other debt, shall be fined not more than five
thousand doHars and imprisoned not more tlian ten years.

§ 982. False demand on fraudulent power of attorney.
Sec. 34. Whoever shall knowingly or fraudulently de-
mand or endeavor to obtain any share or sum in the public*
stocks of the United States, or to have any part thereof
transferred, assigned, sold, or conveyed, or to have any
annuity, dividend, i)ensi()n, prize money, wages, or other
debt due from the I nilid States, or any part thereof, re-
ceived, or paid by virtue of any false, forged, or counter-
feited j)ower of attorney, authority or instrument, shall
be fliied not more than five thousand dollars and impris-
oned not more than ten vears.

Offenses Against Operation of Govenment 815

§ 983. Amended. Sec. 35. That whoever shall make or
cause to be made or present or cause to be presented,
for payment or approval, to or by any person or officer in
the civil, military or naval service of the United States, or
any department thereof, or any corporation in which the
United States of America is a stockholder, any claim upon
or against the Govenmient of the United States, or any
department or officer thereof, or any corporation in which
the United States is a stockholder, knowing the same to
be false, fictitious, or fraudulent; or whoever for the pur-
pose of obtaining or aiding to obtain the payment or ap-
proval of such claim, or with the purpose and with the in-
tent of cheating and swindling or defrauding the Govern-
ment of the United States or any department thereof, or
any corporation in which the Government of the United
States is a stockholder, shall knowingly and wilfully
falsify or conceal or cover up by any trick, scheme, or
devise a material fact, or make or cause to be made any
false or fraudulent statements or representations, or make
or use or cause to be made or used, any false bill, receipt,
voucher, roll or account, claim, certificate, affidavit or
deposition, knowing the same contains any fraudulent or
fictitious statement or entry, or whoever shall take and
carry away for his own use, or for the use of another,
with intent to steal or purloin, any personal property of
the United States, or any branch or department thereof,
or any corporation in which the United States of America
is a stockholder; or whoever shall enter into any agree-
ment, combination or conspiracy to defraud the Govern-
ment of the United States, or any department or officer
thereof, or any corporation in which the United States
of America is a stockholder, by obtaining or aiding to
obtain the payment or allowance of any false or fraudu-
lent claim; and whoever having charge, possession, cus-
tody or control any money or other public property used
or to be used in the military or naval service with intent
to defraud the United States, or any department thereof,

816 Criminal LA^\•

or any corporation in which the United States of America
is a stockholder, or wilfully to conceal such money or other
property, or shall deliver or cause to be delivered to any
person having authority to receive the same any amount
of such money or other property less than that for which
is received a certificate, or took a receipt ; or whoever, be-
ing authorized to make or deliver any certificate or
voucher, receipt or other paper certifying the receipt of
arms, ammunition, provisions, clothing, or other property
so used or to be used, shall make or deliver the same to
any other person without a full knowledge of the truth
of the facts stated therein and with intent to defraud the
United States, or any department thereof, or any corpo-
ration in which the United States of America is a stock-
holder, shall be fined not more than $10,000 or imprisoned
not more than ten years, or both. And whoever shall pur-
chase, or receive in pledge from any person any arms,
equipment, ammunition, clothing, military stores or other
property furnished by the United States, under a clothing
allowance or otherwise, to any soldier, sailor, officer, ca-
det, or midshipman, in the military or naval service of
the United States, or of the national guard or naval
militia, or any person accompanying, serving or retained
with the land or naval forces and subject to military or
naval law, having knowledge or reason to believe that
the property has been taken from the possession of the
United States or furnished by the United States under
such allowance, shall bo fined not more limn $r)00, or im-
prisoned not more tlinii 1 wo years or bolli.^

i^ 984. Embezzling arms, stores, etc. Sec 'M]. Whoever
siiall steal, emlK'Z/le, or knowingly a])i»ly to his own use,
or unlawfully sell, convey, or disi)ose ol", any ordnance,
arms, nninmnition, clothing, snbsistence, stores, money,

1— Act Oct. 23, 1918, 40 Stat,
at largn. Amendment to r'riminnl
rode. Hoe. 3.5.

Offenses Against Operation of Govenment 817

or other property of the United States, furnished or to
be used for the military or naval service, shall be pun-
ished as prescribed in the preceding section [980].

§ 985. Conspiracy to commit offense ag-ainst the United
States — All parties liable for acts of one. Sec. 37. If two
or more persons conspire either to commit any offense
against the United States or to defraud the United States
in any manner or for any purpose, and one or more of
such parties do any act to effect the object of the con-
spiracy, each of the parties of such conspiracy shall be
fined not more than ten thousand dollars, or imprisoned
not more than two years, or both.

§ 986. Delaying- or defrauding- captor of claimant, etc.,
of prize property. Sec. 38. Whoever shall wilfully do, or
aid or advise in the doing, of any act relating to the
bringing in, custody, preservation, sale, or other disposi-
tion of any property captured as prize, or relating to any
documents or papers connected with the property, or to
any deposition or other document or paper connected
with the proceedings, with intent to defraud, delay, or
injure the United States or any captor or claimant of
such property, shall be fined not more than ten thousand
dollars, or imprisoned not more than five years or both.

§ 987. Bribery of United States officer. Sec. 39. Who-
ever shall promise, offer, or give, or cause or procure to be
promised, offered, or given, any money or other thing of
value, or shall make or tender any contract, undertaking,
obligation, gratuity, or security for the payment of
money, or for the delivery or conveyance of anything of
value, to any officer of the United States, or to any per-
son acting for or on behalf of the United States in any
official function, under or by authority of any depart-
ment or office of the government thereof, or to any officer
or person acting for or on behalf of either house of con-

C. L.— 52

818 Criminal Law

gress, or of any committee of either house, or both houses
thereof, with intent to influence his decision or action on
any question, matter, cause, or proceeding which may at
any time be pending, or which may by law be brought
before him in his official capacity, or in his place of trust
or profit, or with intent to influence him to commit or aid
in committing, or to collude in, or allow, any fraud, or
make opportunity for the commission of any fraud, on the
United States, or to induce him to do or omit to do any
act in violation of his lawful duty, shall be fined not more
than three times the amount of money or value of the
thing so offered, promised, given, made, or tendered, or
caused or procured to be so offered, promised, given,
made, or tendered, and imprisoned not more than three
years.

§ 988. Unlawfully taking or using papers relating to
claims. Sec. 40. Whoever shall take and cany away,
without authority from the United States, from the place
where it has been filed, lodged, or deposited, or where it
may for the time being actually be kept by authority of
the United States, any certificate, affidavit, deposition,
written statement of facts, power of attorney, receipt,
vouclier, assignment, or other document, record, file, or
paper, prepared, fitted, or intended to be used or pre-
ented in order to procure the payment of money from or
by the United States, or any officer or agent thereof, or
the allowance, or payment of the whole or any part of any
claim, account, or demand against the United States,
whetlier the same has or has not already been so used
or presented, aiid wliother such claim, account, or de-
)ii;ni(l, or ;niy i)aii tiiereof has or has not already been
allowed or paid; or wlioever shall present, use, or attempt
to use, any such document, record, file, or paper so taken
and carried away, in order to procure the payment of any
money from or by tiic United States, or any officer or
agoTit tlifrcof, or tlic allowance or payment of the wliolc

Offenses Against Operation of Govenment 819

or any part of any claim, account, or demand against the
United States, shall be fined not more than five thousand
dollars, or imprisoned not more than ten years, or both.

§989. Persons interested not to act as agents of the
g-Qvemment. Sec. 41. No officer or agent of any corpora-
tion, joint stock company, or association, and no member
or agent of any firm, or person directly or indirectly inter-
ested in the pecuniarj^ profits or contracts of such corpo-
ration, joint stock company, association, or firm, shall be
employed or shall act as an officer or agent of the United
States for the transaction of business with such corpora-
tion, joint stock company, association, or firm. Whoever
shall violate the provision of this section shall be fined
not more than two thousand dollars and imprisoned not
more than two years.

§ 990. Enticing desertions from the military or naval
service. Sec. 42. Whoever shall entice or procure, or at-
tempt or endeavor to entice or procure, any soldier in the
military service, or any seaman or other person in the
naval service of the United States, or who has been re-
cruited for such service, to desert therefrom, or shall
aid any such soldier, seaman, or other person in desert-
ing or in attempting to desert from such service; or
whoever shall harbor, conceal, jjrotect, or assist any such
soldier, seaman, or other person who may have deserted
from such service, knowing him to have deserted there-
from, or shall refuse to give up and deliver such soldier,
seaman, or other person on the demand of any officer
authorized to receive him, shall be imprisoned not more
than three years and fined not more than two thousand
dollars.

§ 991. Enticing away workmen. Sec. 43. Whoever
shall procure or entice any artificer or workman retained
or employed in any arsenal or annory, to depart from the

820 Crimixal Law

same during the continuance of his engagement, or to
avoid or break his contract with the United States; or
whoever, after due notice of the engagement of such
workman or artificer, during the continuance of such
engagement, shall retain, hire, or in anywise employ, har-
bor, or conceal such artificer or workman, shall be fined
not more than fifty dollars or imprisoned not more than
three months, or both.

§ 992. Injuries to fcrtifications, harbor defenses, etc.
Sec. 44. AVhoever shall wilfully trespass upon, injure,
or destroy any of the works or property or material of
any submarine mine or torpedo, or fortification or har-
bor-defense system owned or constructed or in process
of construction by the United States, or shall wilfully
interfere with the operation or use of any such submarine
mine, torpedo, fortification, or harbor-defense system,
shall be fined not more than five thousand dollars, or im-
prisoned not more than five years, or both.

§ 993. Unlawfully entering upon military reservation,
fort, etc. Sec. 45. Whoever shall go upon any military
reservation, army post, fort or arsenal, for any purpose
})roliibited by law or military regulation made in pursu-
ance of law, or whoever shall re-enter or be found within
any such reservation, post, fort, or arsenal, after having
been removed therefrom or ordered not to re-enter by any
officer or jx'rson in conmiand or charge thereof, shall be
fined not more tlian five hundred dollars, or imprisoned
not more than six months, or both.

§ 994. Robbery or larceny of personal property of the
United States. Sec. 4G. Whoever shall rob another of any
kind oi- (Icsc'j'ijdioii of personal pro])orty belonging to the
United States, or siiall feloniously take and carry away
the same, shall be fined not more than five thousand dol-
lars, or iiriprisoiK'd not Tiiorc than fen years, or both.

Offenses Against Operation of Govenment 821

§ 995. Embezzling-, stealing-, etc., public property. Sec.

47. Whoever shall embezzle, steal, or purloin any money,
property, record, voucher, or valuable thing whatever, of
the moneys, goods, chattels, records, or property of the
United States, shall be fined not more than five thousand
dollars, or imprisoned not more than five years, or both.

§ 996. Receivers, etc., of stolen public property. Sec.

48. Whoever shall receive, conceal, or aid in concealing,
or shall have or retain in his possession with intent to
convert to his own use or gain, any money, property, rec-
ord, voucher, or valuable thing whatever, of the moneys,
goods, chattels, records, or other property of the United
States, which has theretofore been embezzled, stolen, or
purloined by any other person, knowing the same to have
been so embezzled, stolen, or purloined, shall be fined not
more than five thousand dollars, or imprisoned not more
than five years, or both; and such person may be tried
either before or after the conviction* of the principal of-
fender.

§ 997. Timber depredations on public lands. Sec. 49.
Whoever shall cut, or cause or procure to be cut, or shall
wantonly destroy, or cause to be wantonly destroyed, any
timber growing on the public lands of the United States ;
or whoever shall remove, or cause to be removed, any
timber from said public lands, with intent to export or
to dispose of the same; or whoever, being the owner,
master, or consignee of any vessel, or the owner, director
or agent of any railroad, shall knowingly transport any
timber so cut or removed from said lands, or lumber man-
ufactured therefrom, shall be fined not more than one
thousand dollars, or imprisoned not more than one year,
or both. Nothing in this section shall prevent any miner
or agriculturist from clearing his land in the ordinarj^
working of his mining claim, or in the preparation of his
farm for tillage, or from taking the timber necessaiy to

822 Ckimixal Law

support his improvements, or the taking of timber for the
use of the United States. And nothing in this section
shall interfere with or take away any right, or privilege
under any existing law of the United States to cut or re-
move timber from any public lands.

§ 998. Timber, etc., depredations on Indian and other
reservations. Sec. 50. Whoever shall unlawfully cut, or
aid in unlawfully cutting, or shall wantonly injure or
destroy, or procure to be wantonly injured or destroyed,
any tree, growing, standing, or being upon any lands of
the United States which, in pursuance of law, has been
reserved or purchased by the United States for any
public use, or upon any Indian reservation or lands be-
longing to or occupied by any tribe of Indians under the
authority of the United States, or any Indian allotment
while the title to the same shall be held in trust by the
government, or while the same shall remain inalienable
by the allottee without the consent of the United States,
sliall be fined not more than five hundred dollars, or
imprisoned not more than one year, or both.

§ 999. Boxing, etc., timber on public lands for turpen-
tine, etc. Sec. 51. AVhocver shall cut, chip, chop, or box
any tree upon any lands belonging to the United States,
or upon any lands covered by or embraced in any unpor-
foctcd settlement, application, filing, entiy, selection, or
location, made under any law of ilic United States, for the
purpose of obtaining from sucli tree any pitch, turpen-
tine, or other substance, or shall knowingly encourage,
cause, procure, or aid in the cutting, chipping, chopping,
or boxing of any such tree, or shall buy, trade for, or in
any maiiiior acquire any pitch, turpentine, or other sub-
stance, or any article or conmiodity made from any such
pitch, turpentine, or other substance, wlioii lie li;is knowl-
edge tli.'it thf sjimo li;is been so nTilrnvfully obl.'iincd from

Offenses Against Operation of Govenment 823

such trees, shall be fined not more than five hundred dol-
lars, or imprisoned not more than one year, or both.

§ 1000. Setting fire to timber on public lands. Sec. 52.
Whoever shall wilfully set on fire, or cause to be set on
fire, any timber, underbrush, or grass upon the public
domain, or shall leave or suffer fire to burn unattended
near any timber or other inflammable material, shall be
fined not more than five thousand dollars, or imprisoned
not more than two years or both.

§ 1001. Failing to extinguish fires. Sec. 53. Whoever
shall build a fire in or near any forest, timber, or othei*
inflammable material upon the public domain, or upon
any Indian reservation, or lands belonging to or occupied
by any tribe of Indians under the authority of the United
States, or upon any Indian allotment while the title to the
same shall be held in trust by the government, or while
the same shall remain inalienable by the allottee without
the consent of the United States, shall, before leaving said
fire, totally extinguish the same; and whoever shall fail
to do so shall be fined not more than one thousand dollars,
or imprisoned not more than one year, or both.

§ 1002. Fines to be paid into school fund. Sec. 54. In
all cases arising under the two preceding sections [1000,
1001] the fines collected shall be paid into the public
school fund of the county in which the lands where the
offense was committed are situated.

§ 1003. Trespassing on Bull Run National Forest, Ore-
gon. Sec. 55. Wlioever, except forest rangers and other
persons employed by the United States to protect the for-
est, federal and state officers in the discharge of their
duties, and the employees of the water board of the city
of Portland, State of Oregon, shall knowingly trespass
upon any part of the reserve known as Bull Run National

824 Criminal Law

Forest, in the Cascade Mountains, in tlie State of Oregon,
or shall enter thereon for the purpose of grazing stock,
or shall engage in grazing stock thereon, or shall permit
stock of any kind to graze thereon, shall be fined not more
than five hundred dollars, or imprisoned not more than
six months.

§ 1004. Breaking fence or gate inclosing- reserved lands,
or driving or permitting live stock to enter upon. Sec. 56.
"Whoever shall knowingly and unlawfully break, open, or
destroy any gate, fence, hedge, or wall inclosing any
lands of the United States which, in pursuance of any
law, have been reserved or purchased by the United
States for any jDublic use; or whoever shall drive any
cattle, horses, hogs, or other live stock upon any such
lands for the puipose of destroying the grass or trees
on said lands, or where they may destroy the said grass
or trees; or whoever shall knowingly permit his cattle,
horses, hogs, or other live stock, to enter through any
such inclosure upon any such lands of the United States,
where sucli cattle, horses, hogs, or other live stock may
or can destroy the grass, or trees or other propert}^ of the
United States on the said lands, shall be fined not more
than five hundred dollars, or imprisoned not more tlian
one yeai', or botli: Pi-ovided, Tliai nothing in this section
shall be construed to apjily to unreserved public lands.

§ 1005. Injuring or removing post or monuments. Sec
57. Wlioever shall wilfully desti'oy, deface, change, or
remove to another place any section corner, quarter-sec-
tion comer or meander post, on any government line of
survey, or sliall wilfully cut down any witness tree or any
tree blazed to mark the line of a government survey, or
shall wilfully deface, change, or remove any monument or
bench mark of any government survey, shall be fined not
more than two hundred and fifty dollars, or imprisoned
not more than six months, or both.

Offenses Against Operation of Govenment 825

§ 1006. Interrupting- surveys. Sec. 58. Whoever in any
manner, by threats or force, shall interrupt, hinder, or
prevent the surveying of the public lands, or of any pri-
vate land claim which has been or may be confirmed by
the United States, by the persons authorized to survey
the same, in conformity with the instructions of the Com-
missioner of the General Land Office, shall be fined not
more than three thousand dollars and imprisoned not
more than three years.

§ 1007. Agreements to prevent bids at sale of lands.

Sec. 59. Wlioever, before or at the time of the public sale
of any of the lands of the United States, shall bargain,
contract, or agree, or attempt to bargain, contract, or
agree with any other person that the last-named person
shall not bid upon or purchase the land so offered for sale,
or any parcel thereof; or whoever by intimidation, com-
bination, or unfair management shall hinder or prevent,
or attempt to hinder or prevent, any person from bidding
upon or purchasing any tract of land so offered for sale,
shall be fined not more than one thousand dollars, or im-
prisoned not more than two years, or both.

§ 1008. Injuries to United States telegraph, etc., lines.
Sec. 60. Whoever shall wilfully or maliciously injure or
destroy any of the works, property, or material of any
telegraph, telephone, or cable line, or system, operated
or controlled by the United States, whether constructed,
or in process of construction, or shall wilfully or mali-
ciously interfere in any way with the working or use of
any such line, or system, or shall wilfully or maliciously
obstruct, hinder, or delay the transmission of any com-
munication over any such line, or system, shall be fined
not more than one thousand dollars, or imprisoned not
more than three years or both.

§ 1009. Counterfeiting- weather forecast. Sec. 61.
Whoever shall knowingly issue or publish any counter-

826 Criminax. Law

feit weather forecast or warning of weather conditions
falsely representing such forecast or warning to have
been issued or published by the Weather Bureau, United
States Signal Service, or other branch of the government
service, shall be fined not more than five hundred dollars,
or imprisoned not more than ninety days, or both.

§ 1010. Interfering- with employees of Bureau of Ani-
mal Industry: penalty. Sec. 62. Whoever shall forcibly
assault, resist, oppose, prevent, impede, or interfere with
any officer or employee of the Bureau of Animal Industry
of the Department of Agriculture in the execution of
his duties, or on account of the execution of his duties,
shall be fined not more than one thousand dollars, or
imprisoned not more than one year, or both; and who-
ever shall use any deadly or dangerous weapon in re-
sisting any officer or employee of the Bureau of Animal
Industr}^ of the Department of Agriculture in the exe-
cution of his duties, with intent to commit a bodily in-
jury upon him, or to deter or prevent him from dis-
charging his duties or on account of the performance
of his duties, shall be fined not more than one thousand
dollars, or imprisoned not more than five years, or both.

§ 1011. Forgery of certificate of entry. Sec. 63. "Wlio-
ever shall forge, counterfeit, or falsely alter any certifi-
cate of entry made or required to be made in pursuance
of law by any officer of the customs, or shall use any
such forged, counterfeited, or falsely altered certificate,
knowing the same to be forged, counterfeited, or falsely
altered, shall be fined not more than ton thousniid dollnrs
and iiiiprisoiu'd not movo tlinii llircc years.

§ 1012. Concealment or destruction of invoices, etc.
Sec. 64. Whoever shall wilfully conceal or destroy any
invoice, book, or paper relating to any merchandise liable
to duty, whifli li;is ])oon or inay })c im[)ortf'd into the

Offenses Against Operation of Govenment 827

United States from any foreign port or country, after
an inspection thereof has been demanded by the collector
of any collection district, or shall at any time conceal
or destroy any such invoice, book, or paper for the pur-
pose of suppressing any evidence of fraud therein con-
tained, shall be fined not more than five thousand dollars,
or imprisoned not more than two years, or both.

§ 1013. Resisting revenue officers; rescuing or destroy-
ing seized property, etc. Sec. 65. Whoever shall forci-
bly assault, resist, oppose, prevent, impede, or interfere
with any officer of the customs or of the internal revenue,
or his deputy, or any person assisting him in the execu-
tion of his duties, or any person authorized to make
searches and seizures, in the execution of his duty, or
shall rescue, attempt to rescue, or cause to be rescued,
any property which has been seized by any person so
authorized; or whoever before, at, or after such seizure,
in order to prevent the seizure or securing of any goods,
wares, or merchandise by any person so authorized, shall
stave, break, throw overboard, destroy, or remove the
same, shall be fined not more than two thousand dollars,
or imprisoned not more than one year, or both; and
whoever shall use any deadly or dangerous weapon in
resisting any person authorized to make searches or
seizures, in the execution of his duty, or shall rescue,
attempt to rescue, or cause to be rescued, any property
which has been seized by any person so authorized; or
whoever before, at, or after such seizure, in order to
prevent the seizure or securing of any goods, wares,
or merchandise of any person so authorized, shall stave,
break, throw overboard, destroy, or remove the same,
shall be fined not more than two thousand dollars, or
imprisoned not more than one year, or both; and who-
ever shall use any deadly or dangerous weapon in re-
sisting any person authorized to make searches or seiz-
ures, in the execution of his duty, with intent to commit

828 Cbiminal Law

a bodily injury upon liim or to deter or prevent him
from discharging his duty, shall be imprisoned not more
than ten years.

§ 1014. Falsely assuming to be a revenue officer. Sec.
66. "Whoever shall falsely represent himself to be a
revenue officer, and, in such assumed character, demand
or receive any money or other article of value from any
person for any duty or tax due to the United States,
or for any violation or pretended violation of any revenue
law of the United States, shall be fined not more than
five hundred dollars and imprisoned not more than two
years.

§ 1015. Offering presents to revenue officers. Sec. 67.
Whoever, being engaged in the importation into the
United States of any goods, wares, or merchandise, or
being interested as principal, clerk, or agent in the entry
of any goods, wares, or merchandise, shall at any time
make, or offer to make, to any officer of the revenue,
any gratuity or present of money or other thing of value,
shall be fined not more than five thousand dollars, or
imi)risonc'<l not more than two years, or botli.

§ 1016. Admitting merchandise to entry for less than
legal duty. Si-c. (J.S. Wlioever, being an oflicei- of the
revenue, shall, by any means whatever, knowingly admit
oi- aid in adnuttiiig to entry, any goods, wares, or mer-
chandise, upon ])aynicii1 of less llian llic amount of duty
legally due 1 hereon, shall be removed from office and
lini'd iiol more limn (i\(' tlionsand dollai's, or imprisoned
not mf)i-(' than two years, or both.

§ 1017. Securing entry of merchandise by false samples,
etc. Sl'c. 6!'. Whoever, by any means whatever, shall
knowingly effect, or aid in effecting, any entiy of goods,
wares, or merchandise, at leas than th(> trnc weight or

Offenses Against Operation of Govenment 829

measure thereof, or upon a false classification thereof as
to quality or value, or by the payment of less than the
amount of duty legally due thereon, shall be fined not
more than five thousand dollars, or imprisoned not more
than two years, or both.

§ 1018. False certification by consular officer. Sec. 70.
Whoever, being a consul, or vice-consul, or other person
employed in the consular service of the United States,
shall knowingly certify falsely to any invoice, or other
paper, to which his certificate is by law authorized or
required, shall be fined not more than ten thousand dol-
lars and imprisoned not more than three years.

§ 1019. Taking seized property from custody of revenue
officer. Sec. 71. Whoever shall dispossess or rescue, or
attempt to dispossess or rescue, any property taken or
detained by any officer or other person under the au-
thority of any revenue law of the United States, or shall
aid or assist therein, shall be fined not more than three
hundred dollars and imprisoned not more than one year.

§1020. Forging or altering ship's papers or custom-
house documents. Sec. 72. Wlioever shall falsely make,
forge, counterfeit, or alter any instrument in imitation
of, or purporting to be, an abstract or official copy or
certificate of the recording, registry, or enrollment of
any vessel, in the office of any collector of the customs,
or a license to any vessel for carrying on the coasting-
trade or fisheries of the United States, or a certificate
of ownership, pass, passport, sea letter, or clearance,
granted for any vessel, under the authority of the United
States, or a permit, debenture, or other official docu-
ment granted by any collector or other officer of the
customs by virtue of his office; or whoever shall utter,
publish, or pass", or attempt to utter, publish, or pass,
as true, any such false, forged, counterfeited, or falsely

830 Criminal Law

altered instrument, abstract, official copy, certificate,
license, pass, passport, sea letter, clearance, pemiit,
debenture, or other official document herein specified,
knowing the same to be false, forged, counterfeited, or
falsely altered, with an intent to defraud, shall be fined
not more than one thousand dollars and imprisoned not
more than three years.

§ 1021. Forging military bounty -land warrant, etc.

Sec. 73. "^Mioever shall falsely make, alter, forge, or
counterfeit any military bounty-land warrant, or mili-
tarj^ bounty-land warrant certificate, issued or purport-
ing to have been issued by the Commissioner of Pensions
under any law of congress, or any certificate or duplicate
certificate of location of any military bounty-land war-
rant, or military bounty-land certificate or duplicate cer-
tificate of the purchase of any of the lands of the United
States, or any receipt or duplicate receipt for the pur-
chase money of any of the lands of the United States,
issued or purporting to have been issued by the register
and receiver at any land office of the United States or
by either of them; or whoever shall utter, publish, or
pass as true, any such false, forged, or counterfeited
military bounty-land warrant, military bounty-land war
rant certificate, certificate oi- duplicate certificate of lo-
cation, certificate or duplicate certificate of purchase,
receipt of duplicate receipt for the purchase itionov of
any of the lands of the United States, knowing the same
1<) be false, forged, or counterfeited, shall be imprisoned
not more than ten years.

§ 1022. Forging, etc., certificate of citizenship. Sec.
74. Wiioever shall falsely make, forge, or coiiiilerfcit,
or causf! or procure to be falsely made, forged, or counter-
feited, (»r shall knowingly air! or assist in falsely mak-
ing, forging, or counterfeiting any certificate of citizen-
ship, will) inloni to use llio same, or with the intent

Offenses Against Operation of Govenment 831

that the same may be used by some other person, shall
be fined not more than ten thousand dollars, or impris-
oned not more than ten years, or both.

§ 1023. Engraving-, etc., plate for printing or photo-
graphing, selling, or bringing into United States, etc.,
certificate of citizenship. Sec. 75. Whoever shall en-
grave, or cause or procure to be engraved, or assist in
engraving', any plate in the likeness of any plate designed
for the printing of a certificate of citizenship; or who-
ever shall sell any such plate, except under the direction
of the Secretary of Commerce and Labor or other proper
officer; or whoever shall have in his control, custody,
or possession any metallic plate engraved after the simili-
tude of any plate from which any such certificate has
been printed, with the intent to use or to suffer such
plate to be used in forging or counterfeiting any such
certificate or any part thereof; or whoever shall print,
photograph, or in any manner cause to be printed, photo-
graphed, made, or executed, any print or impression in
the likeness of any such certificate, or any part thereof;
or whoever shall sell any such certificate, or shall bring
the same into the United States from any foreign place,
except by direction of some proper officer of the United
States; or whoever shall have in his possession a dis-
tinctive paper which has been adopted by the proper
officer of the United States for the printing of such cer-
tificate, with intent, unlawfully to use the same, shall
be fined not more than ten thousand dollars, or impris-
oned not more than ten years, or both.

§ 1024. False personation, etc., in procuring naturaliza-
tion. Sec. 76. Whoever, when applying to be admitted
a citizen, or when appearing as a witness for any such
person, shall knowingly personate any person other than
himself, or shall falsely appear in the name of a deceased
person, or in an assumed or fictitious name ; or whoever

832 Criminal Law

shall falsely make, forge, or counterfeit any oath, notice,
affidavit, certificate, order, record, signature, or other
instrument, paper, or proceeding required or authorized
by any law relating to or providing for the naturaliza-
tion of aliens; or whoever shall utter, sell, dispose of,
or shall use as true, or genuine, for any unlawful pur-
pose, any false, forged, antedated, or counterfeited oath,
notice, certificate, order, record, signature, instrument,
paper, or proceeding above specified; or whoever shall
sell or dispose of to any person other than the person
for whom it was originally issued any certificate of citi-
zenship or certificate showing any person to be admitted
a citizen, shall be fined not more than one thousand
dollars, or imprisoned not more than five years, or both.

§ 1025. Using false certificate of citizenship, or deny-
ing citizenship, etc. Sec. 77. Whoever shall use or at-
tempt to use, or shall aid, assist, or participate in the
use of any certificate of citizenship, knowing the same
to be forged, counterfeited, or antedated, or know^ing
the same to have been procured by fraud or otherwise
unlawfully obtained; or whoever, without lawful excuse,
shall knowingly possess any false, forged, antedated, or
counterfeit certificate of citizenship i)urp()rting to have
been issued under any law of ilic United States relating
to naturalization, knowing such certificate to be false,
forged, antedated, or counterfeit, with the int(^iii unlaw-
fully to use the same; oi- whoever shall olilaiii, accept,
or receive any certificate of ('itizenslii|», knowing the
same to iiaxc been procui-ed Ity fraud or l>y tlic use of
moans of any false name or slalcincnt given oi- made
with the intent to lu-ocure, oi- lo aid in procuring, the
issuance of sucii cei'titicate, or knowing the same to
have been fraudulently altered or antedated; or whoever
witliont lawful excuse, shall have in his possession any
blank certificate of eitizenship provided by the Bureau
of Immigration and X;i1nrali/,;ition with the intent un-

Offenses Against Operation of Govenment 833

lawfully to use the same; or whoever, after having been
admitted to be a citizen, shall, on oath or by affidavit,
knowingly deny that he has been so admitted, with the
intent to evade or avoid any duty or liability imposed or
required by law, shall be fined not more than one thou-
sand dollars, or imprisoned not more than five years,
or both.

§ 1026. Using- false certificate, etc., as evidence of right
to vote, etc. See. 78. Whoever shall in any manner
use, for the purpose of registering as a voter, or as evi-
dence of a right to vote, or otherwise unlawfully, any
order, certificate of citizenship, or certificate, judgment,
or exemplification, showing any person to be admitted
to be a citizen, whether heretofore or hereafter issued
or made, knowing that such order, certificate, judgment,
or exemplification has been unlawfully issued or made;
or whoever shall unlawfully use, or attempt to use, any
such order or certificate, issued to, or in the name of
any other person, or in a fictitious name, or the name of
a deceased person, shall be fined not more than one thou-
sand dollars, or imprisoned not more than five years, or
both.

§ 1027. Falsely claiming citizenship. Sec. 79. Who-
ever shall knowingly use any certificate of naturalization
heretofore or which hereafter may be granted by any
court, which has been or may be procured through fraud
or by false evidence, or which has been or may hereafter
be issued by the clerk or any other ofiicer of the court
without any appearance and hearing of the applicant
in court and without lawful authority; or whoever, for
any fraudulent purpose whatever, shall falsely represent
himself to be a citizen of the United States without hav-
ing been duly admitted to citizenship, shall be fined not
more than one thousand dollars, or imprisoned not more
than two years, or both,
c. L.— 53

834 Crimixal Law

§ 1028. Taking false oath in naturalization proceedings.

Sec. 80. AVlioever, in any proceeding under or by virtue
of any law relating to tlie naturalization of aliens, shall
knowingly swear falsely in any case where an oath is
made or affidavit taken, shall be fined not more than one
thousand dollars and imprisoned not more than five years.

§ 1029. Provisions applicable to all courts of naturali-
zation. Sec. 81. The provisions of the five sections last
preceding shall apply to all proceedings had or taken,
or attempted to be had or taken, before any court in
which any proceeding for naturalization may be com-
menced or attempted to be commenced, and whether such
court was vested by law with jurisdiction in naturaliza-
tion proceedings or not.

§ 1030. Shanghaiing and falsely inducing person intoxi-
cated to go on vessel prohibited. Sec. 82. A\nioever,
with intent that any person shall perform service or labor
of any kind on board of any vessel engaged in trade
and commerce among the several states or with foreign
nations, or on board of any vessel of the United States
engaged in navigating the high seas or any navigable
water of the United States, shall procure or induce, or
attempt to procure or induce another by force or threats
or by representations which he knows or believes to be
untrue, or while the person so procured or induced is
intoxicated or under the iufhience of any drug, to go
on board of any such vessel, or to sign or in anywise
enter into any agreement to go on board of any sucli
vessel to ])orfonn sei-vice or labor tliereon; or whoever
shall knowingly detain on board of any such vessel any
person so procured or induced to go on board thereof,
or to enter into any agreement to go on board thereof, by
any moans liorcMii defined; or whoever shall knowingly
aid or abol in llie doing of any of the things herein made
unlawful, sliall bo fined not more than one thousand
dollars, f»r imprisonod not more than one year, or both.

Offenses Against Operation of Govenment 835

§ 1031. Corporations, etc., not to contribute money for
political elections, etc. Sec. 83. It shall be unlawful
for any national bank, or any corporation organized by
authority of any law of congress, to make a money con-
tribution with any election to any political office. It
shall also be unlawful for any coi-poration whatever to
make a money contribution in connection with any elec-
tion at which presidential and vice-presidential electors
or a representative in congress is to be voted for, or
any election by any state legislature to a United States
Senator. Every corporation which shall make any con-
tribution in violation of the foregoing provisions shall
be fined not more than five thousand dollars; and every
officer or director of any coi-poration who shall consent
to any contribution by the corporation in violation of
the forgoing provisions shall be fined not more than one
thousand dollars, or imprisoned not more than one year,
or both.

§ 1032. Hunting birds, or taking their eggs from breed-
ing grounds, prohibited. Sec. 84. Whoever shall hunt,
trap, capture, wilfully disturb, or kill any bird of any
kind whatever, or take the eggs of any such bird, on
any lands of the United States which have been set
apart or reserved as breeding grounds for birds, by any
law, proclamation, or executive order, except under such
rules and regulations as the Secretary of Agriculture
may, from time to time, prescribe, shall be fined not
more than five hundred dollars, or imprisoned not more
than six months, or both.

CHAPTER LXII

GENEEAL AND SPECIAL PROVISIONS

CHAPTER FOURTEEN

Penal Code Act, March 4, 1909

§ 1035. Punishment of death by § 1044.
hanging. § 1045.

§ 1036. No conviction to work cor- § 1046.
ruption of blood or for-
feiture of estate. S 1047.

§ 1037. Whipping and the pillory !? 1048.
abolished.

§ 1038. Jurisdiction of State courts,

§ 1039. Pardoning power. § 1049.

§ 1040. Indians committing certain

crimes ; how punished. § 1050.

§ 1041. Crimes committed on Indian
reservations in South Da-
kota. § 1051.

§ 1042. Qualified verdicts in certain

cases. § 1052.

§ 1043. Body of executed offender
may be delivered to sur-
geon for dissection.

Who are principals.

Punishment of accessories.

Accessories to robbery or
piracy.

Felonies and misdemeanors.

Murder and manslaughter;
place where crime deemed
to have been committed.

Construction o f certain
words.

Omission of words "hard
labor ' ' not to deprive
court of power to impose.

Arrangement and classifica-
tion of sections.

Jurisdiction of circuit and
district courts.

§ 1035. Punishment of death by hanging. Sec. 323.
Tlic iii.iiiiK'i- (»r iiillicliii.i;- the punisliment of death shall
be by hanging.

§ 1036. No conviction to work corruption of blood or
forfeiture of estate. Sec ;'.l^4. No conviction or judg-
iiK'iil sli;ill work cornipl ion of hlood or any forfeiture
of OKtate.

§ 1037. Whipping and the pillory abolished. Sec. 325.
The j)uniKliniciil dI' \\liij)))iii,i;- nnd of standing in ihe pil-
lory shall not be inllicted.

836

Genekal and Special Provisions 837

§ 1038. Jurisdiction of state courts. Sec. 326. Noth-
ing in this title shall be held to take away or impair
the jurisdiction of the courts of the several states under
the laws thereof.

§ 1039. Pardoning power. Sec. 327. Whenever, by
the judgment of any court or judicial officer of the United
States, in any criminal proceeding, any person is sen-
tenced to two kinds of punishment, the one pecuniary
and the other corporal, the President shall have full
discretionary power to pardon or remit, in whole or in
part, either one of the two kinds, without, in any man-
ner, impairing the legal validity of the other kind, or of
any portion of either kind, not pardoned or remitted.

§1040. Indians committing' certain crimes; how pun-
ished. Sec. 328. All Indians committing against the
person or property of another Indian or other person
any of the following crimes, namely: murder, man-
slaughter, rape, assault with intent to kill, assault with
a dangerous weapon, arson, burglaiy, and larceny, within
any teiTitory of the United States, and either within or
without an Indian reservation, shall be subject therefor
to the laws of such territory relating to said crimes, and
shall be tried therefor in the same courts and in the
same manner and shall be subject to the same penalties
as are all other persons charged with the commission
of said crimes, respectively; and the said courts are
hereby given jurisdiction in all such cases. And all
such Indians committing any of the above named crimes
against the person or property of another Indian or
other person within the boundaries of any state of the
United States, and within the limits of any Indian reser-
vation, shall be subject to the laws, tried in the same
courts and in the same manner, and be subject to the
same penalties as are all other persons committing any
of the above crimes within the exclusive jurisdiction

838 Criminal Law

of the United States: Provided, That any Indian who
shall commit the offense of rape upon any female Indian
within the limits of any Indian reservation shall be
imprisoned at the discretion* of the court.

§ 1041. Crimes committed on Indian reservation in
South Dakota. Sec. 329. The circuit and district courts
of the United States for. the district of South Dakota
shall have jurisdiction to hear, try, and detemiine all
actions and proceedings in which any person shall be
charged with the crime of murder, manslaughter, rape,
assault with intent to kill, assault with a dangerous
weapon, arson, burglary, or larceny, committed within
the limits of any Indian reservation in the State of
South Dakota. Any person convicted of murder, man-
slaughter, rape, arson, or burglary, committed within
the limits of any such reservation, shall be subject to
the same punishment as is imposed upon persons com-
mitting said crimes within the exclusive jurisdiction of
the United States: Provided, That any Indian who shall
commit the crime of rape upon any female Indian within
any such reservation shall be imprisoned at the discre-
tion of the court. Any person convicted of the crime
of assault with intent to kill, assault w^ith a dangerous
weapon, or larceny, committed within the limits of any
such reservation, shall be subject to the same punish-
ment as is provided in cases of other persons convicted
of any of said crimes under the laws of the State of
South Dakota. This section is passed in pursuance of
the cession of jurisdiction contained in chapter 106, Laws
ofSoutli Dakota, 1901.

§ 1042. Qualified verdicts in certain cases. Sec. 330.
In all easels whcic the accused is found guilty of the
crime of murder in lliu first degree, or rape, the jury
may fjualify their verdict by adding thereto "without
capital punishment;" and whonover the jury shall re-

General and Special Provisions 839

turn a verdict qualified as aforesaid, the person con-
victed shall be sentenced to imprisonment for life.

§ 1043. Body of executed offender may be dalivered to
surgeon for dissection. Sec. 331. The court before
which any person is convicted of murder in the first
degree, or rape, may, in its discretion, add to the judg-
ment of death, that the body of the offender be delivered
to a surgeon for dissection; and the marshal who exe-
cutes such judgment shall deliver the body, after execu-
tion, to such surgeon as the court may direct; and such
surgeon, or some person apjDointed by him, shall receive
and take away the body at the time of execution.

§ 1044. Who are principals. Sec. 332. Whoever di-
rectly commits any act constituting an offense defined
in any law of the United States, or aids, abets, counsels,
commands, induces, or procures its commission, is a prin-
cipal.

§ 1045. Punishment of accessories. Sec. 333. Who-
ever, except as otherwise expressly provided by law,
beine- an accessorv after the fact to the commission of
any offense defined in any law of the United States, shall
be imprisoned not exceeding one-half the longest term
of imprisonment, or fined not exceeding one-half the
largest fine prescribed for the punishment of the pnn-
cipal, or both, if the principal is punishable by both fine
and imprisonment; or if the principal is punishable by
death, then an accessory shall be imprisoned not more
than ten years.

§ 1046. Accessories to robbery or piracy. Sec. 334.
Whoever, without lawful authority, receives or takes
into custody any vessel, goods, or other property, felo-
niously taken by any robber or pirate against the laws
of the United States, knowing the same to have been

840 Criminal Law

feloniously taken, and whoever, knowing that such pirate
or robber has done or committed any such piracy or
robbery, on the land or at sea, receives, entertains, or
conceals any such pirate or robber, is an accessory after
the fact to such robbeiy or piracy, and shall be impris-
oned not more than ten years.

§ 1047. Felonies ajid misdemeanors. Sec. 335. All of-
fenses which may be punished by death, or imprison-
ment for a teiTQ exceeding one year, shall be deemed
felonies. All other offenses shall be deemed misde-
meanors.

§ 1048. Murder and manslaughter; place where crime
deemed to have been committed. Sec. 336. In all cases
of murder or manslaughter, the crime shall be deemed
to have been committed at the place where the injury
was inflicted, or the poison administered, or other means
employed which caused the death, without regard to
the place where the death occurs.

§ 1049. Construction of words. Sec. 337. Words used
in this title in the present tense include the future as
well as the present; words used in the masculine gender
include the feminine and neuter; tlio singular number
includes the plural, and the plural the singular; the
word ** person" and the word "whoever" include a cor-
poration as well as a natural person; writing includes
printing and typewriting, and signature or subscription
includes a mark when the jjcrson making the same in-
tended it as such. Tiie wcu'ds 'Mliis Title," wherever
they occur herein, shall be construed to mean this act.

{^1050. Omission of words "hard labor" not to de-
prive court of power to impose "hard labor." Sec. 338.
The omission of the words "hard lnl)or" from the pro-
visions proscribing the punishment in the various sec-

General and Special Provisions 841

tions of this act, shall not be construed as depriving the
court of the power to impose hard labor as a part of the
punishment, in any case where such power now exists.

§ 1051. Arrang-ement and classification of sections.
Sec. 339. The arrangement and classification of the sev-
eral sections of this title have been made for the purpose
of a more convenient and orderly arrangement of the
same, and therefore no inference or presumption of a
legislative construction is to be drawn by reason of the
chapters under which any particular section is placed.

§ 1052. Jurisdiction of circuit and district courts.

Sec. 340. The crimes and offenses defined in this title
shall be cognizable in the circuit and district courts of
the United States, as prescribed in sections 563 and 629
of the Revised Statutes.

CHAPTER LXIII

VIOLATIONS OF INTERSTATE COMMEECE

§ 1055. Definition, Interstate Com-
merce.

§ 1056. Transportation of female
for prostitution.

§ 1057. Securing transportation for
woman for prostitution.

§ 1058. Knowingly persuading wom-
en under 18 years of age
to be transported for
prostitution.

§ 1059. Courts having jurisdiction.

§ 1060. Alien women, foreign com-
merce.

INTERSTATE RAILROAD PASS

§ 1061. Interstate free passes, ille-
gal use.

FRUIT SHIPMENTS

§ 1062. The standard 1)arrel for
fruit and dry commodities,
cranberry barrel.

§ 1063. Puiiislimcnt for shipment
interstate, fruits below
standard barrel.

§ 1064. Transporting intoxicating
liquors in Interstate Com-
merce except for scientific
purposes.

PRIZE FIOIITS

S 1065. Prize tight films, Interstate
Transportation thereof.

§ 1066. Intent to j)revent, interfere,
or ol»Htruct foreign com-
merce.

S 1067. Larceny of interstate ship-
ment.

§ 1068. Under Act Feb. 13, 1913,
conviction, state court a
bar under act.

§ 1069. An act to punish the trans-
portation of stolen motor
vehicles in interstate or
foreign commerce.

§ 1070. Convictions in restraint of
trade, penalty.

§ 1071. Monopolizing or attempting
to do so of commerce
among the states or
foreign nations, unlawful
punishment,

§ 1072. Introducing falsely labeled
dairy product or food.

§ 1073. Refusal to testify before In-
terstate Commerce Com-
mission, penalty.

§ 1074. Illegal transportation of in-
sect pests in interstate
commerce.

§ 1075. Person guilty of violating
section one of this Act,
IMay 3, 1905. Penalty.

§ 1076. Unlawful to manufacture
adulterated food or drug,
puni'ihmcnt.

§ 1077. Shipping and delivery adul-
terated drugs and food in
interstate commerce, pun-
ishment.

§ 1078. Regulations prescribed by
Secretary of Agriculture
of inspection of meat.

§ 1079. Adulterated or misbranded
insecticides forbidden ship-
ment. Penalty.

842

Violations of Interstate Commerce

843

§ 1080. Officers of common carriers
engaged in interstate com-
merce must make monthly
reports accidents.

§ 1081. Officers of common carriers
must make report for fail-
ure, punishment.

§ 1082. Eeport of common carrier
of accident not to be used
as evidence.

§ 1083. Punishment for refusal to
testify to make false en-
try in report. Willfully
mutilate documentary evi-
dence, or a corporation
failing to file report be-
fore trades commission.

§ 1084. Violations of anti trust law
of corporation apply to its
officers and agents; all are
punished.

§ 1085. Secretary of Agriculture
may demand to inspect
and grade grains, may
also revoke license after
opportunity has been given
of hearing.

J 1086. No grain shall be shipped
in interstate commerce un-
less inspected, selling and
offering for sale, etc.

§ 1087. Violation Act Aug. 11, 1916,
including sections four
and seven of second Act,
punishment.

§ 1088. Interfering with the duties
of an officer or employee
of Department of Agricul-
ture, punishment.

§ 1090.
§ 1091.

§ 1092.
§ 1093.

§ 1089. Forging, counterfeiting, etc.,
license of Secretary of
Agriculture and violating
section eight of Act Aug.
11, 1916, part "c" pen-
alty.

SHIPMENT OF LiaiE

Lime barrels must be
marked, stenciled and
branded.

Lime sold in interstate or
foreign commerce in less
capacity than standard
barrel, how marked.

Eules and regulations allow
variations.

Importer selling imported
article at a price substan-
tially less than the actual
market value in U. S.,
punishment.

Punishment for restraint of
trade between any terri-
tory of U. S. and an-
other, etc.

Unlawful to sell lime not
properly worked.

Variation of standard bar-
rels may be permitted.

Violations of lime barrels,
punishment.

Standard baskets for grapes
and small fruits.

Standard capacity of con-
tainers of small fruits and
berries.

Punishment for using bask-
ets not up to standard.

§ 1094.

§ 1095.
§ 1096.
§ 1097.
§ 1098.
§ 1099.

§ 1100.

WHITE SLAVE TKAFFIC ACT

§ 1055. Definition, interstate commerce. The term
' ' interstate commerce, ' ' as used in this act, shall include
transportation from any state or territory or the Dis-
trict of Columbia to any other state or territory or the

844 Criminal Law

District of Columbia, and the term "foreign commerce,"
as used in this act, shall include transportation from
any state or territoiy or the District of Columbia to
any foreign countiy and from any foreign country to
any state or territory or the District of Columbia.^

§ 1056. Transportation of female for prostitution.

That any person who shall knowingly transport or cause
to be transported, or aid or assist in obtaining transporta-
tion for, or in transporting, in interstate or foreign com-
merce, or in any territoiy or in the District of Columbia,
any woman or girl for the purpose of prostitution or
debaucheiy, or for any other immoral purpose, or with
the intent and puipose to induce, entice, or compel such
woman or girl to become a prostitute or to give herself
up to debauchery, or to engage in any other immoral
practice; or who shall knowingly procure or obtain, any
ticket or tickets, or any form of transportation nor evi-
dence of the right thereto, to be used by any woman or
girl in interstate or foreign commerce, or in any terri-
tory or the District of Columbia, in going to any place
for the purpose of prostitution or debauchery, or for
any other immoral purpose, or with the intent or pur-
pose on the part of such person to induce, entice or
compel her to give herself up to the practice of prostitu-
tion oi- to give lierself up to debauchery, or any other
iiiniioral practice, whereby any such woman or girl shall
be transported in interstate or foreign commerce, or in
any territory or the District of Columbia, shall be deemed
guilty of a felony, and ui)on conviction thereof shall be
punished by a fine not exceeding five thousand dollars,
or by imprisonment of not more than live years, or by
both such fine and imprisonment, in the discretion of
the court.*

1— Act June 25, 1910, 36 Stnt. 2— Rec. 2, Act Juno 2.-), 1910, .16

fit LnrRe, 82.^. ■ Stiit. nt Lnrpo, 825.

Violations of Interstate Commerce 845

§ 1057. Securing transportation for woman for pros-
titution. That any person who shall knowingly persuade,
induce, entice, or coerce, or cause to be persuaded, in-
duced, enticed, or coerced, or aid or assist in persuad-
ing, inducing, enticing, or coercing any woman or girl
to go from one place to another in interstate or foreign
commerce, or in any territory or the District of Colum-
bia, for the purpose of prostitution or debaucheiy, or
for any other immoral purpose, or with the intent and
purpose on the part of such person that such woman
or girl shall engage in the practice of prostitution or
debauchery, or any other immoral practice, whether with
or without her consent, and who shall thereby know-
ingly cause or aid or assist in causing such woman or girl
to go and to be carried or transported as a passenger upon
the line or route of any common carrier or carriers
in interstate or foreign commerce, or any territory or
the District of Columbia, shall be deemed guilty of a
felony and on conviction thereof shall be punished by
a fine of not more than five thousand dollars, or by im-
prisonment for a term not exceeding five years or by
both such fine and imprisonment, in the discretion of
the court.®

§ 1058. Knowingly persuading women under 18 years
of age to be transported for prostitution. Any person
who shall knowingly persuade, induce, entice, or coerce
any woman or girl under the age of eighteen years from
any state or territory or the District of Columbia or any
other state or territory or the District of Columbia, with
the purpose and intent to induce or coerce her, or that she
shall be induced or coerced to engage in prostitution or
debauchery, or any other immoral practice, and shall in
furtherance of such purpose knowingly induce or cause
her to go and to be carried or transported as a passenger

3— Sec. 3, Act June 25, 1910, 36
Stat, at Large, 825.

846 Ceiminal Law

in interstate commerce upon the line or route of any
common carrier or carriers, shall be deemed guilty of a
felony, and on conviction thereof shall be punished by
a fine of not more than ten thousand dollars, or by im-
prisonment for a term not exceeding ten years, or both,
such fine and imprisonment, in the discretion of the
court.*

§ 1059. Courts having jurisdiction. That any violation
of any of the above sections 1056, 1057, 1058, shall be
prosecuted in any court having jurisdiction of crimes
within the district in which said violation was committed,
or from, through, or into which any such woman or girl
may have been carried or transported as a passenger in
interstate or foreign commerce, or in any territory or
the District of Columbia, contrary to the provisions of
any of said sections.^

§ 1060. Alien women, foreign commerce. That for the
purpose of regulating and preventing the transportation
in foreign commerce of alien women and girls for pur-
poses of prostitution and debauchery, and in pursuance
of and for the purpose of carrying out the terms of the
agreement or project of arrangement for the suppres-
sion of the white-slave trafiic, adopted July 25, 11)02,
for su])mission to their respective governments by the
delegates of various powers represented at the Paris
conference and confinned by a formal agreement signed
at Paris on May 18, 1908, as shown by the proclamation
of the President of tlio Ignited States, dated June 15,
1908, the ConiinissioiK r (icnci-al of Innnigration is hereby
designated ;is llic ;ni1 lioi'lt y oT tlic riiit(Ml States to re-
ceive jiimI ceiil i-;ili/e inroi-iiiatidii coiicernliig the procura-
tion of alien women and girls with a view to their
d(!bauchery and to exercise supervision over such alien

4_Scc. 4, Act June 25, I'.Md, :!« 5— Sec. 5, Act June 25, 1010, .10

St.it. .It Large, 826. Stat, at Large, 826.

Violations of Interstate Commerce 847

women and girls, receive their declarations, establish
their identity, and ascertain from them who induced them
to leave their native countries, respectively; and it shall
be the duty of said Commissioner-General of Immigra-
tion to receive and keep on file in his office the state-
ments and declarations which may be made by such alien
women and girls, and those which are hereinafter re-
quired pertaining to such alien women and girls engaged
in prostitution or debaucheiy in this country, and to
furnish receipts for such statements and declarations
provided for in this act to the persons, respectively, mak-
ing and filing them.

Every person who shall keep, maintain, control, sup-
port, or harbor in any house or place for the purpose of
prostitution, or for any other immoral purpose, any alien
woman or girl within three years after she shall have
entered the United States from any country, party to
the said arrangement for the suppression of the white-
slave traffic, shall file with the Commissioner-General of
Immigration a statement in writing setting forth the
name of such alien woman or girl, the place at which
she is kept, and all facts as to the date of her entry into
the United States, the port through which she entered,
her age, nationality, and parentage, and concerning her
procuration to come to this country within the knowledge
of such person, and any person who shall fail within
thirty days after such person shall commerce to keep,
maintain, control, support or harbor in any house or
place for the purpose of prostitution, or for any other
immoral purpose, any alien woman or girl within three
years after she shall have entered the United States
from any of the countries, party to the said arrange-
ment for the suppression of the white-slave traffic, to
file such statement concerning such alien woman or girl
with the Commissioner-General of Immigration, or who
shall knowingly and wilfully state falsely or fail to dis-
close in such statement any fact within his knowledge

848 Criminal Law

or belief with reference to the age, nationality, or par-
entage of any such alien woman or girl, or concerning
her procuration to come to this country, shall be deemed
guilty of a misdemeanor, and on contiction shall be pun-
ished by a fine of not more than two thousand dollars,
or by imprisonment for a term not exceeding two years,
or by both such fine and imprisonment, in the discretion
of the court.

In any prosecution brought under this section, if it
appear that any such statement required is not on file
in the office of the Commissioner-General of Immigration,
the person whose duty it shall be to file such statement
shall be presumed to have failed to file said statement,
as herein required, unless such person or persons shall
prove otherwise. No person shall be excused from fur-
nishing the statement, as required by this section, on
the ground or for the reason that the statement so re-
quired by him, or the information therein contained,
might tend to criminate him or subject him to a penalty
or forfeiture, but no person shall be prosecuted or sub-
jected to any penalty or forfeiture under juiy law of
the United States for or on account of any transaction,
matter, or thing, concerning which he may truthfully
report in such statement, as rtMiuircd l)y 11i(> ])rovisions
of this section.^

INTERSTATE RAILROAD PASS

§ 1061. Interstate free passes; illegal use. That no
common carrier sul)ject to tlie i)rovisions of this act shall,
after January 1, 1907, directly oi- indirectly, issue or
give any interstate frer licl^ct, free ])ass, oi- free trans-
portation Tor passengers, except to tlic employees and
their faniilies, its officers, agents, surgeons, physicians,
and attorneys at law; to ministers of religion, traveling

6— Act June 25, 1910, 3G Stat.
at Large, 820.

Violations of Interstate Commerce 849

secretaries of railroad Young Men's Cliristian Associa-
tions, inmates of hospitals and charitable and eleemosy-
nary institutions, and persons exclusively engaged in
charitable and eleemosynary work; to indigent, destitute
and homeless persons, and to such persons when trans-
ported by charitable societies or hospitals and the neces-
sary agents employed in such transportation; to inmates
of the National Homes or State Homes or Disabled Vol-
unteer Soldiers, and of Soldiers' and Sailors' Homes,
inchiding those about to enter and those returning home
after discharge; to necessary care takers of live stock,
poultry, milk, and fruit; to employees on sleeping car
express cars, and to linemen of telegraph and linemen
of telegraph and telephone companies; to Railway Mail
Service, employees, postoffice inspectors, customs in-
spectors, and immigration inspectors; to news boys on
trains, baggage agents, witnesses attending any legal in-
vestigation in which the common carrier is interested,
persons injured in wrecks and physicians and nurses at-
tending such persons: Provided, That this provision
shall not be construed to pi^ohibit the interchange of
passes for the officers, agents, and employees of common
carriers, and their families; nor to prohibit any common
carrier from carrying passengers free with the object
of providing relief in cases of general epidemic, pestil-
ence, or other calamitous visitation: And Provided
further. That this provision shall not be construed to
prohibit the privilege of passes or franks, or the ex-
change thereof with each other, for the officers, agents,
employees, and their families of such telegraph, tele-
phone and cable lines, and the officers, agents, employees
and their families of other common carriers subject to
the provisions of this act: Provided further. That the
term "employees" as used in this paragraph shall in-
clude furloughed, pensioned, and superannuated em-
ployees, persons who have become disabled or infirm in
the service of any such common carrier; and the term
c. L.— 54

850 Criminal Law

"families" as used in this paragraph shall include the
families of those persons named in this proviso, also
the families of persons killed, and the widows during
widowhood and minor children during minority of per-
sons who died, while in the service of any such com-
mon carrier. Any common caiTier violating this pro-
vision shall be deemed guilty of a misdemeanor and for
each offense, on conviction, shall pay to the United States
a penalty of not less than one hundred dollars, nor more
than two thousand dollars, and any person other than
the persons excepted in this provision, who uses any
such interstate free ticket, free pass, or free transporta-
tion shall be subject to a like penalty. Jurisdiction of
offenses under this provision shall be the same as that
provided for offenses in an act entitled "An act to further
regulate commerce with foreign nations and among the
States," approved February 19, 1903, and any amend-
ment thereof.''

FRUIT SHIPMENTS

§ 1062. The standard barrel for fruit and dry commodi-
ties: cranberry barrel. That the standard barrel for
fruits, vegetables, and other dry commodities other than-
cranberries shall be of the following dimensions when
measured without distention of its parts: Lengtli of
stave, twenty-eight and one-half inches; diameter of
heads, seventeen and one-eighth inches; distance between
heads, twenty-six inches; circumference of bulge, sixty-
i'our iiiclics, outside measurement; niKl llic lliickness of
staves not gi'calcr llinii Four-tcMillis of an Incli: Pro-
vi<k'(l. That any l)arr('l of a different foiiii having a capac-
ity of seven ihousand and iifty-six ciiltic inches sliall be a
stamhiid hiiiicl. The siandai'd bari-cl for cranberries
sliall be of I he foUowing diinensions when measured with-

7— Act fonjTrcHH Feb. 17, 1917, 39
Stnt. fit liJirKc, 922.

Violations of Interstate Commerce 851

out distension of its parts: Length of staves, twenty-
eight and one-half inches; diameter of head, sixteen and
one-forth inches; distance between heads, twenty-five and
one-fourth inches, outside measurement; and the thick-
ness of staves not greater than four-tenths of an inch.'

§ 1063. Punishment for shipment interstate, fruits "be-
low standard barrel. That it shall be unlawful to sell,
offer, or expose for sale in any state, territory, or the
District of Columbia, or to ship from any state, terri-
tory, or the District of Columbia or to a foreign country,
a barrel containing fruits or vegetables or any other diy
commodity of less capacity than the standard barrels
defined in the first section of this act, or subdivisions
thereof, known as the third, half, and three-quarters
barrel, and any person guilty of a wilful violation of any
of the provisions of this act, shall be deemed guilty of
a misdemeanor and be liable to a fine not to exceed five
hundred dollars, or imprisonment not to exceed six
months, in the court of the United States having juris-
diction: Provided, however. That no barrel shall be
deemed below standard within the meaning of this act
when shipped to any foreign country and constructed
according to the specifications or directions of the foreign
purchaser if not constructed in conflict with the laws of
the foreign country to which the same is intended to be
shipped.^

§ 1064. Transporting- intoxicating liquors in interstate
commerce, except for scientific purposes. That whoever
shall order, purchase, or cause intoxicating liquors to be
transported in interstate commerce, except for scientific,
sacramental, medicinal, and mechanical purposes, into
any state or territory the laws of which state or terri-
tory prohibit the manufacture or sale therein of intoxi-

8— Sec. 1, Act March 4, 1915, 9— Sec. 2, Act March 4, 1915, 38

38 Stat, at Large, 1186, Stat, at Large, 1186.

852 Criminal Law

eating liquors for beverage purposes shall be punislied
as aforesaid: Provided, That nothing herein shall au-
thorize the shipment of liquor into any state contrary
to the laws of such state.^"

PRIZE FIGHTS

§ 1065. Prize fight films, interstate transportation there-
of. That it shall be unlawful for any person to de-
posit or cause to be deposited in the United States mails
for mailing or delivery, or to deposit or cause to be de-
posited with any express company or other common
carrier for carriage, or to send or caiTy from one state
or territory of the United States or the District of Co-
lumbia to any other state or territory of the United
States or the District of Columbia, or to bring or to cause
to be brought into the United States from abroad, any
film or other pictorial representation of any prize fight
or encounter of pugilists, under whatever name, which
is designated to be used or may be used for purposes
of public exhibition. ^^

§ 1066. Intent to prevent, interfere, or obstruct for-
eign commerce. That wlioever, with intent to prevent,
interfere witli, or obstruct or attempt to prevent, inter-
fere witli or obstruct the exportation to foreign countries
of articles from the United States shall injure or destroy,
))y fire or ('xi>h)sives, such articles or the places where
they may be wliih' in such foreign commerce, shall be
fined not more than ten lliousand doHars, or imprisoned
not more llian ten years, or both. ^^

§ 1067. Larceny of interstate shipment. That whoever
.sliall uiilawriilly liimk llu; seal of ;iiiy rnih'oad car con-

10— Sec, 5, Act March H, 1917, 'M 12— Act June ir>, 1917, 39 Htut.

Htiit. nt Lnrgf, 1069. at Large, 221.

11— Hoc. 1, Act .Inly :'.l, 1912, :!7
Kf:.f. !it L:irj;.'. 240.

Violations of Interstate Commerce 853

tainiiig interstate or foreign shipments of freight or ex-
press, or shall enter any such car with intent, in either
case, to commit larceny therein; or whoever shall steal
or unlawfully take, carry away, or conceal, or by fraud
or deception obtain from any railroad car, station house,
platform, depot, steam boat, vessel, or wharf, with intent
to convert to his own use any goods or chattels moving
as, or which are a part of or which constitute an inter-
state or foreign shipment of freight or express, or shall
buy, or receive, or have in his possession any such goods
or chattels, knowing the same to have been stolen; or
whoever shall steal or shall unlawfully take, carry away,
or by fraud or deception obtain, with intent to convert
to his own use, any baggage which shall have come into
the possession of any common carrier for transportation
from one state or territory or the District of Columbia
to another state or territory or the District of Columbia,
or to a foreign country, or from a foreign countiy to
any state or ten-itoiy or the District of Columbia, or shall
break into, steal, take, carry away, or conceal any of
the contents of such baggage, or shall buy, receive, or
have in his possession any such baggage or any article
therefrom of whatsoever nature, knowing the same to
have been stolen, shall in each case be fined not more
than five thousand dollars, or imprisoned not more than
ten years, or both, and prosecutions therefor may be
instituted in any district wherein the crime shall have
been committed. The carrying or transporting of any
such freight, express, baggage, goods, or chattels from
one state or territoiy or the District of Columbia into
another state or territory or the Distiict of Columbia,
knowing the same to have been stolen, shall constitute
a separate offense and subject the offender to the penal-
ties above described for unlawful taking, and prosecu-
tions therefor may be instituted in any district into which
such freight, express, baggage, goods, or chattels shall

854 Ceiminal Law

have been removed or into wliich they shall have been
brought by such offender.^^

§ 1068. Under act February 13, 1913, conviction, state
court a bar under act. That nothing in this act shall
be held to take away or impair the jurisdiction of the
courts of the several states under the laws thereof; and
a judgment of conviction or acquittal on the merits under
the laws of any state shall be a bar to any prosecution
hereunder for the same act or acts.^*

§ 1069. An Act to punish the transportation of stolen
motor vehicles in interstate or foreign commerce.

Be it enacted by the Senate and House of Representa-
tives of the United States of xVmerica in congress as-
sembled, That this act may be cited as the National Llotor
Vehicle Theft Act.

Sec. 2. That when used in this act:

(a) The term "motor vehicle" shall include an auto-
mobile, automobile truck, automobile wagon, motor cycle,
or any other self-propelled vehicle not designed for run-
ning on rails;

(b) Tlio term ''Interstate or foreign commerce" as
used ill this act sliall include transportation from one
state, territory, or llic District of Columbia, to aiiotlior
state, tenntory, oi- I lie District of Columbia, or lo a for-
eign country, or from a foreign country to any state,
territorj% or tlie District of Coluiii])ia.

Sec. 3. Tli.l1 whoever shall lr;iiisj)orl or cause to be
transported in inlcrslate or foreign commerce a motor
vehicle, knowing the same to have been stolon, shall be
punished l»y a fine of not more llian five thousand dol-
lars, OI- l»y inijjrisonnicnl of nol more than five years,

o|- })o|ii.

i;!- Spc. 1, Art. I'Vli. l.T, 1013, .17 14— Roc 2, Act. Feb. I."!, 191.1, ."i?

St.'it. nt Largo, fi7n. Stat. 670.

Violations of Interstate Commerce 855

Sec. 4. That whoever shall receive, conceal, store,
barter, sell, or dispose of any motor vehicle, moving as,
or which is a part of, or which constitutes interstate
or foreign commerce, knowing the same to have been
stolen, shall be punished by a fine of not more than five
thousand dollars, or by imprisonment of not more than
five years, or both.

Sec. 5. That any person violating this act may be
punished in any district in or through which such motor
vehicle has been transported or removed by such offender.

Eeceived by the President, October 17, 1919. 41 Stat.
325.

(NOTE BY THE DEPARTMENT OF STATE.— The
foregoing act having been presented to the President of
the United States for his approval, and not having been
returned by him to the house of congress in which it
originated within the time prescribed by the Constitu-
tion of the United States, has become a law without his
approval.)

§ 1070. Convictions in restraint of trade, penalty.
Everv contract, combination in the form of tnist or other-
wise, or conspiracy, in restraint of trade or commerce
among the several states, or with foreign nations, is
hereby declared to be illegal. Every person who shall
make any such contract or engage in any such combina-
tion or conspiracy, shall be deemed guilty of a misde-
meanor, and, on conviction thereof, shall be punished by
fine not exceeding five thousand dollars, or by imprison-
ment not exceeding one year, or by both said punish-
ments, in the discretion of the court."

§ 1071. Monopolizing or attempting to do so of com-
merce among the states or foreign nations, unlawful,
punishment. Eveiy person who shall monopolize, or at-

15_Sec. 1, Act July 2, 1890, 26
Stat. 209.

856 Criminal Law

tempt to nioiiopolizo, or combine or conspire with any
other person or persons, to monopolize any part of the
trade or commerce among the several states, or with for-
eign nations, shall be deemed guilty of a misdemeanor,
and, on conviction thereof, shall be punished by fine not
exceeding five thousand dollars, or by imprisonment not
exceeding one year, or by both said punishments, in the
discretion of the court.^^

§ 1072. Introducing" falsely labeled dairy product or
food. That no person or persons, company or corpora-
tion, shall introduce into any state or territoiy of the
United States or the District of Columbia from any other
state or teriitoiy of the United States or the District
of Columbia, or sell in the District of Columbia or in
any territory any dairy or food products which shall
be falsely labeled or branded as to the state or territory
in which they are made, produced, or grown, or cause
or procure the same to be done by others.^'

That if any person or persons violate the provisions
of this act, either in person or through another, he shall
be guilty of a misdemeanor and shall be punished by a
fine of not less tlmn five hundred dollars, nor more than
two thousand dollars; and that the jurisdiction for the
prosecution of said misdemeanor shall be within the dis-
trict of the TTnited States court in which it is committed.*'

§ 1073. Refusal to testify before interstate commerce
commission, penalty. No i)erson shall be excused from
attending and testifying or from producing books, papers,
tariffs, contracts, agreements and documents before the
Interstate Commerce Commission, or in obedience to the
Hubpofn.'i of tlio conimission, wlicllier such subpoena be

16— Act. .Inly 2, 1800, 26 8tat. 18— See. 2, Act July 1, 1902, 32

209. Stat. 032.

17— Sec. 1, .inly 1, 1!)02, 32 Stat.
632.

\'ioLATioxs OF Interstate Commerce 857

signed or issued by one or more commissioners, or in
any cause or proceeding, criminal or otherwise, based
upon or growing out of any alleged violation of the
act of congress, entitled ''An act to regulate commerce,"
approved February 4, 1887, or of any amendment thereof
on the ground or for the reason that the testimony or
evidence, documentaiy or otherwise, required of him,
may tend to eliminate him or subject him to a penalty
or forfeiture. But no person shall be prosecuted or sub-
jected to any penalty of forfeiture for or on account
of any transaction, matter or thing, concerning which
he may testify, or produce evidence, documentary or
othenvise, before said commission, or in obedience to
its subpoena, or the subpoena of either of them, or in
any such case or proceeding: Provided, That no per-
son so testifying shall be exempt from prosecution and
punishment for perjury committed in so testifying. Any
person who shall neglect or refuse to attend and testify,
or to answer any lawful inquiry, or to produce books,
papers, tariffs, contracts, agreements and documents, if
in him power to do so, in obedience to the subpoena
or lawful requirement of the commission shall be guilty
of an offense and upon conviction thereof by a court
of competent jurisdiction shall be punished by fine not
less than one hundred dollars, nor more than five thou-
sand dollars, or by imprisonment for not more than one
year, or by both such fine and imprisonment.^®

§ 1074. Illegal transportation of insect pests in inter-
state commerce. That no railroad, steamboat, express,
stage, or other transportation company shall knowingly
transport from one state or territory into any other state
of territory, or from the District of Columbia into a state
or territory, or from a state or territory into the District
of Columbia, or from a foreign countiy into the United

19— Act Feb. 11. 1893, 27 Stat.

443.

858 Criminal Law

States, the gypsy moth, brown-tail moth, leopard moth,
plum curculio, hop plant-louse, boll weevil, or any of them
in a live state, or other insect in a live state which is noto-
riously injurious to cultivated crops, including vegetables,
field crops, bush fruits, orchard trees, forest trees, or
shade trees; or the eggs, pupae, or larvae of any insect
injurious as aforesaid, except when shipped for scientific
purposes under the regulations herein after provided
for; nor shall any person remove from one state or ter-
ritory into another state or territory, or from a foreign
country into the United States, or from a state or terri-
tory into the District of Columbia, or from the District
of Columbia into any state or territory, except for scien-
tific purposes under the regulations hereinafter provided
for the gypsy moth, brown-tail moth, leopard moth, plum
curculio, hop plant-louse, boll weevil, or any of them in
a live state, or other insect in a live state which is noto-
riously injurious to cultivated crops, including vege-
tables, field crops, bush fruits, orchard trees, forest trees,
or shade trees; or the eggs, pupae, or larvae of any in-
sect injurious as aforesaid.^''

§ 1075. Person gfuilty of violating section 1 of this act,
May 3, 1905, penalty. That any person, conii)aiiy, or
ccn-poration who sliall knowingly violate the provisions
of section 1 of this act shall, for each offense, be fined,
upon conviciioii thereof, not more llinii fiv(> lliousand
dolhirs, or iiiii)i-is()iied at hard labor not more than five
years, or bolli, at I lie discretion of llic court.'^^

§ 1076. Unlawful to manufacture adulterated food or
drug, punishment. 'IMiat it shall be unlawful for any
pci'soii to nianuracl nic within any torritoiy or tlio Dis-
t?-ict of (\)Ininl)ia any article of food or drug which is
adulterated or misbranded, within ti»e meaning of this

20— Sof. 1. Act. Mar. .3, 1905, 33 21— Sec. 4, Act Mar. 3, 1905, 33

Stfit. 12f)9. Rf.-it. 1270.

Violations of Interstate Commerce 859

act; and any person who shall violate any of the pro-
visions of this section shall be guilty of a misdemeanor,
and for each offense shall, upon conviction thereof, be
fined not to exceed five hundred dollars, or shall be
sentenced to one year's imprisonment, or both such fine
and imprisonment, in the discretion of the court, and
for each subsequent offense and conviction thereof shall
be fined not less than one thousand dollars, or sentenced
to one year's imprisonment, or both such fine and im-
prisonment, in the discretion of the court.^''

§ 1077. Shipping and delivery adulterated drugs and
food in interstate commerce, punishment. That the intro-
duction into any state or territory or the District of
Columbia from any other state or territory or the Dis-
trict of Columbia, or from any foreign country, or ship-
ment to any foreign country of any article of food or
drugs which is adulterated or misbranded, within the
meaning of this act, is hereby prohibited; and any per-
son who shall ship or deliver for shipment from any
state or territory or the District of Columbia, to any
other state or territory or the District of Columbia, or to a
foreign country, or who shall receive in any state or
territory or the District of Columbia, from any other
state or territory or the District of Columbia, or foreign
country, and having so received, shall deliver, in original
unbroken packages, for pay or otherwise, or offer to
deliver to any other person, any such article so adulter-
ated or misbranded within the meaning of this act, or
any person who shall sell or offer for sale in the Dis-
trict of Columbia or the territories of the United States
any such adulterated or misbranded foods or drugs, or
export or offer to export the same to any foreign coun-
try, shall be guilty of a misdemeanor, and for such of-
fense be fined not exceeding two hundred dollars for

22— Sec. 1, Act June 30, 1906,
34 Stat. 768.

860 Criminal Law

the first offense, and upon conviction for each subse-
quent offense not exceeding three hundred dollars, or
be imprisoned not exceeding one year, or both, in the
discretion of the court: Provided, That no article shall
be deemed misbranded or adulterated within the pro-
vision of this act when intended for export to any foreign
country and prepared or packed according to the speci-
fications or directions of the foreign purchaser when
no substance is used in the preparation or packing there-
of in conflict with the laws of the foreign countiy to
which said article is intended to be shipped; but if said
article shall be in fact sold or offered for sale for do-
mestic use or consumption, then this proviso shall not
exempt said article from the operation of any of the
other provisions of this act.^^

§ 1078. Regfulations prescribed by Secretary of Agricul-
ture of inspection of meat. That on and after October 1,
1900, no person, firm, or corporation shall transport or
offer for transportation, and no carrier of interstate or
foreign commerce shall transport or receive for transpor-
tation from one state or territory or the District of Colum-
bia to any other state or territoiy or the District of Co-
lumbia, or to any place under the jurisdiction of the
I'liited States, or to any foreign country, any carcasses
or i>arts thereof, meat, or meat food products thereof
which have not been insi)ected, examined, and marked as
"Inspected and passed," in accordance with the tenns
ol" this act and with the rules and regulations prescribed
by the Secretary of Agriculture: Provided, that all meat
and meat food ])roducts on hand on October 1, 1906, at
establishments where inspection ims not been maintained,
or wiiicli liave been ins])ectcd under existing law, shall
be examined and lal)eied under such ruk^s and regulations
as the Secretaiy of Agi-ieulture shnll ))rescribe, nnd then

23— Sec. 2, Act .lunc .10, 1900,
34 Stat. 768.

Violations of Interstate Commerce 861

shall be allowed to be sold in interstate or foreigii ..com-
merce.

That no person, firm, or corporation, or officer, agent,
or employee thereof, shall forge, coimterfeit, simulate, or
falsely represent, or shall without proper authority use,
fail to use, or detach, or shall knowingly or wrongfully
alter, deface, or destroy, or fail to use, or detach, or shall
knowingly or wrongfully alter, deface, or destroy, or fail
to deface or destroy, any of the marks, stamps, tags,
labels, or other identification devices provided for in this
act, or in and as directed by the rules and regulations pre-
scribed hereunder by the Secretary of Agriculture, on any
carcasses, parts of carcasses, or the food product, or con-
tainers thereof, subject to the provisions of this act, or
any certificate in relation thereto, authorized or required
by this act or by the said rules and regulations of the Sec-
retary of Agriculture.

That the Secretary of Agriculture shall cause to be
made a careful inspection of all cattle, sheep, swine, and
goats intended and offered for export to foreign countries
at such times and places, and in such manner as he may
deem proper, to ascertain whether such cattle, sheep,
swine, and goats are free from disease.

And for this purpose he may appoint inspectors who
shall be authorized to give an official certificate clearly
stating the condition in which such cattle, sheep, swine,
and goats are found.

And no clearance shall be given to any vessel having
on board cattle, sheep, swine, or goats for export to a
foreign country until the owner or shipper of such cattle,
sheep, swine, or goats has a certificate from the inspector
herein authorized to be appointed, stating that the said
cattle, sheep, swine, or goats are sound and healthy, or
unless the Secretary of Agriculture shall have waived the
requirements of such certificate for export to the partic-
ular country to which such cattle, sheep, swine, or goats
are to be exported.

862 Criminal Law

And for this purpose lie may appoint inspectors who
shall be authorized to give an official certificate stating
the condition in which said cattle, sheep, swine, or goats,
and the meat thereof, are found.

And no clearance shall be given to any vessel having
on board any fresh, salted, canned, corned, or packed
beef, mutton, pork, or goat meat, being the meat of animals
killed after the passage of this act, or except as hereinbe-
fore provided for export to and sale in a foreign country
from any port in the United States, until the owner or
shipper thereof shall obtain from an inspector appointed
under the provisions of this act a certificate that the said
cattle, sheep, swine, and goats were sound and healthy at
the time of inspection, and that their meat is sound and
wholesome, unless the Secretary of Agriculture shall have
waived the requirements of such certificate for the coun-
try to which said cattle, sheep, swine, and goats or meats
are to be exported.

That the inspectors provided for herein shall be au-
thorized to give official certificates of the sound and
wholesome condition of the cattle, sheep, swine, and
goats, their carcasses and products as herein described;
and one copy of every certificate granted under the pro-
visions of lliis act shall l)e filed in the Department of
Agriculture, another copy shall be delivered to the owner
or shipi)er, and when the cattle, sheep, swine, and goats
oi- their carcasses and products are sent abroad, a tliird
copy sliall !)•' di'livered to the chief officer of the vessel
on wlilcli the sliii)mont siiall be made.

Tiiat no i)erson, firm, or corporation engaged in the
int ('Instate commerce of meat or meat ])ro(ln('ts sliall trans-
port HI- offci- for transportation, sell or olTcr to sell any
such meat or meat products in any state or territory or
in the District of Cohnnbia or any place under the juris-
diction of the United States, other than in the state or
territoi-y (»r in the District of Columbia or nny place

Violations of Interstate Commerce 863

under the jurisdiction of the United States in which the
slaughtering, packing, canning, rendering, or other simi-
lar establishment owned, leased, or operated by said firm,
person, or coi-poration is located unless and until said per-
son, firm, or corporation shall have complied with all
of the provisions of this act.

That any person, firm, or corporation, or any officer or
agent of any such person, firm, or corporation, who shall
violate any of the provisions of this act shall be deemed
guilty of a misdemeanor and shall be punished on con-
viction thereof by a fine of not exceeding ten thousand
dollars or imprisonment for a period of not more than
two years, or by both such fine and imprisonment, in the
discretion of the court.

That any person, firm, or corporation, or any agent or
employee of any person, firm, or corporation who shall
give, pay, or offer, directly or indirectly, to any inspector,
deputy inspector, chief inspector, or any other officer or
employee of the United States authorized to perform any
of the duties prescribed by this act or by the rules and
regulations of the Secretary of Agriculture any money or
other thing of value, with intent to influence said in-
spector, deputy inspector, chief inspector, or other officer
or employee of the United States in the discharge of any
duty herein provided for, shall be deemed guilty of a
felony, and upon conviction thereof, shall be punished by
a fine not less than five thousand dollars nor more than
ten thousand dollars and by imprisonment not less than
one year nor more than three years; and any inspector,
deputy inspector, chief inspector, or other officer or em-
ployee of the United States authorized to perform any
of the duties prescribed by this act who shall accept any
money, gift, or other thing of value from any person,
firm, or corporation, or officers, agents, or employees
thereof, given with intent to influence his official action,
or who shall receive or accept from any person, firm, or

864 Criminal Law

corporation engaged in interstate or foreign commerce
any gift, money or other thing of value given with any
purpose or intent whatsoever, shall be deemed guilty of
a felony and shall, upon conviction thereof, be summarily
discharged from office and shall be punished by a fine
not less than one thousand dollars nor more than ten
thousand dollars and by imprisonment not less than one
year nor more than three years.

That the provisions of this act requiring inspection
to be made by the Secretary of Agriculture shall not
apply to animals slaughtered by anj^ farmer on the farm
and sold and transported as interstate or foreign com-
merce, nor to retail butchers and retail dealers in meat
and meat food products, supplying their customers: Pro-
vided, That if any person shall sell or offer for sale or
transportation for interstate or foreign commerce any
meat or meat food products which are diseased, unsound,
uuhealthful, unwholesome, or otherwise unfit for human
food, knowing that such meat food products are intended
for human consumption, he shall be guilty of a misde-
meanor, and on conviction thereof shall be i^unished by a
fine not exceeding one thousand dollars or by imprison-
ment for a period of not exceeding one year, or by both
such fine and imprisonment: Provided, also, That the
Secretary of Agriculture is Muthorized to maintain the
inspection In this act pr()vi(U?d for at any slauglitering,
iiical-canning, salting, packing, rendei'iiig, or similar es-
lablishmciil notwithstanding tliis exception, and tliat the
persons operating tlie same may be retail l)utchers and
retail dealers or farmers; and where the Secretjiry of Ag-
licnlturc sliall estal)lish such ins])ection then the pro-
visions ol" this act shall apply notwithstanding this ex-
ception.

And the Secretary of Agi-ienll ui-e shall, in his annual
estimates ina<le to ( ongress, snlunil a stalenieni in (h*-
taii, showing tiie nnnihei' of persons employed in such
inspections and the salai-y oi' ])er diem ])ai(l to each, 1o

Violations of Interstate Commerce 865

gether with the contingent expenses of such inspectors
and where they have been and are employed.

§ 1079. Adulterated or misbranded insecticides forbid-
den shipment — Penalty. That the introduction into any
state or territory or the District of Columbia from any
state or territorj^ or the District of Columbia, or from
any foreign country, or by shipment to any foreign coun-
try, of any insecticide, or Paris green, or lead arsenate, or
fungicide which is adulterated or misbranded within the
meaning of this act is hereby prohibited ; and any person
who shall ship or deliver for shipment from any state or
territory or the District of Columbia to any other state
or territory or the District of Columbia, or to a foreign
country, or who shall receive in any state or territory
or the District of Columbia from any other state or terri-
tory or the District of Columbia, or foreign country, and
having so received, shall deliver, in original unbroken
packages, for pay or otherwise, or offer to deliver, to any
other person, any such article so adulterated or mis-
branded within the meaning of this act, or any person
who shall sell or offer for sale in the District of Columbia
or any territory of the United States any such adulter-
ated or misbranded insecticide, or Paris green, or lead
arsenate, or fungicide, or export or offer to export the
same to any foreign country, shall be guilty of a misde-
meanor, and for such offense be fined not exceeding two
hundred dollars for the first oifense, and upon conviction
for each subsequent offense not exceeding three hundred
dollars, or be imprisoned not exceeding one year, or both,
in the discretion of the court; Provided, That no article
shall be deemed misbranded or adulterated within the
provision of this act when intended for export to any
foreign country and prepared or packed according to the
specifications or directions of the foreign purchaser; but

24— Act Mar. 4, 1907, 34 Stat.
1262-1265.

C. L.— 55

866 Ckimixal Law

if said articles shall be in fact sold or offered for sale for
domestic use or consumption, then this proviso shall not
exempt said article from the operation of any of the
other provisions of this act.*"

§ 1080. Officers of common carriers engaged in inter-
state commerce must make monthly reports accidents.
That it shall be the duty of the general manager, super-
intendent, or other proper officer of every common car-
rier engaged in interstate or foreign commerce by rail-
road to make to the Literstate Commerce Commission, at
its office in Washington, District of Columbia, a monthly
report, under oath, of all collisions, derailments, or other
accidents resulting in injuiy to persons, equipment, or
roadbed arising from the operation of such railroad un-
der such rules and regulations as may be prescribed by
the said commission, which report shall state the nature
and causes thereof and the circumstances connected
therewith : Provided, That hereafter all said carriers shall
be relieved from the duty of reporting accidents in their
annual financial and operating reports made to the com-
mission.^^

§ 1081. Officers of common carriers must make report
— For failure, punishment. That any connnon carrier
failing to make such rei)(»rt within thirty days tifter the
end of any month shall be deemed guilty of a misde-
meanor, and upon conviction thereof by a court of com-
petent jurisdiction shall be punished by a fine of not more
than one hundred dolhirs for each and every offense and
for eveiy day during whicli it shall fail to make such
report after the time herein specilied for making the
same."

25— Sec. 2, Act Apr. 2(5, liMii, :u\ 27— Sec. 2, May 6, 1910, 36 Stat.

Sfnt. .3.31. 350.

26— Sec. 1, Act M.-jy 0, 1910, 36
Stat. 350.

Violations of Interstate Commerce 867

§ 1082. Report by common carrier if rendered not to be
used as evidence. That neither said report nor any report
of said investigation nor any part thereof shall be ad-
mitted as evidence or used for any purpose in any suit or
action for damages growing out of any matter mentioned
in said report or investigation.''^

§ 1083. Punishment for refusal to testify to make false
entry in report — Wilfully mutilate — Documentary evi-
dence ; or a corporation failing to file report before trades
commission. That any person who shall neglect or refuse
to attend and testify, or to answer any lawful inquiry,
or to produce documentary evidence, if in his power to
do so, in obedience to the subpoena or lawful requirement
of the commission, shall be guilty of an offense and upon
conviction thereof by a court of competent jurisdiction
shall be punished by a fine of not less than $1,000 nor
more than $5,000, or by imprisonment not more than one
year, or by both such fine and imprisonment.

Any person who shall wilfully make, or cause to be
made, any false entiy or statement of fact in any report
required to be made under this act, or who shall wilfully
make or cause to be made, any false entry in any account,
record or memorandum kept by any corporation subject
to this act, or who shall wilfully neglect or fail to make,
or to cause to be made, full, time, and correct entries in
such accounts, records, or memoranda of all facts and
transactions appertaining to the business of such corpo-
ration, or who shall wilfully remove out of any jurisdic-
tion of the United States, or wilfully mutilate, alter, or by
any other means falsify any documentary evidence of
such corporation, or who shall wilfully refuse to submit
to the commission or to any of its authorized agents, for
the purpose of inspection and taking copies, any docu-
mentary evidence of such corporation in his possession

28— Sec. 4, Act May 6, 1910, 36
Stat. 351.

868 Ckimixal Law

or within his control, shall be deemed guilty of an of-
fense against the United States, and shall be subject,
upon conviction in any court of the United States of com-
petent jurisdiction, to a fine of not less than $1,000 nor
more than $5,000, or to imprisonment for a term of not
more than three years, or to both such fine and imprison-
ment.

If any corporation required by this act to file any an-
nual or special report shall fail so to do within the tune
fixed by the commission for filing the same, and such
failure shall continue for thirty days after notice of such
default, the corporation shall forfeit to the United States
the sum of $100 for each and every day of the continu-
ance of such failure, which forfeiture shall be payable
into the treasury of the United States, and shall be recov-
erable in a civil suit in the name of the United States
brought in the district where the corporation has its
principal office or in any district in which it shall do
business. It shall be the duty of the various district
attorneys, under the direction of the attorney-general of
the United States, to prosecute for the recovciy of for-
feitures. The costs and expenses of such prosecution
shall be paid out of the appropriation for the expenses
of the courts of the United States.

Any officer or employee of the commission who shall
make public any information obtained by the connnission
without its autliority, unless directed by a court, shall be
deemed guilty of a misdemeanor, and, upon conviction
thereof, shall be punished by a fine not exceeding $5,000,
or by imprisonment not exceeding one year, or by fine
mid imprisoiiincnl, in llic discretion of tlio conrt.^*

i^ 1084. Violations of anti trust law of corporation ap-
ply to its officers and agents — All are punished. That
whenever a coi'jjoration shall violate any of the penal

2D— Sec. 10, Act Sopt. 26, 1014,
38 Stat. 72.1.

Violations of Interstate Commerce 869

provisions of the anti trust laws, such violation shall be
deemed to be also that of the individual directors, officers,
or agents of such corporation who shall have authorized,
ordered, or done any of the acts constituting in whole or
in part such violation, and such violation shall be deemed
a misdemeanor, and upon conviction thereof of any such
director, officer, or agent, he shall be punished by a fine
of not exceeding $5,000 or by imprisonment for not ex-
ceeding one year, or by both, in the discretion of the
court.^°

§ 1085. Secretary of Apiculture may demand to in-
spect and grade grains; may also revoke license after
opportunity has been given of hearing. That the Secre-
tary of Agriculture may issue a license to any person,
upon presentation to him of satisfactory evidence that
such person is competent, to inspect and grade grain
and to certify the grades thereof for shipment or delivery
for shipment in interstate or foreign commerce, under this
act and the rules and regulations prescribed thereunder.
No person authorized or employed by any state, county,
city, town, board of trade, chamber of commerce, corpo-
ration, society, partnership, or association to inspect or
grade grain shall certify, or otherwise state or indicate in
writing, that any grain for shipment or delivery for ship-
ment in interstate or foreign commerce, which has been
inspected or graded by him, or by any person acting un-
der his authority, is of one of the grades of the official
grain standards of the United States, unless he holds an
unsuspended and unrevoked license issued by the Secre-
tary of Agriculture: Provided, That in any state which
has, or which may hereafter have a state grain inspection
department established by the laws of such state, the Sec-
retary of Agriculture shall issue licenses to the persons
duly authorized and employed to inspect and grade grain

30— Sec. 14, Act Oct. 15, 1914,
38 Stat. 736.

870 Criminal Law

under the laws of such state. The Secretary of Agricul-
ture may suspend or revoke any license issued by him un-
der this act whenever, after opportunity for hearing has
been given to the licensee, the Secretary shall determine
that such licensee is incompetent or has knowingly or
carelessly graded grain improperly or by any other stand-
ard than is authorized under this act, or has issued any
false certificate of grade, or has accepted any money or
other consideration, directly or indirectly, for any neglect
or improper performance of duty, or has violated any pro-
vision of this act or of the rules and regulations made
hereunder.

Pending investigation the Secretary of Agriculture,
whenever he deems necessary, may suspend a license tem-
porarily without hearing: Provided further, That no per-
son licensed by the Secretary of Agriculture to inspect
or grade grain or employed by him in carrying out any of
the provisions of tliis act shall, during the term of such
license or employment, be interested, financially or other-
wise, directly or indirectly, in any grain elevator or ware-
house, or in the merchandising of grain, nor shall he be
in the employment of any person or corporation owning
or operating any grain elevator or warehouse.

Tlie Secretary of Agriculture shall require every in-
spector licensed under this act to keep complete and cor-
rect records of all grain graded and iiisjjocled by him
and lo make rcpiU'ts to the Secretary of Agriculture, in
sucli foniis and at such times as he may iciiuire, showing
the j)la('(' of iiispcd ion, the date of inspection, the name
of the ek'vator or wareliouse, if any, to which the grain
was delivered oi" from whicii it was shipped, the kind of
grain, the quantity of each kind, tlie grade thereof, and
such otlier information as the Secretary of Agriculture
may deem nccesHary. The Secretary of Agriculture, on
eacli first Tu(!sday in .Januaiy and each first Tuesday in
July of each year shall make ])ul)lIcation of a suimnary or
8uch facts as are ascertained, show ing in as great detail as

A^iOLATioxs OF Int?:kstate Commerce 871

possible all the facts, including a summary as to the
amount and grade of grain delivered to the elevator or
warehouse and the amount and grade of grain delivered
from such elevator or warehouse, and the estimated
amount received on sample or type by such elevator or
warehouse, and the estimated amount delivered therefrom
on sample or type.^^

§ 1086. No grain shall be shipped in interstate com-
merce unless inspected — Selling and offering for sale, etc.
That whenever standards shall have been fixed and es-
tablished under this act for any grain, no person there-
after shall ship or deliver for shipment in interstate or
foreign commerce any such grain which is sold, offered
for sale, or consigned for sale by grade unless the grain
shall have been inspected and graded by an inspector
licensed under this act and the grade fixed therefor in the
official grain standards of the United States: Provided,
That any person may sell, offer for sale, or consign for
sale, ship or deliver for shipment in interstate or foreign
commerce any such grain by sample or type, or under
any name, description, or designation which is not false
or misleading, and which name, description, or designa-
tion does not include in whole or in part the terms of
any official grain standard of the United States: Pro-
vided further, that any such grain sold, offered for sale,
or consigned for sale by grade may be shipped or de-
livered for shipment in interstate or foreign commerce
without inspection at point of shipment by an inspector
licensed under this act, to or through any place at which
an inspector licensed under this act, to or through any
place at which an inspector licensed under this act is
located, subject to be inspected by a licensed inspector at
the place to which shipped or at some convenient point
through which shipped for inspection, which inspection

31— See. 7, Act Aug. 11, 1916, 39
Stat. 484.

872 Ckiminal Law

shall be under such rules and regulations as the Secre-
tary of Agriculture shall prescribe, and subject further
to the right of appeal from such inspection, as provided
in section 6 of this act: And provided further, That any-
such grain sold, offered for sale, or consigned for sale by
any of the grades fixed therefor in the official grain
standards may, upon compliance with the rules and regu-
lations prescribed by the Secretary of Agriculture, be
shipped in interstate or foreign commerce without inspec-
tion from a place at which there is no inspector licensed
under this act to a place at which there is no such in-
spector, subject to the right of either party to the trans-
action to refer any dispute as to the grade of the grain to
the Secretary of Agriculture, who may determine the true
grade thereof. No person shall in any certificate or in
any contract or agreement of sale or agreement to sell by
grade, either oral or written, involving, or in any invoice
or bill of lading or other shipping document relating to,
the shipment or delivery for shipment, in interstate or
foreign commerce, of any grain for which standards shall
have been fixed and established under this act, describe,
or in any way refer to, any of such grain as being of any
grade other than a grade fixed therefor in the official
grain standards of the United States.^^

§ 1087. Violation act August 11, 1916, including sec-
tions 4 and 7 of act — Punishment. Any person who shall
knowingly violate any of the provisions of sections 4 or
7 of this act [Sees. 1085, 108G], or any inspectors licensed
under this act who sIimII knowingly inspect or grade im-
properly any grain which has been shipped <>r delivered
for shipment in interstate or foreign commerce, or shall
knowingly give any false certificate of grade, or shall
acce})! money or other consideration, directly or indi-
rectly, for any neglect or inipro])er performance of dnty,

.32— SfT. 4, Act AuR. 11, line, .ii)
Htnt. 4H3.

Violations of Interstate Commerce 873

and any person who shall improperly influence or attempt
to improperly influence any such inspector in the per-
formance of his duty, shall be guilty of a misdemeanor,
and upon conviction thereof shall be fined not more than
$1,000, or be imprisoned not more than one year, or both.^^

§ 1088. Interfering- with the duties of an officer or em-
ployee of Department of Agriculture — Punishment. That
every person who forcibly assaults, resists, impedes, or
interferes with any officer or employee of the United
States Department of Agriculture in the execution of
any duties authorized to be performed by this act or the
rules and regulations made hereunder shall, upon convic-
tion thereof, be fined not more than $1,000, or be impris-
oned not more than one year, or both.^*

§ 1089. Forging, counterfeiting, etc. license of Secre-
tary of Agriculture and violating section 8 of act August
11, 1916. That every person who shall forge, alter, coun-
terfeit, simulate, or falsely represent, or shall without
proper authority use, any license issued by the Secretaiy
of Agriculture under this act, or who shall violate or fail
to comply with anj^ provision of section 8 (that is, the
rules and regulations of the Secretary of Agriculture) of
this act, or who shall issue or utter a false or fraudulent
receipt or certificate, shall be deemed guilty of a misde-
meanor, and upon conviction thereof shall be fined not
more than $500 or imprisoned not more than six months,
or both, in the discretion of the court.^^

§ 1090. Lime barrels must be marked, stenciled and
branded. That it shall be unlawful for any person to sell
or offer for sale lime imported in barrels from a foreign
country, or to sell or offer for sale lime in barrels for ship-

33— Sec. 9, Act Aug. 11, 1916, 39 35— Sec. 30, Act Aug. 11, 1916,

Stat. 485. 39 Stat. 490.

34— Sec. 10, Act Aug. 11, 1916,
39 Stat. 485.

874 Criminal Law

ment from any state or territory, or the District of Co-
lumbia, to any other state or territory or the District of
Columbia, unless there shall be stenciled or othenvise
clearly marked on one or both heads of the small barrel
the figures ''180 lbs. net" and on the large barrel the
figures "280 lbs. net" before the importation or shipment,
and on either barrel in addition the name of the manu-
facturer of the lime and where manufactured, and, if im-
ported, the name of the countiy from which it is im-
ported.^^

§ 1091. Lime sold in interstate or foreigii commerce in
less capacity than standard barrel, how marked. That
when lime is sold in interstate or foreign commerce in
containers of less capacity than the standard small bar-
rel, it shall be sold in fractional parts of said standard
small barrel, and the net weight of lime contained in
such container shall be stenciled or otherwise be clearly
marked thereon, together with the name of the manu-
facturer tlieroof, and the name of the brand, if any,
under which it is sold, and, if imported, the name of the
country from which it is imported."

§ 1092. Rules and regulations allow variations. Tliat
the rules and regulations i'oi- the enforcement of this
act not inconsistent with the provisions of the act, shall
bo ni.'idc by llic dii-ccloi- of iho Bur(\Mu of Standards
.•ind npinovcd by the Secrclai'y of (^)nnnercc, and lliat
such 1 iilcs and regulations slinll iiiclnde reasonable vari-
.•ilioiis c)i- 1()l('r;in('(>s wliicli ni.'iy he nllowod.^^

ij 1093. Importer selling imported article at a price
substantially less than the actual market value in United
States — Punishment, 'i'lmt it sliall l)c unlawful for any

36— Spc. 2, Act All),'. L::i, I'.tKl, .ss—Sec. 4, A<'( Au^. 12;;, lUKJ,

.{9 Htnt, 530. .'tO Htnt. n.'ll.

37— Sec. 3, Art Auk. 2:!, lOlfi,
r,!» Sf.'it. .'530.

Violations of Interstate Commerce 875

person importing or assisting in importing any articles
from any foreign comitry into the United States, com-
monly and systematically to import, sell or cause to be
imported or sold such articles within the United States
at a price substantially less than the actual market
value or wholesale price of such articles, at the time
of exportation to the United States, in the principal
markets of the country of their production, or of other
foreign countries to which they are commonly exported
after adding to such market value or wholesale price,
freight, duty, and other charges and expenses neces-
sarily incident to the importation and sale thereof in
the United States: Provided, That such act or acts be
done with the intent of destroying or injuring any in-
dustry in the United States, or of restraining or monopo-
lizing any part of trade and commerce in such articles
in the United States.

Any person who violates or combines or conspires with
any other person to violate this section is guilty of a
misdemeanor, and, on conviction thereof, shall be pun-
ished by a fine not exceeding five thousand dollars, or
imprisonment not exceeding one year, or both, in the
discretion, of the court.

Any person injured in his business or property by
reason of any violation of, or combination or conspiracy
to violate, this section, may sue therefor in the district
court of the Unit'cd States for the district in which the
defendant resides or is found or has an agent, without
respect to the amount in controversy, and shall recover
threefold the damages sustained, and the cost of the
suit, including a reasonable attorney's fee.

The foregoing provisions shall not be construed to
deprive the proper state courts of jurisdiction in actions
for damages thereunder.^^

39— See. 801, Act Sept. 8, 1916,
39 Stat. 798.

876 Chimin AL Law

§ 1094. Punishment for restraint of trade between any
territory of United States and another, etc. That who-
ever, with intent to prevent, interfere with, or obstruct
or attempt to prevent, interfere witli, or obstruct tlie
exportation to foreign countries of articles from tlie
United States shall injure or destroy, by fire or explo-
sives, such articles or the places where they may be
while in such foreign commerce, shall be fined not more
than ten thousand dollars, or imprisoned not more than
ten years, or both.*"

§ 1095. Unlawful to sell lime not properly marked,
punishment. That it shall be unlawful for any person
to sell or offer for sale lime imported in barrels from a
foreign country, or to sell or ofi:'er for sale lime in barrels
for shipment from any state or territory or the District
of Columbia, to any other state or territory or the Dis-
trict of Columbia, unless there shall be stenciled or otlier-
wise clearly marked on one or both heads of the small
barrel the figures ' ' 180 lbs. net, ' ' and of the large barrel
the figures ''280 lbs. net," before the importation or
shipment, and on cither barrel in addition the name of
the manufacturer of the lime and where manufactured,
and, if imported, the name of the countiy from which
it is imported.*^

§ 1096. Variation of standard barrel may be permitted
by approval of secretary of commerce. That reasonable
variations shall be permitted and tolerance shall be es-
tablished by rules and regulations made by the Director
of the Bureau of Standards and approved by the Sec-
retary of Commerce. Prosecutions for offenses under
this act may be begun upon com])lain1 of local sealers
of weights and measures oi* oilier oflicers of the several
states and tei-iitoiies, api)oinled to enforce the laws of

40— Act Juno ]5, 1917, 40 Stat. 41— Sec. 2, Act Aug. 2.1, 1916, .'J9

221. Stat. MO.

Violations of Interstate Commerce 877

the said states or territories, respectively, relating to
weights and measures: Provided, however. That noth-
ing in this act shall apply to barrels used in packing
or shipping commodities sold exclusively by weight or
numerical count.*'^

§ 1097. Violation for using lime in barrels. That it
shall be unlawful to pack, sell, or offer for sale for ship-
ment from any state or territory or the District of Co-
lumbia to any other state or territory or the District
of Columbia, any barrels or other containers of lime
which are not marked as provided in sections 2 and 3
of this act, or to sell, charge for, or purport to deliver
from any state or territory or the District of Columbia
to any other state or territory or the District of Co-
lumbia, as a large or small barrel or a fractional part
of said small barrel of lime, any less weight of lime than
is established by the provisions of this act ; and any per-
son guilty of a violation of the provisions of this act
shall be deemed guilty of a misdemeanor and be liable
to a fine not exceeding one hundred dollars.*^

§ 1098. Standard baskets for grapes and other fruits.

That the standards for Climax baskets for grapes and
other fruits and vegetables shall be the two-quart basket,
four-quart basket, and twelve-quart basket, respectively:
(a) The standard two-quart Climax basket shall be
of the following dimensions: Length of bottom piece,
nine and one-half inches; width of bottom piece, three
and one-half inches; thickness of bottom piece, three-
eighths of an inch; height of basket, three and seven-
eighths inches, outside measurement; top of basket,
length eleven inches, and width five inches, outside meas-
urement. Basket to have a cover five by eleven inches,
when a cover is used.

42_Sec. 3, Act Mar. 4, 1915, 38 43— (Sec. 5) Act Aug. 23, 1916,

Stat. 1187. 39 Stat. 531.

878 Crimin^al Law

(b) The standard four-quart Climax basket shall be
of the following dimensions: Length of bottom piece,
twelve inches; width of bottom piece, four and one-half
inches; thickness of bottom piece, three-eighths of an
inch; height of basket, four and eleven-sixteenths inches,
outside measurement; top of basket, length fourteen
inches; width six and one-fourth inches, outside meas-
urement. Basket to have cover six and one-fourth inches
by fourteen inches, when cover is used.

(c) The standard twelve-quart Climax basket shall be
of the following dimensions: Length of bottom piece,
sixteen inches; width of bottom piece, six and one-half
inches; thickness of bottom piece, seven-sixteenths of an
inch; height of basket, seven and one-sixteenth inches,
outside measurement; top of basket, length nineteen
inches; width nine inches, outside measurement. Basket
to have cover nine inches by nineteen inches, when cover
is used."

§ 1099. Standard capacity of containers of small fruits
and berries, etc. Standard basket or other container
for small fruits, l)erries, and vegetables shall be of the
following cai)a('ities, iiaiiicly, dry oiic-linlt' pint, dry pint,
dry (luart, oi- inulti])les of tlie dry quart.

(a) The dry luilf pint slmll conlniu sixteen and eight-
tenths cul)ic inches.

(])) The dry ])int sliall contain sixteen and eight-tentlis
cu))ic inches.

{(•) 'IMie dry (|uart sliall contain sixty-seven and two-

t(MltllS culiic iliclies.*^

§ 1100. Punishment for manufacturing- or using baskets
and containers for fruits and vegetables, etc., not up to
standard. 'I'liat it shall he unhiwrni to manufacture for
shipiiieiit, or lo sell for slii|)nieiit, oi' to ship IVoin any

44— (Hec. 1) Act Aiik- ;'.1, HtlO, 45— (Sec. 2) Act Aug. HI, 191G,

.'{> Htat. 67;i. ;!9 Stat. G7:5.

Violations of Intekstate Commerce 879

state or territory of the United States or the District
of Columbia to any other state or territory of the United
States or the District of Columbia, any Climax baskets or
other containers for small fruits, berries, or vegetables
whether filled or unfilled, which do not conform to the
provisions of this act; and any person guilty of a wilful
violation of any of the provisions of this act shall be
deemed guilty of a misdemeanor, and upon conviction
thereof shall be fined in any sum not exceeding twenty-
five dollars: Provided, That nothing herein contained
shall apply to the manufacture, sale, or shipment of
Climax baskets, baskets, or other containers for small
fruits, berries, and vegetables when intended for export
to foreign countries w^hen such Climax baskets, baskets,
or other containers for small fruits, berries, and vege-
tables accord with the specifications of the foreign pur-
chasers to comply with, the law of the country to which
shipment is made or to be made.

The examination and test of Climax baskets, baskets,
or other containers for small fruits, berries, and vege-
tables, for the purpose of determining whether such bas-
kets or other containers comply with the provisions of
this act, shall be made by the Department of Agricul-
ture, and the Secretary of Agriculture shall establish
and promulgate rules and regulations allowing such rea-
sonable tolerances and variations as may be found neces-
sary.

It shall be the duty of each district attorney, to whom
satisfactory evidence of any violation of the act is pre-
sented, to cause appropriate proceedings to be com-
menced and prosecuted in the proper court of the United
States for the enforcement of the penalties as in such
case herein provided.*^

46 — (Sees. 3, 4 and 5) Act Aug.
13, 1916, 39 Stat. 673.

CHAPTER LXIV

OFFENSES AGAINST FOREIGN AND INTERSTATE COMMEKUliJ

CHAPTER NINE
Penal Code, Act March 4, 1909

§ 1103. Dynamite, etc., not to be
carried on vessels or ve-
hicles carrying passengers
for hire.

§ 1104. Interstate Commerce Com-
mission to make regula-
tions for transportation of
explosives.

§ 1105. Liquid nitroglycerin, etc.,
not to be carried on cer-
tain vessels and vehicles.

§ HOG. Marking of packages of ex-
plosives; deceptive mark-
ing.

§ 1107. Death or bodily injury
caused by such transporta-
tion.

S 11118. Importation and transporta-
tion of lottery tickets, etc.,
forl»iddcn.

S 111)9. Jnter.state shipment of in-
toxicating liquors; de-

livery of to be made only
to bona fide consignee.

§ 1110. Connnon carrier, etc., not to
collect purchase price of
interstate shipment of in-
toxicating liquors.

§ 1111. Packages containing intoxi-
cating liquors shipped in
interstate commerce to bo
marked as such.

§ 1112. Importation of certain wild
animals and birds for-
bidden.

§ 1113. Transportation of prohibited
animals.

§ 1114. Marking of packages.

§ 1115. Penalty for violation of
three preceding sections.

«i IIK;. Importation and transporta-
tion of obscene, etc., books,
etc.

§ 1103. Dynamite, etc., not to be carried on vessels or
vehicles carrying- passengers for hire. Sec. 232. It
sluill be uiilawfiil lo t i;iiisi)()rt, ciiriy, or convey, Miiy
(lyiiainite, ^aiiii)()\vder, or otlicr c.\i)l()sive, between a ])la(H'
in ;i I'oivi.i^Mi country ;nid a ])la('<' williin or sn)).i('ci lo llic
jurisdiction of tlic liiitcd States, (.r lictwo-n a place in
any state, territory, or <listiict. ol" the rnilcfi Slates,
or |)iae(! nonc()nti<ifuoiis to but su])joct to I be jui-isdic-
tioM tliereof, and a i)laee in any otber stale, territory,
or district of the Tnited States, or i)laee noncontiguous

880

Foreign and Interstate Commerce 881

to but subject to the jurisdiction thereof, on any vessel
or vehicle of any description operated by a common car-
rier, which vessel or vehicle is carrying passengers for
hire: Provided, That it shall be lawful to transport on
any such vessel or vehicle small arms ammunition in any
quantity, and such fuses, torpedoes, rockets, or other
signal devices, as may be essential to promote safety
in operation, and properly packed and marked samples
of explosives for laboratorj^ examination, not exceeding
a net weight of one-half pound each, and not exceeding
twenty samples at one time in a single vessel or vehicle;
but such samples shall not be carried in that part of a
vessel or vehicle which is intended for the transporta-
tion of passengers for hire : Provided further, That noth-
ing in this section shall be construed to prevent the
transportation of military or naval forces with their ac-
companying munitions of war on passenger equipment
vessels or vehicles.

§ 1104. Interstate commerce commission to make reg-
ulations for transportation of explosives. Sec. 233.
The Interstate Commerce Commission shall formulate
regulations for the safe transportation of explosives,
which shall be binding upon all common carriers en-
gaged in interstate or foreign commerce which trans-
port explosives by land. Said commission, of its own
motion, or upon application made by any interested party,
may make changes or modifications in such regulations,
made desirable by new information or altered conditions.
Such regulations shall be in accord with the best known
practicable means for securing safety in transit, cover-
ing the packing, marking, loading, handling while in
transit, and the precautions necessary to determine
whether the material when offered is in proper condi-
tion to transport. Such regulations, as well as all changes
or modifications thereof, shall take effect ninety days
after their formulation and publication by said commis-

c. L.— 56

882 Criminal Law

sion and shall be in effect until reversed, set aside, or
modified.

§ 1105. Liquid nitrogiycerin, etc., not to be carried on
certain vessels and vehicles. Sec. 234. It shall be un-
lawful to transport, carry, or convey, liquid nitroglycerin,
fulminate in bulk in dry condition, or other like explosive
between a place in a foreign country and a place within
or subject to the jurisdiction of the United States, or
between a place in one state, territory, or district of the
United States, or place noncontiguous to but subject to
the jurisdiction thereof, and a place in any other state,
territory, or district of the United States, or place non-
contiguous to but subject to the jurisdiction thereof,
on any vessel or vehicle of any description operated
by a common carrier in the transportation of passengers
or articles of commerce by land or water.

§1106. Marking of packaiges of explosives; deceptive
marking. Sec. 235. Every package containing explo-
sives or other dangerous articles when presented to a
common carrier for shipment shall have plainly marked
on the outside thereof the contents thereof; and it shall
be unlawful for any person to deliver, or cause to be
delivered, to any common carrier engaged in interstate
or foreign connnerce by land or water, for interstate
or foreign 1 r;ins])()rtation, or to carry upon any vessel
or veliicle engaged in interstate or foreign transporta-
tion, any explosive, oi' other dangerous article, under
any false or deceptive mai-king, description, invoice, ship-
ping order, or other declaration, or without informing
the agent of such canici- of the true character thereof,
at or before Ihc tiiiie sik li delivery or carriage is made.
Whoever sliall knowingly violate, or cause to be vio-
lated, any provision of Ihis section, or of the three sec-
tions last preceding, oi- any regulation made by the In-
terstate Commerce Commission in pnrsuance thereof,

Foreign and Interstate Commerce . 883

sliall be fined not more than two thousand dollars, or
imprisoned not more than eighteen months, or both.

§ 1107. Death or bodily injury caused by such trans-
portation. Sec. 236. When the death or bodily injury
of any person is caused by the explosion of any article
named in the four sections [Sees. 1105, 1106, 1107, 1108]
last preceding, while the same is being placed upon any
vessel or vehicle to be transported in violation thereof,
or while the same is being so transported, or while the
same is being removed from such vessel or vehicle, the
person knowingly placing, or aiding or permitting the
placing, of such articles upon any such vessel or vehicle,
to be so transported, shall be imprisoned not more than
ten years.

§ 1108. Importation and transportation of lottery
tickets, etc. Sec. 237. Whoever shall bring or cause to
be brought into the United States or any place subject
to the jurisdiction thereof, from any foreign country,
for the purpose of disposing of the same, any paper,
certificate, or instrument purporting to be or to repre-
sent a ticket, chance, share, or interest in or dependent
upon the event of a lottery, gift enterprise, or similar
scheme offering prizes dependent in whole or in part
upon lot or chance, or any advertisement of, or- list of
the prizes drawn or awarded by means of, any such
lottery, gift enterprise, or similar scheme ; or shall therein
knowingly deposit or cause to be deposited with any
express company or other common carrier for carriage,
or shall carry, from one state, territory, or district of
the United States, or place noncontiguous to but sub-
ject to the jurisdiction thereof, to any other state, ter-
ritoiy, or district of the United States, or place non-
contiguous to but subject to the jurisdiction thereof, or
from any place in or subject to the jurisdiction of the
United States through a foreign country to any place

884 Criminal Law

in or subject to the jurisdiction thereof, or from any place
in or subject to the jurisdiction of the United States
to a foreign countrj^, any paper, certificate, or instru-
ment purporting to be or to represent a ticket, chance,
share, or interest in or dependent upon, the event of
any such lottery, gift enterprise, or similar scheme, or
any advertisement of, or list of the prizes drawn or
awarded by means of, any such lottery, gift enterprise,
or similar scheme, or shall knowingly take or receive,
or cause to be taken or received, any such paper, cer-
tificate, instrument, advertisement, or list so brought,
deposited, or transported, shall, for the first offense, be
fined not more than one thousand dollars, or imprisoned
not more than two years, or both; and for any subse-
quent offense shall be imprisoned not more than two
years.

§ 1109. Interstate shipment of intoxicating liquors;
delivery of to be made only to bona fide consignee. Sec.
238. Any officer, agent, or employee of any railroad
company, express company, or other common carrier,
who shall knowingly deliver or cause to be delivered
to any person other than the person to whom it has been
consigned, unless upon the written order in each instance
of the bona fide consignee, or to any fictitious person,
or to any person under a fictitious name, any spirituous,
vinous, malted, fermented, or other intoxicating liquor
of any kind which has been shipped from one state, ter-
ritory, or district of the United States, or place non-
contiguous 1() l)ut subject to the jurisdiction thereof,
into .'iiiy other state, territory, or district of the United
States, or ])lace iioiicoiitigiious to ])iit subject to the ju-
risdiction tlieieol", or from any foreign country into any
state, territory, or district of the United States, or place
noncontiguous to but subject to the jurisdiction thereof,
shall be fined not more than five thousand dollars, or
imprisoned not more than two years, or both.

Foreign and Interstate Commerce 885

§ 1110. Common carrier, etc., not to collect purchase
price of interstate shipment of intoxicating liquors. Sec.
239. Any railroad company, express company, or other
common carrier, or any other person who, in connection
with the transportation of any spirituous, vinous, malted,
fermented, or other intoxicating liquor of any kind, from
one state, territory, or district of the United States, or
place noncontiguous to but subject to the jurisdiction
thereof, into any other state, territory, or district of
the United States, or place noncontiguous to but sub-
ject to the jurisdiction thereof, or from any foreign coun-
try into any state, territory, or district of the United
States, or place noncontiguous to but subject to the ju-
risdiction thereof, shall collect the purchase price or any
part thereof, before, on, or after delivery, from, the con-
signee, or from any other person, or shall in any manner
act as the agent of the buyer or seller of any such liquor,
for the purpose of buying or selling or completing the
sale thereof, saving only in the actual transportation
and delivery of the same, shall be fined not more tban
five thousand dollars,

§ 1111. Packages containing intoxicating liquors
shipped in interstate commerce to be marked as such.

Sec. 240. Whoever shall knowingly ship or cause to be
shipped, from one state, territory, or district of the
United States, or place noncontiguous to but subject to
the jurisdiction thereof, into any other state, territory,
or district of the United States, or place noncontiguous
to but subject to the jurisdiction thereof, or from any
foreign country into any state, territory, or district of
the United States, or place noncontiguous to but subject
to the jurisdiction thereof, any package of or package
containing any spirituous, vinous, malted, feraiented, or
other intoxicating liquor of any kind, unless such pack-
age be so labeled on the outside cover as to plainly show
the name of the consignee, the nature of its contents.

886 Criminal Law

and the quantity contained therein, shall be fined not
more than five thousand dollars; and such liquor shall
be forfeited to the United States, and may be seized
and condemned by like proceedings as those provided
by law for the seizure and forfeiture of property im-
ported into the United States contrary to law.

§ 1112. Importation of certain wild animals, birds, and
reptiles forbidden. Sec. 241. The importation into the
United States, or any territory or district thereof, of
the mongoose, the so-called ''flying foxes" or fruit bats,
the English sparrow, the starling, and such other birds
and animals as the Secretaiy of Agriculture may from
time to time declare to be injurious to the interests of
agriculture or horticulture, is hereby prohibited; and
all such birds and animals shall, upon arrival at any
port of the United States, be destroyed or returned at
the expense of the owner. No person shall import into
the United States or into any territory or district thereof,
any foreign wild animal or bird, except under special
permit from the Secretary of Agriculture: Provided,
That nothing in this section shall restrict the importa-
tion of natural history specimens for nuiseums or scien-
tific collections, or of certain cage birds, sucli as (hnnes-
ticated canaries, parrots, or sncli other ])irds as the Sec-
retary of Agriculture may designate. The Secretary of
the Trcasui-y is hereliy authorized to make regulations
for carrying into effect I lie provisions of this section.

§ 1113. Transportation of prohibited animals. Sec.
24L'. h shall he uiih-iwrul lor any ixM'son to deliver to
any conmion carrier for transportation, or for any com-
mon carrier to 1ransj)ort from any state, territory, or
district of the Cnited States, to any other state, terri-
tory, or (listiict thereof, any foi-eigii animals or birds,
an importation of which is prohibited, or the dead bodies
or part-^ thereof of any wild animals or birds, where

Foreign and Interstate Commerce 887

such animals or birds have been killed or shipped in
violation of the laws of the state, territory, or district
in which the same were killed, or from which they were
shipped: Provided, That nothing herein shall prevent
the transportation of any dead birds or animals killed
during the season when the same may be lawfully cap-
tured, and the export of which is not prohibited by law
in the state, teiTitoiy, or district in which the same are
captured or killed : Provided further. That nothing here-
in shall prevent the importation, transportation, or sale
of birds or bird plumage manufactured from the feathers
of barnyard fowls.

§ 1114. Marking- of packages. Sec. 243. All packages
containing the dead bodies, or the plumage, or parts
thereof, of game animals, or game or other wild birds,
when shipped in interstate or foreign commerce, shall
be plainly and clearly marked, so that the name and
address of the shipper, and the nature of the contents,
may be readily ascertained on an inspection of the out-
side of such package.

§ 1115. Penalty for violation of preceding sections.
Sec. 244. For each evasion or violation of any provision
of the three sections last preceding [Sees. 1111, 1112,
1113], tlie shipper shall be fined not more than two hun-
dred dollars; the consignee knowinglj- receiving such ar-
ticles so shipped and transported in violation of said sec-
tions shall be fined not more than two hundred dollars;
and the carrier knoAvingly carrying or transporting the
same in violation of said sections shall be fined not more
than two hundred dollars.

§ 1116. Depositing obscene books, etc., with common
carrier. Sec. 245. Whoever shall bring or cause to be
brought into the United States or any place subject to
the jurisdiction thereof, from any foreign countiy, or

888 Ceimixal Law

shall therein knowingly deposit or cause to be deposited
with any express company or other common carrier, for
carriage from one state, territory, or district of the United
States, or place noncontiguous to but subject to the ju-
risdiction thereof, to any other state, territory, or dis-
trict of the United States, or place noncontiguous to but
subject to the jurisdiction thereof, or from any place
in or subject to the jurisdiction of the United States
through a foreign country to any place in or subject to
the jurisdiction thereof, or from any place in or subject
to the jurisdiction of the United States to a foreign coun-
try, any obscene, lewd, or lascivious, or any filthy book,
pamphlet, picture, paper, letter, writing, print, or other
matter of indecent character, or any drug, medicine, ar-
ticle, or thing designated, adapted, or intended for pre-
venting conception, or producing abortion, or for any
indecent or immoral use, or any written or printed card,
letter, cirqular, book, pamphlet, advertisement, or notice
of any kind giving infonnation, directly or indirectly,
where, how or of whom or by what means any of the
hereinbefore-mentioned articles, matters, or things may
be obtained or made; or whoever shall knowingly take
or cause to be taken from such express company or other
common carrier any matter or thing the depositing of
wliich for carriage is herein made unlawful, shall be
fined not more lliaii live thousand dollars, or imprisoned
not more than five years, or both.

CHAPTER LXV

OFFENSES KELATING TO INDIANS

§ 1119. Trader in Indian country
without license, penal.

§ 1120. Foreigner in Indian coun-
try without passport liable
to penalty $1,000.

§ 1121. Removing cattle, etc., with-
out permission of Secre-
tary of War.

§ 1122. General laws U. S. extended
to Indian country in crim-
inal matters, except where
specifically provided.

§ 1123. General laws U. S. concern-
ing forgery and upon
mails Indian country ap-

piy-

§ 1124. White person setting fire to
building in Indian coun-
try, punishment.

§ 1125. Indian or white person mak-
ing an assault upon each
other with guns, etc., pun-
ishment.

§ 1119. Trader in Indian country without license,
penal. Any person other than an Indian of the full blood
who shall attempt to reside in the Indian country, or
on any Indian reservation, as a trader, or to introduce
goods, or to trade therein, without such license, shall
forfeit all merchandise offered for sale to the Indians
or found in his possession, and shall moreover be liable
to a penalty of five hundred dollars: Provided, That
this section shall not apply to any person residing among
or trading with the Choctaws, Cherokees, Chickasaws,
Creeks, or Seminoles, commonly called the Five Civilized
Tribes, residing in said Indian country, and belonging
to the Union Agency therein: And provided further,
That no white person shall be employed as a clerk by
any Indian trader, except such as trade with said Five
Civilized Tribes, unless first licensed so to do by the
Commissioner of Indian Affairs, under and in conformity

889

890 Criminal Law

to regulations to be established bv the Secretaiy of the
Interior.^

§ 1120. Foreigner in Indian country without passport
liable to penalty $1,000. Every foreigner who shall go
into the Indian country without a passport from the De-
partment of the Interior, superintendent, agent, or sub-
agent of Indian affairs, or officer of the United States
commanding the nearest military post on the frontiers,
or who shall remain intentionally therein after the ex-
piration of such passport, shall be liable to a penalty
of one thousand dollars. Every such passport shall ex-
press the object of such person, the time he is allowed
to remain, and the route he is to travel.^

§ 1121. Removing cattle, etc., without permission of
Secretary of War. Every person who drives or removes,
except by authority of an order lawfully issued by the
Secretary of War, connected with the movement or sub-
sistence of troops, any cattle, horses, or other stock from
the Indian country for the purpose of trade or commerce,
shall be ])unisliable by imprisonment for not more than
tliree years, or by ;i i\uo not moi-p thnii five thousand
dollars, oi- l)o11i.^

5^ 1122. General laws United States extended to In-
dian country in criminal matters. Except where speci-
fically provided. Exec])! as to ci-iiiics the puiiishinciit
of wliicli is ('\pi-('ssly provided lof in lliis titk', tlie gen-
ci'al laws of tlic I'liitcd Stales as to the ]>nnisliniont of
fi'ijnes coiniuit t('(l in any place within the sole and ex-
clusive jurisdiction of the I'nited Stales, excej)! the Dis-
trict of ('oliinil)ia, shall cNlend to the rndiaii country.*

1— U. H. 2i:5.1, .July :n, 1882, 22 3— K. S. 2 1. (8, 1.'} Stat. 563.

Stat. 179. 4— H. S. 21 4r), 10 Stat. 270.

2— H. S. 2i;?4, 4 Stnt. 7:Ul.

Offenses Relating to Indians 891

§ 1123. General laws United States concerning forgery
and upon mails in Indian country apply. The general
laws of the United States defining and prescribing pun-
ishments for forgery and for depredations upon the mails,
shall extend to the Indian country.^

§ 1124. White person setting fire to building on Indian
country — Punishment. Every white person who shall set
fire, or attempt to set fire, to any house, out-house,, cabin,
stable, or other building, in the Indian country, to whom-
soever belonging; and every Indian who shall set fire to
any house, out-house, cabin, stable, or other building, in
the Indian country, in whole or in part belonging to or
in lawful possession of a white person, and whether the
same be consumed or not, shall be punishable by impris-
onment at hard labor for not more than twenty-one years,
nor less than two years.^

§ 1125. Indian or white person making an assault upon
each other v^th guns, etc. — Punishment. Every white
person who shall make an assault upon an Indian, or
other person, and every Indian who shall make an as-
sault upon a white person, within the Indian country,
with a gun, rifle, sw^ord, pistol, knife, or any other deadly
weapon, with intent to kill or maim the person so as-
saulted, shall be punishable by imprisonment, at hard
labor, for not more than five years, nor less than one
year.''^

5— E. S. 2144, 10 Stat. 700. 7— R. S. 2142, 10 Stat. 270.

6— Act Mar. 27, 1854, R. S. 2143,
10 Stat. 270.

CHAPTER LXVI

OFFENSES RELATING TO JAPANESE AND CHINESE

§ 1128. Violation of Act July 5,
1884, where punishment
not otherwise provided for.

§ 1129, Under Act July 5, 1884, cer-
tificate of identity of
Chinese person be in Eng-
lish language and must
show his proper signature
and family name.

§ 1130. Landing Chinese laborers in
U. S. guilty of a misde-
meanor.

§ 1131. Forgery of name written on
identity certificate under
Act July 5, 1884, misde-
meanor.

§ 1132. Violation section 2158 E. S.
of U. S. dealing with
Chinamen and Japanese.

S n ;{.'{. Bringing Chinese to U. S.
not lawfully entitled to,
misdemeanor.

S 11.'54. Viol.-ttion of provisions of

Act July 5, 1884, by mas-
ter vessel.

§ 1135. Contract qr attempt to con-
tract in advance of an il-
legal importation of Chi-
nese, etc., contrary to sec-
tion 2158, E. S. guilty of
felony.

§ 1136. All persons amenable to
laws of U. S. who shall
take any Chinamen or
Japs or oriental from his
country, shall be punished.

§ 1137. Any person who prepares,
loads or equips, etc., any
vessel to trade in China-
men or Japanese under sec.
2158, E. S. punishment.

§1138. Sec. 21"58, E. S. of U. S.
making it unlawful to dis-
pose of or sell for any
time subject of China or
Japan, etc.

jS} 1128. Violation of Act July 5, 1884, where punish-
ment not otherwise provided for. That any violation of
any of the })rovi.si<»iis of this act, or of the act of wliich
this is amoiidatoiy, the puiiishiiu'iit of which is not other-
wise liorr'in provided for, sliall l)o deemed a misdemeanor,
and shall he pnnislial)!(' by a fine not oxceedin*^ one thou-
sand dollars, oi' hy iiiipiisoiiinciit i'oi' not more than one
Vf-ar. ur hoth such line and iiii|»ris()iiniciit.^

1—23 Htnt. 118, Sec. 10, July 5,
1884.

892

Offenses Relating to Japanese and Chinese 893

§ 1129. Under Act July 5, 1884, certificate of identity
of Chinese person be in English language and must
show his proper signature and family name. In order
to the faithful execution of the provisions of this act,
every Chinese person, other than a laborer, who may
be entitled by said treaty or this act to come within the
United States, and who shall be about to come to the
United States, shall obtain the permission of and be
identified as so entitled by the Chinese government, or
of such other foreign government of which at the time
such Chinese person shall be a subject, in each case to
be evidenced by a certificate issued by such government,
which certificate shall be in the English language, and
shall show such permission, with the name of the per-
mitted person in his or her proper signature, and which
certificate shall state the individual, family and tribal
name in full, title or official rank, if any, the age, height,
and all physical peculiarities, former and present occu-
pation or profession, when and where and how long
pursued and place or residence of the person to whom
the certificate is issued, and that such person is entitled
by this act to come within the United States. If the
person so applying for a certificate shall be a merchant,
said certificate shall, in addition to above requirements,
state the nature, character, and estimated value of the
business carried on by him prior to and at the time of
his application as aforesaid: Provided, That nothing in
this act now in said treaty shall be construed as embrac-
ing within the meaning of the word ''merchant," huck-
sters, peddlers, or those engaged in taking, drying, or
otherwise preserving shell or other fish for home con-
sumption or exportation. If the certificate be sought
for the purpose of travel for curiosity, it shall also state
whether the applicant intends to pass through or travel
within the United States, together with his financial
standing in the countiy from which such certificate is
desired. The certificate provided for in this act, and the

894 Ckimixax, Law

identity of the person named therein shall, before such
person goes on board any vessel to proceed to the United
States, be vised by the indorsement of the diplomatic
representatives of the United States in the foreign coun-
try from which said certificate issues, or of the consu-
lar representative of the United States at the port or
place from which the person named in the certificate is
about to depart; and such diplomatic representative or
consular representative, whose indorsement is so re-
quired, is hereby empowered, and it shall be his duty,
before endorsing such certificate as aforesaid, to ex-
amine into the truth of the statements set forth in said
certificate, and if he shall find upon examination that
said or anv of the statements therein contained are un-
true it shall be his duty to refuse to indorse the same.
Such certificate vised as aforesaid shall be prima facie
evidence of the facts set forth therein, and shall be pro-
duced to the collector of customs of the port in the dis-
trict in the United States at which the person named
therein shall arrive, and afterward produce to the proper
authorities of the United States whenever lawfully de-
manded, and shall be the sole evidence permissible on the
])iiyt of the ))erson so producing the same to establish a
i-igiit of eiiliN- iiilo tlie United "States; but said certificate
may be coiili'oxcftcd ;iii(l tli<' f.-ids llicrciii staled disap-
]}roved by tiie United States authorities.^

§ 1130. Landing Chinese laborers in United States
guilty of a misdemeanor. 'IMial the iiiasicr of any vessel
wIhi sliall knowingly briiiu' williiii llif I nitcil Slates on
Kucli vessel, and land, <»i' ;illcinii1 to l;ind, oi- pennil to
)»(• bindcd any ('lilncsc laliorci', from any I'oreign poi't or
place, .^li;ill Itr (jcciiifd uuiltN' of a inisdcinrniioi', and, on
• •oiixirl ion tlicicof, sli;ill lie pnnishcd hy a lint' of nol more

2~'S.'. .Stat. 116, See. 6, Act .July
5, 1884.

Offenses Relating to Japanese and Chinese 895

than five hundred dollars, and may also be imprisoned
for a term not exceeding one year.^

§ 1131. Forgery of name written in identity certificate
under act July 5, 1884 — Misdemeanor. Nothing herein
contained shall be deemed to apply to any voluntary emi-
gration of the subjects specified in section twenty-one
hundred and fifty-eight revised statutes, or to any vessel
carrying such person as passenger on board the same,
but a certificate shall be prepared and signed by the con-
sul or consular agent of the United States residing at the
port from which such vessel may take lier departure,
containing the name of such person, and setting forth the
fact of his voluntary emigration from such port, which
certificate shall be given to the master of such vessel;
and the same shall not be given until such consul or con-
sular agent is first personally satisfied by evidence of
the truth of the facts therein contained.*

§1132. Violation Section 2158 Revised Statutes of
United States dealing- with Chinamen and Japanese.

Every citizen of the United States who, contrary to the
provisions of section twenty-one hundred and fifty-eight
revised statutes, takes on board of any vessel, or receives
or transports any such subjects as are described in that
section, for the puipose of disposing of them in any way
as therein prohibited, shall be liable to a fine not exceed-
ing two thousand dollars and be imprisoned not exceed-
ing one year.^

§ 1133. Bring-ing- Chinese to United States not lawfully
intended to — Misdemeanor. Any person who shall know-
ingly bring into or cause to be brought into the United
States by land, or who shall aid or abet the same, or aid
or abet the landing in the United States from any ves-

3— Sec. 2, Act July 5, 1884, 23 5— R. S. 2161, 12 Stat. 340.
Stat. 115.

4— Sec. 4, Feb. 19, 1862, 12 Stat.
341.

896 Criminal Law

sel, of any Chinese person not lawfully entitled to enter
the United States, shall be deemed guilty of a misde-
meanor, and shall on conviction thereof, be fined in a sum
not exceeding one thousand dollars, and imprisonment
for a term not exceeding one year.^

§ 1134. Violation of provisions of act July 5, 1884, by
master vessel. The master of any vessel arriving in
the United States from any foreign port or place shall,
at the same time he delivers a manifest of the cargo, and
if there be no cargo, then at the time of making a report
of the entry of the vessel pursuant to law, in addition
to the other matter required to be reported, and before
landing, or permitting to land, any Chinese passengers,
deliver and report to the collector of customs of the dis-
trict in wliich such vessels shall have arrived a separate
list of all Chinese passengers taken on board his vessel
at any foreign port or place, and all such passengers
on board the vessel at that time, such list shall show the
names of such passengers (and if accredited officers of
the Chinese or of any other foreign government, travel-
ing on the business of that government, or their servants,
with a note of such facts), and the names and other y)ar-
ticuhirs as shown by their ros])ective certificates; and
such list shall be sworn lo by the master in the manner
required by law in relation to the manifest of the cargo.
Any refusal oi- wilful neglect of any such master to com-
jily with the jjiovisions of this section shall incur the
same penalties and forfeiture as nro provided for a re-
fusal or neglect to report and deliver a manifest of the
cargo.

Before any Cliinese passengers are laiuhMl IVoni any
such vessel, the collector, or his deputy, shall proceed
to examine sudi passengers, comparing the certificates

6— Hfc. 11, Act July 5, 1884, 23
Sf:a 117.

Offenses Eelatixg to Japanese and Chinese 897

with the list and with the passengers; and no passenger
shall be allowed to land in the United States from such
vessel in violation of law.

Every vessel whose master shall knowingly violate
any of the provisions of this act shall be deemed for-
feited to the United States, and shall be liable to seizure
and condemnation in any district of the United States
into which such vessel may enter or in which she may
be found. "^

§ 1135. Contract or attempt to contract in advance of
an illeg-al importation of Chinese, etc., contrary to sec-
tion 2158 Revised Statutes, guilty of felony. Thus if
any person shall knowingly and wilfully contract, or at-
tempt to contract, in advance or in pursuance of such
illegal importation, to supply to another the labor of
coolie or other person brought into the United States
in violation of section two thousand one hundred and
fifty-eight of the revised statutes (sec. 1132 this code),
or of any other section of the laws prohibiting the coolie-
trade or of this act, such person shall be deemed guilty
of a felony, and, upon conviction thereof, in any United
States court, shall be fined in a sum not exceeding five
hundred dollars and imprisoned for a term not exceeding
one year.®

§ 1136. All persons amenable to laws of United States
who shall take any Chinamen or Japanese or Oriental
from his country, shall be punished. That if any citizen
of the United States, or other person amenable to the
laws of the United States, shall take, or cause to be taken
or transported, to or from the United States any sub-
ject of China, Japan, or any oriental countiy, without
their free and voluntary consent, for the purpose of hold-

7_Sees. 8 and 10, Act July 5, 8— Act Mar. 3, 1875, 18 Stat.

1884, 23 Stat. 117. 477.

C. L.— 57

898 Criminal Law

ing them to a term of service, such citizen or other person
shall be liable to be indicted therefor, and, on conviction
of such offense, shall be punished by a fine not exceeding
two thousand dollars and be imprisoned not exceeding
one year; and all contracts and agreements for a term
of service of such persons in the United States, whether
made in advance or in pursuance of such illegal importa-
tion, and whether such importation shall have been in
American or other vessels, are hereby declared void.^

§ 1137. Any person who prepares, loads or equips, etc.,
any vessel to trade in Chinese or Japanese under Section
2158 Revised Statutes. Punishment. Every person who
so builds, fits out, equips, loads, or otherwise prepares,
or who sends to sea, or navigates, as owner, master, fac-
tor, agent, or otherwise, any vessel, belonging in whole
or in part to a citizen of the United States, or registered,
enrolled, or licensed within the same, knowing or intend-
ing that such vessel is to be or may be employed in that
trade, contraiy to the provisions of section twenty-one
hundred and fifty-eight, shall be liable to a fine not ex-
ceeding two thousand dollars, and be imprisoned not ex-
ceeding one year.^°

COOLIE TRADE

§1138. Section 2158 of Revised Statutes of United
States, making it unlawful to dispose of or sell for any
time, subject of China or Japan, etc. No citizen of the
United States, or foreigner coming into or residing within
the same, shall, for himself or for any other person, eitlier
as master, factor, owner, or otherwise, build, equip, load,
or otherwise prepare, any vessel, registered, enrolled, or
licensed, in the United States, for the purpose of procur-
ing from any port or place the subjects of China, Japan,

9— Act March 3, 1875, 18 Stat. 10— R. S. 2160, 12 Stat. 340, Act

477. Fob. 19, 1862.

Offenses Relating to Japanese and Chinese 899

or of any other oriental country, known as ' ' coolies, ' ' to
be transported to any foreign port, or place, to be dis-
posed of, or sold, or transferred, for any time, as servants
or apprentices, or to be held to service or labor."

11— Act Feb. 9, 1869, 15 Stat.
269.

CHAPTER LXVn

MISCELLANEOUS OFFENSES

§ 1140. Licenses for collecting for- § 1153.
eign coupons, etc., punish-
ment.

§11-11. Concealing property on §1154.
boundary between U. S.
and foreign country, pun-
ishment.

§1142. Bribing voter, in senatorial §1155.
and representative elec-
tions. § 1156.

§ 1143. Congressional elections, pun-
ishment for designated
corrupt practices at pri- § 1157.
marj', general or special
elections.

§ 1144. Accepting fee for filing

soldier homestead entries, § 1158.
punishment.

S 1145. Entrapping Antwerp or hom-
ing pigeon, punishment. § 1159.

§114f). Detention, etc., evidence of

violation. g 1160.

§ 1117. Punishment.

§ 1148. Accepting allowance after
the right has ceased, pun-
ishment.

§ 1149. Intent to defraud in secur-
ing allotment.

8 1150. Knowingly making false
statement for family al-
lowance, perjury,

S 1151. Ten per cent allowed attor-
ney fpp, war risk insiir-
ano.fi, puniHliment for.

i 1152. Act relating to pensions, il-
legal attorney's fee, pun- §1166.
ishmcnt.

900

noi.

1162.
1163.

1164.
1105.

Dealers in cotton to answer
all questions, willfully re-
fusing, punishment.

Person intentionally and
willfully making false
statement, etc., punish-
ment.

Ownersliip in other similar
associations.

Association sale for export
trade not a violation anti
port act.

All persons entitled to same
privileges as to inns, pub-
lic conveyances on land or
water.

Punishment for violation,
not permitting equal privi-
leges.

Offenses committed in Na-
tional parks, punishment.

Illegal for grantee to ac-
cept deed from Crow In-
dian, punishment.

Establishing eight hour a
day standard.

President to appoint com-
mission.

Pending report of connnis-
.sion the eight hour day not
reduced.

Punishment of violation.

Contractor or ofTiccr of U.
S. punished for violation
of U. S. labor provisions.

U. S. compensation law, aflfi-
davit.

Miscellaneous Offenses

901

§ 1167. Perjury to make false af-
fidavit for U. S., conspira-
tors.

§ 1168. An Act to create a Federal
power commission; to pro-
vide for the improvement
of navigation; the de-
velopment of water power;
the use of the public lands
in relation thereto, and to
repeal section 18 of the
river and harbor appro-
priation Act, approved
Aug. 8, 1917, and for
other purposes.

§ 1169. Dispute before labor board,
compelled to testify, no in-
crimination, except per-
jury.

§ 1170. U. S. officers converting
funds coming to their pos-
session, punishment.

§ 1171. Federal board vocational
education, discrimination
against industrial organi-
zations, etc., punishment.

§ 1172. Clerk in Treasury Depart-
ment carrying on business,
punishment.

§ 1173. Officers of the Treasury De-
partment engaging in busi-
ness.

§ 1174. Claims against the TJ. S.
prosecution of by officers,
etc., engaged since April
6, 1917, in procuring army
supplies, unlawful.

§ 1175. Federal deficiency act for
the fiscal year 1919, using
funds influencing congress-
men.

§ 1176. Joint resolution authorizing
the Secretary of War to
issue permits for the di-
version of water from the
Niagara river, punishment
for illegal use.

§ 1177. Amending section 2138, Ee-
vised Statute of the U. S.
Indian appropriation act.

§ 1178. Title III of the War Finance
Corporation Act, Apr. 5,
1918, general penalties.

§ 1179. Contracts made with secre-
tary of war, navy and in-
terior must be in writing.

§ 1180. Any person other than the
one to whom a certificate
was issued, who falsely
presents such certificate is
guilty of a misdemeanor.

§ 1181. Offenses under Act Jan. 16,
1883, relating to civil serv-
ice.

§ 1182. To receive greater fee than
allowed by sections 6 to
15 Act May 28, 1896, by
officer, illegal, penalty.

§ 1183. Tax on cotton sale.

§ 1184. Penalty under State law act
Aug. 11, 1916, cotton
future act.

§ 1185. Incriminating testimony un-
der cotton future act.

§ 1186. Additional punishment under
Act Aug. 11, 1916, cotton
act.

§ 1187. Punishment for Act Aug.
11, 1916, cotton future
act.

§ 1188. Unlawful to export white
phosphorus matches.

§ 1189. Sec. 3744, Kevised statutes
U. S.

§ 1190. The provision of lease shall
not apply to lands.

§ 1191. Return of officer must be
sworn to before officer,
form of affidavit.

§ 1192. Failure to make return by
U. S. officer, penalty.

§ 1193. Public printer is accountable
for all materials received

902

Ckuminal Law

for public use, penalty for
failure.

§ 1194. Public printer defrauding § 1204.
the Government.

§ 1195. Opening or tapping water § 1205.
mains of the U. S. water
supply, subject to prosecu-
tion. § 1206.

§ 1196. Maliciously breaking or de-
stroying Gov't watermains § 1207.
or pipes, punishment.

§ 1197. Maliciously causing water
supply in cities of Wash-
ington and Georgetown to § 1208.
become impure.

§ 1198. Violation Act Aug. 24, 1912,

regulating furbearing ani- ' § 1209.
mals, punishment, jurisdic- § 1210.
tion.

§ 1199. Violating provision of Act § 1211.
Oct. 6, 1917, 40 Stat. 388.

§ 1200. Marshal failing to serve
- warrant on person charged

with violating civil rights
act. § 1212.

§ 1201. Duties of clerk of U. S.
courts, etc., removed from
office, penalty.

§ 1202. Failure of clerk to perform § 1213.
duties as provided by Act
Feb. 22, 1875.

§ 1203. Tax on decedents' estates.

what is person, what is ex-
ecutor, etc.

The executor must file re-
turn within thirty days.

Act Sept. 8, 1916, knowingly
making false returns of
decedent's estate tax.

The tax imposed in the de-
cedent's estates.

Under the bankruptcy act
of July 1, 1898, the fol-
lowing acts are punish-
able.

Prohibition against import-
ing adulterated seeds, pun-
ishment.

Wh.it is adulterated seed.

Punishment under Act Aug.
24, 1912.

Salt pork to be inspected
for transportation, pack-
ages must be marked, pun-
ishment for forging marks,
etc.

Act Feb. 21, 1905, relating
to stamping ' * United
States assay" unlawfully,
punishment for violation.

Act June 13, 1906, relating
to dealer in gold and sil-
ver ware, punislnncnt for
violation.

§ 1140. Licenses for collecting foreign coupons, etc.
Punishment. All pcr.sous, corporations, ])ariiiersliips, or
a.ssociatioiis, undertaking as a matter of l)usiiiess or for
profit tlie collccl ion of forciu:!! payments of iiiien^st or
dividends by means of ('()ui)oiis, checks, or }»ill of ex-
cliange sliall ohtMiii ;i license from the Commissioner of
Internal Kevenue, and shnll be subject to such regula-
tions enabling the government to obtain the infonnation
refpiii-ed under this title, as the Commissioner of Inleriud
Kevenue, wilh the approval of the Secretaiy of the Treas-

Miscellaneous Offenses 903

ury, shall prescribe ; and whoever knowingly undertakes
to collect such payments as aforesaid without having
obtained a license therefor, or without complying with
such regulations, shall be deemed guilty of a misdemeanor
and for each offense be fined in a sum not exceeding
$5,000, or imprisond for a term not exceeding one year,
or both, in the discretion of the court.^

§ 1141. Concealing property on boundary betwe3n
United States and foreign country— Punishment. Any
person who shall have received or deposited in a build-
ing upon the boundary line between the United States
and any foreign country, or carried through the same, any
merchandise, or shall have aided therein, in violation of
law, shall be punishable by a fine of not more than ten
thousand dollars, or by imprisonment for not more than
two years, or by botli.^

§ 1142. Bribing voter in senatorial and representative
elections. Whoever shall provide, offer, or give, or cause
to be promised, offered or given, any money or other
thing of value, or shall make or tender any contract,
undertaking, obligation, gratuity, or security for the
payment of money or for the delivery or conveyance of
anything of value to any person, either to vote or with-
hold his vote or to vote for or against any candidate, or
whoever solicits, accepts, or receives any money or other
thing of value in consideration of his vote for or against
any candidate for senator or representative or delegate
in Congress at any primary or general or special elec-
tion, shall be fined not more than $1,000, or imprisoned
not more than one year, or both.*

1— Sec. 1205, Oct. 3, 1917, 40 3—40 Stat, at Large, Act Oct. 16,

Stat. 333. 1918.

2—13 Stat. 442, Act Feb. 28,
1865.

904 Criminal Law

§ 1143. Congressional elections — Punishment for des-
ignated corrupt practices at primary, general, or special
elections. Be it enacted by the Senate and House of Rep-
resentatives of the United States of America in Congress
assembled, That whoever shall promise, offer, or give, or
cause to be promised, offered, or given, any money or
other thing of value, or shall make or tender any con-
tract, undertaking, obligation, gratuity, or security for
the payment of money or for the delivery or conveyance
of anything of value to any person, either to vote or with-
hold his vote or to vote for or against any candidate, or
whoever solicits, accepts, or received any money or other
thing of value in consideration of his vote for or against
any candidate for Senator or Representative or Delegate
in Congress at any primary or general or special election,
shall be fined not more than $1,000 or imprisonment not
more than one year, or both.*

§ 1144. Accepting fee for filing soldier homestead en-
tries — Punishment. No relinquishment of any public
land ontiy made under and by authority of section eight
of the Act of Sixty-fifth Congress, second session, en-
titled **An Act amending the Act entitled 'An Act to
authorize the President to increase temporarily the Mil-
itary Establishment of the United States,' " approved
May eighteenth, nienteen hundred and seventeen, shall
be valid or effective foi* any purpose unless executed
after the entrymaii sli.-ill have actually resided upon and
cultivated the land, in the case of a homestead entry, for
at least six months, and in the case of an entry made
under otlier than tlie lioniestead laws, aftei' llie entiy-
man sliall liave complied witli the provisions of tlie ap-
jjlicable law for at least one year.

Any person, linn, or corporation soliciting or dealing
with the relinquishment of such claim or entry prior to

4— Sec. 1, Oct. IG, 1918, 40 Stat.
1013.

Miscellaneous Offenses 905

tlie completion of compliance with the applicable law and
with this resolution, and who or which solicits, demands,
or receives or accepts any fee or compensation for locat-
ing filing, or securing the claims or entries for persons
entitled to the benefits of said section shall, upon con-
viction, be fined not to exceed $1,000 or imprisonment for
not exceeding two years, or both.^

§ 1145. Entrapping Antwerp or homing pigeon — Pun-
ishment. Be it enacted by the Senate and House of Rep-
resentatives of the United States of America in Congress
assembled, That it be, and it hereby is, declared to be
unlawful to knowingly entrap, capture, shoot, kill, pos-
sess, or in any way detain an Antwei*p, or homing pigeon,
commonly called carrier pigeon, which is owned by the
United States or bears a band owned and issued by the
United States having thereon the letters *'U. S. A." or
''U. S. N." and a serial number.^

§ 1146. Detention, etc. — Evidence of violation. That
the possession or detention of any pigeon described in
section one of this Act [Sec. 1145] by any person or per-
sons in any loft, house, cage, building, or structure in the
ownership or under the control of such person or persons
without giving immediate notice by registered mail to the
nearest military or naval authorities, shall be prima facie
evidence of a violation of this Act."'

§ 1147. Punishment. That any person violating the
provisions of this Act shall, upon conviction, be pun-
ished by a fine or not more than $100, or by imprisonment
for not more than six months, or by both such fine and
imprisonment.^

5—40 Stat, at Large, Act Sept. 7— Sec. 2, Act Apr, 10, 1918, 40

13, 1918. Stat. 533.

6— Sec. 1, Act Apr. 19, 1918, 40 8— Sec. 3, Act Apr. 19, 1918, 40

Stat. 533. Stat. 533.

906 Criminal Law

family allowance

§ 1148. Accepting- allowance after the right has ceased
— Punishment. If any person entitled to payment of
family allowance or compensation under this Act (Oct.
6, 1917), whose right to such payment under this Act
ceases upon the happening of any contingency, there-
after fraudulently accepts any such payment, he shall be
punished by a fine of not more than $2,000 or by imprison-
ment for not more than one year, or both.®

§ 1149. Intent to defraud in securing- allotment. Who-
ever shall obtain or receive any money, check, allotment,
family allowance, compensation, or insurance under
Articles II, III, or IV of this Act (June 25, 1918), with-
out being entitled thereto, with intent to defraud the
United States or any person in the military or naval
forces of the United States, shall be punished by a fine
of not more than $2,000, or by imprisonment for not
more than one year, or both. ^°

§ 1150. Knowing-ly making false statement for family
allowance — Perjury. AVhoever in any claim for family
allowance, compensation, or insurance, or in any docu-
ment required by this Act (Oct. 6, 1917), or by regulation
made under tliis Act, makes any statement of a material
faf't knowing it to be false, shall be guilty of perjury and
shall be punished by a fine of not more than $5,000, or by
imprisonment for not more than two years, or both."

{^ 1151. Ten per cent allowed attorney fee — War risk
insurance — Punishment for. Tlmi in ilic event of a dis-
agreement as to a claim under the contract of insurance
between the bureau of insurance and any beneficiary or

9—40 Stat, at Largo 402, Act 11—40 Stat, at Largo 402, Act

Act. 6, 1917. Oct. fi, 1917.

10 — 40 State at Large, Act .luno
2.5, 1918.

Miscellaneous Offenses 907

beneficiaries thereunder, an action on the claim may be
brought against the United States in the District Court
of the United States in and for the district in which such
beneficiaries or any one of them resides. The court, as
part of its judgment, shall determine and allow such rea-
sonable attorney's fees, not to exceed ten percentum of
the amount recovered, to be paid by the claimant on
behalf of whom such proceedings are instituted to his at-
torney; and it shall be unlawful for the attorney or for
any other person acting as claim agent or otherwise to
ask for, contract for, or receive any other compensation
because of such action. No other compensation or fee
shall be charged or received by any person except such
as may be authorized by the commissioner in regulations
to be promulgated by him. Any person violating the pro-
visions of this section shall be deemed guilty of a misde-
meanor, and upon conviction thereof shall, for each and
every such offense, be fined not exceeding $500, or be im-
prisoned at hard labor not exceeding two years, or both,
in the discretion of the court.^^

§ 1152. Act relating to pensions — Illegal attorneys' fee
— Punishment. That no claim agent or attorney or other
person shall be recognized in the adjustment of claims
under this act (Act May 1, 1920), except in claims for
original pension, and in such cases no more than the sum
of $10 shall be allowed for services in preparing, present-
ing, or prosecuting any such claim, which sum shall be
payable only on the order of the commissioner of pen-
sions; and any person who shall violate any of the pro-
visions of this section, or shall wrongfully withhold from
the pensioner or claimant the whole or any part of a
pension allowed or due to such pensioner or claimant
under this act, shall be deemed guilty of a misdemeanor,
and upon conviction thereof shall for each and eveiy of-

12— Sec. 405, Title IV, AeLQct.
6, 1917, 40 Stat. 410. V-^. i v.-

908 Criminal Law

fense, be fined not exceeding* $500 or be imprisoned not
exceeding one year, or both, in the discretion of the
court. ^^

COTTON

§ 1153. Dealers in cotton to answer all questions — .
Wilfully refusing — Punishment. That it shall be the
duty of any person engaged in the business of dealing in
cotton, when requested by the secretary of agriculture
or any agent acting under his instructions, to answer cor-
rectly to the best of his knowledge, under oath or other-
wise, all questions touching his knowledge of the number
of bales, the classification, the price or bona fide price
offered, and other terms of purchase or sale, of any cot-
ton involved in any transaction participated in by him,
or to produce all books, letters, papers, or documents in
his possession or under his control relating to such mat-
ter. Any such person who shall, within a reasonable time
prescribed by the secretary of agriculture or such agent,
wilfully fail or refuse to answer such questions or to pro-
duce such books, letters, papers, or documents, or who
shall wilfully give any answer that is false or mislead-
ing, shall be guilty of a misdemeanor, and upon convic-
tion thereof shall be punished by a fine not exceeding
$500.1*

§ 1154. Person intentionally and wilfully making false
statement, etc. — Punishment. That any person wlio in-
tentionally and knowingly makes any false statement or
representation to any officer, agent, or employee of the
United States engaged in the porfonnnncc of any duty
under this act (Act March 4, 11)19), or falsely represents
to any of said persons that the wheat he offers for sale
was grown as a part of the nineteen hundred and eighteen

13— Act May 1, 1920, 41 Stat. 14— Soc. 6, Act March 4, 1919, 40

588. Stat. 479.

Miscellaneous Offenses 909

or nineteen hundred and nineteen crops for the purpose
of securing any of the benefits of the aforesaid guaran-
ties, or any person who wilfully assaults, resists, impedes,
or interferes with any officer, agent, or employee of the
UnitecU States in the execution of any duty authorized to
be performed by or pursuant to this act, or any person
who intentionally and knowingly violates any regulation
issued pursuant to this act, except as otherwise made
punishable in this act, shall be deemed guilty of a misde-
meanor, and upon conviction thereof, shall be punished
by a fine not exceeding $1,000."

EXPOET

§ 1155. Ownership in other similar associations. Tliat
nothing contained in section 7 of the act entitled ' ' An act
to supplement existing laws against unlawful restraints
and monopolies, and for other purposes," approved Oc-
tober fifteenth, nineteen hundred and fourteen, shall be
construed to forbid the acquisition or ownership by any
corporation of the whole or any part of the stock or
other capital of any corporation organized solely for the
purpose of engaging in export trade, and actually en-
gaged solely in such export trade, unless the effect of
such acquisition or ownership may be to restrain trade
or substantially lessen competition within the United
States.i^

§ 1156. Association sale for export trade not a violation
anti port act. That nothing contained in the act entitled
*'An act to protect trade and commerce against unlawful
restraints and monopolies," approved July second, eight-
een hundred and ninety, shall be construed as declaring
to be illegal an association entered into for the sole pur-
pose of engaging in export trade and actually engaged

15_Sec. 7, March 4, 1919, 40 16— Sec. 3, 40 Stat. 517, Act Apr.
Stat. 1352. 10, 1918.

910 Ceiminal Law

solely in such export trade, or an agreement made or act
done in the course of export trade by such association,
provided such association, agreement, or act is not in
restraint of trade within the United States, and is not in
restraint of the export trade of any domestic competitor
of such association. And provided further. That such
association does not, either in the United States or else-
where, enter into any agreement, understanding, or con-
spiracy, or do any act which artificially or intentionally
enhances or depresses prices within the United States of
commodities of the class exported by such association, or
which substantially lessens competition within the United
States or otherwise restrains trade therein."

CIVIL EIGHTS

§ 1157. All persons entitled to same privileges as to
inns, public conveyances on land or water. All persons
within the jurisdiction of the United States shall be en-
titled to the full and equal enjoyment of the accommoda-
tions, advantages, facilities, and privileges of inns, public
convevances on land or water, theaters, and other places
of public amusement; subject only to the conditions and
limitations established by law, and applicable alike to
citizens of eveiy race and color; regardless of any pre-
vious condition of servitude."

§ 1158. All persons enjoying equal privileges as to inns
and conveyances — Punishment for violation. That any
person who shall violate the foregoing section [Sec.
1157] by denying to ;iiiy citizen, except for reasons by
law a[)plica])k' to citizens of every race and color, and
rogardlf'ss of any previous condition of servitude, and
full enjoyment of any of the accommodations, advan-

17_Scc. 2, Apr. 10, 1918, 40 18— Act March 1, 1875, Sec. 1, 18

Stat. 517. Stat. 335.

Miscellaneous Offenses 911

tages, facilities, or privileges in said section enumerated,
or by aiding or inciting such denial, shall, for every
such offense, forfeit and pay the sum of five hundred
dollars to the person aggrieved thereby, to be recovered
in an action of debt, with full costs; and shall also, for
every such offense, be deemed guilty of a misdemeanor,
and, upon conviction thereof, shall be fined not less than
five hundred nor more than one thousand dollars, or
shall be imprisoned not less than thirty days nor more
than one year: Provided, That all persons may elect to
sue for the penalty aforesaid or to proceed under their
rights at common law and by state statutes; and having
so elected to proceed in the one mode or the other; their
right to proceed in the other jurisdiction shall be barred.
But this proviso shall not apply to criminal proceedings,
either under this act or the criminal law of any state:
And provided further. That a judgment for the penalty in
favor of the party aggrieved, or a judgment upon an
indictment, shall be a bar to either prosecution respec-
tively."

§ 1159. Offenses committed in national parks — Punish-
ment. Sec. 4. That if any offense shall be committed in
the Yosemite National Park, Sequoia National Park, Gen-
eral Grant National Park, or either of them, which of-
fense is not prohibited or the punishment is not specifi-
cally provided for by any law of the United States, the of-
fender shall be subject to the same punishment as the
laws of the state of California in force at the time of the
commission of the offense may provide for a like offense
in said state ; and no subsequent repeal of any such- law of
the state of California shall affect any prosecution for
said offense committed within said parks, or either of
them.

19— Act March 1, 1875, Sec. 2,
18 Stat. 336.

912 Ckiminal Law

Sec. 5. That all hunting or the killing, wounding, or
capturing at any time of any wild bird or animal, except
dangerous animals, when it is necessaiy to prevent them
from destroying human lives or inflicting personal injury,
is prohibited within the limits of said parks; or shall any
fish be taken out of any of the waters of the said parks,
or either of them, in any other way than by hook and line,
and then only at such seasons and such times and manner
as may be directed by the secretary of the interior. That
the secretary of the interior shall make and publish such
general rules and regulations as he may deem necessary
and proper for the management and care of the park and
for the protection of the property therein, especially for
the preservation from injuiy or spoliation of all timber,
mineral deposits other than those legally located prior
to the passage of the respective acts creating and estab-
lishing said parks, natural curiosities or wonderful ob-
jects within said parks, and for the protection of the
animals in the park from capture or destruction, and
to prevent their being frightened or driven from the
said parks; and he shall make rules and regulations gov-
erning the taking of fish from the streams or lakes in the
said parks or either of them. Possession within said
parks, or either of them, of the dead bodies or any part
thereof of any wild bird or animal shall be- prima facie
evidence that person or persons having same are guilty
of violating this act. Any person or persons, or stage or
express company, or railway company, who knows or has
reason to believe tliat they were taken or killed contrary
to the provisions of this act, and who receives for trans-
portation any of said animals, birds, or fish so killed,
caught, or taken, or who shall violate any of the other
])rovisi()ns of this act, or any rule or regulation that may
be inomulgated by the secretary of the interior, with ref-
erence to the management and care of the said parks, or
either of tliem, or for the protection of the ])roperty
therein for the preservation from injury or spoliation of

Miscellaneous Offenses 913

timber, mineral deposits, other than those legally located
prior to the passage of the respective acts creating and
establishing said parks, natural curiosities, or wonderful
objects within said parks, or either of them, or for the
protection of the animals, birds, or fish in the said parks,
or either of them, or who shall within said parks commit
any damage, injury spoliation to or upon any building,
fence, hedge, gate, guide post, tree, wood, undenvood,
timber, garden, crops, vegetables, plants, land, springs,
mineral deposits other than those legally located prior to
the passage of the respective acts creating and estab-
lishing said parks, natural curiosities, or other matter
or thing growing or being thereon, or situated therein,
shall be subject to the penalty provided for the violation
of rules and regulations of the secretary of the interior
authorized by Section 3 of the act of congress approved
August 25, 1916 (Thirty-ninth Statutes, page 535), en-
titled, ''An act to establish a National Park Service, and
for other purposes, which section is hereby amended by
striking therefrom the words ' ' and any violations of any
of the rules and regulations authorized by this act shall
be punished as provided for in section 50 of the act en-
titled 'An act to codify and amend the Penal Laws of the
United States,' approved March 4, 1909, as amended by
section 6 of the act of June 25, 1910 (Thirty-sixth United
States Statutes at Large, page 857)," and inserting in
lieu thereof the words "and any violation of any of the
rules and regulations authorized by this act shall be pun-
ished by a fine of not more than $500 or imprisonment for
not exceeding six months or both, and be adjudged to pay
all cost of the proceedings": Provided, That nothing
herein shall be construed as repealing or in any way mod-
ifying the authority granted the secretaiy of the interior
by said section 3 of the said act approved August 25,
1916, to sell or dispose of timber in national parks in
those cases where, in his judgment, the cutting of such
timber is required in order to control the attacks of in-
c. L.— 58

914 Ceiminal Law

sects or diseases or otherwise conserve the scenery of the
natural or historic objects in such parks and to provide
for the destruction of such animals and such plant life as
may be detrimental to the use of said parks, or the au-
thority granted to said secretaiy by the act approved
April 9, 1912, entitled ''An act to authorize the secretary
of the interior to secure for the United States title to
patented lands in the Yosemite National Park, and for
other purposes, ' ' as amended by the act approved April
16, 1914.20

§ 1160. Illegal for grantee to accept deed from Crow
Indian — Punishment. Sec. 2. No conveyance of land by
any Crow Indian shall be authorized or approved by the
Secretary of the Interior to any person, company, or cor-
poration who owns at least six hundred and forty acres
of agricultural or one thousand two hundred and eighty
acres of grazing land within the present boundaries of the
Crow Indian Reservation, nor to any person who, with the
land to be acquired by such conveyance, would become the
owner of more than one thousand two hundred and eighty
acres of agricultural or one thousand nine hundred and
twenty acres of grazing land within said reservation.
Any conveyance by any such Indian made cither directly
or indirectly to any such person, company, or corporation
of any laud within said reservation as the same now
exists, whether held by trust patent or by patent in fee
shall be void and the grantee accepting the same shall
be guilty of ;i misdonicaiioi- and be punished by a line
of not more lliaii $;"),()()() or imprisonment not more than
six months or ])y both such fine and imprisonment.

The classification of the lands of sucli roservalion for
the })urpose of allot incnt thereof shall be made as pro-
vided in the act of congress approved June 25, 1910
(Thirty sixth Statutes at Large, page 859), which classi-

20— Act Juno 2, 1920, 41 Stat.
731.

Miscellaneous Offenses 915

iication with any heretofore made by authority of law
as to lands heretofore allotted shall be conclusive, for
the purposes of this section, as to the character of the
land involved.^^

LABOR

§ 1161. Establishing eight hour a day standard. That
beginning- January first, nineteen hundred and seventeen,
eight hours shall, in contracts for labor and service, be
deemed a day's work and the measure or standard of a
day's work for the purpose of reckoning the compensa-
tion for services of all employees who are now or may
hereafter be employed by any common carrier by rail-
road, except railroads independently owned and operated
not exceeding one hundred miles in length, electric street
railroads, and electric interurban railroads, which is sub-
ject to the provisions of the act of February fourth,
eighteen hundred and eighty-seven, entitled *'An act to
regulate commerce," as amended, and who are now or
may hereafter be actually engaged in any capacity in the
operation of trains used for the transportation of persons
or property on railroads, except railroads independently
owned and operated and not exceeding one hundred miles
in length, electric street railroads, and electric interurban
railroads, from any state or territory of the United
States or the District of Columbia to any other state or
territory of the United States or the District of Colum-
bia, or from one place in a territory to another place in
the same territory, or from any place in the United
States to an adjacent foreign country, or from any place
in the United States through a foreign countrj' to any
other place in the United States: Provided, That the
above exception shall not apply to railroads through less
than one hundred miles in length whose principal busi-

21— Act June 4, 1920, 41 Stat.
752.

916 Criminal Law

ness is leasing or furnishing terminal or transfer facilities
to other railroads, or are themselves engaged in the trans-
fers of freight between railroads or between railroads
and industrial plants.^''

§ 1162. President to appoint commission. The Presi-
dent shall appoint a commission of three, which shall
observe the operation and effects of the institution of the
eight-hour standard ^vorkday as above defined and the
facts and conditions affecting the relations between such
common earners and employees during a period of not
less than six months nor more than nine months, in the
discretion of the commission, and within thirty days
thereafter such commission shall report its findings to the
President and congress; that each member of the com-
mission created under the provisions of this act shall
receive such compensation as may be fixed by the Presi-
dent. That the sum of $25,000, or so much thereof as
may be necessary, be, and hereby is, appropriated, for
the necessary and proper expenses incurred in connection
with the work of such commission, including salaries, per
diem, traveling expenses of members and employees, and
rent, furniture, office fixtures and supplies, books, sal-
aries, and other necessary expenses, the same to be ap-
proved by the chairman of said commission and audited
by the proper accounting officers of the treasury.^*

§ 1163. Pending report of commission the eight hour
a day not reduced, l^cnding the report of the commission
lierein ])rovided for and for a period of tliirty days thore-
afler tlie compensation of inilway eni])loyees subject to
tliis act for a standard eigiit liour workday shall not be
reduced below tlic present standard day's wage, and for
all necessary time in excess of eight hours such em-

22—39 Stat. 721, Sec. 1, Act. Sept. 23—39 St.if. at Large 722, Sec.

3, 5, 1916. 1, Act Sept. :i, H, 11) 10.

Miscellaneous Offenses 917

ployees shall be paid at a rate not less than the pro rata
rate for such standard eight hour workday."*

§ 1164. Punishment of violation. Any person violating
any provision of this act shall be guilty of a misdemeanor
and upon conviction shall be fined not less than $100 and
not more than $1,000, or imprisoned not to exceed one
year, or both."^

§ 1165. Contractor or officer of U. S. punished for vio-
lation of United States labor provisions. Any officer or
agent of the government of the United States or of the
District of Columbia, or any contractor or subcontractor
whose duty it shall be to employ, direct or control any
laborer or mechanic employed upon a public work of the
United States or of the District of Columbia, or any per-
son employed to perform services similar to those of la-
borers and mechanics in connection with dredging or
rock excavation in any river or harbor of the United
States or of the District of Columbia, who shall inten-
tionally violate any provision of this act, shall be deemed
guilty of a misdemeanor, and for each and every such of-
fense shall, upon conviction, be punished by a fine not to
exceed one thousand dollars, or by imprisonment for not
more than six months, or by both such fine and imprison-
ment, in the discretion of the court having jurisdiction
thereof."^

§ 1166. U. S. compensation law — Affidavit. During the
first three days of disability the employee shall not be
entitled to compensation except as provided in section
nine. No compensation shall at any time be paid for such
period."''

24—39 Stat, at Large 722, Sec. 26— Sec. 2, Act March 3, 1913, 37

3, Act Sept. 3, 5, 1916. Stat, at Large 726.

25—39 Stat, at Large 722, Sec. 27— Act Sept. 7, 1916, Sec. 2, 39

4, Act Sept. 3, 5, 1916. Stat. 743.

918 Criminal Law

§ 1167. Perjury to make false affidavit for U. S. — Con-
spirators. "Whoever makes, in any affidavit required un-
der section four or in any claim for compensation, any
statement, knowing it to be false, shall be guilty of per-
jury and shall be punished by a fine of not more than
$2,000, or by imprisonment for not more than one year, or
by both such fine and imprisonment.^^

§ 1168. An act to create a Federal Power Commission;
to provide for the improvement of navigation; the devel-
opment of water power; the use of the public lands in
relation thereto, and to repeal section 18 of the river
and harbor appropriation act, approved August 8, 1917,
and for other purposes, (f ) To prescribe rules and reg-
ulations for the establishment of a system of accounts and
for the maintenance thereof by licensees hereunder; to
examine all books and accounts of such licensees at any
time; to require them to submit at such time or times as
the commission may require statements and reports, in-
cluding full information as to assets and liabilities, cap-
italization, net investment and reduction thereof, gross
receipts, interest due and paid, depreciation and other
reserv^es, cost of project, cost of maintenance and opera-
tion of the project, cost of renewals and replacements
of the project works, and as to depreciation of llic luoj-
ect works and as to production, transmission, use and
sale of power; also to require any licensee to make ade-
quate provision for currently determining said costs and
other facts. All such statements mid reports shall be
made upon oath, unless otherwise specified, niid in such
form and on sucli blanks as the commission may require.
Any person who, for the purpose of deceiving, makes or
causes to bo made any false entry in llie books or the
accounts of such licensee, and any person who, for the
purpose of deceiving makes or causes to be made any

28— Act Sept. 7, 1916, Soc. 39,
39 Stat. 749.

Miscellaneous Offenses 919

false statement or report in response to a request or
order or direction from the commission for the state-
ments and report herein referred to shall, upon convic-
tion, be fined not more than $2,000 or imprisoned not
more than five years, or both.^^

§ 1169. Dispute before labor board— Compelled to tes-
tify—No incrimination, except perjury. Sec. 309. Any
party to any dispute to be considered by an Adjustment
Board or by the Labor Board shall be entitled to a hear-
ing either in person or by counsel.

Sec. 310. (a) For the efficient administration of the
functions vested in the Labor Board by this title, any
member thereof may require, by subpoena issued and
signed by himself, the attendance of any witness and the
production of any book, paper, document, or other evi-
dence from any place in the United States at any desig-
nated place of hearing, and the taking of a deposition
before any designated person having power to admin-
ister oaths. In the case of a deposition the testimony
shall be reduced to writing by the person taking the
deposition or under his direction, and shall then be sub-
scribed to by the deponent. Any member of the Labor
Board may administer oaths and examine any witness.
Any witness summoned before the board and any wit-
ness whose deposition is taken shall be paid the same
fees and mileage as are paid witnesses in the courts of
the United States.

(b) In case of failure to comply with any subpoena
or in case of the contumacy of any witness appearing
before the Labor Board, the board may invoke the aid of
any United States District Court. Such court may there-
upon order the witness to comply with the requirements
of such subpoena, or to give evidence touching the mat-
ter in question, as the case may be. Any failure to obey

29 — Paragraph (f) of Section 4,
Act of June 10, 1920, 41 Stat. 1066.

920 Criminal Law

such order may be punished by such court as a contempt
thereof.

(c) No person shall be excused from so attending and
testifying or deposing, nor from so producing any book,
paper, document, or other evidence on the ground that
the testimony or evidence, documentary or otherwise,
required of him may tend to incriminate him or subject
him to a penalty or forfeiture; but no natural person shall
be prosecuted or subjected to any penalty or forfeiture
for or on account of any transaction, matter, or thing,
as to which in obedience to a subpoena and under oath,
he may so testify or produce evidence, documentary or
otherwise. But no person shall be exempt from prosecu-
tion and punishment for perjury committed in so testi-

fying.^''

OFFICERS AND EMPLOYEES

§ 1170. United States officers converting funds coming
to their possession — Punishment. Be it Enacted by the
Senate and House of Kepresentativcs of the United States
of America in Congress Assembled, That any United
States marshal, clerk, receiver, referee, trustee, or other
oflicer of a United States court, or any deputy, assistant,
or employee of any sucli marshal, clerk, receiver, referee,
trustee, or other oflicer who shall, after demand by the
party entitled thereto, unlawfully retain or wlio shall
convert to liis own use or to the use of another any
moneys received for on account of costs or jidvance de-
posits to cover fees, expenses, or costs, deposits for foes
or expenses in bankruptcy cases, composition funds or
money of ])aiikni])t estates, fees in naturalization mat-
ters, or any other money whatever which has come into
his hands by virtue of his oflicial relation or by the fact

.30— Act March 1, 1920, 41 Stat.
472.

Miscellaneous Offenses 921

of his official position or employment shall be deemed
guilty of embezzlement and shall, where the offense is
not otherwise punishable by some statute of the United
States, be fined not more than double the value of the
money thus retained or converted, or imprisoned not
more than ten years, or both ; and it shall not be a defense
in such case that the accused person had an interest, con-
tingent or otherwise, in some part of such moneys or of
the fund from which they were retained or converted.^^

§ 1171. Federal board vocational education — Discrimi-
nation against industrial organizations, etc. — Punish-
ment. Sec. 7. That the Federal Board for Vocational
Education is hereby authorized and empowered to receive
such gifts and donations from either public or private
sources as may be offered unconditionally. All moneys
received as gifts or donations shall be paid into the
treasury of the United States, and shall constitute a per-
manent fund, to be called the ''Special fund for voca-
tional rehabilitation of disabled persons," to be used
under the direction of the said board to defray the ex-
penses of providing and maintaining courses of voca-
tional rehabilitation in special cases, including the pay-
ment of necessary expenses of persons undergoing train-
ing. A full report of all gifts and donations offered and
accepted, together with the names of the donors and the
respective amounts contributed by each, and all disburse-
ments therefrom shall be submitted annually to congress
by said board: Provided, That no discrimination shall
be made or permitted for or against any person or per-
sons who are entitled to the benefits of this act because
of membership or nonmembership in any industrial, fra-
ternal, or private organization of any kind under a pen-
alty of $200 for every violation thereof.^^

31— Approved May 29, 1920, 41 32— Approved June 2, 1920, 41

Stat. 630. Stat. 737.

922 Ceiminal Law

§ 1172. Clerk in Treasury Department carrying on
business — Punishment. Every clerk employed in the
Treasury Department who carries on anj^ trade or busi-
ness in the funds or debts of the United States, or of any
state, or in any kind of public property, or who takes or
applies to his owni use any emolument or gain for nego-
tiating or transacting any business in the department,
shall be deemed guilty of a misdemeanor, and punished
by a fine of five hundred dollars and removal from of-
fice.^^

§ 1173. Officers of the Treasury Department engaging-
in business. No person appointed to the office of secre-
tary of the treasury, or first comptroller, or first auditor,
or treasurer, or register, shall directly or indirectly be
concerned or interested in carrying on the business of
trade or connnerce, or be owner in whole or in part of any
sea-vessel, or purchase by himself, or another in trust for
him, any public lands or other public property, or be
concerned in the purchase or disposal of any public
securities of any state, or of the United States, or take
or apply to his own use any emolument or gain for nego-
tiating or transacting any business in the Treasuiy De-
partment, other than what shall be allowed by law; and
every person who shall ofl'ond agaiust any of the prohibi-
tions of this section shall be deemed guilty of a high mis-
demeanor and forfeit to the United States the penalty
of three thousand dolhirs, and shall upon conviction be
removed from office, and forever thereafter be incapable
of holding any office under the United States; and if any
otlier person than a ])ublic prosecutor shall give infor-
mation of any sndi olTcnso, upon which a prosecution and
conviction shall he liad, oiic liiilt' tiie aforesaid penalty of
three thousand dollars, when recovered, shall be for the
use of the person giving such information.^*

33— Act March 3, 1791, 1 Stat. 34— Act Sept. 2, 1789, 1 Stat.

281, R. 8. 244. 67, R. S. 243.

Miscellaneous Oeeenses 923

§ 1174. Claims against the United States— Prosecution
of by officers, etc., engaged since April 6, 1917, in procur-
ing army supplies, unlawful. Prosecution of claims by
former government employes: That it shall be unlawful
for any person who, as a commissioned officer of the army,
or officer or employee of the United States, has at any
time since April 6, 1917, been employed in any bureau of
the government and in such employment been engaged
on behalf of the United States in procuring or assisting
to procure supplies for the military establishment, or who
has been engaged in the settlement or adjustment of con-
tracts or agreements for the procurement of supplies for
the military establishment, within two years next after
his discharge or other separation from the service of the
government, to solicit employment in the presentation
or to aid or assist for compensation in the prosecution
of claims against the United States arising out of any
contracts or agreements for the procurement of supplies
for said bureau, which were pending or entered into
while the said officer or employee was associated there-
with. A violation of this provision of this chapter shall
be punished by a fine of not more than $10,000 or impris-
onment for not more than one year, or both : Provided,
That all acts or parts of acts inconsistent with any of the
provisions of this act are hereby repealed.^^

§ 1175. Federal deficiency act for the fiscal year 1919,
using funds influencing congressmen. That hereafter no
part of the money appropriated by this or any other act
shall, in the absence of express authorization by congress,
be used directly or indirectly to pay for any personal
service, advertisement, telegram, telephone, letter,
printed or written matter, or other device, intended or
designed to influence in any manner a member of con-
gress to favor or oppose, by vote or otherwise, any legis-

35 — Part of Chapter IV, approved
July 11, 1919, 41 Stat. 131.

924 Ckiminal. Law

lation or appropriation by congress, whether before or
after the introduction of any bill or resolution propos-
ing such legislation or appropriation; but this shall not
prevent officers and employees of the United States from
communicating to members of congress on the request of
any member or to congress, through the proper official
channels, requests for legislation or appropriations which
they deem necessary for the efficient conduct of the pub-
lic business.

Any officer or employee of the United States who, after
notice and hearing by the superior officer vested with
the power of removing him, is found to have violated or
attempted to violate this section, shall be removed by
such superior officer from office or employment. Any
officer or employee of the United States who violates
or attempts to violate this section shall also be guilty
of a misdemeanor and on conviction thereof shall be pun-
ished by a fine of not more than $500 or by imprisonment
for not more than one year, or both.

That this act hereafter may be referred to as the
"Third Deficiency Appropriation Act, fiscal year
1919. "36

§ 1176. Joint resolution authorizing- the Secretary of
War to issue permits for the diversion of water from the
Niagara River — Punishment for illegal use. Resolved
by the senate and house of representatives of the United
States of America in congress assembled. That the Sec-
retary of War be, and lu' is hereby, authorized to issue
permits, revocable at will, for the diversion of water in
the United States from the Niagara ]liver above the
Falls for the creation of j)()Wor to individuals, companies,
or coi7)orations wliicli .'ire now actually producing power
from the waters of said river, in quantities which in no
event shall exceed in llie aggregate a daily diversion at

36— Sec. C, Act July 11, 1919, 41
Stat. 68.

Miscellaneous Offenses 925

the rate of twenty thousand cubic feet per second: Pro-
vided, That this resolution shall remain in force until
the 1st day of July, 1920, and no longer, at the expira-
tion of which time all permits granted hereunder shall
terminate, unless sooner revoked, or unless the Congress
shall before that date enact legislation regulating the
controlling the diversions of water from the Niagara
River, in which event this resolution shall cease to be
of any further force or effect.

Any individuals, companies, or corporations violating
any of the provisions of said permits, or diverting water
from said river above the Falls for the creation of power,
except under a permit issued under the authority of this
law, shall be guilty of a misdemeanor and be punished
by a fine not exceeding $2,000 nor less than $500, or by
imprisonment not exceeding one year nor less than thirty
days, or both in the discretion of the court; and each
and every day on w^hich such violation occurs or is com-
mitted shall be deemed a separate offense: Provided,
That where such violation is charged against the com-
pany or corporate body, the offense shall be taken and
deemed to be that of any director, officer, agent, or em-
ployee of such company or corporate body ordering,
directing, or permitting the same.^'

§ 1177. Amending section 2138 Revised Statute of the
U. S. — Indian appropriation act. That section 2138 of
the Revised Statutes of the United States is hereby
amended so as to read as follows: "That where re-
stricted Indians are in possession or control of live stock
purchased for or issued to them by the government, or
the increase therefrom, such stock shall not be sold,
transferred, mortgaged, or otherwise disposed of, except
with the consent in writing of the superintendent or
other officer in charge of the tribe to which the owner or

37 — Chapter 23, approved July 12,
1919, 41 Stat. 163.

926 Criminal Law

possessor of the live stock belongs, and all transactions
in violation of this provision shall be void. All such live
stock so purchased or issued and the increase therefrom
belonging to restricted Indians and grazed in the Indian
country shall be branded with the I D or reservation
brand of the jurisdiction to which the owners of such
stock belong, and shall not be removed from the Indian
countrj^ except with the consent in writing of the super-
intendent or other officer in charge of the tribe to which
the owner or possessor of such live stock belongs, or by
order of the Secretaiy of War, in connection with the
movement of troops. Every person who violates the pro-
visions of this section by selling or otherwise disposing
of such stock, purchasing, or othenvise acquiring an in-
terest therein, or by removing such stock from the Indian
country, shall be fined in any sum not more than $1,000,
or imprisoned for not more than six months, or both
such fine and imprisonment. " ^^ '

§ 1178. Title III of the War Finance Corporation Act,
April 5, 1918 — General penalties. Whoever wilfully vio-
lates any of the provisions of this act, except where a
different penalty is provided in this act, shall, upon con-
viction in any court of the United States of competent
jurisdiction, be fined not more than $10,000 or imprisoned
for not more than one year, or both; and whoever know-
ingly participates in any such violation, except where a
different penalty is provided in this act, shall be punished
by a like fine or ini])ris()]nnent, or l)oih.^^

§ 1179. Contracts made with Secretary of War, Navy
and Interior, must be in writing. 11 shall be the duty of
the Secretary of War, of the Secretary of the Navy, and
of the Secretary of the Interior, to cause and require
every contract made by them severally on behalf of the

38— Act June 30, 1919, 41 Stat. 39— Sec. 300, 40 Stat. 514.

9. (Indian Appropriation.)

Miscellaneous Offenses 927

government, or by their officers under them appointed
to make such contracts, to be reduced to writing, and
signed by the contracting parties with their names at
the end thereof; a copy of which shall be filed by the
officer making and signing the contract in the Returns
Office of the Department of the Interior, as soon after
the contract is made as possible, and within thirty days,
together with all bids, offers, and proposals to him made
by persons to obtain the same, and with a copy of any
advertisement he may have published inviting bids, of-
fers, or proposals for the same. All copies and papers
in relation to each contract shall be attached together
by a ribbon and seal, and marked by numbers in regular
order, according to the number of papers composing the
whole return. Provided, That the Secretary of War or
the Secretary of the Navy may extend the time for filing
such contracts in the returns office of the Department of
the Interior to ninety days whenever in their opinion it
would be to the interest of the United States to follow
such a course.*®

§ 1180. Any person other than the one to whom a cer-
tificate was issued, who falsely presents such certificate
is guilty of a misdemeanor. That any person who shall
knowingly and falsely alter or substitute any name for
the name written in any certificate herein required, or
forge such certificate, or knowingly utter any forged or
fraudulent certificate, or falsely personate any person
named in any such certificate, and any person other than
the one to whom a certificate was issued who shall falsely
present any such certificate, shall be deemed guilty of a
misdemeanor, and upon conviction thereof shall be fined
in a sum not exceeding one thousand dollars, and im-
prisoned in a penitentiary for a term of not more than
five years.'*^

40— Eev. Stat. 3744, amended Act 41— Sec. 11, Act Sept. 13, 1888,
June 15, 1917, 40 Stat. 198. 25 Stat. 478.

928 Criminal Law

§ 1181. Offenses under act January 16, 1883, relating
to civil service. Tliat any said commissioner, examiner,
copyist or messenger, or any person in the public service
who shall wilfully and corruptly, by himself or in co-
operation with one or more other persons, defeat, de-
ceive, or obstruct any person in respect of his or her
right of examination according to any such rules or regu-
lations, or who shall wilfully, corruptly and falsely
mark, grade, estimate, or report upon the examination
or proper standing of any person examined hereunder,
or aid in so doing, or who shall wilfully and corruptly
make any false representations concerning the same or
concerning the person examined, or who shall wilfully
and corruptly furnish to any person any special or secret
information for the purpose of either improving or in-
juring the prospects or chances of any person so exam-
ined, or to be examined, being appointed, employed, or
promoted, shall for each such offense be deemed guilty
of a misdemeanor, and upon conviction thereof, shall be
punished by a fine of not less than one hundred dollars,
nor more than one thousand dollars, or by imprisonment
not less than ten days nor more than one year, or by
both such fine and imprisonment.*^

§ 1182. To receive greater fee than allowed by sections
6 to 15, act May 28, 1896, by officer, illegal— Penalty.
That any officer whose compensation is fixed by sections
(') 1() 1.') inclusive, of this act who shall directly or indi-
rectly demand, receive, or accept any fee or compensa-
tion for the perfonuancc of any official service other than
is lierein provided, oi- shall wilfully fail or neglect to ac-
count for or pay over to the proper officer any fee received
or collected by him shall, upon conviction thereof, be
punished by a fine of not less than fifty dollars nor more
than five hundred dollars, or by imprisonment, at the

42— Soc. .'5, 22 Stat. 40.'3.

Miscellaneous Offenses 929

discretion of the court, not exceeding five years, or by
both such fine and imprisonment.*^

§ 1183. Tax on cotton sale. That upon each contract
of sale of any cotton for future delivery made at, on,
or in any exchange, board of trade, or similar institution
or place of business, there is hereby levied a tax in the
nature of an excise of 2 cents for each pound of the cotton
involved in any such contract.**

§ 1184. Penalty under state law act Aug. 11, 1916, cot-
ton future act. The payment of any tax levied by this
act shall not exempt any person from any penalty or pun-
ishment now or hereafter provided by the laws of any
state for entering into contracts of sale of cotton for
future deliveiy, nor shall the payment of any tax imposed
by this act be held to prohibit any state or municipality
from imposing a tax on the same transaction.*^

§ 1185. Incriminating' testimony under cotton future
act. That no person whose evidence is deemed material
by the officer prosecuting on behalf of the United States
in any case brought under any provision of this act shall
withhold his testimony because of complicity by him in
any violation of this act or of any regulation made pur-
suant to this act but any such person called by such of-
ficer who testifies in such case shall be exempt from
prosecution for any offense to which his testimony re-
lates.*«

§ 1186. Additional punishment under act Aug. 11, 1916
— Cotton act. That in addition to the foregoing punish-
ment there is hereby imposed, on account of each viola-

43 — Note the officers referred are 45 — Sec. 17, 39 Stat. 481.

United States District Attorney and 46— Sec. 16, 39 Stat. 481, Act

United States Marshals. Aug. 11, 1916.

44— Sec. 3, Act Aug. 11, 1916, 39
Stat. 476.

C. L.— 59

930 Crimixal Law

tion of this act, a penalty of $2,000, to be recovered in an
action founded on this act in the name of the United
States as plaintiff, and when so recovered one-half of
said amount shall be paid over to the person giving the
information upon which such recovery was based. It
shall be the duty of the United States attorneys, to whom
satisfactoiy evidence of violations of this act is fur-
nished, to institute and prosecute actions for the recovery
of the penalties prescribed by this section.'*'

§ 1187. Punishment for act Aug. 11, 1916— Cotton Fu-
ture Act. That any person liable ta the payment of any
tax imposed by this act who fails to pay, or evades or
attempts to evade the payment of such tax, and any per-
son who othenvise violates any provision of this act, or
any rule or regulation made in pursuance hereof, shall
be deemed guilty of a misdemeanor, and, upon convic-
tion thereof, shall be fined not less than $100 nor more
than $20,000, in the discretion of the court; and, in case
of natural persons, may, in addition, be punished by im-
prisonment for not less than sixty days nor more than
three years, in the discretion of the court.*^

§ 1188. Section 3744 Revised Statutes U. S. It shall be
the duty of the Secretary of War, of the Secretary of the
Navy, and of the Secretary of the Interior to cause and
require eveiy contract made by them severally on behalf
of the govcrimient, or by their olllicers under them aj)-
pointed to make such contracts, to be reduced to writing,
and signed by the contracting parties with their names
at the end thereof; a copy of wliicli shall be filed by the
officer making and signing the contract in llic Helnrn
Oflico of tlic Department of the Interior, as soon a Tier
the contract is made as possible, and within thirty days,
together with all bids, offers, and proposals to him made

47_8ec. 15, .39 Stat. 481.
48— Sec. 14, Aug. 11, 1916, 39
Stat. 480.

Miscellaneous Offenses 931

by persons to obtain the same and with a copy of any ad-
vertisement he may have published inviting bids, offers
or proposals for the same. All the copies and papers in
relation to each contract shall be attached together by a
ribbon and seal, and marked by numbers in regular
order, according to the number of papers composing the
whole return.

§ 1189. Unlawful to export white phosphorus matches.

That after January first, nineteen hundred and fourteen,
it shall be unlawful to export from the United States any
white phosphorus matches. Any person guilty of viola-
tion of this section shall be fined not less than one thou-
sand dollars and not more than five thousand dollars, and
any white phosphorus matches exported or attempted to
be exported shall be confiscated to the United States and
destroyed in such manner as may be prescribed by the
Secretary of the Treasuiy, who shall have power to issue
such regulations to customs officers as are necessary to
the enforcement of this section.*®

§ 1190. The provision of lease shall not apply to land.

That the requirements of section thirty-seven hundred
and forty-four of the Revised Statutes [Sec. 1188] shall
not apply to the lease of lands, or easements therein, or
of buildings, rooms, wharves, or rights of wharfage or
dockage, or to the hire of vessels, boats, and other float-
ing craft, for use in connection with river and harbor
improvements, where the period of any such lease or hire
is not to exceed three months.*^®

§ 1191. Return of officer must be sworn to before officer
— Form of affidavit. It shall be the further duty of the
officer, before making his retura, according to the preced-
ing section (3744 R. S.) [1188], to affix to the same his

49— Sec. 11, Act Apr. 9, 1912, 50— Act June 25, 1910, 36 Stat.

37 Stat. 83. 676.

932 Ceiminal Law

affidavit in the following form, sworn to before some
magistrate having authority to administer oaths: ''I
do solemnly swear (or affirm) that the copy of contracts
hereto annexed is an exact copy of a contract made by

me personally with ; that I made the same fairly

without any benefit or advantage to myself, or allowing
any such benefit or advantage corruptly to the said
, or any other person; and that the papers ac-
companying include all those relating to the said con-
tract, as required by the statute in such case made and
provided.""

§ 1192. Failure to make return by U. S. officer — Pen-
alty. Every officer who makes any contract, and fails or
neglects to make return of the same, according to the pro-
visions of the two preceding sections (3744 and 3745 R.
S.) [1188, 1191], imless from unavoidable accident or
causes not within his control, shall be deemed guilty of a
misdemeanor, and shall be fined not less than one hundred
dollars nor more than five hundred, and imprisoned to
more than six months.^*^

§ 1193. Public printer is accountable for all materials
received for public use — Penalty for failure. I'lic Public
Pi'iiiter shall charge himself with, and be Jiccountable
for, all material received for the public use. The foremnii
of printiug and binding shall make out estimates of the
quantity and kind of material required for their respec-
tive departments, and file written requisitions therefor
when it is needed. The Public Printer shall furnish the
sanif to them on tliese requisitions, as required for the
puljlic service, and they sliall receipt to liini and be hekl
af'conntnbk' for .ill material so received."

51— R. S. 3745, Act Juno 2, 1862, 53— Act Jan. 12, 1895, 28 Stat.
12 Stat. 412. 605.

52— Act June 2, 1862, H. S. 3746,
12 StM. 412.

Miscellaneous Offenses 933

§ 1194. Public printer defrauding the government. If

the public printer shall by himself, or through others cor-
ruptly collude or have any secret understanding with any
person to defraud the United States, or whereby the
United States shall be made to sustain a loss, he shall, on
conviction thereof before any court having jurisdiction
forfeit his office, and be imprisoned in the penitentiary
for a teiTii not exceeding seven years, and fined in a sum
not exceeding three thousand dollars.^^*

§ 1195. Opening or tapping water mains of the United
States water supply, subject to prosecution — Punish-
ment. That no person, unless by consent of the chief of
engineers in charge of the public buildings and works,
shall tap or open the mains or pipes laid or hereafter to
be laid by the United States, under penalty of not less
than fifty nor more than five hundred dollars.^^"

§ 1196. Maliciously breaking or destro3ring government
watermains or pipes, punishable. Every person who ma-
liciously breaks, injures, defaces, or destroys any main or
pipe, bend, branch, valve, hydrant, service-pipe, or any
other fixture used for the distribution of water through-
out the streets and avenues, or for its introduction into
the houses, tenements, or buildings of Washington and
Georgetown, shall be punishable by imprisonment in the
county jail for not more than two years. ^*

§ 1197. Maliciously causing water supply in cities of
Washington and Georgetown to become impure. Eveiy
person who maliciously commits any act by reason of
which the supply of water, or any part thereof, to the
cities of Washino'ton and Georgetown, becomes impure

53a— Act Jan. 12, 1895, 28 Stat. 53b— E. S. 1803, 11 Stat. 436.

605. 54— E. S. 1804, 11 Stat. 436.

934 Criminal Law

filthy, or unfit for use, shall be fined not less than five
hundred nor more than one thousand dollars, or impris-
oned at hard labor in the District of Columbia not more
than three years nor less than one year.^^

§ 1198. Violation act Aug. 24, 1912, regulating furbear-
ing animals — Punishment — Jurisdiction. That eveiy
person guilty of a violation of any of the provisions of
said convention, or of this act, or of any regulation made
thereunder, shall, for each oft'ense, be fined not less than
two hundred dollars or more than two thousand dollars,
or imprisoned not more than six months, or both; and
every vessel, its tackle, apparel, furniture, and cargo, at
any time used or employed in violation of this act, or of
the regulations made thereunder, shall be forfeited to the
United States.

That if any vessel shall be found within the waters
to which this act applies, having on board fur-seal skins
or sea-otter skins, or bodies of seals or sea otters, or ap-
paratus or implements for killing or taking seals or sea
otter, it shall be presumed that such vessel was used or
employed in the killing of said seals or sea otters, or that
said api)aratus or implements were used in violation of
this act, until the contrary is proved 1o the satisfaction
of the court, in so far as such vessel, ai)paratus, and im-
plements are subject to the jurisdiction of the United
States.

That any violation of the said convention, or of this act
or of the regulations thereunder, may be prosecuted either
in the district court of Alaska, or in any district court of
tlu' T'Tiifed States in Cnlifoniin, Oregon, or Wnsliingtoii."''

i^ 1199. Violating provision of act Oct. 6, 1917, 40 Stat.
388. 'I'iuit any person violating any of the provisions of
this act, oi- any i-nlcs or regnlations made thereunder,

55— K. 8. 1800, n Htat. 437. Pncific and do not relate to the

56 — These violations and regula- States, Sec. 6, 7 and 8, Act Aug. 24,
lions arc really applicable to North 1D12, .".7 Ht.nt. .lOl.

Miscellaneous Offenses 935

shall be guilty of a misdemeanor and shall be punished by
a fine of not more than $5,000 or by imprisonment not
more than one year, or by both such fine and imprison-
ment.^''^

§ 1200. Marshal failing to serve warrant on person
charged with violating civil rights act. Eveiy marshal
and deputy marshal who refuses to receive any warrant
or other process when tendered to him, or refuses or
neglects to use all proper means diligently to execute
the same, shall be liable to a fine in the sum of one thou-
sand dollars, for the benefit of the party aggrieved there-
by.58

U. S. COURTS

§ 1201. Duties of clerk of U. S. Courts, etc. — Removed
from office — Penalty. That if any clerk of any district
or circuit court of the United States shall wilfully refuse
or neglect to make any report, certificate, statement, or
other document required by law to be by him made, or
shall wilfully refuse or neglect to for^vard any such re-
port, certificate, statement, or document to the depart-
ment, officer, or person to whom, by law, the same should
be forwarded, the President of the United States is em-
powered, and it is hereby made his duty, in every such
case, to remove such clerk so offending from office by an
order in writing for that purpose. And upon the presen-
tation of such order, or a copy thereof, authenticated by
the attorney-general of the United States, to the judge of
the court whereof such offender is clerk, such clerk shall
thereupon be deemed to be out of office, and shall not
exercise the functions thereof. And such district judge,
in the case of the clerk of a district court, shall appoint a
successor; and in the case of the clerk of a circuit court,

57— Act. Oct. 6, 1917, 40 Stat. 58— Act May 31, 1870, 16 Stat.

388. 142.

936 Criminal Law

the circuit judge shall appoint a successor. And such
person so removed shall not be eligible to any appoint-
ment as clerk or deputy clerk for the period of two years
next after such removal.^^

§ 1202. Failure of clerk to perform duties as provided
by act Feb. 22, 1875. That if any clerk mentioned in
the preceding section [1201] shall wilfully refuse or
neglect to make or to forward any such report, certificate,
statement, or document therein mentioned, he shall be
deemed guilty of a misdemeanor, and shall be punished
by a fine not exceeding one thousand dollars, or by im-
prisonment not exceeding one year, in the discretion of
the court; but a conviction under this section shall not
be necessary as a condition precedent to the removal from
office provided for in this act.^'*

§1203. Tax on decedent's estates— What is person —
What is executor, etc. The term "person" includes part-
nerships, corporations, and associations. The term
''United States" means only the states, the territories
of Alaska and Hawaii, and the District of Columbia.
The term "executor" means the executor or administra-
tor of the decedent, or if there is no executor or adminis-
trator, any person who takes possession of any property
of the decedent, and the tenn "collector" moans the col-
lector of internal revenue of tlie district in wliich was the
domicile of tlie dcfodcnt at tlio time of liis death, or, if
tliere was no sucli doiiiicilc in the United States, then the
collector of the district in which is situated the part of
the gross estate of the decedent in tlic United States, or,
if such part of the gross estate is situated in more than
one district, tlicn the collector of internal revenue at Bal-
timore, Maryland. ^^

59— Sec. — , Act Feb. 22, 1875, CI— Sec. 200, Act Sept. 8, mi C, :i<)

18 Stat. 334. • St:it. 777.

60— Sec. 6, Act Feb. 22, 1875,
18 Stat. 334.

Miscellaneous Offenses 937

§ 1204. The executor must file return within thirty
days. The executor, within thirty days after qualifying
as such or after comiiip; into possession of any property
of the decedent, whichever event first occurs, shall give
written notice tiiereof to the collector. The executor shall
also, at such times and in such manner as may be re-
quired by the regulations made under this title, file with
the collector a return under oath in duplicate, setting
forth (a) the value of the gross estate of the decedent at
the time of his death, or, in case of a nonresident, of that
part of his gross estate situated in the United States; (b)
the deductions allowed under section two hundred and
three; (c) the value of the net estate of the decedent as
defined in section two hundred and three; and (d) the
tax paid or payable thereon; or such part of such infor-
mation as may at the time be ascertainable and such sup-
plemental data as may be necessary to establish the cor-
rect tax.

Return shall be made in all cases of estates subject to
the tax or where the gross estate at the death of the
decedent exceeds $60,000, and in the case of the estate of
every nonresident any part of whose gross estate is situ-
ated in the United States. If the executor is unable to
make a complete return as to any part of the gross estate
of the decedent, he shall include in his return a descrip-
tion of such part and the name of every person holding a
legal or beneficial interest therein, and upon notice from
the collector such person shall in like manner make a re-
turn as to such part of the gross estate. The commis-
sioner of Internal Revenue shall make all assessments of
the tax under the authority of existing administrative
special and general provisions of law relating to the as-
sessment and collection of taxes. Sec. 205, 61a act Sept.
8, 1916, 39 Stat. Sec. 205. Act .Sept. 8, 1916, 39 Stat. 778.

§ 1205. Act Sept. 8, 1916 — Knowingly making- false re-
turns of decedent's estate tax. Whoever knowingly makes
any false statement in any notice or return required to be

938 Criminal Law

filed by this title shall be liable to a penalty of not ex-
ceeding $5,000, or imprisonment not exceeding one year,
or both, in the discretion of the court.

AMioever fails to comply with any duty imposed upon
him by section two hundred and five, or, having in his
possession or control any record, file, or paper, contain-
ing or supposed to contain any infomiation concerning
the estate of the decedent, fails to exhibit the same unon
request of the Commissioner of Internal Revenue or any
collector or law officer of the United States, or his duly
authorized deputy or agent, who desires to examine the
same in the performance of his duties under this title,
shall be liable to a penalty of not exceeding $500, to be
recovered, with costs of suit, in a civil action in the name
of the United States.^^

§ 1206. The tax imposed in the decedent's estates. A
tax (hereinafter in this title referred to as the tax),
equal to the following percentages of the value of net
estate, to be determined as provided in section two hun-
dred and three, is hereby imposed upon the transfer of
the net estate of every decedent dying after the passage
of this act, whether a resident or nonresident of the
United States.

One and one-half per centum of the anioiuii of such
net estate not in excess of $50,000;

Three per centum of the amount by which such net
estate exceeds $50,000 and does not exceed $150,000;

Four and one-half per centum of the amount by which
sucli net estate exceeds $150,000 jind does not exceed
$250,000;

Six per contmn of tlie amount by wliicli such net estate
exceeds $250,000 and does not exceed $450,000;

Seven and one-lialf per centum of the amount by wliicli
sucli net estate exceeds $450,000 and does not exceed
$1,000,000;

6o_gpc_ 210, 39 Stat. 780.

Miscellaneous Offenses 939

Nine per centum of the amount by which such net
estate exceeds $1,000,000 and does not exceed $2,000,000;

Ten and one-half per centum of the amount by which
such net estate exceeds $2,000,000 and does not exceed
$3,000,000.

Twelve per centum of the amount by which such net
estate exceeds $3,000,000 and does not exceed $4,000,000;

Thirteen and one-half per centum of the amount by
which such net estate exceeds $4,000,000 and does not
exceed $5,000,000; and

Fifteen per centum of the amount by which such net
estate exceeds $5,000,000.

The tax on the transfer of the net estate of decedents
dying between September 8, 1916, and the passage of this
act shall be computed at the rates originally prescribed
in the act approved September 8, 1916.^^

BANKRUPTCY

§ 1207. Under the Bankruptcy Act of July 1, 1898, the
following" acts are punishable, (a) A person shall be
punished by imprisonment for a period not to exceed
five years upon conviction of the offense of having know-
ingly and fraudulently appropriated to his own use, em-
bezzled, spent, or unlawfully transferred any property
or secreted or destroyed any document belonging to a
bankrupt estate which came into his charge as trustee.

(b) A person shall be punished, by imprisonment for
a period not to exceed two years, upon conviction of the
offense of having knowingly and fraudulently (1) con-
cealed while a bankrupt, or after his discharge, from his
trustee any of the property belonging to his estate in
bankruptcy; or (2) made a false oath or account in,
or in relation to, any proceeding in bankruptcy; (3)
Presented under oath any false claim for proof against
the estate of a bankrupt, or used any such claim in com-
es — Sec. 201 and 301, March 3,
1917, 39 Stat, 1002.

940 Ckiminal Law

position personally or by agent, proxy, or attorney, or
as agent, proxy, or attorney; or (4) received any mate-
rial amount of property from a bankrupt after the fil-
ing of the petition, Avith intent to defeat this act; or (5)
extorted or attempted to extort any money or property
from any person as a consideration for acting or for-
bearing to act in bankruptcj^ proceedings.

(c) A person shall be punished by fine, not to exceed
five hundred dollars, and forfeit his office, and the same
shall thereupon become vacant, upon conviction of the
offense of having knowingly (1) acted as a referee in
a case in which he is directly or indirectly interested;
or (2) purchased, while a referee, directly or indirectly,
any property of the estate in bankruptcy of which he is
referee; or (3) refused, while a referee or trustee, to
pennit a reasonable opportunity for the inspection of
the accounts relating to the affairs of, and the papers
and records or estates in his charge by parties in interest
when directed by the court so to do.

(d) A person shall not be prosecuted for any offense
arising under this act unless the indictment is found or
the information is filed in court within one year after
the commission of the offense.^*

§ 1208. Prohibition against importing adulterated
seeds — Punishment. Tliat from and after six months
after the i)assage of this act the importation into the
United States of seeds of alfalfa, 1)arley, Canadian blue
grass, Kentucky ])luc grass, awnless bromc grass, buck-
wheat, clover, field corn, kafir com, meadow fescue, flax,
millet, oats, orchard grass, rape, rodtop, rye, sorghum,
limotliy, and wlioat, or mixtures of seeds containing any
of such seeds as one of the principal component parts,
which are adulterated or unfit for seeding purposes un-
dfr the terms of this act, is hereby prohibited; and the

64— Sec. 29, Act July 1, 1898, 30
Stnf. 554.

Miscellaneous Offenses 941

Secretary of the Treasury and the Secretary of Agricul-
ture shall, jointly or severally, make such rules and reg-
ulations as will prevent the importation of such seeds
into the United States: Provided, however, That such
seed may be delivered to the owner or consignee thereof
under bond, to be recleaned in accordance with and sub-
ject to such regulations as the Secretary of the Treas-
ury may prescribe, and when cleaned to the standard
of purity specified in this act for admission into the
United States, such seed may be released to the owner
or consignee thereof, after the screenings and other
refuse removed from such seed shall have been disposed
of in a manner prescribed by the Secretary of Agricul-
ture: Provided further. That this act shall not apply to
the importation of barley, buckwheat, field com, kafir
corn, sorghum, flax, oats, rye, or wheat not intended for
seeding purposes, when shipped in bond through the
United States or imported for the purpose of manufac-
ture, but such shipment shall be subject to provisions
of the act of August 5, 1909.^^

§ 1209. What is adulterated seed. That seed shall be
considered adulterated within the meaning of this act —

First. When seed of red clover contains more than
three per centum, by weight, of seed of yellow trefoil,
or any other seed of similar appearance to and of lower
market value than seed of red clover.

Second. When seed of alfalfa contains more than three
per centum, by weight, of seed of yellow trefoil, burr
clover and sweet clover, singly or combined.

Third. When any kind or variety of the seeds, or any
mixture described in section one of this act [1208], con-
tains more than five per centum, by weight, of seed of
another kind or variety or lower market value and of
similar appearance; Provided, That the mixture of the

65— Sec. 1, Act Aug. 24, 1912,
37 Stat. 506.

942 Criminal Law

seed of white and alsike clover, red and alsike clover, or
alsike clover and timothy, shall not be deemed an adulter-
ation under this section.^^

§ 1210. Punishment under Act August 24, 1912. That
any person or persons who shall knowingly violate the
provisions of this act, shall be deemed guilty of a mis-
demeanor and shall pay a fine of not exceeding five hun-
dred dollars and not less than two hundred dollars : Pro^
vided. That any person or persons who shall knowingly
sell for seeding purposes seeds or grain which were im-
ported under the provisions of this act for the purpose
of manufacture shall be deemed guilty of a violation of
this act.^^

§ 1211. Salt pork to be inspected for transportation —
Packages must be marked — Punishment for forging
marks, etc. That the Secretary of Agriculture may
cause to be made a careful inspection of salted pork
and bacon intended for exportation, with a view to de-
termining whether the same is wholesome, sound, and
fit for human food, whenever the laws, regulations, or
orders of the government of any foreign country to which
such pork or bacon is to be exported shall require in-
spection thereof, relating to the importation thereof into
such countiy, and also whenever any buyer, seller, or
exporter of such meats intended for exportation shall re-
quest the inspection thereof.

Such inspection sliall bo made at the place where such
meats are packed or boxed, and each package of such
moats so inspected siiall boar the marks, stamjis, or other
device for idonlification provided for in the last clause
of this section: Provided, That an inspection of such
moats may also be made at tlie place of exportation if
;in inspection lins not boon made at the place of pack-

66— 8oc. 2, Act Aug. 24, 1912, 37 67— Sec. 4, Act Aur. 24, 1912,

Stat. 507. 37 Stat. 507.

Miscellaneous Offenses 943

ing, or if in the opinion of the Secretary of Agriculture,
a re-inspection becomes necessary. One copy of any
certificate issued by any such inspector shall be filed
in the Department of Agriculture; another copy shall
be attached to the invoice of each separate shipment of
such meat, and a third cojDy shall be delivered to the
•consignor or shipper of such meat as evidence that pack-
ages of salted pork and bacon have been inspected in
accordance with the provisions of this act and found
to be wholesome, sound, and fit for human food; and
for the identification of the same such marks, stamps,
or other devices as the Secretary of Agriculture may by
regulation prescribe shall be affixed to each of such pack-
ages. Any person who shall forge, counterfeit, or know-
ingly and wrongfully alter, deface, or destroy any of
the marks, stamps, or other devices provided for in this
section on any package of any such meats, or who shall
forge, counterfeit, or knowingly and wrongfully alter,
deface, or destroy any certificate in reference to meats,
provided for in this section, shall be deemed guilty of
a misdemeanor, and on conviction thereof shall be pun-
ished by a fine not exceeding one thousand dollars or
imprisonment not exceeding one year, or by both said
punishments, in the discretion of the court.^^

§ 1212. Act of February 21, 1905, relating to stamping
"United States Assay" unlawfully — Punishment for vio-
lation. That every person, partnership, association, or
corporation violating the provisions of this act, and
every officer, director, or managing agent of such part-
nership, association, or corporation having knowledge of
such violation and directly participating in such viola-
tion or consenting thereto, shall be deemed guilty of a
misdemeanor, and upon conviction, be punished wdth a
fine of not more than five thousand dollars or imprison-

68— Act Aug. 30, 1890, 26 Stat.
414.

944 Criminal Law

merit for not more than one year, or both, at the discre-
tion of the court.^^

§ 1213. Act of June 13, 1906, relating- to dealer in gold
and silver ware — Punishment for violation. That each
and every person, firm, corporation, or association, be-
ing a manufacturer of or a wholesale or retail dealer in
gold or silver jeweliy, gold ware, silver goods, or silver-
ware, who or which shall knowingly violate any of the
provisions of this act, and every officer, manager, direc-
tor, or managing agent of any such corporation or asso-
ciation having knowledge of such violation and directly
participating in such violation or consenting thereto,
shall be deemed guilty of a misdemeanor, and upon con-
viction thereof in any court of the United States having
jurisdiction of crimes within the district in which such
violation was committed, or through which has been con-
ducted the transportation of the article in respect to
which such violation has been committed, shall be pun-
ished by a fine of not more than five hundred dollars or
imprisonment for not more than three months, or both,
at the discretion of tlie court. Whenever the offense
is begun in one jurisdiction, and completed in another,
it may be dealt with, inquired of, tried, determined, and
punislied in cither jurisdiction in the same manner as if
the offense liad been actually and wholly committed
therein.'®

69— Sec. 2, Act Feb., 1905, 33 70— Sec. 5, Act Juno 13, 190G, 34
Stat. 732. Stat. 2G2.

CHAPTER LXVIII

OFFENSES RELATING TO MAILS

§ 1216. Non-mailable matter.

§ 1217. Letter advising treason, etc.

§ 1218. Punishment for advocating
treason.

§ 1219. Electric urban or interurban
railroad refusing to carry-
mail.

§ 1220. Auditor with consent of
postmaster general remit
fine and penalties.

§ 1221. Postmaster general may dis-
charge prisoner for debt.

§ 1222. No contract for supplies
shall be made with any
person who has entered
into combination to permit
bidding, punishment.

§ 1223. No contract for carrying
the mail shall be made
with any person who has
entered into combination
to prevent bidding, pun-
ishment.

§ 1224. Unlawful use of naturaliza-
tion matter, misdemeanor.

§ 1225. Punishing postmaster for
making false return special
delivery.

§ 1226. Illegal to send insect pests
in mail, punishment.

§ 1227. Inspection of plants at state
expense, proper marking,
etc.

§ 1216. Non-mailable matter. Sec. 1. Every letter,
writing, circular, postal card, picture, print, engraving,
photograph, newspaper, pamphlet, book, or other publi-
cation, matter, or thing, of any kind, in violation of any
of the provisions of this act is hereby declared to be
non-mailable matter and shall not be conveyed in the
mails or delivered from any postoffice or by any letter
carrier: Provided, That nothing in this act shall be so
construed as to authorize any person other than an em-
ploye of the Dead Letter Office, duly authorized by law,
or other person upon a search warrant authorized by
law, to open any letter not addressed to himself.

§ 1217. Letter advising treason, etc. Sec. 2. Every let-
ter, writing, circular, postal card, picture, print, en-
graving, photograph, newspaper, pamphlet, book, or
c. L.— 60 945

9-1:6 Cbimixal Law

other publication, matter, or thing, of any kind, con-
taining any matter advocating or urging treason, insur-
rection, or forcible resistance to any law of the United
States, is hereby declared to be non-mailable.

§ 1218. Punishment for advocating treason. Sec. 3.
Whoever shall use or attempt to use the mails or Pos-
tal Service of the United States for the transmission
of any matter declared by this title to be non-mailable,
shall be fined not more than $5,000, or imprisoned not
more than five years, or both. Any person violating
any provision of this title may be tried and punished
either in the district in which the unlawful matter or
publication was mailed, or to w^hicli it was carried by
mail for delivery according to the direction thereon,
or in which it was caused to be delivered by mail to
the person to whom it was addressed.^

§ 1219. Electric urban or interurban railroad refusing
to carry mail. Sec. 4. That it shall be unlawful for any
urban or interurban electric railroad to refuse to per-
form mail service at the rates or methods of compensa-
tion thus provided for such service when required by
the Postmaster General so to do, and for such offense
shall be fined $100. l*"ach day of refusal shall consti-
tute a separate offense."^

§ 1220. Auditor with consent of Postmaster General
remit fine and penalties. In all cases of fine, penalty,
forfeiture, or disability, or alleged liability for any sum
of money by way of damages or otlienvise, under any
provision of law in relation to the officers, employees,
operations, or l)UKincss of the postal service, the Post-
master General mny prescribe such general rules and

1— Act of Congress June 15, 1917, 2— Act of Congress, July 2, 1918,

Title XII, Part 1, 40 U. 8. Stat. Part I, 40 U. 8. Stat, at Large, p.
at Large, p. 230. 749.

Offenses Relatixg to Mails 947

modes of proceeding as shall appear to be expedient,
for the government of the Sixth Auditor, in ascertain-
ing the fact in each case in which the Auditor shall
certify to him that the interests of the Department prob-
ably require the exercise of his powers over fines, pen-
alties, forfeitures, and liabilities; and upon the fact be-
ing ascertained, the Auditor may, with the written con-
sent of the Postmaster General, mitigate or remit such
fine, penalty, or forfeiture, remove such disability, or
compromise, release, or discharge such claim for such
sum of money and damages, and on such terms as to
the Auditor shall deem just and expedient.'

§ 1221. Postmaster General may dischargee prisoner for
debt. The Postmaster General may discharge from im-
prisonment any person confined in jail on any judgment
in a civil case, obtained in behalf of the Department,
if it be made to appear that the defendant has no proj^-
erty of any description.*

VIOLATION OF POSTAL LAWS

§ 1222. No contract for supplies shall be made with
any person who has entered into combination to permit
bidding — Punishment. No contract for furnishing sup-
plies to the Postofifice Department or the postal service
shall be made with any person who has entered, or pro-
posed to enter, into any combination to prevent the mak-
ing of any bid for furnishing such supplies, or to fix
a price or prices therefor, or who has made any agree-
ment, or given or performed, or promised to give or
perform, any consideration whatever to induce any other
person not to bid for any such contract, or to bid at a
specified price or prices thereon; and if any person so
offending is a contractor for furnishing such supplies,
his contract may be annulled, and the person so offend-

3— E. S. 409, 17 Stat. 324. 4— K. S. 410, 17 Stat. 324.

948 Ceiminal Law

ing shall be liable to a fine of not less than one hun-
dred dollars nor more than five thousand dollars, and
may be further punished, in the discretion of the court,
by imprisonment for not less than three months nor
more than one year.^

§ 1223. No contract for carrying the mail shall be made
with any person who has entered into combination to
prevent bidding — Punishment. No contract for carrying
the mail shall be made with any person who has en-
tered, or proposed to enter, into any combination to pre-
vent the making of any bid for cariying the mail, or
who has made any agreement, or given or perfonned,
or promised to give or perform, any consideration what-
ever to induce any other person not to bid for any such
contract; and if any person so offending is a contractor
for cany ing the mail, his contract may be annulled;
and for the first offense the person so offending shall
be disqualified to contract for carrying the mail for five
years, and for the second offense shall be forever dis-
qualified.^

§ 1224. Unlawful use of naturalization matter — Mis-
demeanor. All mail matter, of whatever class, relating
to naturalization, including duplicate papers required
by law or regulation to be sent to the Bureau of Nat-
uralization by clerks of State or Federal courts, ad-
dressed to the Department of Labor, or the Bureau of
Naturalization, or to any official thereof, and indorsed
"Oflicial Business," sliali l)o transmitted free of post- ,
age, and by registered mail if necessary, and so marked:
Provided furtlier, That if any person shall make use
of such indorsement to avoid payment of postage or.
registry fee on his or her private lotlor, package, or otlier
matter in the mail, tlie person so offending shall be guilty

5— Sec. 2, Act Aug. 24, 1912, 37 6— R. S. 3950, Act June 8, 1872,

Stat. 553. 17 Stat. 314.

Offenses Relating to Mails 949

of a misdemeanor, and subject to a fine of $300, to be
prosecuted in any court of competent jurisdiction^

§ 1225. Punishing- postmaster for making- false return
special delivery. That any postmaster, or any assistant
postmaster, clerk, or employee of a postmaster, who
shall make any false return or record of the receipt or
delivery of any article of mailable matter as being
stamped with a special-delivery stamp, or shall make any
false return of the number of articles specially deliv-
ered from his office, for the purpose of increasing his
compensation under the provisions of this act, shall be
deemed guilty of a misdemeanor, and on conviction
thereof, shall be fined not less than one hundred dol-
lars nor more than five hundred dollars, or imprisoned
for a term of not less than thirty days nor more than
one year, or both, such fine and imprisonment at the
discretion of the court; and whenever, upon evidence
deemed satisfactory to him, the Postmaster-General
shall determine that any such false return has been made,
he may, by order, fix absolutely the compensation of the
postmaster for such special delivery during any quarter
or quarters which he shall deem affected by such false
return, and the Auditor shall adjust the postmaster's
account accordingly.®

§ 1226. Illegal to send insect pests in mail — Punish-
ment. That any letter, parcel, box, or other package
containing the gypsy moth, brown-tail moth, leopard
moth, plum curculio, hop plant-louse, boll weevil, or any
of them in a live state, or other insect in a live state
which is notoriously injurious to cultivated crops, includ-
ing vegetables, field crops, bush fruits, orchard trees, for-
est trees, or shade trees, or any letter, parcel box, or

7— Act Oct. 6, 1917, 40 Stat. 376.
8— Sec. 3, Act Aug. 4, 1886, 34
Stat. 221.

950 Criminal Law

package which contains the eggs, pupae, or lai*vae of
any insect injurious as aforesaid, whether sealed as tirst-
class matter or not, is hereby declared to be non-mail-
able matter, except when mailed for scientific purposes
under the regulations hereinafter provided for, and shall
not be conveyed in the mails, nor delivered from any
postofifice, nor by any letter carrier, except when mailed
for scientific purposes under the regulations hereinafter
provided for; and any person who shall knowingly de-
posit, or cause to be deposited, for mailing or deliveiy,
anything declared by this section to be non-mailable mat-
ter, or cause the same to be taken from the mails for
the purpose of retaining, circulating, or disposing of, or of
aiding in the retention, circulation, or disposition of the
same shall, for each and every offense, be fined, upon
conviction thereof, not more than five thousand dollars,
or imprisoned at hard labor not more than five years, or
both, at the discretion of the court: Provided, That noth-
ing in this act shall authorize any person to open any
letter or sealed matter of the first-class not addressed to
himself.®

§ 1227. Inspection of plants at State expense— Proper
marking, etc. — Penalty for failure. I'hat hereafter when
any State shall provide for terminal inspection of plants
and plant products, and shall establish and maintain, at
tlie sole expense of the State, such inspection at one
or more places therein, the proper officials of said State
may submit to tlie Secretary of Agriculture a list of
plants and plant products and the plant pests trans-
mitted thereby, that in the opinion of said officials should
be subject to teiTninal inspection in order to pre-
vent the introduction or dissemination in said State of
posts injurious to agriculture. Upon his approval of
said list, in whole or in part, the Secretary of Agricul-

9— Sec. 2, Art Mar. 3, 1905, 33
Stat. 1270.

Offenses Relating to Mails 951

tiire shall transmit the same to the Postmaster-General,
and thereafter all packages containing any plants or
plant products named in said approved lists, shall, upon
payment of postage therefor, be forwarded by the post-
master at the destination of said package to the proper
State official at the nearest place where inspection is
maintained. If the plant or plant products are found
upon inspection to be free from injurious pests, or if
infected, shall be disinfected by said official, they shall
upon payment of postage therefor be returned to the
postmaster at the place of inspection to be forwarded
to the person to whom they are addressed; but if found
to be infected with injurious pests and incapable of sat-
isfactory disinfection the State inspector shall so notify
the postmaster at the place of inspection, who shall
promptly notify the sender of said plants or plant prod-
ucts that they will be returned to him upon his request
and at his expense, or in default of such request that they
will be turned over to the State authorities for destruc-
tion.

On and after the passage and approval of this act it
shall be unlawful for any person, firm, or coi-poration,
to deposit in the United States mails any package con-
taining any plant or plant product addressed to any
place within a State maintaining inspection thereof, as
herein defined, without plainly marking the package so
that its contents may be readily ascertained by an in-
spection of the outside thereof. Whoever shall fail to
so mark said packages shall be punished by a fine of not
more than $100.

The Postmaster-General is hereby authorized and di-
rected to make all needful rules and regulations for
carrying out the purposes hereof.^"

10— Act Mar. 4, 1915, 38 Stat.
1113.

CHAPTER LXIX

THE NATIONAL PROHIBITION ACT AND INTOXICATING

, LIQUORS

§ 1230. To provide for the enforce- § 1248.
ment of War Prohibition.

§ 1231. Commissioner must report § 1249.
violation of War Prohibi-
tion.

§ 1232. Where liquor is kept is de- § 1250.
clared to be common
nuisance. § 1251.

§ 1233. District attorney and attor-
ney general may prosecute
suit in equity. § 1252.

§ 1234. Commissioner and inspectors

may prosecute all offenses. § 1253.

§ 1235. Any provision hereof invalid

all others valid. § 1254.

§ 1236. Act does not repeal War

Prohibition. § 1255.

§1237, Meaning of "Liquor" and
"Intoxicating Liquor."

§ 1238. Commissioner to report vio-
lation and district attorney § 125G.
to prosecute.

§ 1239. After act liccomcs efTcctivo

liquor cannot bo sold, etc. § 1257.

8 1240. Certain articles exempted.

i 1241. Commissioner may make § 12.18.
analysis if necessary.

ii 1242. Permit must be obtained.

§ 1243. Physician holding peniiit § 1259.
only person authorized to
prescribe. g 12()n,

8 1244. Commissioner must issue
blanks for prescriptions.

8 1245. Permit may be revoked. 8 1261.

8 1246. Prminncnt record must be
kept of sales, etc.

8 1247. Wholesale druggist cannot 8 1262.
sell at retail.

952

Label must be attached to
every container.

Every carrier must make
record of shipment when
received.

Shipper must notify carrier
of nature of shipment.

Unlawful for carrier to ac-
cept shipment upon false
statement.

Order to ship must be to a
good faith consignee.

Unlawful to advertise sale,
etc.

Unlawful to advertise sale
of utensil or contrivance.

No person shall knowingly
receive order from any
person for sale of liquor,
etc.

Any person injured by in-
toxicated person has right
to sue.

Place where li<iuor is kept
is common nuisance.

Action to enjoin may be
brought in the name of
the U. S

Any intent to sell li(iuor may
be enjoined.

Any vinlalion of injunction
punished as contempt,
summarily by the court.

Violation to have in posses-
sion nny thing to aid in
manufacturing.

Oflicer may take vehicle used
in transporting liquor.

The National Prohibition Act

953

§ 1263. The court may deliver un-
lawful liquor to any de-
department.

§ 1264. Officer authorized to enforce
criminal laws may act.

§ 1265. Punishment for manufactur-
ing, selling, etc.

§ 1266. No person can excuse him-
self on grounds of in-
crimination.

§ 1267. Delivery to common carrier;
jurisdiction at point of
delivery to consignee.

§ 1268. Several counts may be joined
and conviction had for all.

§ 1269. After Feb. 1, 1920, posses-
sion prima facie evidence,
for sale.

§ 1270. All reports required to be
filed subject to inspection.

§ 1271. All laws inconsistent with
this act are repealed.

§ 1272. All provisions of this Act
invalid does not affect
others.

§ 1273. Liquor may be stored in
bonded warehouses.

§ 1274. The commissioner and the
attorney general may em-
ploy assistants.

§ 1275. Where property is proceed-
ed against summons must
be served personally on
the accused if in jurisdic-
tion.

§ 1276. General provisions United
States Prohibition Act.

§ 1277. Eegulations, etc., to be pre-
scribed.

§ 1278. Allowance for evaporation,
leakage, etc.

§ 1279. Punishment for violating
provisions of this title.

§ 1280. Discretionary method of col-
lecting tax.

§ 1281. Eelease of seized property
under bond.

§ 1282. General revenue laws, etc.,
applicable.

§ 1283. Inconsistent laws repealed.

§ 1284. Canal Zone, general prohibi-
tion of liquors within.

§ 1285. Time of enforcement, imme-
diately.

§ 1286. Alcohol obtained for dena-
turing purposes under Act
June 7, 1906, and sells
same ; penalty.

§ 1287. Every owner, agent, etc., of
brewery who attempts or
evades the payment of the
tax guilty of misdemeanor.

§ 1288. Withdrawing fermented liq-
uors from cask upon which
there is no stamp; pen-
alty.

§ 1289. Selling fermented liquors
from any cask, barrel, or
keg upon which stamp has
not been affixed; penalty.

§ 1290. Counterfeiting or making
false stamp for fermented
liquor ; penalty.

§ 1291. Stamp on hogshead or other
receptacle containing fer-
mented liquor, must not be
severed or defaced except
by owner.

§ 1292. Distiller knowingly using
any false measure under
Act July 20, 1868.

§ 1293. Eevenue officers permitting
the use of cancelled
stamps, under Act July
20, 1868; penalty.

§ 1294. Adding, before payment of
tax on distilled spirits,
substance to create fic-
titious proof under Act
July 20, 1868; punish-
ment.

§ 1295. Under Act Mar. 31, 1868,
distiller attempts or de-
frauds government; pun-
ishment.

954

Criminal Law

§ 1296. Act July 20, 1868, distiller
must register still with
collector; violation; pun-
ishment.

§ 1297. Act July 20, 1868, distiller
must give notice of en-
gaging in business; fail-
ure; penalty.

§ 1298. Prohibition against certain
places Avhere still may be
set up under Act June 6,
1872.

§ 1299. Under Act July 20, 1868,
breaking locks of cistern
or building.

§ 1300. Under Act July 20, 1868,
distiller must keep sign
posted.

§ 1301. No distillation can be made
except in regular dis-
tiUery.

§ 1302. Unlawful for ganger to al-
low others to perform his
duties.

§ 1303. Under Act July 20, 1868,
punishes g a u g e r who
makes false inspection.

§ 1304. Act July 20, 1868, punish-
ment for removing spirits
upon which tax had not
been paid.

§ 1305. Under Act Aug. 27, 1894,
for violation of act; pen-
alty.

§ 130G. Under Act Mar. 3, 1877,
grape brandy removed
from distillery for deposit
in Hpccial warehouse lim-
ited to ten day.s; failure;
penalty.

§ 1307. Act Mar. 3, 1891, manufac-
turer of sorglmm sugar
may uhc spiritH for; pun-
iHlimont for violation.

I 1308. Act July 20, 1868, ntore-
kccper removing cask or
package from bond with-
out permit of collector.

§ 13G9. Violation of Act Mar. 3,
1897, forging, altering or
counterfeiting stamp;
penalty.

§ 1310. Act June 6, 1872, false en-
tries in distiller's books;
penalty.

§ 1311. Rectifiers intending to de-
fraud the U. S. of tax;
penalty.

§ 1312. Rectifier required to keep
book; penalty for failure.

§ 1313. Unlawful for purchaser or
rectifier to purchase or
receive greater quantity
than 20 gallons.

§ 1314. Rectifiers who fail to com-
ply with the laws; punish-
ment.

§ 1315. Under Act July 20, 1868,
failure to deface stamp,
who draws off spirits;
punishment.

§ 1316. Affixing spurious stamp to
cask; penalty.

Si;!17. Transporting iiitoxicntiiiL;;
liquors in interstate com-
merce.

§ 1318. Sale of intoxicating liquors
in Indian country; penal-
ties.

§ 1319. Setting still for manufacture
of liquor in Indian coun-
try; penalty $1000.

§ 1320. Seizure and confiscation of
vehicles used in introduc-
ing liquors into Indian
country.

§ 1321. Provisions sections 2140 and
2141 R. S. shall apply to
beer as the prima facie
evidence of unlawful pos-
sesNion of liquor in In-
dian country.

§ 1322. Prohibition liquors at or
near ;my post ; punish-
mcnt.

The National Prohibition Act 955

(PUBLIC— No. 66— 66TH CONGRESS.) (H. R. 6810.)

AN ACT to prohibit intoxicating beverages, and to regu-
late the manufacture, production, use, and sale of
high-proof spirits for other than beverage pui-poses,
and to insure an ample supply of alcohol and promote
its use in scientific research and in the development of
fuel, dye, and other lawful industries.

Be It Enacted by the Senate and House of Represen-
tatives of the United States of America in Congress
assembled. That the short title of this act shall be the
"National Prohibition Act."

TITLE I

§ 1230. To provide for the enforcement of war pro-
hibition. The term ' ' War Prohibition Act ' ' used in this
act shall mean the provisions of any act or acts prohibit-
ing the sale and manufacture of intoxicating liquors un-
til the conclusion of the present war and thereafter until
the termination of demobilization, the date of which shall
be determined and proclaimed by the President of the
United States. The words ' ' beer, wine, or other intoxicat-
ing malt or vinous liquors" in the War Prohibition Act
shall be hereafter construed to mean any such beverages
which contain one-half of 1 per centum or more of alco-
hol by volume: Provided, That the foregoing definition
shall not extend to dealcoholized wine nor to any bever-
age or liquid produced by the process by which beer,
ale, porter or wine is produced, if it contains less than
one-half of 1 per centum of alcohol by volume, and is
made as prescribed in section 37 of Title II of this act,
and is otherwise denominated than as beer, ale, or por-
ter, and is contained and sold in, or from, such sealed and
labeled bottles, casks, or containers as the commissioner
may by regulation prescribe.

956 Ckiminal. Law

§ 1231. Commissioner must report violations of War
Prohibition Act. Sgc. 2. The Commissioner of Internal
Revenue, his assistants, agents, and inspectors, shall in-
vestigate and report violations of the AVar Prohibition
Act to the United States attorney for the district in which
committed, who shall be charged with the duty of prose-
cuting, subject to the direction of the Attorney General,
the offenders as in the case of other offenses against laws
of the United States; and such Commissioner of Internal
Revenue, his assistants, agents, and inspectors may swear
out warrants before United States Commissioners or
other officers or courts authorized to issue the same for
the apprehension of such offenders, and may, subject to
the control of the said United States attorney, conduct
the prosecution at the committing trial for the purpose
of having the offenders held for the action of a grand
jury.

§ 1232. Where liquor is kept is declared to be a public
nuisance. Sec. 3. Any room, house, building, boat, ve-
hicle, structure, or place of any kind where intoxicating
liquor is sold, manufactured, kept for sale, or bartered
ill violation of the AVar Prohibition Act, and all intoxi-
cating liquor and all property kept and used in maintain-
ing such a place, is hereby declared to be a public and
common nuisance, and any person who maintains or as-
sists in maintaining such common nuisance shall be guilty
of a misdemeanor, and upon conviction thereof shall be
fined not less than $100 nor more lliaii $1,000, or be im-
Ijrisoned for not less than thirly days or more than one
year, or both. If a person has knowledge that his prop-
erty is occupied or used in violation of the provisions of
the "War Prohibition Act and suffers the same to be so
used, such property shall be subject to a lien for, and
may be sold to pay, all lines and costs assessed against
the occupant of such Itnilding or property for any viola-
tion of the War Prohibition Act occurring after the pas-

The National Prohibition Act 957

sage hereof, which said lien shall attach from the time of
the filing of notice of the commencement of the suit in
the office where the records of the transfer of real estate
are kept; and any such lien may be established and en-
forced by legal action instituted for that purpose in any
court having jurisdiction. Any violation of this title
upon any leased premises by the lessee or occupant there-
of shall, at the option of the lessor, work a forfeiture
of the lease.

§ 1233. District Attorney and Attorney General may
prosecute suit in equity. Sec. 4. The United States
attorney for the district where such nuisance as is de-
fined in this act exists, or any officer designated by
him or the Attorney General of the United States, may
prosecute a suit in equity in the name of the United
States to abate and enjoin the same. Actions in equity
to enjoin and abate such nuisances may be brought in
any court having jurisdiction to hear and determine
equity causes. The jurisdiction of the courts of the
United States under this section shall be concurrent with
that of the courts of the several states.

If it be made to appear by affidavit, or other evidence
under oath, to the satisfaction of the court, or judge in
vacation that the nuisance complained of exists, a tem-
porary writ of injunction shall forthwith issue restrain-
ing the defendant or defendants from conducting or
permitting the continuance of such nuisance until the
conclusion of the trial. Where a temporaiy injunction
is prayed for, the court may issue an order restraining
the defendants and all other persons from removing
or in any way interfering with the liquor or fixtures,
or other things used in connection with the violation
constituting the nuisance. No bond shall be required as
a condition for making any order or issuing any writ of
injunction under this act. If the court shall find the
property involved was being unlawfully used as afore-

958 Ceiminal Law

said at or about the time alleged in the petition, the
court shall order that no liquors shall be manufactured,
sold, bartered, or stored in such room, house, building,
boat, vehicle, structure, or places of any kind, for a
period of not exceeding one year, or during the war
and the period of demobilization. Whenever an action
to enjoin such a nuisance shall have been brought pur-
suant to the provisions of this act, if the owner, lessee,
tenant, or occupant appears and pays all costs of the
proceedings and files a bond, with sureties to be ap-
proved by the clerk of the court in which the action is
brought, in the liquidated sum of not less than $500 nor
more than $1,000, conditioned that he will immediately
abate said nuisance and prevent the same from being
established or kept therein a period of one year there-
after, or during the war and period of demobilization,
the court, or in vacation the judge, may, if satisfied of
his good faith, direct by appropriate order that the
propert}^, if already closed or held under the order of
abatement, be delivered to said owner, and said order
of abatement canceled, so far as the same may relate
to said property; or if said bond be given and costs
therein paid before judgment on an order of abatement,
the action shall be thereby abated as to said room, house,
building, boat, vehicle, structure, or place only. The
release of the property under the provisions of this sec-
tion shall not release it from any judgment, lion, penalty,
or liability to which it may be subject by law.

Til tlio case of the violation of any injunction, tem-
porary or permanent, granted pursuant to the ]irovi-
sions of lliis Title, the court, or in vacation a judge
thereof, may suniniaril>- try and punish llie defendant.
The proceedings for ])unisl)ment for contempt shall be
commenced by filing with tlie clerk of the court from
which such injunction issued infonuation under oath
setting out tlic alleged facts constituting the violation,
whoreupf)n the ronrt or jndge shall forthwith cause a

The National Prohibition Act 959

warrant to issue under which the defendant shall be
arrested. The trial may be had upon affidavits, or either
party may demand the production and oral examina-
tion of the witnesses. Any person found guilty of con-
tempt under the provisions of this section shall be pun-
ished by a fine of not less than $500 nor more than $1,000,
or by imprisonment of not less than thirty days nor
more than twelve months, or by both fine and imprison-
ment.

§ 1234. Commissioner and inspector may prosecute all
offenses. Sec. 5. The Commissioner of Internal Revenue,
his assistants, agents and inspectors, and all other offi-
cers of the United States whose duty it is to enforce
criminal laws, shall have all the power for the enforce-
ment of the War Prohibition Act or any provisions there-
of which is conferred by law for the enforcement of
existing laws relating to the manufacture or sale of
intoxicating liquors under the laws of the United States.

§ 1235. Any provision hereof invalid all other valid.

Sec. 6. If any section or provision of this act shall be
held to be invalid, it is hereby provided that all other
provisions of this act which are not expressly held to be
invalid shall continue in full force and effect.

§ 1236. Act does not repeal war prohibition. Sec. 7.
None of the provisions of this act shall be construed to
repeal any of the provisions of the ''War Prohibition
Act," or to limit or annul any order or regulation pro-
hibiting the manufacture, sale, or disposition of intoxi-
cating liquors within certain prescribed zones or dis-
tricts, nor shall the provisions of ths act be construed
to prohibit the use of the power of the military or naval
authorities to enforce the regulations of the President
or Secretary of War or Navy issued in pursuance of
law, prohibiting the manufacture, use, possession, sale.

960 Criminal Law

or other disposition of intoxicating liquors during the
period of the war and demobilization thereafter.

TITLE II
PROHIBITION OF INTOXICATING BEVERAGES

§1237. Meaning of liquor ajid ''intoxicating liquor."
Sec. 1. When used in Title II and Title III of this act
(1) The word ''liquor" or the phrase "intoxicating
liquor" shall be construed to include alcohol, brandy,
whisky, rum, gin, beer, ale, porter, and wine, and in
addition thereto any spirituous, vinous, malt, or fer-
mented liquor, liquids, and compounds, whether medi-
cated, proprietary, patented, or not, and by whatever
name called, containing one-half of 1 per centum or
more of alcohol by volume which are fit for use for
beverage pui-poses: Provided, That the foregoing
definition shall not extend to dealcoholized wine nor
to any beverage or liquid produced by the process by
which beer, ale, porter or wine is produced, if it con-
tains less than one-half of 1 per centum of alcohol by
volume, and is made as prescribed in section 37 of this
title, and is otherwise denominated than as beer, ale,
or porter, and is contained and sold in, or from, such
sealed and labeled l)ottles, casks, or containers as the
commissioner may by reguhilion prescribe.

(2) The word "person" shall mean and include nat-
ural persons, associations, copartnerships, and corpora-
tions.

(3) The word "commissioner" shall mean Commis-
sioner of Intenial Revenue.

(4) The term "applicalion" slinll moan a fonnal wi'it-
ten request supported by a verified statement of facts
showing that the commissioner may grant the request.

(5) The term "permit" shall mean a formal written
authorization by the commissioner setting forth specifi-
cally therein the things that are authorized.

The National Prohibition Act 961

(6) The temi ''bond" shall mean an obligation author-
ized or required by under this act or any regulation,
executed in such form and for such a penal sum as may
be required by a court, the commissioner, or prescribed
by regulation.

(7) The term "regulation" shall mean any regula-
tion prescribed by the commissioner with the approval
of the Secretary of the Treasury for carrying out the
provisions of this act, and the commissioner is author-
ized to make such regulations.

Any act authorized to be done by the commissioner
may be perfonned by any assistant or agent designated
by him for that pui-pose. Records required to be filed
with the commissioner may be filed with an assistant
commissioner or other person designated by the com-
missioner to receive such records.

§ 1238. Commissioner to report violation and United
States attorney to prosecute. Sec. 2. The Commissioner
of Internal Revenue, his assistants, agents, and inspec-
tors shall investigate and report violations of this act
to the United States attorney for the district in which
committed, who is hereby charged with the duty of prose-
cuting the offenders, subject to the direction of the Attor-
ney General, as in the case of other offenses against the
laws of the United States; and such Commissioner of
Internal Revenue, his assistants, agents, and inspectors
may swear out warrants before the United States com-
missioners or other officers or courts authorized to issue
the same for the apprehension of such offenders, and
may, subject to the control of the said United States
attorney, conduct the prosecution at the committing trial
for the purpose of having the offenders held for the ac-
tion of a grand jury. Section 1014 of the Revised Stat-
utes of the United Sates is hereby made applicable in
the enforcement of this act. Officers mentioned in said
section 1014 are authorized to issue search warrants
c. L.— 61

962 Ceimixal Law

under the limitations provided in Title XI of the act
approved June 15, 1917.^

§ 1239. After act becomes effective liquor cannot be
sold, etc. Sec. 3. No person shall on or after the date
when the eighteenth amendment to the Constitution of
the United States goes into effect, manufacture, sell,
barter, transport, import, export, deliver, furnish, or
possess any intoxicating liquor except as authorized in
this act, and all the provisions of this act shall be lib-
erally construed to the end that the use of intoxicating
liquor as a beverage may be prevented.

Liquor for nonbeverage purposes and wine for sacra-
mental pui-poses may be manufactured, purchased, sold,
bartered, transported, imported, exported, delivered, fur-
nished and possessed, but only as herein provided, and
the commissioner may, upon application, issue pennits
therefore: Provided, That nothing in this act shall pro-
hibit the purchase and sale of warehouse receipts cover-
ing distilled spirits on deposit in government bonded
warehouses, and no special tax liability shall attach to
the business of purchasing and selling such warehouse
receipts.

§1240. Certain articles exempted. Sec. 4. The arti-
cles enumerated in this section shall not, after having
been manufactured and prepared for tlie market, be sub-
ject to the i)rovisions of this act if they correspond with
the following descriptions and limitations, namely:

(a) Denatured alcoliol or denatured rum produced and
used as provided by laws and regulations now or liere-
aftf'i' ill force.

(b) Medicinal jjiepai-ations manufactured in accord-
ance witli fonnuhis prescri])e(l hy the United States
Pharmacopea, Nati(»iial I'\>rniulaiy or the American In-

1 — Fortieth .Statutes at li.'irgc,
pngp 217, f*t Roq.

The National Prohibition Act 963

stituteof Homeopathy that are unfit for use for bever-
age purposes.

(d) Toilet, medicinal, and antiseptic preparations and
solutions that are unfit for use for beverage purposes.

(e) Flavoring extracts and sirups that are unfit for
use as a beverage, or for intoxicating beverage purposes.

(f ) Vinegar and preserved sweet cider.

A person who manufactures any of the articles men-
tioned in this section may purchase and possess liquor
for that pui*pose, but he shall secure permits to manufac-
ture such articles and to purchase such liquor, give the
bonds, keep the records, and make the reports specified in
this act and as directed by the commissioner. No such
manufacturer shall sell, use, or dispose of any liquor
otherwise than as an ingredient of the articles authorized
to be manufactured therefrom. No more alcohol shall be
used in the manufacture pf any extract, sinip, or the arti-
cles named in paragraphs b, c and d of this section which
may be used for beverage purposes than the quantity
necessary for extraction or solution of the elements con-
tained therein and for the preservation of the article.

Any person who shall knowingly sell any of the articles
mentioned in paragraphs a, b, c and d of this section for
beverage purposes, or any extract or sirup for intoxi-
cating beverage purposes, or who shall sell any of the
same under circumstances from which the seller might
reasonably deduce the intention of the purchaser to use
them for such purposes, or shall sell any beverage con-
taining one-half of 1 per centum or more of alcohol by
volume in which any extract, sirup, or other article is
used as an ingTedient, shall be subject to the penalties
provided in section 29 of this title [1265]. If the com-
missioner shall find, after notice and hearing as provided
for in section 5 of this title [1241], that any person has
sold flavoring extract, sirup, or beverage in violation

964 Criminal Law

of this paragraph, he shall notify such person, and any
known principal for w^hom the sale was made, to desist
from selling such article; and it shall thereupon be un-
lawful for a period of one year thereafter for any per-
son so notified to sell any such extract, simp, or beverage
without making an application for, giving a bond, and
obtaining a permit so to do, which pemiit may be issued
upon such conditions as the commissioner may deem
necessary to prevent such illegal sales, and in addition
the commissioner shall require a record and report of
sales.

§ 1241. Commissioner may make analysis if necessary.
Sec. 5. AVhenever the commissioner has reason to believe
that any article mentioned in section 4 [1240] does not
correspond with the descriptions and limitations therein
provided he shall cause an analysis of said article to be
made, and if, upon such analysis, the commissioner shall
find that said article does not -so correspond, he shall
give not less than fifteen days' notice in writing to the
person who is manufacturer thereof to show cause why
said article should not be dealt with as an intoxicating
li(iUor, sucli notice to be served personally or by regis-
tered mail, as the commissioner may deteniiiiu', and shall
specify llic lime wlien, the place where, and llie name
of tlio agent or oflicial before whom such person is rc-
(jniiT'd to appear.

if the manuracturer of said ailiclc fails to show to the
satisfaction of the connnissionei- liial llie article corre-
sponds to llic (Icsci-iptions and limitations x)rovid(Ml in
section 4 of this tith; | 12401, his permit to manufacture
and sell snch article may he i-evoked. The manufacturer
may hy ajiinopiiatc jji-occcding in a court of equity have
the action <»f the coinmissionci' i-cvicwcd, and the coni't
mav aflinn, modify, or i-everse the finding- of the conunis-
sioner as the facts nnd law of the case may warrant, and

The National Prohibition Act 965

during the pendency of such proceedings may restrain
the manufacture, sale, or other disposition of such article.

§ 1242. Permit must be obtained. Sec. 6. No one shall
manufacture, sell, purchase, transport, or prescribe any
liquor without first obtaining a pemiit from the commis-
sioner so to do, except that a person may without a per-
mit, purchase and use liquor for medicinal purposes
when prescribed by a physician as herein provided, and
except that any person who in the opinion of the commis-
sioner is conducting a bona fide hospital or sanatorium
engaged in the treatment of persons suffering from alco-
holism, may under such rules, regulations, and conditions
as the commissioner shall prescribe, purchase and use, in
accordance with the methods in use in such institution,
liquor, to be administered to the patients of such institu-
tion under the direction of a duly qualified physician em-
ployed by such institution.

All permits to manufacture, prescribe, sell, or transport
liquor, may be issued for one year, and shall expire on
the 31st day of December next succeeding the issuance
thereof. Provided, That the commissioner may without
formal application or new bond extend any permit
granted under this act or laws now in force after August
31 in any year to December 31 of the succeeding year:
Provided further, That permits to purchase liquor for the
purpose of manufacturing or selling as provided in this
act shall not be in force to exceed ninety days from the
day of issuance. A pennit to purchase liquor for any
other purpose shall not be in force to exceed thirty days.
Permits to purchase liquor shall specify the quantity and
kind to be purchased and the purpose for which it is to be
used. No permit shall be issued to any person who within
one year prior to the application therefor or issuance
thereof shall have violated the terms of any pennit issued
under this title or any law of the United States or of any
state regulating traffic in liquor. No permit shall be is-

966 Criminal Law

sued to anyone to sell liquor at retail, unless the sale is to
be made through a pharmacist designated in the permit
and duly licensed under the laws of his state to compound
and dispense medicine prescribed by a duly licensed phy-
sician. No one shall be given a permit to prescribe liquor
unless he is a physician duly licensed to practice medi-
cine and actively engaged in the practice of such profes-
sion. Every pennit shall be in writing, dated when is-
sued and signed by the commissioner or his authorized
agent. It shall give the name and address of the person
to whom it is issued and shall designate and limit the
acts that are peniiitted and the time when and place
where such acts may be performed. No permit shall be
issued until a verified, written application shall have been
made therefor, setting forth the qualification of the appli-
cant and the pui^pose for which the liquor is to be used.

The commissioner may prescribe the form of all per-
mits and applications and the facts to be set forth therein.
Before any permit is granted the commissioner may re-
quire a bond in such form and amount as he may pre-
scribe to insure compliance with the terms of the permit
and the provisions of this title. In the event of the re-
fusal by the commissioner of any application for a per-
mit, the applicant may have a review of his decision
before a court of equity in the manner provided in section
5 hereof [1241].

Nolhiiig in tliis tilU' slmll lie held 1<> ap])ly 1(» tlu> iii;»iin
facture, sale, transi)()rtar!()n, iinporlation, possession, or
distribution of wine I'or sacraincnlal pm-jjoses, oi- like
religious rites, except section 6 [12421 (save as the same
refprn-es a [)ennit t<» purcliase) niul section 10 hereof
[]24(;|, and the provisions of this act prescribing pen-
alties for the violation of either of said sections. No
person <<» wlumi a pt-rni't may be issued to manufacture,
transpoit, import, or sell wines for sacramental pnr])oses
or like religious rites sliall sell, barter, exchange, or fur-
nisli any sneli to any jx'i'son not a rabbi, miiiistei- of the

The National Prohibition Act 967

gospel, priest, or an officer duly authorized for the pur-
pose by any church or congregation, nor to any such
except upon an application duly subscribed by him, which
application, authenticated as regulations may prescribe,
shall be liled and preserved by the seller. The head of
any conference or diocese or other ecclesiastical jurisdic-
tion may designate any rabbi, minister, or priest to super-
vise the manufacture of wine to be used for the purposes
and rites in this section mentioned, and the person so
designated may, in the discretion of the commissioner
be granted a permit to supervise such manufacture.

§ 1243. Physician holding- permit, only one authorized
to give prescription. Sec. 7. No one but a physician
holding a permit to prescribe liquor shall issue any pre-
scription for liquor. And no physician shall prescribe
liquor unless after careful physical examination of the
person for whose use such prescription is sought, or if
such examination is found impracticable, then upon the
best information obtainable, he in good faith believes
that the use of such liquor as a medicine by such person
is necessary and will afford relief to him from some
known ailment. No more than a pint of spirituous liquor
to be taken internally shall be prescribed for use by the
same person within any period of ten days and no pre-
scription shall be filled more than once. Any phannacist
filling a prescription shall at the time indorse upon it
over his own signature the word *' canceled," together
with the date when the liquor was delivered, and then
make the same a part of the record that he is required
to keep as herein provided.

Every physician who issues a prescription for liquor
shall keep a record, alphabetically arranged in a book
prescribed by the commissioner, which shall show the
date of issue, amount prescribed, to whom issued, the
purpose or ailment for which it is to be used and direc-

968 Criminal, Law

tions for use, stating the amount and frequency of the
dose.

§ 1244. Commissioner must issue blank for prescrip-
tion. Sec. 8. The commissioner shall cause to be printed
blanks for the prescriptions herein required, and he shall
furnish the same, free of cost, to physicians holding per-
mits to prescribe. The prescription blanks shall be
printed in book form and shall be numbered consecutively
from one to one hundred, and each book shall be given a
number, and the stubs in each book shall carry the same
numbers as and be copies of the prescriptions. The books
containing such stubs shall be returned to the commis-
sioner when the prescription blanks have been used, or
sooner, if directed by the commissioner. All unused,
mutilated, or defaced blanks shall be returned with the
book. No physician shall prescribe and no pharmacist
shall fill any prescription for liquor except on blanks so
provided, except in cases of emergency in which event a
record and report shall be made and kept as in other
cases.

§ 1245. Permit may be revoked. Sec. 9. If at any time
there shall be liled with the commissioner a complaint
under oath setting forth facts showing, or if the commis-
sioner has reason to believe, that any person who lias a
pennit is iiol in good faitli conforming to the provisions
of tliis act, or has vi(>hitc(l the I.mws (»!' ;iiiy slate relating
to intoxicating li<|uoi-, the commissioner or liis agent shall
immediately issue .'in ordci' citing such person to n])peiir
before him on a day named not more tliaii thirty and not
less than firtccn (hiys from the date of scrxice upon sucli
pennittee of a coj)y of the citation, which citation shall
be accom])anie(l hy a c()])y of such c()in|)hiint, or in the
event that the jjrocccdings be initiated by the conmiis-
sionerwith a statement of the facts constituting the vio-
lation char.ucfl, at which time a hearim^' shall he had un

The National Prohibition Act 969

less continued for cause. Such hearings shall be held
within the judicial district and within fifty miles of the
place where the offense is alleged to have occurred, unless
parties agree on another place. If it be found that such
person has been guilty of wilfully violating any such
laws, as charged, or has not in good faith conformed to
the provisions of this act, such permit shall be revoked,
and no permit shall be granted to such person within
one year thereafter. Should the permit be revoked by
the commissioner, the permittee may have a review of
his decision before a court of equity in the manner pro-
vided in section 5 hereof [1241]. During the pendency of
such action such permit shall be temporarily revoked.

§ 1246. Permanent record must be made of sales, etc.
Sec. 10. No person shall manufacture, purchase for sale,
sell, or transport any liquor without making at the time
a permanent record thereof showing in detail the amount
and kind of liquor manufactured, purchased, sold, or
transported, together with the names and addresses of
the persons to whom sold, in case of sale, and the con-
signor and consignee in case of transportation, and the
time and place of such manufacture, sale, or transporta-
tion. The commissioner may prescribe the form of such
record, which shall at all times be oxjen to inspection as
in this act provided.

§ 1247. Wholesale druggist cannot sell at retail. Sec.

11. All manufacturers and wholesale or retail druggists
shall as a part of the records required of them keep a
copy of all permits to purchase on which a sale is made,
and no manufacturer or wholesale druggist shall sell or
otherwise dispose of any liquor except at wholesale and
only to persons having permits to purchase in such quan-
tities.

§ 1248. Label must be attached to every container. Sec.

12. All persons manufacturing liquor for sale under the

970 Criminal Law

provisions of tliis title shall securely and permanently
attach to every container thereof, as the same is manu-
factured, a label stating the name of manufacturer, kind
and quantity of liquor contained therein, and the date of
its manufacture, together with the number of the pemiit
authorizing the manufacture thereof; and all persons pos-
sessing such liquor in wholesale quantities shall securely
keep and maintain such label thereon; and all persons
selling at wholesale shall attach to every package of
liquor, when sold, a label setting forth the kind and quan-
tity of liquor contained therein, by whom manufactured,
the date of sale, and the person to whom sold; which label
shall likewise be kept and maintained thereon until the
liquor is used for the pui-pose for which such sale was
authorized.

§ 1249. Every carrier must make record of shipment
when received. Sec. 13. It shall bo the duty of every
carrier to make a record at the place of shipment of the
receipt of any liquor transported, and he shall deliver
liquor only to persons who present to the carrier a veri-
fied copy of a pennit to purchase which shall be made a
part of the carrier's pennanent record at the office from
wliich delivery is made.

The agent of the common carrier is hereby authorized
1() admiiiistor the oath of Ihc consignee in verification of
llic copy of the poi'mit ])rescntod, who, if not personally
known to tlie agent, sliall be identified before the delivery
of the lif|Uor to liim. The name and the address of tlie
person idciitirvin^' the consignoo shall be inclndcMl in llie
rocoid.

!^ 1250. Shipper must notify carrier of nature of ship-
ment. Sec. 14. II sliall be niilaw Tnl Tor a jierson to use
()?• induce any t-ai'iici', or any agent, or employe thereof, to
carry or ship any ))ackage or receptacle containing liquor
witliout notifying the carrier of the ti*ue nature and

The National Prohibition Act 971

character of the shipment. No carrier shall transport
nor shall any person receive liquor from a carrier unless
there appears on the outside of the package containing
such liquor the following information : Name and address
of the consignor or seller, name and address of the con-
signee, kind and quantity of liquor contained therein,
and number of the permit to purchase or ship the same,
together with the name and address of the person using
the permit.

§ 1251. Unlawful for carrier to accept shipment upon
false statement. Sec. 15. It shall be unlawful for any
consignee to accept or receive any package containing
any liquor upon which appears a statement known to him
to be false, or for any carrier or other person to consign,
ship, transport, or deliver any such package, knowing
such statement to be false.

§ 1252. Order to ship must be to an actual bona fide
consignee. Sec. 16. It shall be unlawful to give any
carrier or any officer, agent, or person acting or assuming
to act for such carrier an order requiring the deliveiy to
any person of any liquor or package containing liquor
consigned to, or pui7)orting or claimed to be consigned to
a person, when the purpose of the order is to enable any
person not an actual bona fide consignee to obtain such
liquor.

§ 1253. Unlawful to advertise sale, etc. Sec. 17. It
shall be unlawful to advertise anywhere, or by any means
or method, liquor, or the manufacture, sale, keeping for
sale or furnishing of the same, or where, how, from
whom, or at what price the same may be obtained. No
one shall permit any sign or billboard containing such
advertisement to remain upon one's premises. But noth-
ing herein shall prohibit manufacturers and wholesale
druggists holding permits to sell liquor from furnishing

972 Ceiminal Law

•

price lists, with description of liquor for sale, to persons
permitted to purchase liquor, or from advertising alcohol
in business publications or trade journals circulating
generally among manufacturers of lawful alcoholic per-
fumes, toilet preparations, flavoring extracts, medicinal
preparations, and like articles: Provided, However, That
nothing in this act or in the act making appropriations
for the Postoffice Department, approved March 3, 1917
(Thirty-ninth Statutes at Large, Part 1, page 1058, et
seq.), shall apply to newspapers published in foreign
countries when mailed to this country.

§ 1254. Unlawful to advertise for sale utensil or con-
trivance. Sec. 18. It shall be unlawful to advertise,
manufacture, sell or possess for sale any utensil, contriv-
ance, machine, preparation, compound, tablet, substance,
fonnula, direction, or recipe advertised, designed, or
intended for tlie use in the unlawful manufacture of in-
toxicating liquor.

§ 1255. No person shall knowingly receive order from
any person for sale. Sec. 19. No person shall solicit
or receive, nor knoAvingly permit his employee to solicit
or receive, from any person any order for liquor or give
any infomiation of how liquor may be obtained in viola-
tion of this act.

§ 1256. Any person injured by intoxicated person has
right of damages. Sec. 20. Any person who shall be
injured in person, ])roperty, means of support, or other-
wise by any intoxicated person, or by reason of tlie intoxi-
cation of any person, wliclbor resulting in liis death or
not, slinli linve a riglit of action against any person who
shall, by unl.-nv fully selling to or unlawfully assisting in
procuring rupior lor sn<'h intoxicnicd jx'rson, have caused
or contri})uted to such inloxicalioii, and in any such ac-
tion sufli person sliiill li;ive ilie riglil lo I'ecovor actual

The National Prohibition Act 973

and exemplary damages. In case of the death of either
party, the action or the right of action given by this sec-
tion shall survive to or against his or her executor or ad-
ministrator, and the amount so recovered by either wife or
child shall be his or her sole and separate property. Such
action may be brought in any court of competent juris-
diction. In any case where parents shall be entitled to
such damages, either the father or mother may sue alone
therefor, but recovery by one of such parties shall be a
bar to suit brought by the other.

§ 1257. Place where liquor is kept is declared to be
common nuisance. Sec. 21. Any room, house, building,
boat, vehicle, stinicture, or place where intoxicating
liquor is manufactured, sold, kept, or bartered in viola-
tion of this title, and all intoxicating liquor and property
kept and used in maintaining the same, is hereby de-
clared to be a common nuisance, and any person who
maintains such a common nuisance shall be guilty of a
misdemeanor and upon conviction thereof shall be fined
not more than $1,000 or be imprisoned for not more than
one year, or both. If a person has knowledge or reason
to believe that his room, house, building, boat, vehicle,
structure, or place is occupied or used for the manufac-
ture or sale of liquor contrary to the provision of this
title, and suffers the same to be so occupied or used, such
room, house, building, boat, vehicle, structure, or place
shall be subject to a lien for and may be sold to pay all
fines and costs assessed against the person guilty of
such nuisance for such violation, and any such lien may
be enforced by action in any court having jurisdiction.

§ 1258. Action to enjoin may be brought in the name
of the United States. Sec. 22. An action to enjoin any
nuisance defined in this title may be brought in the name
of the United States by the Attorney General of the
United States or by anj'^ United States attorney or any

974 Criminal Law

prosecuting attorney of any state or any subdivision
thereof or by the commissioner or his deputies or assist-
ants. Such action shall be brought and tried as an action
in equity and may be brought in any court having juris-
diction to hear and determine equity cases. If it is made
to appear by affidavits or othenvise, to the satisfaction
of the court, or judge in vacation, that such nuisance ex-
ists, a temporary writ of injunction shall forthwith issue
restraining the defendant from conducting or permitting
the continuance of such nuisance until the conclusion of
the trial. If a temporary injunction is prayed for, the
court mav issue an order restraining the defendant and
all other persons from removing or in any "way interfer-
ing with the liquor or fixtures, or other things used in
connection with the violation of this act constituting
such nuisance. No bond shall be required in institut-
ing such proceedings. It shall not be necessary for the
court to find the property involved was being unlaw-
fully used as aforesaid at the time of the hearing, but
on finding that the material allegations of the petition
are true, the court shall order that no lupiors shall be
manufactured, sold, bartered, or stored in such room,
house, building, lioat, vehicle, structure, or place, or any
]tai-t tliereof. And u])oii judgment of the court order-
ing such nuisance to be abated, tlie court may order that
the room, house, building, structure, l)()al, vcliicle, or
place shall iml be occuijicd or used tor one ycnr there-
after; but the court may, in its (lisci-clioii, jxTuiit il to
be occupicfi or used il" the owner, lessee, tenant, or occu-
f)aiit tlicrrol" shall gixe Itond with sufficient surety, to be
approved by the court making the order, in the ))enal
and rK|uidated sum ol' not less than $;')()() iioi- moic than
$1,000, payable to the I niled States, and coiKJilioiKMl
that iiiloxicating rK|inii- will not thei-eai'ter he manufac-
tiired, sold, liaiteicd, kept, or othei'wise disposed of
thej-ein or tliei'enn, and that he will |)ay all lines, costs.

The National Prohibition Act 975

and damages that may be assessed for any violation of
this title upon said property.

§ 1259. Any intent to sell liquor may be enjoined. Sec.
23. That any person who shall, with intent to effect a
sale of liquor, by himself, his employee, servant, or agent,
for himself or any person, company, or corporation, keep
or caiTy around on his person, or in a vehicle, or other
conveyance whatever, or leave in a place for another to
secure, any liquor, or who shall travel to solicit, or solicit,
or take, or accept orders for the sale, shipment, or deliv-
ery of liquor in violation of this title and is guilty of a
nuisance and may be restrained by injunction, tempo-
rary and permanent, from doing or continuing to do any
of said acts or things. In such proceedings it shall not
be necessary to show any intention on the part of the
accused to continue such violations if the action is
brought wdthin sixty days following any such violation
of the law. For removing and selling property in en-
forcing this act the officers shall be entitled to charge
and receive the same fee as the sheriff of the county
would receive for levying upon and selling property
under execution, and for closing the premises and keep-
ing them closed a reasonable sum shall be allowed by the
court. Any violation of this title upon any leased prem-
ises by the lessee or occupant thereof shall, at the option
of the lessor, work a forfeiture of the lease.

§ 1260. A violation of an injunction may be summarily
punished as contempt. Sec. 2-1:. In the case of the viola-
tion of any injunction, temporaiy or permanent, granted
pursuant to the provisions of this title, the court, or in
vacation, a judge thereof, may summarily try and pun-
ish the defendant. The proceedings for punishment for
contempt shall be commenced by filing with the clerk
of the court from which such injunction issued infor-
mation under oath setting out the alleged facts consti-

976 Criminal Law

tuting the violation, whereupon the court or judg-e shall
forthwith cause a warrant to issue under which the de-
fendant shall be arrested. The trial may be had upon
aflidavits, or either party may demand the production
and oral examination of the witness. xVny person found
guilty of contempt under the provisions of this section
shall be punished by a fine of not less than $500 nor more
than $1,000, or by imprisonment of not less than thirty
days nor more than twelve months, or by both fine and
imprisonment.

§ 1261. Violation to have in possession anything to aid
in manufacture. Sec. 25. It shall be unlawful to have or
possess any liquor or property designed for the manu-
facture of liquor intended for use in violating this title
or which has been so used, and no property rights shall
exist in anj^ such liquor or property. A search warrant
may issue as provided in Title XI of public law num-
bered 24 of the Sixty-fifth Congress, approved June 15,
1917, and such liquor, the containers thereof, and such
property so seized shall be subject to such disi)osition as
the court may make thereof. If it is found that such
liquor or property was so unlawfully held or possessed,
or had been so uidawfully used, the liquor, and all prop-
erty designed for the unlawful nuuiut'acture of liquor,
shall be destroyed, unless the court shall ollierwise order.
No search warrant shall issue to sean-li any ])rivate
dwelling occupied as such unless it is being usetl lor the
unlawful sale of intoxicating liquor, or unless it is in
part used for some business ])ur])()S(' such as a store,
shop, saloon, restaui'ant, hotel, or Itoniding house. 'Vho
tcrjn " pri\'<'it(' dwelling'' shall lie eoiistrued to include
the I'ooju or rooms used and occupied not, tr.insiently
but solely iis a residence in an apartment house, hotel, or
boarding house. The property seized on any such war-
rant shall not he tnl<en IKini the oflicer seizing the same
on any writ of replevin <n' other like process.

The National Prohibition Act 977

§ 1262. Officer may take vehicle caught in transport-
ing liquor. Sec. 2G. When the commissioner, his assist-
ants, inspectors, or any officer of the law shall discover
any person in the act of transporting, in violation of the
law, intoxicating liquors, in any wagon, buggy, auto-
mobile, water or air craft, or other vehicle, it shall be
his duty to seize any and ,all intoxicating liquors found
therein being transported contrary to law. Whenever
intoxicating liquors transported or possessed illegally
shall be seized by an officer he shall take possession of
the vehicle and team or automobile, boat, air or water
craft, or any other conveyance, and shall arrest any per-
son in charge thereof. Such officer shall at once pro-
ceed against the person arrested under the provisions of
this title in any court having competent jurisdiction:
but the said vehicle or conveyance shall be returned to
the owner upon execution by him of a good and valid
bond, with sufficient sureties, in a sum double the value
of the property, which said bond shall be approved by
said officer and shall be conditioned to return said prop-
erty to the custody of said officer on the day of trial to
abide the judgment of the court. The court upon con-
viction of the person so arrested shall order the liquor
destroyed, and unless good cause to the contrary is shown
by the owner, shall order a sale by public auction of
the property seized, and the officer making the sale, after
deducting the expenses of keeping the property, the fee
for the seizure, and the cost of the sale, shall pay all
liens, according to their priorities, which are established,
by intervention or otherwise at said hearing or in other
proceeding brought for said purpose, as being bona fide
and as having been created without the lienor having
any notice that the cariying vehicle was being used or
was to be used for illegal transportation of liquor, and
shall pay the balance of the proceeds into the treasury
of the United States as miscellaneous receipts. All liens
against property sold under the provisions of this sec-

c. L.— 62

978 Criminal Law

tioii shall be transferred from the property to the pro-
ceeds of the sale of the property. If, however, no one
shall be found claiming the team, vehicle, water or air
craft, or automobile, the taking of the same, with a de-
scription thereof, shall be advertised in some newspaper
published in the city or county where taken or if there
be no newspaper published in such city or county, in a
newspaper having circulation in the county, once a week
for two weeks and by handbills posted in three public
places near the place of seizure, and if no claimant shall
appear wdthhi ten days after the last publication of the
advertisement, the property shall be sold and the pro-
ceeds, after deducting the expenses and costs, shall be
paid into the treasury of the United States as miscellane-
ous receipts.

§ 1263. The court may deliver unlawful liquor to any
department. Sec. 27. In all cases in which intoxicating
ii(iUors may be subject to be destroyed under the pro-
visions of this act the court shall have jurisdiction upon
the application of the United States attorney to order
them delivered to any department or agency of the United
States Government for medicinal, or scientilic uses, or
to order the same sold at jirivate sale for such jjurposes
to any person having a. ijcrmit to purchase Tuiuor to be
covered into the treasury of tlic Ihiited States to the
credit of miscellaneous receii)ts, and all li(iuor hereto-
fore seized in any suit or pioceeding brought for viola-
tion of law nuiy likewise 1)0 so disj)<)se(l of, if not claiiiKMl
within sixty days lioni the dale this section takes effect.

§ 1264. All officers authorized to enforce the criminal
laws may act. Sec. 28. ^i'he commissioner, his assistants,
agents, and insiMM-lois, .nid all other oHieers of tiie United
Stales, whose duty it is In enforce criminal laws, shall
liave all the pitwer and pi'otect inn in the cid'orcemeiil of
tliis act or any ])i'o\isi(His theicdf which is conleri'ecl hy

The National Phohibition Act 979

law for the enforcement of existing laws relating to the
manufacture or sale of intoxicating liquors under the law
of the United States.

§ 1265. Punishment for manufacturing, etc. Sec. 29.
Any person who manufactures or sells liquor in viola-
tion of this title shall for a iirst offense be fined not more
than $1,000, or imprisoned not exceeding six months, and
for a second or subsequent offense shall be fined not less
than $200 nor more than $2,000 and be imprisoned not
less than one •month nor more than five years.

Any person violating the provisions of any permit,
or who makes any false record, report, or affidavit re-
quired by this title, or violates any of the {provisions of
this title, for which offense a special penalty is not
prescribed, shall be fined for a first offense not more than
$500; for a second offense not less than $100 nor more
than $1,000, or be imprisoned not more than ninety days ;
for any subsequent offense he shall be fined not less than
$500 and be imprisoned not less than three months nor
more than two years. It shall be the duty of the prose-
cuting officer to ascertain whether the defendant has been
previously convicted and to plead the prior conviction
in the affidavit, information, or indictment. The penal-
ties provided in this act against the manufacture of
liquor without a j^ermit shall not apply to a person for
manufacturing nonintoxieating cider and fruit juices ex-
clusively for use in his home, but such cider and fruit
juices shall not be sold or delivered except to persons
having permits to manufacture vinegar.

§ 1266. No person can excuse himself on ground that
it wiU incriminate. Sec. 30. No person shall be excused,
on the ground that it may tend to incriminate him or
subject him to a penalty or forfeiture, from attending
and testifying, or producing books, papers, documents,
and other evidence in obedience to a subpoena of any

980 Ckiminal Law

court ill any suit or proceeding based upon or growing
out of any alleged violation of this act; but no natural
person shall be prosecuted or subjected to any penalty
or forfeiture for or on account of any transaction, mat-
ter, or thing as to which, in obedience to a subpoena and
under oath, he may so testify or produce evidence, but no
person shall be exempt from prosecution and punishment
for perjury committed in so testifying.

§1267. Delivery by common carrier — Jurisdiction at
point delivered to consignee. Sec. 31. In c*ase of a sale
of liquor where the delivery thereof was made by a com-
mon or other carrier the sale and deliveiy shall be
deemed to be made in the county or district wherein the
deliveiy was made by such carrier to the consignee, his
agent or employee, or in the county or district wherein
the sale was made, or from which the shipment was made,
and prosecution for such sale or delivery may be had in
any such county or district.

§ 1268. Several counts may be joined and conviction
for all had. Sec. 32. In any affidavit, information, or in-
dictment for the violation of this act, separate offenses
may be united in separate counts and the defendant may
be tried on all at one trial and the penalty for all offenses
may be imposed. It shall not be necessary in any affi-
davit, infonnation, or indictment to give the name of
the ]jurchaser or to include any defensive negative aver-
ments, but it sliall be sufficient to state that the act com-
plained <»r was then and there prohibited and unlawful,
but 1hi> provision shall not be construed to preclude the
trial court fi<»ni directing the furnishing the defendant a
hill of pai-ticulars when it deems it proper to do so.

§ 1269. After Feb. 1, 1920, possession prima facia evi-
dence is kept for sale. Sec .".:'.. .Mln' i*\'l»iuary 1, 1!)20,
the i)osHessi<»ii (.f liiinors by any jxTson iiol legally per-

■ The National Prohibition Act 981

mitted under this title to possess liquor shall be prima
facie evidence that such liquor is kept for the purpose
of being sold, bartered, exchanged, given away, fur-
nished, or otherwise disposed of in violation of the pro-
visions of this title. Every person legally permitted un-
der this title to have liquor shall report to the commis-
sioner within ten days after the date when the Eighteenth
Amendment of the Constitution of the United States goes
into effect, the kind and amount of intoxicating liquors
in his possession. But it shall not be unlawful to pos-
sess liquors in one's private dwelling while the same is
occupied and used by him as his dwelling only and such
liquor need not be reported, provided such liquors are
for use only for the personal consumption of the owner
thereof and his family residing in such dwelling and of
his bona fide guests when entertained by him therein;
and the burden of proof shall be upon the possessor in
any action concerning the same to prove that such liquor
was lawfully acquired, possessed and used.

§ 1270. All reports required to be filed are subject to
inspection. Sec. 34. All records and reports kept or filed
under the provisions of this act shall be subject to in-
spection at any reasonable hour by the commissioner or
any of his agents or by any public prosecutor or by any
person designated by him, or by any peace officer in the
State where the record is kept, and copies of such rec-
ords and reports duly certified by the person with whom
kept or filed may be introduced in evidence with like
effect as the originals thereof, and verified copies of such
records shall be furnished to the commissioner when
called for.

§ 1271. All laws inconsistent with this act are repealed.
Sec. 35. All provisions of law that are inconsistent with
this act are repealed only to the extent of such incon-
sistency and the regulations herein provided for the

982 Criminal Law

manufacture or traffic in intoxicating liquor shall be con-
stiiied as in addition to existing laws. This act shall
not relieve any one from paying any taxes or other
charges imposed upon the manufacture or traffic in such
liquor. No liquor revenue stamps or tax receipts for any
illegal manufacture or sale shall be issued in advance,
but upon evidence of such illegal manufacture or sale
a tax shall be assessed against, and collected from, the
person responsible for such illegal manufacture or sale
in double the amount now provided by law, with an addi-
tional penalty of $500 on retail dealers and $1,000 on
manufacturers. The payment of such tax or penalty
shall give no right to engage in the manufacture or
sale of such liquor, or relieve anyone from criminal lia-
bility, nor shall this act relieve any person from any
liability, civil or criminal, heretofore or hereafter in-
curred under existing laws.

The commissioner, with the approval of the Secretary
of the Treasury, may compromise any civil cause aris-
ing under this title before bringing action in court; and
with tlie approval of the Attorney General he may com-
promise any such cause after action thereon has been
commenced.

§ 1272. Any provision of this act invalid does not af-
fect others. Sec. .'>(). If any provision of this act shall
be licld iiixalid it shall not be construed to invalidate
other })ro\isi()iis of the act.

§ 1273. Liquor may be stored in bonded warehouses.
Sec. .'57. Xolhiiig ho-ciii shall i)r('\('iil IIk^ storage in
United States l)oii(h'(l wni-cliouses of .-ill li<|n()r itiami-
facturcd piioi- to the taking ('ITcct of this .-u't, or ])re-
\'('iit the I r;iiis))ort;it idii of such ruiiior to such \vai"e-
hoiiscs or to ;iiiy \vliol('s;ilc (liMiggist I'oi" sale to such
dniggist for pnrposc^H iiol |irohihilc(l when the tax is
|i;ii(I, ;iii(| |Hiiiiils iii;iy lie issued thcl'efor.

The National Prohibition Act 983

A manufacturer of any beverage containing less than
one-half of 1 per centum of alcohol by volume may, on
making application and giving such bond as the commis-
sioner shall prescribe, be given a permit to develop in
the manufacture thereof by the usual methods of fer-
mentation and fortification or otherwise a liquid such as
beer, ale, porter, or wine, containing more than one-half
of 1 per centum of alcohol by volume, but before any
such liquid is withdrawn from the factory or otherwise
disposed of the alcoholic contents thereof shall under
such rules and regulations as the commissioner may
prescribe be reduced below such one-half of 1 per centum
of alcohol: Provided, that such liquid may be removed
and transported, under bond and under such regulations
as the commissioner may prescribe from one bonded
plant or warehouse to another for the purpose of hav-
ing the alcohol extracted therefrom. And such liquids
may be developed, under permit, by persons other than
the manufacturers of beverages, containing less than
one-half of 1 per centum of alcohol by volume, and sold
to such manufacturers for conversion into such bever-
ages. The alcohol removed such liquid, if evaporated
and not condensed and saved, shall not be subject to
tax ; if saved, it shall be subject to the same law as other
alcoholic liquors. Credit shall be allowed on the tax
due on any alcohol so saved to the amount of any tax
paid upon the distilled spirits or brandy used in the forti-
fication of the liquor from which the same is saved.
When fortified wines are made and used for the pro-
duction of nonbeverage alcohol, and dealcoholized wines
containing less than one-half of 1 per centum of alcohol
by volume, no tax shall be assessed or the spirits used
in such fortification, and such dealcoholized wines pro-
duced under the provisions of this act, whether carbon-
ated or not, shall not be subject to the tax on artificially
carbonated or sparkling wines, but shall be subject to
the tax on still wines only.

984: Crimixal Law

In any case where the manufacturer is charged with
manufacturing or selling for beverage pui*i30ses any
malt, vinous, or fermented liquids containing one-half of
1 per centum or more of alcohol by volume, or in any
case where the manufacturer, having been permitted by
the commissioner to develop a liquid such as ale, beer,
porter, or wine, containing more than one-half of 1 per
centum of alcohol by volume in the manner and for
the purpose herein provided, is charged with failure to
reduce the alcoholic content of any such liquid below
such one-half of 1 per centum before withdrawing the
same from the factory, then in either such case the bur-
den of proof shall be on such manufacturer to show that
such liquid so manufactured, sold, or withdrawn con-
tains less than one-half of 1 per centum of alcohol by
volume. In any suit or proceeding involving the alco-
holic content of any beverage, the reasonable expense
of analysis of such beverage shall be taxed as costs in the
case.

§ 1274. The commissioner of internal revenue and at-
torney general may employ assistants. Sec. 38. The com-
iiiissioiicr of inU'nial revenue and the Attorney General
of the United States are hereby respectively authorized
to appoint and employ such assistants, experts, clerks,
and other emi)loyees in the District of Columbia or else-
where, and to purchase such supplies and equipment as
tliey may deem necessary for the enforcements of the
provisions of tliis act, but such assistants, experts, clerks,
and otlitr ('nii)loyoes, except such executive oflicers as
may be ai)j)()inted l)y the connnissionci" oi- the attorney
general to have innnediate direct inn of llic enforcement
of tlx' provisions of tliis act, and persons authorized
to issue |iiinills, and agents and ins|i('('1ors in the (i(dd
service, shall ix; appointed undi'i' llie rules and regula-
tions prescribed ])y the Civil Service Act: Provided,
^i'hat the eonnnissioner ;ind attorney gcnei'al in mak-
ing such ap|iointnients shall give pi'eference to those

The National Prohibition Act 985

who have served in the military or naval service in the
recent war, if otherwise qualified, and there is hereby
authorized to be appropriated, out of any money in the
Treasury, not otherwise appropriated, such sum as may
be required for the enforcement of this act including- per-
sonal services in the District of Columbia, and for the
fiscal year ending June 30, 1920, there is hereby ap-
propriated, out of any money in the Treasury, not other-
wise appropriated, the sum of $2,000,000 for the use
of the commissioner of internal revenue and $100,000
for the use of the Department of Justice for the enforce-
ment of the provisions of this act, including personal
services in the District of Columbia and necessary print-
ing and binding.

§ 1275. Where property is proceeded against summons
must be served on accused. Sec. 39. In all cases wherein
the property of any citizen is proceeded against or where-
in a judgment affecting it might be rendered, and the
citizen is not the one who in person violated the pro-
visions of the law, summons must be issued in due form
and served personally, if said person is to be found within
the jurisdiction of the court.'^

TITLE III
GENERAL PROVISIONS

§ 1276. General provisions United States Prohibition

Act. Sec. 12. The penalties provided in this title shall
be in addition to any penalties provided in title 2 of this
act, unless expressly otherwise therein provided.^

§ 1277. Regulations, etc., to be prescribed. Sec. 13.
The commissioner shall from time to time issue regula-
tions respecting the establishment, bonding, and opera-

2— Sees. 1 to 12, title III do not U. S. Prohibition Act. Sec. 12,

relate to criminal features of the approved Oct 27, 1919, 41 Stat,

act. 321.

3 — Title III General Provisions

986 Criminal Law

tioii of industrial alcohol plants, denaturing plants, and
bonded warehouses authorized herein, and the distribu-
tion, sale, export and use of alcohol, which may be neces-
sary, advisable, or proper to secure the revenue, to pre-
vent diversion of the alcohol to illegal uses, and to place
the nonbeverage alcohol industry and other industries
using such alcohol as a chemical raw material or for other
lawful purpose, upon the highest possible plane of scien-
tific and commercial efficiency consistent with the inter-
ests of the government, and which shall insure an ample
supply of such alcohol and promote its use in scientific
research and tlie development of fuels, dyes, and other
lawful products.*

§ 1278. Allowance for evaporation, leakage, etc. Sec.
14. "Whenever any alcohol is lost by evaporation or
other shrinkage, leakage, casualty, or unavoidable cause
during distillation, redistillation, denaturation, with-
drawal, piping, shipment, warehousing, storage, packing,
transfer, or recovery, of any such alcohol the commis-
sioner may remit or refund any tax incurred under ex-
isting law upon sucli alcohol, provided he is satisfied
that the alcohol has not been diverted to any illegal use:
Provided, also, That such allowance shall not be granted
if the person claiming same is indemnified against such
loss by a valid claim of insurance.^

i) 1279. Punishment for violation provisions of this
title. Wlioever ()])erates an industrial alcohol |)l;iiit or a
denaturing |»l;ni1 willioiit complying willi the provisions
of (liis litlc ;iii<l Ijiwt'iil icgulalioiis iiindc 1 licrcundcr, or
whoever willidraws (W attempts (o withdraw or secure
tax free any jilcoliol subject to t;i\, or whoever otherwise
\'iol;ites ;iiiy of the |)ru\lvi(iiis ol' this title or ol' I'eguln-

4 — Titio ill, (iununil Provisions .'") — Tillc III, (icncrjil I'rovisions

IT. S. I'roliiliitioii Act, Sec. l.'J, Jip- U. S. rrdliiiiitioii Act, Sec. 14, aj)-
provcd Oct. 27, 1919, 41 Htat. 321. pn.vr,! Oct. 27, 1919, 41 Stat. 321.

The National Prohibition Act 987

tions lawfully made thereunder, shall be liable, for the
first offense, to a penalty of not exceeding $1,000, or
imprisonment not exceeding thirty days, or both, and
for a second or cognate offense to a penalty of not less
than $100 nor more than $10,000, and to imprisonment
of not less than thirty days nor more than one year. It
shall be lawful for the commissioner in all cases of
second or cognate offense to refuse to issue for a period
of one year a permit for the manufacture or use of alco-
hol upon the premises of any person responsible in any
degree for the violation.^

§ 1280. Discretionary method of collecting tax. Any
tax payable upon alcohol under existing law may be
collected either by assessment or by stamp as regulations
shall provide; and if by stamp, regulations shall issue
prescribing the kind of stamp to be used and the man-
ner of affixing and cancelling the same.'

§ 1281. Release of seized property under bond. When
any property is seized for violation of this title it may
be released to the claimant or to any intervening party,
in the discretion of the Commissioner, on a bond given
and approved.®

§ 1282. General revenue laws, etc., applicable. All ad-
ministrative provisions of internal-revenue law, includ-
ing those relating to assessment, collection, abatement,
and refund of taxes and penalties, and the seizure and
forfeiture of property, are made applicable to this title in
so far as they are not inconsistent with the provisions
thereof.^

6 — Title III, General Provisions 8 — Title III, General Provisions
U. S. Prohibition Act, Sec. 15, ap- U. S. Prohibition Act, Sec. 17, ap-
proved Oct. 27, 1919, 41 Stat. 321. proved Oct. 27, 1919, 41 Stat. 322.

7 — Title III, General Provisions 9 — Title III, General Provisions
U. S. Prohibition Act, Sec. 16, ap- U. S. Prohibition Act, Sec. 18, ap-
proved Oct. 27, 1919, 41 Stat. 322. proved Oct. 27, 1919, 41 Stat. 322.

988 Criminal Law

§ 1283. Inconsistent laws repealed. All prior statutes
relating to alcohol as defined in this title are hereby re-
pealed in so far as they are inconsistent with the provi-
sions of this title.^"

§ 1284. Canal Zone, general prohibition of liquors with-
in. That it shall be unlawful to import or introduce into
the Canal Zone, or to manufacture, sell, give away, dis-
pose of, transport, or have in one's possession or under
one's control within the Canal Zone, anj^ alcoholic, fer-
mented, brewed, distilled, vinous, malt, or spirituous
liquors, except for sacramental, scientific, pharmaceuti-
cal, industrial, or medicinal purposes, under regulations
to be made by the President, and any such liquors within
the Canal Zone in violation hereof shall be forfeited to
the United States and seized : Provided, That this section
shall not apply to liquor in transit through the Panama
Canal or on the Panama Railroad.

That each and every violation of any of the provisions
of this section shall be punished by a fine of not more
than $1,0U0 or imprisonment not exceeding six months
for a first offense, and by a fine not less than $200 nor
more than $2,000 and imprisonment not less than one
month nor more than live years for a second or subse-
quent offense.

That all offenses heretofore committed within the Canal
Zone may be prosecuted and all penalties therefor en-
forced ill llio same iiiaiiiier and to the same extent as if
this act had noi hrcii ])assed."

iS^ 1285. Time of enforcement, immediately. 'I'illes T and
ill and sections 1, 27, 37, and 38 of title II of this act
shall take effect and he in force from and after the pas-
sage and ajjproval of the act. Tlie other sections of

10 — Titlo III, Ocncr.Tl ProvisioiiH 11— Title III, Gcncml Provisions

TT. S. Proliibition Act, Sec. 19, ap- U. S. Prolnhiiioii Act, Sec. 20, ap-
proved Oct. 27, 1919, 41 Stat. .322. proved Oct. 27, 1919, 41 Stat. 322.

The National Prohibition Act 989

title II shall take effect and be in force from and after
the date when the Eighteenth Amendment of the Con-
stitution of the United States goes into effect. ^^

F. H. Gillett,
Speaker of the House of Representatives.

Thos. R. Marshall,
Vice President of the United States and President of
the Senate.

§ 1286. Alcohol obtained for denaturing purposes un-
der Act June 7, 1906, and sells same — Penalty. That any
person who withdraws alcohol free of tax under the
provisions of this act and regulations made in pursu-
ance thereof, and who removes or conceals same, or is
concerned in removing, depositing or concealing same for
the purpose of preventing the same from being denatured
under governmental supervision, and any person who
uses alcohol withdrawn from bond under the provisions
of section one of this act for manufacturing any bever-
age or liquid medicinal preparation, or knowingly sells
any beverage or liquid medicinal preparation made in
whole or in part from such alcohol, or knowingly vio-
lates any of the provisions of this act, or who shall re-
cover or attempt to recover by redistillation or by any
other process or means, any alcohol rendered unfit for
beverage or liquid medicinal purposes under the provi-
sions of this act, or who knowingly uses, sells, conceals,
or otherwise disposes of alcohol so recovered or redis-
tilled, shall on conviction of each offense be fined not
more than five thousand dollars, or be imprisoned not
more than five years, or both, and shall, in addition, for-
feit to the United States all personal property used in
connection with his business, together with the build-
ings and lots or parcels of ground constituting the prem-

12— Title III National Prohibition
Act, approved Oct. 27, 1919, 41
Stat. 322.

990 Criminal Law

ises of which said unlawful acts are performed or per-
mitted to be perfonned: Provided, That manufacturers
employing processes in which alcohol, used free of tax
under the provisions of this act, is expressed or evapor-
ated from the articles manufactured, shall be permitted
to recover such alcohol and to have such alcohol restored
to a condition suitable solely for re-use in manufactur-
ing processes under such regulations as the commissioner
of internal revenue, with the approval of the secretary
of the treasuiy, shall prescribe.^'

§ 1287. Every owner, agent, etc., of brewery who at-
tempts or evades the payment of the tax guilty of mis-
demeanor. Every owner, agent, or superintendent of any
brewery, vessels, or utensils used in making fermented
liquors, who evades, or attempts to evade, the payment
of the tax thereon, or fraudulently neglects or refuses
to make true and exact entiy and report of the same in
the manner required by law, or to do, or cause to be
done, any of the things b}^ law required to be done by
him, as aforesaid, or who intentionally makes false entry
in said book or in said statement, or knowingly allows
or procures the same to be done, shall forfeit, for every
such offense, all the liquors made ]\v him or for him,
and all the vessels, utensils, and a])paratus used in mak-
ing tlie same, and be liable to a ])enalty of not less than
five hundred nor more tlinn one IJionsaiui dollars, to be
iccovered with costs of suit, and shall be deemed guilty
of a niisdemeanoi", and be inipiisoned for a leiiii not ex-
ceeding one year. And e\'ery brewer who neglects to
keej) books, oi- icfuses to furnisli the account ;ind dui)li
entc thereof m.s ))i-o\ide(l by l;i\\, (U' refuses to permit the
I»ro|M'i" oflieer to eNnminc llic hooks in the ninnner j)ro-
\'ide(h shnlL for cxciy such rt'lnsnl or neglect, forfeit
.■hmI |»;iy the >inn of three linn(hi'(| dollnrs.^*

13— 8pp. 2, Act .lim.< 7, IIHiC, ;m l4_^l{,.v. Stjit. iJiHd, Act .luiio fi,

Htat. 217. 1H712, 17 8tat. 246.

The National Prohibition Act 991

§ 1288. Withdrawing- fermented liquors from cask upon
which there is no stamp — Penalty. Whenever any retail
dealer, or other person, withdraws or aids in the with-
drawal of any fermented liquor from any hogshead, bar-
rel, keg, or other vessel containing the same, without
destroying or defacing the stamp affixed thereon, or with-
draws or aids in the withdrawal of any feraiented liquor
from any hogshead, barrel, keg, or other vessel, upon
which the proper stamp has not been affixed or on which
a false or fraudulent stamp is affixed, he shall be fined
one hundred dollars and imprisoned for not more than
one year."

§ 1289. Selling- fermented liquors from any cask, barrel
or keg: upon which stamp has not been affixed — Penalty.
Whenever any brewer, cartman, agent for transportation,
or other person, sells, removes, receives, or purchases,
or in any way aids in the sale, removal, receipt, or pur-
chase, of any fermented liquor contained in any hogs-
head, barrel, keg, or other vessel from any brewery or
brewery warehouse, upon which the stamp, or permit,
in case of removal, required by law, has not been affixed,
or on which a false or fraudulent stamp, or permit, in case
of removal, is affixed, with knowledge that it is such, or
on which a stamp, or permit, in case of removal, once
canceled, is used a second time, he shall be fined one hun-
dred dollars and imprisoned for not more than one year.^^

§ 1290. Counterfeiting- or making- false stamp for fer-
mented liquor — Penalty. Every person who makes, sells,
or uses any false or counterfeit stamp or permit, or die
for printing or making stamps or permits, which is in
imitation of or purports to be a lawful stamp, permit, or
die of the kind before mentioned in this chapter, or who
procures the same to be done, and eveiy person who shall

15— Eev. Stat. 3344, Act June 6, 16— Eev. Stat. 3343, Act June 6,

1872, 17 Stat. 247. 1872, 17 Stat. 247.

992 Ckimixal Law

remove, or cause to be removed, from any cask or pack-
age of fennented liquors, any stamp denoting the tax
thereon, with intent to re-use such stamp, or who, with
intent to defraud the revenue, knowingly uses, or peiTuits
to be used, any stamp removed from another cask or
package, or receives, buys, sells, gives away, or has in
his possession, any stamp so removed, or makes any
fraudulent use of any stamp for fermented liquors, shall
be fined not less than one hundred dollars nor more than
one thousand dollars, and imprisoned not less than six
months nor more than three vears.^'

§ 1291. Stamp on hogshead or other receptacle contain-
ing- fermented liquor, must not be severed or defaced
except by owner. Every person, other than the purchaser
or owner of any fennented liquor, or person acting on his
behalf, or as his agent, who intentionally removes or de-
faces the stamp or permit afiixed upon the hogshead,
barrel, keg, or other vessel, in which the same is con-
tained, shall be liable to a fine of fifty dollars for each
such vessel from which the stamp or pennit is so removed
or defaced, and to render compensation to such purchaser
or owner for all damages sustained by him therefrom,^^

§ 1292. Distiller knowingly using any false measure
under act July 20, 1868. Kvery person who knowingly
uses any fal.se weights or measures in ascertaining,
weigliiiig, or measuring tlie ciuantities of grain, meal, oi*
vegetable matenals, molasses, beer, or other substances
to 1)0 used for distillation, shall be fined not less tlian five
liundrcfl dolhirs nor more Ibnii five iliousniid dollars, and
imprisoned not less lliaii one year noi- more tlian three
years. Any person wlio uses any molasses, beer, oi- oilier
substance, whether fennented on llic premises or else-
wliere, for the purpose of producing spirits, before an
account of the same is I'egistcTvd in the pi"o]i('r book pro-

17— Rev. Stat. 3.340, March 1, 18— R. S. 3353, Sec. 30, Act June

1879, 20 Stat. 340. 6, 1872, 17 Stat. 249.

The National Prohibition Act 993

vided for that purpose, sliall forfeit and pay the sum of
one thousand dollars for each offense so committed, ^^

§ 1293. Revenue ofRcers permitting- the use of canceled
stamps under Act July 20, 1868 — Penalty. Whenever any
revenue officer who shall affix or cancel or cause or per-
mit to be affixed or canceled, any stamp relating to dis-
tilled spirits provided for by law, in any other manner or
in any other place, or issues the same to any other person
than as provided by law, or by regulation made in pur-
suance thereof, or knowingly affixes, or permits to be
affixed, any such stamp to any cask or package or spirits
of which the whole or any part has been distilled, recti-
fied, compounded, removed, or sold, in violation of law,
or which has in any manner escaped payment of tax due
thereon, he shall, for every such offense, be fined not less
than five hundred dollars nor more than three thousand
dollars and be imprisoned for not less than six months
nor more than three years.^°

§ 1294. Adding- before payment of tax on distilled spir-
its, substance to create fictitious proof under act July 20,
1868 — Punishment. Every person who adds or causes to be
added any ingredient or substance to any distilled spirits
before the tax is paid thereon, for the purpose of creating
a fictitious proof, shall be fined not less than one hundred
dollars nor more than one thousand dollars for each cask
or package so adulterated, and imprisoned not less than
three months nor more than two years; and every such
be forfeited to the United States.^^

§ 1295. Under act March 31, 1868, distiller attempts or
defrauds government — Punishment. Whenever any per-
son engaged in carrying on the business of a distiller de-
frauds or attempts to defraud the United States of the

19— Act July 20, 1868, 15 Stat. 21— Act July 20, 1868, Eev. Stat.

141, Eev. Stat. 3306. 3252, 15 Stat. 141.

20— Sec. 29, July 20, 1868, 15
Stat. 138.

C. L.— 63

994 Criminal Law

tax on the spirits distilled by liim, or any part thereof, he
shall forfeit the distillery and distilling-apparatus used
by him, and all distilled spirits and raw materials for the
production of distilled spirits found in the distillery and
on the distillery premises, and shall be fined not less than
five hundred dollars nor more than five thousand dollars,
and be imprisoned not less than six months nor more than
three years.^^

§ 1296. Act July 20, 1868, distiller must register still
with collector — Violation — Punishment. Every person
having in his possession or custody, or under his control,
any still or distilling apparatus set up, shall register the
same with the collector of the district in which it is, by
subscribing and filing with him duplicate statements, in
writing, setting forth the particular place where such
still or distilling-apparatus is set up, the kind of still and
its cubic contents, the owner thereof, his place of resi-
dence, and the purpose for which said still or distilling-
apparatus has been or is intended to be used; one of
which statements shall be retained and preserved by the
collector, and the other transmitted by him to the com-
missioner of internal revenue. Stills and distilling-ap-
paratus shall be registered immediately upon their being
set up. Every still or distilling-apparatus not so regis-
tered, together with all personal property in the posses-
sion or custody, or under the control of sucli person, and
found in the building, or in any yard or inclosure con-
nected willi the building in which the same may be set
up, shall l)e forfeited. And cvciy person having in his
possession or custody, or nnder his control, any still or
distilling-nppjiratus set up which is not so registered,
shall j)ay a i)cnalty of five hnndrod dollars, and shall be
fined not less llinn one linndicij dollars, nor more than

22— Act March 31, 1868, Kcv.
Stat. 3257, 15 Stat. 59.

The National Peohibition Act 995

one thousand dollars, and imprisoned for not less than
one month, nor more than two years.^^

§ 1297. Act July 20, 1868, distiller must give notice of
engaging- in business — Failure — Penalty. Every person
engaged in, or intending to be engaged in, the business
of a distiller or rectifier, shall give notice in writing, sub-
scribed by him, to the collector of the district wherein
such business is to be. carried on, stating his name and
residence, and if a company or firm, the name and resi-
dence of each member thereof, the name and residence
of every person interested or to be interested in the busi-
ness, the precise place where said business is to be car-
ried on, and whether of distilling or rectifying; and if
such business is carried on in a city, the residence and
place of business shall be indicated by the name of the
street and number of the building. In case of a distiller,
the notice shall also state the kind of stills and the cubic
contents thereof, the number and kind of boilers, the
number of mash-tubs and fennenting-tubs, the cubic con-
tents of each tub, the number of receiving-cisterns, the
cubic contents of each cistern, the number of hours in
which the distillery will ferment each tub of mash or
beer, the estimated quantity of distilled spirits which the
apparatus is capable of distilling every twenty-four
hours, a particular description of the lot or tract of land
on which the distillery is situated, and the buildings
thereon, including their size, material, and construction;
and that said distillery premises are not within six hun-
dred feet, in a direct line, of any premises authorized to
be used for rectifying or refining distilled spirits by any
process. In case of a rectifier, the notice shall state the
precise place where such business is to be carried on, the
name and residence of every person interested or to be
interested in the business, the process by which the appli-

23— Rev. Stat. 3258, See Act Dec.
24, 1872, 17 Stat. 402.

996 Criminal Law

cant intends to rectify, purify, or refine distilled spirits,
the kind and cubic contents of any still used or to be used
for such purpose, the estimated quantity of spirits which
can be rectified, purified, or refined eveiy twenty-four
hours in such establishment, and that said rectifying-
establishment is not within six hundred feet, in a direct
line, of the premises of any distillery registered for the
distillation of spirits. In case of any change in the
location, form, capacity, ownership, agency, superintend-
ency, or in the persons interested in the business of such
distillery or rectifying-establishment, or in the time of
fermenting the mash or beer, notice thereof, in writing,
shall be given to the said collector or proper deputy col-
lector, of the district within twenty-four hours after such
change; and any deputy collector receiving such notice
shall immediately transmit the same to the collector of
the district. Every notice required by this section shall
be in such fonn, and shall contain such additional partic-
ulars, as the connuissioner of internal revenue may, from
time to time, prescribe. Every person who fails or re-
fuses to give such notice shall pay a penalty of one thou-
sand dollars, and shall be fined not less than one hundred
dollars nor more than two thousand dollars; and every
person who gives a false or fraudulent notice shall, in
addition to sucli penalty or fine, be imprisoned not less
than six months nor more lliaii two years.^*

§ 1298. Prchibition against certain places where still
may be set up under act June 6, 1872. No person sliall use
any still, boiler, or other vessel, for the purpose of distill-
ing, in any dwelling-house, or in any shed, yard or
iiiclosuic coiuiccted with .'my dwelling-house, or on board
of niiy vessel oi" l)()nt, oi- in ;iiiy building, or on .•my prem-
ises wliei'e l)cef, l.-iuci' hee)-, ;i!e, |)olier, oi" oilier fcF-
nicnted li(|Uors, vinegjir or ellier, ;n-e in;niut",ict nred or
|iro(ln<<Ml, or wln'cc snu.'irs oi" sii'njts .'iic I'dincd, or where

24— Act Dec. 24, 1872, Rev. Stat.
32.59, 17 Stat. 401.

The National Prohibition Act 997

liquors of any description are retailed, or where any
other business is carried on; or within six hundred feet
in a direct line of any premises authorized to be used for
rectifying; and every person who does any of the acts
prohibited by this section, or aids or assists therein, or
causes or procures the same to be done, shall be fined one
thousand dollars and imprisoned for not less than six
months nor more than two years, in the discretion of the
court, for each such offense: Provided, That saleratus
may be manufactured, or meal or flour ground from
grain, in any building or on any premises where spirits
are distilled; but such meal or flour shall be used only for
distillation on the premises: Provided, further. That any
boiler used in generating steam or heating water to be
used in any distillery, may be located in any other build-
ing or on any other premises to be connected with such
still or boiling-tubs, by suitable pipes or other apparatus,
or the steam from such boiler in the distillery may be
conveyed to other premises to be used for manufacturing
or other purposes.^^

§ 1299. Under act July 20, 1868, breaking locks of cis-
tern or building. Every person who destroys, breaks,
injures, or tampers with any lock or seal which may be
placed on any cistern-room or building by the duly au-
thorized officers of the revenue, or opens said lock or seal,
or the door to said cistern-room or building, or in any
manner gains access to the contents therein, in the ab-
sence of the proper officer, shall be fined not less than
five hundred dollars nor more than five thousand dol-
lars, and imprisoned not less than one year nor more than
three years.^^

§ 1300. Under act July 20, 1868, distiUer must keep
sign posted. Every person engaged in distilling or recti-
fying spirits, and every wholesale liquor-dealer, shall

25— Eev. ^tat. 3266, 17 Sta't. 26— Per Stat. 3268, 15 Stat. 141.

239.

998 Criminal Law

place and keep conspicuously on the outside of the place
of such business a sign, exhibiting in plain and legible let-
ters, not less than three inches in length, painted in oil-
colors or gilded, and of a proper and proportionate width,
the name or finn or the distiller, rectifier, or wholesale
dealer, with the words: ''Registered distillery," ''recti-
fier of spirits, " or " wholesale liquor-dealer, ' ' as the case
may be. Every person who violates the foregoing pro-
vision by negligence or refusal, or otherwise, shall pay
a penalty of five hundred dollars. And every person,
other than a rectifier or wholesale liquor-dealer who has
paid the special tax, or a distiller who has given bond as
required by law, who puts up or keeps up the sign re-
quired by this section, or any sign indicating that he may
lawfully carry on the business of a distiller, rectifier, or
wholesale liquor-dealer, shall forfeit and pay one thou-
sand dollars, and shall be imprisoned not less than one
month nor more tlian six months. And every person who
works in any distillery, rectifying establishment, or
wholesale liquor-store, on which no sign is placed and
kept, as hereinbefore provided; and every person who
knowingly receives at, carries or conveys any distilled
spirits to or from, any such distillery, rectifying estab-
lishment, warehouse, or store, or who knowingly carries
and delivers any gi-ain, molasses, or other raw material
to any distilleiy on which sucli sign is not phiced and
kept, shall forfeit all liorses, carts, drays, wagons, or other
vehicle or animal used in caiTNinn- oi- t'oiivevini>- such
])roi)erty as aforesaid, and shall be fined nol less than oik!
hundred dollars noi- nioic Ihan one llioiisand dollars, or
be imprisoned nol h-ss than one month iioi' more than six
months."

§ 1301. No distillation can be made except in regular
distillery. Xo mash, wort, or wash, lit I'or distillation or
for the prodnction of spirits or alcohol, shall he made oi'

27— Kev. Ktat. 8279, 15 Htjit. VA2.

The National Pkohibition Act 999

fermented in any building or on any premises other than a
distilleiy duly authorized according to law; and no mash,
wort, or wash so made and fermented shall be sold or
removed from any distillery before being distilled; and
no person, other than an authorized distiller, shall, by
distillation, or by any other process, separate the alco-
holic spirits from any fermented mash, wort or wash; and
no person shall use spirits or alcohol in manufacturing
vinegar or any other article, or in any process of manu-
facture whatever, unless the spirits or alcohol so used
shall have been produced in an authorized distillery and
the tax thereon paid. Every person who violates any
provision of this section shall be fined for each offense
not less than five hundred dollars nor more than five thou-
sand, and be imprisoned not less than six months nor
more than two years. Provided, further. That nothing in
this section shall be construed to apply to fermented
liquors used for the manufacture of vinegar exclusively.
But no worm, gooseneck pipe, conductor, or contrivance
of any description whatsoever whereby vapor might in
any manner be conveyed away and converted into dis-
tilled spirits, shall be used or employed or be fastened
to or connected with any vaporizing apparatus used for
the manufacture of vinegar; nor shall any worm be per-
mitted on or near the premises where such vaporizing
process is carried on. Nor shall any vinegar factory, for
the manufacture of vinegar as aforesaid, be permitted
within six hundred feet of any distillery or rectifying
house. But it shall be lawful for manufacturers of vin-
egar to separate, by a vaporizing process, the alcoholic
property from the mash produced by them, and condense
the same by introducing it into the water or other liquid
used in making vinegar. No person, however, shall re-
move, or cause to be removed, from any vinegar factory
or place where vinegar is made, any vinegar or other
fluid or material containing a greater proportion than
two per centum of proof spirits. Any violation of this

1000 Criminal Law

provision shall incur a forfeiture of the vinegar, fluid, or
material containing such proof spirits, and shall subject
the person or persons guilty of removing the same to the
punishment provided for any violation of this section.
And all the provisions of sections thirty-two hundred and
seventy-six, thirty-two hundred and seventy-seven, and
thirty-two hundred and seventy-eight of the Revised
Statutes of the United States are hereby extended and
made applicable to all premises whereon vinegar is manu-
factured, to all manufacturers of vinegar and their work-
men or other persons employed by them (these sections
refer to penalties and not punishment). '^^

§ 1302. Unlawful for gauger to allow others to perform
his duties. AVhenever any ganger employs any owner,
agent, or superintendent of unj distillery or distillery
w^arehouse, or any person in the service of such owner,
agent, or superintendent, or any rectifier or wholesale
liquor-dealer, or any person in the service of such recti-
fier or wholesale liquor-dealer, to use his brands, or to
discharge any of the duties imposed upon him hy law, he
shall, for each offense so committed, pay a line not ex-
ceeding one tliousand dollars, in the discretion of tlio
court. '^^

§ 1303. Under act July 20, 1868, punishes gauger who
malces false inspection. Kvery ganger wlio maivos any
false (»r traiKhiiciit inspection, ganging, or proof shall
pay a jx'iiaity of one thoiisaiid dollars, aiKl 1)0 fined not
less lliaii five ImiKlicd dollins nor mocc tli.iii five tliou-
sand (lol!;ii"s, aiKJ iiii])i"is()n('d not less lli;in tliicc months
iioi' nunc tlinn three years. ^*'

28— Itcv. Stat. 3282, Act March 30— Rev. Stat. 3292, 15 Stat. 147.

1, 1879, 20 Stat. 335.

29— Act July 13, 1800, Rev. Stat.
3290, Dec. 24, 1H72, 17 Htnt. 401.

The National Prohibition Act 1001

§ 1304. Act July 20, 1868, punishment for removing
spirits upon which tax had not been paid. Whenever
any person removes, or aids or abets in the removal of
any distilled spirits on which the tax has not been paid,
to a place other than the distilleiy warehouse provided
by law, or conceals or aids in the concealment of any
spirits so removed, or removes, or aids or abets in the
removal of any distilled spirits from any distillery ware-
house, or other warehouse for distilled spirits authorized
by law, in any manner other than is provided by law, or
conceals or aids in the concealment of any spirits so re-
moved he shall be liable to a penalty of double the tax
imposed on such distilled spirits so removed or concealed,
and shall be fined not less than two hundred dollars nor
more than five thousand dollars, and imprisonment not
less than three months nor more than three years.^^

§ 1305. Under act Augnst 27, 1894, for violation of
act — Penalty. That in case any distilled spirits removed
from a distillery warehouse for deposit in a general
bonded warehouse shall fail to be deposited in such gen-
eral bonded warehouse witliin ten days after such re-
moval, or within the time specified in any bond given on
such removal, or if any distilled spirits deposited in any
general bonded warehouse shall be taken therefrom, for
export or otherwise, without full compliance with the
provisions of this act, and with the requirements of any
regulations made thereunder, and wdth the tenns of any
bond given on such removal, or if any distilled spirits
which have been deposited in a general bonded ware-
house shall be found elsewhere, not having been removed
therefrom according to law, any person who sliall be
guilty of such failure, or any person who shall in any
manner violate any provision of the next preceding eleven
sections of this act, shall be subject, on conviction, to a
fine of not less than one hundred dollars nor more than

31— Rev, Stat. 3296, 15 Stat. 140.

1002 Criminal Law

five thousand dollars, or to imprisonment for not less
than three months nor more than three years for every
such failure or violation; and the spirits as to which such
failure or violation, or unlawful removal shall take place
shall be forfeited to the United States.^'^

§ 1306. Under act March 3, 1877, grape brandy re-
moved from distillery for deposit in special warehouse
limited to ten days — Failure — Penalty. That in case
any grajDC brandy removed from the distillery for deposit
in a special W' arehouse, shall fail to be deposited in such
-warehouse Tvithin ten days thereafter, or within the time
specified in any bond given on such removal, or if any
grape brandy deposited in any special warehouse shall
be taken therefrom for deposit in another warehouse, or
for export, or othenvise, without full compliance with
the provisions of this act, and with the requirements of
any regulations made thereunder, and with the terms of
any bond given on such removal, then any person who
sliall be guilty of such failure, and any person who shall
in any manner violate any provisions of this act, or of
the regulations made in pursuance thereof, shall be sub-
ject, on conviction, to a fine of not less than one hundred
dollars nor more than five thousand dollars, and to im-
prisonment for not less than three months nor more
than tliree years for every such failure or violation; and
the s))irits as to which such failure or violation shall take
place shall be forfeited to the United States.^'

§ 1307. Act March 3, 1891, manufacturer of sorghum
sugar may use spirits for — Punishment for violation.
Any manufacture)- of sngnr iVom sorghum may remove
from distillery warehouses to factories used solely for
tlic manufacture of such sugar from soi-ghum distilled
spirits ill bond fi'ce of tax, to be used solely in such

32— Act August 27, 1894, 28 Stat. .IG— Sec. 11, Act March 3, 1877,

066. 11) Stat. 395.

The National Prohibition Act 1003

manufacture of sugar from sorghum; that all distilled
spirits removed as herein authorized shall be of an alco-
holic strength of not less than one hundred and sixty per
centum proof, and may be removed, stored, and used in
the manufacture of sugar from sorghum, and when so
used may be recovered by redistillation in the sugar fac-
tory of such sugar manufacturer under such bonds, rules,
and regulations for the protection of the revenue and the
accomplishment of the purposes herein expressed as the
commissioner of internal revenue with the approval of
the secretary of the treasuiy may prescribe. Any per-
son who removes or uses distilled spirits in violation of
this provision, as the regulations issued pursuant thereof,
shall, on conviction thereof, be fined not more than one
thousand dollars nor more than five thousand dollars for
each offense, and the spirits and the premises on which
such spirits are used shall be forfeited to the United
States.^*

§ 1308. Act July 20, 1868, storekeeper removing cask
or package from bond without permit of collector. When-
ever any storekeeper or other person in the employment
of the United States, having charge of a bonded ware-
house, removes or allows to be removed therefrom any
cask or other package, without an order or permit of the
collector, or which has not been marked or stamped in
the manner required by law; or removes or allows to be
removed any part of the contents of any cask or package
deposited therein, he shall be immediately dismissed
from office or employment, and be imprisoned not less
than three months nor more than two years.^^

§ 1309. Violation of act March 3, 1897, forging, alter-
ing or counterfeiting stamp — Penalty. Every person
who, with intent to defraud, falsely makes, forges, alters,

34—26 Stat. 1050, Act March 3, 35—15 Stat. 147, Rev. Stat. 3300,

1891. Act July 20, 1868.

1004 Ceiminal Law

or counterfeits any stamp made or used under any pro-
visions of this act, or who uses, sells, or has in his pos-
session any such forged, altered, or counterfeited stamp,
or any plate or die used or which may be used in the
manufacture thereof, or who shall make, use, sell, or
have in his possession any paper in imitation of the
paper used in the manufacture of any stamp required
by this act, shall on conviction be punished by a fine
not exceeding one thousand dollars and by imprisonment
at hard labor not exceeding five vears.

Nothing in this act shall be construed to exempt spirits
bottled under the provisions of this act from the opera-
tion of chapter seven hundred and twenty-eight of the
public laws of the fifty-first congress, approved August
eighth, eighteen hundred and ninety.'®

§ 1310. Act June 6, 1872, false entries in distiller's
books — Penalty. Whenever any false entry is made in,
or any entry required to be made is omitted from either
of the said books mentioned in the two preceding sec-
tions, with intent to defraud or to conceal from the reve-
nue officers any fact or particular required to be stated
and entered in either of said books, or to mislead in ref-
erence thereto: or anv distiller as aforesaid omits or
refuses to provide either of said books, or cancels, ob-
literates, or destroys any part of either of such books,
or any entry therein, with intent to defraud, or permits
the same to be done, or such books, or either of them, are
not produced when required by any revenue officer, the
distillor>% distilling-apparatus, and tlie lot or tract of
land on wliich it stands, and all personal property on said
premises used in the business there carried on, shall be
forfoitod to llio United States. And every person who
makes sncli false entry, or omits to make any entry here-
inbefore T'cqnii'od <<> Ix- made, with ilio intent aforesaid,

36—29 Htat. 628, Sees. 7 and H,
Art March :\, 1897.

The National Prohibition Act 1005

or who causes or procures the same to be done, or fraud-
ulently cancels, obliterates, or destroys any part of said
books, or any entry therein, or wilfully fails to produce
such books, or either of them, shall be lined not less than
five hundred dollars, nor more than five thousand dollars,
and imprisoned not less than six months, nor more than
two years.^''

§ 1310a. Book required in Sec. 1310. That every per-
son who makes or distills, or owns any still, boiler or
other vessel, used for the purpose of distilling spirits,
or who has such still, boiler or other vessel so used under
his superintendence, either as agent or owner, or who
uses any such still, boiler or other vessel, shall from
day to day make or cause to be made, in a book or books,
to be kept by him in such form as the Commissioner of
Internal Revenue may prescribe, a true and exact entry
of the kind of materials, and the quantity of pounds,
bushels, or gallons purchased by him for the production
of spirits, from whom and when purchased, and by what
conveyance delivered at said distillery, the amount paid
therefor, the kind and quantity of fuel purchased for use
in the distilleiy, and from whom purchased, the amount
paid for ice or water for use in the distillery, the repairs
placed on said distillery of distilling apparatus, the cost
thereof, and by whom and when made, and of the name
and residence of each person employed in or about the
distillery, and in what capacity employed. And in an-
other book he shall make like entry of the quantity of
grains or other material used for the production of
spirits, the time of day when any yeast or other com-
position is put into any mash or beer for the purpose of
exciting fermentation, the quantity of mash in each tub,
designating the same by the number of the tub, the num-
ber of diy inches, that is to say, the number of inches
between the top of each tub and the surface of the mash

37— Rev. Stat. 3305, 17 Stat. 240.

1006 Criminal Law

or beer therein at the time yeasting, the gravity and the
temperature of the beer at the time yeasting, and on
eveiy day thereafter its quantity, gravity and tempera-
ture at the hour of 12 meridian; also, of the time when any
fennenting tub is emptied of ripe mash or beer, the num-
ber of gallons of spirits distilled, the number of gallons
placed in the warehouse, and the proof thereof the num-
ber of gallons sold or removed, Avith the proof, and the
name, place of business and residence of the person to
whom sold. Rev. Statute 8303, 15 Stat. 132.

§ 1311. Rectifiers intending- to defraud the United
States of tax — Penalty. That on or before the tenth
day of each month every person engaged in rectifying
or compounding distilled spirits shall make, in such form
as may be prescribed by the commissioner of internal
revenue, a return to the collector of the district, showing
the quantity of spirits received for rectification, and
from whom received, the quantity dumped for rectifica-
tion, the quantity rectified, the quantity removed after
rectification during the preceding month, and giving such
other information as may be required by the commis-
sioner of internal revenue, such return to bo made in
duplicate and sworn to by the rectifier; and the collector
shall forward one of such returns to the commissioner
of internal revenue. Every ])ors()n who engages in, or
carries on, the business of a rectifier with intent to de-
fraud the United States of the tax on spirits rectified
by him, or any part thereof, or witli intent to aid, abet,
or assist any person or persons in ck'I'rauding the United
States of the tax on any distilled spirits, or who shall
purchase or receive or rectify any distilled spirits which
have been removed from a. distiUery to a place other
tlian the distilleiy-warehouse provided by law, knowing
or having reasoiial)l(' gi'ounds to ])elieve that \ho tax (m
said spirits, retpiii-cd by law, lias not b<''cn paid, shall, for
every such offense, be fined not less than one thousand

The National Peohibition Act 1007

dollars nor more than five thousand dollars, and impris-
oned not less than six months nor more than two years. ^'

§ 1312. Rectifier required to keep book — Penalty for
failure. Every rectifier and wholesale liquor-dealer shall
provide a book, to be prepared and kept in such form as
may be prescribed by the commissioner of internal reve-
nue, and shall, on the same day on which he receives any
foreign or domestic spirits, and before he draws off any
part thereof, or adds water or anything thereto, or in any
respect alters the same, enter in such book, and in the
proper columns respectively prepared for the purpose,
the date when, the name of the person or firm from
whom, and the place whence the spirits were received,
by whom distilled, rectified, or compounded, and when
and by whom inspected, and, if in the original package,
the serial number of each package, the number of wine-
gallons and proof-gallons, the kind of spirit, and the
number and kind of adhesive stamps thereon. And every
such rectifier and wholesale dealer shall, at the time of
sending out of his stock or possession any spirits, and
before the same are removed from his premises, enter in
like manner in the said book the day when and the name
and place of business of the person or firm to whom such
spirits are to be sent, the quantity and kind or quality of
such spirits, the number of gallons and fractions of a gal-
lon at proof, and, if in the original packages in which
they were received, the name of the distiller and the
serial number of the package. Every such book shall be
at all times kept in some public or open place on the
premises of such rectifier or wholesale dealer for inspec-
tion, and any revenue officer may examine it and take
an abstract therefrom; and when it has been filled up as
aforesaid, it shall be preseiyed by such rectifier or whole-
sale liquor-dealer for a period not less than two years;

38— Act March 1, 1879, 20 Stat.
339.

1008 Ceimixal Law

and during sucli time it shall be produced by him to
every revenue officer demanding it. And whenever any
rectifier or wholesale liquor-dealer refuses or neglects to
provide such book, or to make entries therein as afore-
said, or cancels, alters, obliterates, or destroys any part
of such book, or any entry therein, or makes any false
entry therein, or hinders or obstructs any revenue officer
from examining such book, or making any entry therein,
or taking any abstract therefrom; or whenever such
book is not presers^ed or is not produced by any rectifier
or wholesale liquor-dealer as hereinbefore directed, he
shall pay a penalty of one hundred dollars, and shall on
conviction be fined not less than one hundred dollars nor
more than five thousand dollars, and imprisoned not
less than three months nor more than three years. That
eveiy person required to keep the books prescribed by
this section shall, on or before the tenth day of each
month, make a full and correct transcript of all entries
made in such book during the month preceding, and,
after verifying the same by oath, shall fonvard the same
to the collector of the district in which he resides. Any
failure by reason of refusal or neglect to make said
transcripts shall subject the person so offending to a fine
of one hundred dollars for each neglect or refusal. ^^

§ 1313. Unlawful for purchaser or rectifier to purchase
or receive greater quantity than 20 gallons. It shall not
be lawful for any rectifier of distilled spii'its, or whole-
sale or retail li(jU()r-deakM', to purchase or ivceive any
distilled spirits in (luantities greater than twenty gallons
from any person other lliaii an anlliorized rectifier of
distilled spirits, distiilei-, or wholesale TKiuor-dealer.
Evei\v person who \i(.l;i1es this section shall t'orfeit and
pay one thousand dollars: IM'ovided, ^J'liat this provision

39— Rev. Stat. 3318, March 1,
1879, 20 Stat. 339.

The National Prohibition Act 1009

shall not be held to apply to judicial sales, or to sales at
public auction made by an auctioneer.*"

§ 1314. Rectifiers who fail to comply with the laws —
Punishment. Every package of distilled spirits contain-
ing five wine gallons or more, filled on the premises of a
wholesale liquor-dealer, who has paid the special tax
required by law, shall be marked, branded, and stamped
by such wholesale liquor-dealer in such manner and un-
der such rules and regulations as the commissioner of
internal revenue, with the approval of the secretary of
the treasury, and may prescribe; and on or before the
tenth day of each month every wholesale liquor-dealer
shall make return, under oath, to the collector of internal
revenue for the district of the various kinds and quanti-
ties of each kind and of the total quantities of distilled
spirits received on his premises and of the various kinds
and quantities of each kind and of the total quantity of
distilled spirits sent out from his stock or possession dur-
ing the preceding month, and of the quantity of each
kind and the total quantity remaining on hand at the end
of the month ; and such return shall be made in such form
and contain such other particulars as the commissioner
of internal revenue, with the approval of the secretary
of the treasury, may prescribe. And every rectifier or
wholesale liquor-dealer who refuses or wilfully neglects
to comply with the requirements of this act as to giving
the said notice or the said return, and as to marking,
branding, and stamping, in accordance with the law and
the regulations made in pursuance thereof, the packages
of spirits filled on his premises as aforesaid, shall, for
each such offense, be fined not less than two hundred dol-
lars nor more than one thousand dollars."

40— July 14, 1870, 16 Stat. 256, 41— July 16, 1892, 27 Stat. 200,

Eev. Stat. 3319. Eev. Stat. 3323.

C. L.— 64

1010 Criminal Law

§1315. Under Act July 20, 1868, failure to deface
stamp — Who draws off spirits — Punishment. Every
person who empties or draws off, or causes to be
emptied or drawn off, any distilled spirts from a cask
or package bearing any mark, brand, or stamp re-
quired by law, shall, at the time of emptying such cask
or package, efface and obliterate said mark, stamp, or
brand. Every such cask or package from which said
mark, brand, or stamp is not eff'aced and obliterated as
herein required, shall be forfeited to the United States,
and may be seized by any officer of internal revenue
wherever found. And every railroad company or other
transportation comjoany, or person who receives or trans-
ports, or has in possession with intent to transport, or
with intent to cause or procure to be transported, any
such empty cask or package, or any part thereof, hav-
ing thereon any brand, mark, or stamp, required by law
to be placed on any cask or package containing distilled
spirits, shall forfeit three hundred dollars for each such
cask or package, or any part thereof, so received or
transported, or had in possession with the intent afore-
said; and every boat, railroad-car, cart, dray, wagon,
or other vehicle, and all horses and other animals used
in carrying or transporting the same, shall be for-
feited to the United States. Eveiy person who fails to
efface and obliterate said mark, stanq), or brand, at the
time of emptying such cask or package, or who receives
any such cask or package, or any part thereof, with the
intent aforesaid, oi' who transports the same, or know-
ingly aids or assists therein, or w ho removes any stamp
provided by hiw fioin any cask or package containing,
or which had contained, distilled spirits, without de-
facing and destroying tlie same at the time of such re-
moval, OI' who aids <»i" assists therein, of who has in
hi.s poHsession any snch stanij) so removed as aforesaid,
oi- liMs in his j)osHessioii any caiicch'd stamp, or any stamj)
which has been used, or which pnipoiis to have been

The National Prohibition Act 1011

used, upon any cask or package of distilled spirits, shall
be deemed guilty of a felony, and shall be fined not less
than five hundred dollars nor more than ten thousand
dollars, and imprisoned not less than one year nor more
than five years.

§ 1316. Affixing- spurious stamp to cask — Penalty.
That if any person shall affix, or cause to be affixed, to
or upon any cask or package containing, or intended to
contain, distilled spirits, any imitation stanq^, or other
engraved, printed, stamped, or photographed label, de-
vice, or token, whether the same be designed as a trade
mark, caution notice, caution, or otherwise, and which
shall be in the similitude or likeness of, or shall have
the resemblance or general appearance of, any inter-
nal revenue stamp required by law to be affixed to or
upon any cask or package containing distilled spirits,
he shall, for each offense, be liable to a penalty of one
hundred dollars, and, on conviction, shall be fined not
more than one thousand dollars, and imprisoned not more
than three years, and the cask or package with its con-
tents shall be forfeited to the United States.*^

§ 1317. Transporting intoxicating liquors in interstate
commerce. That no letter, postal card, circular, news-
paper, pamphlet, or publication of any kind containing
any advertisement of spirituous, vinous, malted, fer-
mented, or other intoxicating liquors of any kind, or
containing a solicitation of an order or orders for said
liquors, or any of them, shall be deposited in or carried
by the mails of the United States, or be delivered by
any postmaster or letter carrier, when addressed, or
directed to any person, finn, coiporation, or association,
or other addressee, at any place or point in any State
or Territory of the United States at which it is by the

42— Act Feb. 8, 1875, 18 Stat.
311.

1012 Criminal Law

law in force in the State or Territory at tliat time un-
lawful to advertise or solicit orders for such liquors,
or any of them, respectively.

If the publisher of any newspaper or other publica-
tion or the agent of such publisher, or if any dealer in
such liquors or his agent, shall knowingly deposit or
cause to be deposited, or shall knowingly send or cause
to be sent, anj^thing to be conveyed or delivered by
mail in violation of the provisions of this section, or
shall knowingly deliver or cause to be delivered by mail
anything herein forbidden to be carried by mail, shall
be fined not more than one thousand dollars or impris-
oned not more than six months, or both; and for any sub-
sequent offense shall be imprisoned not more than one
year. Any person violating any provision of this sec-
tion, may be tried and punished, either in the district
in which the unlawful matter or publication was mailed
or to which it was carried by mail for delivery, accord-
ing to direction thereon, or in which it was caused to
be delivered by mail to the person to whom it was ad-
dressed. Whoever shall order, purchase, or cause in-
toxicating liquors to be transported in interstate com-
merce, except for scientific, sacramental, medicinal, and
mechanicnl ]niiposes, into any State or Territoiy the
laws of which State or Territory prohibit the manufac-
ture or sale therein of intoxicating liquors for bever-
age pui-poses shall l)e i)uiiished as aforesaid (Sees. 1109,
1110): T'rovided, Tliat nothing herein shall authorize
the shi])iii<'iit of li(in()r into any State contrary to the
laws of such State: Ti-ovich'd, further. That the Post-
master-General is lieichy autliorized and directed to make
])ublic fn»ni lime to tiini' in sui<a])ie bulletins or public
notices llie ii.iines of Slates in which it is unlawful to
advertise or solicit orders for such liquors."

43— See. 5, March ?,, 1017, 39 1202. This l.-ist net jml Sec. 5 in
Htnt. 1009, March 4, 1917, 39 Stat. effect July 1, 1917.

The National Prohibition Act 1013

§ 1318. Sale of intoxicating liquors in Indian country
— Penalties. That no ardent spirits, ale, beer, wine, or
intoxicating liquor or liquors of whatever kind shall be
introduced, under any pretense, into the Indian country.
Every person who sells, exchanges, gives, barters, or
disposes of any ardent spirits, ale, beer, wine, or intoxi-
cating liquors of any kind to any Indian under charge
of any Indian superintendent or agent, or introduces or
attempts to introduce any ardent spirits, ale, wine, beer,
or intoxicating liquor of any kind into the Indian coun-
try, shall be punished by imprisonment for not more
than two years, and by fine of not more than three hun-
dred dollars for each offense. But it shall be a suffi-
cient defense to any charge of introducing or attempt-
ing to introduce ardent spirits, ale, beer, wine, or in-
toxicating liquors into the Indian country that the acts
charged were done under authority in writing from the
War Department, or any officer duly authorized there-
unto by the War Department.

No part of section 2139 or of section 2150 of the Re-
vised Statutes shall be a bar to the prosecution of any
officer, soldier, sutler or storekeeper, attache, or em-
ployee of the Army of the United States who shall bar-
ter, donate, or furnish in any manner whatsoever liquors,
beer, or any intoxicating beverage whatsoever to any
Indian.

All complaints for arrest of any person or persons
made for violation of any of the provisions of this act
shall be made in the county where the offense shall
have been committed, or if committed upon or within
any reservation not included in any county, then in any
county adjoining such reserv^ation ; but in all cases such
arrests shall be made before any United States court
commissioner residing in such adjoining county, or be-
fore any magistrate or judicial officer authorized by the
laws of the State in which such resei'vation is located
to issue warrants for the arrest and examination of of-

1014 Criminal Law

fenders by sectiou 1014 of the Revised Statutes of the
United States having jurisdiction of the offense.

Any person who shall sell, give away, dispose of, ex-
change, or barter any malt, spirituous, or vinous liquor
including beer, ale, and wine, or any ardent or other
intoxicating liquor of any kind whatsoever, or any es-
sence, extract, bitters, preparation, compound, composi-
tion, or any article whatsoever, under any name, label,
or brand, which produces intoxication, to any Indian
to whom allotment of land has been made while the
title to the same shall be held in trust by the govern-
ment, or to any Indian a ward of the government under
charge of any Indian superintendent or agent, or any
Indian, including mixed bloods, over whom the govern-
ment, through its departments, exercises guardianship,
and any person who shall introduce or attempt to in-
troduce any malt, spirituous, or vinous liquor, includ-
ing beer, ale, and wine, or any ardent or intoxicating
liquor of any kind whatsoever into the Indian country,
which term shall include any Indian allotment while the
title to the same shall be held in trust by the govern-
ment, or while the same shall remain inalienable by
the allottee without the consent of the United States,
shall be punished l)y imprisonment for not less than
sixty days, and a fine of not less than one liundred dol-
lars for the first offense and not less than two liundi-ed
dollars for each olTcnsi' lluM'eafter: Provided, however,
That Ihc person convicted shall be committed until fine
and costs are paid. l>nt it shall be a siiflicient di^fense
to any charge of introducing or attempting to introduce
ardi-nl spii'its, ale, beei', wine, oi' intoxicating liquors
into the liniian country that the acts charged were done
under authority, in writing, IVoni the \\'ai- Department
or anv oHiccr dnlv anthori/cd thereunto ])v the War
1 )<'|tart iricnt.

Any pei'son, wlictlici- an Indian or otherwise, who
sliall, in >i\'\t\ 'i\'iiitoiv, inannfacturc, sell, give away,

The National Prohibition Act 1015

or in any manner, or by any means furnish to anyone,
either for himself or another, any vinous, malt, or fer-
mented liquors, or any other intoxicating drinks of any
kind whatsoever, whether medicated or not, or who shall
carry, or in any manner have carried, into said Terri-
tory any such liquors or drinks, or who shall be inter-
ested in such manufacture, sale, giving away, furnish-
ing to anyone, or carrying into said Territory any of
such liquors or drinks, shall, upon conviction thereof, be
punished by fine not exceeding five hundred dollars and
by imprisonment for not less than one month nor more
than five years.

On and after September 1, 1918, possession by a per-
son of intoxicating liquors in the Indian country where
the introduction is or was prohibited by treaty or Fed-
eral statute shall be an offense and punished in accord-
ance with the provisions of the Acts of July 23, 1892,
and January 13, 1897.

Hereafter it shall not be unlawful to introduce and
use wines solely for sacramental purposes, under church
authority, at any place within the Indian country or
any Indian reservation, including the Pueblo Reserva-
tions in New Mexico.**

§ 1319. Setting- still for manufacture of liquor in In-
diaji country — Penalty, $1,000. Every person who shall,
within the Indian country, set up or continue any distil-
lery for manufacturing ardent spirits, shall be liable to
a penalty of one thousand dollars; and the superin-
tendent of Indian affairs, Indian agent, or subagent,
within the limits of whose agency any distillery of ardent
spirits is set up or continued, shall forthwith destroy
and break up the same.*^

4-i— Act May 25, 1918, 40 Stat.
45— E. S. 2141, 4 Stat. 732, June
30, 1834.

1016 Criminal Law

§ 1320. Seizure and confiscation of vehicles used in in-
troducing liquors into Indian country. Automobiles or
any vehicles or conveyances used in introducing, or at-
tempting to introduce, intoxicants into the Indian coun-
tiy, or where the introduction is prohibited by treaty
or Federal statute, whether used by the owner thereof
or other person, shall be subject to the seizure, libel, and
forfeiture provided in section 2140 of the Revised Stat-
utes of the United States.*^

§ 1321. Provisions sections 2140 and 2141 Revised
Statutes shall apply to beer— The prima facie evidence
of unlawful possessing of liquor in Indian country. The
])rovisions of sections 2140 and 2141 of the Revised Stat-
utes of the United States shall also apply to beer and
other intoxicating liquors named in the Act of January
30, 1897 (Twenty-ninth Statutes at Large, page 500),
and the possession by a person of intoxicating liquors
in the country where the introduction is prohibited by
treaty or Federal statute shall be prima facie evidence
of unlawful introduction.*''

§ 1322. Prohibition liquors at or near any post — Pun-
ishment. Tliat the President of the United States as
( \.inmander in diief of the Army, is authorized to make
such regulations governing the prohibition of alcoholic
liquors in or near military camps and to llio olTicors and
enlisted men of the army as he may from time to time
deem necessary oi- ndvisable. Provided, That no per-
son, corporation, p.irt iicrslii]), or association shall sell,
snpply, or have in Ins or its i^osscssion any intoxicat-
ing or spiiilnons lifjuors at any military station, can-
tonment, camp, fort, post, oHiccrs' or enlisted men's
club, which is being us(m1 at tlic time for military pur-
poses uihIci- this act, but tlic Sccrctai-y of War may make

46_Act March 2, 1917, 39 Stat. 47— Act May 18, 1916, 39 Stat.

970. 124.

The National Prohibition Act 1017

regulations permitting the sale and use of intoxicating
liquors for medicinal purposes. It shall be unlawful to
sell any intoxicating liquor, including beer, ale, or wine,
to any officer or member of the military forces while in
uniform, except as herein provided. Any person, cor-
poration, partnership, or association violating the pro-
visions of this section of the regulations made there-
under shall, unless otherwise punishable under the Arti-
cles of War, be deemed guilty of a misdemeanor and be
punished by a fine of not more than one thousand dol-
lars or imprisonment for not more than twelve months,
or both."

48— Sec. 12, May 18, 1917, 40
Stat. 82.

CHAPTER LXX

VIOLATION BY NATIONAL, EESERVE AND LAND BANKS

§ 1325. Punishment for violation by
bank officials.

§ 1326. Amendment of Sec. 5208 of
Eevised Statutes, falsely
certifying checks by bank.

§ 1327. Amendment Federal Eeserve
Act, as amended by add-
ing new sec. 25.

§ 1328. False statement by applicant
for loan under Federal
Farm Loan Act; punish-
ment.

§ 1329. Forgery, etc., bond of any
land bank or national
farm loan association;
punishment.

§ 1330. Defending or attempting to
defend any person, firm
or corporation by making
false pretense concerning

any loan under the Fed-
eral Loan act is punish-
able.

§ 1331. Any person connected with
federal land bank or
farm loan association or
joint stock land bank
wlio embezzles, abstracts
or wilfully misapplies any
moneys, etc. ; penalty.

§ 1332. No officer shall receive fee
from any land bank;
punishment.

§ 1333. Declaring any clause, sen-
tence, paragraph or part
of Act July 17, 1916, in-
valid does not affect any
other portion of Act.

§ 1334. All acts and parts of acts
inconsistent with Act July
17, 1916, repealed.

§ 1325. Punishment for violation by bank officials. Sec.
5. That section 22 of tlie Federal Reserve Act, as amended
l)y the Act of June 21, 11)17, l)e finiluM- amended and re-
enacted to read as follows:

"(a) No memlxM- bank and no oHicer, director, or em-
l)loyee thereof shall hei'cafter make any loan or grant
any gratuity to any bank examiner. Any bank officer,
<lirector, or ('mi)loyee violating this provision shall be
deemed guilty of a iiiisdcmeaiioi' and sliall ])o im])risoned
nol exceeding one year (H- fined imt nioic than ^5,000,
or both; and may In- rni('<i a liirllicr snni ('(|iial lo the
money so loaned or gratnity given.

".\ny examiner accepting a loan or gi'atuity from

1018

Violation by Banks 1019

any bank examined by him or from an officer, director,
or employee thereof shall be deemed guilty of a misde-
meanor and shall be imprisoned one year or fined not
more than $5,000, or both, and may be fined a further sum
equal to the money so loaned or gratuity given, and shall
forever thereafter be disqualified from holding office as
a national bank examiner.

''(b) No national bank examiner shall perform any
other service for compensation while holding such office
for any bank or officer, director, or employee thereof.

''No examiner, public or private, shall disclose the
names of borrowers or the collateral for loans of a mem-
ber bank to other than the proper officers of such bank
without first having obtained the express permission in
writing from the Comptroller of the Currency, or from
the board of directors of such bank, except when or-
dered to do so by a court of competent jurisdiction, or
by direction of the Congress of the United States, or
of either House thereof, or any committee of Congress,
or of either House duly authorized. Any bank exam-
iner violating the provisions of this subsection shall be
imprisoned not more than one year or fined not more than
$5,000, or both.

"(c) Except as herein provided, any officer, director,
employee, or attorney of a member bank who stipulates
for or receives or consents or agrees to receive any fee,
commission, gift, or thing of value from any person,
firm, or corporation, for procuring or endeavoring to
procure for such person, finn, or corporation, or for any
other person, firm, or corporation, any loan from or the
purchase or discount of any paper, note, draft, check, or
bill of exchange by such member bank shall be deemed
guilty of a misdemeanor and shall be imprisoned not
more than one year or fine not more than $5,000, or
both."i .

1— Part One, 40 U, S. Stat, at
Large, pages 970-971, Act Congress,
Sept. 26, 1918.

1020 Criminal Law

§ 1326. Amendment of section 5208 of Revised
Statutes — Falsely certifying checks by bank. Sec.
7. It shall be unlawful for any officer, director,
agent, or employee of any federal reserve bank,
or of any member bank as defined in the Act of
December 23, 1913, known as the Federal Reserve
Act, to certify any check drawn upon such federal re-
serve bank or member bank unless the person, firm, or
corporation drawing the check has on deposit with such
federal reserve bank or member bank, at the times such
check is certified, an amount of money not less than the
amount specified in such check. Any check so certified
by a duly authorized officer, director, agent, or employee
shall be a good and valid obligation against such fed-
eral reserve bank or member bank; but the act of any
officer, director, agent, or employee of any such federal
reserve bank or member bank in violation of this sec-
tion shall, in the discretion of the Federal Reserve Board,
subject such federal reserve bank to the penalties im-
posed by section 11, subsection (h), of the Federal Re-
serve Act, and shall subject such member bank, if a na-
tional bank, to the liabilities and proceedings on the part
of the Comptroller of the Currency provided for in sec-
tion 5234, Revised Statutes, and shall, in the discretion
of the Federal Reserve Board, subject any other mem-
ber bank to the penalties imposed by section 9 of said
Federal Resei-ve Act for the violation of any of the pro-
visions of said act. Any oCliccr, director, agent, or em-
ployee of any federal reserve bank or member bank who
shall wilfnlly violate the provisions of this section, or
who shall resort to any device, or receive any fictitious
obligation, directly or collaterally, in order to evade the
provisions thereoi', or who shall certify a check before
the amount thereof shall have been regularly entered to
the credit of llif diawcr niMin the books of the bank, shall
be deemed guilty of a inisdemeanor ami shall, on convic-
tion thei-eof in aii\- distiict et)!]!-! of the Hiiited States,

Violation by Banks 1021

be fined not more than $5,000, or shall be imprisoned for
not more than five years, or both, in the discretion of the
court.

''Sec. 5209. Any officer, director, agent, or employee of
any federal reserve bank, or of any member bank as
defined in the Act of December 23, 1913, known as the
Federal Reserve Act, who embezzles, abstracts, or wil-
fully misapplies any of the moneys, funds, or credits
of such federal reserve bank or member bank, or who,
without authority from the directors of such federal re-
serve bank or member bank, issues or puts in circulation
any of the notes of such federal reserve bank or mem-
ber bank, or who, without such authority, issues or puts
forth any certificate of deposit, draws any order or bill
of exchange, makes any acceptance, assigns any note,
bond, draft, bill of exchange, mortgage, judgment, or
decree, or who makes any false entry in any book, re-
port, or statement of such federal reserve bank or mem-
ber bank, with intent in any case to injure or defraud
such federal reserve bank or member bank, or any other
company, body politic or corporate, or any individual
person, or to deceive any officer of such federal reserve
bank or member bank, or the Comptroller of the Cur-
rency, or any agent or examiner appointed to examine
the affairs of such federal reserve bank or member bank,
or the Federal Reserve Board; and every receiver of a
national banking association who, with like intent to
defraud or injure, embezzles, abstracts, purloins, or wil-
fully misapplies any of the moneys, funds, or assets of
his trust, and every person who, Avith like intent, aids
or abets any officer, director, agent, employee, or receiver
in any violation of this section shall be deemed guilty
of a misdemeanor, and upon conviction thereof in any
district court of the United States shall be fined not more
than $5,000 or shall be imprisoned for not more than five
years, or both, in the discretion of the court.

''Any federal reserve agent, or any agent or employee

1022 Criminal. Law

of such federal reserve agent, or of the Federal Reserve
Board, who embezzles, abstracts, or wilfully misapplies
any moneys, funds, or securities intrusted to his care, or
without complying with or in violation of the provisions
of the Federal Reserve Act, issues or puts in circulation
any federal reserve notes shall be guilty of a misde-
meanor and upon conviction in any district court of the
United States shall be fined not more than $5,000 or im-
prisoned for not more than five years, or both, in the
discretion of the court." ^

§ 1327. Amendment Federal Reserve Act, as amended
by adding- new section 25. ' ' Every officer, director, clerk,
employot', or agent of any corporation organized under
this section who embezzles, abstracts, or Avilfully mis-
applies any of the moneys, funds, credits, securities, evi-
dences of indebtedness or assets of any character of such
corporation; or who, without authority, from the direc-
tors, issues or puts forth any certificate of deposit, draws
any order or bill of exchange, makes any acceptance, as-
signs any note, bond, debenture, draft, bill of exchange,
mortgage, judgment, or decree; or who makes any false
entry in any book, report, or statement of such corpora-
tion with intent, in either case, to injure or defraud such
corpoiatioii or any other company, body politic or cor-
porate, or any individual person, or to deceive any offi-
cer of such corporation, tlie Federal Reserve Board, or
any agent or exaniinci' n])))ointed to examine the affairs
of any such coi7)()rali<>ii; and every receiver ot" any such
c()ri)oi"ati()n and every clerk or ('in])l()yee of such receiver
wlio shall (■nil)('//.lc, abstract, or wiH'nlly misapjily or
wrongrnlly convcit to liis own use an\ iiKuieys, funds,
credits, or assets of any cliai'aclcr wliicli may come into
his possession oi- niidcr his control in the execution of

2— I'jirt One, 40 U. S. Stat, at
I>argo, pa)^o 972, Act of CongrcHH,
Hppt. 2fi, 1918.

Violation by Banks 1023

his trust or the performance of the duties of liis em-
ployment; and every such receiver or clerk or employee
of such receiver who shall, with intent to injure or de-
fraud any person, body politic or corporate, or to deceive
or mislead the Federal Reserve Board, or any agent or
examiner appointed to examine the affairs of such re-
ceiver, shall make any false entry in any book, report,
or record of any matter connected with the duties of
such receiver; and every person who with like intent
aids or abets any such officer, director, clerk, employee,
or agent of any corporation organized under this sec-
tion, or receiver or clerk or employee of such receiver
as aforesaid in any violation of this section, shall upon
conviction thereof be imprisoned for not less than two
years nor more than ten years, and may also be fined
not more than $5,000, in the discretion of the court.

*' Whoever being connected in any capacity with any
corporation organized under this section represents in
any way that the United States is liable for the payment
of any bond or other obligation, or the interest thereon,
issued or incurred by any corporation organized here-
under, or that the United States incurs any liability in
respect of any act or omission of the coi-poration, shall
be punished by a fine of not more than $10,000 and by
imprisonment for not more than five years.®

§ 1328. False statement by applicant for loan under
Federal Farm Loan Act — Punishment. Any examiner
appointed under this act who shall accept a loan or grat-
uity from any land bank or national fami loan associa-
tion examined by him, or from any person connected
with any such bank or association in any capacity, shall
be punished by a fine of not exceeding $5,000, or by
imprisoimient not exceeding one year, or both, and may
be fined a further sum equal to the money so loaned or

3— See. 25, Act Dec. 24, 1919, 41
Stat. 384.

1024 Ceimixal Law

gratuity given, and shall forever thereafter be disquali-
fied from holding office as an examiner under the provi-
sions of this act. No examiner, while holding sucli office,
shall perfonn any other service for compensation for
any bank or banking or loan association, or for any per-
son connected therewith in any capacity.*

§ 1329. Forgery, etc., bond of any land bank or national
farm loan association — Punishment. Any person who
shall falsely make, forge, or counterfeit, or cause or pro-
cure to be falsely made, forged, or counterfeited, or will-
ingly aid oi" assist in falsely making, forging, or counter-
feiting any bond, coupon, or paper in imitation of, or
purporting to be in imitation of, the bonds or coupons
issued by any land bank or national fann loan associa-
tion, now or hereafter authorized and acting under the
laws of the United States; or any person who shall pass,
utter, or publisli, or attempt to pass, utter, or publish
any false, forged, or counterfeited bond, coupon, or pa-
per purporting to be issued by any such bank or asso-
ciation, knowing the same to be falsely made, forged, or
counterfeited; or whoever shall falsely alter, or cause
or procure to be falsely altered, or shall willingly aid
or assist in falsely altering any such bond, cou]ion, or
paper, or shall pass, utter, or pul)lisli as true any falsely
altered or spurious bond, coupon, or pa])er issued, or pur-
porting to have been issued, by any such bank or asso-
fiiilioii, knowing the same to be falsely altered or spuri-
ous, shall be punishcMl by a fine of not exceeding $r),00()
or by imprisonment not exceeding iivc years, or bolh.^

§ 1330. Defending or attempting to defend any person,
firm or corporation by making false pretense concerning
any loan under the Federal Loan Act is punishable.

Any pci'soii ^^■1lo slmll (Icccix-c, (IrtV.'ind, oi' impose upon,

4— Sec. .31, Act .July 17, 1916, .39 5— Act July 17, IHIH, 39 Stat.

St.at. .382. .38.3.

Violation by Banks 1025

or who shall attempt to deceive, defraud, or impose
upon, any person, firm, or corporation by making any
false pretense or representation regarding the character,
issue, security, or terms of any farm loan bond, or cou-
pon, issued under the terms of this act; or by falsely
pretending or representing that any farm loan bond, or
coupon, issued under the terms of this act by one class
of land banks is a farm loan bond, or coupon, issued
by another class of banks; or by falsely pretending or
representing that any farm loan bond, or coupon, is-
sued under the terms of this act, or anything contained
in said farai loan bond, or coupon, is anything other
than, or different from, what it pui^ports to be on the
face of said bond or coupon, shall be fined not exceed-
ing $500 or imprisoned not exceeding one year, or both.
The Secretary of the Treasury is hereby authorized to
direct and use the Secret Service Division of the Treas-
ury Department to detect, arrest, and deliver into cus-
tody of the United States marshal having jurisdiction,
any person or persons violating any of the provisions
of this section.®

§ 1331. Any person connected with federal land bank
or farm loan association or joint stock land bank who
embezzles, abstracts or wilfully misapplies any moneys,
etc. — Penalty. Any person connected in any capacity
with any national farm loan association, federal land
bank, or joint stock land bank, who embezzles, abstracts,
or wilfully misapplies any moneys, funds, or credits
thereof, or who without authority from the directors
draws any order, assigns any note, bond, draft, mort-
gage, judgment, or decree thereof, or who makes any
false entry in any book, report, or statement of such
association or land bank with intent in either case to
defraud such institution or any other company, body

6— Act July 17, 1916, 39 Stat.
384.

C. L.— 65

1026 Criminal Law

politic or coi-porate, or any individual person, or to
deceive any officer of a national farm loan association
or land bank or any agent appointed to examine into
the affairs of any such association or bank, and eveiy
person who with like intent aids or abets any officer,
clerk, or agent in any violation of this section, shall be
punished by a fine of not exceeding $5,000 or by imprison-
ment not exceeding five years, or bothJ

§ 1332. No officer, etc., shall secure fee from any land
bank — Punishment. Other than the usual salaiy or di-
rector's fee paid to any officer, director, or employee
of a national fann loan association, a federal land bank,
or a joint stock land bank, and other than a reasonable
fee paid by such association or bank to any officer, direc-
tor, attorney, or employee for services rendered, no offi-
cer, director, attorney, or employee of an association or
bank organized under this act shall be a beneficiary of or
receive, directly or indirectly, any fee, commission, gift,
or other consideration for or in connection with any
transaction or business of such association or bank. No
land bank or national fami loan association organized
under this act shall charge or receive any fee, commis-
sion, bonus, gift, or other consideration not herein
specifically authorized. No examiner, public or private,
shall disclose the names of borrowers to other than the
proper officers of a national fann loan association or
land bank without first having obtained express per-
mission in writing from the Farm Loan Connnissioner
or from the board of directors of such association or
bank, except when ordered to do so by a court of com-
petent jurisdiction or by direction of the congress of the
United States, or of either liouse thereof, or any com-
mittee of congress or of oitlier house duly authorized.
Any per.son violating any provision of this paragraph

7— Act July 17, 1916, 39 Stat.
383.

Violation by Banks 1027

shall be punished by a fine of not exceeding $5,000 or
by imprisonment not exceeding one year, or both.*

§ 1333. Declaring- any clause, sentence, para^aph or
part of Act July 17, 1916, invalid does not affect any
other portion of act. If any clause, sentence, paragraph,
or part of this act shall for any reason be adjudged by
any court of competent jurisdiction to be invalid, such
judgment shall not affect, impair, or invalidate the re-
mainder of this act, but shall be confined in its opera-
tion to the clause, sentence, paragraph, or part thereof
directly involved in the controversy in which such judg-
ment shall have been rendered.®

§ 1334. All acts and parts of acts inconsistent with Act
July 17, 1916 repealed. All acts or parts of acts incon-
sistent with this act are hereby repealed, and this act
shall take effect upon its passage. The right to amend,
alter, or repeal this act is hereby expressly reserved. ^°

8— Act July 17, 1916, 39 Stat. 10— Sec. 35, Act July 17, 1916, 39

383. Stat. 384.

"9— Sec. 34, Act July 17, 1916, 39
Stat. 384.

CHAPTER LXXI

OFFENSES EELATING TO NAVIGATION

§ 1337. What is "master," "sea-
man," and vessel and
owner,

§ 1338. Officer or master of a vessel
inflicting corporal punish-
ment guilty of misde-
meanor.

§ 1339. Shipping commissioner or
clerk demanding or re-
ceiving excessive fee; pun-
ishment.

§ 1340. Failure to provide clothing,
etc., on vessel; penalty.

§ 1341. Penalty for master of ves-
sel failing as to weights
and measures.

§ 1342. Master or owner of vessel
punished for failure to
keep lime juice, etc., on
board.

§ 1343. Vessel owned by U. S. cit-
izen engaged in whaling
must provide lemon juice,
etc.

§ 1344. Punishment of offenses
committed by seaman.

§ 1345. Neglect of duty and drunk-
enness of sailor; punish-
ment.

§ 1346. Soliciting seaman to become
a lodger, within twenty-
four hours after anchor-
ing.

S 1347. UiKuifliorizcd person going
aboard vessel, before
landing; punishment.
{ 1348. Merchant marine violation

§ 1349.

§ 1350.

1351.
1352.

§ 1353.
§ 1354.
§ 1355.

§ 1356.

§ 1357.

§ 1358.

§ 1359.

§ 1300,

of Act of Congress, Sept.
7, 1916, where no different
penalty is provided.

Unauthorized person break-
ing lock or fastening on
vessel; penalty.

Section 9 of "Shipping Act
of 1916" amended as fol-
lows.

Unlawful to advance wages
to seamen; punishment.

Soldiers' and Sailors' Civil
Eelief Act, punishment for
false affidavits.

Failing to go to port of des-
tination.

Steamers running on rivers
must furnish stairways.

Officers of ships under Act
Dec. 31, 1792, making
false register; penalty.
Officers of ships under Act
Dec. 31, 1792, neglecting
to perform duty; penalty.

Sending any American ship
to sea in unscaworthy
condition, etc.; punish-
ment.

Master who takes on board
vessel more passengers
than stated in certificate.

Captain must assign space to
deck passcngors.

I'ailurc to provide accom-
modations as provided in
preceding sections; pun-
ishment.

1028

Offenses Relating to Navigation

1029

§ 1361. Eiver steamers carrying pas-
sengers must provide life
preservers.

§ 1362. Steamers carrying passen-
gers at night must carry
suitable number watchmen.

§ 1363. Neglecting to keep watch-
men, fine of one thousand
dollars.

§ 1364. Manner of packing ex-
plosives.

§ 1365. Failure to ship explosives
as provided by the pre-
ceding section ; punish-
ment.

§ 1366, Charges found by inspectors
and the wages due, must
be paid by master.

§ 1367. Punishment for failing to
pay wages, etc.

§ 1368. Inspector making false cer-
tificate touching steam
vessel as to hull, boilers,
etc. ; penalty.

§ 1369. Changing any license issued
by inspector under Act
March 23, 1900.

§ 1370. Penalty for using un-
stamped and inspected
steel plates in steam ves-
sels.

§ 1371. Counterfeiting any stamp
on steel plates; penalty.

§ 1372. Affixing any false, forged,
fraudulent, spurious or
counterfeit stamp on steel
plate in steam vessel;
penalty.

§ 1373. Any officer, receiver, etc.,
common carrier by water
disclosing information.

§ 1374. Interfering or obstructing
lighthouse board, etc.

§ 1375. Refusal to maintain lights
on bridges, etc.

§ 1376. Lighthouse, j u r i s d iction,
regulations, etc.

§ 1377. Using vessel in coast-guard
service for private pur-
pose ; punishment.

§ 1378. Prima facie evidence to true
possession of sponge less
than five inches in diam-
eter.

§ 1379. Courts where violation may
be prosecuted for selling
or taking sponges.

§ 1380. Selling or taking sponges is
criminal; punishment.

§ 1381. Unlawful, citizen of U. S.
to take or catch sponges
less than five inches in
diameter.

§ 1382. Use of navigable waters to
be regulated by Secretary
of War.

§ 1383. Wilfully and unlawfully in-
juring any pier subject to
fine.

§ 1384. Who by culpable negligence
breaks or injures sub-
marine cable guilty of
misdemeanor.

§ 1385. A master of vessel laying
or repairing cables who
faUs to observe rides;
penalty.

§ 1386. Person who wilfully breaks
or injures a submarine
cable guilty of misde-
meanor.

§ 1387. Master of fishing vessel
must keep at least one
nautical mile from cable.

§ 1388. Definition of terms used un-
der Act Feb. 29, 1888.

§ 1389. Unlawful to discharge or
deposit any refuse matter
in New York harbor.

§ 1390. Masters and engineers of
vessel guilty of crime
knowingly towing scor
loaded with refuse matter

1030

Criminal Law

to be emptied in New
York harbor.

§ 1391. Waste matter to be deposited
in definite limits in New
York harbor; penalty. § 1402.

§ 1392. Wilfully and knowingly vi-
olating rules of reservoirs
at headwaters of Missis-
sippi; punishment.

§ 1393. No obstruction may be made

in the navigable waters § 1403.
except by Act of Con-
gress.

§ 1394. Unlawful to engage in fish- § 1404.
ing in channel adjacent to
New York harbor; pen-
alty.

§ 1395. Drawbridges subject to

rules of Secretary of War § 1405.
and failure to comply
with them a misdemeanor,

§ 1396. No building, wharves, etc.,
may be made except upon
places recommended by § 1406.
chief engineer.

§ 1397. Violations, Sec. 9, 10 and
Act March 3, 1899.

§ 1398. Unlawful to throw any
refuse matter from ships,
mills, manufacturing
plants, etc., into any
navigable water in U. S.

§ 1399. Unlawful to build upon, use
or in any manner impair
any sea wall, etc., l)uilt
by the U. S.

§ 140U. Unlawful to anchor vessels
in navigable waters, etc.,
to float loose timber or
logs, etc.

g 1401. Every person and corpora-
tion violating sections 13,
14 and 15, and every § 1410,
master, pilot or engineer
who knowingly engages in
towing scor that is loaded
with material specified in

§ 1407.

§ 1408.

§ 1409,

sec. 14, or obstruct any
waterway under Sec. 15,
Act Mar. 3, 1899, shall
be punished.

Eailroad bridge over naviga-
ble waters; failure to
correct obstruction after
notice by Secretary of
War, guilty of misde-
meanor.

The Department of Justice
shall conduct prosecutions
under Act March 3, 1899.

Eegulations and rules to be
made by Secretary of War
concerning the floating of
logs, Sec. 15, Act March
3, 1899, shall not apply.

Secretary of War shall
make rules and regulations
concerning dumping ref-
use material into naviga-
ble waters.

Any person directly or in-
directly giving any sum
of money to any inspector
of navigation; punish-
able.

Unlawful to deposit or
dump any refuse matter
in Lake Michigan; punish-
ment.

Person owning or operating
dam, under provisions of
Act June 23, 1910, fail-
ing to maintain lights
and signals; punishment.

Failure to comply with law-
ful orders or Secretary of
War and Chief Engineer
under provisions Act June
23, 1910, a misdemeanor.
Also Act Mar. 23, 1906.

Secretary of War to pre-
scribe rules and regula-
tions concerning naviga-
tion; punishment for vio-
lation.

Offenses Relatixo to Navigation 1031

§1337. What is "master," "seaman," and vessel
and owner. In the construction of this title, eveiy person
having the command of any vessel belonging to any
citizen of the United States shall be deemed to be the
"master" thereof; and every person (apprentices ex-
cepted) who shall be employed or engaged to serve in
any capacity on board the same shall be deemed and
taken to be a "seaman;" and the term "vessel" shall
be understood to comprehend every description of ves-
sel navigating on any sea or channel, lake or river, to
which the provisions of this title may be applicable, and
the term ''owner" shall be taken and understood to com-
prehend all the several persons, if more than one, to
whom the vessel shall belong.^

§ 1338. Officer or master of a vessel inflicting corporal
punishment — Guilty of misdemeanor. Flogging and all
other forms of corporal punishment are hereby prohib-
ited on board of any vessel, and no form of corporal
punishment on board of any vessel shall be deemed jus-
tifiable, and any master or other officer thereof who
shall violate the aforesaid provisions of this section,
or either thereof, shall be deemed guilty of a misde-
meanor, punishable by imprisonment for not less than
three months nor more than two years. Whenever any
officer other than the master of such vessel shall violate
any provision of this section, it shall be the duty of such
master to surrender such officer to the proper authori-
ties as soon as practicable, provided he has accurate
knowledge of the misdemeanor, or complaint thereof is
made within three days after reaching port. Any fail-
ure on the part of such master to use due diligence to
comply herewith, which failure shall result in the escape
of such officer, shall render the master of vessel or the
owner of the vessel liable in damages for such flogging

1— Act March 4, 1915, 38 Stat.
1167.

1032 Ckiminal Law

or corporal punishment to the person illegally punished
by such officer.*

§ 1339. Shipping commissioner or clerk demanding or
receiving excessive fee — Punishment. Any question con-
cerning the forfeiture of, or deductions from, the wages
of any seaman or apprentice, may be detennined in any
proceeding lawfully instituted with respect to such
wages, notwithstanding the offense in respect of which
such question arises, though hereby made punishable by
imprisonment as well as forfeiture, has not been made the
subject of any criminal proceeding.^

§ 1340. Failure to provide clothing, etc. on vessel-
Penalty. Eveiy vessel bound on any foreign voyage ex-
ceeding in length fourteen days shall also be provided
with at least one suit of woolen clothing for each sea-
man, and every vessel in the foreign or domestic trade
shall provide a safe and wann room for the use of sea-
men in cold weather. Failure to make such provision
shall subject tlie owner or master to a penalty of not less
than one hundred dollars.*

§ 1341. Penalty for master of vessel failing as to
weights and measures. Every master shall keep on board
proper weights and measures for the purpose of deter-
mining the quantities of the several provisions and arti-
cles served out, and shall allow the same to be used at
the time of serving out such provisions and articles, in
tlie presence of a witness, whenever any dispute arises
about sucli quantities, and in default shall, for every
offense, be liable to a penalty of not more than lifty
dollars.*

2— K. S. 4011, H.'c. 9, Act Mar. 4— K. S. 4572, Sec. 15, Act Dec.

\, 1915, liS Hlat. 1107. 21, 1898, 30 Stat. 759.

3— R. H. 4003, Act June 7, 1872, 5— R. S. 4571, Act Juno 7, 1872,

17 Htnt. 275. 17 Stat. 270.

Offenses Relating to Navigation 1033

§ 1342. Master or owner of vessel punished for fail-
ure to keep lime juice, etc., on board. If, on any such
vessel, such medicines, medical stores, lime or lemon
juice, or other articles, sugar, and vinegar, as are re-
quired by the preceding section, are not provided and
kept on board, as required, the master or owner shall
be liable to a penalty of not more than five hundred dol-
lars; and if the master of any such vessel neglects to
serve out the lime or lemon juice, and sugar and vinegar
in the case and manner directed, he shall for each such
offense be liable to a penalty of not more than one hun-
dred dollars; and if any master is convicted in either
of the offenses mentioned in this section, and it appears
that the offense is owing to the act or default of the
owner, such master may recover the amount of such
penalty, and the costs incurred by him, from the owner.^

§ 1343. Vessel owned by United States citizen engaged
in whaling must provide lemon juice, etc. Every ves-
sel belonging to a citizen of the United States bound
from a port in the United States to any foreign port, or
being of the burden of seventy-five tons or upward, and
bound from a port on the Atlantic to a port on the Pa-
cific, or vice versa, shall be provided with a chest of
medicines; and every sailing-vessel bound on a voyage
across the Atlantic or Pacific Ocean, or around Cape
Horn, or the Cape of Good Hope, or engaged in the
whale or other fisheries, or in sealing, shall also be pro-
vided with, and cause to be kept, a sufficient quantity
of lime or lemon juice, and also sugar and vinegar, or
other anti-scorbutics, to be served out to every seaman
as follows: The master of every such vessel shall serve
the lime or lemon juice, and sugar and vinegar, to the
crew, within ten days after salt provisions mainly have
been served out to the crew, and so long afterward as

6— E. S. 4570, Aet June 7, 1872,
17 Stat. 270.

1034 Ckiminal Law

such consumption of salt provisions continues; tlie lime
or lemon juice and sugar daily at the rate of half an
ounce each per day; and the vinegar weekly, at the rate
of half a pint per week for each member of the crew.'''

§ 1344. Punishment for offenses committed by seaman.
Whenever any seaman who has been lawfully engaged
or any apprentice to the sea service commits any of the
following offenses, he shall be punished as follows:

First. For desertion, by forfeiture of all or any part
of the clothes or effects he leaves on board, and of all
or any part of the wages or emoluments which he has
then earned.

Second. For neglecting or refusing without reasonable
cause to join his vessel or to proceed to sea in his vessel,
or for absence without leave at any time within twenty-
four hours of the vessel's sailing from any port, either
at the commencement or during the progress of the
voyage, or for absence at any time without leave and
without sufficient reason from his vessel and from his
duty, not amounting to desertion, by forfeiture from his
wages of not more than two days' pay or sufficient to
defray any expenses which slinll have been properly in-
curred in hiring a substitute.

Third. For quitting the vessel without leave, after her
arrival at tlie port of her deliveiy and before she is
placed in security, by forfeiture from his wages of not
more tliaii one montli's pay.

Fourth. For wilful disobedieiicc lo any lawful com-
mand at sea, by being, at the option of the master, placed
in irons niitil sucli disobedience shall cease, and upon
arriv.-il in port l)y forfeiture from his wages of not more
tlian four days' pay, or, at tlie discretion of the court,
by iiniirisoimieni for not more than one month.

Fifth. For continued wilful disobedience to law-

7— K. S. 4r,69, Act Juno 7, 1872,
17 Stat. 270.

Offenses Relating to Navigation 1035

ful command or continued wilful neglect of duty at
sea, by being, at the option of the master, placed in
irons, on bread and water, with full rations everj^ fifth
day, until such disobedience shall cease, and upon ar-
rival in port by forfeiture, for every twenty-four hours'
continuance of such disobedience or neglect, of a sum
of not more than twelve days' pay, or by imprisonment
for not more than three months, at the discretion of the
court.

Sixth. For assaulting any master or mate, by imprison-
ment for not more than two years.

Seventh. For wilfully damaging the vessel, or embez-
zling or wilfully damaging any of the stores or cargo,
by forfeiture out of his wages of a sum equal in amount
to the loss thereby sustained, and also, at the discre-
tion of the court, by imprisonment for not more than
twelve months.

Eighth. For any act of smuggling for which he is con-
victed and whereby loss or damage is occasioned to the
master or owner, he shall be liable to pay such master
or owner such a sum as is sufficient to reimburse the
master or owner for such loss or damage, and the whole
or any part of his wages may be retained in satisfac-
tion or on account of such liability, and he shall be
liable to imprisonment for a period of not more than
twelve months.*

§ 1345. Neglect of duty and drunkenness of sailor —
Punishment. Any master of, or any seaman or appren-
tice belonging to, any merchant vessel, who, by wilful
breach of duty, or by reason of drunkenness, does any
act tending to the immediate loss or destruction of, or
serious damage to such vessel, or tending immediately
to endanger the life or limb of any person belonging
to or on board of such vessel; or who, by wilful breach

8— R. S. 4596, Sec. 7, Last Act
March 4, 1915, 38 Stat. 1166.

1036 Criminal Law

of duty, or by neglect of duty, or by reason of drunken-
ness, refuses or omits to do any lawful act proper and
requisite to be done by him for preserving such vessel
from immediate loss, destruction, or serious damage, or
for presenting any person belonging to or on board of
such ship from immediate danger to life or limb, shall,
for every such offense, be deemed guilty of a misde-
meanor, punishable by imprisonment for not more than
twelve months.®

§ 1346. Soliciting seaman to become a lodger, within
twenty-four hours after anchoring. If, within twenty-
four hours after the aiTival of any vessel at any port
in the United States, any person, then being on board
such ship, solicits any seaman to become a lodger at
the house of any person letting lodgings for hire, or
takes out of such vessel any effect of any seaman, ex-
cept under his personal direction, and with the per-
mission of the master, he shall, for every such offense,
be punishable by a fine of not more than fifty dollars,
or by imprisonment for not more than three months.^"

§ 1347. Unauthorized person going aboard vessel be-
fore landing — Punishment. Every person who, not be-
ing in tlie United States service, and not being duly
authorized by law for the purpose, goes on board any
vessel about to arrive at the place of her destination,
before her actual arrival, and before she has been com-
pletely moored, without ponnission of the master, shall,
for every such offense, be punislia])lc by a fine of not
more than two hundred dollars, and by imprisonment
for not more than six months; and the master of such
vessel may take any such person so going on board into
custody, and deliver him up fortliwith to any constable
or police ofTicer, to be by him taken before any justice

9— R. 8. 4602, 8gc. 54, Act June 10— R. S. 4607, Act Juno 7, 1872,
7, 1872, 17 Stat. 274. 17 Stat. 276.

Offenses Relating to Navigation 1037

of the peace, to be dealt with according to the provisions
of this act."

§ 1348. Merchant marine violation of Act of Congress,
Sept. 7, 1916, where no different penalty is provided.

Whoever violates any provision of this act, except where
a different penalty is provided, shall be guilty of a mis-
demeanor, punishable by fine of not to exceed $5,000.^*

§ 1349. Unauthorized person breaMng lock or fasten-
ing on vessel — Punishment. If any unauthorized person
or persons shall wilfully break, cut, pick, open, or re-
move any wire, seal, lead, lock, or other fastening or
mark attached to any vessel, car, or other vehicle, crate,
box, bag, bale, basket, barrel, bundle, cask, trunk, pack-
age, or parcel, or anything whatsoever, under and by
virtue of this title and regulations authorized by it,
or any other law, or shall affix or attach, or any way
wilfully aid, assist, or encourage the afifixing or attach-
ing, by wire or otherwise, to any vessel, car, or other
vehicle, or to any crate, box, bale, barrel, bag, basket,
bundle, cask, package, parcel, article, or thing of any
kind, any seal, lead, metal, or anything purporting to
be a seal authorized by law, such person or persons
shall be deemed guilty of felony, and shall be impris-
oned for a term not exceeding five years, or shall pay
a fine of not exceeding one thousand dollars, or both,
at the discretion of the court.^^

§ 1350. Section 9 of "Shipping Act of 1916" amended
as follows: ''Sec. 9. That any vessel purchased, char-
tered, or leased from the board, by persons who are
citizens of the United States, may be registered or en-

11— E. S. 4606, Sec. 62, Act June 13—3105 E. S. (19 Stat, at Large

7, 1872, 17 Stat. 276. 248, Feb. 27, 1877).

12—39 Stat, at Large 738, Sec.
32, Act Sept. 7, 1916.

1038 Ceiminal Law

rolled and licensed, or both registered and enrolled and
licensed, as a vessel of the United States and entitled to
the benefits and privileges appertaining thereto: Pro-
vided, That foreign-built vessels admitted to American
registry or enrollment and license under this act, and
vessels owned by any corporation in which the United
States is a stockholder, and vessels sold, leased, or char-
tered by the board to any person a citizen of the United
States, as provided in this act, may engage in the coast-
wise trade of the United States while owned, leased, or
chartered by such a person.

"Every vessel purchased, chartered, or leased from
the board shall, unless otherwise authorized by the
board, be operated only under such registiy or enroll-
ment and license. Such vessels while employed solely
as merchant vessels shall be subject to all laws, regula-
tions, and liabilities governing merchant vessels, whether
the United States be interested therein as owner, in
whole or in part, or hold any mortgage, lien or other
interest therein.

"It shall be unlawful to sell, transfer or mortgage, or
except under regulations prescribed by the board, to
charter, any vessel purchased from the board or docu-
mented under the laws of the United States to any per-
son not a citizen of the United States, or to put the same
under a foreign registry or flag, without first obtaining
the board's approval.

"Any vessel chartered, sold, transferred or mortgaged
to a person not a citizen of the United States or placed
under a foreign registry or (lag, or operated in viola-
tion of any provision of this section shall be forfeited
to llic riiited States, and wlioever violates any provi-
sion of tliis section sliall be guilty of a misdemeanor and
subject to a fine of not more than $5,000 or to imprison-
ment for not more than five years, or both." "

14— Sec. 18, Act Juno G, 1920,
41 Stat. 994.

Offenses Relating to Navigation 1039

§ 1351. Unlawful to advance wages to seamen— Punish-
ment. Sec. 32. That paragraph (a) of section 10 of the
act entitled ''An act to remove certain burdens .on the
American merchant marine and encourage the American
foreign carrying trade, and for other purposes," ap-
proved Juno 26, 1884, as amended, is hereby amended to
read as follows:

"Sec. 10. (a) That it shall be, and is hereby, made un-
lawful in any case to pay any seaman wages in advance
of the time when he has actually earned the same, or to
pay such advance wages, or to make any order, or note, or
other evidence of indebtedness therefor to any other per-
son, or to pay any person, for the shipment of seamen
when payment is deducted or to be deducted from a sea-
man's wages. Any person violating any of the foregoing
provisions of this section shall be deemed guilty of a mis-
demeanor, and upon conviction shall be punished by a
fine of not less than $25 nor more than $100, and may
also be imprisoned for a period of not exceeding six
months, at the discretion of the court. The paj^ment of
such advance wages or allotment, whether made within
or without the United States or territory subject to the
jurisdiction thereof, shall in no case except as herein
provided absolve the vessel or the master or the owner
thereof from the full payment of wages after the same
shall have been actually earned, and shall be no defense
to a libel suit or action for the recovery of such wages.
If any person shall demand or receive, either directly
or indirectly, from any seaman or other person seek-
ing employment as seaman, or from an}' person on his
behalf, any remuneration whatever for providing him
with employment, he shall for every such offense be
deemed guilty of a misdemeanor and shall be imprisoned
not more than six months or fined not more than $500. ' ' "

15— Act June 5, 1920, 41 Stat.
1007.

lU-iO Chimin AL Law

§ 1352. Soldiers' and Sailors' Civil Relief Act— Pun-
ishment for false affidavits. Be it enacted by the senate
and house of representatives of the United States of
America in congress assembled, That where any judg-
ment has been entered since March 8, 1918, in any ac-
tion or proceeding commenced in any court where there
was a failure to file in such action the affidavits required
by section 200 of article 2 of the act, approved March 8,

1918, entitled ''An act to extend protection to the civil
rights of members of the militaiy and naval establish-
ments of the United States engaged in the present war"
(Fortieth Statutes at Large, page 440), the plaintiff,
after such notice as the court may prescribe, may file
an affidavit stating that the defendant, or defendants,
in default in such judgments, are not at the time of such
filing, and w^ere not at the time of the entry of such
judgment, in the naval or military service of the United
States, and upon the filing of such affidavit the court
may enter an order that such judgment, if otherwise
legal, shall stand and be effective as of the date of the
entry of such judgment as if such affidavit had been
duly filed. Any person who shall make or use such an
affidavit as aforesaid, knowing it to be false, shall be
punishable by imprisonment not to exceed two years or
by fine not to exceed $5,000, or both, in the discretion
of the court.^^

§ 1353. Failing to go to port of destination. If the
owner, master, or person in charge of any vessel, car, or
otlior vehicle so sealed, sliall not proceed to the port or
phu'o of destination thereof named jn the manifest of
its cargo, freight, or contents, and deliver such vessel,
car, or vehicle to the proper officer of the customs, or
shall dispose of the same by sale or otherwise, or shall
nnload tlio same, or any part thereof, at any other than

16 — Chap. 55, approved Sept. 3,

1919, 41 Stat. 282.

Offenses Relating to Navigation 1041

such port or place, or shall sell or dispose of the con-
tents of such vessel, car, or other vehicle, or any part
thereof, before such delivery, he shall be deemed guilty
of felony, and on conviction thereof, before any court
of competent jurisdiction, pay a fine not exceeding one
thousand dollars, or shall be imprisoned for a term not
exceeding five years, or both, at the discretion of the
court; and such vessel, car, or other vehicle, with its
contents, shall be forfeited to the United States, and
may be seized wherever found within the United States,
and disposed of and sold as in other cases of forfeiture.
Nothing in this section, however, shall be construed to
prevent sales of cargo, in whole or in part, prior to
arrival, to be delivered as per manifest, and after due
inspection."

§ 1354. Steamers nmning on rivers must furnish stair-
ways. Every such steam-vessel carrying passengers on
the main-deck shall be provided with permanent stair-
ways and other sufficient means, convenient to the pas-
sengers, for their escape to the upper deck, in case of
the vessel sinking or of other accident endangering life;
and in the stowage of freight upon such deck, where
passengers are carried, gangways or passages, sufficiently
large to allow persons to pass freely through them, shall
be left open both fore and aft of the vessel, and also to
and along the guards on each side.^®

§ 1355. Officers of ships under Act December 31, 1792,
making false register — Penalty. Every collector or offi-
cer who knowingly makes, or is concerned in making,
any false register or record, or who knowingly grants
or is concerned in granting, any false certificate of reg-
istry or record of or for any vessel, or any other false
document whatever touching the same, contrary to the

17—3104 E. S., Act June 27, 18— E. S. 4484, Act Feb. 28, 1871,

1864, 13 Stat. 197. 16 Stat. 443.

C. L.— 66

11)42 Criminal Law

true intent and meaning of this title, or who designedly
takes any other or greater fees than are by this title
allowed, or who receives any voluntary reward or gratu-
ity for any of the services performed, pursuant thereto;
and every surveyor or other person appointed to meas-
ure any vessel, who wilfully delivers to any collector or
naval officer a false description of such vessel, to be
registered or recorded, shall be punishable by a fine of
one thousand dollars, and be rendered incapable of serv-
ing in any office of trust or profit under the United
States.i^

§ 1356. Officers of ships under Act December 31, 1792
— Neglecting" to perform duty — Penalty. If any person
authorized and required by this title to perform, as an
officer, any act or thing, wilfully neglects to do or per-
fonn the same according to the true intent and mean-
ing of this title, he shall, if not subject to the penalty
and disqualification prescribed in the preceding section
(1355 Rev. Stat. 4187), be punishable by a fine of five
hundred dollars for the first offense, and by a like fine
for the second offense, and shall thenceforth be rendered
incapable of holding any office of trust or profit under
the United States.^"

§ 1357. Sending any American ship to sea in unsea-
worthy condition, etc. — Punishment. The inspectors in
their report shall also state whether in their opinion the
vessel was sent to sea unsuitably provided in any im-
portant or esseiilinl ])articnl;n', ))y neglect or design, or
through mistake or accident, and in case it was by neglect
or design, an<] Ihc consular officer approves of sucli find-
ing, he shall discliarge sucli of the crew as request it,
and siiall reqnirc Ihe payment by the master of one
month's wages for each seaman over and above the wages

19— R. 8. 4187, Act Dec. 31,1792, 20— R. 8. 4188, 1 Stat. 298.

1 9tat. 298.

Offenses Relating to Navigation 1043

then due, or sufficient money for the return of such of
the crew as desire to be discharged to the nearest and
most convenient port of the United States, or by fur-
nishing the seamen who so desire to be discharged with
employment on a ship agreed to by them. But if in the
opinion of the inspectors the defects or deficiencies
found to exist have been the result of mistake or acci-
dent, and could not, in the exercise of ordinary care,
have been known and provided against before the sail-
ing of the vessel, and the master shall in a reasonable
time remove or remedy the causes of complaint, then the
crew shall remain and discharge their duty. If any
person knowingly sends or attempts to send or is party
to the sending or attempting to send an American ship
to sea, in the foreign or coastwise trade, in such an un-
seaworthy state that the life of any person is likely to
be thereby endangered, he shall be punished by a fine
not to exceed one thousand dollars or by imprisonment
not to exceed five years, or both, at the discretion of the
court, unless he proves that either he used all reason-
able means to insure her being sent to sea in a seaworthy
state, or that her going to sea in an unseaworthy state
was, under the circumstances, reasonable and justifiable,
and for the purposes of giving that proof he may give
evidence in the same manner as any other witness.^^

§ 1358. Master who takes on board vessel more pas-
sengers than stated in certificate. It shall not be law-
ful to take on board of any vessel a greater number of
passengers than is stated in the certificate of inspection,
and for every violation of this provision the master or
owner shall be liable to any person suing for the same
to forfeit the amount of passage money and $10 for each
passenger beyond the number allowed. The master or
owner of the vessel, or either or any of them, who shall

21— R. S. 4561, Sec. 11, Act Dec.
21, 1898, 30 Stat. 758.

1044 Ckiminal Law

knowingly violate this provision sliall be liable to a fine
of not more than $100 or imprisonment of not more than
thirty days, or both.^^

§ 1359. Captain must assign space to deck passengers.

The captain or mate of eveiy such steam-vessel carry-
ing passengers upon the main-deck shall assign to all
deck-passengers, when taking passage, the space on deck
they may occupy during the voyage, and such space
shall not thereafter be occupied by freight, nor over-
crowded by other persons, nor shall freight be stowed
about the boilers or machinery, in such a manner as to
obstruct or prevent the engineer from readily attending
to his duties.^^

§ 1360. Failure to provide accommodations as provided
in preceding sections — Punishment. For every violation
of the provisions of the preceding sections [Sees. 135-4-
1359] the owners of the vessels shall be punished by a fine
of three hundred dollars.^*

§ 1361. River steamers carrying passengers must pro-
vide life preserver. Every such steam-vessel carrying
passengers shall also be provided with a good life pre-
server, made of suitable material, for every cabin pas-
senger for which she will have accommodation, and also
a good life-preserver or float for each deck or other class
passenger which the inspector's certificate shall allow
her to cany, including the officers and crew; which life
preservers or floats shall be kept in convenient and acces-
sible places on such vessel in readiness for innnediatc use
in case of accident.^^

5} 1302. Steamers carrying passengers at night must
carry suitable number watchmen. Kvcry steamer cariy-
ing passengers during the niglil-tinie sliall keep a suit-

22— R. S. 440."!, «(•(•. 2, Act Kch. 24— 1{. S. 44HG, Act Feb. 28, J 871,

14, 1917, 39 Stat. 1)18. 10 Stat. 443.

23— K. S. 4485, Act Feb. 28, 1871, 25— R. 8. 4482, Act Feb. 28, 1871,

10 Stat. 443. 10 Stat. 443.

Offenses Relating to Navigation 1045

able number of watchmen in the cabins, and on each deck,
to guard against fire or other dangers, and to give alarm
in case of accident or disaster.^^

§ 1363. Neglecting to keep watchmen— Fine of $1,000.

For any neglect to keep the watchmen required by the
preceding section [Sec. 1362], the license of the officer
in charge of the vessel for the time being shall be re-
voked; and every owner of such vessel who neglects or
refuses to furnish the number of men necessary to keep
watch as required, shall be fined one thousand dollars.^''

§ 1364. Manner of packing explosives. All gunpowder,
nitro-glycerine, camphene, naptha, benzine, benzole,
coal-oil, crude or refined petroleum, oil of vitriol, nitric
or other chemical acids, oil or spirits of turpentine,
friction matches, and all other articles of like character,
when packed or put up for shipment, shall be securely
packed and put up separately from each other and from
all other articles; and the package, box, cask, o- other
vessel containing the same shall be distinctly ma: ked on
the outside with the name or description of the article
contained therein.^^

§ 1365. Failure to ship explosives as provided by the
preceding section — Punishment. Every person who packs
or puts up, or causes to be packed or put up for
shipment, any gunpowder, nitro-glycerine, camphene,
naphtha, benzine, benzole, coal-oil, crude or refined petro-
leum, oil of vitriol, nitric or other chemical acids, oil
or spirits of turpentine, friction-matches or other articles
of like character otherwise than as directed by the pre-
ceding section [Sec. 1364] or who knowingly ships or at-
tempts to ship the same, or delivers the same to any such

26— R. S. 4477, Act Feb. 28, 1871, 28— E. S. 4475, Act Feb. 28, 1871,
16 Stat. 442. 16 Stat. 442.

27— E. S. 4478, Act Feb. 28, 1871,
16 Stat. 442.

1046 Criminal Law

vessel as stores, unless duly packed and marked, shall
be deemed guilty of a misdemeanor, and punished by
fine not exceeding two thousand dollars, or imprison-
ment not exceeding eighteen months, or both; one-half
of the fine to go to the informer, and the articles to be
liable to seizure and forfeiture.^^

§ 1366. Charges found by inspectors and the wages
due — Must be paid by master. The master shall pay all
such reasonable charges for inspection under such com-
plaint as shall be officially certified to him under the
hand of the consul or commercial agent; but in case
the inspectors report that the complaint is without any
good and sufficient cause, the master may retain from
the wages of the complainants, in proportion to the pay
of each, the amount of such charges, with such reason-
able damages for detention on that account as the consul
or commercial agent directing the inquiiy may officially
certify.^"

§1367. Punishment for failing to pay wages, etc.
Eveiy master who refuses to pay such wages and charges
shall be liable to each person injured thereby in damages
to be recovered in any court of the United States, in the
district w^liere such delinquent may reside or be found,
and in addition thereto be punished by a fine of one hun-
dred dollars for each otfense.'^

§ 1368. Inspector making false certificate touching
steam vessel as to hull, boilers, etc. — Penalty. Kvery in-
spector who wilfully certifies falsely touching any steam-
vessel, as to her hull, accommodations, boilers, engines,
machincr}% or ihcii- ap])urtenances, or any of her equip-

29— -R. S. 4476, Act Feb. 28, 1871, 31— R. S. 4!jG3, Act July 30, 1840,

Ifi Rtat. 442. r, Stat. 39G.

30— R. S. 4.502, Act July 20, 1840,
5 Stat. 396.

Offenses Relating to Navigation 1047

ments, or any matter or thing contained in any certifi-
cate signed and sworn to by him, shall be punished by
fine of not more than five hundred dollars, or imprison-
ment for not more than six raonths, or both.^*^

§ 1369. Ch&ngmg any license issued by inspector tinder
Act March 23, 1900. That every master, chief mate, engi-
neer and pilot who receives a license, shall, before en-
tering upon his duties, make oath before one of the
inspectors herein provided for, to be recorded with the
certificate, that he will faithfully and honestly, accord-
ing to his best skill and judgment, without concealment
or reservation, perform all the duties required of him
by law. Every applicant for license as either master,
mate, pilot, or engineer under the provisions of this title
shall make and subscribe to an oath or affirmation, be-
fore one of the inspectors referred to in this title, to
the truth of all the statements set forth in his appli-
cation for such license. Any person who shall make
or subscribe to any oath or affirmation authorized in
this title and knowing the same to be false shall be
deemed guilty of perjury. Every licensed master, mate,
pilot, or engineer who shall change, by addition, inter-
polation, or erasure of any kind, any certificate or license
issued by any inspector or inspectors referred to in this
title, shall, for every such offense, upon conviction, be
punished by a fine of not more than five hundred dol-
lars or by imprisonment at hard labor for a term not
exceeding three years.^^

§ 1370. Penalty for using unstamped and inspected
steel plates in steam vessels. Every person who con-
structs a boiler, or steam-pipe connecting the boilers,
to be used on steam-vessels, of iron or steel plates which
have not been duly stamped and inspected according to

32— E. S. 4425, Act Feb. 28, 1871, 33— E. S. 4446, 31 Stat. 50.
16 Stat. 450.

1048 Criminal Law

the provisions of this title, or who knowingly uses any
defective, bad, or faulty iron or steel in the construc-
tion of such boilers; or who drifts any rivet-hole to
make it come fair; or who delivers any such boiler for
use, knowing it to be imperfect in its flues, flanging,
riveting, bracing, or in any other of its parts, shall be
fined one thousand dollars, one-half for the use of the
informer. Nothing in this title shall be so construed
as to prevent from being used, on any steamer, any
boiler or steam-generator which may not be constructed
of riveted iron or steel plates, when the board of super-
vising inspectors have satisfactoiy evidence that such
boiler or steam-generator is equal in strength, and as
safe from explosion, as a boiler of the best quality con-
structed of riveted iron or steel plates. Provided, how-
ever, that the Secretary of the Treasury may grant
permission to use any boiler or steam-generator not con-
structed of riveted iron or steel plates upon the certi-
ficate of the supervising inspector of steam-boats for the
district wherein such boiler or generator is to be used,
and other satisfactory proof that the use of the same
is safe and efficient; said permit to be valid until the
next regular meeting of the supei*vising inspectors who
shall act thereon.^*

§ 1371. Counterfeiting any stamp on steel plates — Pen-
alty. Every person wlio counterfeits, or causes to be
counterfeited, any of (lie marks or stanii)s prescribed
for bdilcr iron or steel plates; or who designedly stamps
or causes to be stamped falsely, any sucli phites; and
every person who stamps or marks or causes to bo
stamped or marked any sucli iron or steel plates with
name or trade-mark of another, witli tlio intent to mis-
lead or deceive, shall be fined two thousand dollars, one-
iialf to the use of the informer, and may, in addition

34— R. 8. 442a, Act Auj,'. 7, 1882,
22 mm. 310.

Offenses Relating to Navigation 1049

thereto, at the discretion of the court, be imprisoned not
exceeding two years.^^

§ 1372. Affixing any false, forged, fraudulent, spurious
or counterfeit stamp on steel plate in steam vessel —
Penalty. Every iron or steel plate used in the construc-
tion of steam-boat boilers, and which shall be subject to
a tensil strain, shall be inspected in such manner as
shall be prescribed by the board of supervising inspec-
tors and approved by the Secretary of the Treasury, so
as to enable the inspectors to ascertain its tensil strength,
homogeneousness, toughness, and ability to withstand the
effect of repeated heating and cooling; and no iron or
steel plate shall be used in the construction of such
boilers which has not been inspected and approved un-
der those rules. And the Supervising Inspector-General
may, under the direction of the Secretaiy of the Treas-
ury, detail assistant inspectors from any local inspec-
tion district where assistant inspectors are employed, to
inspect iron or steel boiler plates at the mills where the
same are manufactured; and if the plates are found in
accordance with the rules of the supervising inspectors,
the assistant inspector shall stamp the same with the
initials of his name, followed by the letters and words,
''U. S. Assistant Inspector;" and material so stamped
shall be accepted by the local inspectors in the districts
where such material is to be manufactured into marine
boilers as being in full compliance with the require-
ments of this section regarding the inspection of boiler
plates; it being further provided that any person who
affixes any false, forged, fraudulent, spurious, or coun-
terfeit of the stamp herein authorized to be put on by
an assistant inspector, shall be deemed guilty of a fel-
ony, and shall be fined not less than one thousand dol-

35— E. S. 4432, Act Feb. 28, 1871,
16 Stat. 452.

1050 Ceiminal Law

lars, nor more than five thousand dollars, and hnprisoned
not less than two years nor more than five years.

§ 1373. Any officer, receiver, etc., common carrier by
water disclosing information. It shall be unlawful for
any common carrier by water or other person subject
to this act, or any officer, receiver, trustee, lessee, agent,
or employee of such carrier or person, or for any other
person to receive information, knowingly to disclose to
or permit to be acquired by any person other than the
shipper or consignee, without the consent of such shipper
or consignee, any information concerning the nature,
kind, quantity, destination, consignee, or routing of any
property tendered or delivered to such common carrier
or other person subject to this act for transportation in
interstate or foreign commerce, which information may
be used to the detriment or prejudice of such shipper
or consignee, or which may improperly disclose his busi-
ness transactions to a competitor, or which may be used
to the detriment or prejudice of any carrier; and it shall
also be unlawful for any person to solicit or knowingly
receive any such information which may be so used.

Nothing in this act shall be construed to prevent the
giving of such information in response to any legal
process issued under the authority of any court, or to
any officer or agent of the government of the United
States, or of any state, territory, district, or possession
thereof, in the exercise of his powers, or to any officer or
other duly authorized person seeking such information
for the prosecution of persons charged with or suspected
of crime, or to another carrier, or its duly authorized
agent, for the j)iiii)i)S(' of adjusting mutual trafiic accounts
ill tlic ordinary courts of business of such carriers (see
Sec. 795). 3«

30— See. L'O, Act Sept. 7, lOlfi, 39
Stat. 7.3.'3.

Offenses Eelating to Navigation 1051

§ 1374. Interfering or obstructing lighthouse board.

That it shall be unlawful for any person to obstruct
or interfere with any aid to navig-ation established or
maintained in the lighthouse establishment under the
lighthouse board, or to anchor any vessel in any of the
navigable waters of the United States, so as to obstruct
or interfere with range lights maintained therein, and
any person violating the provisions of this section shall
be deemed guilty of a misdemeanor and be subject to a
fine not exceeding the sum of five hundred dollars for
each offense, and each day during which such violation
shall continue shall be considered as a new offense.^''

§ 1375. Refusal to maintain lights on bridges, etc. That
any person, firm, company, or corporation required by
law to maintain a light or lights upon any bridge or abut-
ments over or in any navigable waters, who shall fail or
refuse to maintain such light or lights, or to obey any of
the lawful rules and regulations relating to the same,
shall be deemed guilty of a misdemeanor and be subject
to a fine not exceeding the sum of one hundred dollars for
each offense, and each day during which such violation
shall continue shall be considered a new offense.^^

§ 1376. Lighthouse jurisdiction, regulations, etc. That
the jurisdiction of the ligthhouse board, created by the
act entitled "An act making appropriations for light-
houses, light-boats, buoys and so forth and providing for
the erection and establishment of the same and for other
purposes," approved August thirty-first, eighteen hun-
dred and fifty-two, is hereby extended over the Missis-
sippi, Ohio, and Missouri Rivers, for the establishment of
such beacon-lights, day-beacons, and buoys as may be
necessary for the use of vessels navigating those streams;
and for this purpose the said board is hereby required to

37— Sec. 6, Act May 14, 1908, 35 38— Sec. 5, Act May 14, 1908, 35

Stat. 162. Stat. 162.

1052 Ceiminal Law

divide the designated rivers into one or two additional
lighthouse districts, to be in all respects similar to the
already existing lighthouse districts; and is hereby au-
thorized to lease the necessary ground for all such lights
and beacons as are used to point out changeable chan-
nels, and which in consequence can not be made pemia-
nent.^®

§ 1377. Using vessel in coast-guard service for private
purpose — Punishment. That any person using any vessel
in the coast-guard service for private purposes, in viola-
tion of law, shall upon conviction thereof be fined one
thousand dollars,*"

§ 1378. Prima facie evidence to true possession of
sponge less than five inches in diameter. That the pres-
ence of sponges of a diameter of- less than five inches on
any vessel or boat of the United States engaged in spong-
ing in the water of the Gulf of Mexico or the Straits of
Florida outside of state territorial limits, or the pos-
session of any sponges of less than the said diameter
sold or delivered by such vessels, shall be prima facie evi-
dence of a violation of this Act.*^

§ 1379. Courts where violation may be prosecuted for
selling or taking sponges. That any violation of this act
shall bo prosecuted in the district court of the United
States of the district wherein the offender is found or
into which he is first brouglit.*'^

§ 1380. Selling or taking sponges is criminal — Punish-
ment. That every jjersoii, iKirtuersliip, or association
guilty of a violation of this act shall be liable to a fiiio

39— Act June 23, 1874, 18 Stat. 41— Sec. 2, Act Aug. 15, 1914, 38

220. Htat. C92.

40— Sec. 0, .Tan. 28, lOl."), 38 Stat. 42— Sec. 4, Act Aur. IT). I'.il t, 38

802. Stat. r)92.

Offenses Relating to Navigation 1053

of not more than $500, and in addition such fine shall be
a lien against the vessel or boat on which the offense is
committed, and said vessel or boat shall be seized and
proceeded against by process of libel in any court having
jurisdiction on the offense.'*^

§ 1381. Unlawful, citizen of United States to take or
catch spong-es less than five inches in diameter. That on
and after the approval of this act it shall be unlawful for
any citizen of the United States, or person owing duty of
obedience to the laws of the United States, or any boat or
vessel of the United States, or person belonging to or on
any such boat or vessel, to take or catch, by any means or
method, in the waters of the Gulf of Mexico or the Straits
of Florida outside of state territorial limits, any commer-
cial sponges measuring when wet less than five inches in
their maximum diameter, or for any person or vessel to
land, deliver, cure, offer for sale, or have in possession at
any port or place in the United States, or on any boat or
vessel of the United States, any such commercial
sponges.**

§ 1382. Use of navigable waters to be regulated by
Secretary of War. That section four of the river and
harbor act of August eighteenth, eighteen hundred and
ninety-four, as amended by section eleven of the river
and harbor act of June thirteenth, nineteen hundred
and two, be, and is hereby, amended so as to read as
follows :

''Sec. 4. That it shall be the duty of the Secretary of
War to prescribe such rules and regulations for the use,
administration, and navigation of the navigable waters
of the United States as in his judgTQent the public neces-
sity may require for the protection of life and property,
or of operations of the United States in channel improve-
ment, covering all matters not specifically delegated by

43— Sec. 3, Act Aug. 15, 1914, 38 44— Sec. 1, Act Aug. 15, 1914, 38

Stat. 692. Stat. 692.

1054 Criminal Law

law to some other executive department. Such regula-
tions shall be posted, in conspicuous and appropriate
places, for the information of the public; and every per-
son and eveiy corporation which shall violate such regu-
lations shall be deemed guilty of a misdemeanor and, on
conviction thereof in any district court of the United
States within whose territorial jurisdiction such offense
may have been committed, shall be punished by a fine
not exceeding $500, or by imprisonment (in the case of
a natural person) not exceeding six months, in the dis-
cretion of the court. ' ' *^

§1383. Wilfully and unlawfully injuring any pier
subject to fine. Any person who shall wilfully and unlaw-
fully injure any pier, breakwater, or other work of the
United States for the improvement of rivers or harbors,
or navigation in the United States, shall, on conviction
thereof, be punished by a fine not exceeding one thou-
sand dollars.*^

§ 1384. Who by culpable negligence breaks or injures
submarine cable guilty of misdemeanor. That any person
who by culpable negligence shall break or injure a sub-
marine cable in such manner as to interrupt or embarrass,
ill whole or in part, telegraphic communication, shall be
guilty of a misdemeanor, and, on conviction thereof,
shall be liable to imprisonment for a term not exceeding
three months, or to a fine not exceeding five hundred dol-
lars, or to both fine and imprisonment, at the discretion
of the court."

§ 1385. A master of vessel laying or repairing cables
who fails to observe rules — Penalty. That the master
of any v«'ssel which, while engaged in laying or repairing

45— Sec. 7, Act Aug. 9, 1917, 40 47— Sec. 2, Act Feb. 29, 1888, 25

Stat. 266, amending 32 Stat. 374, Stat. 41.
Sec. 4.

46— Sec. 3, Act Aug. 14, 1876,
10 Stat. 139.

Offenses Relating to Navigation 1055

submarine cables, shall fail to observe the rules con-
cerning signals that have been or shall hereafter be
adopted by the parties to the convention with a view to
preventing collisions at sea; or the master of any vessel
that, perceiving, or being able to perceive the said sig-
nals displayed upon a telegraph ship engaged in repair-
ing a cable, shall not withdraw to or keep at distance of
at least one nautical mile; or the master of any vessel
that seeing or being able to see buoys intended to mark
the position of a cable when being laid or when out of
order or broken, shall not keep at a distance of at least
a quarter of a nautical mile, shall be guilty of a misde-
meanor, and on conviction thereof, shall be liable to
imprisonment for a term not exceeding one month, or to
a fine of not exceeding five hundred dollars.*^

§ 1386. Person who wilfully breaks or injures a subma-
rine cable guilty of misdemeanor. That any person who
shall wilfully and wrongfully break or injure, or to at-
tempt to break or injure, or who shall in any manner
procure, counsel, aid, abet, or be accessory to such break-
ing or injury, or attempt to break or injure, a submarine
cable, in such manner as to interrupt or embaiTass, in
whole or in part, telegraphic communication, shall be
guilty of a misdemeanor, and, on conviction thereof,
shall be liable to imprisonment for a term not exceeding
two years, or to a fine not exceeding five thousand dollars,
or to both fine and imprisonment, at the discretion of
the court.*^

§ 1387. Master of fishing vessel must keep at least one
nautical mile from cable. That the master of any fishing
vessel who shall not keep his implements or nets at a dis-
tance of at least one nautical mile from a vessel engaged
in laying or repairing a cable; or the master of any fish-

48_See. 4, Act Feb. 29, 1888, 25 49— See. 1, Act Feb. 20, 1888,
Stat. 41. 25 Stat. 41.

1056 Ceiminal Law

ing vessel who shall not keep his implements or nets at
a distance of at least a quarter of a nautical mile from
a buoy or buoys intended to mark the position of a cable
when being laid or when out of order or broken, shall be
guilty of a misdemeanor, and on conviction thereof, shall
be liable to imprisonment for a term not exceeding ten
days, or to a fine not exceeding two hundred and fifty dol-
lars, or to both such fine and imprisonment, at the discre-
tion of the court: Provided, however, That fishing ves-
sels, on perceiving or being able to perceive the said sig-
nals displayed on a telegraph ship, shall be allowed such
time as may be necessary to obey the notice thus given,
not exceeding twenty-four hours, during Avhicli period no
obstacle shall be placed in the way of their operations.^*"

§ 1388. Definition of terms used under act Feb. 29, 1888.
That unless the context of this act otherwise requires, the
term ''vessel" shall be taken to mean eveiy description
of vessel used in navigation, in w^hatever way it is pro-
pelled; the temi ''master" shall be taken to include every
person having command or charge of a vessel; and the
teim "person" to include a body of persons, corporate or
incorporate. The term "convention" shall be taken to
mean the International Convention for the Protection of
Submarine Cables, made at Paris on the fourteenth day
of May, eighteen hundred and eighty-four, and j^ro-
claimed by the President of the Uuited States on the
twenty-second day of May, eighteen hundred and eighty-
five.^^

§ 1389. Unlawful to discharge or deposit any refuse
matter in New York harbor. That the placing, discharg-
ing, or depositing, by any process or in any manner, of
rofuso, dirt, ashoa, cinders, mud, sand, drcdgings, sludge,
acids, or any other matter of any kind, other tlian tliat
flowing from streets, sewers, and passing tlierefrom in

50— Sec. 5, Act Fch. 29, 1888, 25 51— Soc. 10, Act Feb. 29, 1888,

Rtat. 42. 25 Stat. 42.

Offenses Relating to Navigation 1057

a liquid state, in the tidal waters of the harbor of New
York or its adjacent or tributary waters, or in those
of Long- Island Sound, within the limits which shall be
prescribed by the supervisor of the harbor, is hereby
strictly forbidden, and every such act is made a misde-
meanor, and every person engaged in or who shall aid,
abet, authorize, or instigate a violation of this section,
shall, upon conviction, be punishable by fine or imprison-
ment, or both, such fine to be not less than two hundred
and fifty dollars nor more than two thousand five hun-
dred dollars, and the imprisonment to be not less than
thirty days nor more than one year, either or both united,
as the judge before whom conviction is obtained shall
decide, one half of said fine to be paid to the person or
persons giving information which shall lead to conviction
of this misdemeanor.^^

§ 1390. Masters and engineers of vessel guilty of crime
knowingly towing scow loaded with refuse matter to be
emptied in New York harbor. That any and every mas-
ter and engineer, or person or persons acting in such
capacity, respectively, on board of any boat or vessel, who
shall knowingly engage in towing any scow, boat, or ves-
sel loaded with any such prohibited matter to any point
or place of deposit, or discharge in the waters of the har-
bor of New York, or its adjacent, or tributary waters,
or in those of Long Island Sound, or to any point or
place elsewhere than within the limits defined and per-
mitted by the supervisor of the harbor hereinafter men-
tioned, shall be deemed guilty of a violation of this act,
and shall, upon conviction, be punishable as hereinbefore
provided for offenses in violation of section one of this
act, and shall also have his license revoked or suspended
for a term to be fixed by the judge before whom tried and
convicted.^*

52— Sec. 1, Act June 29, 1888, 25 53— Sec. 2, Act June 29, 1888, 25

Stat. 209. Stat. 209.

C. L.— 67

1058 Criminal Law

§ 1391. Waste matter to be deposited in definite limits
in New York harbor — Penalty. That all mud, dirt, sand,
dredgings, and material of every kind and description
whatever taken, dredged, or excavated from any slip, ba-
sin, or shoal in the harbor of New York or the waters adja-
cent or tributaiy thereto, and placed on any boat, scow, or
vessel for the pm'pose of being taken or towed upon the
waters of the harbor of New York to a place of deposit,
shall be deposited and discharged at such place or within
such limits as shall be defined and specified by the super-
visor of the harbor, as in the third section of this act pre-
scribed, and not otherwise. Eveiy person, firm, or cor-
poration being the owner of any slip, basin, or shoal, from
which such mud, dirt, sand, dredgings, and material shall
be taken, dredged, or excavated, and every person, finn,
or corporation in any manner engaged in the work of
dredging or excavating any such slip, basin, or shoal, or
of removing such mud, dirt, sand, or dredgings there-
from, shall severally be responsible for the deposit and
discharge of all such mud, dirt, sand, or dredgings at
such place or within such limits so defined and pre-
scribed by said supei^isor of the harbor; and for every
violation of the provisions of this section the person
offending shall be guilty of an offense against this act,
and shall be punished by a fine equal to the sum of five
dollars for every cubic yard of mud, dirt, sand, dredg-
ings, or material not deposited or discharged as required
by this section. Any boat or vessel used or employed in
vif)Iating any provision of this act, shall be lial)l(' to the
pecuniaiy penalties imposed thereby, and may be pro-
ceeded against summarily by way of libel in any district
court of the United States, having jurisdiction thereof."

§ 1392. Wilfully and knowingly violating rules of res-
ervoirs at headwaters of Mississippi — Punishment. ^Pliat

54— Sec. 4, Act June 29, 1888, 25
Stat. 210.

Offenses Relating to Navigation 1059

it shall be the duty of the Secretaiy of War to prescribe
such rules and regulations in respect to the use and ad-
ministration of said reservoirs as in his judgment the
public interest and necessity may require; which rules
and regulations shall be posted in some conspicuous
place or places for the information of the public. And
any person knowingly and wilfully violating such rules
and regulations shall be liable to a fine not exceeding
five hundred dollars, or imprisonment, not exceeding six
months, the same to be enforced by prosecution in any
district court of the United States within whose terri-
torial jurisdiction such offense may have been committed.
And the Secretary of War shall cause such gaugings to
be made at or near Saint Paul during the annual opera-
tion of said reservoirs as shall determine accurately the
discharge at that point, the cost of same to be paid out of
the annual appropriation for gauging the waters of the
Mississippi River and its tributaries.^^

§ 1393. No obstruction may be made in the navigable
waters except by act of congress. That the creation of
any obstruction, not affirmatively authorized by law, to
the navigable capacity of any waters, in respect of which
the United States has jurisdiction, is hereby prohibited.
The continuance of any such obstruction, except bridges,
piers, docks and wharves, and similar structures erected
for business purposes, whether heretofore or hereafter
created, shall constitute an offense and each week's con-
tinuance of any such obstruction shall be deemed a sepa-
rate offense. Every person and every corporation which
shall be guilty of creating or continuing any such unlaw-
ful obstruction in this act mentioned, or who shall violate
the provisions of the last four preceding sections of this
act, shall be deemed guilty of a misdemeanor, and on
conviction thereof shall be punished by a fine not exceed-

55— Act Aug. 11, 1888, 25 Stat.
419.

1060' Criminal Law

ing five thousand dollars, or by imprisonment (in the
case of a natural person) not exceeding one year, or by
both such punishments, in the discretion of the court, the
creating or continuing of any unlawful obstruction in
this act mentioned may be prevented and such obstruc-
tion may be caused to be removed by the injunction of
any circuit court exercising jurisdiction in any district
in which such obstruction may be threatened or may
exist; and proper proceedings in equity to this end may
be instituted under the direction of the Attorney-General
of the United States.^^

§ 1394. Unlawful to engage in fishing in channels adja-
cent to New York harbor — Penalty. It shall be unlawful
for any person or persons to engage in fishing or dredg-
ing for shell fish in any of the channels leading to and
from the harbor of New York, or to interfere in any way
with the safe navigation of those channels by ocean
steamships and ships of deep draft.

Any person or persons violating the foregoing pro-
visions of this section shall be deemed guilty of a mis-
demeanor, and on conviction thereof shall be punished by
fine or imprisonment, or both, such fine to be not more
than two hundred and fifty dollars nor less than fifty
dollars, and the imprisonment to be not more than six
months nor less than thirty days, either or both united,
as the judge before whom conviction is obtained shall
decide.

It shall be the duty of the United States supervisor of
the harbor to enforce this act, and the deputy inspectors
of the said supervisor shall have authority to arrest and
take into custody, witli oi- without process, any person
or persons who may commit any of the acts or offenses
prohibited by this act: Provided, That no person shall be
arrested without process for any offense not committed in

.56— Sec. 10, Act Sept. 19. 1800,
2« Stat. 454.

Offenses Relating to Navigation 1061

the presence of the supervisor or his inspector or deputy-
inspectors, or either of them : And provided further, That
whenever any such arrest is made the person or persons
so arrested shall be brought forthwith before a commis-
sioner, judge, or court of the United States for examina-
tion of the offenses alleged against him; and such com-
missioner, judge, or court shall proceed in respect thereto
as authorized by law in case of crimes against the United
States.^^

§ 1395. Drawbridges subject to rules of Secretary of
War and failure to comply with them a misdemeanor.

That it shall be the duty of all persons owning, oper-
ating, and tending the drawbridges now built, or which
may hereafter be built across the navigable rivers and
other waters of the United States, to open, or cause to be
opened, the draws of such bridges under such rules and
regulations as in the opinion of the Secretary of War the
public interests require to govern the opening of draw-
bridges for the passage of vessels and other water crafts,
and such rules and regulations, when so made and pub-
lished, shall have the force of law. Every such person
who shall wilfully fail or refuse to open, or cause to be
opened, the draw of any such bridge for the passage of
a boat. or boats, or who shall unreasonably delay the
opening of said draw after reasonable signal shall have
been given, as provided in such regulations, shall be
deemed guilty of a misdemeanor, and on conviction there-
of shall be punished by a fine of not more than two thou-
sand dollars nor less than one thousand dollars, or by
imprisonment (in the case of a natural person) for not
exceeding one year, or by both such fine and imprison-
ment, in the discretion of the court: Provided, That the
proper action to enforce the provisions of this section
may be commenced before any commissioner, judge, or

57— Sec. 2, Act Aug. 18, 1894, 28
Stat. 360.

1062 Crimixaij Law

court of the United States, and such commissioner,
judge, or court shall proceed in respect thereto as author-
ized by law in case of crimes against the United States:
Provided further. That whenever, in the opinion of the
Secretary of "War, the public interests require it, he may
make rules and regulations to govern the opening of
drawbridges for the passage of vessels and other water
crafts, and such rules and regulations, when so made and
published, shall have the force of law, and any violation
thereof shall be punished as hereinbefore provided.^®

§ 1396. No building — Wharves, etc., may be made ex-
cept upon places recommended by chief engineer. Where
it is made manifest to the Secretary of War that the
establishment of harbor lines is essential to the preserva-
tion and protection of harbors he may and is hereby
authorized to cause such lines to be established, beyond
which no piers, wharves, bulkheads, or other works shall
be extended or deposits made, except under such regula-
tions as may be prescribed from time to time by him:
Provided, That whenever the Secretary of War grants
to any person or persons permission to extend piers,
whai^ves, bulkheads, or other works, or to make deposits
in any tidal harbor or river of the United States beyond
any harbor lines established under authority of the
United States, he shall cause to be ascertained the amount
of tide water displaced by any such structure or by
any such deposits, and he shall, if he deem it necessaiy,
require the parties to whom tlie i)erniission is given to
make compensation for sucli displacement either by ex-
cavating in some part of the harbor, inchiding tide-water
channels between high and low water mark, to such an
extent as to create a basin for as much tide water as may
be disphiced by such structure or by such deposits, or in
any other mode that may be satisfactory to him.'*®

58— Sec. 5, Act Aug. 18, 1894, 28 59— Sec. 11, Act Mar. 3, 1899, 30

Stat. 3G2. Stat. 1151.

Offenses Relating to Navigation 1063

§ 1397. Violations sections 9, 10 and 11 Act March 3,
1899. That every person and every corporation that shall
violate any of the provisions of sections 9, 10 and 11
of this act, or any rule or regulation made by the
Secretary of War in pursuance of the provisions of said
section 14, shall be deemed guilty of a misdemeanor, and
on conviction thereof shall be punished by a fine not ex-
ceeding twenty-five hundred dollars, nor less than five
hundred dollars, and by imprisonment (if a natural per-
son) not exceeding one year, or both such fine and im-
prisonments in the discretion of the court.^**

§ 1398. Unlawful to throw any refuse matter from
ships, mills, manufacturing plants, etc., into any navi-
gable water in United States. It shall not be lawful to
throw, discharge, or deposit, or cause, suffer, or procure
to be thrown, discharged, or deposited either from or out
of any ship, barge, or other floating craft of any kind,
or from the shore, wharf, manufacturing establishment,
or mill of any kind, any refuse matter of any kind or
description whatever other than that flowing from
streets and sewers and passing therefrom in a liquid
state, into any navigable water of the United States,
or into any tributary of any navigable w^ater from which
the same shall float or be washed into such navigable
water; and it shall not be lawful to deposit, or cause,
suffer, or procure to be deposited material of any kind
in any place on the bank of any navigable water, or on
the bank of any tributary of any navigable water, where
the same shall be liable to be washed into such navi-
gable water, either by ordinary or high tides, or by
storms or floods, or otherwise, whereby navigation shall
or may be impeded or obstructed: Provided, That noth-
ing herein contained shall extend to, apply to, or pro-
hibit the operations in connection with the improvement

60— Sec. 12, Act March 3, 1899,
30 Stat. 1151.

1064 Criminal Law

of navigable waters or construction of public works,
considered necessary and proper by the United States
officers supervising such improvement or public work:
And provided further, That the Secretary of "War, when-
ever in the judgment of the chief of engineers anchor-
age and navigation will not be injured thereby, may
permit the deposit of any material above mentioned in
navigable waters, within limits to be defined and under
conditions to be prescribed by him, provided application
is made to him prior to depositing such material; and
whenever any permit is so granted the conditions thereof
shall be strictly complied with, and violation thereof
shall be unlawful.^^

§ 1399. Unlawful to build upon, use or in any manner
impair any sea wall, etc., built by the United States. It
shall not be lawful for any person or persons to take
possession of or make use of for any purpose, or build
upon, alter, deface, destroy, move, injure, obstruct by
fastening vessels thereto or othenvise, or in any man-
ner, whatever, impair the usefulness of any sea wall,
bulkhead, jetty, dike, levee, wharf, pier, or other work
built by the United States, or any piece of plant, float-
ing or otherwise, used in the construction of such work
under the control of the United States, in whole or in
part, for the preservation and improvement of any of
its navigal)le waters or to prevent Hoods, or as boundaiy
marks, tide gauges, surveying stations, buoys, or other
established marks, nor remove for ballast or other pur-
poses any stone or other material composing such works:
Provided, That the Secretary of War may, on the recom-
mendation of the chief of engineers, grant pennission for
the temporary occupation or use of any of the aforemen-
tioned jjublic works when in his judgment such occu-
pation or use will not Ix' injurious to the public interest.®*

01— Sec. 13, Act Mar. 3, 1899, 30 62— Sec. 14, Act Mar. 3, 1899, 30

Stat. 1152. Stat. 1152.

Offenses Relating to Navigation 1065

§ 1400. Unlawful to anchor vessels in navigable wa-
ters, etc. — To float loose timber or logs, etc. It shall not
be lawful to tie up or anchor vessels or other craft in
navigable channels in such a manner as to prevent or
obstruct the passage of other vessels or craft ; or to vol-
untarily or carelessly sink, or permit or cause to be
sunk, vessels or other craft in navigable channels; or to
float loose timber and logs, or to float what is known
as sack rafts of timber and logs iu streams or channels
actually navigated by steamboats in such manner as to
obstruct, impede, or endanger navigation. And when-
ever a vessel, raft, or other craft is wrecked and sunk
in a navigable channel, accidentally or otherwise, it shall
be the duty of the owner of such sunken craft to imme-
diately mark it with a buoy or beacon during the day
and a lighted lantern at night, and to maintain such
marks until the sunken craft is removed or abandoned,
and the neglect or failure of the said owner so to do
shall be unlawful; and it shall be the duty of the owner
of such sunken craft to commence the immediate removal
of the same, and prosecute such removal diligently, and
failure to do so shall be considered as an abandonment
of such craft, and subject the same to removal by the
United States as hereinafter provided for.^'

§ 1401. Every person and corporation violating sec-
tions 13, 14 and 15 and every master, pilot or engineer
who knowingly engages in towing scow that is loaded
with material specified in section 14 or obstructing any
waterway under section 15, Act March 3, 1899, shall be
punished. Every person and every corporation that shall
violate, or that shall knowingly aid, abet, authorize, or
instigate a violation of the provisions of sections 13, 14,
and 15 [Sees. 1398, 1399, 1400] of this act shall be guilty
of a misdemeanor, and on conviction thereof shall be

63— Sec. 15, Act Mar. 3, 1899, 30
S*at. 1152.

1066 Cbiminal. Law

punished by a fine not exceeding twenty-five hundred
dollars nor less than five hundred dollars, or by imprison-
ment (in the case of a natural person) for not less than
thirty days nor more than one year, or by both such fine
and imprisonment, in the discretion of the court, one-
half of said fine to be paid to the person or persons giv-
ing infoiTQation which shall lead to conviction. And any
and every master, pilot, and engineer, or person or per-
sons acting in such capacity, respectively, on board of
any boat or vessel who shall knowingly engage in towing
any scow, boat, or vessel loaded with any material speci-
fied in section 13 of this act, to any point or place of
deposit or discharge in any harbor or navigable water,
elsewhere than within the limits defined and permitted
by the Secretary of War, or wiio shall wilfully injure or
destroy any work of the United States contemplated in
section 14 of this act, or who shall wilfully obstruct the
channel of any waterway in the manner contemplated in
section 15 of this act, shall be deemed guilty of a viola-
tion of this act, and shall, upon conviction, be punished
as hereinbefore provided in this section, and shall also
liave his license revoked or suspended for a term to be
fixed by the judge before whom tried and convicted. And
any boat, vessel, scow, raft, or other craft used or em-
ployed in violating any of the provisions of sections 13,
14 and 15 of this act shall be liable for the pecuniary
penalties specified in lliis section, and in addition thereto,
for the amount of damages done by said boat, vessel,
scow, raft, or other craft, which latter sum shall be
placed to the credit of the appropriation for the improve-
ment of tliis liarbor or waterway in which the damage
occurred, and said boat, vessel, scow, raft, or other craft
may be proceeded against summarily by way of libel in
any district court, of the United States having jurisdic-
tion thereof."

fi4— Soc. in, Art \fnr. 2. 1S00. 20
Stnt. liri."?.

Offenses Relating to Navigation 1067

§ 1402. Railroad bridge over navigable waters — Fail-
ure to correct obstruction after notice by Secretary of
War — Guilty of misdemeanor. Whenever the Secretary
of War shall have good reason to believe that any rail-
road or other bridge now constructed, or which may
hereafter be constructed, over any of the navigable wa-
terways of the United States is an unreasonable obstruc-
tion to the free navigation of such waters on account
of insufficient height, width of span, or otherwise, or
where there is difficulty in passing the draw opening
or the draw span of such bridge by rafts, steamboats,
or other water craft, it shall be the duty of the said
secretary, first giving the parties reasonable opportu-
nity to be heard, to give notice to the persons or cor-
porations owning or controlling such bridge so to alter
the same as to render navigation through or under it
reasonably free, easy, and unobstructed; and in giving
such notice he shall specify the changes recommended
by the chief of engineers that are required to be made,
and shall prescribe in each case a reasonable time in
which to make them. If at the end of such time the
alteration has not been made, the Secretary of War
shall forthwith notify the United States district attor-
ney for the district in which such bridge is situated,
to the end that the criminal proceedings hereinafter
mentioned may be taken. If the persons, corporation,
or association owning or controlling any railroad or
other bridge shall, after receiving notice to that effect,
as hereinbefore required, from the Secretaiy of War, and
within the time prescribed by him wilfully fail or re-
fuse to remove the same or to comply with the lawful
order of the Secretary of War in the premises, such per-
sons, corporation, or association shall be deemed guilty
of a misdemeanor, and on conviction thereof shall be
punished by a fine not exceeding five thousand dollars,
and every month such persons, corporation, or associa-
tion shall remain in default in respect to the removal or

1068 Criminal Law

alteration of such bridge shall be deemed a new offense,
and subject the persons, corporation, or association so
offending to the penalties above prescribed: Provided,
That in any case arising under the provisions of this sec-
tion an appeal or writ of error may be taken from the
district courts or from the existing circuit courts direct
to the supreme court either by the United States or by
the defendants.^^

§ 1403. The Department of Justice shall conduct pros-
ecutions under Act March 3, 1899. The Department of
Justice shall conduct the legal proceedings necessary to
enforce the foregoing provisions of sections 9 to 16
[Sees. 1396, 1397, 1398, 1399, 1400, 1401], inclusive, of
this act; and it shall be the duty of district attorneys of
the United States to vigorously prosecute all offenders
against the same whenever requested to do so by the
Secretary of War or by any of the officials hereinafter
designated, and it shall furthermore be the duty of said
district attorneys to report to the Attorney-General of
the United States the action taken by him against of-
fenders so reported, and a transcript of such reports
shall be transmitted to the Secretary of War by the At-
torney-General; and for the better enforcement of the
said provisions and to facilitate the detection and bring-
ing to punishment of such offenders, the officers and
agents of the United States in charge of river and
harbor improvements, and the assistant engineers and
inspectors employed under them by authority of the Sec-
retary of War, and the United States collectors of cus-
toms and other revenue officers, shall have power and
authority to swear out process and to arrest and take
into custody, with or without process, any person or
persons who may commit any of ilic nets or offenses pro-

65— Sec. 18, Act Mar. 3, 1899, 30
Stat. 1153.

Offenses Relating to Navigation 1069

liibited by the aforesaid sections of this act, or who may
violate any of the provisions of the same: Provided,
That no person shall be arrested without process for any
offense not committed in the presence of some one of
the aforesaid officials: And provided further, That
whenever any arrest is made under the provisions of
this act, the person so arrested shall be brought forth-
with before a commissioner, judge, or court of the United
States for examination of the oifenses alleged against
him; and such commissioner, judge, or court shall pro-
ceed in respect thereto as authorized by law in case of
crimes against the United States. ^^

§ 1404. Regulations and rules to be made by Secretary
of War conceming the floating of logs — Section 15, Act
March 3, 1899, shall not apply. The prohibition con-
tained in section 15 [Sec. 1400] of the River and Harbor
Act, approved March 3, 1899, against floating loose tim-
ber and logs, or sack rafts, so called, of timber and logs
in streams or channels actually navigated by steamboats,
shall not apply to any navigable river or waterway of
the United States or any part thereof whereon the float-
ing of loose timber and logs and sack rafts of timber and
logs is the principal method of navigation. But such
method of navigation on such river or waterway or part
thereof shall be subject to the rules and regulations pre-
scribed by the Secretary of War as hereinafter provided.

§ 1404a. Sec. 2. — Rule and Regulations published in
newspaper. The Secretary of War shall have power, and
he is hereby authorized and directed, within the shortest
practical time after the passage hereof, to prescribe
rules and regulations, which he may at any time modify,
to govern and regulate the floating of loose timber and
logs, and sack rafts (so called) of timber and logs and
other methods of navigation on the streams and water-

66— Sec. 17, Act Mar. 3, 1899, 30
Stat. 1153.

1070 Criminal Law

ways, or any thereof, of the character, as to navigation,
in section 1 hereof described. The said rules and regu-
lations shall be so framed as to equitably adjust con-
flicting interests between the different methods or
forms of navigation; and the said rules and regulations
shall be published at least once in such newspapers of
general circulation as in the opinion of the Secretaiy of
War shall be best adapted to give notice of said rules
and regulations to persons affected thereby and locally
interested therein. And all modifications of said rules
and regulations shall be similarly published. And such
rules and regulations when so prescribed and published
as to any such stream or waterway shall have the force
of law, and any violation thereof shall be a misdemeanor,
and every person convicted of such violation shall be
punished by a fine of not exceeding two thousand five
hundred dollars nor less than five hundred dollars, or
by imprisonment (in case of a natural person) for not
less than thirty days nor more than one year, or by both
such fine and imprisonment, in the discretion of the
court: Provided, That the proper action to enforce the
provisions of this section may be commenced before any
commissioner, judge, or court of the United States, and
such commissioner, judge or court shall proceed in re-
spect thereto as authorized by law in the case of crimes
and misdemeanors committed against the United States.

§ 1404b. Sec. 3. Right to Amend etc. The right to alter,
amend, or repeal this act at any time is hereby reserved.

§ 1404c. Sec. 4 CivU Act not affected. This act shall
not, nor shall any i-ules or regulations prescribed there-
iindor, in any mannr affect any civil action or actions
lieretofore commenced and now pending to recover
damages claimed to have been sustained by reason of tlie
violation of any of the terms of said section 15, as
ori^-inally enacted, or in violntion (»r .-my otlior law.®""^

67— 8ec8. 1, -•, :? aiKl 4, Act May
It. 1000, 31 Stnt. 172.

Offenses Relating to Navigation 1071

§ 1405. Secretaiy of War shall make rules and regula-
tions concerning dumping refuse material into navigable
waters. That the Secretaiy of War is hereby authorized
and empowered to prescribe regulations to govern the
transportation and dumping into any navigable water,
or waters adjacent thereto, of dredgings, earth, garbage,
and other refuse materials of every kind or description,
whenever in his judgment such regulations are required
in the interest of navigation. Such regulations shall be
posted in conspicuous and appropriate places for the in-
formation of the public; and every person or corpora-
tion which shall violate the said regulations, or any of
them, shall be deemed guilty of a misdemeanor and shall
be subject to the penalties prescribed in section 16 [Sec.
1401] of the River and Harbor Act of March 3, 1899, for
violation of the provisions of section 13 [Sec. 1398] of
the said act: Provided, That any regulations made in
pursuance hereof may be enforced as provided in sec-
tion 17 [Sec. 1403] of the aforesaid Act of March 3,
1899, the provisions whereof are hereby made applicable
to the said regulations: Provided further. That this
section shall not apply to any waters within the juris-
dictional boundaries of any state which are now or may
hereafter be used for the cultivation of oysters under the
laws of such state, except navigable channels which have
been or may hereafter be improved by the United States,
or to be designated as navigable channels by competent
authority, and in making such improvements of chan-
nels, the material dredged shall not be deposited upon
any ground in use in accordance with the laws of such
state for the cultivation of oysters, except in compliance
with said laws. And provided further, That any expense
necessary in executing this section may be paid from
funds available for the improvement of the harbor or
watei^vay, for which regulations may be prescribed, and
in case no such funds are available the said expense may
be paid from appropriations made by congress for ex-

1072 Criminal Law

aminations, surveys, and contingencies of rivers and
harbors.^^

§ 1406. Any person directly or indirectly g-iving any
sum of money to any inspector of navigation — Punish-
able. Every person who, directly or indirectly, gives any
sum of money or other bribe, present, or reward, or
makes any offer of the same to any inspector, deputy
inspector, or other employee of the office of the super-
visor of the harbor with intent to influence such inspec-
tor, deputy inspector, or other employee to permit, or
overlook any violation of the provisions of this section
or of the said Act of June 29, 1888, shall, on conviction
thereof, be fined not less than five hundred dollars nor
more than one thousand dollars, and be imprisoned not
less than six months nor more than one year.

Every peraait issued in accordance with the provisions
of this section of this act, which may not be taken up
by an inspector or deputy inspector, shall be returned
within four days after issuance to the office of the super-
visor of the harbor; such pennit shall bear an indorse-
ment by the master of the towboat, or the person act-
ing in such capacity, stating whether the pennit lias
been used, and, if so, tlio time and place of dumping.
Any person violating the provisions of this section shall
be liable to a fine not more than five hundred dollars nor
less than one hundred dollars.^^

§ 1407. Unlawful to deposit or dump any refuse mat-
ter in Lake Michigan — Punishment. That it shall not
be hiwl'ul to throw, disciiarge, dump, or deposit, or cause,
sulTer, or procure to be thrown, discharged, dumix'd,
or deposited, any refuse matter ol" niiy kind or descri})-
tion whatever other than tlial flowing from streets and
sewers and passing therefi-oin in ;i li(|uid state into Lake

68— Sec. 4, Act Mar. 3, 1905, 33 09— Sec. 8, Act May 28, 1908, 35

Stat. 1147. Stat. 428.

Offenses Relating to Navigation 1073

Michigan, at any point opposite or in front of the County
of Cook in the State of Illinois, or the County of Lake in
the State of Indiana, within eight miles from the shore
of said lake, unless said material shall be placed inside
of a breakwater so arranged as not to permit the escape of
such refuse material into the body of the lake and cause
contamination thereof; and no officer of the government
shall dump or cause or authorize to be dumped any ma-
terial contrary to the provisions of this act: Provided,
however. That the provisions of this act shall not apply
to work in connection with the construction, repair, and
protection of breakwaters and other structures built in
aid of navigation, or for the purpose of obtaining water
supply. Any person violating any provision of this act
shall be guilty of a misdemeanor, and on conviction
thereof shall be fined for each offense not exceeding one
thousand dollars."'^®

§ 1408. Person owning or operating dam under provi-
sions of Act June 23, 1910, failing to maintain lights and
signals — Punishment. That the persons constructing,
maintaining, or operating any dam or appurtenant or
accessory works, in accordance with the provisions of
this act, shall be liable for any damage that may be in-
flicted thereby upon private property, either by overflow
or otherwise. The persons owning or operating any such
dam, or accessory works, subject to the provisions of this
act, shall maintain, at their own expense, such lights and
other signals thereon and such fishways as the Secretaiy
of Commerce and Labor shall prescribe, and for failure
so to do in any respect shall be deemed guilty of a misde-
meanor and subject to a fine of not less than five hundred
dollars, and each month of such failure shall constitute
a separate offense and subject such persons to additional
penalties therefor.'^

70— Sec. 1, Act June 23, 1910, 36 71— Sec. 3, Act June 23, 1910, 36

Stat. 593. Stat. 594.

C. L.— 68

1074 Ceiminal Law

§ 1409. Failure to comply with lawful orders of Secre-
tary of War and chief engineer under provisions Act
June 23, 1910, a misdemeanor. That any persons who
shall fail or refuse to comply with the lawful order of
the Secretary of War and the chief of engineers, made
in accordance with the provisions of this act [Sees. 1407,
1408, 1409], shall be deemed guilty of a violation of
this act, and any persons who shall be guilty of a viola-
tion of this act shall be deemed guilty of a misdemeanor
and on conviction thereof shall be punished by a fine not
exceeding five thousand dollars, and every month such
persons shall remain in default shall be deemed a new
offense and subject such persons to additional penalties
therefor.'*

§ 1410. Secretary of War to prescribe rules and regu-
lations concerning navigation — Punishment for viola-
tion. It shall be the duty of the Secretary of War to
prescribe such regulations for the use, administration,
and navigation of the navigable waters of the United
States as in his judgment the public necessity may re-
quire for the protection of life and property, or of opera-
tions of the United States in channel improvement, cov-
ering all matters not specifically delegated by law to
some other executive department. Such regulations
shall be posted, in conspicuous and appropriate places,
for the infomiation of the public; and every person and
eveiy corporation which shall violate such regulations
shall be deemed guilty of a misdemeanor and, on con-
viction tlioreof in iu\\ rlistrict court of the United States
within whose territorial Jurisdiction such olTeiise may
liave been committed, siiall be punished by a fine not
exceeding $500, or by imprisonment (in tlic case of a
nMtnrnl ])erson) not exceeding six nionllis, in Ihe discre-
tion ol' the court."^'

72— Sec. ry. Art .Tunc 23, 1910, 36 73— Art Aur. S, 1017, 40 Stat.

Stnt. r>i)r,. 200.

CHAPTER LXXII

OFFENSES AGAINST NEUTRALITY

CHAPTER TWO

Penal Code, Act March 4, 1909

S 1413. Accepting a foreign com- § 1418. Enforcement of foregoing

mission. provisions.

§ 1414. Enlisting in foreign service. § 1419. Compelling foreign vessels

§ 1415. Arming vessels against peo- to depart.

pie, at peace with the § 1420. Armed vessels to give bond

United States. on clearance.

§ 1416. Augmenting force of foreign S 1421. Detention by collectors of

vessel of -war. customs.

§ 1417. Military expeditions against § 1422. Construction of this chapter,
people at peace with, the
United States.

§ 1413. Accepting a foreign commission. Sec. 9. Every
citizen of the United States who, within the territory or
jurisdiction thereof, accepts and exercises a commission
to serve a foreign prince, state, colony, district, or peo-
ple, in war, by land or by sea, against any prince, state,
colony, district, or people, with whom the United States
are at peace, shall be fined not more than tw^o thousand
dollars and imprisoned not more than three years.

§ 1414. An act to amend section 10 of chapter 2 of the
Criminal Code. Sec. 10. Be it enacted by the senate and
house of representatives of the United States of America
in congress assembled. That section 10 of chapter 2 of
an act entitled "An act to codify, revise, and amend the
penal laws of the United States," approved March 4,
1909, be amended so as to read as follows :

''Sec. 10. Whoever, within the territory or jurisdic-
tion of the United States, enlists or enters himself, or
hires or retains another person to enlist or enter him-

1075

1U76 Criminal Law

self, or to go beyond the limits or jurisdiction of the
United States with intent to be enlisted or entered in
the service of any foreign prince, state, colony, district,
or people as a soldier or as a marine or seaman on board
of any vessel of war, letter of marque, or privateer, shall
be fined not more than $1,000 and imprisoned not more
than three years: Provided, That this section shall not
apply to citizens or subjects of any country engaged in
war with a countiy with which the United States is at
war, unless such citizen or subject of such foreign coun-
try shall hire or solicit a citizen of the United States to
enlist or go beyond the jurisdiction of the United States
with intent to enlist or enter the service of a foreign
country. Enlistments under this proviso shall be under
regulations prescribed by the Secretary of War. ' ' ^

§ 1415. Arming vessels against people at peace with
the United States. Sec. 11. Whoever, within the terri-
tory or jurisdiction of the United States, tits out and
arms, or attempts to fit out and arm, or procures to be
fitted out and armed, or knowingly is concerned in the
furnishing, litting out, or armhig of any vessel, with
intent that such vessel shall be employed in the service
of any foreign prince or state, or of any colony, district,
or people, to cruise or commit hostilities against the sub-
jects, citizens, or property of any foreign prince or state,
or of any colony, district, or people, with whom llio
United States are at peace, or wlioever issues or deliv-
ers a commission witliin the territoiy or jurisdiction of
tlic I'liilcd States for any vessel, lo llic intent that slie
may be so ('m])loycd, shall be fined not more than ten
tiiousand dollars and imprisoned not more than three
y(!ars. And every such vessel, lier tackle, ;i))])nrel, and
furnitnie, toucthei' with nil innterinls, nrnis, nnnnunition
.•iikI stores wliicli niny linve hecn |)|-oeui'e(l Tor the hnild-
ing nnd e(|uii)n)ent thereof, shall he I'diieited ; (Hie half

1— Approved, May 7, 1917, CImp.
11, 40 Stat. 39.

Offenses Against NEUTRALiTt 1077

to the use of the informer and the other half to the use
of the United States.

§ 1416. Augmenting force of foreign vessel of war.
Sec. 12. Whoever, within the territoiy or jurisdiction of
the United States, increases or augments, or procures to
be increased or augmented, or knowingly is concerned in
increasing or augmenting, the force of any ship of war,
cruiser, or other armed vessel which, at the time of her
arrival within the United States, was a ship of war, or
cruiser, or armed vessel, in the service of any foreign
prince or state, or of any colony, district, or people, or
belonging to the subjects or citizens of any such prince
or state, colony, district, or people, the same being at
war with any foreign prince or state, or of any colony,
district, or people, with whom the United States are at
peace, by adding to the number of the guns of such ves-
sel, or by changing those on board of her for guns of a
larger caliber, or by adding thereto any equipment solely
applicable to war, shall be fined not more than one thou-
sand dollars and imprisoned not more than one year.

§ 1417. Military expeditions against people at peace
with the United States. Sec. 13. Whoever, within the
territory or jurisdiction of the United States or any of
its possessions, knowingly begins or sets foot or pro-,
vides or prepares a means for or furnishes the money for,
or who takes part in, any military or naval expedition or
enterprise to be carried on from thence against the ter-
ritory or dominion of any foreign prince or state, or of
any colony, district, or people with whom the United
States is at peace, shall be fined not more than three
thousand dollars, or imprisoned not more than three
years, or both.^

2— Sec. 10 of Penal Code of Act appears in the said act, known as
of Mar. 4, 1909, amended by Sec. Espionage Act.
8 of Act June 15, 1917, same as it

1078 ' Ceiminal Law

§ 1418. Enforcement of foregoing provisions. Sec. 14.
The district courts shall take cognizance of all com-
plaints, by whomsoever instituted, in cases of captures
made within the waters of the United States, or within
a marine league of the coasts or shores thereof. In every
case in which a vessel is fitted out and anned, or at-
tempted to be fitted out and armed, or in which the
force of any vessel of war, cruiser, or other armed vessel
is increased or augmented, or in which any militaiy ex-
pedition or enterprise is begun or set on foot, contrary
to the provisions and prohibitions of this chapter; and
in every case of the capture of a vessel within the juris-
diction or protection of the United States as before de-
fined; and in eveiy case in which any process issuing out
of any court of the United States is disobeyed or resisted
by any person having the custody of any vessel of war,
cruiser, or other armed vessel of any foreign prince or
state, or of any colony, district, or people, or of any sub-
jects or citizens of any foreign prince or state, or of any
colony, district, or people, it shall be lawful for the
President, or sucli other person as he shall have empow-
ered for that pui^pose, to employ such part of the land
or naval forces of the United States, or of the militia
thereof, for the purpose of taking possession of and de-
taining any such vessel with her prizes, if any, in order
to enforce the execution of the prohibitions and penal-
ties of this chapter, and the restoring of sucli i)rizes in
the case in which restoration shall be adjudged; and also
for the purpose of preventing the carrying on of any such
expedition or enterprise from the territory or jurisdiction
of the United States against the territory or dominion of
any foreign prince or state, or of any colony, district or
people with whom the United States are at peace.

§ 1419. Compelling foreign vessels to depart. Sec. 15.
It sliall })e lawful for the President to employ such part
of the l;iiid oi- naval forces of tlie United States, or of

Offenses Against Neutrality 1079

the militia thereof, as he may deem necessary to compel
any foreign vessel to depart from the United States or
any of its possessions in all cases in which, by the law
of nations or the treaties of the United States, it ought
not to remain, and to detain or prevent any foreign ves-
sel from so departing in all cases in which, by the law of
nations or the treaties of the United States, it is not en-
titled to depart.^

§ 1420. Armed vessels to give bond on clearance. Sec.
16. The owners or consignees of every armed vessel sail-
ing out of the ports of, or under the jurisdiction of, the
United States, belonging wholly or in part to citizens
thereof, shall, before clearing out the same, give bond
to the United States, with sufdcient sureties, in double
the amount of the value of the vessel and cargo on board,
including her armament, conditioned that the vessel
shall not be employed by such owners to cruise or com-
mit hostilities against the subjects, citizens, or property
of any foreign prince or state, or of any colony, district,
or people, with whom the United States are at peace.

§ 1421. Detention by collectors of customs. Sec. 17.
The several collectors of the customs shall detain any
vessel manifestly built for warlike purposes, and about
to depart the United States, or any place subject to the
jurisdiction thereof, the cargo of which principally con-
sists of arms and munitions of war, when the number
of men shipped on board, or other circumstances, ren-
der it probable that such vessel is intended to be em-
ployed by the owners to cruise or commit hostilities upon
the subjects, citizens, or property or any foreign prince
or state, or of any colony, district, or people with whom
the United States are at peace, until the decision of the
President is had thereon, or until the owner gives such

3 — As amended, 40 Stat, at Large,
page 223, Act June 15, 1917.

1080 Criminal Law

bond and security as is required of the owners of armed
vessels by the preceding section.

§ 1422. Construction of this chapter. Sec. 18. The pro-
visions of this chapter shall not be construed to extend to
any subject or citizen of any foreign prince, state, colony,
district, or people who is transiently within the United
States and enlists or enters himself on board of any
vessel of war, letter of marque, or privateer, which at
the time of its arrival within the United States was
fitted and equipped as such, or hires or retains another
subject or citizen of the same foreign prince, state, col-
ony, district, or people who is transiently within the
United States to enlist or enter himself to serve such
foreign prince, state, colony, district, or people on board
such vessel of war, letter of marque, or privateer, if the
United States shall then be at peace with such foreign
prince, state, colony, district, or people. Nor shall they
be construed to prevent the prosecution or punishment
of treason, or of any piracy defined by the laws of the
United States.

CHAPTER LXXIII

OPIUM

§ 1425. Chinese introducing opium

in violation of Act of

Feb. 23, 1887.
§ 1426. No citizen of the United

States shall import opium

into Chinese port.
§ 1427. Fraudulently and knowingly

importing opium into U.

S. ; penalty.
§ 1428. Person having smoking

opium in possession who

fails to report to prin-
cipal officer of vessel
* destined to or bound from
the United States, guilty
under Sec. 2.

§ 1429. No person subject to juris-
diction of United States
shall export opium, etc.

§ 1430. Exportation prohibited by
following penalties.

§ 1425. Chinese introducing opium in violation of Act
of February 23, 1887. That the importation of opium
into any of the ports of the United States by any sub-
ject of the Emperor of China is hereby prohibited. Every
person guilty of a violation of the preceding provision
shall be deemed guilty of a misdemeanor, and, on con-
viction thereof, shall be punished by a fine of not more
than five hundred dollars nor less than fifty dollars, or
by imprisonment for a period of not more than six
months nor less than thirty days, or by both such fine
and imprisonment, in the discretion of the court. ^

§ 1426. No citizen of the United States shall import
opium into Chinese port. That no citizen of the United
States shall import opium into any of the open ports of
China, nor transport the same from one open port to
any other open port, or buy or sell opium in any of such
open ports in China, nor shall any vessel owned by citi-

1— Sec. 1, Act Feb. 23, 1887, 24
Stat. 409.

1081

1082 Criminal Law

zens of the United States, or any vessel, whether foreign
or otherwise, employed by any citizen of the United
States, or owned by any citizen of the United States,
either in whole or in part, and employed by persons not
citizens of the United States, take or carry opinm into
any of such open port, or be engaged in any traffic there-
in between or in such open ports or any of them. Citi-
zens of the United States olfending against the provi-
sions of this section shall be deemed guilty of a misde-
meanor, and upon conviction thereof, shall be punished
by a fine not exceeding five hundred dollars nor less than
fifty dollars, or by both such punishments, in the discre-
tion of the court. The consular courts of the United
States in China, concurrently with any district court of
the United States in the district in which any offender
may be found, shall have jurisdiction to hear, try, and
determine all cases arising under the foregoing pro-
visions of this section, subject to the general regulations
provided by law. Every package of opium or package
containing opium, either in whole or in part, brought,
taken, or transported, trafficked, or dealt in contrary to
the provisions of this section, shall be forfeited to the
United States, for the benefit of the Emperor of China;
and such forfeiture, and the declaration and consequences
thereof shall be made, had, determined, and executed by
the proper authorities of the United States exercising
jiMlicial powers within the Empire of China.'^

§ 1427. Fraudulently and knowingly importing opium
into United States — Penalty. 'rii;il if ;iiiy pcison shall
fraudulently or knowingly imjjorl or bring into llio
United States, or assist in so doing, any opium or niiy
preparation or <lcri\-;ill\(' lliereof conli-aix- to law, or
shall receive, conceal, buy, sell, or in any manner facili-
tate the transportation, concealment, or sale of such

2— Sec. 3, Act Feb. 23, 1887, 24
Stat. 409.

Opium 1083

opium or preparation or derivative thereof after impor-
tation, knowing the same to have been imported con-
traiy to law, such opium or preparation or derivative
thereof shall be forfeited and shall be destroyed, and the
offender shall be fined in any sum not exceeding $5,000
nor less than $50 or by imprisonment for any time not
exceeding two years, or both. Whenever, on trial for
a violation of this section, the defendant is shown to
have, or to have had, possession of such opium or prepa-
ration or derivative thereof, such possession shall be
deemed sufficient evidence to authorize conviction unless
the defendant shall explain the possession to the satis-
faction of the jury.^

§ 1428. Person having smoking opium in possession
who fails to report to principal officer of vessel destined
to or bound from the United States— Guilty under section
2 (Act Jan. 17, 1914, sec. 1427). That any person sub-
ject to the jurisdiction of the United States who shall,
either as principal or as accessory, receive or have in
his possession, or conceal on board of or transport on
any foreign or domestic vessel or other watercraft or
railroad car or other vehicle destined to or bound from
the United States or any possession thereof, any smoking
opium or opium prepared for smoking, or who, having
knowledge of the presence in or on any such vessel,
watercraft, or vehicle of such article, shall not report
the same to the principal officer thereof, shall be subject
to the penalty provided in section 2 of this act. When-
ever on trial for violation of this section the defendant
is shown to have or to have had possession of such opium,
such possession shall be deemed sufficient evidence to
authorize conviction, unless the defendant shall explain
the possession to the satisfaction of the jury; Provided,
however. That any master of a vessel or other water-

3— Sec. 2, Act Jan. 17, 1914, 38
Stat. 276.

1084 Ceiminal Law

craft, or person in charge of a railroad car or other ve-
hicle, shall not be liable under this section if he shall
satisfy the jury that he had no knowledge and used due
diligence to prevent the presence of such article in or on
such vessel, watercraf t, car, or other vessel, and any such
article shall be forfeited and shall be destroyed.*

§ 1429. No person subject to jurisdiction of United
States shall export opium, etc. That hereafter it shall
be unlawful for any person subject to the jurisdiction
of the United States to export or cause to be exported
from the United States, or from territory under its con-
trol or jurisdiction, or from countries in which the United
States exercises extraterritorial jurisdiction, any opium
or cocaine, or any salt, derivative, or preparation of
opium or cocaine, to any other country; Provided, That
opium or cocaine, and salts, derivatives, or preparations
thereof, except smoking opium or opium prepared for
smoking, the exportation of which is hereby absolutely
prohibited, may be exported to countries regulating their
entry under such regulations as are prescribed by such
country for the importation thereof into such country,
such regulations to be promulgated from time to time
by the Secretary of State of the United States.

The Secretary of State shall request all foreign gov-
ernments to communicate through the diplomatic chan-
nels copies of laws and regulations promulgated in their
respective countries whicli prohibit or regulate the im-
portation of the aforesaid drugs, and when received ad-
vise the Secretary of the Treasury and the Secretary
of Commerce thereof; whereupon the Secretary of State,
the Secretary ol" the Treasury, .•iiid the Secretary of Com-
merce shall make and publish all proper regulations for
carrying the jirovisious of this section into effect.^

4— Sec. 4, Act Jan. 17, 1914, 38 5— Sec. 6, Act .Tan. 17, 1914, 38

Rtat. 276. Rtnt. 276.

Opium 1085

§ 1430. Exportation prohibited by following penalties.

That any person who exports or causes to be exported
any of the aforesaid drugs in violation of the preced-
ing section [Sec. 1429] shall be fined in any sum not ex-
ceeding $5,000 nor less than $50.00, or by imprisonment
for any time not exceeding two years, or both. And one-
half of any fine recovered from any person or persons
convicted of an offense under any section of this act may
be paid to the person or persons giving information lead-
ing to such recovery, and one-half of any bail forfeited
and collected in any proceedings brought under this act
may be paid to the person or persons giving the infor-
mation which led to the institution of such proceedings,
if so directed by the court exercising jurisdiction in the
case; Provided, That no payment for giving information
shall be made to any officer or employee of the United
States.®

6— See. 7, Act Jan. 17, 1914, 38

Stat. 277.

CHAPTER LXXIV

PENSIONS AND ALLOWANCES TO SOLDIERS

§ 1433. Any agent or attorney for § 1440.
any pensioner without his
consent withholds any dis- § 1441.
charge papers or land
warrant, guilty of misde-
meanor.

§ 1434. Attorney, etc., demanding

more than legal compen- § 1442.
sation or who withholds
any part of a pension,
guilty of high misde-
meanor.

§ 1435. Agent or attorney may file

with commissioner dupli- § 1443.
cate claims; fee is ten
dollars; penalty for viola-
tion.

§ 1436. Attorney retaining or col- § 1444.
lecting for more than ten
dollars in securing pen-
sions, punished for viola-
tion.

§ 1437. Illegal in increase of pension § 1446.
to contract for a greater
fee than two dollars; pun-
ishment for violation. § 1447.

S 1438. Embezzlement of any pen-
sion, held in trust as
guardian, etc., criminal.

§ 1439. Pension to civil war nurses;
attorneys' fee not al-
lowed; violation miadc- §1448.
meanor.

False oath in prosecuting
for pension, perjury.

The making or procuring to
be made a false affidavit,
knowingly concerning any
pension, and any false
acknowledgment criminal.

No pension attorney, claim
agent or other person shall
contract for any fee for
services in securing pen
sions by legislation in
Congress ; punishment.

Forging indorsement of any
person on pension check
or uttering such check,
criminal.

Under Federal Compensa-
tion Act accepting com-
pensation after marriage,
Avhere same ceases upon
marriage.

War insurance, attorney's
fee ; punishment for vio-
lation.

Securing pension for widows
and minor children, pen-
sions granted widows, etc.,
of volunteers in war with
Spain, Philippines, and
Cliina.

PiiiiiHlimcnt for violation.

§ 1433. Any agent or attorney for any pensioner with-
out his consent withholds any discharge papers or land
warrant guilty of misdemeanor. 'I'lmt any claim agent,
attorney, or otlici' porsoii ciii-^agod in fho collection of

lO.Sf)

Pensions and Allowances to Soldiers 1087

claims for pay, bounty, pension or other allowances for
any soldier, sailor, or marine, or for any commissioned
officer of the military or naval forces, or who may have
been a soldier, sailor, marine, or officer of the regular
or volunteer forces of the United States, and honorably
discharged, who shall retain, without the consent of the
owner or owners thereof, or shall refuse to deliver or
account for the same upon demand duly made by the
owner or owners thereof, or by their agent or attorney,
the discharge-papers or land-warrant of any such sol-
dier, sailor, or marine, or commissioned officer, w^hich
may have been placed in his hands for the purpose of col-
lecting said claims, shall be deemed guilty of a misde-
meanor, and shall, upon conviction, be punished by fine
not exceeding five hundred dollars, or by imprisonment
not exceeding six months, or both, at the discretion of
the court, and shall thereafter be debarred from prose-
cuting any such claim in any executive department of
the government.^

§ 1434. Attorney, etc., demanding more than legal
compensation or who withholds any part of a pension
guilty of high misdemeanor. Any agent or attorney, or
any other person instrumental in prosecuting any claim
for pension or bounty land, who shall directly or indi-
rectly contract for, demand, or receive or retain any
greater compensation for his services, or instrumental-
ity in prosecuting a claim for pension or bounty land than
is provided in the title pertaining to pensions, or who
shall wa'ongfully withhold from a pensioner or claimant
the w^hole or any part of the pension or claim allowed
and due such pensioner or claimant, on the land warrant
issued to any such claimant, shall be deemed guilty of a
high misdemeanor, and, upon conviction thereof, shall
for eveiy such offense be fined not exceeding five hun-

1— Act May 21, 1872, 17 Stat.
137.

1088 Criminal Law

dred dollars, or imprisonment at hard labor not exceed-
ing two years, or both, at the discretion of the court.

PENSIONS

§ 1436. Attorneys retaining or collecting for more
than ten dollars in securing pensions — Punished for
violation. That no agent, attorney, or other person en-
gaged in preparing, presenting, or prosecuting any claim
under the provisions of this act shall, directly or indi-
rectly, contract for, demand, receive, or retain for such
services in preparing, presenting, or prosecuting such
claim a sum greater than ten dollars, which sum shall
be payable only upon the order of the Commissioner of
Pensions, by the pension agent making payment of the
pension allowed, and any person who shall violate any
of the provisions of this section, or who shall wrongfully
withhold from a pensioner or claimant the whole or any
part of a pension or claim allowed or due such pensioner
or claimant under this act, shall be deemed guilty of a
misdemeanor, and upon conviction thereof shall, for each
and every such offense, be fined not exceeding five hun-
dred dollars, or be imprisoned at hard labor not exceed-
ing two years, or both, in the discretion of the court.*

§ 1437. Illegal in increase of pension to contract for a
greater fee than two dollars — Punishment for violation.
That hereafter no agent or attorney shall demand, re-
ceive, or 1)(! allowed any compensation under existing
law exceeding two dollars in any claim for increase of
pension on account of the increase of the disability for
whifh the pension has been allowed, or for services ren-
dered in securing the passage of any special act of con-

4— Act Juno 27, 1890, 26 Stat.
183.

Pensioxs and Allowances to Soldiers 1089

gress granting a pension or an increase or pension in
any case that has been presented at the pension office or
is allowable nnder the general pension laws; and pro-
vided further, that any agent, attorney, or other person
instrumental in prosecuting any claim for increase of
pension on account of the increase of disability for which
pension was allowed, or who has rendered services in
procuring the passage of any special act of congress
granting a pension or an increase of pension in any case
that has been presented at the pension office, or is allow-
able under the general pension laws, who shall directly
or indirectly contract for, demand, receive, or retain any
compensation for such sendees, except as hereinbefore
provided, shall be deemed guilty of a misdemeanor, and
upon conviction thereof shall, for each and every such
offense, be fined not exceeding five hundred dollars or
imprisoned, not exceeding two years or both, in the dis-
cretion of the court: Provided, however. That the fore-
going provisions in relation to fees of agents or attor-
neys shall not apply to any case now pending where there
is an existing lawful contract express or implied.^

§ 1438. Embezzlement of any pension, held in trust as
guardian, etc., criminal. That every guardian, conserva-
tor, curator, committee, tutor, or other person having
charge and custody in fiduciaiy capacity of the pension
of his ward, who shall embezzle the same in violation of
his trust, or fraudulently convert the same to his own use,
shall be punished by fine not exceeding two thousand
dollars, or imprisonment at hard labor for a term not
exceeding five years, or both, at the discretion of the
court.^

5— Sec. 1, Act Mar. 3, 1891, 26 6— E. S. 4783, Act Feb. 10, 1891,

Stat. 1082. 26 Stat. 746.

C. L.— 69

1090 Cbimhstal Law

§ 1439. Pension to Civil War nurses — Attorney's fee
not allowed — Violation misdemeanor. That all women
employed by tlie surgeon-general of the aiiny as nurses,
under contract or otherwise, during the late war of the
rebellion, or who were employed as nurses during such
period by authority which is recognized by the War
Department, and who rendered actual service as nurses
in attendance upon the sick or wounded in any regimen-
tal, post, camp, or general hospital or the armies of the
United States for a period of six months or more, and
who were honorably relieved from such service, and who
are now or may hereafter be unable to earn a support,
shall, upon making* due proof of the fact according to
such rules and regulations as the Secretaiy of the Inte-
rior may provide, be placed upon the list of pensioners
of the United States and be entitled to receive a pension
of twelve dollars per month, and such pension shall com-
mence from the date of filing of the application in the
pension office after the passage of this act: Provided,
That no person shall receive more than one pension for
the same period.

No fee, compensation, or allowance shall be paid to,
received, or accepted by any agent, attorney, or other
person instrumental in the prosecution of any claim for
pension under this act; and any person who may make
any claim upon any applicant for any fee, compensation,
or aUowance shall be guilty of a misdemeanor, and upon
conviction shall be lined not exceeding five hundred dol-
lars, or imprisoned at hard labor not exceeding one year,
or l)()tli, in the discretion of the court; and it shall be
the duty of the Interior and War Departments to render
all proper aid to th^ applicants under this act.''^

i^ 1440. False oath in prosecuting for pension — Per-
jury. That before the name of any person shall be j)lac('(l

7— bees. 1 and 2, Act Aug. 5,
1892, 27 Stat. 349.

Pensions and Allowances to Soldiers 1091

on the pension-roll under this act, proof shall be made,
under such rules and regulations as the Secretary of the
Interior may jjrescribe, of the right of the applicant to
a pension; and any person who shall falsely and cor-
ruptly take any oath required under this act shall be
deemed guilty of perjury; and the Secretary of the In-
terior shall cause to be stricken from the pension-roll
the name of any person whenever it shall be made to
appear by proof satisfactory to him that such name was
put upon such roll through false and fraudulent repre-
sentations, and that such person is not entitled to a pen-
sion under this act. The loss of the certificate of dis-
charge will not deprive any person of the benefits of this
act, but other evidence of service performed and of an
honorable discharge may be deemed sufficient.®

§ 1441. The making or procuring- to be made a false
affidavit — Knowingly concerning- any pension — And any
false acknowledgement criminal. That every person who
knowingly or wilfully makes or aids, or assists in the
making, or in any wise procures the making or presen-
tation of any false or fraudulent affidavit, declaration,
certificate, voucher, or paper ox writing pui-porting to
be such, concerning any claim for pension or payment
thereof, or pertaining to any other matter within the
jurisdiction of the Commissioner of Pensions or of the
Secretary of the Interior, or who knowingly or wilfully
makes or causes to be made, or aids or assists in the
making, or presents or causes to be presented at any
pension agency any power of attorney or other paper re-
quired as a voucher in drawing a pension, which paper
bears a date subsequent to that upon which it was actu-
ally signed or acknowledged by the pensioner, and evei-y
person before whom any declaration, affidavit, voucher,
or other paper or writing to be used in aid of the prose-

8— Sec. 3, Act July 27, 1892, 27
Stat. 282.

1092 Criminal Law

cution of any claim for pension or bounty land or pay-
ment thereof puiports to have been executed who shall
knowingly certify that the declarant, affiant, or witness
named in such declaration, affidavit, voucher, or other
paper or writing personally appeared before him and
was sworn thereto, or did not acknowledge the execu-
tion thereof, when, in fact, such declarant, affiant, or wit-
ness did not personally appear before him or was not
swoni thereto, or did not acknowledge the execution
thereof, shall be punished by a fine not exceeding five
hundred dollars, or by imprisonment for a term of not
more than five years.®

§ 1442. No pension attorney, claim a^ent or other per-
son shall contract for any fee for services in seeming-
pensions by legislation in congress — Punishment. That
hereafter no pension attorney, claim agent, or other
person shall be entitled to receive any compensation for
services rendered in securing the introduction of a bill
or the passage thereof through congress granting pen-
sion or increase of pension, and any person who shall,
directly or indirectly, contract for, demand, receive, or
retain any compensation for sucli services shall be
deemed guilty of an offense, and upon conviction thereof
shall, for each and eveiy sucli offense, be fined not ex-
ceeding five hundred dollars or imprisoned not exceeding
two years, or both, in the discretion of the court. ^°

§ 1443. Forging indorsement of any person on pension
check or uttering of such check — Criminal. That who-
ever sliall forge llie iiidorscniciil of the person to whose
order any pension check sliall be drawn, or whoever with
tli(! knowledge that such indorsement is forged shall
utter such clieclv, or whoever, by falsely personating

9— Act July 7, 1898, 30 Stat. 718, 10— Sec. 1, Act May 28, 1908, 35

H. S. 4746. Stat. 419.

Pensions and Allowances to Soldiers 1093

sucli person, shall receive from any person, firm, cor-
poration, or officer or employee of the United States the
whole or any portion of the amount represented by such
check, shall upon conviction be punished by a fine of not
more than one thousand dollars or be imprisoned not
more than five years or both."

§ 1444. Under federal compensation act accepting com-
pensation after marriage — Where same ceases upon mar-
riage. (L) If any person entitled to compensation under
this section [10 Act Sept. 7, 1916], whose compensation
by the terms of this section ceases upon his marriage,
accepts any payments of compensation after marriage,
he shall be punished by a fine of not more than $2,000
or by imprisonment for not more than one year, or by
both such fine and imprisonment.^^

SECURING PENSION FOR WIDOWS AND MINOR CHILDREN

§ 1446. War insurance — Attorney's fee — Punishment
for violation. Sec. 405. That in the event of disagree-
ment as to a claim under the contract of insurance be-
tween the bureau and any beneficiary or beneficiaries
thereunder, an action on the claim may be brought
against the United States in the district court of the
United States in and for the district in which such
beneficiaries or any one of them resides. The court, as
part of its judgment, shall determine and allow such
reasonable attorney's fees, not to exceed ten per centum
of the amount recovered, to be paid by the claimant on
behalf of whom such proceedings are instituted to his
attorney; and it shall be unlawful for the attorney or
for any other person acting as claim agent or otherwise
to ask for, contract for, or receive any other compensa-
tion because of such action. No other compensation or

11— Sec. 4, Act Aug. 17, 1912, 12— (Sec. 10) Act Sept. 7, 1916,

37 Stat. 313. 39 Stat. 744.

1094 Criminal Law

fee shall be charged or received by any person except
such as may be authorized by the commissioner in regu-
lations to be promulgated by him. Any person violat-
ing the provisions of this section shall be deemed guilty
of a misdemeanor, and upon conviction thereof shall,
for each and eveiy such offense, be fined not exceeding
$500, or be imprisoned at hard labor not exceeding two
years, or both, in the discretion of the court."

§ 1447. Pensions — Granted vv^idows, etc., or volunteers
in war with Spain, Philippines, and China. That from
and after the passage of this act if any volunteer of-
ficer or enlisted man who served ninety days or more
in the army, navy, or marine corps of the United States,
during the war with Spain or the Philippine insurrec-
tion, between April 21, 1898, and July 4, 1902, inclusive,
service to be computed from date of enlistment to date
of discharge, or any officer or enlisted man of the regu-
lar establishment who rendered ninety days or more
actual military or naval service in the United States
anny, navy or marine corps in the war with Spain or the
Philippine insurrection, between April 21, 1898, and July
4, 1902, inclusive, or as a participant in the Chinese
Boxer rebellion campaign between June 16, 1900, and
October 1, 1900, and who has been honorably discharged
therefrom, has died or shall hereafter die leaving a
widow without means of support other than her daily
labor, and an actual net income not exceeding $250 per
year, or leaving a minor child or children under the age
of sixteen years, sucli widow shall upon due proof of her
husband's death, without proving his death to be the
result of his aniiy or navy sei^ice, be placed on the pen-
sion roll from the date of the filing of her application
therefor under this act, at the rate of $12.00 per month

J 4— Hoc 406, Act of Congress,
Oct. 6, 1917, 40 Stat, at Large, page
410.

Pensions and Allowances to Soldiers 1095

during her widowhood, and shall also be paid $2.00 per
month for each child of such officer or enlisted man under
sixteen years of age, and in case of the death or remar-
riage of the widow, leaving a child or children of such
officer or enlisted man under the age of sixteen years,
such pension shall be paid such child or children until
the age of sixteen: Provided, That in case a minor child
is insane, idiotic, or otherwise permanently helpless, the
pension shall continue during the life of said child, or
during the period of such disability, and shall commence
from the date of application therefor after the passage
of this act: Provided further. That said widow shall
have married said officer or enlisted man previous to the
passage of this act: Provided, however, That this act
shall not be so construed as to reduce any pension under
any act, public or private. ^^

§ 1448. Punishment for violation. Sec. 2 (Act July
16, 1918). That no agent, attorney, or other person en-
gaged in preparing, presenting, or prosecuting any claim
under the provisions of this act shall, directly or indi-
rectly, contract for, demand, receive, or retain for such
services in preparing, presenting, or prosecuting such
claim a sum greater than $10.00, which sum shall be
payable only on the order of the Commissioner of Pen-
sions; and any person who shall violate any of the pro-
visions of this section, or shall wrongfully withhold
from the pensioner or claimant the whole or any part of
the pension or claim allowed or due such pensioner or
claimant under this act, shall be deemed guilty of a mis-
demeanor, and upon conviction thereof shall, for each
and every offense, be fined not exceeding $500 or be im-
prisoned not exceeding one year, or both, in the discre-
tion of the court.^^

15 — Act of Consrress, July 16, 16 — See. 2, Act of Coneress, July

1918. Part 1, 40 U. S. Statute at 16, 1918, Part 1, 40 13. S Stat, at
Large, page 903. Large, page 904.

CHAPTER LXXV

OFFENSES AGAINST THE POSTAL SERVICE

CHAPTER EIGHT

Penal Code Act, March 4, 1909

§ 1452. Conducting postoffice with- § 1469.
out authority.

§ 1453. Illegal carrying of mails by § 1470.
carriers and others.

§ 1454. Conveyance of mail by pri-
vate express forbidden. § 1471.

§ 1455. Transporting persons unlaw-
fully conveying mail.

§ 1456. Sending letters by private § 1472.
express. § 1473.

§ 1457. Conveying letters over post

routes. § 1474.

§ 1458. Carrying letters out of the § 1475.
mail on board of vessel. § 1476.

§ 1459. When conveying letters by
private persons is lawful.

§ 1460. Wearing uniform of carrier § 1477.
without authority.

§ 1461. Vehicles, etc., claiming to § 1478.
be mail carriers.

§ 1462. Injuring mail bags, etc.

§ 1463. Stealing postoflice property.

§ 1464. Stealing or forging mail §1479.
locks or keys.

§ 1465. Breaking into and entering § 1480.
postoffice.

§ 1466. Unlawfully entering postal § 1481.
car, etc.

§ 1467. Stealing, secreting, embcz- 8 1482.
zling, etc., mail or con-
tents.

§ 1468. I'ostiii.'istcr or employee of § 1483.
po.stal service detaining,
destroying, or embezzling § 1484.
letter, etc.

io'h;

Postmaster, etc., detaining
or destroying newspapers.

Assaulting mail carrier with
intent to rob, and robbing
mail.

Injuring letter boxes or mail
matter; assaulting carrier,
etc.

Deserting the mail.

Delivery of letters by mas-
ter of vessel.

Obstructing the mail.

Ferryman delaying the mail.

Letters carried in a foreign
vessel to be deposited in
a postoffice.

Vessels to deliver letters at
postoffice; oath.

Using, selling, etc., can-
celled stamps ; removing
cancellation marks from
stamps, etc.

False returns to increase
compensation.

Collection of unlawful post-
age forbidden.

Unlawful pledging or sale
of stamps.

Failure to account for
postage and to cancel
stamps, etc., by officials.

Issuing money order with-
out payment.

Obscene, etc., matter non-
mailable.

Offenses Against the Postal Service 1097

§1485. Libelous and indecent wrap- § ]495. Postmaster illegally approv-

pers and envelopes. ing bond, etc.

§ 1486. Lottery, gift enterprise, etc., § 1496. False evidence as to second-
circulars, etc., not mail- class matter.

able. § 1497. Inducing or prosecuting
§ 1487. Postmasters not to be lot- false claims.

tery agents. § 1498. Misappropriation of postal
§ 1488. Use of mails to promote funds or property.

frauds. § 1499. Employees not to become in-
§ 1489. Fraudulently assuming fie- terested in contracts.

titious address. § 1500. Fraudulent use of official
§ 1490. Poisons and explosives non- envelopes.

mailable. § 1501. Fraudulent increase of
§ 1491. Counterfeiting money or- weight of mail.

ders. § 1502. Offenses against foreign
§ 1492. Counterfeiting postage mail in transit.

stamps. § 1503. Omission to take oath.

§ 1493. Counterfeiting, etc., foreign § 1504. Definitions.

stamps.
§ 1494. Inclosing higher-class in

lower-class matter,

§ 1452. Conducting postoffice without authority. Sec.

179. Whoever, without authority from the Postmaster-
General, shall set up or profess to keep any office or place
of business bearing the sign, name, or title of postoffice,
shall be fined not more than five hundred dollars.

§ 1453. Illegal carrying by carriers and others. Sec.

180. Whoever, being concerned in cariying the mail,
shall collect, receive, or carry any letter or packet, or
cause or procure the same to be done, contrary to law,
shall be fined not more than fifty dollars, or imprisoned
not more than thirty days, or both.

§ 1454. Conveyance of mail by private express forbid-
den. Sec. 181. Whoever shall establish any private ex-
press for the conveyance of letters or packets, or in any
manner cause or provide for the conveyance of the same
by regular trips or at stated periods over any post route
which is or may be established by law, or from any city,
town, or place, to any other city, town, or place, between

1098 . Ceiminal Law

wliicli the mail is regularly carried, or whoever shall
aid or assist therein shall be fined not more than five
hundred dollars, or imprisoned not more than six months,
or both: Provided, That nothing contained in this sec-
tion shall be construed as prohibiting any person from
receiving and delivering to the nearest postoffice, postal
car, or other authorized depository for mail matter, any
mail matter properly stamped.

§ 1455. Transporting- persons unlawfully conveying-
mail. Sec. 182. Whoever, being the owner, driver, con-
ductor, master, or other person having charge of any
stagecoach, railway car, steamboat, or other vehicle or
vessel, shall knowingly convey or knowingly peraiit the
conveyance of any person acting or employed as a pri-
vate express for the conveyance of letters or packets,
and actually in possession of the same for the purpose
of conveying them, contrary to law, shall be fined not
more than one hundred and fifty dollars.

§ 1456. Sending letters by private express. Sec 183.
Whoever shall transmit by private express or other un-
lawful means, or deliver to any agent thereof, or deposit
or cause to be deposited at any appointed place, for the
purpose of being so transmitted, any letter or packet,
shall be fined not more than fifty doHars.

§ 1457. Ccnveyirg letters over post routes. Sen-. 184.
Whoevei-, being llic owner, driver, conductor, master, or
other person having charge of any stagecoacli, lailway
car, steamboat, or conveyance ot" any kind whicli regu-
hn'ly performs trips a1 slated periods on any post route,
or from any eily, town, oi' place to any otiiei- cily, or
place between wliieli llie mail is regularly carried, and
whicli shall cai-ry, otherwise than in the mail, any letters
or packets, except such as relate to some part of the
cargo of such steamboat or other vessel, to the current

Offenses Against the Postal Service 1099

business of the carrier, or to some article carried at the
same time by the same stagecoach, railway car, or other
vehicle, except as otherwise provided by law, shall be
fined not more than fifty dollars.

§ 1458. Carrying letters out of the mail on board ves-
sel. Sec. 185. Whoever shall carry any letter or packet
on board any vessel which carries the mail, otherwise
than in such mail, except as otherwise provided by law,
shall be fined not more than fifty dollars, or imprisoned
not more than one month, or both.

§ 1459. When conveying- of letters by private persons
is lawful. Sec. 186. Nothing in this chapter shall be con-
strued to prohibit the conveyance or transmission of let-
ters or packets by private hands without compensation,
or by special messenger employed for the particular oc-
casion only.

§ 1460. Wearing uniform of carrier without authority.

Sec. 187. Whoever, not being connected with the letter-
carrier branch of the postal service, shall wear the uni-
form or badge which may be prescribed by the Post-
master-General, to be worn by letter carriers, shall be
fined not more than one hundred dollars, or imprisoned
not more than six months, or both.

§ 1461. Vehicles, etc., claiming to be mail carriers. Sec.
188. It shall be unlawful to paint, print, or in any man-
ner to place upon or attach to any steamboat or other
vessel, or any car, stage-coach, vehicle, or other con-
veyance, not actually used in cariying the mail, the
words ^'United States Mail," or any words, letters, or
characters of like import; or to give notice, by publish-
ing in any newspaper or otherwise, that any steamboat
or other vessel, or any car, stage-coach, vehicle, or other
conveyance, is used in carrying the mail, when the same

1100 Criminal Law

is not actually so used; and eveiy person who shall vio-
late, and every owner, receiver, lessee, or managing
operator thereof, who shall cause, suffer, or permit the
violation of any provision of this section, shall be liable,
and shall be fined not more than one thousand dollars,
or imprisoned not more than two years, or both.

§ 1462. Injuring maU bags, etc. Sec. 189. 'V\Tioever
shall tear, cut, or otherwise injure any mail bag, pouch,
or other thing used or designed for use in the conveyance
of the mail, or shall draw or break any staple or loosen
any part of any lock, chain, or strap attached thereto,
with intent to rob or steal any such mail, or to render
the same insecure, shall be fined not more than five hun-
dred dollars, or imprisoned not more than three years, or
both.

§ 1463. Stealing- post-office property. Sec. 190. Who-
ever shall steal, purloin, or embezzle any mail bag or
other property in use by or belonging to the Postoffice
Department, or shall appropriate any such property to
his own use or any other than its proper use, or shall con-
vey away any such property to the hindrance or detri-
ment of the public service, shall be fined not more than
two hundred dollars, or imprisoned not more than three
years, or both.

§ 1464. Stealing or forging mail locks or keys. Sec.
191. W'lioever shall steal, ])ur]()in, embezzle, or obtain by
any false pretense, or shall aid or assist in stealing, pur-
loining, embezzling, or obtaining by any false pretense,
any key suited to any lock adopted by the Postoffice De-
partment and in use on any of the mails or bags thereof,
or any key to any lock box, lock drawer, or other author-
ized receptacle for tlic deposit or delivery of mail mat-
ter; or whoever shall knowingly and unlawfully make,

Offenses Against the Postal Seevice 1101

forge, or counterfeit, or cause to be unlawfully made,
forged, or counterfeited, any such key, or shall have in
his possession any such mail lock or key with the intent
unlawfully or improperly to use, sell, or otherwise dis-
pose of the same, or to cause the same to be unlawfully
or improjDerly used, sold, or otherwise disposed of; or
whoever, being engaged as a contractor or otherwise in
the manufacture of any such mail lock or key, shall de-
liver or cause to be delivered, any finished or unfinished
lock or key used or designed for use by the Department,
or the interior part of any such lock, to any person not
duly authorized under the hand of the Postmaster-Gen-
eral and the seal of the Postofiice Department, to receive
the same, unless the person receiving it is the contractor
for furnishing the same or engaged in the manufacture
thereof in the manner authorized by the contract, or the
agent of such manufacturer, shall be fined not more than
five hundred dollars and imprisoned not more than ten
years.

§ 1465. Breaking into and entering- postoffice. Sec. 192.
Whoever shall forcibly break into or attempt to break
into any postoffice, or any building used in whole or in
part as a postoffice, with intent to commit in such post-
office, or building, or part thereof, so used, any larceny
or other depredation, shall be fined not more than one
thousand dollars and imprisoned not more than five
years.

§ 1466. Unlawfully entering postal car, etc. See. 193.
Whoever, by violence, shall enter a postoffice ear, or any
apartment in any car, steamboat, or vessel, assigned to
the use of the Mail Service, or shall wilfully or mali-
ciously assault or interfere with any postal clerk in the
discharge of his duties in connection with such car,
steamboat, vessel, or apartment thereof, or shall wilfully

1102 Ceimixal Law

aid or assist therein, shall be fined not more than one
thousand dollars, or imprisoned not more than three
years, or both.

§ 1467. Stealing, secreting, embezzling, etc., mail mat-
ter or contents. Sec. 194. AVhoever shall steal, take, or
abstract, or by fraud or deception obtain, from or out of
any mail, postoffice, or station thereof, or other author-
ized depository for mail matter, or from a letter or mail
carrier, any letter, postal card, packag-e, bag, or mail,
or shall abstract or remove from any such letter, package,
bag, or mail, any article or thing contained therein, or
shall secrete, embezzle, or destroy any such letter, postal
card, package, bag, or mail, or any article or thing con-
tained therein; or whoever shall buy, receive, or conceal,
or aid in buying, receiving, or concealing, or shall unlaw-
fully have in his possession, any letter, postal card,
package, bag, or mail, or any article or thing contained
therein, which has been so stolen, taken, embezzled, or
abstracted, as herein described, knowing the same to
have been so stolen, taken, embezzled, or abstracted; or
whoever shall take any letter, postal card, or package,
out of any postoffice or station tliereof, or out of any
autliorized depository for mail matter, or from any letter
or mail canier, or whicli lias been in any postoffice or
station thereol", or otiier antiiorizeil depository, or in
the custody of any letter or mail can'ior, bef(^r(» it has
Ik'cii delivered to tlio person to whom it was directed,
witli :\ design to ohsli'uct tiie corres))oii(i(Mi('e, or 1o pry
into till' business or secrets of another, oi- slmll open,
secrete, eml)ezz](', or dcsti-oy tlie s;nne, sliaii he lined not
more tluni two thousand dolhiis, or ini|)risono(l not more
tlian live years, or both.

s^ 1468. Postmaster or employee of postal service de-
taining, destroying, or embezzling letter, etc. Sec. 195.
Wiioever, being a postmastei' or <»ili( r jjerson employed

Offenses Against the Postal Service 1103

in any department of the postal service, shall unlawfully
detain, delay, or open any letter, postal card, package,
bag, or mail intrusted to him or which shall come into
his possession, and which w^as intended to be conveyed
by mail, or carried or delivered by any carrier, mes-
senger, agent, or other person employed in any depart-
ment of the postal servdce, or forwarded through or
delivered from any postoffice or station thereof estab-
lished by authority of the Postmaster General; or shall
secrete, embezzle, or destroy any such letter, postal card,
package, bag, or mail; or shall steal, abstract, or remove
from any such letter, package, bag, or mail, any article
or thing contained therein, shall be fined not more than
five hundred dollars, or imprisoned not more than five
years, or both.

§ 1469. Postmaster, etc., detaining- or destroying news-
papers. Sec. 196. Whoever, being a postmaster or other
person employed in any department of the postal serv-
ice, shall improperly detain, delay, embezzle, or destroy
any newspaper, or permit any other person to detain,
delay, embezzle, or destroy the same, or open, or pemiit
any other person to open, any mail or package of new^s-
papers not directed to the office where he is employed;
or whoever shall open, embezzle, or destroy any mail or
package of newspapers not being directed to him, and he
not being authorized to open or receive the same; or
whoever shall take or steal any mail or package of news-
papers from any postoffice or from any person having
custody thereof, shall be fined not more than one hundred
dollars, or imprisoned not more than one year, or both.

§ 1470. Assaulting- mail carrier with intent to rob, and
robbing- mail. Sec. 197. Whoever shall assault any per-
son having lawful charge, control, or custody of any
mail matter, with intent to rob, steal, or purloin such
mail matter or any part thereof, or shall rob any such

llUrt Criminal Law

person of such mail or any part thereof, shall, for a first
offense, be imprisoned not more than ten years; and if
in effecting or attempting to effect such robbery, he shall
wound the person having the custody of the mail, or put
his life in jeopardy by the use of a dangerous weapon,
or for a subsequent offense, shall be imprisoned twenty-
five years.

§ 1471. Maliciously opening mail or letter box. Sec.
198. Whoever shall wilfully or maliciously injure, tear
dow^n, or destroy any letter box or other receptacle in-
tended or used for the receipt or delivery of mail on any
mail route, or shall break open the same, or shall wil-
fully or maliciously injure, deface, or destroy any mail
deposited therein, or shall wilfully take or steal such
mail from or out of such letter box or other receptacle,
or shall wilfully aid or assist in any of the aforemen-
tioned offenses, shall for eveiy such off'ense be punished
by a fine of not more than $1,000 or by imprisonment
for not more than three years. ^

§ 1472. Deserting the mail. Sec. 199. Whoever, having
taken charge of any mail, shall voluntarily quit or desert
the same before he has delivered it into the postoflice at
the tennination of the route, or to some known mail
carrier, messenger, agent, or other em])loyee in the postal
sei-vice authorized to receive the same, shall be lined not
more than live hniidrcd dollars, or imprisoned not more
lliaii one yeai", or both.

§ 1473. Delivery of letters by master of vessel. Sec.
2n(). Tlic iiiastci- or otlici- jx'i'soii liaxiiig cliargc or coii-
Irol of any steamboat or oilier xcssci ])assing between
l)orts or ])laceH in IIm' rnitfd Stales, arriving at any
Hucli port or place where tlier(! is a postoriice, shall de-

1 — AiiKfiuliriK See. VJH, C. Code,
39 Stat. 418, Act July 28, 1916.

Offenses Against the Postal Service 1105

liver to the postmaster or at the postoflice within three
hours after his arrival, if in the daytime, and if at night,
within two hours after the next sunrise, all letters and
packages brought by him or within liis power or control
and not relating to the cargo, addressed to or destined
for such port or place, for which he shall receive from
the postmaster two cents for each letter or package so
delivered, unless the same is carried under a contract
for carrying the mail; and for every failure so to deliver
such letters or packages, the master or other person
having charge or control of such steamboat or other
vessel, shall be fined not more tlian one liundred and
fifty dollars.

§ 1474. Obstructing the mail. Sec. 201. A^^ioever shall
knowingly and wilfully obstruct or retard the passage
of the mail, or any carriage, horse, driver, or carrier, or
car, steamboat, or other conveyance or vessel carrying
the same, shall be fined not more than one hundred dol-
lars, or imprisoned not more than six months, or both.

§ 1475. Ferryman delaying the mail. Sec. 202. Who-
ever, being a ferryman, shall delay the passage of the
mail by wilful neglect or refusal to transport the same
across any ferry, shall be fined not more than one hun-
dred dollars.

§ 1476. Letters carried in a foreign vessel to be de-
posited in a postoffice. Sec. 203. All letters or other mail-
able matter conveyed to or from any part of the United
States by any foreign vessel, except such sealed letters
relating to such vessel or any part of the cargo thereof
as may be directed to the owners or consignees of the
vessel, shall be subject to postage charge, whether ad-
dressed to any person in the United States or elsewhere,
provided they are conveyed by the packet or other ship
of a foreign country imposing postage on letters or other

C. L.— 70

1106 Criminal Law

mailable matter conveyed to or from such comitiy by
any vessel of the United States; and such letters or other
mailable matter carried in foreign vessels, except such
sealed letters relating to the vessel or any part of the
cargo thereof as may be directed to the owners or con-
signees, shall be delivered into the United States post-
office by the master or other person having charge or
control of such vessel when arriving, and be taken from
the United States postoffice when departing, and the
postage justly chargeable by law paid thereon; and for
refusing or failing to do so, or for conveying such letters
or other mailable matter, or any letters or other mailable
matter, intended to be conveyed in any vessel of such
foreign countiy, over or across the United States, or any
portion thereof, the party offending shall be fined not
more than one thousand dollars.

§ 1477. Vessels to deliver letters at postoffice ; oath.
Sec. 204. No vessel arriving within a port or collection
district of the United States shall be allowed to make
entiy or break bulk until all letters on board are deliv-
ered to the nearest postoffice, and the master or other
person having charge or control thereof has signed and
sworn to the following declaration before the collector,
or other proper customs officer:

I, A. B., master , of the , arriving from

, and now lying in the port of , do solemnly

swear (or affirm) that I have to the best of my knowl-
edge and belief delivered to the postoffice at

ever>'^ letter and every bag, i)acket, or ])arcel of letters
whicJi was on boai'd the said vessel during her last
voyage, oi- wliich were in my possession or under my
power or conii-ol.

And any mastoi* or otljcr person liaving cliarge or
control of sucli vessel who shall brojik l)nllv before he
has delivered sncli letters shall be fined not more than
one hundred dollars.

Offenses Against the Postal Service 1107

§ 1478. Using, selling, etc. cancelled stamps; removing
cancellation marks from stamps, etc. Sec. 205. Whoever
shall use or attempt to use in payment of postage any
cancelled postage stamp, whether the same has been
used or not; or shall remove, attempt to remove, or
assist in removing, the cancelling or defacing marks
from any postage stamp, or the superscription from any
stamped envelope, or postal card, that has once been used
in payment of postage, with the intent to use the same
for a like purpose, or to sell or offer to sell the same, or
shall knowingly have in possession any such postage
stamp, stamped envelope, or postal card, with intent to
use the same, or shall knowingly sell or offer to sell any
such postage stamp, stamped envelope, or postal card,
or use or attempt to use the same in payment of postage ;
or whoever unlawfully and wilfully shall remove from
any mail matter any stamp attached thereto in pay-
ment of postage; or shall knowingly use or cause to be
used in payment of postage, any postage stamp, postal
card, or stamped envelope, issued in pursuance of law,
which has already been used for a like purpose; shall,
if he be a person employed in the postal service, be fined
not more than five hundred dollars, or imprisoned not
more than three years, or both; and if he be a person
not employed in the postal service, shall be fined not
more than five hundred dollars, or imprisoned not more
than one year, or both.

§ 1479. False returns to increase compensation. Sec.
206. Whoever, being a postmaster or other person em-
ployed in any branch of the postal service, shall make,
or assist in making, or cause to be made, a false return,
statement, or account to any officer of the United States,
or shall make, assist in making, or cause to be made,
a false entry in any record, book, or account, required
by law or the rules or regulations of the Postoffice De-
partment to be kept in respect of the business or opera-

1108 Ckiminal Law

tious of any postoffice or other branch of the postal serv-
ice, for the purpose of fraudulently increasing his com-
pensation or the compensation of the postmaster or any
employee in a postofiice ; or whoever, being a postmaster
or other person employed in any postoffice or station
thereof, shall induce, or attempt to induce, for the pur-
pose of increasing the emoluments or compensation of
his office, any person to deposit mail matter in, or for-
ward in any manner for mailing at, the office where such
postmaster or other person is employed, knowing such
matter to be properly mailable at another postoffice,
shall be fined not more than five hundred dollars, or im-
prisoned not more than two years, or both.

§ 1480. Collection of unlawful postage forbidden. Sec.
207. Whoever, being a postmaster or other person author-
ized to receive the postage of mail matter, shall fraudu-
lently demand or receive any rate of postage or gratuity
or reward other than is provided by law for the postage
of such mail matter, shall be fined not more than one
hundred dollars, or imprisoned not more than six months,
or both.

§ 1481. Unlawful pledging or sale of stamps. Sec. 208.
Whoever, being a postmaster or other person employed
in any branch of the postal service, and being intrusted
with the sale or custody of postage stamps, stamped en-
velopes, or postal cards, sliall use or dispose of them in
the payment of debts, or in llic jjuicliase of merchandise
or other salable articles, or pledge or hypothecate the
same, or sell oi- dispose of them except for cash; or sell
or dispose of postage stamps or jxtstnl cards for any
larger or less sum than the values indicated on their
faces; or sell or dispose of stamped envelopes for a larger
or less sum (li.in is cjiarged therefor l)y Hie l\)stoffice De-
pjirtnienl lor like (piaiitities; or sell oi* dispose of, or
cause to ])e sold or disposed of, postage stamps, stamped

Offenses Against the Postal Service 1109

envelopes, or postal cards at any point or place outside of
the delivery of the office where such postmaster or other
person is employed; or induce or attempt to induce, for
the pui*pose of increasing the emoluments or compensa-
tion of such postmaster, or the emoluments or compensa-
tion of any other person employed in such postoffice or
any station thereof, or the allowances or facilities pro-
vided therefor, any person to purchase at such postoffice
or any station thereof, or from any employee of such
postoffice, postage stamps, stamped envelopes, or postal
cards; or sell or dispose of postage stamps, stamped en-
velopes, or postal cards, othei'wise than as provided by
law or the regulations of the Postoffice Department, shall
be fined not more than five hundred dollars, or impris-
oned not more than one year, or both.

§ 1482. Failure to account for postage and to cancel
stamps, etc., by officials. Sec. 209. Whoever, being a post-
master or other person engaged in the postal service,
shall collect and fail to account for the postage due upon
any article of mail matter which he may deliver, without
having previously affixed and canceled the special stamp
provided by law, or shall fail to affix such stamp, shall
be fined not more than fifty dollars.

§ 1483. Issuing- money order without payment. Sec.
210. Whoever, being a postmaster or other person em-
ployed in any branch of the postal service, shall issue a
money order without having previously received the
money therefor, shall be fined not more than five hundred
dollars.

§ 1484. Excluding obscene, book, pamphlet, from mail.
Sec. 211. Every obscene, lewd, or lascivious, and every
filthy, book, pamphlet, picture, paper, letter, writing,
print, or other publication of an indecent character, and
every article or thing designed, adapted, or intended for

1110 Criminal Law

preventing conception or producing abortion, or for any-
indecent or immoral use; and eveiy article, instrument,
substance, drag, medicine, or thing which is advertised
or described in a manner calculated to lead another to
use or apply it for preventing conception or producing
abortion, or for anj^ indecent or immoral pui-pose, and
every written or printed card, letter, circular, book,
pamphlet, advertisement, or notice of any kind giving
inforaiation directly or indirectly, where, or how, or
from whom, or by what means any of the hereinbefore-
mentioned matters, articles or things may be obtained
or made, or Avhere or by whom any act or operation of
any kind for the procuring or producing of abortion
will be done or performed, or how or by what means
conception may be prevented or abortion produced,
whether sealed or unsealed; and every letter, packet, or
package, or other mail matter containing any filthy, vile,
or indecent thing, device, or substance; and every paper,
writing, advertisement, or representation that any ar-
ticle, instrument, substance, drag, medicine, or thing
may, or can be, used or applied for preventing concep-
tion or producing abortion, or for any indecent or im-
moral purpose; and every description calculated to in-
duce or incite a person to so use or a])ply any such
article, instrument, substance, drug, medicine, or thing,
is liereby declared to bo nonmailable matter and shall
not be conveyed in the mails or delivered from any post-
ofTice or by any loiter carrier. Whoever shall k'liowingly
deposit, or cause to be deposited for mailing oi- delivery,
anything declared by this sec1io)i to be nonmailable, or
sliall loMtwiiigly take, oi' cause the same to bo taken,
from tiie mails for the f)nrpose of circulating or dis]iosing
thereof, or of aiding in the circulation or disposition
thereof, sliall be fined not more tlian five thousand dol-
lars, or imprisoned not more than fiv^e years, or both.
And the tenn ** indecent" within the intendment of this

Offenses Against the Postal Service 1111

section shall include matter of a character tending to
incite, arson, murder, or assassination.^

§ 1485. Libelous and indecent envelopes and wrappers.
Sec. 212. All matter otherwise mailable by law, upon the
envelope or outside cover or wrapper of which, or any-
postal card upon which any delineations, epithets, terms,
or language of an indecent, lewd, lascivious, obscene,
libelous, scurrilous, defamatory, or threatening character,
or calculated by the terms or manner or style of display
and obviously intended to reflect injuriously upon the
character or conduct of another, may be written or
printed or othenvise impressed or apparent, are hereby
declared nonmailable matter, and shall not be conveyed
in the mails nor delivered from any postoffice nor by
any letter carrier, and shall be withdrawn from the mails
under such regulations as the Postmaster General shall
prescribe. Whoever shall knowingly deposit or cause to
be deposited, for mailing or delivery, anything declared
by this section to be nonmailable matter, or shall know-
ingly take the same or cause the same to be taken from
the mails for the purpose of circulating or disposing of
or aiding in the circulation or disposition of the same,
shall be fined not more than five thousand dollars, or im-
prisoned not more than five years, or both.

§ 1486. Lottery, gift enterprise, etc., circulars, etc., not
mailable. Sec. 213. No letter, package, postal card, or
circular concerning any lottery, gift entei*prise, or simi-
lar scheme offering prizes dependent in whole or in part
upon lot or chance; and no lotteiy ticket or part thereof,
or paper, certificate, or instrument purporting to be or
to represent a ticket, chance, share or interest in or de-
pendent upon the event of a lotteiy, gift enterprise, or

2 — Sec. 211, C. Code, amended
Sec. 2, Act Mar. 4, 1911, 36 Stat.
1339.

1112 Criminal Law

similar scheme offering prizes dependent in whole or in
part upon lot or chance ; and no check, draft, bill, money,
postal note, or money order, for the purchase of any
ticket or part thereof, or of any share or chance in any
such lottery, gift enteiT3rise, or scheme; and no newspa-
per, circular, pamphlet, or publication of any kind con-
taining any advertisement of any lottery, gift enterprise,
or scheme of any kind offering prizes dependent in whole
or in part upon lot or chance, or containing any list of
the prizes drawn or awarded by means of any such lot-
tery, gift enterprise, or scheme, whether said list con-
tains any part or all of such prizes, shall be deposited in
or carried by the mails of the United States, or be de-
livered by any postmaster or letter carrier. Whoever
shall knowingly deposit or cause to be deposited, or shall
knowingly send or cause to be sent, anything to be con-
veyed or delivered by mail in violation of the provisions
of this section, or shall knowingly deliver or cause to
be delivered by mail anything herein forbidden to be
carried by mail, shall be fined not more than one thou-
sand dollars, or imprisoned not more than two years, or
both ; and for any subsequent offense shall be imprisoned
not more than five years. Any person violating any
provision of this section may be tried and punished
either in tlie district in which the unlawful matter or
publication was mailed, or to which it was carried by
mail for delivery according to the direction tliereon, or
in which it was caused to be delivered by mail to the
person to whom it wns nddrossed,

§ 1487. Postmasters not to be lottery agents. Sec. 214.
Wlioover, being a i)()stniaster or other person emploj'^ed
ill till' postal service, sli.-ill ;i(*1 as agent for any lottery
oflicc, or uimIci" color of jui iclinsc or ol licrwise, \'(Mid lot-
teiy tickets, or shall knowingly send ])y mail or deliver
any letter, jiackage, postal card, circular, or pamphlet
advertising any JottcMy, gift enterprise, or similai'

Offenses Against the Postal Service 1113

scheme, offering piizes dependent in whole or in part
upon lot or chance, or any ticket, certificate, or instru-
ment representing any chance, share, or interest in or
dependent upon the event of any lottery, gift enterprise,
or similar scheme offering prizes dependent in whole or
in part upon lot or chance, or any list of the prizes
awarded by means of any such scheme, shall be fined not
more than one hundred dollars, or imprisoned not more
than one year, or both.

§ 1488. Use of mails to promote frauds. Sec. 215.
Whoever, having devised or intending to devise any
scheme or artifice to defraud, or for obtaining money or
property by means of false or fraudulent pretenses, rep-
resentations, or promises, or to sell, dispose of, loan, ex-
change, alter, give away, distribute, sujDply, or furnish
or procure for unlawful use any counterfeit or spurious
coin, bank note, paper money, or any obligation or securi-
ty of the United States, or of any state, territory munic-
ipality, company, corporation, or person, or anything
represented to be or intimated or held out to be such
counterfeit or spurious article, or any scheme or artifice
to obtain money by or through correspondence, by W'hat
is commonly called the ''saw-dust swindle," or "coun-
terfeit-money fraud, " or by dealing or pretending to deal
in what is commonly called "green articles," "green
coin," "green goods," "bills," "paper goods," "spuri-
ous Treasury notes," "United States goods," "green
cigars," or any other names or terms intended to be
understood as relating to such counterfeit or spurious
articles, shall, for the purpose of executing such scheme
or artifice or attempting so to do, place, or cause to be
placed, any letter, postal card, package, writing, circu-
lar, pamphlet, or advertisement, whether addressed to
any person residing within or outside the United States,
in any postoffice, or station thereof, or street or other
letter box of the United States, or authorized depository

1114 Criminal Law

for mail matter, to be sent or delivered by the postoffiee
establishment of the United States, or shall take or re-
ceive any such therefrom, whether mailed within or with-
out the United States, or shall knowingly cause to be
delivered by mail according to the direction thereon, or
at the place at which it is directed to be delivered by
the person to whom it is addressed, any such letter, pos-
tal card, package, writing, circular, pamphlet, or ad-
vertisement, shall be fined not more than one thousand
dollars, or imprisoned not more than five years, or both.

§ 1489. Fraudulently assuming- fictitious address. Sec.
21G. AVhoever, for the purpose of conducting, promoting,
or cariying on, in any manner, bj^ means of the postoffiee
establishment of the United States, any scheme or device
mentioned in the section last preceding, or any other
unlawful business whatsoever, shall use or assume, or
request to be addressed by, any fictitious, false, or as-
sumed title, name, or address, or name other than his
own proper name, or shall take or receive from any post-
office of the United States, or station thereof, or any
other authorized depositary of mail matter, any letter,
postal card, package, or other mail matter addressed to
any such fictitious, false, or assumed title, name, or ad-
dress, or name other than his own proper name, shall
be punished as provided in the section last preceding.

AMENDING SECTION 17 OF CRIMINAL CODE

CHAP. 19G. AN ACT TO AMEND SECTION 217 OF THE ACT EN-
TITLED, "an act TO CODIFY, REVISE, AND AMEND THE PENAL
LAWS OF THE UNITED STATES," APPROVED MARCH 4, 190!).

ij 1490. Section 217. Be it enacted by the senate and
house of representatives of the United States of America
in congress assembled, lliat section 217 of tlic act en-

Offenses Against the Postal Service 1115

titled, "All act to codify, revise, and amend the penal
laws of the United States, ''approved March 4, 1909.
(Thirty-fifth Statutes at Large, page 1131), is hereby
amended to read as follows:

"Sec. 217. That all kinds of poison, and all articles
and compositions, containing poison, and all poisonous
animals, insects, and reptiles and explosives of all kinds,
and inflammable materials, and infernal machines, and
mechanical, chemical, or other devices or compositions
which may ignite or explode, and all disease germs or
scabs, and all other natural, or artificial articles, com-
positions, or materials, of whatever kind, which may
kill or in any^vise hurt, harm, or injure another or dam-
age, deface, or otherwise injure the mails or other prop-
erty, whether sealed as first-class matter or not, are
hereby declared to be nonmailable matter, and shall not
be conveyed in the mails or delivered from any post-
ofiice or station thereof, nor by any letter carrier; but
the Postmaster General maj^ peraiit the transmission in
the mails, from the manufacturer thereof or dealer there-
in, to licensed physicians, surgeons, dentists, pharma-
cists, druggists, and veterinarians, under such rules and
regulations as he shall prescribe, of any articles herein-
fore described which are not outwardly or of their own
force dangerous or injurious to life, health, or property:
Provided, That all spirituous, vinous, malted, feraiented,
or other intoxicating liquors of any kind are hereby de-
clared to be nonmailable, and shall not be deposited in
or carried through the mails. Whoever shall knowingly
deposit or cause to be deposited for mailing or deliveiy,
or shall knowingly cause to be delivered by mail, accord-
ing to the direction thereon or at any place at which it
is directed to be delivered by the person to whom it is
addressed, anything declared by this section to be non-
mailable, unless in accordance with the rules and regula-
tions hereby authorized to be prescribed by the Post-
master General, shall be fined not more than $1,000 or

1116 Criminal Law

imprisoned not more than two years, or both; and who-
ever shall knowingly deposit or cause to be deposited
for mailing or delivery, or shall knowingly cause to be
delivered by mail, according to the direction thereon at
any place to which it is directed to be delivered by the
person to whom it is addressed, anything declared by
this section to be nonmailable, whether transmitted in
accordance with the rules and regulations authorized to
be prescribed by tlie Postmaster General or not, with
the design, intent, or purpose to kill or in anywise hurt,
harm, or injure another, or damage, deface, or other-
wise injure the mails or other property, shall be fined
not more than $10,000 or imprisoned not more than
twenty years, or both. ' ' ^

§ 1491. Counterfeiting money orders. Sec. 218. Who-
ever, with intent to defraud, shall falsely make, forge,
counterfeit, engrave or print, or cause or procure to be
falsely made, forged, counterfeited, engraved, or printed,
or shall willingly aid or assist in falsely making, forging,
counterfeiting, engraving, or printing, any order in imi-
tation of or purporting to be a money order issued by
the Postoffice Department, or by any postmaster or agent
thereof; or whoever shall forge or counterfeit the sig-
nature of any postmaster, assistant postmaster, chief
clerk, or ck'rk, upon or to any money order, or postal
note, or blank therefor liiovidcd or issued by or under
the direction ol" the Postoflice Department of the United
States, Ol- ol' any foreign country, and payable in the
United States, or any material signature or indorsement
thereon, or .-iny material sigiiatui'c to any receipt or cer-
tificate of identification thereon; or shall falsely alter,
or cause or procure to be falsely altered in any male-
rial respect, or kintwingly aid or assisi in falsely so alter-
ing any sucli money order or postal note; or shall, witli

3— Act May 25, 1920, 41 Stat.
G21,

Offenses Against the Postal Service 1117

intent to defraud, pass, utter, or publish any such forged
or altered money order or postal note, knowing any ma-
terial signature or indorsement thereon to be false,
forged, or counterfeited, or any material alteration
therein to have been falsely made; or shall issue any
money or postal note without having previously received
or paid the full amount of money payable therefor, with
the purpose of fraudulently obtaining or receiving, or
fraudulently enabling any other person, either directly
or indirectly, to obtain or receive from the United
States, or any officer, employee, or agent thereof, any
sum of money whatever; or shall, with intent to defraud
the United States, or any person, transmit or present to,
or cause or procure to be transmitted or presented to,
any officer or employee or at any office of the govern-
ment of the United States, any money order or postal
note, knowing the same to contain any forged or coun-
terfeited signature to the same, or to any material in-
dorsement, receipt, or certificate thereon, or material
alteration therein unlawfully made, or to have been un-
lawfully issued without previous payment of the amount
required to be paid upon such issue, shall be fined not
more than five thousand dollars, or imprisoned not more
than five years, or both.

§ 1492. Counterfeiting postage stamps. Sec. 219. Who-
ever shall forge, or counterfeit any postage stamp, or
any stamp printed upon any stamped envelope, or pos-
tal card, or any die, plate, or engraving therefor; or
shall make or print, or knowingly use or sell, or have
in possession with intent to use or sell, any such forged
or counterfeited postage stamp, stamped envelope, pos-
tal card, die, plate, or engraving; or shall make, or
knowingly use or sell, or have in possession with intent
to use or sell, any paper bearing the wateiTnark of any
stamped envelope, or postal card, or any fraudulent imi-
tation thereof; or shall make or print, or authorize or

1118 Criminal Law

procure to be made or printed, any postage stamp,
stamped envelope, or postal card, of the kind authorized
and provided by the Postoffice Department, without the
special authority and direction of said department; or
shall, after such postage stamp, stamped envelope, or
postal card has been printed, with intent to defraud,
deliver the same to any person not authorized by an
instrument in writing, duly executed under the hand of
the Postmaster-General and the seal of the Postoffice
Department, to receive it, shall be fined not more than
five hundred dollars, or imprisoned not more than five
years, or both.

§ 1493. Counterfeiting, etc., foreign stamps. Sec. 220.
Whoever shall forge, or counterfeit, or knowingly utter
or use any forged or counterfeited postage stamp of any
foreign government, shall be fined not more than five
hundred dollars, or imprisoned not more than five years,
or both.

§ 1494. Inclosing higher-class in lower-class matter.
Sec. 221. Matter of the second, third, or fourth class con-
taining any writing or printing in addition to tlie orig-
inal matter, other than as authorized by hiw, shall not
be admitted to the mails, nor delivered, except upon pay-
ment of postage foi- matter of the first class, deducting
therefrom any amount which may have been prepaid
by stamps affixed, nnk'ss l)y direction of tlie Postmaster
General sudi postage shall be remitted. Whoever shall
knowingly concejil or inclose any mattci- of a liigher
class ill tlial of a lower class, and deposit or cause the
same to be deposited for conveyance by mail, at a less
rate than would l)o charged for such higher class mat-
ter, shall be fined not more than one hundred dollars.

§ 1495. Postmaster illegally approving bond, etc. Sec

222. W'Ik'cnci-, being a. i)ost nuister, siiall affix his sig-

Offenses Against the Postal Service 1119

nature to the approval of any bond of a bidder, or to
the certificate of sufficiency of sureties in any contract,
before the said bond or contract is signed by the bidder
or contractor and his sureties, or shall knowingly, or
without the exercise of due diligence, approve any bond
of a bidder with insufficient sureties, or shall knowingly
make any false or fraudulent certificate, shall be forth-
with dismissed from office and be thereafter disqualified
from holding the office of postmaster; and shall also be
fined not more than five thousand dollars, or imprisoned
not more than one year, or both.

§ 1496. False evidence as to second-class mail matter.
Sec. 223. Whoever shall submit or cause to be submitted
to any postmaster or to the Postoffice Department or any
officer of the postal service, any false evidence relative
to any publication for the purpose of securing the ad-
mission thereof at the second-class rate, for transporta-
tion in the mails, shall be fined not more than five hun-
dred dollars.

§ 1497. Inducing or prosecuting false claims. Sec. 224.
Whoever shall make, allege, or present, or cause to be
made, alleged, or presented, or assist, aid, or abet in
making, alleging, or presenting, any claim or applica-
tion for indemnity for the loss of any registered letter,
parcel, package, or other article or matter, or the con-
tents thereof, knowing such claim or application to be
false, fictitious, or fraudulent; or whoever for the pur-
pose of obtaining or aiding to obtain the payment or
approval of any such claim or application, shall make or
use, or cause to be made or used, any false statement,
certificate, affidavit, or deposition; or w^ioever shall
knowingly and wilfully misrepresent, or misstate, or, for
the purpose aforesaid shall knowingly and wilfully con-
ceal any material fact or circumstance in respect of any
such claim or application for indemnity, shall be fined

1120 Chimin AL Law

not more tlian five hundred dollars, or imprisoned not
more than one year, or both.

§ 1498. Misappropriation of postal funds or property.
Sec. 225. Whoever, being a postmaster or otlier person
employed in or connected witli any branch of the postal
service, shall loan, use, pledge, hypothecate, or convert
to his own use, or shall deposit in any bank, or exchange
for other funds or property, except as authorized by law,
any money or property coming into his hands or under
his control in an}" manner whatever, in the execution or
under color of his office, employment, or service, w^hether
the same shall be the money or property of the United
States or not; or shall fail or refuse to remit to or deposit
in the Treasury of the United States or in a designated
depository, or to account for or turn over to the proper
oflicer or agent, ^\\j such money or property, when re-
quired so to do by law or the regulations of the Post-
office Department, or upon demand or order of the Post-
master General, either directly or through a duly au-
thorized officer or agent, shall be deemed guilty of
embezzlement; and eveiy such person, as well as every
other person advising or knowingly participating there-
in, shall be fined in a sum equal to the amount or value
of the money or property embezzled or imprisoned not
more than ten years, or both. Any failure to produce or
to pay over any sucli money or property, when required
so to do as above provided, shall be taken to l)e prima
facie evidence of such embezzlement; and upon llie trial
of any indictment against any person for such em])ezzle-
ment, it shall l)e prima facie evidence of a lialance
against liim to produce a transcript from the account
books of the Auditor Coi- tiie Postofficc Department. But
iiotliiiig lierein slial! be construed to proliibit any jiost-
master depositing, nndci- tlic direction of Ilic I'oslmastcr
General, in a nationni hnnk designated by the Secretary
of tlip Treasury for Dial ])urpose, lo liis own credit as

Offenses Against the Postal Service 1121

postmaster, any funds in his charge, nor prevent his ne-
gotiating drafts or other evidences of debt through such
bank, or through United States disbursing officers, or
otherwise, when instructed or required so to do by the
Postmaster General, for the purpose of remitting surplus
funds from one postoffice to another.

§ 1499. Employees not to become interested in con-
tracts. Sec. 226. Whoever, being a person employed
in the postal service, shall become interested in any con-
tract for carrying the mail, or act as agent, with or with-
out compensation, for any contractor or person offering
to become a contractor in any business before the Depart-
ment, shall be immediately dismissed from office, and shall
be fined not more than five thousand dollars, or impris-
oned not more than one year, or both.

§ 1500. Fraudulent use of official envelopes. Sec. 227.
Whoever shall make use of any official envelope, label, or
indorsement authorized by law, to avoid the payment of
postage or registry fee on his private letter, packet,
package, or other matter in the mail, shall be fined not
more than three hundred dollars.

§ 1501. Fraudulent increase of weight of mail. Sec.

228. Whoever shall place or cause to be placed any mat-
ter in the mails during the regular weighing period, for
the purpose of increasing the weight of the mail with in-
tent to cause an increase in the compensation of the rail-
road mail carrier over whose route such mail may pass,
shall be fined not more than twenty thousand dollars, or
imprisoned not more than five years, or both.

§ 1502. Offenses against foreign mail in transit. Sec.

229. Every foreign mail shall, while being transported
across the territory of the United States, under authority
of law, be taken and deemed to be a mail of the United

C. L.— 71

1122 Ckimixal Law

States so far as to make any violation thereof, or depre-
dation thereon, or offense in respect thereto, or any part
thereof, an offense of the same grade, and pmiishable in
the same manner and to tlie same extent as thougli the
mail was a mail of the United States; and in any indict-
ment or information for any such offense, the mail, or
any part thereof, may be alleged to be,* and on the trial
of any such indictment or infomiation it shall be deemed
and held to be, a mail or part of a mail of the United
States.

§ 1503. Omission to take cath. Sec. 230. Eveiy per-
son employed in the postal service shall be subject to all
penalties and forfeitures for the violation of the laws
relating to such service, whether he has taken the oath
of office or not.

§1504. Definitions. Sec. 231. The words "postal
service," wherever used in this chapter, shall be held and
deemed to include the "PostoOice Department."

CHAPTER LXXVI

PUBLIC JUSTICE

OFFENSES AGAINST PUBLIC JUSTICE

CHAPTER SIX

Penal Code Act, March 4, 1909

§ 1507. Perjury. § 1518.

§ 1508. Subornation of perjury.

§ 1509. Stealing or altering process; § 1519.
procuring false bail, etc. § 1520.

§ 1510. Destroying, etc., public rec-
ords. § 1521.

§ 1511. Destroying records by officer

in charge. § 1522.

§ 1512. Forging signature of judge,

etc. § 1523.

§ 1513. Bribery of a judge or ju-
dicial officer.

§ 1514. Judge or judicial officer ac- § 1524.
cepting a bribe, etc. § 1525.

§ 1515. Juror, referee, master, etc., § 1526.
or judicial officer, etc.,
accepting bribe. § 1527.

§ 1516. Witness accepting bribe. § 1528.

§ 1517. Intimidation or corruption
of witness, or grand or
petit juror, or officer.

§ 1507. Perjury. Sec. 125. Whoever, having taken an
oath before a competent tribunal, officer, or person, in
any case in which a law of the United States authorizes
an oath to be administered, that he will testify, declare,
depose, or certify truly, or that any written testimony,
declaration, deposition, or certificate by him subscribed,
is true, shall wilfully and contrary to such oath state or

1123

Conspiring to intimidate
party, -nitness or juror.

Attempt to influence juror.

Allowing prisoner to es-
cape.

Application of preceding
section.

Obstructing process or as-
saulting an officer.

Eescuing, etc., prisoner;
concealing, etc., person for
whom warrant has issued.

Eescue at execution.

Eescue of prisoner.

Eescue of body of executed
offender.

Extortion by informer.

Misprision of felony.

1124 Criminal Law

subscribe any material matter wliicli he does not believe
to be true, is guilty of perjuiy, and sliall be fined not more
than two thousand dollars and imprisoned not more than
five years,

§ 1508. Subornation of perjury. Sec. 126. AVhoever
shall procure another to commit any perjury is guilty of
subornation of perjuiy, and punishable as in the pre-
ceding section prescribed.

§ 1509. Stealing- or altering process; procuring false
bail, etc. Sec. 127. AVhoever shall feloniously steal,
take away, alter, falsifj^ or otherwise avoid any record,
writ, process, or other proceeding, in any court of the
United States, by means Avhercof any judgment is re-
versed, made void, or does not take effect; or whoever
shall acknowledge, or procure to be acknowledged, in any
such court, any recognizance, bail or judgment, in the
name of any other person not privy or consenting to the
same, shall be fined not more than five thousand dollars,
or imprisoned not more than seven years, or both; but
this provision shall not extend to the acknowledgment of
any judgment by an attorney, duly admitted, for any
person against whom such judgment is had or given.

§ 1510. Destroying, etc., public records. Sec. 128.
Whoever shall wilfully and unlawfully conceal, remove,
mutilate, obliterate, or destroy, or attempt to conceal,
remove, mutilate, obliterate, or destroy, or, with intent
to conceal, remove, nuitilale, obliterate, destroy, or steal,
sliall take and carry away any record, proceeding, map,
book, paper, document, or oilier thing, filed or deposited
with any clerk or officer of any court of the United States,
or in any public office, or with any judicial or public
officer of the Ujiited States, sliall be fined not more than
two thousand dollars, or imprisoned not more than three
vears. or both.

Public Justice 1125

§ 1511. Destroying records by officer in charge. Sec.
129. Whoever, having the custody of any record, pro-
ceeding, map, book, document, paper, or other thing spec-
ified in the preceding section, shall wilfully and unlaw-
fully conceal, remove, mutilate, obliterate, falsify, or
destroy any such record, proceeding, map, book, docu-
ment, paper, or thing, shall be fined not more than two
thousand dollars, or imprisoned not more than three
years, or both; and shall moreover forfeit his office and
be forever afterward disqualified from holding any office
under the Government of the United States.

§ 1512. Forging signature of judge, etc. Sec. 130.
Whoever shall forge the signature of any judge, register,
or other officer of any court of the United States, or of
any territory thereof, or shall forge or counterfeit the seal
of any such court, or shall knowingly concur in using
any such forged or counterfeit signature or seal, for the
purpose of authenticating any proceeding or document,
or shall tender in evidence any such proceeding or docu-
ment with a false or counterfeit signature of any such
judge, register, or other officer, or a false or counterfeit
seal of the court, subscribed or attached thereto, know-
ing such signature or seal to be false or counterfeit, shall
be fined not more than five thousand dollars and impris-
oned not more than five j^ears.

§ 1513. Bribery of a judge or judicial officer. Sec. 131.
W^hoever, directly or indirectly, shall give or offer, or
cause to be given or offered, any money, property or
value of any kind, or any promise or agreement there-
for, or any other bribe, to any judge, judicial officer, or
other person authorized by any law of the United States
to hear or determine any question, matter, cause, pro-
ceeding or controversy, with intent to influence his ac-
tion, vote, opinion, or decision thereon, or because of any
action, vote, opinion, or decision, shall be fined not more

1126 Criminal Law

than twenty thousand dollars, or imprisoned not more
than fifteen years, or both ; and shall forever be disquali-
fied to hold any office of honor, trust, or profit under the
United States.

§ 1514. Judge or judicial officer accepting- a bribe, etc.
Sec. 132. AMioever, being a judge of the United States,
shall in any wise accept or receive smj sum of money,
or other bribe, present, or reward, or any promise, con-
tract, obligation, gift, or security for the payment of
money, or for the delivery or convej^ance of anything of
value, with the intent to be influenced thereby in any
opinion, judgment, or decree in any suit, controversy,
matter, or cause, depending before him, or because of any
such opinion, ruling, decision, judgment or decree shall
be fined not more than twenty thousand dollars, or im-
prisoned not more than fifteen years, or both; and shall
be forever disqualified to hold any office of honor, trust,
or profit under the United States.

§ 1515. Juror, referee, master, etc., or judicial officer,
etc., accepting bribe. Sec. 133. Whoever, being a juror,
referee, ar])itrator, appraiser, assessor, auditor, master,
receiver. United States commissioner, or other person
authorized by any law of the United States to hear or
determine any question, matter, cause, controversy, or
proceeding, shall ask, receive or agree to receive, any
money, property, or xaliic (if any kind, or any promise
or agreement therefor, npoii any agi-ccnuMil or nnder-
standing lliat his vote, opinion, action, judgment, or de-
cision, shall be influenced thereby, or because of any such
vote, opinion, action, judgment, or decision, shall be
fined not more than two thousand dollars, or iin])risoned
not more than two years, or both.

§1516. Witness accepting bribe. Sec. 1:M. Whoever,
being, or alxnit to he, a witness upon a trial, hearing, or

Public Justice 1127

other proceeding', before any court or any officer author-
ized by the laws of the United States to hear evidence or
take testimony, shall receive, or agree or offer to re-
ceive, a bribe, upon any agreement or understanding
that his testimony shall be influenced thereby, or that he
will absent himself from the trial, hearing, or other pro-
ceeding, or because of such testimony, or such absence,
shall be fined not more than two thousand dollars, or
imprisoned more than two years, or both.

§ 1517. Intimidation or corruption of witness, or grand
or petit juror, or ojfiicer. Sec. 135. Whoever corruptly, or
by threats or force, or by any threatening letter or com-
munication, shall endeavor to influence, intimidate, or
impede any witness, in any court of the United States
or before any United States commissioner or officer act-
ing as such commissioner, or any grand or petit juror,
or officer in or of any court of the United States, or offi-
cer who may be serving at any examination or other pro-
ceeding before any United States commissioner or officer
acting as such commissioner, in the discharge of his
duty, or who corruptly or by threats or force, or by any
threatening letter or threatening communication, shall
influence, obstruct, or impede, or endeavor to influence,
obstruct, or impede, the due administration of justice
therein, shall be fined not more than one thousand dol-
lars, or imprisoned not more than one year, or both.

§ 1518. Conspiring to intimidate party, witness, or
juror. Sec. 136. If two or more persons conspire to de-
ter by force, intimidation, or threat, any party or wit-
ness in any court of the United States, or in any exam-
ination, before a United States commissioner or officer
acting as such commissioner, from attending such court
or examination, or from testifying to any matter pend-
ing therein, freely, fully, and truthfully, or to injure
such party or witness in his person or property on ac-

1128 Criminal Law

count of his having so attended or testified, or to influ-
ence the verdict, presentment, or indictment of any grand
or petit juror in any such court, or to injure such juror
in his person or property on account of any verdict,
presentment, or indictment lawfully assented to by him,
or on account of his being or having been such juror,
each of such persons shall be fined not more than five
thousand dollars, or imprisoned not more than six years,
or both,

§ 1519. Attempt to influence juror. Sec. 137. Whoever
shall attempt to iniluence the action or decision of any
grand or petit juror of any court of the United States
upon any issue or matter pending before such juror, or
before the jury of which he is a member, or pertaining to
his duties, by writing or sending to him any letter or
communication, in print or writing, in relation to such
issue or matter, shall be fined not more than one thou-
sand dollars, or imprisoned not more than six months,
or both.

§ 1520. Allowing prisoner to escape. Sec. 138. When-
ever any marshal, deputy marshal, ministerial officer, or
other person has in his custody any prisoner by virtue
of process issued under the laws of the United States
by any court, judge, or commissioner, and such marshal,
deputy marshal, ministerial ofiicer, oi' other person vol-
untarily suffers such prisoner to escape, he shall be fined
not more- 1 hail two lliousaiid dollars, oi' imprlsoiicd not
more than two years or both.

§ 1521. Application of preceding section. Sec. 139. The
preceding section shall be construed to ai)i)ly not only
to cases in wliicli the prisoner who esca])e(l was charged
or found gnilt\- of an offense against the laws of the
United States, and to cases in wlii'li the prisoner may be
in custody charged with ofTciiscs against any foreign

Public Justice 1129

government with which the United States have treaties
of extradition, but also to cases in which the prisoner
may be held in custody for removal to or from the Philip-
pine Islands as provided by law.

§ 1522. Obstructing process or assaulting officer. Sec.
140. Wlioever shall knowingly and wilfully obstruct,
resist, or oppose any officer of the United States, or other
person duly authorized, in serving, or attempting to serve
or execute, any mesne process or warrant, or any rule or
order, or any other legal or judicial writ or process of
any court of the United States, or United States commis-
sioner, or shall assault, beat, or wound any officer, or
other person duly authorized, knowing him to be such
officer, or other person so duly authorized, in serving or
executing any such writ, rule, order, process, warrant,
or other legal or judicial writ or process, shall be fined
not more than three hundred dollars and imprisoned not
more than one year.

§ 1523. Rescuing, etc., prisoner; concealing, etc., per-
son for whom warrant was issued. Sec. 141. Whoever
shall rescue or attempt to rescue, from the custody of any
officer or person lawfully assisting him, any person ar-
rested upon a warrant or other process issued under the
provisions of any law of the United States, or shall, di-
rectly or indirectly, aid, abet, or assist any person so
arrested to escape from the custody of such officer or
other person, or shall harbor or conceal any person for
whose arrest a warrant or process has been so issued, so
as to prevent his discovery and arrest, after notice or
knowledge of the fact that a warrant or process has been
issued for the apprehension of such person, shall be fined
not more than one thousand dollars, or imprisoned not
more than six months, or both.

§ 1524. Rescue at execution. Sec. 142. Whoever, by
force, shall set at liberty or rescue any person found

1130 Criminal, Law

guilty in any court of the United States of any capital
crime, while going to execution or during execution, shall
be fined not more than twenty-five thousand dollars and
imprisoned not more than twenty-five years.

§ 1525. Rescue of prisoner. Sec. 143. Whoever, by
force, shall set at liberty or rescue any person, who, before
conviction, stands committed for any capital crime; or
whoever, by force, shall set at liberty, or rescue any per-
son, committed for or convicted of any offense other than
capital, shall be fined not more than five hundred dollars
and imprisoned not more than one year.

§ 1526. Rescue of body of executed offender. Sec. 144.
"Whoever, by force, shall rescue or attempt to rescue,
from the custody of any marshal or his officers, the dead
body of an executed offender, while it is being conveyed
to a place of dissection, as provided by section 331 hereof,
or by force shall rescue or attempt to rescue such body
from the place where it has been deposited for dissection
in pursuance of that section, shall be fined not more than
one hundred dollars, or imprisoned not more than one
year or both.

§ 1527. Extortion by internal revenue informers. Sec.
145. Whoever shall, under a threat of infomiing, or as
a consideration for not infonning, against any violation
of any law of the United States, demand or receive any
money or other valuable thing, shall be fined not more
than two thousand dollars, or imprisoned for not more
than one year, or both.

§1528. Misprision of felony. Sec. 146. Wlioever, hav-
ing knowledgi' of ihc .ictiial connnission of the crime of
niiirder or other felony c()gni/al)le ])y tli(> courts of the
United States, conceals and does not as soon as may be

Public Justice 1131

disclosed and made known the same to some one of the
judges or other persons in civil or military authority
under the United States, shall be fined not more than
five hundred dollars, or imprisoned not more than three
years, or both.

CHAPTER LXXVII

OFFENSES RELATING TO PUBLIC LANDS

§ 1531. Cutting or wantonly de-
stroying red cedar or
hemlock on public lands;
punishment.

§ 1532. Falsely making or altering
instrument affecting lands
and minerals in Califor-
nia, punished by hard
labor.

§ 1533. Violation of Act June 3,
1878, relating to cutting
timber on mineral lands,
misdemeanor.

§ 1534. No person by force or
threats, or by conspiring
with others prevent others
from settlement on public
land.

§ 1535. Penalty for preventing set-
tlement upon public land.

§ 1536. Unlawful to procure any
person to settle upon land
in Oklahoma with intent
to acquire title.

§ ].j37. OfTenscs against military
and national parks; pun-
ishment.

S 1538. Defense for cutting timber.

ii 1539. Register and receiver is cm-

powered to subpoena wit-
ness.

§ 1540. "Witness after demand and
payment of witness fee
failure to testify misde-
meanor.

§ 1541. Homestead entrymen and
witness making false affi-
davit and others as to any
material matter, guilty of
perjury.

§ 1542. Punishment for destruction
of historic or prehistoric
ruins on Government land.

§ 1543. Punishment for preventing
others from settling on
public lands under Act
Feb. 25, 1885, 23 Stat.
322.

§ 1544. Unlawful to trap, kill or
capture animals in Grand
Canyon Forest Reserve ex-
cept as by regulations.

§ 1545. Puni^ilunciit for hunting,
catching, Avilfully destroy-
ing or killing birds and
animals in limits as pro-
vided under Act August
11, 1916.

§ 1531. Cutting or wantonly destroying red cedar or
hemlock on public lands— Punishment. If any person
shall cui, or caiiso or procure 1o be ciil, or aid, assist, or
be employed in fulting or shall wantonly destroy, or
cause or procure 1o bo wantonly destroyed, or aid, assist,
or be employed in wantonly destroying any live-oak or

1132

Offenses Relating to Public Lands 1133

red-cedar trees, or other timber standing, growing, or
being on any lands of the United States, which, in pur-
suance of any law passed, or hereafter to be passed, have
been reserved, or purchased for the use of the United
States, for supplying or furnishing therefrom timber for
the navy of the United States; or if any person shall re-
move, or cause or procure to be removed, or aid or assist,
or be employed in removing from any such lands which
have been reserved or purchased, any live-oak or red-
cedar trees, or other timber, unless duly authorized so to
do, by order, in writing, of a competent officer, and for
the use of the navy of the United States ; or if any person
shall cut, or cause or procure to be cut, or aid, or assist,
or be employed in cutting any live-oak or red-cedar trees
or other timber on, or shall remove, or cause or procure
to be removed, or aid, or assist, or be employed in re-
moving any live-oak or red-cedar trees or other tim-
ber, from any other lands of the United States,
acquired, or hereafter to be acquired, with intent to
export, dispose of, use, or employ the same in any man-
ner whatsoever, other than for the use of the Navy of
the United States ; every such person shall pay a fine not
less than triple the value of the trees or timber so cut,
destroyed, or removed, and shall be imprisoned not ex-
ceeding twelve months.^

§ 1532. Falsely making or altering instrument affect-
ing lands and minerals in California — Punished by hard
labor. Every person who falsely makes, alters, forges,
or counterfeits, or causes or procures to be falsely made,
altered, forged, or counterfeited; or willingly aids and
assists in the false making, altering, forging, or counter-
feiting any petition, certificate, order, report, decree, con-
cession, denouncement, deed, patent, confinnation, diseno,
map, expediente or part of an expediente, or any title-

1— Act Mar. 2, 1831, E. S. 2461,
4 Stat. 472.

1134 Criminal Law

paper, or evidence of right, title, or claim to lands, mines,
or minerals in California, or any instrument of writing
whatever in relation to lands or mines or minerals in
the State of California, for the purpose of setting up or
establishing against the United States any claim, right,
or title to lands, mines, or minerals within the State of
California, or for the purposes of enabling any person to
set up or establish any such claim; and every person,
who, for such puiiDose, utters or publishes as time and
genuine any such false, forged, altered, or counterfeited
petition, certificate, order, report, decree, concession,
denouncement, deed, patent, confirmation, diseno, map,
expediente or part of an expediente, title-paper, evidence
of right, title, or claim to lands or mines or minerals in
the State of California, or any instrument of writing
whatever in relation to lands or mines or minerals in the
State of California, shall be punishable by imprisonment
at hard labor not less than three years and not more
than ten years, and by a fine of not more than ten thou-
sand dollars.^

§ 1533. Violation of Act June 3, 1878, relating to cut-
ting timber on mineral lands— Misdemeanor. 1. That all
citizens of tiie United Stales and other persons, bona fide
residents of the State of Colorado, or Nevada, or either
of the Territories of New Mexico, Arizona, Utah, Wyo-
ming, Dakota, Idaho, or Montana, and all other mineral
districts of the United States, shall be, and are hereby,
authorized and permitted to fell and remove, for build-
ing, agricultural, mining, or other domestic purposes,
any timber or other trees growing or being on the public
hinds, said lands being mineral, and not subject to entry
under existing hiws of tlic United States, Territories, or
districts of wliich sncii citizens or persons may be at
any time bona lid*" residents, subject to such rides and

2_Hei--H. 1, li «'"l '•'•. •«• i^- -•♦'''
Art May IH, 1858, 11 Htat. 2«0.

Offenses Relating to Public Lands 1135

regulations as the Secretaiy of the Interior may pre-
scribe for the protection of the timber and of the under-
growth growing upon such lands, and for other purposes :
Provided, the provisions of this Act shall not extend to
railroad corporations.

2. That it shall be the duty of the register and the re-
ceiver of any local land office in whose district any mineral
land may be situated to ascertain from time to time
whether any timber is being cut or used upon any such
lands, except for the purposes authorized by this Act,
within their respective land districts; and, if so, they
shall immediately notify the Commissioner of the General
Land Office of that fact; and all necessary expenses in-
curred in making such proper examination shall be paid
and allowed such register and receiver in making up their
next quarterly accounts.

3. Any person or persons who shall violate the pro-
visions of this Act, or any rules and regulations in pur-
suance thereof made by the Secretary of the Interior,
shall be deemed guilty of a misdemeanor, and, upon con-
viction, shall be fined in any sum not exceeding five hun-
dred dollars, and to which may be added imprisonment
for any term not exceeding six months.^

~§ 1534. No person by force or threats, or by conspiring
with others prevent others from settlement on public
land. That no person, by force, threats, intimidation, or
by any fencing or inclosing, or any other unlawful means,
shall prevent or obstruct, or shall combine and con-
federate with others to prevent or obstruct, any person
from peaceably entering upon or establishing a settle-
ment or residence on any tract of public land subject to
settlement or entry under the public laws of the United
States, or shall prevent or obstruct free passage or
transit over or through the public lands: Provided, This
section shall not be held to affect the right or title of

3— Act June 3, 1878, 20 Stat. 88.

1136 Ckimixal Law

persons, who have gone upon, improved or occupied said
lands under the land laws of the United States, claiming
title thereto, in good faith.*

§ 1535. Penalty for preventing settlement upon public
land. That any person violating any provisions hereof,
whether as owner, part owner, agent, or w^ho shall aid,
help, counsel, advise or assist in any violation hereof,
shall be deemed guilty of a misdemeanor, and fined in a
sum not exceeding one thousand dollars and be impris-
oned not exceeding one year for each offense.^

§ 1536. Unlawful to procure any person to settle upon
land in Oklahoma with intent to acquire title. That it
shall be unlawful for any person, for himself or any
company, association, or corporation, to directly or in-
directly procure any person to settle upon any lands
open to settlement in the Territory of Oklahoma, with
intent thereafter of acquiring title thereto; and any title
thus acquired shall be void; and the parties to such
fraudulent settlement shall severally be guilty of a mis-
demeanor, and shall be punished upon indictment, by
imprisoiunent not exceeding twelve months, or by a fine
not exceeding one thousand dollars, or by both such fine
and imprisonment, in the discretion of the court.^

§ 1537. Offenses against military and national parks.
Punishment. Tliat every person who wilfully destroys,
mutihites, defaces, injures, or removes any monument,
statue, marker, guidepost, or other structure, or who will-
fully destroys, cuts, breaks, in.jui*es, or removes any tree,
slinil), or plant witliiii tlic liiiiils of any national })arks
shall be deemed guilty ol" a misdemeanor, i)uiiisli:il)le by

4— Sec. 3, Act Feb. 25, 1885, 23 G— Sec. 24, Act May 2, KS90, 20

Stat. 322, Stat. 92.

5— Sec. -1, Act Feb. 25, 1885, 23
Stat. 322.

Offenses Relating to Public Lands 1137

a fine of not less than ten dollars nor more than one thou-
sand dollars, for each monument, statue, marker, guide-
post, or other structure, tree, shrub, or plant destroyed,
defaced, injured, cut, or removed, or by imprisoimient for
not less than fifteen days and not more than one year, or
by both fine and imprisonment.

Every person who shall trespass upon any national
parks for the purpose of hunting or shooting, or who
shall hunt any kind of game thereon with gun or dog, or
shall set trap or net or other device whatsoever thereon
for the purpose of hunting or catching game of any kind,
shall be guilty of a misdemeanor, punishable by a fine of
not more than one thousand dollars or by imprisonment
for not less than five days or more than thirty days, or by
both fine and imprisonment.''

§ 1538. Defense for cutting" timber. That in the States
of Colorado, Montana, Idaho, North Dakota, and South
Dakota, Wyoming, New Mexico and Arizona, and the Dis-
trict of Alaska, and the gold and silver regions of Nevada,
California, Oregon, and Washington and the Territoiy of
Utah in any criminal prosecution or civil action by the
United States for a trespass on such public timber lands
or to recover timber or lumber cut thereon it shall be a
defense if the defendant shall show that the said timber
was so cut or removed from the timber lands for use in
such State or Territory by a resident thereof for agricul-
tural, mining, manufacturing, or domestic purposes under
rules and regulations made and prescribed by the Secre-
taiy of the Interior and has not been transported out of
the same, but nothing herein contained shall operate to
enlarge the rights of any railway company to cut timber
on the public domain; Provided, That the Secretary of
the Interior may make suitable rules and regulations to
cany out the provisions of this Act, and he may desig-
nate the sections or tracts of land where timber may be

7— Act Mar. 3, 1897, 39 Stat. 621.
C. L.— 72

1138 Criminal Law

cut, and it sliall not be lawful to cut or remove any timber
except as may be prescribed by such rules and regula-
tions, but this Act shall not operate to repeal the Act of
June third, eighteen hundred and seventy-eight, provid-
ing for the cutting of timber on mineral lands.^

§ 1539. Register and receiver is empowered to subpoena
witness. That registers and receivers of the land office,
or either of them, in all matters requiring a hearing
before them, are authorized and empowered to issue sub-
poenas directing the attendance of witnesses, which
subpoenas may be served by any person by delivering a
true copy thereof to such witness, and when served, wit-
nesses shall be required to attend in obedience thereto:
Provided, That if any subpoena be served under the pro-
visions of this Act by any person other than an officer
authorized by the laws of the United States, or of the
State or Territory in which the depositions are taken, the
service thereof shall be proved by the affidavit of the
person sennng the same: Provided further, That said
subpoenas shall be served within the county in which at-
tendance is required, and at least five days before attend-
ance is required.*

§ 1540. Witness after demand and payment of witness
fee failure to testify misdemeanor. That any person will-
fully neglecting or refusing obedience to such subpoena,
or neglecting or refusing to appear and ti'stify when sub-
poenaed, his fees having been paid if (Icinaiided, shall be
deemed guilty of a misdemeanor, for which he shall be
punislicd by iiKlicliiiciil in the district court of llic United
States or in the district courts of the Territories exer-
cising the jurisdiclion of cii-cnil or district courts of the,
United States. The jinnishnicnl f'di- such offense, upon
conviction, sliall be a tine of not more than two hnndred

8— Act Mar. 3, 1901, TJl Stat. 9— Hcc. 1, Act Jan. 31, 1903, 32

1436. Stat. 790.

Offenses Relating to Public Lands 1139

dollars, or imprisonment not to exceed ninety days, or
both, at the discretion of the court: Provided, That if
such witness has been prevented from obeying such
subpoena without fault upon his part he shall not be
punished under the provisions of this Act.^°

§ 1541. Homestead entrymen and witness making false
affidavit and others as to any material matter. Guilty of
perjury. That hereafter all proofs, affidavits, and oaths
of any kind whatsoever required to be made by applicants
and entiymen under the homestead, preemption, tim-
ber-culture, desert-land, and timber and stone Acts,
may, in addition to those now authorized to take such
affidavits, proofs, and oaths, be made before any United
States commissioner or commissioner of the court exercis-
ing Federal jurisdiction in the Territory or before the
judge or clerk of any court of record in the county, parish,
or land district in which the lands are situated: Pro-
vided, That in case the affidavits, proofs, and oaths here-
inbefore mentioned be taken out of the county in which
the land is located and applicant must show by affidavit,
satisfactoiy to the Commissioner of the General Land
Office, that it was taken before the nearest or most acces-
sible officer qualified to take said affidavits, proofs, and
oaths in the land districts in which the lands applied for
are located; but such showing by affidavit need not be
made in making final proof if the proof be taken in the
town or city where the newspaper is published in which
the final proof notice is printed. The proof, affidavit, and
oath, when so made and duly subscribed, or which may
have heretofore been so made and duly subscribed, shall
have the same force and effect as if made before the reg-
ister and receiver, when transmitted to them with the fees
and commissions allowed and required by law. If any
witness making such proof, or any applicant making such

10— See. 3, Act Jan. 31, 1903, 32
Stat. 790.

11-iO Ceiminal Law

afiSdavit or oath, shall knowingly, willfully, or corruptly
swear falsely to any material matter contained in said
proofs, affidavits, or oaths he shall be deemed guilty of
perjury, and shall be liable to the same pains and penal-
ties as if he had sworn falsely before the register. The
fees for entries and for final proofs, when made before
any other officer than the register and receiver, shall be
as follows. ^^

§ 1542. Punishment for destruction of historic or pre-
historic ruins on government land. That any person who
shall appropriate, excavate, injure, or destroy any historic
or prehistoric ruin or monument, or any object of an-
tiquity, situated on lands owned or controlled by the
Goverimaent of the United States, without the pennission
of the Secretary of the Department of the Goverament
having jurisdiction over the lands on which said antiqui-
ties are situated, shall, upon conviction, be fined in a sum
of not more than five hundred dollars or be imprisoned
for a period of not more than ninety days, or shall suffer
both fine and imprisonment, in the discre^ . of the
court.^^

§ 1543. Punishment for preventing others from settling
on public lands under Act February 25, 1885, 23 Stat. 322.
That any person violating any of the provisions hereof,
whether as owner, part owner, or agent, or who shall aid,
abet, counsel, advise, or assist in any violation hereof,
shall be deemed guilty of a misdemeanor and fined in a
sum not exceeding one thousand dolhirs or be imprisoned
not exceeding one year, or both, for each offense.^^

§ 1544. Unlawful to trap, kill or capture animals in
Grand Canyon Forest Reserve except as by regulations.

'J'hat lii(; i'resideiit ol" (lie United States is liereby author-

11— Act. Mar. 4, 1904, R. S. 2294, 13— Sec. 4, Act Mar. 10, 1908, 35
33 Stat. .09. .Stat. 40.

12— Sec. 1, Act Juno 8, 1906, 34
Ktat, 225.

Offenses Eelating to Public Lands 1141

ized to designate such areas in the Grand Canyon Forest
Reserve as should, in his opinion, be set aside for the
protection of game animals and be recognized as a breed-
ing place therefor.

That when such areas have been designated as pro-
vided in section one of this Act, hunting, trapping, killing,
or capturing of game animals upon the lands of the United
States within the limits of said areas shall be unlawful,
except under such regulations as may be prescribed from
time to time by the Secretary of Agriculture; and any
person violating such regulations or the provisions of this
Act shall be deemed guilty of a misdemeanor, and shall,
upon conviction in any United States court of competent
jurisdiction, be fined in a sum not exceeding one thou-
sand dollars or by imprisonment for a period not exceed-
ing one year, or shall suffer both fine and imprisonment,
in the discretion of the court.

That it is the purpose of this Act to protect from tres-
pass the public lands of the United States and the game
animals which may be thereon, and not to interfere with
the operation of the local game laws as affecting private.
State, or Territorial lands.^*

§ 1545. Punishment for hunting, catching, willfully de-
stroying or killing birds and animals in limits as provided
under Act Augnst 11, 1916. The President of the United
States is hereby authorized to designate such areas on any
lands which have been, or which may hereafter be, pur-
chased by the United States under the provisions of the
Act of March first, nineteen hundred and eleven (Thirty-
sixth Statutes at Large, page nine hundred and sixty-
one), entitled "An Act to enable any State to cooperate
with any other State or States, or with the United States,
for the protection of watersheds of navigable streams, and
to appoint a commission for the acquisition of lands for

1 4— Sees. 1, 2, 3, Act June 29,
1906, 34 Stat. 607.

1142 Criminal Law

the purpose of conserving the navigability of navigable
streams," and Acts supplementaiy thereto and amenda-
toiy thereof, as should, in his opinion, be set aside for the
protection of game animals, birds, or fish; and whoever
shall hunt, catch, trap, willfully disturb or kill any kind
of game animal, game or nongame bird, or fish, or take
the eggs of any such bird on any lands so set aside, or in
or on the waters thereof, except nnder such general rules
and regulations as the Secretary of Agriculture may from
time to time prescribe, shall be fined not more than $500
or imprisoned not more than six months, or both."

15— Act Aug. 11, 1916, 39 Stat.
476.

CHAPTER LXXVIII

VIOLATION OF QUAKANTINE LAWS

§ 1548. Trespassing upon quarantine
reservation p r o h ibited ;
punishment.

§ 1549. In cases cholera and other
certain diseases Secretary
makes rules and regula-
tions to prevent spread of
disease ; punishment for
violation.

§ 1550. Any officer or agent, etc.,
for U. S. at any quaran-
tine station who violates
the rules and regulations
as provided in Sec. 1 this
Act, guilty of misde-
meanor.

1551.

Common carrier violating

§ 1556.

§ 1557.

§ 1558.

§ 1559.

quarantine laws, rules and § 1560.
regulations, officers and
agents; punishments.

§ 1552. Punishment for moving dis-
eased carcasses from one § 1561.
State to another, penalty,
Act Mar. 3, 1891.

§ 1553. Importing diseased cattle, § 1562.
etc.; punishment for
knowingly doing so.

§ 1554. Master or OAvner violating

Act Mar. 3, 1901, or any § 1563.
regulations thereunder in
relation to inspection of
vessels on the prevention § 1564.
of diseases.

§ 1555. Illegal for merchant or other
vessel from foreign port
to enter U. S. port except
as prescribed by Act Feb.
15, 1893.

1143

Secretary of Agriculture
may make regulations and
quarantine against dis-
eased stock.

Violations Act Feb. 2, 1903,
and regulations there-
under.

Violating rules of Secretary'
of Agriculture in shipping
condemned carcasses of
cattle, etc., from one State
to another.

Inspection of carcasses of
cattle the regulation Agri-
culture Department ; de-
facing stamp, etc.; pun-
ishment.

No railroad shall receive for
shipment cattle from one
quarantined State to an-
other.

Secretary may make regu-
lations for shipping cat-
tle, etc.

Cattle may be moved from
quarantine in accordance
with regulations of Secre-
tary of Agriculture.

Punishment for violating
provisions of Act of Mar.
3, 1905.

Entering or departing into
or from any quarantine
grounds in violation of
law, and an officer making
false statement, misde-
meanor.

1144 Ckimix.u:. Law

§ 1548. Trespassing upon quarantine reservation pro-
hibited. Punishment. That whenever any person shall
trespass upon the grounds belonging to any quarantine
reser\^ation, or whenever any person, master, pilot, or
owner of a vessel entering any port of the United States,
shall so enter in violation of section one of the Act entitled
'' An Act to prevent the introduction of contagious or
infectious diseases into the United States," approved
April twenty-ninth, eighteen hundred and seventy-eight
or in violation of the quarantine regulations framed under
said Act, such person, trespassing, or such master, pilot,
or other person in command of a vessel shall, upon con-
viction thereof, pay a fine of not more than three hundred
dollars, or be sentenced to imprisonment for a period of
not more than thirty days, or shall be punished by both
fine and imprisonment, at the discretion of the court. And
it shall be the duty of the United States attorney in the
district where the misdemeanor shall have been com-
mitted to take immediate cognizance of the offense, upon
report made to him by any medical officer of the IMarine-
Hospital Sei-vice, or by any officer of the customs sei^ice,
or by any State officer under authority of section five of
said Act.^

§ 1549. In cases cholera and other certain diseases sec-
retary makes rules and regulations to prevent spread of
disease. Punishment for violation. Tliat whenever it
shall be made to appear to the satisfaction of the Presi-
dent that cholera, yellow-fever, smallpox, or plague exists
in any State or Territoi*y, or the District of Columbia, and
that there is danger of the spread of such disease into
other States, Territories, or the District of Columbia, he
is hereby authorized to cause the Secretary of the Treas-
ury to promulgate sucli rules and regulations as in his
judgment may be necessary to prevent the spread of such

1— Sec. 1, Act Aug. 1, 1888, 25
Rtat. 355.

Violation of Quarantine Laws 1145

disease from one State or Territoiy into another, or from
any State or Territory into the District of Columbia, or
from the District of Columbia into any State or Territory,
and to employ such inspectors and other persons as may
be necessary to execute such regulations to prevent the
spread of such disease. The said rules and regulations
shall be prepared by the Supervising Surgeon-General of
the Marine-Hospital Service under the direction of the
Secretary of the Treasury. And any persons who shall
willfully violate any rule or regulation so made and pro-
mulgated shall be deemed guilty of a misdemeanor, and
upon conviction shall be punished by a fine of not more
than five hundred dollars or imprisonment for not more
than two years, or both, in the discretion of the court.^

§ 1550. Any officer or agent, etc., for U. S. at any quar-
antine station who violates the rules and regulations as
provided in section one this act guilty of misdemeanor.
That any officer or person acting as an officer, or agent of
the United States at any quarantine station, or other per-
son employed to aid in preventing the spread of such
disease, who shall w^illfully violate any of the quarantine
laws or the United States, or any of the rules and regula-
tions made and promulgated by the Secretarj^ of the
Treasury as provided for in section one of this Act, or any
lawful order of his superior officer or officers, shall be
deemed guilty of a misdemeanor, and upon conviction
shall be punished by a fine of not more than three hundred
dollars or imprisonment for not more than one year, or
both, in the discretion of the court.^

§ 1551. Common carrier violating quarantine laws,
rules and regulations. Officers and agents. Punishments.
That when any common carrier or officer, agent, or em-'
ployee of any common carrier shall willfully violate any

2— Sec. 1, Act Mar. 27, 1890, 26 3— Sec. 2, Act Mar. 27, 1890, 26
Stat. 31. Stat. 31.

1146 Criminal Law

of the quarantine laws of the United States, or the rules
and regulations made and promulgated as provided for in
section one of this Act, such common carrier, officer, agent
or employee shall be deemed guilty of a misdemeanor, and
shall, on conviction, be punished by a fine of not more
than five hundred dollars, or imprisonment for not more
than two years, or both, in the discretion of the court.*

§ 1552. Punishment for moving diseased carcasses from
one state to another, penalty, Act March 3, 1891. That it
shall be unlawful for any person to transport from one
State or Territory or the District of Columbia into any
other State or Territory or the District of Columbia, or
for any person to deliver to another for transportation
from one State or Territoiy or the District of Columbia
into another State or Territory or the District of Colum-
bia the carcasses of any cattle, sheep, or swine, or the food
products thereof, which have been examined in accord-
ance with the provisions of sections three and four of this
Act and which on said examination have been declared by
the inspector making the same to be unsound or diseased.
Any person violating the provisions of this section shall
be deemed guilty of a misdemeanor and punished for each
offense as provided in section four of this act.^

§ 1553. Importing diseased cattle, etc., punishment for
knowingly doing so. That the importation of neat cattle,
sheep, and otlier ruminants, and swine, which are diseased
or infected with any disease, or which shall have been
exposed to such infection within sixty days next before
their exportation, is hereby prohibited; ;ni(l any person
who shall knowingly violate the foregoing provision shall
be deemed guilty of a misdemeanor, and shall, on convic-
tion, be punished by :i fine not exceeding five thousand
dollars, or by imprisonment not exceeding three years,

4— Sec. 3, Act Mar. 27, 1890, 2G T)— Sec. 5, Act Mar. 3, 1891, 26

Mtnt. .'{2. Stat. 1090.

Vioi.ATTON OK Quarantine Laws 1147

and any vessel or vehicle used in such unlawful importa-
tion with the knowledge of the master or owner of said
vessel or vehicle that such importation is diseased or
has been exposed to infection as herein described, shall
be forfeited to the United States.^

§ 1554. Master or owner violating Act March 3, 1901,
or any regulations thereunder in relation to inspection of
vessels on the prevention of diseases. The Supervising
Surgeon-General, with the approval of the Secretary of
the Treasury, is authorized to designate and mark the
boundaries of the quarantine grounds and quarantine
anchorages for vessels which are reserved for use at each
United States quarantine station; and any vessel or officer
of any vessel or other person, other than State or munici-
pal health or quarantine officers, trespassing or otherwise
entering upon such grounds or anchorages in disregard,
of the quarantine rules and regulations, or without per-
mission of the officer in charge of such station, shall be
deemed guilty of a misdemeanor and subject to arrest,
and upon conviction thereof be punished by a fine of not
more than three hundred dollars or imprisonment for not
more than one year, or both, in the discretion of the court.
Any master or owner of any vessel, or any person violat-
ing any provision of this Act or any rule or regulation
made in accordance with this Act, relating to inspection
of vessels or relating to the owner, or agent of any vessel
making a false statement relative to the sanitary condi-
tion of said vessel or its contents or as to the health of any
passenger or person thereon, shall be deemed guilty of a
misdemeanor and subject to arrest, and upon conviction
thereof be punished by a fine of not more than five hun-
dred dollars or imprisonment for not more than one year,
or both, in the discretion of the court.''^

6— See. 6, Act Aug. 30, 1890, 26 7— Sec. 10, Act Mar. 3, 1901, 31

Stat. 416. Stat. 1086.

1148 Criminal Law

§ 1555. Illegal for merchant or other vessel from for-
eign port to enter U. S. port except as prescribed by Act
Feb. 15, 1893. It shall be unlawful for any merchant ship
or other vessel from any foreign port or place to enter
any port of the United States except in accordance with
the provisions of this Act and with such rules and regula-
tions of State and municipal health authorities as may be
made in pursuance of, or consistent with this Act; and any
such vessel which shall enter, or attempt to enter, a port
.of the United States in violation thereof shall forfeit to
the United States a sum, to be awarded in the discretion
of the court, not exceeding five thousand dollars, which
shall be a lien upon said vessel, to be recovered by pro-
ceedings in the proper district court of the United States.
In all such proceedings the United States district attor-
ney for such district shall appear on behalf of the United
vStates; and all such proceedings shall be conducted in
accordance with the rules and laws governing cases of
seizure of vessels for violation of the revenue laws of the
United States.*

§ 1556. Secretary of Agriculture may make regulations
and quarantine against diseased stock. That the Secre-
taiy of Agriculture shall have authority to make such
regulations and take such measures as he may deem
proper to prevent the introduction or dissemination of the
contagion of any contagious infections, or communicable
disease of animals from a foreign country into the United
States or from one State or Territory of the United States
or the District of Columbia to another, and to seize, quar-
antine, and dispose of any liay, straw, forage, or similar
nniterial, or any meats, liides, or otlier animal products
foming from an infected foreign country to the United
States, or from one State or Territory or the District of
Cohnn]>ia in transit to another State or Territory or the

8— Sec. 1, Act Feb. 15, 1893, 27
Stnt. 449.

Violation of Quarantine Laws 1149

District of Columbia whenever in his judgment such
action is advisable in order to guard against the introduc-
tion or spread of such contagion.^

§ 1557. Violations Act Feb. 2, 1903, and regulations
thereunder. That any person, company, or corporation
knowingly violating the provisions of this Act , or the
orders or regulations made in pursuance thereof shall be
guilty of a misdemeanor, and on conviction shall be pun-
ished by a fine of not less than one hundred dollars nor
more than one thousand dollars, or by imprisonment not
more than one year, or by both such fine and imprison-
ment.^"

§ 1558. Violating rules of Secretary of Agriculture in
shipping condemned carcasses of cattle, etc., from one
state to another. The Secretary of Agriculture is hereby
authorized to make such rules and regulations as he may
decide to be necessary to prevent the transportation from
one State or Territory or the District of Columbia into
any other State or Temtory or the District of Columbia,
or to any foreign country, of the condemned carcasses or
parts of carcasses of cattle, sheep, and swine, which have
been inspected in accordance with the provisions of this
Act. Any person, company, or corporation owning or op-
erating any such slaughter-house, abattoir, or meat
curing, packing, or canning establishment, or any em-
ployee of the same, that shall willfully violate any
provision of this Act shall be deemed guilty of a misde-
meanor, and, on conviction thereof, shall be punished for
each offense by a fine not exceeding one thousand dollars
or imprisonment not exceeding one year, or by both
said punishments, in the discretion of the court.^^

9— Sec. 2, Act Feb. 2, 1903, 32 11— Sec. 4, Act Mar. 2, 1895, 28

Stat. 792. Stat. 732, Amendment.

10— Sec. 3, Act Feb. 2, 1903, 32
Stat. 792.

1150 Criminal Law

§ 1559. Inspection of carcasses of cattle the reg-ulation
Agriculture Department, defacing stamp, etc. — Punish-
ment. That said examination sliall be made in the man-
ner provided by rules and regulations to be prescribed
by the Secretary of Agriculture, and after said examina-
tion the carcasses and products of all cattle, sheep, and
swine found to be free of disease and wholesome, sound,
and fit for human food shall be marked, stamped, or
labeled for identification as may be provided by said
rules and regulations of the Secretary of Agriculture.
Any person who shall forge, counterfeit, simulate, imi-
tate, falsely represent, or use without authority, or know-
ingly and wrongfully alter, deface, or destroy any of
the marks, stamps, or other devices provided for in the
regulations of the Secretaiy of Agriculture, of any such
carcasses or their products, or w4io shall forge, counter-
feit, simulate, imitate, falsely represent, or use without
authority, or knowingly and wrongfully alter, deface, or
destroy any certificate or stamp provided in said regu-
lations, shall be deemed guilty of a misdemeanor, and
on conviction thereof shall be punished by a fine not
exceeding one thousand dollars, or imprisonment not
exceeding one year, or by both said punishments, in the
discretion of the court.^'^

§ 1560. No railroad shall receive for shipment cattle
from one quarantined State to another. That no rail-
road company ov tlic owners or masters of any steam
or sailing or other vessel or boat shall receive for trans-
portation or transport from any quarantined State or
Territoiy or tlie District of Columl)ia, or from the quaran-
tined poiticiii of any State or Territory or District of
Coluni))ia, into any otiier State or Territory or tlic Dis-
trict of Cohiinl)ia, any catth* or oilier live stock, except
as liereinaflci- ])ro\i(]c<I; nor shall any person, company,

12— Sec. 4, Act Mar. 1895, 28
Htat. 7.32, Amendment.

Violation of Quarantine Laws 1151

or corporation deliver for such transportation to any
railroad company, or to the master or owner of any
boat or vessel, any cattle or other live stock, except as
hereinafter provided; nor shall any person, company, or
corporation drive on foot, or cause to be driven on foot,
or transport in private conveyance or cause to be trans-
ported in private conveyance, from a quarantined State
or Territoiy or the District of Columbia, or from the
quarantined portion of any State or Territory or the
District of Columbia, into any other State or Territoiy
or the District of Columbia, any cattle or other live
stock, except as hereinafter provided. ^^

§ 1561. Secretary may make regulations for shipping
cattle, etc. That it shall be the duty of the Secretary of
Agriculture, and he is hereby authorized and directed,
when the public safety will permit, to make and promul-
gate rules and regulations which shall permit and gov-
ern the inspection, disinfection, certification, treatment,
handling, and method and manner of delivery and ship-
ment of cattle or other live stock from a quarantined
State or Territory or the District of Columbia, and from
the quarantined portion of any State or Territoiy or
the District of Columbia, into any other State or Terri-
tory or the District of Columbia; and the Secretary of
Agriculture shall give notice of such rules and regula-
tions in the manner provided in section two of this Act
for notice of establishment of quarantine.^*

§ 1562. Cattle may be moved from quarantine in ac-
cordance with regulations of Secretary of Agriculture.

That cattle or other live stock may be moved from a
quarantined portion of any State or Territory or the
District of Columbia, into any other State or Territory
or the District of Columbia, under aiid in compliance

13— See. 2, Act Mar. 3, 1905, 33 14— Sec. 3, Act Mar. 3, 1905, 33

Stat. 1264. Stat. 1265.

1152 Criminal Law

witli the rules and regulations of tlie Secretary of Agri-
culture, made and promulgated in pursuance of the pro-
visions of section three of this Act; but it shall be un-
lawful to move, or to allow to be moved, any cattle or
other live stock from any quarantined State or Territory
or the District of Columbia, or from the quarantined
portion of any State or Territory or the District of Co-
lumbia, into any other State or Territoiy or the District
of Columbia, in manner or method or under conditions
other than those prescribed by the Secretary of Agri-
culture."

§ 1563. Punishment for violating provision of Act of
March 3, 1905. That any person, company, or coi'pora-
tion violating the provisions of sections two or four of
this Act shall be guilty of a misdemeanor, and on con-
viction shall be punished by a fine of not less than one
hundred dollars nor more than one thousand dollars, or
by imprisonment not more than one year, or by both
such fine and imprisonment.^^

§ 1564. Entering or departing into or from any quaran-
tine grounds in violation of law — And an officer making
false statement — Misdemeanor. That any vessel, or any
officer of any vessel, or other person other than State
health or quarantine officers, entering within the limits
of any quarantine grounds and ancliorages, or any
quarantine station and anchorage, or departing there-
from, in disregard of tlie quarantine rules and regula
tions or without the permission of the officer in charge
of such quarantine ground and anchorage, or of such
quarantine station and anchorage, shall be deemed guilty
of a misdemeanor, and upon conviction thereof shall be
puiiislicd by a fine of not more than three hundred dol-
lars or by imprisonment for not more than one year,

15— Sec. 4, Act Mnr. 3, 1905, 33 16— Sec. 6, Act Mar. 3, 1005, 33

Stat. 1265. Stat. 1265.

Violation of Quarantine Laws 1153

or both, in the discretion of the court. That any master
or owner of any vessel violating any provision of this
Act, or any provision of an Act entitled ''An Act grant-
ing additional powers and imposing additional duties on
the Marine-Hospital Service, approved February fif-
teenth, eighteen hundred and ninety-three, or violating
any rale or regulation made in accordance with this Act
or said Act of February fifteenth, eighteen hundred and
ninety-three, relating to the inspection of vessels or to
the prevention of the introduction of contagious or in-
fectious diseases into the United States, or any master,
owner, or agent of any vessel making a false statement
relative to the sanitary condition of such vessel or its
contents, or as to the health of any passenger or person
thereon shall be deemed guilty of a misdemeanor, and on
conviction thereof be punished by a fine of not more than
five hundred dollars or imprisonment for not more than
one year, or both, in the discretion of the court."

17— Sec. 4, Act June 19, 1906, 34
Stat. 300.

C. K— 73

CHAPTER LXXVIX

VIOLATIONS OF INTEKNAL REVENUE

§ 1566. Income tax provisions, pun- § 1577.
ishment for violation of
revenue laws and regula-
tions.

§ 1567. Produce sale for future de-
livery; punishment for § 1578.
delivery without stamped
bill, produce, sales of, on § 1579.
exchange.

§ 1568. Stamps must be cancelled.

§ 1569. Fraudulently using, cutting, § 1580.
and attaching and affixing
adhesive stamp or impres-
sions of stamps.

§ 1570. Schedule "A" stamp taxes, § 1581.
punishment for sale, etc.,
without affixing stamp.

§ 1571. Statement intended to make § 1582.
one believe that the price
is part of tax imposed, § 1583.
punished.

§ 1572. Making, signing, or accept-
ing instruments without
stamps ; punishment. § 1584.

§ 1573. Unlawful for any deputy,
or collector, or employee
to divulge information, § 1585.
etc.

§ 1574. riinishiiiont for refusing the

inspection of mine, etc., 8 I5M6.
under child labor provi-
sion.

§ 1575. The pricn of ticket and name S 1587.
of vendor must be stamped
on face. § 1588.

fi 157G. Title IV, Act Feb. 24, 1919.

1 1 54

Provisions imposing addi-
tional tax on liquors,
purifying and rectifying
within meaning of Sec.
3244, E. S.

For failing to pay tax and
make return, etc.

Fraudulently executing doc-
uments relating to revenue
laws.

Defrauding or attempting
to defraud U. S. Govern-
ment in carrying on dis-
tillery.

General revenue Act July 20,
1868, fraudulent gauging,
etc.

Meaning of words "white
phosphorus. ' '

One thousand dollars fine
for failing to conduct
business according to reg-
ulations.

Penalty for failing to affix,
etc., stamp according to
Government regulations.

Collector shall furnish
stamps to be sold manu-
facturer.

I'ackages of matches found
witliout stamps shall 1)0
forfeited to the U. S.

Penalty for defacing stamps
on matches.

Penalty for insufficient
stamps.

Violations of Internal Revenue

1155

§1589. Penalty for failing to use §1605.
stamps on matches.

§ 1590. Manner of packing matches,

must be stamped. § 1606.

§ 1591. Penalty for match manufac-
turer who fails to register.

§ 1592. Tobacco manufacturer must § 1607.
secure certificate showing
machines, etc.; punishment
for failure. § 1608.

§ 1593. Manufacturer of tobacco
must post sign on build-
ing.

§ 1594. A tol)acco peddler must ex- § 1609.
hibit certificate on demand
of revenue agent; penalty
for failure. § 1610.

§ 1596. Eelanding tobacco, snuff, or
cigars with intent to de-
fraud. § 1611.

§ 1597. Manufacturer of cigars fail-
ing to give bond; penalty.

§ 1598. Manufacturer must keep
sign posted.

§ 1599. Wilful neglect in making

true inventory and ab- § 1612.
stracts, by manufacturer
of cigars.

§ 1600. Cigars not weighing more

than three pounds per § 1613.
thousand must be packed
in boxes not used before.

§ 1601. Penalty for failure to put
notice on each box cigars.

§ 1602. Cigars must not be removed
from manufactory with-
out boxing.

§ 1603. The actual maker of cigars
upon commission contract
must affix stamp before
the same are removed.

§ 1604. Cigars imported must pay

import duties and tax re- § 1616,
quired of manufacturer in
U. S.

§ 1614.

§ 1615.

Imported cigars must be
properly packed and
stamped before sale.

Penalty for purchasing or
receiving unbranded and
unstamped cigars.

Washed or restored revenue
stamp; penalty under Act
Aug. 27, 1894.

Oleomargarine must be sold
in wooden or paper pack-
ages ; penalty for viola-
tion.

Putting on a counterfeit or
used stamp, etc., on pack-
age of tobacco, a felony.

Wilfully refusing to cancel
stamp after package or
box is emptied is a crime.

Taxes in addition to import
duties on tobacco must be
paid, or officer permitting
same to pass without com-
pliance with provisions is
guilty of crime.

A dealer in leaf tobacco
who wilfully neglects or
wilfully refuses to keep
books as required.

Punishment for selling or
offering to sell snuff or
manufactured tobacco not
put up in packages and
stamped.

Unlawful to purchase or se-
cure tobacco for sale not
branded or marked; pun-
ishment.

Manufacturing tobacco for
another on commission,
tax must be paid by the
actual maker; fraud;
punishment.

Selling or removing without
payment of the stamp de-
noting tax unlawful.

1156

Ceimixal Law

§ 1617. Eemoving from any manu-
factory any tobacco or
snuff without being
stamped in proper pack-
ages.

§ 1618. The kind or brand that must
be put upon package of
flour, penalty for viola-
tion.

§ 1619. Falsely marking unbranded
packages of flour, penalty.

§ 1620. Failure to label packages of
flour, penalty.

§ 1621. Tax stamps must be put up-
on all barrels or packages,
penalty.

§1622. Imported mixed flour
marked, etc., and stamped
as such flour made and
packed in U. S., penalty
for violation.

S 162.3. Stamp on empty package of
mixed flour must be de-
stroyed, penalty.

§ 1624. Purchasing or securing for
sale flour upon which tax
has not been paid, penalty.

§ 1625. Penalty for subsequent of-
fenses is imprisonment.

FILLED CHEESE

§ 1626. All retail and wholesale
dealers must display sign,
penalty.

§ 1627. Stamp on empty packages
of filled cheese must be
destroyed.

§ 1628. Manufacturer of filled cheese
shall post notice on pack-
age, penalty.

§ 1629. Retailers in filled cheese
shall sell from original
stamped packages, viola-
tion.

S 16.30. Manufacturer of filled
cheese, regulations and
pcnalticB.

§ 1631. Manufacturer of oleomar-
garine defrauding or at-
tempting to defraud Gov-
ernment of tax.

§ 1632. Wilfully removing or defac-
ing stamps on oleomargar-
ine, misdemeanor.

§ 1633. Stamps on emptied pack-
ages of oleomargarine
must be destroyed, penalty
for violation.

§ 1634. Customs officer permitting
imported oleomargarine to
pass out of his possessioTi,
etc., without complying
with law.

§ 1635. Notice by manufacturer of
oleomargarine must be
posted on every package.

§ 1636. Violating the act of Aug.
2, 1886, relating to oleo-
margarine.

§1637. Definition of "butter" and
affixing penalties Act May
9, 1902.

§ 1638. Renovated butter, how
marked.

§ 1639. Wholesale dealer in oleomar-
garine must keep book as
required by commission of
internal revenue.

FOOD AND DRUGS

§ 1640. Food and Drugs Act of

.Tune 30, 1906, not affected

by opium act.
§ 1641. Agents appointed to enforce

law regarding opium.
§1642. Penalty for violation.
§ 1643. Only registered porson can

possess drugs.
§ 1044. Special taxes imposed by

this Act not inconsistent

with revised statutes.
§ 1645. Provisions of this Act not

to apply to medicinal

preparations.

Violations of Internal Revenue 1157

§ 1646. Collector to furnish certified § 1649. Written order from physi-

copies of statements to be cian, etc., required to ob-

filed in his oflSce. tain drugs.

§ 1647. Unlawful for any person to § 1650. Any person must pay tax

ship or deliver drugs with- to manufacture, import,

out being registered and etc., opium and cocoa

paying tax. leaves.

§ 1648. Must render true and cor- § 1651. General revenue act July 20,

rect statement to collector 1868, fraudulent gauging,

concerning drugs. etc.

INCOME TAX PROVISIONS

§ 1566. Punishment for violation of revenue laws and
regulations, (a) Any person required under Titles V,
VI, VII, VIII, IX, X, or XII, to pay, or to collect, account
for and pay over any Tax, as required by law or regula-
tions made under authority thereof, to make a return or
supply any information for the purpose of computation,
assessments or collection of any such tax who fails to pay,
collect, or truly account for and pay over any such tax,
make any return or supply any such information at the
time or times required by law or regulation, shall in
addition to any penalties provided by law be subject to
a penalty of not more than $1,000.

(b) Any person who refuses to pay, collect or truly
account for, and pay over any such tax, make any such
return or supply such information at such time or times
required by law^ or regulation, or who wilfully attempts in
any manner to evade such tax shall be guilty of a misde-
meanor and in addition to other penalties provided by law
shall be fined not more than $10,000 or imprisoned not
more than one year, or both, together with the costs of
prosecution.

(c) Any person who wilfully refuses to pay, collect or
truly account for and pay over any such tax, shall in
addition to other penalties provided by law be liable to a
penalty of the amount of the tax evaded, or not paid,

1158 Criminal Law

collected, or not accounted for and paid over, to be
assessed and collected in the same manner as taxes are
assessed and collected. Provided, further, That no pen-
alty shall be assessed under this subdivision for any
offense for which a penalty has been recovered under
section 3256 of the revised statutes.

(d) The ''Term" person as used in this section in-
cludes any officer or employee of a corporation, or any
member or employee of a partnership, who as such officer,
employee or member is under a duty to perform the act
in respect of which such violation occurs.^

§ 1567. Produce sale for future delivery punishment or
delivery without stamped bill — Produce, sales of, on ex-
change. Upon each sale, agreement of sale, or agreement
to sell (not including so-called transferred or scratch
sales), any products or merchandise at, or under the niles
or usages of, any exchange, or board of trade, or other
similar place, for future delivery, for each $100 in value
of the merchandise covered by said sale or agreement of
sale or agreement to sell, 2 cents, and for each additional
$100 or fractional part thereof in excess of $100, 2 cents:
'Provided, That on every sale or agreement of sale or
agreement to sell as aforesaid there shall be made and
delivered by the seller to the buyer a bill, memorandum,
agreement, or other evidence of such sale, agreement of
sale, or agreement to sell, to which there shall be aflixed a
lawful stamp or stamps in value equal to tlie amount of
the tax on such sale. Provided further. That sellers of
commodities descri])ed herein, having paid the tax pro-
vided by this subdivision, may transfer such contracts to
a ch'aring-house corporation or association, and such
transfer shall not be deemed to be a sale, or agreement of
sale, or an agreement to sell within the provisions of this

1— Act Feb. 24, 1919, Sec. 1.308,
40 Stat, at L.arge 1143.

Violations of Internal Revenue 1159

Act, provided that such transfer sliall not vest any benefi-
cial interest in such clearing-house association but shall
be made for the sole purpose of enabling such clearing-
house association to adjust and balance the accounts of
the members of such clearing-house association on their
several contracts. Every such bill, memorandum, or other
evidence of sale or agreement to sell shall show the date
thereof, the name of the seller, the amount of the sale, and
the matter or thing to which it refers; and any person
liable to pay the tax as herein provided, or anyone who
acts in the matter as agent or broker for such person, who
makes any such sale or agreement of sale, or agreement to
sell, or who, in pursuance of any such sale, agreement of
sale, or agreement to sell, or who, in pursuance of any
such sale, agreement of sale, or agreement to sell, delivers
any such products or merchandise without a bill, memo-
randum, or other evidence thereof as herein required, or
who delivers such bill, memorandum, or other evidence
of sale, or agreement to sell, without having the proper
stamps affixed thereto, with intent to evade the foregoing
provisions, shall be deemed guilty of a misdemeanor, and
upon conviction thereof shall pay a fine of not exceeding
$1,000 or be imprisoned not more than six months, or
both.8

§ 1568. Stamps must be canceled. That whenever an
adhesive stamp is used for denoting any tax imposed by
this title, except as herein provided, the person using
or affixing the same shall write or stamp or cause to be
written or stamped thereupon the initials of his or its
name, and the date upon which it is attached or used, so
that the same may not again be used ; Provided, That the
Commissioner may prescribe such other method for the
cancellation of such stamps as he may deem expedient.^

2— See. 5, Act Feb. 24, 1919, 40 3— Act Feb. 24, 1919, Sec. 1104,
Stat. 1136. 40 Stat, at Large 1134.

1160 Criminal Law

§ 1569. Fraudulently using, cutting", and attaching and
afl^ing adhesive stamp or impressions of stamps, (a)
That whoever fraudulently cuts, tears, or removes from
any vellum, parchment, paper, instrument, writing, pack-
age, article, upon which a tax is imposed by this title,
any adhesive stamp, or the impression of a stamp die,
plate, or other article provided, made or used, m pursu-
ance with this title ;

(b) Fraudulent uses, joins, fixes, or places to, with or
upon any vellum, parchment, paper, instrument, writing,
package, or article, upon which any tax is imposed by
this title (1), any adhesive stamp, or the impression of
any stamp, die, plate, or other article, which has been
cut, torn, or removed, from any other vellum, parchment,
paper, instrument, writing, package, or article, upon
which any tax is imposed, by this title; or (2) any adhe-
sive stamp or the impression of any stamp, die, plate, or
other article of insufficient value; or (3) any forged or
counterfeit stamp, or the impression of a forged or coun-
terfeited stamp, die, plate or other article;

(c) Wilfully removes or alters the cancellation, or de-
facing marks of, or otherwise prepares any adhesive
stamp, with intent to use, or cause the same to be used,
after it has already been used, or knowingly or wilfully
buys, sells or offers for sale, or gives away, any washed
or restored stamp to any person for use, or knowingly
uses tlie same;

(d) Knowingly and without lawful excuse (the bur-
den of proof of such excuse being on the accused) has
any washed and restored stamp or altered stamp, which
has been removed from any vellum, parchment, paper,
instrument, writing, package or article; is guilty of a
misdemeanor, and upon conviction shall be punished by
a fine not more than $1,000, or by imprisonment for not
more than five years, or both, and any reused, cancelled
or counterfeit stamp and the vellum, parchment, docu-

Violations of Internal Revenue 1161

ment, paper, package or article upon which it is placed
or impressed shall be forfeited to the United States.*

§1570. Schedule "A" stamp taxes, punishment for
sale, etc., without affixing stamp. On all sales, or agree-
ments to sell, or memoranda of sales or deliveries of, or
transfers of legal title to shares or certificates of stock
or of profits or of interest in property or accumula-
tions in any corporation, or to rights to subscribe for
or to receive such shares or certificates, whether made
upon or shown by the books of the corporation, or by
any assignment in blank, or by any delivery, or by any
paper or agreement or memorandum or other evidence
of transfer or sale, whether entitling the holder in any
manner to the benefit of such stock, interest, or rights,
or not, on each $100 of face value or fraction thereof,
2 cents, and where such shares are without par or face
value, the tax shall be 2 cents on the transfer or sale
or agreement to sell on each share, unless the actual value
thereof is in excess of $100 per share, in which case
the tax shall be 2 cents on each $100 of actual value or
fraction thereof: Provided, That it is not intended by
this title to impose a tax upon an agreement evidencing
a deposit of certificates as collateral security for money
loaned thereon, which certificates are not actually sold,
nor upon the delivery or transfer for such purpose of
certificates so deposited. Provided further, That the tax
shall not be imposed upon deliveries or transfers to a
broker for sale, nor upon deliveries or transfers by a
broker to a customer for whom and upon whose order he
has purchased same, but such deliveries or transfers shall
be accompanied by a certificate setting forth the facts:
Provided, further. That in case of sale where the evidence
of transfer is shown only by the books of the corporation
the stamp shall be placed upon such books; and where the

4— Act Feb. 24, 1919, Sec. 1103,
40 Stat, at Large 1134.

1162 Criminal Law

change of ownership is by transfer of the certificate the
stamp shall be placed upon the certificate ; and in cases of
an agreement to sell or where the transfer is by delivery
of the certificate assigned in blank there shall be made
and delivered by the seller to the buyer a bill or memo-
randum of such sale, to which the stamp shall be affixed;
and everj^ bill or memorandum of sale or agreement to
sell before mentioned shall show^ the date thereof, the
name of the seller, the amount of the sale, and the matter
or thing to which it refers. Any person liable to pay the
tax as herein provided, or anyone who acts in the matter
as agent or broker for such person, who makes any such
sale, or who in pursuance of any such sale delivers any
certificate or evidence of the sale of any stock, interest
or right, or bill or memorandum thereof, as herein re-
quired, without having the proper stamps affixed thereto
with intent to evade the foregoing provisions, shall be
deemed guilty of a misdemeanor, and upon conviction
thereof shall pay a fine of not exceeding $1,000, or be im-
prisoned not more than six months, or both.^

§ 1571. Statement intended to make one believe that
the price is part of tax imposed — Punished. That who-
ever in connection with the sale or lease, or the offer of
sale or release, of any article, or for the purpose of mak-
ing such sale or lease, makes any statement written or
oral, (1) intended or calculated to lead any person to be-
lieve that any part of price at which such article is sold or
leased or offered for sale or lease, consists of a tax im-
posed by anlliority of the United States or (2) ascribing
any particular part of such price to a tax inijjoscd under
tlic autliority of tlio United States, knowing tliat such
statement is false or tliat tlic tax is not so great as the
portion of sucli ])iice ascriljed to such tax, shall be
guilty of a misdemeanor and n|)on conviction thereof

5— Sec. 4, Act Feb. 24, 1919, 40
Stnt. 1135.

Violations of Internal Revenue 1163

shall be punished by a fine of not more than $1,000, or
by imprisonment for one year, or both.*^

§ 1572. Making-, siting, or accepting instruments,
without stamps — Punishment. That whoever makes,
signg, issues or accepts, or causes to be made, signed, is-
sued or accepted, any instrument, document or paper
of any kind or description, whatever, without the full
amount of the tax thereon being duly paid;

(b) Consigns, or ships, or causes to be consigned or
shipped by parcel post, package or article without the
full amount of tax being fully paid ;

(c) Manufactures, or imports arid sells, or offers for
sale, or causes to be manufactured or imported and sold,
or offered for sale any playing cards, package or other
article, without the full amount of tax being duly paid;

(d) Makes use of any adhesive stamps to denote and
any tax imposed by this title, without canceling or oblit-
erating such stamp as prescribed by section 1104; is guilty
of a misdemeanor and upon conviction thereof shall pay
a fine of not more than one hundred dollars for each
offense.''

§ 1573. Unlawful for any deputy, or collector, or em-
ployee to divulge information, etc. It shall be unlawful
for any collector, deputy collector, or agent, clerk, or
other officer or emi^loyee of the United States to divulge
or to make known in any manner whatever not provided
by law to any person the operations, style of work, or
apparatus of any manufacturer of producer visited by
him in the discharge of his official duties, or the amount
or source of income, profits, losses, expenditures, or any
particular thereof, set forth or disclosed in any income
return, or to permit any income return or copy thereof or
any book containing an abstract or particulars thereof to

6— Act Feb. 24, 1919, Sec. 1319, 7— Act Feb. 24, 1919, Sec. 1102,
40 Stat, at Large 1148. 40 Stat. 1133.

1164 Criminal Law

be seen or examined by any person except as provided
by law; and it shall be unlawful for any person to print
or to publish in any manner whatever not provided by law
any income return, or any part thereof or source of in-
come, profits, losses, or expenditures, appearing in any
income return. And any offense against the foregoing
provision shall be a misdemeanor and be punished by a
fine not exceeding $1,000, or by imprisonment not exceed-
ing one year, or both, at the discretion of the court; and
if the offender to be an officer or employee of the United
States he shall be dismissed from office or discharged
from employment.*

§ 1574. Punishment for refusing the inspection of
mine, etc., under child labor provision. That for the
purpose of this act, the commissioner or any other person
duly authorized by him, shall have the authority to
enter, and inspect at any time, any mine, quariy, mill,
cannery, workshop, factory, or manufacturing establish-
ment. The Secretary of Labor, or any person duly au-
thorized by him, shall, for the purpose of complying
with request, of the commissioner to make such inspec-
tion, have like autliority, and shall make report to the
commissioner of inspections, made under such authority
in such for as may be prescribed by the Commissioner
with the approval of the secretaiy of the treasury.

Any person who refuses or obstructs entry or inspec-
tion authorized by this section shall be punished by a
fine of not more than $1,000, or by imprisonment for not
more than one year, or both such fine and imprison-
ment.®

§ 1575. The price of ticket and name of vendor must
be stamped on face, (c) The term "Admission" as
used in this title includes scats and tables, reserved or

8— Act Feb. 24, 1919, Sec. 1317, 9— Act Feb. 24, 1919, Sec. 1206,

40 Stat, at Largo 1146, amending 40 Stat. 1140.
Sec. .3167, Rev. Stat., 39 Stat. 773.

Violations of Internal Revenue 1165

otherwise, and other similar accommodations, and the
charges made therefor.

(d) The price (exclusive of the tax to be paid by the
person paying for the admission) at which every admis-
sion ticket or card is sold shall be conspicuously and
indelibly printed, stamped or written on the face or
back, thereof, together with the name of the vendor, if
sold other than at the ticket office of the theater, opera,
or other place of amusement. Whoever sells an admis-
sion ticket or card on which the name of the vendor and
the price is not so printed, stamped and written thereon,
is guilty of a misdemeanor and upon conviction thereof
shall be fined not more than $100.-^°

§ 1576. Title IV: Act Feb. 24, 1919, revenue, estate
tax, penalty. That whoever knowingly makes a false
statement in any notice, or return, required to be filed
under this title shall be liable to a penalty of not exceed-
ing $5,000, or imprisonment not exceeding one year, or
both."

§ 1577. Provisions imposing additional tax on liquors,
purifjdng and rectifying within meaning of § 3244 Rev.
Stat. That in addition to the tax now imposed by this
Act on distilled spirits there shall be levied, assessed,
collected, and paid a tax of 15 cents on each proof gallon
and a proportionate tax at a like rate on all fractional
parts of such proof gallon on all distilled spirits or wines
hereafter rectified, purified, or refined in such manner,
and on all mixtures hereafter produced in such manner,
that the person so rectifying, purifying, refining, or
mixing the same is a rectifier within the meaning of sec-
tion thirty-two hundred and forty-four, Revised Stat-
utes, as amended, and on all such articles in the possession
of the rectifier on the day this Act is passed: Provided,

10— Act Feb. 24, 1919, 40 Stat. 11— Act Feb. 24, 1919, Sec. 410,

112L 40 Stat. 1101.

1166 Criminal Law

That this tax shall not apply to gin produced by the
redistillation of a pure spirit over juniper berries and
other aromatics.

When the process of rectification is completed and the
tax prescribed by this section has been paid, it shall be
unlawful for the rectifier or other dealer to reduce in
proof or increase in volume such sports or wine by the
addition of water or other substance; nothing herein
contained shall, however, prevent a rectifier from using
again in the process of rectification spirits already rec-
tified and upon which the tax has theretofore been paid.

The tax imposed by this section shall not attach to cor-
dials or liqueurs on which a tax is imposed and paid
under the Act entitled "An Act to increase the revenue,
and for other purposes," approved September eight,
nineteen hundred and sixteen, nor to the mixing and
blending of wines, where such blending is for the sole
purpose of perfecting such wines according to commer-
cial standards, nor to blends made exclusively of two or
more pure straight whiskies aged in wood for a period
not less than four years and without the addition of color-
ing or flavoring matter or any other substance than pure
water and if not reduced below ninety proof: Provided,
Tliat such blended whiskies shall be exempt from tax
under this section only when compounded under the
immediate supervision of a revenue officer, in such tanks
and under such conditions and supervision as the Com-
missioner of Internal Revenue, with the approval of the
Secretary of the Treasury, may prescribe.

All distilled spirits taxable under this section shall be
subject to uniform regulations concerning I lie use thereof
ill llio manufacture, blending, compounding, mixing,
marking, branding, and sale of wliisky and rectified spir-
its, and no discrimination whatsoever shall be made by
reason of a difference in the character of the material
from which same may have been produced.

The business of a rectifier of spirits shall be carried on

Violations or Internal Revenue 1167

and the tax on rectified spirits shall be paid, under such
rules, regulation, and bonds as may be prescribed by
the Commissioner of Internal Revenue, with the approval
of the Secretary of the Treasury.

Any person violating any of the provisions of this
section shall be deemed to be guilty of a misdemeanor and,
upon conviction, shall be fined not more than $1,000 or
imprisoned not more than two years. He shall, in addi-
tion, be liable to double the tax evaded together with the
tax, to be collected by assessment or on any bond given. ^'^

§ 1578. For failing- to pay tax and make return, etc.
That any individual, corporation, or partnership required
under this title to pay or collect any tax, to make a return
or to supply information, who fails to pay or collect such
tax, to make such return, or to supply such information
at the time or times required under this title, shall be
liable to a penalty of not more than $1,000. Any individ-
ual, corporation, or partnership, or any officer or employee
of any corporation or member or employee of a partner-
ship, who willfully refuses to pay or collect such tax,
to make such return, or to supply such information at
the time or times required under this title, or who will-
fully attempts in any manner to defeat or evade the tax
imposed by this title, shall be guilty of a misdemeanor and
shall be fined not more than $10,000 or imprisoned for
not more than one year, or both, together with the costs
of prosecution.^'

§ 1579. Fraudulently executing" documents relating to
revenue laws. Every person who simulates or falsely
or fraudulently executes or signs any bond, permit, entry,
or other document required by the provisions- of this act
(internal-revenue laws), or by any regulation made in
pursuance thereof, or who procures the same to be

12_Sec. 304, Title III, Act Oct. 13— Sec. 253, Act Feb. 6, 1919,

3, 1917, 40 Stat. 310. 40 Stat. 1085.

1168 CKiMiiSrAL Law

falsely or fraudulently executed, or who advises, aids in,
or connives at such execution thereof, shall be imprisoned
for a term not less than one year nor more than five years;
and the property to wliich such false or fraudulent in-
strument relates shall be forfeited.^*

§ 1580. Defrauding or attempting to defraud U. S.
Government in carrying on distillery. Whenever any
person engaged in carrying on the business of a distiller
defrauds or attempts to defraud the United States of the
tax on the spirits distilled by him, or of any part thereof,
he shall forfeit the distillery and distilling-apparatus
used by him, and all distilled spirits and all raw materials
for the production of distilled spirits found in the dis-
tillery and on the distillery premises, and shall be fined
not less than five hundred dollars nor more than five
thousand dollars, and be imprisoned not less than six
months nor more than three years."

§ 1581. General revenue act July 20, 1868. Fraudulent
gauging, etc. Every ganger who makes any false or
fraudulent inspection, gauging, or proof shall pay a pen-
alty of one thousand dollars, and be fined not less than
five hundred dollars nor more than five thousand dollars,
and imprisoned not less than three months nor more than
three years.^®

WHITE PHOSPHORUS MATCHES

§ 1582. Meaning of words "white phosphorous." Thai
for the purposes of tliis Act the words "white phospho-
rus" shall be understood 1o mean the common poisonous
white or yellow phosphorus used in the manufacture of
mutches and not to include the nonpoisonous forms of

14_Act July 20, 18G8, 15 Stat. 10— R. S. 3292, Act July 20, 1868,

Kir,, n. H. 3451. 15 Stat. 147.

15— R. 8. 3257, 15 Stat. 59.

Violations of Interxal Revenue 1169

the nonpoisonous compounds of white or yellow phos-
phorus.^''

§ 1583. One thousand dollars fine for failing to conduct
business according to regulations. That if any manu-
facturer of white phosphorus matches, or any importer
or exporter of matches, shall omit, neglect, or refuse to
do or cause to be done any of the things required by law
in carrying on or conducting his business, or shall do
anything by this Act prohibited, if there be no specific
penalty or punishment imposed by any other section of
this Act for the neglecting, omitting, or refusing to do,
or for the doing or causing to be done, the thing required
or prohibited, he shall be fined one thousand dollars for
each offense, and all the white phosphonis matches owned
by him or in which he has any interest as owner shall be
forfeited to the United States.''^

§ 1584. Penalty for failing to affix, etc., stamp accord-
ing to government regulations. That every manufacturer
of matches shall mark, brand, affix, stamp, or print, in
such manner the Commissioner of Internal Revenue shall
prescribe, on every package of white phosphorus matches
manufactured, sold, or removed by him, the factory nmn-
ber required under section two of this Act. Every such
manufacturer who omits to mark, brand, afiix, stamp, or
print such factory number on such package shall be fined
not more than fifty dollars for each package in respect
of which such offense is committed. Every manufacturer
of white phosphorus matches shall securely affix by past-
ing on each original package containing stamped pack-
ages of white phosphorus matches manufactured by him
a label, on which shall be printed, besides the number of
the manufactoiy and the district in which it is situated,
these words: *' Notice. — The manufacturer of the white

17_Sec. 1, Act Apr. 9, 1912, 37 18— Sec. 13, Act Apr. 9, 1912, 37

Stat. 81. Stat. 83.

C. L.— 74

1170 Ckiminal Law

phospliorus matches herein contained has complied with
all the requirements of law. Every person is cautioned
not to use again the stamps on the packages herein con-
tained under the penalty provided by law in such cases."
Ever}^ manufacturer of white phosphorus matches who
neglects to af&x such label to any original package con-
taining stamped packages of white phosphorus matches
made by him or sold or removed by or for him, and every
person who removes any such label so affixed from any
such original package, shall be fined not more than fifty
dollars for each package in respect of which such offense
is committed.^*

§ 1585. Collector shall furnish stamps to be sold mami-
facturer. That the Commissioner of Internal Revenue
shall cause to be prepared suitable and special stamps for
pajmient of the tax on white phosphorus matches pro-
vided for by this Act. Such stamps shall be furnished
to collectors, who shall sell the same only to duly qualified
manufacturers. Eveiy collector shall keep an account
of the number and denominate values of the stamps sold
by him to each manufacturer. All the provisions and pen-
alties of existing laws governing tlie engraving, issuing,
sale, affixing, cancellation, accountability, effacement, de-
struction, and forgery of stamps provided for internal
revenue are hereby made to apply to stamps provided
for by this Act.^"

§ 1586. Packages of matches found without stamps
shall be forfeited to the U. S. That every manufacturer
of wliito ])liosj)liorus matches who defrauds or attempts
to defraud tlic United States of the tax imposed by this
Act, or any part thereof, sliall forfeit the factory and
nianufacturing apparatus used by him and all tlie wliite

19— Sec. 12, Act Apr. 9, 1912, 37 20— Sec. 8, Act Apr. 9, 1912, 37

Stnt. 83. Stat. 82.

Violations or Internal Eevenue 1171

phosphorus matches and all raw material for the produc-
tion of white phosphorus matches found in the factory
and on the factory premises, or owned by him, and shall
be fined not more than five thousand dollars or be im-
prisoned not more than three years, or both. All pack-
ages of white phosphorus matches subject to tax under
this Act that shall be found without stamps as herein pro-
vided shall be forfeited to the United States.*^^

§ 1587. Penalty for defacing stamps on matches. That
every person who removes, defaces, or causes or permits
or suffers the removal or defacement of any such stamp,
or who uses any stamp or any package to which any
stamp is affixed to cover any other white phosphorus
matches than those originally contained in such package
with such stamp when first used, to evade the tax imposed
by this Act, shall for every such package in respect to
which any such offense is committed be fined fifty dol-
lars, and all such matches shall also be forfeited.^'^

§ 1588. Penalty for insufficient stamps. That every
person who affixes a stamp on any package of white
phosphorus matches denoting a less amount of tax than
that required by law shall for each offense be fined not
more than one thousand dollars or be imprisoned not
more than two years, or both.^^

§ 1589. Penalty for failing- to use stamps on matches.

That eveiy manufacturer of matches who manufactures,
sells, removes, distributes, or offers to sell or distribute
white phosphorus matches without there being affixed
thereto an adhesive stamp, denoting the tax required by

21— Sec. 7, Act Apr. 9, 1912, 37 23— Sec. 5, Act Apr. 9, 1912, 37

Stat. 82. Stat. 82.

22— Sec. 6, Act Apr. 9, 1912, 37
Stat. 82.

1172 Criminal Law

this Act, effectually canceled as provided by the preced-
ing section, shall for each offense be fined not more than
one thousand dollars and be imprisoned not more than
two years. Every manufacturer of matches who, to
evade the tax chargeable thereon or any part thereof
hides or conceals, or causes to be hidden or concealed,
or removes or conveys away, or deposits or causes to be
removed or conveyed away from or deposited in any place
any white phosphorus matches, shall for each offense be
fined not more than one thousand dollars and be impris-
oned not more than two years, or both, and all such
matches shall be forfeited.'^*

§ 1590. Manner of packing matches, must be stamped.

That all white phosphonis matches shall be packed by
the manufacturer thereof in packages containing one hun-
dred, two hundred, five hundred, one thousand, or one
thousand five hundred matches each, which shall then
be packed by the manufacturer in packages containing
not less than fourteen thousand four hundred matches,
and upon white phosphorus matches manufactured, sold,
or removed there shall be levied and collected a tax at
the rate of two cents per one hundred matches, which
shall be represented by adhesive stamps, and this tax
shall be paid by the manufacturer thereof, w^ho shall aflix
to every package containing one hundred, two hundred,
five hundred, one thousand, or one thousand five hundred
matches such stamp of the required value and shall place
thereon the initials of his name and the date on whicli
such stamp is affixed, so that the same may not again be
used. Every person who fraudulent ly makes use of an
adiiesive stamp to denote any tax imposed ])y this section
witliout HO effectually canceling such stanij) shall forfeit
the sum (»r lifly doUars loi- every stamp in respect to
which such offense is connnitted.'^^

24— Sec. 4, Act Apr. O, 1912, 37 25— Sec. 3, Act Apr. 1), VJ\2, 37

Stat, 82. Stat. 81.

Violations of Intekxal Revenue 1173

§ 1591. Penalty for match manufacturer who fails to
register. That eveiy manufacturer of white phosphorus
matches shall register with the collector of internal rev-
enue of the district his name or style, place of manu-
factory, and the place where such business is to be car-
ried on; and a failure to register as herein provided and
required shall subject such person to a penalty of not
more than five hundred dollars. Every manufacturer of
white phosphorus matches shall file wdth the collector
of internal revenue of the district in which his manu-
factory is located, such notices, inventories, and bonds,
shall keep such books and render such returns in relation
to the business, shall put up such signs and afiix such
number to his factory, and conduct his business under
such surveillance of officers and agents as the Commis-
sioner of Internal Revenue, with the approval of the
Secretary of the Treasury, may, by regulation, require.
The bond required of such manufacturer shall be with
sureties satisfactory to the collector of internal revenue
and in the penal sum of not less than one thousand dol-
lars; and the sum of said bond may be increased from
time to time and additional sureties required at the dis-
cretion of the collection or under instructions of the Com-
missioner of Internal Revenue.^^

§ 1592. Tobacco manufacturer must secure certificate
showing machines, etc., punishment for failure. Every
person, before commencing, or, if he has already com-
menced, be'fore continuing, the manufacture of tobacco or
snuff, shall furnish, without previous demand therefor,
to the collector of the district where the manufacture is to
be carried on, a statement in duplicate, subscribed under
oath, setting forth the place, and if in a city, the street
and number of cutting-machines, presses, snuff mills, hand
mills, or other machines; the name, kind, and quality of

26— Sec. 2, Act April 9, 1912, 37
Stat. 81.

1174 Criminal Law

the article manufactured or proposed to be manufactured;
and when the same is manufactured by him as agent for
any other person, or to be sold and delivered to any other
person under a special contract, the name and residence
and business or occupation of the person for whom the
said article is to be manufactured, or to whom it is to be
delivered; and he shall give a bond, to be approved by the
collector of the district, in the sum of not less than two
thousand nor more than twenty thousand dollars, to be
fixed by the collector of the district, according to the
quantum of business proposed to be done by the manu-
facturer, with right of appeal by the manufacturer to the
Commissioner of Internal Revenue in respect to the
amount of said bond, conditioned that he shall not engage
in any attempt, by himself or by collusion with others, to
defraud the govenmient of any tax on his manufactures;
that he shall render truly and completely all the returns,
statements, and inventories prescribed by law or regula-
tions that w^henever he adds to the number of cutting-ma-
chines, presses, snuff mills, hand mills, or other mills or
machines as aforesaid, he shall immediately give notice
thereof to the collector of the district; that he shall stamp,
in accordance with law, all tobacco and snuff manu-
factured by him before he removes any part thereof from
the place of manufacture; that he shall not knowingly
sell, purchase, expose, or receive for sale, any manu-
factured tobacco or siiulT which lias not been stamped as
required by law; and that he shall comply wilh all tlie
n'(iiiiremonts of law relating to the manufacture of to-
bacco or snuff. Additional sureties may be required by
the collector from time to time. And every manufacturer
sliall ()])taiii a certificate from tlie collector of the district,
wlio is hereby directed to issue the same, setting fortli the
kind ;iii(l number of macliiues, presses, snuff mills, hand
mills, or other mills and machines as aforesaid; wliidi
certificate shall be posted in a conspicuous place within
the manufactory. And eveiy tobacco-manufacturer who

Violations of Internal Revenue 1175

neglects or refuses to obtain such certificate, or to keep
the same posted as liereinbefore provided, shall be fined
not less than one hundred dollars, nor more than five hun-
dred. And every person who manufactures tobacco or
snuff of any description without first giving bond, as
herein required, shall be fined not less than one thousand
dollars nor more than five thousand dollars, and impris-
oned for not less than one nor more than five years.^''^

§ 1593. Manufacturer of tobacco must post sign on
building. Every manufacturer of tobacco and snuff shall
place and keep on the side or end of the building wherein
his business is carried on, so that it can be distinctly seen,
a sign, with letters thereon not less than three inches in
length, painted in oil-colors or gilded, giving his full
name and business. And eveiy person who neglects to
comply with the requirements of this section shall be fined
not less than one hundred dollars or more than five hun-
dred dollars.^'

§ 1594. A tobacco peddler must exhibit certificate on
demand of revenue agent, penalty for failure. Eveiy
person who is found peddling tobacco, snuff, or cigars,
without having given the bond, or without having pre-
viously obtained the collector's certificate as herein pro-
vided, or who sells tobacco, snuff, or cigars otherwise than
in original and full packages as put up by the manu-
facturer; or who has in his possession any internal-rev-
enue stamp which has been removed from any box or
other package of tobacco, snuff, or cigars, or any empty
or partially emptied box or other package which has been
used for tobacco, snuff, or cigars, the stamp or stamps on
which have not been destroyed-; or who fails to have
affixed to his wagon, in a conspicuous place, a sign,
painted in oil-colors, or gilded, giving his full name, busi-

27— Act March 1, 1879, Sec. 14, 28— Act July 20, 1868, 15 Stat.

20 Stat. 344. 154.

1176 Criminal Law

ness, and collection-district, shall for each such oiTense,
be fined not less than one hundred dollars nor more than
five hundred dollars, or imprisoned not less than six
months nor more than one year, or both, at the discretion
of the court. And any collector or deputy collector find-
ing such peddler in the act of offending as to either of the
offenses mentioned in this section, may seize the horse or
horses, mule or mules, wagon and contents, or pack,
bundle, or basket, of any such person; and the collector
shall thereupon proceed upon such seizure as provided in
section thirty-three hundred and eighty-three.'^^

§ 1596. Relanding tobacco, snuff, or cigars with intent
to defraud. Manufactured tobacco, snuff, and cigars in-
tended for immediate exportation may, after being prop-
erly inspected, marked and branded, be removed from the
manufactory in bond without having affixed thereto the
stamps indicating the payment of the tax thereon. The
removal of such tobacco, snuff, and cigars from tlie manu-
factory shall be made under such regulations, and after
making such entries, and executing and filing with the
collector of the district from which the removal is to be
made such bonds and ])ills of lading, and giving such
other additional security as may be prescribed by the
Commissioner of Internal Revenue and approved by the
Secretary of the Treasury. There shall be affixed to each
package of tobacco, snuff, and cigars intended for imme-
diate export, before it is removed from the manufactory,
an engraved stamp indicative of such intention. Such
stamps shall be provided and furnished to the several col-
lectors as in tlic case of other stamps, and charged to them
and accounted in tlic same manner and for the expense
attending tlie providing and affixing thereof, ten cents for
each package so stamped shall be paid to the collector,
on making the entry for such transportation. When the

29— Act Oct. 1, 1890, 26 Stnt.
r.i8.

Violations of Internal Revenue 1177

manufacturer has made the proper entries, filed the bonds
and otherwise complied with all the requirements of
the law and regulations as herein provided, the collector
shall issue to him a permit for the removal, accurately
describing the tobacco, snuff, and cigars to be shipped,
the number and kind of packages, the number of pounds,
the amount of tax, the marks and brands, the State and
collection district from which the same are shipped, the
number of the manufactory and the manufacturer's name,-
the port from which the said tobacco, snuff, and cigars are
to be exported, and the route or routes over which the
same are to be sent to the port of shipment. Upon the
presentation to the collector of internal revenue of a de-
tailed report from the inspectors of customs, and a cer-
tificate of the collector of customs at the port from which
the goods are to be exported that the goods removed from
the manufactory under bond and described in the permit
of the collector of internal revenue have been received by
the said collector of customs, and that the said goods were
duly laden on board of a foreign-bound vessel, naming the
vessel, and that the said merchandise was entered on the
outward manifest of said vessel, and that the said vessel
and cargo were duly cleared from said port, and on the
payment of the tax or deficiency, if any, the bonds, which
have been given or shall hereafter be required to be given
under the provisions of this section shall be canceled.
But when the goods are exported to an adjacent foreign
territory, by vessel or otherwise, said bonds shall be can-
celed upon such proofs of exportation as may be pre-
scribed by the Commissioner of Internal Revenue, with
the approval of the Secretary of the Treasury.

Every person who, with the intent to defraud the
revenue laws of the United States, relands or causes
to be relanded within the jurisdiction of the United
States, any manufactured tobacco, snuff, or cigars
which have been shipped for exportation under the
provisions of this Act, without properly entering such

1178 Criminal Law

tobacco, snuff, or cigars at the custom-house, and paving
the proper customs and internal-revenue tax thereon, or
who receives such relanded tobacco, snuff, or cigars, and
every person who aids or abets in such relanding or receiv-
ing such tobacco, snuff or cigars, shall, on conviction, be
fined not exceeding five thousand dollars, or imprisoned
not more than three years; and all tobacco, snuff, or cigars
so relanded shall be forfeited to the United States.^"

§1597. Manufacturer of cigars failing to give bond,
penalty. And every person who manufactures cigars o^
any description, without first giving bond as herein re-
quired, shall be fined not less than one hundred dollars,
nor more than five thousand dollars, and imprisoned not
less than three months nor more than five years. Ciga-
rettes and cheroots shall be held to be cigars under the
meaning of this chapter.^^

§ 1598. Manufacturer must keep sign posted. Every
cigar manufacturer shall place and keep on the side or
end of the building within which his business is carried
on, so that it can be distinctly seen, a sign, with letters
thereon not less than three inches in length, painted in oil-
colors or gilded, giving his full name and business. Any
person neglecting to comply with the requirements of this
section shall, on conviction, be fined not less than one hun-
dred dollars nor more than five hundred dollars.''^

§ 1599. Willful neglect in making true inventory and
abstracts; by manufacturer of cigars. I'-very person now
or hereatter engaged in llio manuracture of cigars shall
make and deliver lo (lie collector of the district a true
inveiitorj'', in such lonii as may Ix' ])r('sc'rib(>d by Ibc Com-

:{0— Act .J;in. i;5, 188.'J, 22 Stat. :{2— Act .Inly 2(i, IHC.S, 15 Stat.

402. 100.

31_Apt Oct. 1. 1890, 26 Stnt.
620.

Violations of Internal Eevenul 1179

missioner of Internal Revenue, of the quantity of leaf
tobacco, cigars, stems, scraps, clippings, and waste, and
of the number of cigar-boxes and the capacity of each box,
held or owned by him on the first day of January of each
year, or at the time of commencing and at the time of
concluding business, if before or after the first of January;
setting forth what portion and kinds of said goods were
manufactured or produced by him, and what were pur-
chased from others, and shall verify said inventory by his
oath Indorsed thereon. The collector shall make personal
examination of the stock sufficient to satisfy himself as
to the correctness of the inventoiy; and shall verify the
fact of such examination by oath to be indorsed on the
inventory. Every such person shall also enter daily in a
book, the form of which shall be prescribed by the Com-
missioner of Internal Revenue, an accurate account of all
the articles aforesaid purchased by him, the quantity of
leaf-tobacco, cigars, stems, or cigar-boxes, of whatever
description, manufactured, sold, consumed, or removed
for consumption or sale, or removed from the place of
manufacture; and shall, on or before the tenth day of
each and every month, furnish to the collector of the dis-
trict a true and accurate abstract from such book, verified
by his oath, of all such purchases, sales, and removals
made during the month next preceding. In case of re-
fusal or willful neglect to deliver the inventory or keep
the account, or furnish the abstract aforesaid, he shall
be fined not less than five hundred dollars nor more than
five thousand dollars, and imprisoned not less than six
months nor more than three years.^^

§ 1600. Cigars not weighing more than three pounds
per thousaiid must be packed in boxes not used before.

All cigars shall be packed in boxes not before used for
that purpose containing, respectively, five, ten, twelve,

33— E. S. 3390, Act July 20,
1868, 15 Stat. 161.

1180 Criminal Law

thirteen, twenty-five, fifty, one hundred, two hundred, two
hundred and fifty, or five hundred cigars each; and every
person w^ho sells, or offers for sale, or delivers, or offers
to deliver, any cigars in any other f orai than in new boxes
as above described, or who packs in any box any cigars in
excess of or less than the number provided by law to be
put in each box, respectively, or who falsely brands any
box, or affixes a stamp on any box denoting a less amount
of tax than that required by law, shall be fined for each
offense not more than one thousand dollars, and be impris-
oned not more than two years : Provided, That nothing in
this section shall be construed as preventing the sale of
cigars at retail by retail dealers from boxes packed,
stamped, and branded in the manner prescribed by law:
And provided further. That every manufacturer of ciga-
rettes shall put up all the cigarettes that he manufactures
or has manufactured for him and sells or removes for con-
sumption or use in packages or parcels containing five,
eight, ten, fifteen, twenty, fifty, or one hundred cigarettes
each, and shall securely afi&x to each of said packages or
parcels a suitable stamp denoting the tax thereon, and
shall properly cancel the same prior to such sale or re-
moval for consumption or use, under such regulations as
the Commissioner of Internal Revenue shall prescribe;
and all cigarettes imported from a foreign country shall
be packed, stamped, and the stamps canceled in like man-
ner, in addition to the import stamp indicating inspection
of the custom-house before they are withdrawn there-
from.'*

§ 1601. Penalty for failure to put notice on each box
cigars. Every iiianui'acturer of cigars shall securely allix,
by pasting on each box containing cigars manufactured

34— R. S. 3392, Act Aug. 5, 1909,
36 Stnt. 109 and 110.

Violations of Interxal Revenue 1181

by or for him, a label, on which shall be printed, besides
the number of the manufactory and the district and State
in which it is situated, these words:

Notice. — The manufacturer of the cigars herein con-
tained has complied with all the requirements of law.
Every person is cautioned not to use either this box for
cigars again, or the stamp thereon again, nor to remove
the contents of this box without destroying said stamp,
under the penalties provided by law in such cases.

Every manufacturer of cigars who neglects to affix such
label to any box containing cigars made by or for him;
or sold or offered for sale by or for him, and every person
who removes any such label, so affixed, from any such
box, shall be fined fifty dollars for each box in respect to
which such offense is committed.^^

§ 1602. Cigars must not be removed from manufactory
without boxing. Whenever any cigars are removed from
any manuf actoiy, or place where cigars are made, without
being packed in boxes as required by the provisions of
this chapter, or without the proper stamp thereon denot-
ing the tax, or without stamping, indenting, buniing, or
impressing into each box, in a legible and durable manner,
the number of the cigars contained therein, the number of
the manufactoiy, and the number of the district and the
State, or without properly affixing thereon and canceling
the stamp denoting the tax on the same, or are sold, or
offered for sale, not properly boxed and stamped, they
shall be forfeited to the United States. And every person
who commits anj^ of the above-described offenses shall be
fined for each such offense not less than one hundred dol-
lars nor more than one thousand dollars, and imprisoned
not less than six months nor more than two years. And
every person who packs cigars in any box bearing a false

35— E. S. 3393, Act March 1,
1879, 20 Stat. 348.

1182 Criminal Law

or fraudulent or counterfeit stamp, or who affixes to any
box containing cigars a stamp in the similitude or likeness
of any stamp required to be used by the laws of the United
States, whether the same be a customs or internal-revenue
stamp; or who buys, receives, or has in his possession any
cigars on which the tax to which they are liable have not
been paid, or who removes, or causes to be removed, from
any box any stamp denoting the tax on cigars, with intent
to use the same, or who uses, or permits any other person
to use, any stamp so removed, or who receives, buys, sells,
gives away, or has in his possession any stamp so re-
moved, or who makes any other fraudulent use of any
stamp intended for cigars, or who removes from the place
of manufacture any cigars not properly boxed and
stamped as required by law, shall be deemed guilty of a
felony, and shall be fined not less than one hundred dollars
nor more than one thousand dollars, and imprisoned not
less than six months nor more than three years: Provided,
That cigars packed expressly for export, and which shall
be exported to a foreign country under the restrictions
and regulations prescribed by the Commissioner of Inter-
nal Kevenue, and approved by the Secretary of the Treas-
ury, shall be exempt from the provisions of this section,
and also from the provision of section thirty-three hun-
dred and ninety-three of the Revised Statutes, requiring
a label to be affixed to each box.^^

§ 1603. The actual maker of cigars upon commission
contract must aiiix stamp before the same are removed.
The al)sen('e of llie proi)er revenuc-stnnip on any l)()x of
cigars sold, oi" offcicd for sale, or kept for sale, sliall be
notice to all persons that tlie tax lias not been paid tliere-
on, and shall be prima-facie evidence of the non-payment
thereof, and sn^li cigars sliall bo forfoiled lo Hio rni1(>d
States."

3G— R. H. 3307, Act Mn nil 1. 187J), 37— R. S. 3398, .Inly 20, 1.S68,

20 Stat. 348. 15 Stat. 163.

Violations of Inteknal Revenue 1183

§ 1604. Cig-ars imported must pay import duties and
tax required of manufacturer in United States. All cigars
imported from foreign countries shall pay, in addition to
the import duties imposed thereon, the tax prescribed by
law for cigars manufactured in the United States, and
shall have the same stamps affixed. The stamps shall be
affixed and canceled by the owner or importer of the cigars
while they are in the custody of the proper custom-house
officers, and the cigars shall not pass out of the custody of
such officers until the stamps have been so affixed and can-
celed, but shall be put up in boxes containing quantities
as prescribed in this chapter for cigars manufactured in
the United States, before the stamps are affixed. And the
owner or importer of such cigars shall be liable to all the
penal provisions of this Title prescribed for manufac-
turers of cigars manufactured in the United States.
Whenever it is necessary to take any cigars so imported
to any place other than the public stores of the United
States, for the purpose of affixing and canceling such
stamps, the collector of customs of the port where such
cigars are entered shall designate a bonded warehouse to
which they shall be taken, under the control of such cus-
toms officer as such collector may direct. And every
officer of customs who permits any such cigars to pass out
of his custody or control, without compliance by the owner
or importer thereof with the provisions of this section
relating thereto, shall be deemed guilty of a misdemeanor,
and shall be fined not less than one thousand dollars nor
more than five thousand dollars, and imprisoned not less
than six months nor more than three years.^^

§ 1605. Imported cig"ars must be properly packed and
stamped before sale. Every person who sells or offers for
sale any imported cigars, or cigars purporting or claimed
to have been imported, not put up in packages and

38— E. S. 3402, Act July 20, 1868,
15 Stat. 163.

1184 Criminal Law

stamped as provided by this chapter, shall be fined not
less than five hundred dollars nor more than five thousand
dollars, and be imprisoned not less than six months nor
more than two years.^^

§ 1606. Penalty for purchasing or receiving unbranded
and unstamped cigars. Every person who purchases or
receives for sale any cigars which have not been branded
or stamped according to law, shall be liable to a penalty
of fifty dollars for each such offense.*"

§ 1607. Washed or restored revenue stamp — Penalty
under act August 27, 1894. If any person shall forge or
counterfeit, or cause or procure to be forged or counter-
feited, any stamp, die, plate, or other instrument, or any
part of any stamp, die, plate, or other instrument which
shall have been provided or may hereafter be provided,
made, or used in pursuance of the provisions of this Act
or of any previous provisions of law on the same subjects,
or shall forge, counterfeit, or resemble, or cause or pro-
cure to be forged, counterfeited, or resembled the impres-
sion or any part of the impression of any such stamp, die,
plate, or other instrument, as aforesaid, upon any paper,
or shall stamp or mark or cause or procure to be stamped
or marked any paper with any such forged or counter-
feited stamp, die, plate, or other instrument or part of any
stamp, die, plate, or otlier instrument, as aforesaid, with
intent to defraud the United States of any of the taxes
hereby imposed or any part thereof; or if any person shall
utter, or sell, or expose to sale any paper, article, or thing
having thereupon the impression of any such counter-
feited stamp, die, plate, or other instrument, or any part
of any stamp, die, plate, or other instrument, or any such
forged, counterfeited or resembled impression, or part of
impression, as aforesaid, knowing the same to be forged,

39— R. S. 3403, Act July 20, 1868, 40— R. S. 3404, Act July 20, 1868,

15 Stat. 164. 15 Stat. 162.

Violations of Internal Revenue 1185

counterfeited, or resembled; or if any person shall know-
ingly use or permit the use of any stamp, die, plate, or
other instrument which shall have been so provided,
made, or used, as aforesaid, with intent to defraud the
United States; or if any person shall fraudulently cut,
tear, or remove, or cause or procure to be cut, torn, or
removed, the impression of any stamp, die, plate, or other
instrument, which shall have been provided, made, or used
in pursuance of this Act, or of any previous provisions of
law on the same subjects, from any paper, or any instru-
ment or writing charged or chargeable with any of the
taxes imposed by law; or if any person shall fraudulent-
ly use, join, fix, or place, or cause to be used, joined, fixed,
or placed, to, with, or upon any paper, or any instrument
or writing charged or chargeable with any of the taxes
hereby imposed, any adhesive stamp, or the impression
of any stamp, die, plate, or other instrument, which shall
have been provided, made, or used in pursuance of law,
and which shall have been cut, torn, or removed from any
other paper or any instrument or writing charged or
chargeable with any of the taxes imposed by law; or if
any person shall willfully remove or cause to be removed,
alter or cause to be altered, the canceling or defacing
marks on any adhesive stamp, with intent to use the same,
or to cause the use of the same, after it shall have been
once used, or shall knowingly or willfully sell or buy such
washed or removed stamps or offer the same for sale,
or give or expose the same to any person for use or
knowingly use the same, or prepare the same with intent
for the further use thereof; or if any person shall know-
ingly and without lawful excuse (the proof whereof shall
lie on the person accused) have in his possession any
washed, restored, or altered stamps, which have been
removed from any article, paper, instrument, or writing,
then, and in every such case, every person so offending,
and every person knowingly and willfully aiding, abet-
ting, or assisting in committing any such offense as
c. L.— 75

1186 Criminal Law

aforesaid, shall, on conviction thereof, forfeit the said
counterfeit, washed, restored, or altered stamps and th^
articles upon which they are placed and be punished by
fine not exceeding one thousand dollars, or by imprison-
ment and confinement to hard labor not exceeding five
years, or both, at the discretion of the court. And the
fact that any adhesive stamp so bought, sold, offered for
sale, used, or had in possession as aforesaid, has been
washed or restored by removing or altering the canceling
or defacing marks thereon, shall be prima-facie proof
that such stamp has been once used and removed by the
possessor thereof from some paper, instrument, or writ-
ing charged with taxes imposed by law, in violation of
the provisions of this section.*^

§ 1608. Oleomargarine must be sold in wooden or paper
packages, penalty for violation. That all oleomargarine
shall be packed by the manufacturer thereof in firkins,
tubs, or other wooden packages not before used for that
purpose, each containing not less than ten pounds, and
marked, stamped, and branded as the Commissioner of
Internal Revenue, with the approval of the Secretaiy of
the Treasury, shall prescribe; and all sales made by manu-
facturers of oleomargarine, and wholesale dealers in oleo-
margarine shall be in original stamped packages. Retail
dealers in oleomargarine must sell only from original
stamped packages, in quantities not exceeding ten
pounds and shall pack the oleomargarine sold by them
ill suitable wooden or paper packages, wliich shall be
marked and branded as the Commissioner of Internal Rev-
enue, with the approval of the Secretary of the Treasury,
shall prescribe. Every person who knowingly sells or
offers for sale, or delivers or offers to deliver, any oleo-
margarine in any other form than in new wooden or paper
packages as above described, or who packs in any package

41_Sec. 42, 28 RIat. r,(\], Act
Aug. 27. 1894.

Violations of Internal Revenue 1187

any oleomargine in any manner contrary to law, or who
falsely brands any package or affixes a stamp on any pack-
age denoting a less amount of tax than that required by
law, shall be fined for each offense not more than one thou-
sand dollars, and be imprisoned not more than two years.*^

§ 1609. Putting on a counterfeit or used stamp, etc., on
a package of tobacco, a felony. Every person who affixes
to any package containing tobacco or snuff, any false,
forged, fraudulent, spurious, or counterfeit stamp, or a
stamp which has been before used, shall be deemed guilty
of a felony, and shall be fined not less than one thousand
dollars nor more than five thousand dollars, and be im-
prisoned not less than two years nor more than five
years.**

§ 1610. Willfully refusing to cancel stamp after pack-
age or box is emptied is a crime. Whenever any stamped
box, bag, vessel, wrapper, or envelope of any kind, con-
taining tobacco or snuff, is emptied, the stamp or stamps
thereon shall be destroyed by the person in whose hands
the same may be. And every person who willfully
neglects or refuses so to do shall, for each such offense,
be fined fifty dollars, and imprisoned not less than ten
days nor more than six months. And every person who
sells or gives away, or who buys or accepts from another
any such empty stamped box, bag, vessel, wrapper, or en-
velope of any kind, or the stamp or stamps taken from
any such empty box, bag, vessel, wrapper, or envelope
of any kind, shall, for each such offense, be fined one hun-
dred dollars and imprisoned for not less than twenty
days, and not more than one year. And every manu-
facturer or other person who puts tobacco or snuff into
any such box, bag, vessel, wrapper, or envelope, the same
having been either emptied or partially emptied, or who

42— Sec. 6, Act Aug. 2, 1886, 24 43— Eev. Stat. 3375, Act July 20,

Stat. 210. 1868, 15 Stat. 156.

1188 Ckimixal Law

•

has in his possession, or affixes to any box or other pack-
age, any stamp which has been previously used, or who
sells, or offers for sale, any box or other package of
tobacco, snuff, or cigars, having affixed thereto any
fraudulent, spurious, imitation, or counterfeit stamp, or
stamp that has been previously used, or sells from any
such fraudulentlj^ stamped box or package, or has in
his possession any box or package as aforesaid, know-
ing the same to be fraudulently stamped, shall, for each
such offense, be fined not less than one hundred dollars
nor more than five hundred dollars, and imprisoned for
not less than one year nor more than three years.**

§ 1611. Taxes in addition to import duties on tobacco
must be paid, or officer permitting same to pass without
compliance with provisions is guilty of crime. That all
manufactured tobacco and snuff (not including cigars)
imported from foreign countries shall, in addition to the
import duties imposed on the same, pay the tax imposed
by law on like kinds of tobacco and snuff manufactured
in the United States, and have the same stamps respec-
tively affixed. Such stamps shall be affixed and canceled
on all such articles so imported by the owner or importer
thereof wiiile they are in the custody of the proper cus-
toms-house officers, and such articles shall not pass out
of the custody of said officers until the stamps have been
affixed and canceled. Such tobacco and snuff shall be
put up in packages, as prescribed by law for like articles
manufactured in the United States before the stamps are
affixed, and tlie owner or importer shall be liable to all
tlie penal provisions prescribed for manufactures of to-
bacco and snuff manufactured in llie United States.
Wlienever it is necessary to take any such articles, so
imported, to any place for the purpose of repacking,
affixing, and canceling sucli stamps, oilier than the public

44 — Rev. Stat. 337G, Act June 6,
]«72. 17 Rtat. 253.

Violations of Inteknal Revenue 1189

stores of the United States, the collector of customs of the
port where they are entered shall designate a bonded
warehouse to which they shall be taken, under the control
of such customs officers as he may direct. And every officer
of customs who permits any such articles to pass out of
his custody or control without compliance by the owner
or importer thereof with the provisions of this section
relatuig thereto, shall be deemed guilty of a misdemeanor,
and shall be fined not less than one thousand dollars nor
more than five thousand dollars, and imprisoned not less
than six months nor more than three years. Provided,
That scraps, cuttings, and clippings of tobacco imported
from any foreign countiy may, after the proper customs
duty has been paid thereon, be withdrawn in bulk without
the payment of the internal-revenue tax, and transferred
as material directly to the factory of a manufacturer of
tobacco or snuff, or of a cigar-manufacturer, under such
restrictions and regulations as shall be prescribed by the
Commissioner of Internal Revenue and approved by the
Secretary of the Treasury.*^

§ 1612. A dealer in leaf tobacco who willfuUy neglects
or willfully refuses to keep books as required. Every
dealer in leaf tobacco shall make daily entries in two
books kept for that purpose, one book to be furnished
by the goveniment, under such regulations as the Com-
missioner of Internal Revenue shall prescribe, of the
number of hogsheads, cases, and pounds of leaf tobacco
purchased or received by him on assignment, consign-
ment, transfer, or otherwise, and of whom purchased or
received, and the number of hogsheads, cases, or pounds
sold by him, with the name and residence, in each in-
stance, or the person to whom sold, and, if shipped, to
whom shipped, and to what district; one of these books
shall be kept at his place of business, and shall be open

45— Rev. Stat. 3377, Act March
1879, 20 Stat. 346.

1190 Criminal Law

at all hours to the inspection of any internal-revenue
officer or agent, and the other shall, at the end of each
and eveiy year, and upon the discontinuance of business
of any leaf dealer during any year, be handed over to
the collector of his district for the use of the government.
And every dealer in leaf tobacco who willfully neglects
or refuses to keep the books herein provided for, and in
the manner which shall be prescribed by the Commis-
sioner of Internal Revenue, or to transfer to the collector
of his district, as herein provided, the duplicate copy
containing his daily transactions, as aforesaid, shall be
fined not less than one hundred dollars nor more than
five thousand dollars, and imprisoned not more than one
year.*^

§ 1613. Punishment for selling or offering to sell snuff
or manufactured tobacco not put up in packages and
stamped. No manufactured tobacco shall be sold or of-
fered for sale unless put up in packages and stamped as
prescribed in this chapter, except at retail by retail
dealers from packages authorized by section thirty-three
hundred and sixty-two of the Revised Statutes ; and every
person who sells or offers for sale any snuff or any kind
of manufactured tobacco not so put up in packages and
stamped shall be fined not less than five hundred dollars
nor more than five thousand dollars, and imprisoned not
less than six months nor more than two years.'*'

§ 1614. Unlawful to purchase or secure tobacco for sale
not branded or marked — Punishment. Every person who
purchases, or receives for sale, any manufactured tobacco
or snuff whicli has not been branded or stamped accord-
ing to law, shall be liable to a penalty of fifty dollars for
each offense."

46— Act March 1, 1879, 20 Stat. 48— Rev. Stat. 33G6, July 20, 1868,

34.^, Rev. Stat. 3360. 15 Stat. 156.

47— Rev. Stat. 3363, Act Oct. 1,
18fW), 26 Rtnt. 619.

Violations of Internal Revenue 1191

§ 1615. MgLnufacturing- tobacco for another on commis-
sion, tax must be paid by the actual maker, fraud, pun-
ishment. Whenever tobacco or snuff of any description is
manufactured, in whole or in part, upon commission or
shares, or the material from which any such articles are
made, or are to be made, is furnished by one person and
made or manufactured by another, or the material is fur-
nished or sold by one person with an understanding or
agreement with another that the manufactured article is
to be received in payment therefor or for any part
thereof, the stamps required by law shall be affixed by the
actual maker or manufacturer before the article passes
from the place of making or manufacturing. And in case
of fraud on the part of either of said persons in respect
to said manufacture, or of any collusion on their part with
intent to defraud the revenue, such material and manu-
factured articles shall be forfeited to the United States;
and each party to such fraud or collusion shall be deemed
guilty of a misdemeanor, and fined not less than one
hundred dollars nor more than five thousand, and impris-
oned for not less than six months nor more than three
years.*®

§ 1616. Selling or removing without payment of the
stamp denoting tax, unlawful. Every manufacturer of to-
bacco or snuff who removes, otherwise than as provided
by law, or sells, without the proper stamps denoting the
tax thereon, or without having paid the special tax, or
given bond as required by law, any tobacco or snuff, or
who makes false and fraudulent entries of manufactures
or sales of tobacco or snuff, or makes false or fraudulent
entries of the purchase or sales of leaf tobacco, tobacco-
stems, or other material, or who affixes any false, forged,
fraudulent, spurious, or counterfeit stamp, or imitation of
any stamp, required by law, or any stamp required by law

49— Rev. Stat. 3370, Act July 20,
1868, 15 Stat. 158.

1192 Criminal Law

wliicli has been previously used, to any box or package
containing any tobacco or snuff, shall, in addition to the
penalties elsewhere provided by law for such offenses,
forfeit to the United States all raw material and manu-
factured or partly manufactured tobacco and snuff, and
all machinery, tools, implements, apparatus, fixtures,
boxes, and barrels, and all other materials, which may be
found in his possession in his manuf actoiy, or elsewhere/"

§ 1617. Removing' from any manufactory any tobacco
or snuff without being stamped in proper packages.
Eveiy person who removes from any manufactory, or
from any place where tobacco or snuif is made, any manu-
factured tobacco or snuff without the same behig put up
in proper packages, or without the proper stamp for the
amount of tax thereon being affixed and canceled, as re-
quired by law; or, if the same be intended for export,
without the proper export-stamp being affixed; or who
uses, sells, or offers for sale, or has in possession, except
in the manufactoiy, or while in transfer under bond or a
collector's pennit, for any manufactory, store, or ware-
liouse, to a vessel for exportation to a foreign country,
any manufactured tobacco or snuff, without proper
stamps for the amount of tax thereon being affixed and
canceled; or who sells, or offers for sale for consumption
in the United States, or uses, or has in possession, except
ill llie manufactory, or while in transfer under bond or a
collector's permit, from any manufactory, store, or warc-
liouse, snuff on which only the stani}) marking the same
for export has been affixed, sliall for each such offense,
respectively, be lined not less than one thousand dollars
nor more than five thousand dollars, and be imprisoned
not less than six months nor more than two years."

TiO— Kov. Stat. 3X72, Juno 0, 1872, ni— Kcv. Stat. 3374, .Tunc G, 1872,

17 Stat. 253. 17 Stat. 253.

Violations of Interxal Revenue 1193

§ 1618. The kind of brand that must be put upon pack-
age of flour — Penalty for violation. That every person,
firm, or corporation making, packing, or repacking mixed
flour shall plainly mark or brand each package contain-
ing the same with the words ''mixed flour" in plain
black letters not less than two inches in length, together
with the true weight of such package, the names of the
ingredients composing the same, the name of the maker
or packer, and the place where made or packed. In addi-
tion thereto such maker or packer shall place in each
package a card not smaller than two inches in width by
three inches in length, upon which shall be printed the
words ''mixed flour," together with the names of the
ingredients composing the same, and the name of the
maker or packer, and the place where made or packed.
Any person, firm, or corporation making, packing, or
repacking mixed flour hereunder, failing to comply with
the provisions of this section, shall be deemed guilty of a
misdemeanor, and upon conviction shall be punished
by a fine of not less than two hundred and fifty dollars
and not more than five hundred dollars, or be imprisoned
not less than sixty days nor more than one year.^^

§ 1619. Falsely marking unbranded packages of flour —
Penalty. That all sales and consignments of mixed flour
shall be in packages not before used for that purpose ; and
every person, firm, or corporation knowingly selling or
offeringfor sale any mixed flour in other than marked and
branded packages, as required by the provisions of this
Act relating to the manufacture and sale of mixed flour,
or who packs in any package or packages any mixed flour
in any manner contrary to the provisions relating to the
manufacture and sale of mixed flour of this Act, or who
falsely marks or brands any package or packages contain-
ing mixed flour, or unlawfully removes such marks or

52— Sec. 37, Act June 13, 1898,
30 Stat. 467.

1194 Ckiminal Law

brands, shall, for each offense, be punished by a fine of
not less than two hundred and fifty dollars and not more
than five hundred dollars, or by imprisonment not less
than thirty days nor more than one year.^'

§ 1620. Failure to label packages of flour, penalty. That
in addition to the branding and marking of mixed flour
as herein provided, there shall be affixed to the packages
containing the same a label in the following words :

"Notice. — The (manufacturer or packer, as the case
may be), of the mixed flour herein contained has complied
with all the requirements of law. Every person is cau-
tioned not to use this package or label again or to remove
the contents without destroying the revenue stamp there-
on, under the penalty prescribed by law in such cases. ' '

Every person, firm, or corporation failing or neglecting
to affix such label to any package containing mixed flour
made or packed by him or them, or who removes from
any such package any labels so affixed, shall, upon con-
viction thereof, be fined not less than fifty dollars for
each label so removed.^*

§ 1621. Tax stamps must be put upon all barrels or
packag'es — Penalty for violation. Barrels or other pack-
ages in which mixed flour may be packed shall contain
not to exceed one hundred and ninety-six pounds; that
upon the manufacture and sale of mixed flour tliere shall
be levied a tax of four cents per barrel or other package
containing one hundred and ninety-six pounds or more
ihan ninety-eight pounds; two cents on every half barrel
or other package containing ninety-eight or more than
ff)rty-iiine pounds; one cent on eveiy quarter barrel or
oilier package containing forty-nine pounds or more tlian
twenty-four and one-half i)onnds; and one-half cent on
cverj' one-eightli l)arrcl or other package contnining twcn-

53_Rcc. 38, June 13, 1808, ?.0 54— Sec. 39, Act, Juno 13, 1898,

Rtat. 4fi8. 30 Stat. 468.

Violations of Interxal Revenue 1195

ty-four and a half pounds or less, to be paid by the person,
firm, or corporation making or packing said flour. The
tax levied by this section shall be represented by coupon
stamps, and the provisions of existing laws governing
the engraving, issue, sale, accountability, effacement, and
destruction of stamps relating to tobacco and snuff shall,
so far as applicable, be made to apply to stamps provided
in this section : Provided, That when mixed flour, on the
manufacture and sale of which the tax herein imposed has
been paid, is sold and then repacked without the addition
of any other material, such repacked flour shall not be'
liable to any additional tax but the packages containing
such repacked flour shall be branded or marked as re-
quired by the provisions of section thirty-seven of this
Act, and shall contain the card provided for in section
thirty-seven thereof; and in addition thereto the person,
firm, or corporation repacking mixed flour shall place on
the packages containing the same a label in the following
words :

' ' Notice. — The contents of this package have been taken
from a regular statutory package, upon which the tax has
been duly paid."

Any person violating the provisions of this section shall
upon conviction thereof, be punished by a fine of not less
than two hundred and fifty dollars and not more than five
hundred dollars, or by imprisonment not to exceed one
year.^^

§ 1622. Imported mixed flour marked, etc., and stamped
as such flour made and packed in U. S. — Penalty for viola-
tion. All mixed flours, imported from foreign countries,
shall, in addition to any import duties imposed thereon,
pay an internal revenue tax equal in amount to the tax
imposed under section fourth of this Act, such tax to be
represented by coupon stamps, and the packages contain

55— Sec. 40, Act June 13, 1898, 30
Stat. 468.

1196 Criminal Law

ing such imported mixed flour shall be marked, branded,
labeled, and stamped as in the ease of mixed flour made or
packed in the United States. Any person, firm, or cor-
poration purchasing- or receiving for sale or repacking any
such mixed flour which has not been branded, labeled, or
stamped, as required by this Act, or which is contained in
packages which have not been marked, branded, labeled,
or stamped, as required by this Act, shall, upon convic-
tion, be fined not less than fifty dollars nor more than
five hundred dollars.^®

§ 1623. Stamp on empty package of mixed flour must be
destroyed, penalty for violation. Whenever any package
containing mixed flour is emptied it shall be the duty of
the person in whose possession it is to destroy the stamp
thereon. Any person disposing of such package without
first having destroyed the stamp or mark or marks there-
on shall, upon conviction, be punished by a fine not ex-
ceeding the sum of twenty-five dollars."

§ 1624. Purchasing or securing for sale flour upon
which tax has not been paid — Penalty. Any person, firm,
or corporation knowingly purchasing or receiving for sale
or for repacking and resale any mixed flour from any
maker, packer, or importer, who has not paid the tax
lierein provided, shall, for each olTense, be fined not less
than fifty dollars, and forfeit to the United States all the
articles so purchased or received, or tlio full value
thereof."

§ 1625. Penalty for subsequent offenses is imprison-
ment. Any person, firm, or corporation found guilty of a
second or any subsequent violation of .-iiiy of the provi-
sions of section thirty-six to section forty-five, boUi inclu-
sive, relating to the manufacture and sale of mixed flour

56— Sec. 42, Act Juno 13, 1898, 58— Soc. 43, Act June 13, 1898,

30 Stat. 469. 30 Stat. 469.

57— Sec. 45, Act Juno 13, 1898,
30 Stat. 469.

Violations of Internal Revenue 1197

as aforesaid, of this Act shall, in addition to the penalties
imposed, be imprisoned not less than thirty days nor more
than ninety days.^^

§ 1626. All retail and wholesale dealers must display
sig-n, penalty for violation. That all retail and wholesale
dealers in filled cheese shall display in a conspicuous place
in his or their sales room a sign bearing the words ' ' Filled
cheese sold here" in black-faced letters not less than six
inches in length, upon a white ground, with the name and
number of the revenue district in which his or their busi-
ness is conducted; and any wholesale or retail dealer in
filled cheese who fails or neglects to comply with the
provisions of this section shall be deemed guilty of a mis-.
demeanor, and shall on conviction thereof be fined for
each and every offense not less than fifty dollars and not
more than two hundred dollars.^"

§ 1627. Stamp on empty packages of filled cheese must
be destroyed. That whenever any stamped package con-
taining filled cheese is emptied it shall be the duty of the
person in whose hands the same is to destroy the stamps
thereon ; and any person who willfully neglects or refuses
so to do shall, for each such offense, be fined not exceeding
fifty dollars or imprisoned not less than ten days nor more
than six months.^^

§ 1628. Manufacturer of filled cheese shall post notice
on package, penalty. That every manufacturer of filled
cheese shall securely affix, by pasting on each package
containing filled cheese manufactured by him a label on
which shall be printed, besides the number of the manu-
factoiy and the district and State in which it is situated,
these words :

59— Sec. 48, June 13, 1898, 30 61— See. 14, Act June 6, 1896, 29
Stat. 470. Stat. 256.

60— Sec. 7, Act .Tune 6, 1896,
29 Stat. 255.

1198 Criminal Law

"Notice. — The manufacturer of the filled cheese herein
contained has complied with all the requirements of the
law. Every person is cautioned not to use either this
package again or the stamp thereon again, nor to remove
the contents of this package without destroying said
stamp, under the penalty provided by law in such cases."

Every manufacturer of filled cheese who neglects to
affix such label to any package containing filled cheese
made by him or sold or offered for sale by or for him, shall
be fined fifty dollars for each package in respect to which
such offense is committed.^**

§ 1629. Retailers in filled cheese shall sell from original
stamped packages — Violation. That filled cheese shall be
packed by the manufacturers in wooden packages only,
not before used for that purpose, and marked, stamped,
and branded with the words "filled cheese" in black-
faced letters not less than two inches in length, in a circle
in the center of the top and bottom of the cheese ; and in
black-faced letters of not less than two inches in length in
line from the top to the bottom of the cheese, on the side
in four places equidistant from each other, and the pack-
age containing such cheese shall be marked in the same
manner, and in the same number of places, and in the
same description of letters as above provided for the
marking of the cheese; and all sales or consignments made
by manufacturers of filled cheese to wholesale dealers in
filled cheese or to exporters of filled cheese shall be in
original stamjjcd packages. Retail dealers in filled cheese
shall sell only from original stamped packages, and sliall
pack the filled cliceso wlien sold in suilablo wooden or
I)aper packages, which shall be marked and branded in
accordance wilh rnlos and rognlalions to bo prescribed by
the Commissioner of Internal Revenue with tlie approval
of the Secretary of the Treasury. Every person who

62— flpc. 8, Act June «, 1«08, 29
Stat. 255.

Violations of Internal Revenue 1199

knowingly sells or offers to sell, or delivers or offers to
deliver, filled cheese in any other form than in new wooden
or paper packages, marked and branded as hereinbefore
provided and as above described, or who packs in any
package or packages filled cheese in any manner contrary
to law, or who falsely brands any package or affixes a
stamp on any package denoting a less amount to tax than
that required by law, shall upon conviction thereof be
fined for each and every offense not less than fifty dollars
and not more than five hundred dollars or be imprisoned
not less than thirty days nor more than one year.^^

§ 1630. Manufacturer of filled cheese, regulations and
penalties. That eveiy manufacturer of filled cheese shall
file with the collector of internal revenue of the district in
which his manufactoiy is located such notices, inven-
tories, and bonds, shall keep such books and render such
returns of materials and products, shall put up such signs
and affix such number to his factory, and conduct his busi-
ness under such surveillance of officers and agents as the
Commissioner of Internal Revenue, Avith the approval of
the Secretary of the Treasury, may by regulation require.
But the bond required of such manufacturer shall be with
sureties satisfactory to the collector of internal revenue,
and in a penal sum of not less than five thousand dollars ;
and the amount of said bond may be increased from time
to time, and additional sureties required, at the discretion
of the collector or under instructions of the Commissioner
of Internal Revenue. Any manufacturer of filled cheese
who fails to comply with the provisions of this section or
with the regulations herein authorized, shall be deemed
guilty of a misdemeanor and upon conviction thereof shall
be fined not less than five hundred nor more than one
thousand dollars.^*

63— Sec. 6, Act June 6, 1896, 29 64— Sec. 5, Act June 6, 1896, 29

Stat. 254. Stat. 254.

1200 Ceiminal Law

§ 1631. Manufacturer of oleomargarine defrauding or
attempting to defraud government of tax. That when-
ever any person engaged in carrying on the business of
manufacturing oleomargarine defrauds, or attempts to
defraud the United States of the tax on the oleomargarine
produced by him, or any part thereof, he shall forfeit the
factory and manufacturing apparatus used by him, and
all oleomargarine and all raw material for the production
of oleomargarine found in the factory and on the factory
premises, and shall be fined not less than five hundred dol-
lars nor more than five thousand dollars, and be impris-
oned not less than six months nor more than three years.^^

§ 1632. Willfully removing or defacing stamps on oleo-
margarine, misdemeanor. That all packages of oleomar-
garine subject to tax under this Act, that shall be found
without stamps or marks as herein provided, and all oleo-
margarine intended for human consumption which con-
tains ingredients adjudged, as hereinbefore provided, to
be deleterious to the public health, shall be forfeited to
the United States. Any person who shall willfully remove
or deface the stamps, marks, or brands on package con-
taining oleomargarine taxed as provided herein shall be
guilty of a misdemeanor, and shall be punished by a fine
of not less than one hundred dollars nor more than two
thousand dollars, and by imprisonment for not less than
thii-ty days nor more than six months, ^^

§ 1633. Stamps on emptied packages of oleomargarine
must be destroyed, penalty for violation. That whenever
iiuy stamped package containing oleomargarine is
emptied, it sliall 1)0 tlic duty of tlie person in whose liands
the same is lo destroy utterly the stamps thereon; and
any per.son who willl'iilly neglects or refuses so lo do slinll

65— See. 17, Act Aug. 2, 188C, 24 CG— Sec. 1-^, Act Aug. 2, 188G, 24

Stat. 212. St:.t. 212.

Violations of Internal Revenue 1201

for each such offense be fined not exceeding fifty dollars,
and miprisoned not less than ten days nor more than six
months. And any person who fraudulently gives away or
accepts from another, or who sells, buys, or uses for pack-
ing oleomargarine, any such stamped package, shall for
each such offense be fined not exceeding one hundred dol-
lars, and be imprisoned not more than one year. Any
revenue officer may destroy any emptied oleomargarine
package upon which the tax-paid stamp is found."

§ 1634. Customs officer permitting imported oleomar-
garine to pass out of his possession, etc., without com-
plying with law. That all oleomargarine imported from
foreign countries shall, in addition to any import duty im-
posed on the same, pay an internal revenue tax of fifteen
cents per pound, such tax to be represented bj^ coupon
stamps as in the case of oleomargarine manufactured in
the United States. The stamps shall be affixed and can-
celed by the owner or importer of the oleomargarine while
it is in the custody of the proper custom-house officers;
and the oleomargarine shall not pass out of the custody of
said officers until the stamps have been so affixed and can-
celed, but shall be put up in wooden packages, each con-
taining not less than ten pounds, as prescribed in this Act
for oleomargarine manufactured in the United States, be-
fore the stamps are affixed and the owner or importer of
such oleomargarine shall be liable to all the penal provi-
sions of this Act prescribed for manufacturer of oleo-
margarine manufactured in the United States. Whenever
it is necessaiy to take any oleomargarine so imported to
any place other than the public stores of the United States
for the purpose of affixing and canceling such stamps, the
collector of customs of the port where such oleomargarine
is entered shall designate a bonded warehouse to which it

67— Sec. 13, Act Aug. 2, 1886, 24
Stat. 211.

C. L.— 76

1202 Ckiminal. Law

shall be taken, under the control of such customs officer as
such collector may direct; and every officer of customs
who peiTnits any such oleomargarine to pass out of his
custody or control without compliance by the owner or
importer thereof with the provisions of this section relat-
ing thereto, shall be guilty of a misdemeanor, and shall
be fined not less than one thousand dollars nor more than
five thousand dollars, and imprisoned not less than six
months nor more than three years. Every person who
sells or offers for sale any imported oleomargarine, or
oleomargarine purporting or claimed to have been im-
ported, not put up in packages and stamped as provided
by this Act, shall be fined not less than five hundred dol-
lars nor more than five thousand dollars, and be impris-
oned not less than six months nor more than two years.^'

§ 1635. Notice by manufacturer of oleomargarine must
be pasted on every package. That every manufacturer
of oleomargarine shall securely affix, by pasting on each
package containing oleomargarine manufactured by him,
a label on which shall be printed, besides the number of
the manufactoiy and the district and State in which it is
situated, these words:

** Notice. — The manufacturer of the oleomargarine
herein contained has complied with all the requirements
of law. Every person is cautioned not to use either this
package again or the stamp thereon again, nor to remove
the contents of this package without destroying said
stamp, under the penalty provided by law in such cases."

Eveiy manufacturer of oleomargarine who neglects to
affix such label to any package containing oleomargarine
made by him, or sold or offered for sale by or for him, and
every person who removes any such lal)cl so affixed from
any siicli package, shall be fined fifty dollars for each
package in respect to which such offense is committed.

68-Scc,. in, Act Aug. 2, 1880, 69-Sec. 7, Aur. 2, 1880, 2t Stat.

24 8tat. 211. 210.

Violations of Internal Revenue 1203

§ 1636. Violating the Act of Aug. 2, 1886, relating to
oleomargarine. That if any manufacturer of oleomarga-
rine, any dealer therein or any importer or exporter
thereof shall knowingly or willfully omit, neglect, or re-
fuse to do, or cause to be done, any of the things required
by law in the carrying on or conducting of his business, or
shall do anything by this Act prohibited, if there be no
specific penalty or punishment imposed by any other sec-
tion of this Act for the neglecting, omitting, or refusing
to do, or for the doing or causing to be done, the thing re-
quired or prohibited, he shall pay a penalty of one thou-
sand dollars; and if the person so offending be the manu-
facturer for a wholesale dealer in oleomargarine, all the
oleomargarine owned by him, or in which he has any
interest as owner, shall be forfeited to the United States.'"

§1637. Definition of "butter" and affixing penalties,
Act May 9, 1902. That for the purpose of this Act "but-
ter" is hereby defined to mean an article of food as
defined in "An Act defining butter, also imposing a tax
upon and regulating the manufacture, sale, importation,
and exportation of oleomargarine, ' ' approved August sec-
ond, eighteen hundred and eighty-six ; that ' ' adulterated
butter" is hereby defined to mean a grade of butter pro-
duced by mixing, reworking, rechurning in milk or cream,
refining, or in any way producing a uniform, purified, or
improved product from different lots or parcels of melted
or unmelted butter or butter fat, in which any acid,
alkali, chemical, or any substance whatever is intro-
duced or used for the purpose or with the effect of deo-
dorizing or removing therefrom rancidity, or any butter
or butter fat with which there is mixed any substance
foreign to butter as herein defined, with intent or effect
of cheapening in cost the product, or any butter in the
manufacture or manipulation of which any process or

70—24 Stat. 212, Sec. 18, Oct. 2,
1886.

1204 Criminal Law

material is used with intent or effect of causing the ab-
sorption of abnormal quantities of water, milk, or cream;
that "process butter" or "renovated butter" is hereby-
defined to mean butter which has been subjected to any-
process by which it is melted, clarified or refined and
made to resemble genuine butter, always excepting "adul-
terated butter" as defined by this Act.

That special taxes are imposed as follows:

Manufacturers of process or renovated butter, shall
pay fifty dollars per year and manufacturers of adulter-
ated butter shall pay six hundred dollars per year. Eveiy
person who engages in the production of process or reno-
vated butter or adulterated butter as a business shall be
considered to be a manufacturer thereof.

Wholesale dealers in adulterated butter shall pay a tax
of four hundred and eiglitj^ dollars per annum, and re-
tail dealers in adulterated butter shall pay a tax of forty
eight dollars per annum. Every person who sells adul-
terated butter in less quantities than ten pounds at one
time shall be regarded as a retail dealer in adulterated
butter.

Every person who sells adulterated butter shall be
regarded as a dealer in adulterated butter, and sections
3232, 3233, 3234, 3235, 3236, 3237, 3238, 3239, 3240, 3241,
and 3243 of the revised statutes of the United States are,
so far as applicable, made to extend to and so conclude
and apply to the special taxes imposed by this section and
to the person upon whom they are imposed.

That every person who carries on the business of a
manufacturer of process or renovated butter or adul-
terated butter witliout having paid the special tax there-
for, as required by law, shall, beside being liable for the
payment of the tax, be lined not less than one tliousand
and not more than five thousand dollars; and every person
who carried on the business of a dealer in adulterated but-
ter without having paid the special tax therefor, as re-
quired by law, shall, beside being liable for the payment

Violations of Internal Revenue 1205

of the tax, be fined not less than fifty and not more than
five hundred dollars for each offense.

Every manufacturer of process or renovated butter or
adulterated butter shall file with the collector of internal
revenue of the district in which his manufactory is located
such notices, inventories, and bonds, shall keep such books
and render such returns of material and products, shall
put up such signs and affix such number of his factory,
and conduct his business under such surveillance of offi-
cers and agents as the Commissioner of Internal Revenue,
with the approval of the Secretary of the Treasury, may
by regulation require. But the bond required of such
manufacturer shall be with sureties satisfactoiy to the
collector of internal revenue, and in a penal sum of not
less than five hundred dollars and the sum of said bond
may be increased from time to time and additional sure-
ties required at the discretion of the collector or under
instructions of the Commissioner of Internal Revenue.

All adulterated butter shall be packed by the manu-
facturer thereof in firkins, tubs, or other wooden packages
not before used for that purpose, each containing not less
than ten pounds, and marked, stamped, and branded as
the Commissioner of Internal Revenue, with the approval
of the Secretaiy of the Treasury, shall prescribe; and all
sales made by manufacturers of adulterated butter shall
be in original stamped packages. Dealers in adulterated
butter must sell only original or from original stamped
packages, and when such original stamped packages are
broken the adulterated butter sold from same shall be
placed in suitable wooden or paper packages, which shall
be marked and branded as the Commissioner of Internal
Revenue, with the approval of the Secretaiy of the Treas-
ury, shall prescribe. Every person who knowingly sells
or offers for sale, or delivers or offers to deliver any
adulterated butter in any other form than in new wooden
or paper packages as above described, or who packs in
any package any adulterated butter in any manner con-

1206 Criminal, Law

trary to law, or who falsely brands any package or affixes
a stamp on any package denoting a less amount of tax
than that required by law, shall be fined for each offense
not more than one thousand dollars and be imprisoned
not more than two years.

Every manufacturer of adulterated butter shall se-
curely affix, by pasting, on each package containing
adulterated butter manufactured by him a label on which
shall be printed besides the number of the manufactory
and the district and State in which it is situated, these
words: *' Notice. — That the manufacturer of the adul-
terated butter herein contained has complied with all the
requirements of law. Every person is cautioned not to
use either this package again or the stamp thereon, not to
remove the contents of this package w^ithout destroying
said stamp, under the penaltj^ provided by law in such
cases." Eveiy manufacturer of adulterated butter who
neglects to affix such label to any package containing
adulterated butter made by him, or sold or offered for
sale for or by him, and every person who removes any
such label so affixed from any such package shall be fined
fifty dollars for each package in respect to which such
offense is committed.

Upon adulterated butler, when manufactured or sold or
removed for consumption or use, there shall be assessed
and collected a tax of ten cents per pound, to be paid by
the manufacturer thereof, and any fractional part of a
pound shall be taxed as a pound, and that upon process or
renovated butter, when manufactured or sold or removed
for consumption or use, there shall be assessed and col-
lected a tax of one-fourth of one cent per pound, to be
paid by the manufacturer thereof, and any fractional part
(if a pound shall be taxed as a pound. The tax lo be
levied by this section shall be represented by coupon
stamps, and the provisions of existing laws governing
engraving, issuing, sale, accountability, effacemcnt, and
destruction of stamps relating to tobacco and snuff, as

Violations of Internal Revenue 1207

far as applicable, are hereby made to apply to the stamps
provided by this section."'^^

§ 1638. Renovated butter, how marked. All parts of an
Act providing for an inspection of meats for exportation,
approved August thirtieth, eighteen hundred and ninety,
and of an Act to provide for the inspection of live cattle,
hogs, and the carcasses and products thereof which are
the subjects of interstate commerce, approved March
third, eighteen hundred and ninety-one, and of amend-
ment thereto approved March second, eighteen hundred
and ninety-five, which are applicable to the subjects and
purposes described in this section shall apply to process
or renovated butter. And the Secretary of Agriculture is
hereby authorized and required to cause a rigid sanitary
inspection to be made, at such times as he may deem
proper or necessary, of all factories and storehouses where
process or renovated butter is manufactured, packed, or
prepared for market, and of the products thereof and
materials going into the manufacture of the same. All
process or renovated butter and packages containing the
same shall be marked with the words '* Renovated But-
ter" or ''Process Butter" and by such other marks, labels,
or brands and in such manner as may be prescribed by the
Secretary of Agriculture, and no process or renovated
butter shall be shipped or transported from its place of
manufacture into any other State or Territory or the Dis-
trict of Columbia, or to any foreign country, until it has
been marked as provided in this section. The Secretary
of Agriculture shall make all needful regulations for
carrying this section into eifect and shall cause to be
ascertained and reported from time to time the quantity
and quality of process or renovated butter manufactured,
and the character and the condition of the material from
which it is made. And he shall also have power to ascer-

71— Sec. 4, May 9, 1902, 32 Stat.
194-195-196.

1208 Crimixal Law

tain whether or not materials used in the manufacture
of said process or renovated butter are deleterious to
health or unwholesome in the finished product, and in case
such deleterious or unwholesome materials are found to
be used in product intended for exportation or shipment
into other States or in course of exportation or shipment
he shall have power to confiscate the same. Any person,
firm, or corporation violating any of the provisions of this
section shall be deemed guilty of a misdemeanor and on
conviction thereof shall be punished by a fine of not less
than fifty dollars nor more than five hundred dollars or
by imprisonment not less than one month nor more than
six months, or by both said punishments, in the discretion
of the court."^

§ 1639. Wholesale dealer in oleomarg-arine must keep
book as required by Commission of Internal Revenue.
That wholesale dealers in oleomargarine, process, reno-
vated, or adulterated butter shall keep such books and
render such returns in relation thereto as the Commis-
sioner of Internal Eevenue, with the Approval of the Sec-
retary of the Treasuaiy, may, by regulation, require, and
such books shall be open at all times to the inspection of
any internal-revenue officer or agent. And any person
who willfully violates any of the provisions of this sec-
tion shall for each such offense be fined not less than
fifty dollars and not exceeding five hundred dollars, and
imprisonorl no1 loss Ihnt tliirty days nor more that six
iiinntlis.'^^

§1640. Food and Drug Act of June 30, 1906, not
affected by Opium Act. That nothing contained in this
Act shall be construed to impair, alter, amend, or repeal
any of Hie provisions of the Act of Congress approved
June thirtieth, nineteen hundred and six, entitled ** An Act
for preventing the manufacture, sale, or transportation

72— Sec. 5, Act May 9, 1902, 32 73— Sec. G, Act May 9, 1902, 32

Stat. 196. Stat. 197.

Violations of Internal Revenue 1209

of adulterated or misbranded, or poisonous, or deleterious
foods, drugs, medicines, and liquors, and for regulating
traffic therein, and for other purposes," and any amend-
ment thereof, or of the Act approved February ninth,
nineteen hundred and nine, entitled "An Act to prohibit
the importation and use of opium for other than medicinal
purposes," and any amendment thereof. ■'^^

§ 1641. Ag-ents appointed to enforce law regarding
opium. That the Commissioner of Internal Revenue, with
the approval of the Secretary of the Treasuiy, is author-
ized to appoint such agents, deputy collectors, inspectors,
chemists, assistant chemists, clerks, and messengers in
the field and in the Bureau of Internal Revenue in the
District of Columbia as may be necessary to enforce the
provisions of this Act.'^

§ 1642. Penalty for violation. That any person who
violates or fails to comply with any of the requirements
of this Act shall, on conviction be fined not more than
$2,000 or be imprisoned not more than five years, or both,
in the discretion of the court.'^

§ 1643. Only registered person can possess drugs. That
it shall be unlawful for any person not registered under
the provisions of this Act, and who has not paid the spe-
cial tax provided for by this Act, to have in his possession
or under his control any of the aforesaid dinigs ; and such
possession or control shall be presumptive evidence of a
violation of this section, and also of a violation of the pro-
vision of section one of this Act : Provided, That this sec-
tion shall not apply to any employee of a registered per-
son, or to a nurse under the supendsion of a physician,

74— Sec. 12, Act Dec. 17, 1914, 76— Sec. 9, Act Dec. 17, 1914, 38

38 Stat. 790. Stat. 789.

75— Sec. 10, Act Dec. 17, 1914,
38 Stat. 789.

1210 Criminal Law

dentist, or veterinary surgeon registered under this Actj
having such possession or control by virtue of his employ-
ment or occupation and not on his own account; or to the
possession of any of the aforesaid drugs which has or
have been prescribed in good faith by a physician, dentist,
or veterinary surgeon registered under this Act; or to
any United States, States, county, municipal. District,
Territorial, or insular officer or official who has possession
of any said drugs, by reason of his official duties, or to a
warehouseman holding possession for a person registered
and who has paid the taxes under this Act; or to coimnon
carriers engaged in transporting such drugs; Provided,
further, That it shall not be necessary to negative any
of the aforesaid exemptions in any complaint, informa-
tion, indictment, or other writ or proceeding laid or
brought under this Act; and the burden of proof of any
such exemption shall be upon the defendant.''

§ 1644. Special taxes imposed by this Act not inconsist-
ent with revised statutes. That all laws relating to the
assessment, collection, remission, and refund of internal-
revenue taxes including section thirty-two hundred and
twenty-nine of the Revised Statutes of the United States,
so far as applicable to and not inconsistent with the provi-
sions of this Act, are hereby extended and made appli-
cable to the special taxes imposed by this Act.'*

§ 1645. Provisions of this Act not to apply to medicinal
preparations. That provisions of this Act shall not be
construed to apply to the sale, distribution, giving away,
dispensing, or possession of preparations and remedies
which do not coiii.-iin nioro than two grains of opium, or
more than one-i'onith of a grain of morphine, or more than
one-eighlli of a grain of heroin, or more than one grain of
codeine, or any sale or derivative of any of them in one

77_8ec. 8, Act Dec. 17, 1914, 38 78— Sec. 7, Act Dec. 17, 1914, 38

Stat. 789. Stnt. 789.

Violations of Internal Revenue 1211

fluid ounce, or, if a solid or semisolid preparation, in one
avoirdupois ounce; or to liniments, ointments, or other
preparations which are prepared for external use only,
except liniments, ointments, and other preparations which
contain cocaine or any of its salts, or alpha or beta eucaine
or any of their salts, or any synthetic substitute for them:
Provided, That such remedies and preparations are sold,
distributed, given away, dispensed, or possessed as medi-
cines and not for the purpose of evading the intentions
and provisions of this Act. The provisions of this Act
shall not apply to decocainized coca leaves or prepara-
tions made therefrom, or to other preparations of coca
leaves which do not contain cocaine.''^^

§ 1646. Collector to furnish certified copies of state-
ment to be filed in his office. That the duplicate-order
forms and the prescriptions required to be preserved
under the provisions of Section 1649 of this Act, and the
statements or returns filed in the office of the collector of
the district, under the provisions of Section 1648 of this
Act, shall be open to inspection by officers, agents, and
employees of the Treasury Department duly authorized
for that purpose ; and such officials of any State or Terri-
tory, or of any organized municipality therein, or of the
District of Columbia, or any insular possession of the
United States, as shall be charged with the enforcement
of any law or municipal ordinance regulating the sale,
prescribing, dispensing, dealing in, or distribution of the
aforesaid drugs. Each collector of internal revenue is
hereby authorized to furnish, upon written request, cer-
tified copies of any of the said statements or returns filed
in his office to any of such officials of any State or Terri-
tory or organized municipality therein, or the District of
Columbia, or any insular possession of the United States,
as shall be entitled to inspect the sale statements or

79— Sec. 6, Act Dec. 17, 1914,
38 Stat. 789.

1212 Criminal Law

returns filed in the office of the said collector, upon the
pajnnent of a fee of $1.00 for each one hundred words or
fraction thereof in the copy or copies so requested. Any
person who shall disclose the information contained in the
said statements or returns or in the said duplicate-order
forms, except as herein expressly provided, and except for
the purpose of enforcing the provisions of this Act, or for
the purpose of enforcing any law of any State or Terri-
tory or the District of Columbia, of any insular possession
of the United States, or ordinance of any organized muni-
cipality therein, regulating the sale, prescribing, dispens-
ing, dealing in, or distribution of the aforesaid drugs,
shall, on conviction, be fined or imprisoned as provided by
section nine of this Act. Any collectors of internal rev-
enue are hereby authorized to furnish upon written re-
quest, to any person, a certified copy of the names of any
or all persons who may be listed in their respective collec-
tion districts as special tax payers under the provisions
of this Act, upon payment of a fee of $1.00 for each one
hundred names or fraction thereof in the copy so
requested.^"

§ 1647. Unlawful for any person to ship or deliver drugs
without being registered and paying tax. Tliat it shall
be unlawful for any person who shall not have registered
and paid the special tax as required by Section 1 of
this Act to send, ship, carry, or deliver any of the afore-
said drugs from any State or Territory or the* District of
Columbia, or any insular possession of the United States,
to any person in any otlier State or Territory or the Dis-
trict of Columbia or any insular possession of tlie United
Slates: Provided, Tliat notliing contained in lliis section
shall apply to common carriers engaged in transporting
the aforesaid drugs, or to any employee acting within
the scope of his employment, of any person who shall

80— Sec. 5, Act Dec. 17, 1914, 38
Rtnt. 788.

Violations of Internal Revenue 1213

have registered and paid the special tax as required by
section one of this Act, or to any person who shall deliver
any such drug which has been prescribed or dispensed by
a physician, dentist, or veterinarian required to register
under the terms of this Act, who has been employed to
prescribe for the particular patient receiving such drug,
or to any United States, State, county, municipal. Dis-
trict, Territorial, or insular officer or official acting within
the scope of his official duties. ^^

§ 1648. Must render true and correct statement to col-
lector concerning drugs. That any person who shall be
registered in any internal-revenue district under the pro-
visions of section one of this Act shall, whenever required
so to do by the collector of the district, render to the
said collector a true and correct statement or return,
verified by affidavit, setting forth the quantity of the
aforesaid drugs received by him in said internal-revenue
district during such period immediately preceding the
demand of the collector, not exceeding three months, as
the said collector may fix and determine; the names of
the persons from whom the said drugs were received;
the quantity in each instance received from each of such
persons, and the date when received. ^^

§ 1649. Written order from physician, etc., required to
obtain drugs. That it shall be unlawful for any person to
sell, barter, exchange, or give away any of the aforesaid
drugs except in pursuance of a written order of the per-
son to whom such article is sold, bartered, exchanged, or
given, on a form to be issued in blank for that purpose
by the Commissioner of Internal Revenue. Every per-
son who shall accept any such order, and in pursuance
thereof shall sell, barter, exchange, or give away any of
the aforesaid drugs, shall preserve such order for a period

81— Sec. 4, Act Dec. 17, 1914, 82— Sec. 3, Act Dec. 17, 1914,

38 Stat. 788. 38 Stat. 787.

1214 Criminal Law

of two years in such a way as to be readily accessible to
inspection by any officer, agent, or employee of the Treas-
ury Department duly authorized for that purpose, and
the State, Territorial, District, municipal, and insular
officials named in Section 1646 of this Act. Every person
who shall give an order as herein provided to any other
person for any of the aforesaid drugs shall, at or before
the time of giving such order, make or cause to be made
a duplicate thereof on a form to be issued in blank for
that purpose by the Commissioner of Internal Revenue,
and in case of the acceptance of such order, shall pre-
serve such duplicate for said period of two years in such
a way as to be readily accessible to inspection by the
officers, agents, employees, and officials hereinbefore men-
tioned. Nothing contained in this section shall apply —

(a) To the dispensing or distribution of any of the
aforesaid drugs to a patient by a physician, dentist, or
veterinary surgeon registered under this Act in the
courts of his professional practice only : Provided, That
such physician, dentist, or veterinaiy surgeon shall keep
a record of all such drugs dispensed or distributed, show--
ing the amount dispensed or distributed to a patient upon
whom such physician, dentist or veterinary surgeon shall
personally attend; and such record shall be kept for a
period of two years from the date of dispensing or dis-
tributing such drugs, subject to inspection, as provided in
til is Act.

(b) To the sale, dispensing, or distribution of any of
the aforesaid drugs by a dealer to a consumer under and
ill pursuance of a written prescription issued by a physi-
cian, dentist, or veterinary surgeon registered under this
Act: Provided, however, That such prescription shall
1)0 dated as of the day on which signed and shall be
signed by llu' ])hysician, dentist, or veterinary surgeon
whf) shnll have issued the same: And provided further.
That such dealer shall preserve such prescription for
a period of two years from Ihe day on which such pre-

Violations of Internal Revenue 1215

scription is filled in such a way as to be readily accessible
to inspection by the officers, agents, employees, and offi-
cials hereinbefore mentioned.

(c) To the sale, exportation, shipment, or delivery of
any of the aforesaid drugs by any person within the
United States or any Territory or the District of Co-
lumbia or any of the insular possessions of the United
States to any person in any foreign country, regulating
their entry in accordance with such regulations for im-
portation thereof into such foreign country as are pre-
scribed by said country, such regulations to be promul-
gated from time to time by the Secretary of State of the
United States.

(d) To the sale, barter, exchange, or giving away of
any of the aforesaid drugs to any officer of the United
States Government or of any State, territorial, district,
county, or municipal or insular government lawfully en-
gaged in making purchases thereof for the various de-
partments of the Army and Navy, the Public Health
Service, and for Government, State, territorial, district,
county, or municipal or insular hospitals or prisons.

The Commissioner of Internal Eevenue, with the ap-
proval of the Secretary of the Treasury, shall cause suit-
able forms to be prepared for the purposes above men-
tioned, and shall cause the same to be distributed to
collectors of internal revenue for sale by them to those
persons who shall have registered and paid the special
tax as required by Section 1650 of this Act in their dis-
tricts, respectively; and no collector shall sell any of such
forms to any persons other than a person who has regis-
tered and paid the special tax as required by section one
of this Act in his district. The price at which such
forms shall be sold by said collectors shall be fixed by
the Commissioner of Internal Revenue, with the approval
of the Secretaiy of the Treasury, but shall not exceed
the sum of $1.00 per hundred. Every collector shall keep
an account of the number of such forms sold by him, the

1216 Criminal Law

name of the purchaser thereof to be plainly written or
stamped thereon before delivering the same; and no per-
son other than such purchaser shall use any of said forms
bearing the name of such purchaser for the purpose of
procuring any of the aforesaid drugs, or furnish any of
the forms bearing the name of such purchaser to any
person with intent thereby to procure the shipment or
delivery of any of the aforesaid drugs. It shall be unlaw-
ful for any person to obtain by means of said order fonns
any of the aforesaid drugs for any purpose other than
the use, sale, or distribution thereof by him in the con-
duct of a lawful business in said drugs or in the legitimate
practice of his profession.

The provisions of this Act shall apply to the United
States, the District of Columbia, the Territory of Alaska,
the Territory of Hawaii, the insular possessions of the
United States, and the Canal Zone. In Porto Rico and
the Philippine Islands the administration of this Act, the
collection of the said special tax, and the issuance of
the order forms specified in Section 1649 shall be per-
formed by the appropriate internal-revenue officers of
those governments, and all revenues collected hereunder
in Porto Rico and the Philippine Islands shall accrue in-
tact to the general governments thereof, respectively. The
courts of first instance in the Philippine Islands shall
possess and exercise jurisdiction in all cases arising under
this Act in said islands. The President is authorized and
directed to issue such Executive orders as will cany into,
effect in the Canal Zone the intent and purpose of this
Act by providing for the registration and the imposition
of a special lax upon all persons in the Canal Zone who
produce, import, compound, deal in, dispense, sell, dis-
tribute, or give away opium or coca leaves, their salts,
derivatives, or preparations.®'

83— Sec. 2, Act Dec. 17, 1914, 38
Htat. 786.

Violations ok Internal Revenue 1217

§ 1650. Any person must pay tax to manufacture, im-
port, etc., opium or coca leaves. That on and after the
first day of March, nineteen hundred and fifteen, every
person who produces, imports, manufactures, compounds,
deals in, dispenses, sells, distributes, or gives away
opium or coca leaves or any compound, manufacture, sale,
derivative, or preparation thereof, shall register with
the collector of internal revenue of the district his name
or style, place of business, and place or places where
such business is to be carried on: Provided, That the
ofiice or if none, then the residence of any person shall
be considered for the purposes of this Act to be his place
of business. At the time of such registiy and on or be-
fore the first day of July, annually thereafter, every per-
son who produces, imports, manufactures, compounds,
deals in, dispenses, sells, distributes or gives away any
of the aforesaid diTigs shall pay to the said collector a
special tax at the rate of $1.00 per annum: Provided,
That no employee of any person who produces, imports,
manufactures, compounds, deals in, dispenses, sells, dis-
tributes, or gives away any of the aforesaid drugs, acting
within the scope of his employment, shall be required to
register or to pay the special tax provided by this sec-
tion: Provided further, That the person who employs
him shall have registered and paid the special tax as
required by this section : Provided further. That officers
of the United States Government who are lawfully en-
gaged in making purchases of the above-named drugs
for the various departments of the Army and Navy, the
Public Health Service, and for Government hospitals and
prisons, and offices of any State government, or of any
county or municipality therein, who are lawfully en-
gaged in making purchases of the above named drugs
for State, county, or municipal hospitals or prisons, and
officials of any Territory or insular possession or the
District of Columbia or of the United States who are
lawfully engaged in making purchases of the above-

C. L.— 77

1218 Crimixal Law

named drugs for hospitals or prisons therein shall not
be required to register and pay the special tax as herein
required.

It shall be unlawful for any person required to register
under the tenns of this Act to produce, import, manufac-
ture, compound, deal in, dispense, sell, distribute, or give
away any of the aforesaid drugs without having regis-
tered and paid the special tax provided for in this section.

That the word ''person" as used in this Act shall be
construed to mean and include a partnership, associa-
tion, company, or corporation, as well as a natural per-
son; and all provisions of existing law relating to special
taxes, so far as applicable, including the provisions of
section thirty-two hundred and forty of the Kevised
Statutes of the United States are hereby extended to the
special tax herein imposed.

That the Commissioner of Internal Eovenue, with the
approval of the Secretaiy of the Treasury, shall make all
needful rules and regulations for carrying the provisions
of this Act into effect."

§ 1651. General Revenue Act, July 20, 1868— Fraudu-
lent gauging, etc. Every ganger who makes any false or
fraudulent inspection, gauging, or proof shall pay a pen-
alty of one thousand dollars, and be lined not less than
five hundred dollars nor more than five thousand dollars,
and imprisoned not less than three months nor more than
three years.^''

84— Sec. 1, Dec. 17, 1914, 38 85— E. S. 3292, Act .July 20, 1868,

Stat. 785. 15 Stat. 147.

CHAPTER LXXX

THE SLAVE TEADE AND PEONAGE

CHAPTER TEN

Penal Code Act, March 4, 1909

§ 1654. Confining or detaining slaves § 1667.

on board vessel.
§ 1655. Seizing slaves on foreign § 1668.

shore.
§ 1656. Bringing slaves into the § 1669.

United States.
§ 1657. Equipping vessels for slave § 1670.

trade.
§ 1658. Transporting persons to be § 1671.

held as slaves.
§ 1659. Hovering on coast with § 1672.

slaves on board.
§ 1660. Ser\-ing in vessels engaged § 1673.

in the slave trade.
§ 1661. Eeceiving or carrying away § 1674.

any person to be sold or

held as a slave. § 1675.

§ 1662. Equipping, etc., vessel for

slave trade. § 1676.

§ 1663. Penalty on persons building, § 1677.

equipping, etc.
§ 1664. Forfeiture of vessel trans- § 1678.

porting slaves.
§ 1665. Eeceiving persons on board § 1679.

to be sold as slaves.
§ 1666. Vessels found hovering on

coast.

Forfeiture of interest in
vessels transporting slaves.

Seizure of vessels engaged
in the slave trade.

Proceeds of condemned ves-
sel, how distributed.

Disposal of persons found on
board seized vessel.

Apprehension of officers and
crew.

Eemoval of persons deliv-
ered from seized vessels.

To what port captured ves-
sels sent.

When owners of foreign ves-
sels shall give bond.

Instructions to commanders
of armed vessels.

Kidnapping.

Holding or returning per-
sons to peonage.

Obstructing enforcement of
preceding section.

Bringing kidnapped persons
into United States.

§ 1654. Confining or detaining- slaves on board vessel.
Sec. 246. Whoever, being- of the crew or ship's company
of any foreign vessel engaged in the slave trade, or being
of the crew or ship's company of any vessel owned
wholly or in part, or navigated for or in behalf of any
citizen of the United States, forcibly confines or detains

1219

1220 Criminal Law

on board such vessel any person as a slave, or, on board
such vessel, offers or attempts to sell as a slave any such
person, or on the high seas, or anywhere on tide water,
transfers or delivers to any other vessel any such person
with intent to make such person a slave, or lands or de-
livers on shore from on board such vessel any person
with intent to make sale of, or having previously sold
such person as a slave, is a pirate, and shall be imprisoned
for life.

§ 1655. Seizing- slaves on foreign shore. Sec. 247. Who-
ever, being of the crew or ship's company of any foreign
vessel engaged in the slave trade, or being of the crew
or ship's company of any vessel owned in whole or part,
or navigated for, or in behalf of, any citizen of the United
States, lands from such vessel, and on any foreign shore,
seizes any person with intent to make such person a
slave, or decoys, or forcibly brings, or carries or receives
such person on board such vessel, with like intent, is a
pirate, and shall be imprisoned for life.

§ 1656. Bringing slaves into the United States. Sec.
248. Whoever brings within tlie jurisdiction of the United
States, in any manner whatsoever, any person from any
foreign kingdom or country, or from sea, or holds, sells,
or otherwise disposes of, any person so brought in, as
a slave, or to be held to service or labor, shall be fined
not more than ten thousand dollars, one-half to the use
of tlie United States and tlio other half to the use of
the party who prosecutes and indictment to effect; and,
moreover, sliall ])c imprisoned not more than seven years.

§ 1657. Equipping- vessels for slave trade. Sec. 249.
Whoever buihls, iits out, equips, h)ads, or otherwise pre-
pares, or sends away, eitlicr as master, factor, or owner,
any vessel, in any port or place witliin the jurisdiction
of the United Slates, oi- (tauscs such vessel to sail from
any port or place whatsoever, within such jurisdiction,
for the pui-pose of procuring any person from any foreign

The Slave Trade and Peonage 1221

kingdom or country to be transported to any port or
place whatsoever, to be held, sold, or otherwise disposed
of as a slave, or held to service or labor, shall be fined not
more than five thousand dollars, one half to the use of
the United States and the other half to the use of the
person prosecuting the indictment to effect; and shall,
moreover, be imprisoned not more than seven years.

§ 1658. Transporting persons to be held as slaves. Sec.

250. Whoever, within the jurisdiction of the United
States, takes on board, receives, or transports from any
foreign kingdom or country, or from sea, any person in
any vessel, for the purpose of holding, selling, or other-
wise disposing of such person as a slave, or to be held to
service or labor, shall be punished as prescribed in the
section last preceding.

§ 1659. Hovering on coast with slaves on board. Sec.

251. Whoever, being the captain, master, or commander
of any vessel found in any river, port, bay, harbor, or on
the high seas, within the jurisdiction of the United
States, or hovering on the coast thereof, having on board
any person, for the purpose of selling such person as a
slave, or with intent to land such person for any such
purpose, shall be fined not more than ten thousand dol-
lars and imprisoned not more than four years.

§ 1660. Serving in vessels engaged in slave trade. Sec.

252. Whoever, being a citizen of the United States, or
other person residing therein, voluntarily serves on board
of any vessel employed or made use of in the transporta-
tion of slaves from any foreign country or place to an-
other, shall be fined not more than two thousand dollars
and imprisoned not more than two years.

§ 1661. Receiving or carrying away any person to be
sold or held as a slave. Sec. 253. Wlioever, being the
master or owner or person having charge of any vessel.

1222 Criminal Law

receives on board any other person, with the knowledge
or intent that such person is to be carried from any place
subject to the jurisdiction of the United States to any
other place, to be held or sold as a slave, or carries away
from any place subject to the jurisdiction of the United
States any such person, with the intent that he may be
so held or sold as a slave, shall be fined not more than
five thousand dollars, or imprisoned not more than five
years, or both.

§ 1662. Equipping, etc., vessel for slave trade. Sec. 254.
No person shall, for himself or for another, as master,
factor, or owner, build, fit, equip, load, or otherwise pre-
pare any vessel in any port or place within the jurisdic-
tion of the United States, or cause any vessel to sail from
any port or place within the jurisdiction of the United
States for the purpose of procuring any person from any
foreign kingdom, place, or country to be transported to
any port or place whatsoever, to be held, sold, or other-
wise disposed of, as a slave, or to be held to service or
labor; and every vessel so built, fitted out, equipped,
laden, or otherwise prepared, with her tackle, apparel,
furniture, and lading, shall be forfeited; one moiety to
the use of the United States and the other to the use of
the person who sues for the forfeiture and prosecutes the
same to effect.

§ 1663. Penalty on person building, equipping, etc.
Sec. 255. Whoever so l)uikls, fits out, equips, loads, or
otherwise prepares or sends away any vessel, knowing or
intending that the same shall be employed in such trade
or ])usiness, contraiy to tlie provisions of the section last
preceding, or in any way aids or abets therein, shall,
besides tlie forfeiture of the vessel, pay the sum of two
tliousand dollars; one moiety thereof to the use of the
United States and the other moietv thereof to the use of

The Slave Trade and Peonage 1223

the person who sues for and prosecutes the same to
effect.

§ 1664. Forfeiture of vessel trajisporting- slaves. Sec.
256. Every vessel employed in carrying on the slave
trade or on which is received or transported any person
from any foreign kingdom or country, or from sea, for
the purpose of holding, selling, or otherwise disposing of
such person as a slave, or of holding such person to serv-
ice or labor, shall, together with her tackle, apparel, fur-
niture, and the goods and effects which may be found on
board, or which may have been imported thereon in the
same voyage, be forfeited; one moiety to the use of the
United States and the other to the use of the person w^ho
sues for and prosecutes the forfeiture to effect.

§ 1665. Receiving persons on board to be sold as slaves.
Sec. 257. Whoever, being a citizen of the United States,
takes on board, receives, or transports any person for
the purpose of selling such person as a slave shall, in
addition to the forfeiture of the vessel, pay for each per-
son so received on board or transported the sum of two
hundred dollars, to be recovered in any court of the
United States; the one moiety thereof to the use of the
United States and the other moiety to the use of the per-
son who sues for and prosecutes the same to effect.

§ 1666. Vessels found hovering on coast. Sec. 258.
Every vessel which is found in any river, port, bay, or
harbor, or on the high seas, within the jurisdiction of
the United States, or hovering on the coasts thereof, and
having on board any person, with intent to sell such
person as a slave, or with intent to land the same for
that purpose, either in the United States or elsewhere,
shall, together with her tackle, apparel, furniture, and
the goods or effects on board of her, be forfeited to the
United States.

1224 Ckimhstal Law

§ 1667. Forfeiture of interest in vessels transporting
slaves. See. 259. It shall be unlawful for any citizen of
the United States, or other person residing therein, or
under the jurisdiction thereof, directly or indirectly to
hold or have any right or property in any vessel employed
or made use of in the transportation or carrying of slaves
from one foreign country or place to another, and any
such right or property shall be forfeited, and may be
libeled and condemned for the use of the person suing
for the same. Whoever shall violate the prohibition of
this section shall also forfeit and pay a sum of money
equal to double the value of his right or property in such
vessel; and shall also forfeit a sum of money equal to
double the value of the interest he had in the slaves which
at any time may be transported or carried in such vessels.

§ 1668. Seizure of vessels engaged in the slave trade.
Sec. 260. The President is authorized, when he deems it
expedient, to man and employ any of the armed vessels
of the United States to cruise wherever he may judge
attempts are being made to cany on the slave trade, by
citizens or residents of the United States, in contravention
of laws prohibitory of the same; and, in such case, he
shall instruct the commanders of such armed vessels to
seize, take, and bring into any port of the United States,
to be proceeded against according to law, all American
vessels, wheresoever found, which may have on board,
or wliich may be intended for the purpose of taking on
board, (u- of transporting, or may have transported any
person, in violation of the provisions of any Act of Con-
gress prohibiting tlie traffic in slaves.

§ 1669. Proceeds of condemned vessels, how distrib-
uted. Sec. 201. Tlic proceeds of all vessels, their tackle,
ajiparel, and ruinitiirc, and tlie goods and effects on board
of tlicni, wliicli are so seized, })rosecnlcd, and coiideniiiod,
shall be p;ii(i into llif Trcnsury of llic riiilcd Slates.

The Slave Trade and Peonage 122.1

§ 1670. Disposal of persons found on board seized ves-
sel. Sec. 2G2. The oflicers of the vessel making- such
seizure shall safely keep every person found on board of
any vessel so seized, taken, or brought into port for con-
demnation, and shall deliver every such person to the
marshal of the district into which he may be brought, if
into a port of the United States, or if elsewhere, to such
person as may be lawfully appointed by the President,
in the manner directed by law, transmitting to the Pres-
ident, as soon as may be after such delivery, a descrip-
tive list of such persons, in order that he may give direc
tions for the disposal of them.

§ 1671. Apprehension of officers and crew. Sec. 263.
The commanders of such commissioned vessels shall cause
to be apprehended and taken into custody every person
found on board of such offending vessel so seized and
taken, being of the officers or crew thereof, and him
convey, as soon as conveniently may be, to the civil
authority of the United States, to be proceeded against
in due course of law.

§ 1672. Removal of persons delivered from seized ves-
sels. Sec. 264, The President is authorized to make such
regulations and arrangements as he may deem expedient
for the safekeeping, support, and removal beyond the
limits of the United States of all such persons as may
be so delivered and brought within its jurisdiction.

§ 1673. To what port captured vessels sent. Sec. 265.
It shall be the duty of the commander of any armed vessel
of the United States, whenever he makes any capture
under the preceding provisions, to bring the vessel and
her cargo, for adjudication, into some port of* the State,
Territory, or District to which such vessel so captured
may belong, if he can ascertain the same; if not, then
into any convenient port of the United States.

1226 Crimixal Law

§ 1674. When owners of foreign vessels shall give bond.
Sec. 266. Every owner, master, or factor of any foreign
vessel clearing from any port within the jurisdiction of
the United States, and suspected to be intended for the
slave trade, and the suspicion being declared to the officer
of the customs by any citizen, on oath, and such informa-
tion being to the satisfaction of the officer, shall first
give bond, with sufficient sureties, to the Treasurer of
the United States that none of the natives of any other
foreign country or place shall be taken on board such
vessel to be transported or sold as slaves in any other
foreign port or place whatever, within nine months there-
after.

§ 1675. Instructions to commanders of armed vessels.
Sec. 267. The President is authorized to issue instructions
to the commanders of the armed vessels of the United
States, directing them, whenever it is practicable, and
under such rules and regulations as he may prescribe, to
proceed directly to the country from which they were
taken, and there hand over to the agent of the United
States all such persons, delivered from on board vessels
seized in the prosecution of the slave trade; and they
shall afterward bring the captured vessels and persons
engaged in prosecuting sucli trade to the United States
for trial and adjudication.

§ 1676. Kidnapping. Sec. 268. Whoever kidnaps or
carries away any otlii'i- person, with the intent lliat such
other person be sold into involuntary servitude, or liekl
as a slave; oi- w lio entices, persuades, or iiuhices any other
person to go on boai-d any vessel or to any other place
with tlie intent tliat lie may be made or lichl as a slave, or
sent out of the countiy to be so made or held; or who
in any way knowingly aids in causing any other person
to be held, sold, or carried away to be held or sold as a

The Slave Trade and Peonage 1227

slave, shall be fined not more than five thousand dollars,
or imprisoned not more than five years, or both.

§ 1677. Holding- or returning- person to peonag-e. Sec.
269. Whoever holds, arrests, returns, or causes to be held,
arrested, or returned, or in any manner aids in the arrest
or return of any person to a condition of peonage, shall
be fined not more than five thousand dollars, or impris-
oned not more than five years, or both.

§ 1678. Obstructing execution of above. Sec. 270. Who-
ever obstructs, or attempts to obstruct, or in any way
interferes with or prevents the enforcement of the section
last preceding, shall be liable to the penalties therein
prescribed.

§ 1679. Bringing- kidnapped persons into United States.
Sec. 271. Whoever shall knowingly and wilfully bring
into the United States or any place subject to the juris-
diction thereof, any person inveigled or forcibly kid-
napped in any other country, with intent to hold such
person so inveigled or kidnapped in confinement or to
any involuntary servitude; or whoever shall knowingly
and wilfully sell, or cause to be sold, into any condition
of involuntary servitude, any other person for any term
whatever; or whoever shall knowingly and wilfully hold
to involuntary servitude any person so bought or sold,
shall be fined not more than five thousand dollars and
imprisoned not more than five years.

CHAPTER LXXXI

SEARCH WARRANTS

§ 1682. Search warrant, by whom is- § 1694.
sued.

§ 1683. Grounds for issuing.

§ 1684. Must issue upon probable § 1695.
cause.

§ 1685. Officer must require affi- § 1696.
davits.

§ 1686. Affidavits .must set forth

grounds for. § 1697.

§ 1687. If grounds set forth are suf-
ficient officer must issue.

§ 1688. No one can serve warrant § 1698.
unless directed in instru-
ment. § 1699.

§ 1689. Officer may break doors and

windows in serving. § 1700.

§ 1690. May break outer and inner

door to liberate assistant. § 1701.

§ 1691. Judge must insert that serv-
ice of warrant be served § 1702.
in day time.

§ 1692. Warrant must be returned §1703.
in ten days.

§ 1693. When property is taken copy § 1704.
of warrant must be given.

Warrant must be returned
forthwith with written in-
ventory.

Judge or commissioner must
deliver copy of inventory.

If things alleged are con-
troverted must take testi-
mony.

If property is not same de-
scribed in warrant must be
restored.

All papers must be filed with
the clerk.

Punishment for resisting is-
suance and service.

Perjury to make fake af-
fidavit and oath.

Punishment for maliciously
procuring.

Punishment of officer exceed-
ing authority.

As to aiding foreign govern-
ment.

Existing provision for search
warrants not affected.

§ 1682. Search warrant, by whom issued. Section 1. A
search warrant authorized by this title may be issued by
a judge of a United States district court, or by a judge of
a State or Territorial court of record, or by the United
States commissioner for the district wherein the property
sought is located.

§ 1683. Grounds for issuing-. Sec. 2. A search warrant
maybe issued under tliis tilloupo]) cillio?- of tlio following
grounds:

1228

Search Warrants 1229

1. When the property was stolen or embezzled in vio-
lation of a law of the United States; in which case it may
be taken on the waiTant from any house or other place
in which it is concealed, or from the possession of the
person by whom it was stolen or embezzled, or from any
person in whose possession it may be.

2. When the property was used as the means of com-
mitting a felony; in which case it may be taken on the
warrant from any house or other place in which it is
concealed, or from the possession of the person by whom
it was used in the commission of the offense, or from
any person in whose possession it may be.

3. When the property, or any paper, is possessed, con-
trolled, or used in violation of section twenty-two of this
title ; in which case it may be taken on the warrant from
the person violating said section, or from any person in
whose possession it may be, or from any house or other
place in which it is concealed.

§ 1684. Must issue upon probable cause. Sec. 3. A
search warrant can not be issued but upon probable
cause, supported by affidavit, naming or describing the
person and particularly describing the property and the
place to be searched.

§ 1685. Officer must require affidavits. See. 4. The judge
or commissioner must, before issuing the warrant, ex-
amine on oath the complainant and any witness he may
produce, and require their affidavits or take their deposi-
tions in writing and cause them to be subscribed by the
parties making them.

§ 1686. Affidavits must set forth grounds for. Sec. 5.
The affidavits or depositions must set forth the facts tend-
ing to establish the grounds of the application or prob-
able cause for believing that they exist.

§ 1687. If grounds set forth are sufficient officer must
issue. Sec. 6. If the judge or commissioner is thereupon

1230 Ckiminal Law

satisfied of the existence of the grounds of the application
or that there is probable cause to believe their existence,
he must issue a search warrant, signed by him with his
name of office, to a civil officer of the United States duly
authorized to enforce or assist in enforcing any law
thereof, or to a person so duly authorized by the Pres-
ident of the United States, stating the particular grounds
or probable cause for its issue and the names of the per-
sons whose affidavits have been taken in support thereof,
and conmaanding him forthwith to search the person or
place named, for the property specified, and to bring it
before the judge or commissioner.

§ 1688. No one can serve warrant unless directed in
instniment. Sec. 7. A search warrant may in all cases be
served by any of the officers mentioned in its direction,
but by no other person, except in aid of the officer on his
requiring it, he being present and acting in its execution.

§ 1689. Officer may break doors and windows in serving.
Sec. 8. The officer may break open any outer or inner
door or window of a house, or any part of a house, or
anything therein, to execute the warrant, if, after notice
of his authority and purpose, he is refused admittance.

§ 1690. May break outer and inner door to liberate
assistant. Sec. 9. lie may break open any outer or inner
door or window of a house for the purpose of liberating
a person who, having entered to aid him in the execution
of the warrant, is detained therein, or when necessary
for his own liberation.

§ 1691. Judge must insert that service of warrant be
served in day time. Sec. 10. 'I'he Judge or commissioner
iinist insert ;i direction in tlie warrant that it l)o served
in the dayiinie, unless llie affidavits are positive tliat the
property is on tlic person or in tlio place to be searched,

Search Waerakts V2'61

in which case he may insert a direction that it be served
at any time of the day or night.

§ 1692. Warrant must be returned in ten days. Sec. 11.
A search warrant must be executed and returned to thef
judge or commissioner who issued it within ten days after
its date; after the expiration of this time the warrant,
unless executed, is void.

§ 1693. When property is taken copy of warrant must
be given. Sec. 12. When the officer takes property under
the warrant, he must give a copy of the warrant together
with a receipt for the property taken (specifying it in
detail) to the person from whom it was taken by him,
or in whose possession it was found; or, in the absence
of any person, he must leave it in the place where he
found the property.

§ 1694. Warrant must be returned forthwith with writ-
ten inventory. Sec. 13. The officer must forthwith return
the warrant to the judge or commissioner and deliver to
him a written inventory of the property taken, made
publicly or in the presence of the person from whose
possession it was taken, and of the applicant for the
warrant, if they are present, verified by the affidavit of
the officer at the foot of the inventory and taken before
the judge or commissioner at the time, to the following
elfect: "I, R. S., the officer by whom this warrant was
executed, do swear that the above inventory contains
a true and detailed account of all the property taken by
me on the warrant.'*

§ 1695. Judge or commissioner must deliver copy of
inventory. Sec. 14. The judge or commissioner must
thereupon, if required, deliver a copy of the inventory to
the person from whose possession the property was taken
and to the applicant for the warrant.

1232 Criminal Law

§ 1696. If thing's alleged are controverted must take
testimony. Sec. 15. If the grounds on which the warrant
was issued be controverted, the judge or commissioner
must proceed to take testimony in relation thereto, and
the testimony of each witness must be reduced to writing
and subscribed by each witness.

§ 1697. If property is not same described in warrant
must be restored. Sec. 16. If it appears that the property
or paper taken is not the same as that described in the
warrant or that there is no probable cause for believing
the existence of the grounds on which the warrant was
issued, the judge or commissioner must cause it to be
restored to the person from whom it was taken; but if
it appears that the property or paper taken is the same
as that described in the warrant and that there is prob-
able cause for believing the existence of the grounds on
which the warrant was issued, then the judge or commis-
sioner shall order the same retained in the custody of
the person seizing it or to be otherwise disposed of ac-
cording to law.

§ 1698. All papers must be filed with the clerk. Sec. 17.
The judge or commissioner must annex the aflidavits,
search warrant, return, inventory, and evidence, and
if he has not power to inquire into the offense in respect
to which the warrant was issued he must at once file the
same together with a copy of the record of his proceed-
ings with the clerk of the court having power to so in-
quire.

§ 1699. Punishment for resisting issuance and service.
Sec. 18. Whoever shall knowingly .•iiid wiiriilly obstruct,
resist, or oppose any such oflicer or person in serving or
attempting to sei-ve or execute any such search warrant,
or sliall assault, beat, or wound any sucli oflicer or person,
knowing liim to be an officer or person so authorized,
sliall he fined not more than $1,000 or imprisoned not
more than two years.

Search Warrants 1233

§ 1700. Perjury to make false affidavit and oath. Sec.
19. Sections one hundred and twenty-five and one hun-
dred and twenty-six of the Criminal Code of the United
States shall apply to and embrace all persons making
oath or affinnation or procuring the same under the pro-
visions of this title, and such persons shall be subject to
all the pains and penalties of said sections.

§ 1701. Punishment for maliciously procuring". Sec. 20.
A person who maliciously and without probable cause
procures a search warrant to be issued and executed shall
be fined not more than $1,000 or imprisoned not more
than one year.

§ 1702. Punishment of officer exceeding- authority.
Sec. 21. An officer who in executing a search warrant
wilfully exceeds his authority, or exercises it with unnec-
essary severity, shall be fined not more than $1,000 or
imprisoned not more than one year.

§ 1703. As to aiding- foreign government. Sec. 22. Who-
ever, in aid of any foreign government, shall knowingly
and wilfully have possession of or control over any prop-
erty or papers designed or intended for use or which is
used as the means of violating any penal statute, or any
of the rights or obligations of the United States under
any treaty or the law of nations, shall be fined not more
than $1,000 or imprisoned not more than two years, or
both.

§ 1704. Existing provision for search warrants not af-
fected. Sec. 23. Nothing contained in this title shall be
held to repeal or impair any existing provisions of law
regulating search and the issue of search warrants.^

1— Part 1, 40 U. S. Stat, at Large,
Title XI, pages 228, 229 and 230,
Act Congress, June 15, 1917.
C. L.— 78

§ 1707.
§ 1708.
§ 1709.
§ 1710.
§1711.
§ 1712.
§ 1713.
§ 1714.
§1715.
§1716.
§ 1717.
§ 1718.

CHAPTER LXXXII

PIRACY AND OTHER OFFENSES UPON THE SEAS

CHAPTER TWELVE

Penal Code Act, March 4, 1909

Piracy under the law of attempting to destroy ves-

nations. sel at sea.

Maltreatment of crew by § 1719. Robliery on shore by crew of

officers of vessel. piratical vessel.

Inciting revolt or mutiny on § 1720. Arming vessel to cruise

shipboard. against citizens of the

Revolt and mutiny on ship- United States.

board. § 1721. Piracy under color of a

Seaman laying violent hands
on his commander.

Al)andonmcnt of mariners in
foreign ports.

Conspiracy to cast away ves-
sel.

Plundering vessel in distress,
etc.

Attacking vessel with intent
to plunder.

Breaking and entering ves-
sel, etc.

Owner destroying vessel at
sea.

Other per.sons destroying or

foreign commission.

§ 1722. Piracy by subjects or citi-
zens of a foreign state.

§ 1723. Running away with or yield-
ing up vessel or cargo.

§ 1724. Confederating, etc., witli pi-
rates.

§ 1725. Sale of arms and intoxicants
forbidden in Pacific Is-
lands.

§ 1726. Offenses under preceding
section deemed on high
seas.

§ 1727. "Vessels of the United
States" defined.

§ 1707. Piracy under the law of nations. Sec. 290. Who-
ever, (JH the hi^h seas, coiiiinils the crime of piracy as
(lefined by the hxw of iiatH)ns, and is afterwards brought
into or found in tlie United States, shall be imprisoned
for life.

§ 1708. Maltreatment of crew by officers of vessel. Sec.
'Jin. Wiiocvcr, l)cing tlie master or officer of a vessel of
the United States, on the high seas, or on any other waters

1234

Piracy and Other Offenses Upon the Seas 1235

witliin the admiralty and maritime jurisdiction of the
United States, beats, wounds, or without justifiable cause,
imprisons any of the crew of such vessel, or withholds
from them suitable food and nourishment, or inflicts upon
them any cruel and unusual punishment, shall be fined
not more than one thousand dollars, or imprisoned not
more than five years, or both. Nothing herein contained
shall be construed to repeal or modify section forty-six
hundred and eleven of the Revised Statutes.

§1709. Inciting^ revolt or mutiny on shipboard. Sec.
292. Whoever, being of the crew of a vessel of the United
States, on the high seas, or on any other waters within
the admiralty and maritime jurisdiction of the United
States, endeavors to make a revolt or mutiny on board
such vessel, or combines, conspires, or confederates with
any other person on board to make such revolt or mutiny,
or solicits, incites, or stirs up any other of the crew to
disobey or resist the lawful orders of the master or other
officer of such vessel, or to refuse or neglect their proper
duty on board thereof, or to betray their proper trust, or
assembles with others in a tumultuous and mutinous
manner, or makes a riot on board thereof, or unlawfully
confines the master or other commanding officer thereof,
shall be fined not more than one thousand dollars, or im-
prisoned not more than five years, or both.

§ 1710. Revolt and mutiny on shipboard. Sec. 293.
Whoever, being of the crew of a vessel of the United
States, on the high seas, or on any other waters within
the admiralty and maritime jurisdiction of the United
States, unlawfully and with force, or by fraud, or intimi-
dation, usurps the command of such vessel from the mas-
ter or other lawful officer in command thereof, or de-
prives him of authority and command on board, or resists
or prevents him in the free and lawful exercise thereof,
or transfers such authority and command to another not

1236 Criminal Law

lawfully entitled thereto, is guilty of a revolt and mutiny,
and shall be fined not more than two thousand dollars
and imprisoned not more than ten years.

§ 1711. Seaman laying violent hands on his commander.

Sec. 294. Whoever, being a seaman, lays violent hands
upon his commander, thereby to hinder and prevent his
fighting in defense of his vessel or the goods intrusted
to him, is a pirate, and shall be imprisoned for life.

§ 1712. Abandonment of mariners in foreign ports.
Sec. 295. AVhoever, being master or commander of a ves-
sel of the United States, while aboard, maliciously and
without justifiable cause forces any officer or mariner of
such vessel on shore, in order to leave him behind in any
foreign port or place, or refuses to bring home again all
such officers and mariners of such vessel whom he carried
out with him, as are in a condition to return and willing
to return, when he is ready to proceed on his homeward
voyage, shall be fined not more than five hundred dollars,
or imprisoned not more than six months, or both.

§ 1713. Conspiracy to cast away vessel. Sec. 296. Who-
ever, on the high seas, or within the United States, wil-
fully and corruptly conspires, combines, and confederates
with any other person, such other person being either
within or without the United States, to cast away or
otherwise destroy any vessel, with intent to injure any
person that may have undenvritten or may thereafter
underwrite any policy of insurance thereon or on goods
on board thereof, or with intent to injure any person that
has lent or advanced, or may lend or advance, any money
on such vessel on bottomiy or respondentia; or whoever,
within llif Ignited States, builds, or fits out, or aids in
building or fitting out, any vessel with intent that the
same be cast away or destroyed, with the intent herein-
before mentioned, shall be fined not more than ten thou-
sand dollars nnd imprisoned not more than ten years.

Piracy and Other Offenses Upon the Seas 1237

§ 1714. Plundering vessel in distress, etc. Sec. 297.
Whoever plunders, steals, or destroys any money, goods,
merchandise, or other effects, from or belonging to any
vessel in distress, or wrecked, lost, stranded, or cast
away, upon the sea, or upon any reef, shoal, bank, or
rocks of the sea, or in any other place within the ad-
miralty and maritime jurisdiction of the United States,
shall be fined not more than five thousand dollars and
imprisoned not more than ten years; and whoever wil-
fully obstructs the escape of any person endeavoring
to save his life from such vessel, or the wreck thereof;
or whoever holds out or shows any false light, or extin-
guishes any true light, with intent to bring any vessel
sailing upon the sea into danger, or distress, or ship-
wreck, shall be imprisoned not less than ten years and
may be imprisoned for life.

§ 1715. Attacking vessel with intent to plunder. Sec.
298. Whoever, upon the high seas or on any other waters
within the admiralty and maritime jurisdiction of the
United States, by surprise or by open force, maliciously
attacks or sets upon any vessel belonging to another, with
an intent unlawfully to plunder the same, or to despoil
any owner thereof of any moneys, goods, or merchandise
laden on board thereof, shall be fined not more than five
thousand dollars and imprisoned not more than ten years.

§ 1716. Breaking and entering vessel, etc. Sec. 299.
Whoever, upon the high seas or on any other waters
within the admiralty and maritime jurisdiction of the
United States, and out of the jurisdiction of any particu-
lar State, breaks or enters any vessel, with intent to com-
mit any felony, or maliciously cuts, spoils, or destroys
any cordage, cable, buoys, buoy rope, head fast, or other
fast, fixed to the anchor or moorings belonging to any
vessel, shall be fined not more than one thousand dollars
and imprisoned not more than five years.

1238 Criminal Law

§ 1717. Owner destro3dng vessel at sea. Sec. 300. Who-
ever, upon the high seas or on any other waters within
the admiralty and maritime jurisdiction of the United
States, wilfully and corruptly casts away or otherwise
destroys any vessel, of which he is owner, in whole or in
part, with intent to prejudice any person that may under-
write any policy of insurance thereon, or any merchant
that may have goods thereon, or any other owner of such
vessel, shall be imprisoned for life or for any term of
years.

§ 1718. Other persons destroying or attempting to de-
stroy vessel at sea. Sec. 301. Whoever, not being an
owner, upon the high seas or on any other waters within
the admiralty and maritime jurisdiction of the United
States, wilfully and corruptly casts away or otherwise
destroys any vessel of the United States to which he be-
longs, or, wilfully, with intent to destroy the same, sets
fire to any such vessel, or otherwise attempts the destruc-
tion thereof, shall be imprisoned not more than ten years.

§ 1719. Robbery on shore by crew of piratical vessel.
Sec. 302. Whoever, being engaged in any piratical cruise,
or entei^prise, or being of the crew of any piratical vessel,
lands from such vessel, and on shore commits robbery, is
a pirate, and shall be imprisoned for life.

§ 1720. Arming vessel to cruise aigainst citizens of the
United States. Sec. 303. Whoever, being a citizen of the
United States, without the limits thereof, fits out and
amis, or attempts to fit out and arm, or |)rocures to be
fitted out and armed, or knowingly aids or is concerned
in riiiiiishing, fitting out, or araiing, any private vessel
of war or privateer, with intent tliat sucli vessel shall ])e
em{)loyod to cruise or commit hostilities upon the citizens
of tlie United States, or their property, or whoever takes
the command of or enters on board of any such vessel.

Piracy and Other Offenses Upon the Seas 1239

for such intent, or who purchases any interest in any-
such vessel with a view to share in the profits thereof,
shall be fined not more than ten thousand dollars and
imprisoned not more than ten years. The trial for such
offense, if committed without the limits of the United
States, shall be in the district in which the offender shall
be apprehended or first brought.

§ 1721. Piracy under color of a forei^ commission.
Sec. 304. Whoever, being a citizen of the United States,
commits any murder or robbery, or any act of hostility
against the United States, or against any citizen thereof,
on the high seas, under color of any commission from
any foreign prince, or state, or on pretense of authority
from any person, is, notwithstanding the pretense of such
authority, a pirate, and shall be imprisoned for life.

§ 1722. Piracy by subjects or citizens of a foreign state.

Sec. 305. Whoever, being a citizen or subject of any for-
eign state, is found and taken on the sea making war upon
the United States, or cruising against the vessels and
property thereof, or of the citizens of the same, contrary
to the provisions of any treaty existing between the
United States and the state of which the offender is a
citizen or subject, when by such treaty such acts are
declared to be piracy, is guilty of piracy, and shall be
imprisoned for life.

§ 1723. Running" away with or yielding up vessel or
cargo. Sec. 306. Whoever, being a captain or other officer
or mariner of a vessel upon the high seas or on any other
waters within the admiralty and maritime jurisdiction
of the United States, piratically or feloniously runs away
with such vessel, or with any goods or merchandise
thereof, to the value of fifty dollars, or who yields up
such vessel voluntarily to any pirate, shall be fined not
more than ten thousand dollars, or imprisoned not more
than ten years, or both.

L240 Criminal Law

§1724. Confederating, etc., with pirates. Sec. 307.
Whoever attempts or endeavors to corrupt any com-
mander, master, officer, or mariner to yield up or to run
away with any vessel, or with any goods, wares, or mer-
chandise, or to turn pirate, or to go over to or confederate
with pirates, or in any wise to trade with any pirate,
knowing him to be such, or furnishes such pirate with
any ammunition, stores, or provisions of any kind, or fits
out any vessel knowingly and, with a design to trade
with, supply, or correspond with any pirate or robber
upon the seas; or whoever consults, combines, confeder-
ates, or corresponds with any pirate or robber upon the
seas, knowing him to be guilty of any piracy or robbery;
or whoever, being a seaman, confines the master of any
vessel, shall be fined not more than one thousand dollars
and imprisoned not more than three years.

§ 1725. Sale of arms and intoxicants forbidden in the
Pacific islands. Sec. 308. Whoever, being subject to the
authority of the United States, shall give, sell, or other-
wise supply any arms, ammunition, explosive substance,
intoxicating liquor, or opium to any aboriginal native of
any of the Pacific islands lying within the twentieth
parallel of north latitude and the fortieth parallel of
south latitude, and the one hundred and twentieth meri-
dian of longitude west and one hundred and twentieth
meridian of longitude east of Greenwich, not being in
the possession or under the protection of any civilized
power, shall be fined not more than fifty doHars, or ini-
[)risoned not more than three months, or both. In addi-
tion to such punishment, all articles of a similar nature
to those in respect lo wliich an offense has been com-
mitted,- found in tlie possession of the offender, may be
declared forfeited. If ii shall a])i)('ar lo the court that
such opium, wine, or sj/irits have been given bona fide
for medical ])urposcs, it shall be lawful for the court
to dismiss the charge.

Piracy and Other Offenses Upon thk Reas 1241

§ 1726. Offenses under preceding- section deemed on
high seas. Sec. 309. All offenses against the provisions
of the section last preceding, committed on any of said
islands or on the waters, rocks, or keys adjacent thereto,
shall be deemed committed on the high seas on board a
merchant ship or vessel belonging to the United States,
and the courts of the United States shall have jurisdiction
accordingly.

§1727. "Vessels of the United States" defined. Sec-
310. The words "vessels of the United States," wherever
they occur in this chapter, shall be construed to mean
a vessel belonging in whole or in part to the United
States, or any citizen thereof, or any corporation created
by or under the laws of the United States, or of any
State, Territory or District thereof.

CHAPTER LXXXIII

CERTAIN OFFENSES IN THE TEREITORIES

CHAPTER THIRTEEN
Penal Code Act, March 4, 1909

§ 1730. Places within Avhich sections § 1737. Fornication.

of this chapter shall apply. § 1738. Certificates of marriage ;
§ 1731. Circulation of obscene litera- penalty for failure to

ture; promoting abortion. record.

§ 1732. Polygamy. § 1739. Prize fights, bull fights, etc.

§1733. Unlawful cohabitation. §1740. Definition of "pugilistic en-
§1734. Joinder of counts. counter."

§ 1735. Adultery. § 1741. Train robberies in Terri-
§ 173G. Incest. tories, etc.

§ 1730. Places within which sections of this chapter
shall apply. Sec. 311. Except as otherwise expressly pro-
vided, the offenses defined in this chapter shall be pun-
ished as hereinafter provided, when committed within
any Territory or District, or within or npon any place
within the exclusive jurisdiction of the United States.

§1731. Circulation of obscene literature; promoting-
abortion; how punished. Sec. 312. Whoever shall sell,
lend, give away, or in any manner exhibit, or offer to sell,
lend, give away, or in any manner exhibit, or shall other-
wise publish or offer to publisli in any manner, or shall
have in his possession for any sucli purpose, any obscene
1m .ok, })aniphlet, paper, writing, advertisement, circular,
j>i"int, picture, drawing, or olhor representation, figure,
oi- image on or of paper or other material, or any cast, in-
strument, or otlier article of any immornl nature, or any
drug or medicine, or any artich^ whatever, for the pre-
vention of conception, or for causing unlawful abortion,
or sliall advertise the same for sal(\ or shall write or

1242

Certain Offenses in the Teeritories 1243

print, or cause to be written or printed, any card, circular,
book, pamphlet, advertisement, or notice of any kind,
stating when, where, how, or of whom, or by what means,
any of the articles above mentioned can be purchased or
obtained, or shall manufacture, draw, or print, or in any
wise make any of such articles, shall be fined not more
than two thousand dollars, or imprisoned not more than
five years, or both.

§ 1732. Polygamy. Sec. 313. Every person who has a
husband or wife living, who marries another, whether
married or single, and any man who simultaneously, or
on the same day, marries more than one woman, is guilty
of polygamy, and shall be fined not more than five hun-
dred dollars and imprisoned not more than five years.
But this section shall not extend to any person by reason
of any former marriage whose husband or wife by such
marriage shall have been absent for five successive years,
and is not known to such person to be living, and is be-
lieved by such person to be dead, nor to any person by
reason of any former marriage which shall have been
dissolved by a valid decree of a competent court, nor to
any person by reason of any former marriage which shall
have been pronounced void by a valid decree of a com-
petent court, on the ground of nullity of the marriage
contract.

§ 1733. Unlawful cohabitation. Sec. 314. If any m^ale
person cohabits with more than one woman, he shall be
fined not more than three hundred dollars, or imprisoned
not more than six months, or both.

§ 1734. Joinder of counts. Sec. 315. Counts for any or
all of the offenses named in the two sections last preced-
ing may be joined in the same information or indictment.

§1735. Adultery. Sec. 316. Whoever shall commit
adulteiy shall be imprisoned not more than three years;

1244 Criminal Law

and when the act is committed between a married woman
and a man who is unmarried, both parties to such act
shall be deemed guilty of adulteiy; and when such act
is committed between a married man and a woman who
is unmarried, the man shall be deemed guilty of adultery.

§1736. Incest. Sec. 317. Whoever, being related to an-
other person within and not including the fourth degree
of consanguinity computed according to the rules of the
civil law, shall marry or cohabit with, or have sexual in-
tercourse with such other so related person, knowing her
or him to be within said degree of relationship, shall be
deemed guilty of incest, and shall be imprisoned not more
than fifteen years.

§ 1737. Fornication. Sec. 318. If any unmarried man
or woman commits fornication, each shall be fined not
more than one hundred dollars, or imprisoned not more
than six months.

§ 1738. Certificates of marriage; penalty for failure to
record. Sec. 319. Every ceremony of marriage, or in the
nature of a marriage ceremony of any kind, whether
either or both or more of the parties to such ceremony be
lawfully competent to be the subjects of such marriage or
ceremony or not, shall be certified by a certificate stating
the fact and nature of such ceremony, the full name of
each of the parties concerned, and the full name of every
officer, priest, and person, by whatever style or designa-
tion called or known, in any way taking part in the per-
formance of such ceremony, which certificate shall be
drawn up and signed by the parties to such ceremony and
by every officer, priest, and person taking part in tlic per-
formance of such ceremony, and shall be by the officer,
priest, or other person solemnizing such marriage or cere-
mony filed in tlie office of the probate court, or, if there
be none, in the office of Iho court having probate powers
in the county or district in which such ceremony shall

Certain Offenses in the "rFKiuToiaEs 1245

take place, for record, and shall be immediately recorded,
and be at all times subject to inspection as other public
records. Such certificate, or the record thereof, or a duly
certified copy of such record, shall be prima facie evidence
of the facts required by this section to be stated therein
in any proceeding, civil or criminal, in which the matter
shall be drawn in question. But nothing in this section
shall be held to prevent the proof of marriages, whether
lawful or unlawful by any evidence otherwise legally
admissible for that purpose. Whoever shall wilfully vio-
late any provision of this section shall be fined not more
than one thousand dollars, or imprisoned not more than
two years, or both. The provisions of this section shall
apply only within the Territories of the United States.

§1739. Prize fights, bull fights, etc. Sec. 320. Whoever
shall voluntarily engage in a pugilistic encounter between
man and man or a fight between a man and a bull or any
other animal, for money or for other thing of value, or for
any championship, or upon the result of which any money
or anything of value is bet or wagered, or to see which
any admission fee is directly or indirectly charged, shall
be imprisoned not more than five years. The provisions
of this section shall apply only within the Territories of
the United States, and the District of Columbia.

§1740. ''Pugilistic encounter" defined. Sec. 321. By
the term "pugilistic encounter," as used in the section
last preceding, is meant any voluntaiy fight by blows by
means of fists or otherwise, whether with or without
gloves, between two or more men, for money or for a prize
of any character, or for any other thing of value, or for
any championship, or upon the result of which any money
or anything of value is bet or wagered, or to see which
any admission fee is directly or indirectly charged.

§1741. Train robberies in territories, etc. Sec. 322.
Whoever shall wilfully and maliciously trespass upon or

1l!46 Ceiminal, Law

enter upon any railroad train, railroad car, or railroad
locomotive, with the intent to commit murder, or robbery,
shall be fined not more than five thousand dollars, or im-
prisoned not more than twenty years, or both. Wlioever
shall wilfully and maliciously trespass upon or enter
upon any railroad train, railroad car, or railroad locomo-
tive, with intent to commit any unlawful violence upon
or against any passenger on said train, or car, or upon or
against any engineer, conductor, fireman, brakeman, or
any officer or employee connected with said locomotive,
train, or car, or upon or against any express messenger or
mail agent on said train or in any car thereof, or to com-
mit any crime or offense against any person or property
thereon, shall be fined not more than one thousand dollars,
or imprisoned not more than one year, or both. Whoever
siiall counsel, aid, abet, or assist in the perpetration of
any of the offenses set forth in this section shall be deemed
to be a principal therein. Upon the trial of any person
charged with any offense set forth in this section, it shall
not be necessary to set forth or prove the particular person
against whom it was intended to commit the offense, or
that it was intended to commit such offense against any
particular person.

CHAPTER LXXXIV

TELEGRAPHS AND EADIOS

§ 1744. Eefusal by telegraph under
Act Feb. 27, 1877, to
transmit messages subject
to penalty.

§ 1745. Railroads and telegraph
companies to which Gov-
ernment has granted a
subsidy are required to
maintain and operate tele-
graph lines.

§ 1746. Railroad and telegraph com-
panies refusing under Sec.
1, Act Aug. 7, 1888, to
maintain connecting lines
may apply to interstate
commerce commission for
relief.

§ 1747. Railroads and telegraph

companies operated under
Sec. 1, Act Aug. 7, 1888,
shall allow other telegraph
companies to connect with
them.

§ 1748. Punishment of officers and
agents of railroads and
telegraph companies fail-
ing to comply with pro-
visions of Act Aug. 7,
1888.

§ 1749. No use can be made of an
apparatus for radio com-
munication between states
without license, penalty.

§ 1750. Unlawful to employ unli-
censed person to operate
radio apparatus.

§ 1744. Refusal by tele^aph, under Act Feb. 27, 1877,
to transmit messages subject to penalty. Whenever any
telegraph company, after having filed its written accept-
ance with the Postmaster-General of the restrictions and
obligations required by the Act approved July twenty-
fourth, eighteen hundred and sixty-six, entitled ''An Act
to aid in the construction of telegraph lines, and to secure
to the Government the use of the same for postal, military,
and other purposes," or by this Title, shall, by its agents
or employees, refuse or neglect to transmit any such tele-
graphic communications as are provided for by the afore-
said Act, or by this Title, or by the provisions of section
two hundred and twenty-one, Title, ''The Department
of War, ' ' authorizing the Secretary of War to provide for
taking meteorological observations at the militaiy sta-

1247

1248 Ceimhstal Law

tions and other points of the interior of the continent,
and for giving notice on the northern lakes and sea-board
of the approach and force of storms, such telegraph com-
pany shall be liable to a penalty of not less than one hun-
dred dollars and not more than one thousand dollars for
each such refusal or neglect, to be recovered by an action
or actions at law in any district court of the United
States.^

§ 1745. Railroads and telegraph companies to which
g-Qvemment has granted a subsidy are required to main-
tain and operate telegraph lines. That all railroad and
telegraph companies to which the United States has
granted any subsidy in lands or bonds or loan of credit
for the construction of either railroad or telegraph lines,
which, by the Acts incoi-porating them, or by any Act
amendatory or supplementary thereto, are required to
construct, maintain, or operate telegraph lines, and all
companies engaged in operating said railroad or tele-
graph lines shall forthwith and henceforward, by and
through their own respective corporate officers and em-
ployees, maintain, and operate, for railroad. Govern-
mental, commercial, and all other purposes, telegraph
lines and exercise by themselves alone all the telegraph
franchises conferred upon them and obligations assumed
by them under the Acts making the grants as aforesaid.^

§ 1746. Railroad and telegraph companies refusing
under Sec. 1 Act August 7, 1888, to maintain connecting
lines may apply to interstate commerce commission for
relief. That if any such railroad or telegraph company
referred to in the first section of tliis Act, or company op-
erating such railroad or telegraph line shall refuse or fail,
in wliole or in part, to maintain, and operate a telegraph
line as providod in this Act and Acts to which this is sup-

1— T?. S. .'5200, Act Feb. 27, 1877, 2— Sec. 1, Act Aii>j. 7, 1888, 2^

10 Stat. 2.'52. Stat. 382.

Telegraphs and Radios 1249

plementary, for the use of the Government or the public,
for commercial and other purposes, without discrimina-
tion, or shall refuse or fail to make or continue such ar-
rangements for the interchange of business with any
connecting telegraph company, then any person, com-
pany, corporation, or connecting telegraph company may
apply for relief to the Interstate Commerce Commission,
whose duty it shall thereupon be, under such rules and
regulations as said Commission may prescribe, to ascer-
tain the facts, and determine and order what arrangement
is proper to be made in the particular case, and the rail-
road or telegraph company concerned shall abide by and
perform such order ; and it shall be the duty of the Inter-
state Commerce Commission, when such determination
and order are made, to notify the parties concerned, and,
if necessary, enforce the same by writ of mandamus in the
courts of the United States, in the name of the United
States, at the relation of either of said Interstate Com-
merce Commissioners; Provided, That the said Commis-
sioners may institute any inquiry, upon their own motion,
in the same manner and to the same effect as though com-
plaint had been made.^

§ 1747. Railroads and telegraph companies operated
under Sec. 1 Act Aug. 7, 1888, shall allow other telegraph
companies to connect with them. Tliat whenever any tele-
graph company which shall have accepted the provisions
of title sixty-five of the Revised Statutes shall extend its
line to any station or office of a telegraph line belonging
to any one of said railroad or telegraph companies, re-
ferred to in the first section of this Act, said telegraph
company so extending its line shall have the right and
said railroad or telegraph company shall allow the line of
said telegraph company so extending its line to connect
with the telegraph line of said railroad or telegraph com-

3— Sec. 3, Act Aug. 7, 1888, 25
Stat. 383.

C. L.— 79

1250 Crimixal Law

pany to which it is extended at the place where their lines
may meet, for the prompt and convenient interchange of
telegraph business between said companies; and such
railroad and telegraph companies, referred to in the first
section of this Act, shall so operate their respective tele-
graph lines as to afford equal facilities to all, without dis-
crimination in favor of or against any person, company,
or corporation whatever, and shall receive, deliver, and
exchange business with connecting telegraph lines on
equal terms, and affording equal facilities, and without
discrimination for or against any one of such connecting
lines ; and such exchange of business shall be on terms just
and equitable.*

§ 1748. Punishment of officers and agents of railroads
and telegraph companies failing to comply with provi-
sions of Act Aug. 7, 1888. That any officer or agent of
said railroad or telegraph companies, or of any company
operating the railroads and telegraph lines of said com-
panies, who shall refuse or fail to operate the telegraph
lines of said railroad or telegraph companies under his
control, or which he is engaged in operating, in the man-
ner directed in this Act and by the Acts to which it is sup-
plementary, or who shall refuse or fail, in such operation
and use, to afford and secure to the Government and the
public equal facilities, or to secure to each of said con-
necting telegraph lines equal advantages and facilities in
the interchange of business, as herein provided for, with-
out any discrimination whatever for or adverse to the
telegraph lino of any or either of said connecting com-
panies, or shall refuse to abide by, or perform and carry
out within a reasonable time the order or orders of the
Interstate Commerce Commission, shall in every such case
of refusal or failure be guilty of a misdemeanor, and, on
conviction thereof, shall in eveiy such case be fined in a

4_.Spc. 2, Act Aug. 7, 1888, 25
Stat. 383.

Telegraphs and Radios 1:251

sum of not exceeding one thousand dollars, and may be
imprisoned not less than six months; and in every such
case of refusal or failure the party aggrieved may not only
cause the officer or agent guilty thereof to be prosecuted
under the provisions of this section, but may also bring
an action for the damages sustained thereby against the
company whose officer or agent may be guilty thereof, in
the circuit or district court of the United States in any
State or Territory in which any portion of the road or
telegraph line of said company may be situated; and in
case of suit process may be served upon any agent of the
company found in such State or Territory, and such serv-
ice shall be held by tlie court good and sufficient,^

§ 1749. No use can be made of an apparatus for radio
communication between states without license, penalty.
That a person, company, or corporation within the juris-
diction of the United States shall not use or operate any
apparatus for radio communication as a means of com-
mercial intercourse among the several States, or with
foreign nations, or upon any vessel of the United States
engaged in interstate or foreign commerce, or for the
transmission of radiograms or signals the effect of which
extends beyond the jurisdiction of the State or Territoiy
in which the same are made, or where interference would
be caused thereby with the receipt of messages or signals
from beyond the jurisdiction of the said State or Terri-
tory, except under and in accordance with a license, revo-
cable for cause, in that behalf granted by the Secretary
of Commerce and Labor upon application therefor; but
nothing in this Act shall be construed to apply to the
transmission and exchange of radiograms or signals be-
tween points situated in the same State: Provided, That
the effect thereof shall not extend beyond the jurisdiction
of the said State or interfere with the reception of radio-

5— Sec. 5, Act Aug. 7, 1888, 25
Stat. 384.

1252 Ceimixal Law

gi'ams or signals from beyond said jurisdiction; and a
license shall not be required for the transmission or ex-
change of radiograms or signals by or on behalf of the
Government of the United States, but every Government
station on land or sea shall have special call letters desig-
nated and published in the list of radio stations of the
United States by the Department of Commerce and Labor.
Any person, company, or corporation that shall use or op-
erate any apparatus for radio communication in violation
of this section, or knowingly aid or abet another person,
company, or corporation in so doing, shall be deemed
guilty of a misdemeanor, and on conviction thereof shall
be punished by a fine not exceeding five hundred dollars,
and the apparatus or device so unlawfully used and oper-
ated may be adjudged forfeited to the United States.^

§ 1750. Unlawful to employ unlicensed person to oper-
ate radio apparatus. That every such apparatus shall at
all times while in use and operation as aforesaid be in
charge or under the supervision of a person or persons
licensed for that purpose by the Secretary of Commerce
and Labor. Every person so licensed who in the operation
of any radio apparatus shall fail to observe and obey
regulations contained in or made pursuant to this Act or
subsequent Acts or treaties of the United States, or any
one of til em, or who shall fail to enforce obedience thereto
by an unlicensed person while serving under his supervi-
sion, in addition to the punishments and penalties herein
prescribed, may suffer the suspension of the said license
for a period to be fixed by the Secretary of Commerce and
Labor not exceeding one year. It shall be unlawful to
employ any unlicensed person or for any unlicensed per-
son to serve in charge or in supervision of the use and
operation of such apparatus, and any person violating
this provision shall be guilty of a misdemeanor, and on

6— Sec. 1, Act Auk. 13, 1912, 37
HtJit. 302.

Telegraphs and Radios l-!5.'j

conviction thereof shall be punished by a fine of not more
than one hundred dollars or imprisonment for not more
than two months, or both, in the discretion of the court,
for each and every such offense: Provided, Tliat in case
of emergency the Secretary of Commerce and Labor may
authorize a collector of customs to issue a temporary per-
mit, in lieu of a license, to the operator on a vessel sub-
ject to the radio ship Act of June twenty-fourth, nine-
teen hundred and ten.''

7— Sec. 3, Act Aug. 13, 1912,
37 Stat. 303.

CHAPTER LXXXV

VIKUS AND SERUMS

§ 1753. No person shall sell or ex-
change from one state to
another virus or other
serums, etc.

§ 1754. Surgeon General of Army
and Navy and Marine Hos-
pital service shall make
regulations to Avhom li-
cense is granted.

§ 1755. No person shall interfere
Avith treasury department
under this Act.

§ 1756. No person shall falsely label
or mark any package or
container of virus or
serum.

§ 1757. Violations of provisions of
drug act July 1, 1902, gen-
eral provisions.

§ 1758. Act Mar. 4, 1913, selling
any worthless viruses for
treatment of animals, pen-
alty for violation.

§ 1753. No person shall sell or exchange from one state
to another virus or other serums, etc. That from and after
six months after the promulgation of the reguhitions au-
thorized by section four of this Act no person shall sell,
barter, or exchange, or offer for sale, barter, or exchange
in the District of Columbia, or send, carry, or bring for
sale, barter, or exchange from any State, Territory, or the
District of Columbia into any State, Territory, or tlio Dis-
trict of Columbia, or from any foreign country into the
United States or from the United States into any foreign
country, any virus, therapeutic serum, toxin, antitoxin, or
analogous product applicable to the prevention and cure
of diseases of man unless (a) such virus, serum, toxin,
antitoxin, or product has been propagated and prepared
at an establishment holding an unsuspondcd and unre-
voked license, issued by the Secretary of the Treasury as
hereinafter authorized, to propagate and prepare such
virus, sernm, toxin, antitoxin, or product for sale in the
District of r\>lumbia, oi- for sending, bringing, or carrjnng

1254

Virus and Serums 1255

from place to place aforesaid; nor (b) unless each pack-
age of such virus, serum, toxin, antitoxin, or product iss
plainly marked with the proper name of the article con-
tained therein, the name, address, and license number of
the manufacturer, and the date beyond which the con-
tracts can not be expected beyond reasonable doubt to
yield their specific results: Provided, That the suspen-
sion or revocation of any license shall not prevent the sale,
barter, or exchange of any virus, serum, toxin, antitoxin,
or product aforesaid which has been sold and delivered
by the licentiate prior to such suspension or revocation,
unless the owner or custodian of such virus, serum, toxin,
antitoxin, or product aforesaid has been notified by the
Secretary of the Treasury not to sell, barter, or exchange
the same.^

§ 1754. Surgeon-general of army and navy and marine
hospital service shall make regulations to whom license is
granted. That the Surgeon-General of the Army, the Sur-
geon-General of the Navy, and the supei-vising Surgeon-
General of the Marine Hospital Service, be, and they are
hereby, constituted a board with authority, subject to the
approval of the Secretary of the Treasury, to promulgate
from time to time such rules as may be necessary in the
judgment of said board to govern the issue, suspension,
and revocation of licenses for the maintenance of estab-
lishments for the propagation and preparation of viruses,
serums, toxins, antitoxins, and analogous products, ap-
plicable to the prevention and cure of diseases of man,
intended for sale in the District of Columbia, or to be sent,
carried or brought for sale from any State, Territory, or
the District of Columbia, into any other State, Territory,
or the District of Columbia, or from the United States into
any foreign country, or from any foreign country into the
United States; Provided, That all licenses issued for the

1— Sec. 1, Act July 1, 1902, 32
Stat. 728.

1256 Criminal Law

maintenance of establishments for the propagation and
preparation in any foreign countiy of any virus, serum,
toxin, antitoxin, or product aforesaid, for sale, barter,
or exchange in the United States, shall be issued upon
condition that the licentiates will permit the inspection of
the establishments where said articles are propagated
and prepared, in accordance with section three of this
Act.2

§ 1755. No person shall interfere with Treasury Depart-
ment under this Act. That no person shall interfere with
any officer, agent, or employee of the Treasury Depart-
ment in the performance of any duties imposed upon him
by this Act or by regulations made by authority thereof.'

§ 1756. No person shall falsely label or mark any pack-
age or container of virus or serum. That no person shall
falsely label or mark any package or container of any
virus, serum, toxin, antitoxin, or product aforesaid: nor
alter any label or mark on any package or container of
any virus, serum, toxin, antitoxin, or product aforesaid
so as to falsify such label or mark.*

§ 1757. Violations of provisions of Drug' Act July 1,
1902. General provisions. Any person who shall violate,
or aid or abet in violating, any of the provisions of this
Act shall be punished by a fine not exceeding five hun-
dred dollars or by imprisonment not exceeding one year,
or by both such fine and imprisonment, in the discretion
of the court.^

§ 1758. Act March 4, 1913, selling- any worthless viruses
for treatment of animals. Penalty for violation. From
and alter July first, iiiiieteeii Iniiidicd and tliirteen, it shall

2_Scc. 4, Act July 1, 1902, .32 4— Sec. 2, Act July 1, 1902, 32

Stat. 729. Stnt. 729.

.3— 8fc. G, Act July 1, 1902, 32 5— Sec. 7, Act July 1, 1902, 32

Stat. 729. Stat. 729.

Virus and Serums 1257

be unlawful for any person, firm, or corporation to pre-'
pare, sell, barter, or exchange in the District of Columbia,
or in the Territories, or in any place under the jurisdic-
tion of the United States, or to ship or deliver for ship-
ment from the State or Territory or the District of
Columbia to any other State or Territory or the District
of Columbia, any worthless, contaminated, dangerous, or
harmful virus, serum, toxin, or analogous product in-
tended for use in the treatment of domestic animals, and
no person, firm, or corporation shall prepare, sell, barter,
exchange, or ship as aforesaid any virus, serum, toxin, or
analogous product manufactured within the United States
and intended for use in the treatment of domestic animals,
unless and until the said virus, serum, toxin, or analogous
product shall have been prepared, under and in compli-
ance with regulations prescribed by the Secretary of Agri-
culture, at an establishment holding an unsuspended and
unrevoked license issued by the Secretary of Agriculture
as hereinafter authorized.

The importation into the United States, without a per-
mit from the Secretary of Agriculture, of any virus,
serum, toxin, or analogous product for use in the treat-
ment of domestic animals, and the importation of any
worthless, contaminated, dangerous, or harmful virus,
serum, toxin, or analogous product for use in the treat-
ment of domestic animals is hereby prohibited. The
Secretary of Agriculture is hereby authorized to cause the
Bureau of Animal Industry to examine and inspect all
viruses, serums, toxins, and analogous products, for use
in the treatment of domestic animals, which are being im-
ported or offered for importation into the United States,
to determine whether such viruses, serums, toxins, and
analogous products are worthless, contaminated, danger-
ous, or harmful, and if it shall appear that any such virus,
serum, toxin, or analogous product, for use in the treat-
ment of domestic animals, is worthless, contaminated,
dangerous, or harmful, the same shall be denied entry and

1258 Criminal Law

shall be destroyed, or returned at the expense of the owner
or importer.

The Secretary of Agriculture be, and hereby is, author-
ized to make and promulgate from time to time such rules
and regulations as may be necessary to prevent the prep-
aration, sale, barter, exchange, or shipment as aforesaid
of any worthless, contaminated, dangerous, or harmful
virus, serum, toxin, or analogous product for use in the
treatment of domestic animals, and to issue, suspend, and
revoke licenses for the maintenance of establishments for
the preparation of viruses, serums, toxins, and analogous
products, for use in the treatment of domestic animals,
intended for sale, barter, exchange, or shipment as afore-
said.

The Secretary of Agriculture is hereby authorized to
issue permits for the importation into the United States
of viruses, serums, toxins, and analogous products, for use
in the treatment of domestic animals, which are not
worthless, contaminated, dangerous, or harmful.

All licenses issued under authority of this Act to estab-
lishments where such viruses, serums, toxins, or analo-
gous products are prepared for sale, barter, exchange, or
shipment as aforesaid, shall be issued on condition that
the licensee shall peraiit the inspection of such establish-
ments and of such products and their preparation; and
the Secretary of Agriculture may suspend or revoke any
poi-mit or license issued under authority of this Act, after
opportunity for hearing has been granted the licensee or
iini)orter, when the Secretary of Agriculture is satisfied
lliat such license or permit is being used to facilitate or
effect the preparation, sale, barter, exchange, or shipment
as aforesaid, or the importation into the United States of
any worthless, contaminated, dangerous, or harmful virus,
seniiii, toxin, or analogous product for use in the treat-
ment of domestic animals. Any oHicer, agent, or employee
of the Departmciil of Agriculture duly authorized by the
Secretary of Agriculture for the purpose may, at any hour

Virus and Serums • 1259

during- the daytime or nighttime, enter and inspect any
establishment licensed under this Act where any virus,
serum, toxin, or analogous product for use in the treat-
ment of domestic animals is prepared for sale, barter, ex-
change, or shipment as aforesaid.

Any person, firm, or corporation who shall violate any
of the provisions of this Act shall be deemed guilty of a
misdemeanor, and shall, upon conviction, be punished by
a fine of not exceeding $1,000 or by imprisonment not ex-
ceeding one year, or by both such fine and imprisonment,
in the discretion of the court. ^

6— Act Mar. 4, 1913, 37 Stat. 832.

CHAPTER LXXXVI

PERMANENT WAR LEGISLATION

§ 1761. During a war U. S. is not
engaged in, unlawful to
import from such country,
unlawful to give advan-
tage to any person, etc.,
and for vessel to depart
without clearance, penalty.

§ 1762. Registration as soldier, pun-
ishment for failure to do
so.

§ 1763. Prosecuting bawdy house at
or near military camps,
punishment.

§ 1 704. Punishment making false
statement on false regis-
tration.

§ 1765. Trading with the Enemy
Act, punishment, provi-
sions.

§ 1766. Punishment for injuring,
destroying, etc., war ma-
terial, premises, or utili-
ties, specified acts.

§ 1767. Punishment for obstructing,
etc., United States or as-
sociate nation in carrying
on the war, specified acts.

§ 1768. Making false statement in
affidavit guilty of perjury.

§ 1769. Selective Service Act, failing
to perform duties under,
punishment.

§ 1770. Carriers under federal con-
trol, violation, punish-
ment.

§ 1771. Title XII, army emergency
increase, selective draft,
amended by Act May 16,
1918, Act of June 15,
1917.

§ 1772. Food control.

§ 1773. Former punishments for
specified offenses, repealed.

§ 1774. A'iolation of War Finance
Act April 5, 1918, pun-
ishment.

§ 1761. During- a war United States is not engaig-ed in,
unlawful to import from such country, unlawful to give
advantage to any person, etc., and for vessel to depart
without clearance — Penalty. That whenever diiriiii;- the
existence of a war in whicli the United States is not
eii^^agcd, the President shall be satisfied tliat there is
reasonable ground to believe that under the laws, regu-
lations, or practices of any country, colony,, or depend-
ency contrary to the law and practice of nations, the
importation into their own or any other country, de-

1260

Permanent War Legislation 1261

pendency, or colony of any article the product of the
soil or industiy of the United States and not injurious
to health or morals is prevented or restricted the Presi-
dent is authorized and empowered to prohibit or re-
strict during the period such prohibition or restriction
is in force, the importation into the United States of
similar or other articles, products of such country,
dependency, or colony as in his opinion the public
interest may require; and in such case he shall make
proclamation stating the article or articles which are
prohibited from importation into the United States; and
any person or persons who shall import, or attempt or
conspire to import, or be concerned in importing, such
article or articles, into the United States contrary to the
prohibition in such proclamation, shall be liable to a fine
of not less than $2,000 nor more than $50,000, or to im-
prisonment not to exceed two years, or both, in the dis-
cretion of the court. The President may change, modify,
revoke, or renew such proclamation in his discretion.

Whenever, during the existence of war in which the
United States is not engaged, the President shall be sat-
isfied that there is reasonable ground to believe that any
vessel, American or foreign, is, on account of the laws,
regulations, or practices of a belligerent Government,
making or giving any undue or unreasonable preference
or advantage in any particular person, company, firm, or
corporation, or any particular description of traffic in the
United States or its possessions, or any citizens of the
United States residing in neutral countries abroad to any
undue or unreasonable prejudice, disadvantage, injuiy,
or discrimination in regard to accepting, receiving, trans-
porting, or delivering, or refusing to accept, receive, trans-
fer, or deliver any cargo, freight or passengers, or in any
other respect whatsoever, he is hereby authorized and em-
powered to direct the detention of such vessels by with-
holding clearance or by formal notice forbidding depart-
ure, and to revoke, modify, or renew any such direction.

1262 Crimhstal Law

Whenever, during the existence of a war in which the
United States is not engaged, the President shall be sat-
isfied that there is reasonable ground to believe that
under the laws, regulations, or practices of any belliger-
ent country or Government, American ships or American
citizens are not accorded any of the facilities of com-
merce which the vessels or citizens of that belligerent
country enjoy in the United States of its privileges or
facilities of trade with vessels or citizens of any national-
ity other than that of such belligerent, the President is
hereby authorized and empowered to withhold clearance
from one or more vessels of such belligerent country
until such belligerent shall restore to such American ves-
sels and American citizens reciprocal liberty of commerce
and equal facilities of trade; or the President may direct
that similar privileges and facilities, if any, enjoyed by
vessels of citizens of such belligerent; and in such case he
shall make proclamation of his direction, stating the facil-
ities and privileges which shall be refused, and the bel-
ligerent to whose vessels or citizens they are to be refused,
and thereafter the furnishing of such prohibited priv-
ileges and facilities to any vessel or'citizen of the belliger-
ent named in such proclamation shall be unlawful; and
he may change, modify, revoke, or renew such proclama-
tion; and any person or persons who shall furnish or at-
tempt or conspire to furnish or be concerned in furnishing
or in the concealment or furnishing facilities or privileges
to ships or persons contrary to the prohibition in such
proclamation shall be liable to a fine of not less tlian
$2,000 nor more than $50,000 or to imprisonment not to
exceed two years, or ])()tli, in Iho discretion of tlie court.
In case any vessel wliich is detained by virtue of tliis Act
shall depart or attempt to d(']);n-t from the jurisdiction
of tlie United States without clearance or other lawful au-
thority, the owner or master or person or persons linving
charge or command of such vessel shall be sever.illy liable
1.) ;i fine of not less tlmn $2,()()() nor more t1inn $10,000, or

Permanent War TjEgislation 1263

to imprisonment not to exceed two years, or both, and
in addition such vessel shall be forfeited to the United
States. The President of the United States is hereby au-
thorized and empowered to employ such part of the land
or naval forces of the United States as shall be necessary
to carry out the purposes of this Act.^

§ 1762. Registration as soldier, punishment for failure
to do so. That all male persons between the ages of twen-
ty-one and thirty, both inclusive, shall be subject to reg-
istration in accordance with regulations to be prescribed
by the President ; and upon proclamation by the President
or other public notice given by him or by his direction
stating the time and place of such registration it shall be
the duty of all persons of the designated ages, except offi-
cers and enlisted men of the Regular Army, the Navy, and
the National Guard and Naval Militia while in the service
of the United States, to present themselves for and submit
to registration under the provisions of this Act; and every
such person shall be deemed to have notice of the require-
ments of this Act upon the publication of said proclama-
tion or other notice as aforesaid given by the President
or by his direction; and any person who shall wilfully fail
or refuse to present himself for registration or to submit
thereto as herein provided, shall be guilty of a misde-
meanor and shall, upon conviction in the district court of
the United States having jurisdiction thereof, be punished
by imprisonment for not more than one year, and shall
thereupon be duly registered; Provided, That in the call
of the docket precedence shall be given, in courts trying
the same, to the trial of criminal proceedings under this
Act: Provided further, That persons shall be subject to
registration as herein provided who shall have attained
their twenty-first birthday and who shall not have at-
tained thirty-first birthday on or before the day set for

1— Act Sept., 1916, 39 Stat. 799.

1264 Criminal Law

the registration, and all persons so registered shall be
and remain subject to draft into the forces hereby au-
thorized, unless exempted or excused therefrom as in this
Act provided: Provided further, That in the case of tem-
porary absence from actual place of legal residence of any
person liable to registration as provided herein such reg-
istration may be made by mail under regulations to be
prescribed by the President.^

§ 1763. Prosecuting bawdy house at or near military
camp— punishment. That the Secretary of War is hereby
authorized, empowered, and directed during the present
war to do eveiything by him deemed necessary to sup-
press and prevent the keeping or setting up of houses of
ill fame, brothels, or bawdy houses ^vithin such distance
as he may deem needful of any military camp, station,
fort, post, cantonment, training, or mobilization place,-
and any person, corporation, partnership, or association
receiving or permitting to be received for immoral pur-
poses any person into any place, structure, or building
used for the purpose of lewdness, assignation, or prostitu-
tion within such distance of said places as may be
designated, or shall permit any such person to remain for
immoral purposes in any such place, structure, or build-
ing as aforesaid, or who shall circulate any order, rule, or
regulation issued to carry out the object and purpose of
this section shall, unless otherwise punishable under the
Articles of War, be deemed guilty of a misdemeanor and
be punished by a fine of not more than $1,000, or imprison-
ment for not more than twelve months, or bolh.^

§ 1764. Punishment making false statement on false
registration. That the President is hereby juilhorized to
utilize the sei*vice of any or all departments and any or all

2_Scc. rj, Act May 18, ]!»17, JO Sfat. 83. (This is nonoflVctivo
Stat. 80. .'ifttT t-nding of tin' \v:ir witii Oer-

3— Sec. 13, Act May 18, l'J17, 4(» ni;iny.)

Permanent Wak Legislation 1265

officers or agents of the United States and of the several
States, Territories, and the District of Columbia, and sub-
divisions thereof, in the execution of this Act, and all offi-
cers and agents of the United States and of the several
States, Territories, and subdivisions thereof, and of the
District of Columbia, and all persons designated or ap-
pointed under regulations prescribed by the President
whether such appointments are made by the President
himself or by the governor or other officer of any State or
Territory to perform any duty in the execution of this
Act, are hereby required to perform such duty as the
President shall order or direct, and all such officers and
agents and persons so designated or appointed shall
hereby have full authority for all acts done by them in the
execution of this Act by the direction of the President.
Correspondence in the execution of this Act may be car-
ried in penalty envelopes bearing the frank of the War
Department. Any person charged as herein provided
with the duty of carrying into effect any of the provisions
of this Act or the regulations made or directions given
thereunder who shall fail or neglect to perform such duty;
and any person charged with such duty or having and
exercising any authority under said Act, regulations, or
directions, who shall knowingly make or be a party to the
making of any false or incorrect registration, physical
examination, exemption, enlistment, enrollment, or mus-
ter, and any person who shall make or be a party to the
making of any false statement or certificate as to the
fitness or liability of himself or any other person for serv-
ice under the provisions of this Act, or regulations made
by the President thereunder, or otherwise evades or aids
another to evade the requirements of this Act or of said
regulations, or who, in any manner, shall fail or neglect
fully to perform any duty required of him in the execu-
tion of this Act, shall, if not subject to military law, be
guilty of a misdemeanor, and upon conviction in the dis-
trict court of the United States having jurisdiction

C. L.— 80

1266 Criminal Law

thereof, be punished by imprisonment for not more than
one year, or, if subject to military law, shall be tried by
courtmartial and suffer such punishment as a court-
martial may direct.*

§ 1765. Trading with the Enemy Act, punishment, pro-
visions. That whoever shall wilfully violate any of the
provisions of this Act or of any license rule, or regulation
issued thereunder, and whoever shall wilfully violate,
neglect, or refuse to comply with any order of the Presi-
dent issued in compliance with the provisions of this Act
shall, upon conviction, be fined not more than $10,000, or,
if a natural person, imprisoned for not more than ten
years, or both; and the officer, director, or agent of any
corporation who knowingly participates in such violation
shall be punished by a like fine, imprisonment, or both,
and any property, funds, securities, papers, or other
articles or documents, or any vessel, together with her
tackle, apparel, furniture, and equipment, concerned in
such violation shall be forfeited to the United States.*^

§ 1766. Punishment for injuring, destroying, etc., war
material, premises, or utilities. Specified Acts. That
when the United States is at war, whoever, with intent to
injure, interfere with, or obstruct the United States or
any associate nation in preparing for or carrying on the
war, or whoever, with reason to believe that his act
may injure, interfere witli, or obstruct the United States
or any associate nation in preparing for or carrying on
the war, shall wilfully injure or destroy, or shall attempt
to so injure or destroy, any war material, war premises,
or war utilities, as herein defined, sliall upon conviction
thereof, be fined not more than $1 0,000 or imprisoned not
more tlinii iliirty years, or both.®

4— Sec. 6, Act May 18, 1917, 40 (>— Sec. 1, Act Ai)r. 20, 1918, 40

Stat. 81. !^1''^- •'^^•l-

r,_Sgc. 10, Oct. f), 1017, 40 Stat.

425.

Permanent War Legislation 12f)7

§ 1767. Punishment for obstructing, etc., United States
or associate nation in carrying on the war. Specified acts.
That when the United States is at war, whoever, wilh in-
tent to injure, interfere with, or obstruct the United
States or any associate nation in preparing for or carrying
on the war, or whoever, with reason to believe that his act
may injure, interfere with, or obstruct the United States
or any associate nation in preparing for or carrying on the
war, shall wilfully make or cause to be made in a defective
manner, or attempt to make or cause to be made in a
defective manner, any war material, as herein defined, or
any tool, implement, machine, utensil, or receptacle used
or employed in making, producing, manufacturing, or
repairing any such war material, as herein defined, shall
upon conviction thereof, be fined not more than $10,000
or imprisoned not more than thirty years, or both.'

§ 1768. Making false statement in affidavit guilty of
perjury. Ten days after the approval of this Act and
until the end of the w^ar, it shall be unlawful for any per-
son, firm, corporation, or association, to print, publish, or
circulate, or cause to be printed, published, or circulated
in any foreign language, any news item, editorial or other
printed matter, respecting the Government of the United
States, or of any nation engaged in the present war, its
policies, international relations, the state or conduct of the
war, or any matter relating thereto : Provided, That this
section shall not apply to any print, newspaper, or publi-
cation where the publisher or distributor thereof, on or
before offering the same for mailing, or in any manner
distributing it to the public, has filed with the postmaster
at the place of publication, in the form of an affidavit, a
true and complete translation of the entire article contain-
ing such matter proposed to be published in such print,
newspaper, or publication and has caused to be printed,

7— Sec. 2, Act Apr. 20, 1918, 40
Stat. 534.

1268 Ceimixal Law

in plain type in the English language, at the head of each
such item, editorial, or other matter, on each copy of such
print, newspaper, or publication, the words "True trans-
lation filed with the postmaster at on
(naming the post-office where the translation was filed,
and the date of filing thereof), as required by the Act of
(here giving the date of this Act).
Any print, newspaper, or publication in any foreigTi
language which does not conform to the provisions of this
section is hereby declared to be nonmailable, and it shall
be unlawful for any person, firm, corporation, or associa-
tion, to transport, carry, or otherwise publish or dis-
tribute the same, or to transport, carry or otherwise pub-
lish or distribute any matter which is made nonmailable
by the provisions of the Act relating to espionage, ap-
proved June fifteenth, nineteen hundred and seventeen:
Provided further, That upon evidence satisfactory to him
that any print, newspaper, or publication printed in a
foreign language may be printed, published, and distrib-
uted free from the foregoing restrictions and conditions
without detriment to the United States in the conduct of
the present war, the President may cause to be issued
to the printers or publishers of such print, newspaper, or
publication, a permit to print, publish, and circulate the
issue or issues of their print, newspaper, or publications,
free from such restrictions and requirements, such per-
mits to be subject to revocation at his discretion. And
the Postmaster-General shall cause copies of all such per-
mits and revocations of permits to be furnished to the
postmaster of the post-office serving the place from which
tlie print, newspaper, or publication, granted tiie permit
is to emanate. All matter printed, pul)lislied and dis-
tributed under permits shall benr at the head thereof in
])lni?i type in tlie English language, tlie words, "Pul)lished
and distributed under permit authorized by the Act of
(here giving date of this Act), on file at the
post-office of (giving name of office)."

Permanent War Legislation 12G*J

Any person who shall make an affidavit containing any-
false statement in connection with the translation pro-
vided for in this section shall be guilty of the crime of
perjury and subject to the punishment provided therefor
by section one hundred and twenty-five of the Act of
March fourth, nineteen hundred and nine, entitled ''An
Act to codify, revise, and amend the penal laws of the
United States," and any person, firm, corporation, or asso-
ciation, violating any other requirements of this section
shall, on conviction thereof, be punished by a fine of not
more than $500, or by imprisonment of not more than one
year, or, in the discretion of the court, may be both fined
and imprisoned.^

§ 1769. Selective Service Act, failing' to perform duties
under, punishment. The President is hereby authorized
to utilize the service of any or all departments and any
or all officers or agents of the United States and of the
several States, Territories, and the District of Columbia,
and subdivisions thereof, in the execution of this Act,
and all officers and agents of the United States and subdi-
visions thereof, and of the District of Columbia, and all
persons designated or appointed under regulations pre-
scribed by the President, whether such appointments are
made by the President himself or by the governor or
other officer of any State or Territory, to perform any
duty in the execution of this Act, are hereby required to
perform such duty as the President shall order or direct,
and all such officers and agents and persons so designated
or appointed shall hereby have full authority for all acts
done by them in the execution of this Act by the direction
of the President. Correspondence in the execution of this
Act may be carried in penalty envelopes bearing the frank
of the War Department. Any person charged as herein
provided with the duty of carrying into effect any of the

8—40 Stat, at Large 425, Act
Oct. 6, 1917.

1270 Ceiminal Law

provisions of this Act or the regulations made or direc-
tions given thereunder who shall fail or neglect to perforai
such duty; and any person charged with such duty or
having and exercising any authority under said Act, regu-
lations, or directions, who shall know^ingly make or be a
party to the making of any false or incorrect registration,
physical examination, exemption, enlistment, enrollment,
or muster; and any person who shall make or be a party
to the making of any false statement or certificate as to
the fitness or liability of himself or any other person for
service under the provisions of this Act, or regulations
made by the President thereunder, or otherwise evades
or aids another to evade the requirements of this Act or
of said regulations, or who, in any manner, shall fail or
neglect fully to perform any duty required of him in the
execution of this Act, shall, if not subject to military law,
be guilty of a misdemeanor, and upon conviction in the
district court of the United States having jurisdiction
thereof, be punished by imprisonment for not more than
one year, or, if subject to militaiy law, shall be tried by
court-martial and suffer such punishment as a court-mar-
tial may direct.®

§ 1770. Carriers under Federal control, violation, pun-
ishment. That every person or coiT^oration, whether car-
rier or sliipper, or any receiver, trustee, lessee, agent, or
person acting for or employed by a carrier or shipper, or
other person, who shall knowingly violate or fail to ob-
serve any of the provisions of this Act, or shall know-
ingly interfere with or impede the possession, use, opera-
tion, or control of any railroad property, railroad, or
trans})ortation system hitherto or hereafter taken over by
llif President, or shall knowingly violate any of the pro-
visions of any order or regulation made in pursuance of
this Act, shall be guilty of a misdemeanor, and shall, upon

9 — 40 Stat, at Largo, Act May
18, 1917.

Permanent War Legislation 1271

conviction, be punished by a fine of not more than $5,000,
or, if a person, by imprisonment for not more than two
years, or both. Each independent transaction constitut-
ing a violation of, or a failure to observe, any of the pro-
visions of this Act, or any order entered in pursuance
hereof, shall constitute a separate offense. For the taking
or conversion to his own use or the embezzlement of
money or property derived from or used in connection
with the possession, use, or operation of said railroads or
transportation systems, the criminal statutes of the
United States, as well as the criminal statutes of the vari-
ous States where applicable, shall apply to all officers,
agents, and emploj^ees engaged in said railroad and trans-
portation service, while the same is under Federal control,
to the same extent as to persons employed in the regular
service of the United States. Prosecutions for violations
of this Act or of any order entered hereunder shall be in
the district courts of the United States, under the direc-
tion of the Attorney General, in accordance with the pro-
cedure for the collection and imposing of fines and penal-
ties now existing in said courts.^"

§ 1771. Title XII. Army emergency increase. Select-
ive draft. Amended by Act May 16, 1918, Act of June 15,
1917. Resolved by the Senate and House of Representa-
tives of the United States of America in Congress assem-
bled. That if under any regulations heretofore or hereafter
prescribed by the President persons registered and liable
for military service under the terms of the Act of Con-
gress approved May eighteenth, nineteen hundred and
seventeen, eiltitled **An Act to authorize the President to
increase temporarily the Military Establishment of the
United States," are placed in classes for the purpose of
determining their relative liability for military service,
no provision of said Act shall prevent the President from

10— Sec. 11, Oct. 21, 1918, 40
Stat. 457.

1272 Criminal Law

calling for immediate military service, under regulations
heretofore or hereafter prescribed by the President, all or
part of the persons in any class or classes except those ex-
empt from draft under the provisions of said Act, in pro-
portion to the total number of persons placed in such
class or classes in the various subdivisions of the States,
Territories, and the District of Columbia designated by
the President under the terms of said Act or from calling
into immediate military service persons classed as skilled
experts in industry or agriculture, however classified or
wherever residing.^^

§ 1772. Feed control. That section 4 of such Act of
August 10, 1917, is hereby amended to read as follows :

''That it is hereby made unlawful for any person wil-
fully to destroy any necessaries for the purpose of enhanc-
ing the price or restricting the supply thereof; knowingly
to commit w^aste or wilfully to permit preventable deterio-
ration of any necessaries in or in connection with their
production, manufacture, or distribution; to hoard, as
defined in section 6 of this Act, any necessaries, to mo-
nopolize or attempt to monopolize, either locally or gen-
erally, any necessaries; to engage in any discriminatory
and unfair, or any deceptive or wasteful practice or
device, or to make any unjust or unreasonable rate or
charge in handling or dealing in or with any necessaries;
to conspire, combine, agree, or arrange with any other
person (a) to limit the facilities for transporting, pro-
ducing, han^'esting, manufacturing, supplying, storing, or
dealing in any necessaries; (b) to restrict tlio sn])])ly of
any necessaries; (c) to restrict distribution of any neces-
saries; (d) to prevent, liiiiii, oi- lessen the manufacture or
production of any necessaries in order lo enhance the
price thereof; or (e) to exact excessive prices for any
necessaries, or lo nid or abet the doing of any act made

11— Sec. 1, Act May 16, 1918, 40
Stat. 5.54.

Permanent War Legislation 1273

unlawful by this section. Any person violating any of
the provisions of this section upon conviction thereof
shall be fined not exceeding $5,000 or be imprisoned for
not more than two years, or both: Provided, That this
section shall not apply to any farmer, gardener, horti-
culturist, vineyardist, planter, ranchman, dairyman,
stockman, or other agriculturist, with respect to the farm
products produced or raised upon land owned, leased, or
cultivated by him: Provided, further. That nothing in
this Act shall be construed to forbid or make unlawful col-
lective bargaining by any cooperative association or other
association of farmers, dairymen, gardeners, or other
producers of farm products with respect to the farm
products produced or raised by its members upon land
owned, leased, or cultivated by them."

§ 1773. Former punishments for specified offenses not
repealed. That sections 8 and 9 of the Act entitled ' ' An
Act to provide further for the national security and
defense by encouraging the production, conserving the
supply, and controlling the distribution of food products
and fuel," approved August 10, 1917, be, and the same are
hereby repealed : Provided, That any offense committed
in violation of said sections 8 and 9, prior to the passage
of this Act, may be prosecuted and the penalties pre-
scribed therein enforced in the same manner and with the
same effect as if this Act had not been passed.^''

§ 1774. Penalties for violation of War Finance Act,
April 5, 1918, enumeration. Whoever (1) makes any
statement, "knowing it to be false, for the purpose of ob-
taining for himself or for any other person, firm, corpora-
tion, or association any advance under this title, shall be
punished by a fine of not more than $10,000, or by impris-
onment for not more than five years, or both.

12— Sees. 2 and 3 of Title I, Food
Control Act Amendments, approved
Oct. 22, 1919, 41 Stat. 298.

1274 Criminal Law

Whoever wilfully overvalues any security by which any
such advance is secured, shall be punished by a fine of not
more than $5,000, or by imprisonment for not more than
two years, or both.

AVhoever (1) falsely makes, forges, or counterfeits any
bond, coupon, or paper in imitation of or purporting to
be in imitation of a bond or coupon issued by the Corpora-
tion; or (2) passes, utters or publishes, or attempts to
pass, utter, or publish any false, forged, or counterfeited
bond, coupon, or paper purporting to be issued by the Cor-
poration, knowing the same to be falsely made, forged, or
counterfeited; or (3) falsely alters any such bond, coupon,
or paper; or (4) passes, utters, or publishes as true any
falsely altered or spurious bond, coupon, or paper issued
or purporting to have been issued by the Corporation,
knowing the same to be falsely altered or spurious, shall
be punished by a fine of not more than $10,000, or by
imprisonment for not more than five years, or both.

Whoever, being connected in any capacity with the
Corporation, (1) embezzles, abstracts, or wilfully misap-
plies any moneys, funds, or credits thereof, or (2) with
intent to defraud the Corporation or any other company,
body politic or corporate, or any individual, or to deceive
any officer of the Coi-poration, (a) makes any false entry
in any book, report, or statement of the Corporation, or
(b) without authority from the directors draws any order
or assigns any note, bond, draft, mortgage, judgment, or
decree thereof, shall be punished by a fine of not more
than $!(),()( )0, or by imprisonment for not more than five
years, or both.

The Secretary of the Treasuiy is hereby antliovized to
direct and use the Secret Service Division of the Treas-
ury Department to detect, arrest, and deliver into custody
of the United States marshal having jurisdiction any
person connnitting any of llio offenses punishable under
this section.^'

13— Act Apr. T), 1918, 40 Stat.

CHAPTER LXXXVII

EEPEALING PROVISIONS
Penal Code Act, March 4, 1909

§ 1777. Sections, acts, and parts of § 1780. Acts of limitation.

acts repealed, § 1781. Date this act shall be effcc-

§ 1778. Accrued rights, etc., not af- tive.

fected.

§ 1779. Prosecutions and punish-
ments.

§ 1777. Sections, Acts, and paxts of Acts repealed. Sec.
341. The following sections of the Revised Statutes and
Acts and parts of Acts are hereby repealed.

Sections four hundred and twelve, fifteen hundred and
fifty- three, sixteen hundred and sixty-eight; sections sev-
enteen hundred and eighty to seventeen hundred and
eighty- three, both inclusive; sections seventeen hundred
and eighty-five, seventeen hundred and eighty-seven, sev-
enteen hundred and eighty-eight, seventeen hundred and
eighty-nine, twenty-three hundred and seventy-three,
twenty-four hundred and twelve, thirty-five hundred and
eighty-three, thirty-seven hundred and eight, thirty-seven
hundred and thirty-nine, thirty-seven hundred and forty,
thirty-seven hundred and forty-two, thirty-eight hundred
and thirty-two, thirty-eight hundred and fifty-one, thirty-
eight hundred and sixty-nine, thirty-eight hundred and
eighty-seven; sections thirty-eight hundred and ninety
to thirty-eight hundred and ninety-four, both inclusive;
section thirty-eight hundred and ninety-nine; sections
thirty-nine hundred and twenty-two to thirty-nine hun-
dred and twenty-five, both inclusive; sections thirty-nine
hundred and forty-seven, thirty-nine hundred and fifty-

1275

1276 Cbiminal Law

four, thirty-nine hundred and seventy-seven; thirty-nine
hundred and seventy-nine; sections thirty-nine hundred
and eighty-one to thirty-nine hundred and eighty-six,
both inclusive; sections thirty-nine hundred and eighty-
eight, thirty-nine hundred and ninety-two, thirty-nine
hundred and ninety-five, thirty-nine hundred and ninety-
six, four thousand and thirteen, four thousand and six-
teen, four tliousand and thirty, four thousand and fifty-
three, fifty-one hundred and eighty-eight, fifty-one hun-
dred and eighty-nine; sections fifty-tw^o hundred and
eighty-one to fifty-two hundred and ninety-one, both in-
clusive; sections fifty-three hundred and twenty- three to
fifty-three hundred and ninety-five, both inclusive; sec-
tions fifty-three hundred and ninety-eight to fifty-four
hundred and ten, both inclusive; sections fifty-four hun-
dred and thirteen to fifty-four hundred and eighty-four,
both inclusive; sections fifty-four hundred and eighty-
seven to fifty-five hundred and ten, both inclusive; sec-
tions fifty-five hundred and sixteen, fifty-five hundred
and eighteen, fifty-five hundred and nineteen; sections
fifty-five hundred and twenty-four to fifty-five hundred
and thirty-five, both inclusive; sections fifty-five hun-
dred and fifty-one to fifty-five hundred and sixty-seven,
both inclusive, of the Revised Statutes.

That part of section thirty-eight hundred and twenty-
nine of the Revised Statutes which reads as follows:
'*And every person who, without authority from the
Postmaster-General, sets up or professes to keep any
office or place of business bearing the sign, name, or title
of post-office, shall for every such offense be liable to a
penalty of not more than five hundred dollars."

Tliat part of section thirty-eight hundred and sixty-
seven of llic Revised Slatutes which reads as follows:
"And ;iiiy person not connected with the letter-carrier
braiuii of the postal service who shall wear the uniform
wliicli may be prescribed shall, for every such offense, be
punishal)le by a fmo of not more tlian one liundred dol-

Repealing Provisions 1277

lars, or by imprisonment for not more than six months,
or both."

That part of section four thousand and forty-six of
the Revised Statutes which reads as follows: "Every
postmaster, assistant, clerk, or other person employed in
or connected with the business or operations of any
money-order office who converts to his own use, in any
way whatever, or loans, or deposits in any bank, except
as authorized by this title, or exchanges for other funds,
any portion of the public money-order funds, shall be
deemed guilty of embezzlement; and any such person,
as well as every other person advising or participating
therein, shall, for every such offense, be imprisoned for
not less than six months nor more than ten years, and
be fined in a sum equal to the amount embezzled; and
any failure to pay over or produce any money-order
funds intrusted to such person shall be taken to be
prima facie evidence of embezzlement; and upon the
trial of any indictment against any person for such em-
bezzlement, it shall be prima facie evidence of a balance
against him to produce a transcript from the money-
order account books of the Sixth Auditor. But nothing
herein contained shall be construed to prohibit any post-
master depositing, under the direction of the Postmaster-
General, in a national bank designated by the Secretary
of the Treasury for that purpose, to his own credit as
postmaster, any money order or other funds in his charge,
nor prevent his negotiating drafts or other evidences
of debt through such bank, or through United States
disbursing officers, or otherwise, when instructed or re-
quired to do so by the Postmaster-General, for the pur-
pose of remitting surplus money-order funds from one
post-office to another, to be used in payment of money
orders. ' '

*'An Act to protect lines of telegraph constructed or
used by the United States from malicious injury and ob-

1278 Ceiminal Law

struction," approved June twenty- third, eighteen hun-
dred and seventy-four.

*'An Act to protect persons of foreign birth against
forcible constraint or involuntary servitude," approved
June twenty-third, eighteen hundred and seventy-four;

That part of ''An Act making appropriations for the
service of the Postoffice Department for the fiscal year
ending June thirtieth, eighteen hundred and seventy-five,
and for other purposes," approved June twenty-third,
eighteen hundred and seventy-four, which reads as fol-
lows: ''That any postmaster who shall affix his signa-
ture to the approval of any bond of a bidder or to the
certificate of sufficiency of sureties in any contract before
the said bond or contract is signed by the bidder or con-
tractor and his sureties, or shall knowingly, or without
the exercise of due diligence, approve any bond of a
bidder with insufficient sureties, or shall knowingly
make any false or fraudulent certificate, shall be forth-
with dismissed from office and be thereafter disqualified
from holding the office of postmaster, and shall also be
deemed guilty of a misdemeanor, and on conviction
thereof be punished by a fine not exceeding five thou-
sand dollars, or by imprisonment not exceeding one year,
or both;"

Sections one, two, and three of "An Act to protect or-
namental and other trees on Government resei*vations
and on lands purchased by the United States, and for
other pui-poses," approved March third, eighteen hun-
dred and seventy-five;

"An Act to punish certain larcenies and the receivers
of stolen goods," approved March third, eighteen hun-
(li'cd jiiid seventy-five;

"An Act to amend section fifty-four hundred and fifty-
seven of the Jlevised Statutes of the United States, relat-
ing to counterrcitiiig," approved January sixteenth,
eighteen hundred and seventy-seven;

Tliat part of section five of "An Act establishing post-

"Repealing Provisions 1-71)

roads, and for other purposes," approved Marcli third,
eighteen hundred and seventy-seven, which reads as fol-
lows: *'And if any person shall make use of any such
official envelope to avoid the payment of postage on his
private letter, package, or other matter in the mail, the
person so offending shall be deemed guilty of a mis-
demeanor and subject to a fine of three hundred dollars,
to be prosecuted in any court of competent jurisdiction;"
That part of section one of ''An Act making appropria-
tions for the service of the Postoffice Department for the
year ending June thirtieth, eighteen hundred and sev-
enty-nine, and for other purposes, ' ' approved June seven-
teenth, eighteen hundred and seventy-eight, which reads
as follows: "And any postmaster who shall make a false
return to the auditor, for the purpose of fraudulently
increasing his compensation under the provisions of this
or any other Act, shall be deemed guilty of a misde-
meanor, and, on conviction thereof, shall be fined in a
sum not less than fifty nor more than five hundred dol-
lars, or imprisoned for a terai not exceeding one year, or
punished by both such fine and imprisonment, in the
discretion of the court; and no postmaster of any class,
or other person connected with the postal service, in-
trusted with the sale or custody of postage stamps,
stamped envelopes, or postal cards, shall use or dispose
of them in the payment of debts or in the purchase of
merchandise or other salable articles, or pledge or hypoth-
ecate the same, or sell or dispose of them except for
cash; or sell or dispose of postage stamps or postal cards
for any larger or less sum than the values indicated on
their faces; or sell or dispose of stamped envelopes for
a larger or less sum than is charged therefor by the Post-
office Department for like quantities; or sell or dispose
of postage stamps, stamped envelopes, or postal cards
otherwise than as provided by law and the regulations
of the Postoffice Department; and any postmaster or
other person connected with the postal service who shall

1280 Criminal Law

violate any of these provisions shall be deemed guilty of
a misdemeanor, and, on conviction thereof, shall be fined
in any sum not less than fifty nor more than five hundred
dollars, or imprisoned for a term not exceeding' one
year;"

''An Act to amend section fifty-four hundred and
ninety-seven of the Eevised Statutes, relating to embez-
zlement by officers of the United States," approved Feb-
ruaiy third, eighteen hundred and seventy-nine;

That part of section one of ''An Act making appropria-
tions for the service of the Postoffice Department for the
fiscal year ending June thirtieth, eighteen hundred and
eighty, and for other purposes," approved March third,
eighteen hundred and seventy-nine, which reads as fol-
low^s: "That nothing contained in section thirty-nine
hundred and eighty-two of the Revised Statutes shall be
construed as prohibiting any person from receiving and
delivering to the nearest postoffice or postal car mail
matter properly stamped." Also sections thirteen,
twenty- three, twenty-seven, and twenty-eight of said Act;

"An Act to amend section fifty-four hundred and forty
of the Revised Statutes," approved May seventeenth,
eighteen hundred and seventy-nine;

Sections one, three, and four of "An Act to amend
section fifty-three hundred and fifty-two of the Revised
Statutes of the United States, in reference to bigamy,
and for other purposes," approved March twenty-second,
eighteen hundred and eighty-two;

Sections eleven, twelve, thirteen, fourteen, and fifteen
of "An Act to regulate and improve the civil service of
the United States," approved Jniiunry sixteenth, eighteen
hundred and eighty-three;

"An Act making it a felony for a person to falsely and
fraudulently assume or pretend to be an officer or em-
ployee acting under authority of the United States or
;niy dppnrtmoTit or officer thereof, and prescribing a pen-

Repealing Provisions 1281

alty therefor," approved April eigliteenth, eighteen huii'
dred and eighty-four;

*'An Act to prevent and punish the counterfeiting
within the United States on notes, bonds, or other securi-
ties of foreign governments," approved May sixteenth,
eighteen hundred and eighty-four;

Section nine of "An Act making appropriations for
the current and contingent expenses of the Indian De-
partment and for fulfilling treaty stipulations with
various Indian tribes for the year ending June thirtieth,
eighteen hundred and eighty-six, and for other purposes, ' '
approved March third, eighteen hundred and eighty-
five;

Section two of ''An Act to amend the Act entitled
'An Act to modify the money-order system, and for other
purposes,' approved March third, eighteen hundred and
eigh ty- three, " approved January third, eighteen hun-
dred and eighty-seven;

Sections three, four, five, nine, and ten of "An Act to
amend an Act entitled 'An Act to amend section fifty-
three hundred and fifty-two of the Revised Statutes of
the United States, in reference to bigamy, and for other
purposes,' approved March twenty-second, eighteen hun-
dred and eighty-two," approved March third, eighteen
hundred and eighty-seven;

Section two of "An Act relating to permissible marks,
printing or writing, upon second, third, and fourth class
matter, and to amend the twenty-second and twenty-third
sections of an Act entitled 'An Act making appropria-
tions for the service of the Postoffice Department for
the fiscal year ending June thirtieth, eighteen hundred
and eighty, and for other purposes, ' ' ' approved January
twentieth, eighteen hundred and eighty-eight;

"An Act to amend section fifty-three hundred and
eighty-eight of the Revised Statutes of the United States
in relation to timber depredations," approved June
fourth, eighteen hundred and eighty-eight;
c. L.— 81

1282 Criminal Law

''All Act relating to postal crimes, and amendatory of
the statutes therein mentioned," approved June eight-
eenth, eighteen hundred and eighty-eight;

''An Act amendatory of 'An Act relating to postal
crimes and amendatory of the statutes therein men-
tioned,' approved June eighteenth, eighteen hundred and
eighty-eight, and for other purposes," approved Septem-
ber twenty-sixth, eighteen hundred and eighty-eight;

"An Act to punish, as a felony, the carnal and unlaw-
ful knowing of any female under the age of sixteen
years," approved February ninth, eighteen hundred and
eighty-nine ;

Sections one and two of "An Act to punish dealers
and pretended dealers in counterfeit money and other
fraudulent devices for using the United States mails,"
approved March second, eighteen hundred and eighty-
nine;

Section one of "An Act to amend certain sections of
the Revised Statutes relating to lotteries and for other
purposes," approved September nineteenth, eighteen
hundred and ninety;

"An Act further to prevent counterfeiting or manu-
facture of dies, tools, or other implements used in coun-
terfeiting, and providing penalties therefor, and provid-
ing for the issue of search warrants in certain cases,"
approved February tenth, eighteen hundi-ed and ninety-
one;

"An Act to amend sections fifty-three hundred and
sixty-five and fifty-three hundred and sixty-six of the
Revised Statutes, relating to barratry (ni llic liigh seas,"
approved August sixili, oightccii IiuikIiimI ;iiu1 ninety-
four;.

Sections one and two of "An Act for the suppression
of lottery traffic through national and interstate com-
merce and the postal service, subject to the jurisdiction
and laws of the United States," ay^l^roved* March second,
eighteen linndi-r>d and ninety-five;

Repealing Phovtstoxs 129^'A

*'An Act to proliibit prize fighting and pugilism and
fights between men and animals, and to provide penalties
therefor in the Territories and the District of Columbia,"
approved February seventh, eighteen hundred and ninety-
six;

That part of "An Act making appropriations for the
Department of Agriculture for the fiscal year ending June
thirtieth, eighteen hundred and ninety-five," approved
August eighth, eighteen hundred and ninety-four, and
that part of ''An Act making appropriations for the
Department of Agriculture for the fiscal year ending
June thirtieth, eighteen hundred and ninety-six," ap-
proved March second, eighteen hundred and ninety-five,
and that part of "An Act making appropriations for the
Department of Agriculture for the fiscal year ending
June thirtieth, eighteen' hundred and ninety-seven," ap-
proved April twenty-fifth, eighteen hundred and ninety-
six, which reads as follows: "Any person who shall
knowingly issue or publish any weather forecasts or
warnings of weather conditions falsely representing such
forecasts or warnings to have been issued or published
by the Weather Bureau, United States Signal Service, or
other branch of the government service, shall be deemed
guilty of misdemeanor, and, on conviction thereof, for
each offense be fined in a sum not exceeding five hundred
dollars, or imprisoned not to exceed ninety days, or be
both fined and imprisoned, in the discretion of the
court ; ' '

That part of "An Act making appropriations for cur-
rent and contingent expenses of the Indian Department
and fulfilling treaty stipulations with various Indian
tribes for the fiscal year ending June thirtieth, eighteen
hundred and ninety-seven, and for other purposes," ap-
proved June tenth, eighteen hundred and ninety-six,
which reads as follows: "Provided further. That here-
after it shall be unlawful for any person to destroy, de-
face, change, or remove to another place any section

1284 Ckiminal Law

comer, quarter-section comer, or meander post of any
Government line of survey, or to cut down any witness
tree or any tree blazed to mark the line of a Govenunent
survey, or to deface, change, or remove any monument
or bench mark of any Government survey. That any
person w^ho shall offend against any of the provisions of
this paragraph shall be deemed guilty of a misdemeanor,
and, upon conviction thereof in any court, shall be fined
not exceeding two hundred and fifty dollars or be im-
prisoned not more than one hundred days. All the fines
accruing under this paragraph shall be paid into the
Treasury, and the informer in each case of conviction
shall be paid the sum of twenty-five dollars;"

^'An Act to reduce the cases in which the penalty of
death may be inflicted," approved January fifteenth,
eighteen hundred and ninety-seven;

*'An Act to prevent the carrying of obscene literature
and articles designed for indecent and immoral use from
one State or Territory into another State or Territory,"
approved February eighth, eighteen hundred and ninety-
seven;

''An Act to prevent forest fires on the public domain,"
approved February twenty-fourth, eighteen hundred and
ninety-seven;

"An Act to prevent the purchasing of or speculating
in claims against the Federal Government by United
States officers," approved Februaiy twenty-fifth, eighteen
hundred and ninety-seven;

"An Act to amend section fifty-four hundred and fifty-
nine of the Revised Statutes, prescribing the punishment
for mutilating United States coins, and for uttering or
passing or attempting to utter or pass such mutilated
coins," approved March third, eighteen hundred and
ninety-seven;

Section eighteen of "An Act to amend the laws relat-
ing to navigation," approved March third, eighteen hun-
dred anri Tiinety-seven;

Repealing PKOvisioKa 1285

That part of section one of "An Act making appropria-
tions for the service of the Postoffice Department lor the
fiscal year ending June thirteenth, eighteen hundred and
ninety-nine," approved June thirteenth, eighteen hun-
dred and ninety-eight, which reads as follows: ''Pro-
vided, That any person or persons who shall place or
cause to be placed any matter in the mails during the
regular weighing period, for the purpose of increasing
the weight of the mails with intent to cause an increase
in the compensation of the railroad mail carrier over
whose route such mail matter may pass, shall be deemed
guilty of a misdemeanor, and shall on conviction thereof
be fined not less than five hundred dollars nor more than
twenty thousand dollars, and shall be imprisoned at hard
labor not less than thirty days nor more than five years ; ' '

Section seventeen of "An Act to provide revenue for
the Government, and to encourage the industries of the
United States," approved July twenty-fourth, eighteen
hundred and ninety-seven;

Section three of an Act entitled "An Act making ap-
propriations for the service of the Postoffice Department
for the fiscal year ending June thirtieth, nineteen hun-
dred and four, and for other purposes, ' ' approved March
third, nineteen hundred and three;

"An Act to protect the harbor defenses and fortifica-
tions constructed or used by the United States from mali-
cious injury, and for other purposes," approved July
seventh, eighteen hundred and ninety-eight;

"An Act to amend an Act entitled 'An Act to prevent
forest fires on the public domain,' approved February
twenty-fourth, eighteen hundred and ninety-seven," ap-
proved May fifth, nineteen hundred;

Sections two, three, and four of "An Act to enlarge
the powers of the Department of Agriculture, prohibit
the transportation by interstate commerce of game killed
in violation of local laws, and for other purposes," ap-
proved May twenty-fifth, nineteen hundred;

1286 Criminal Law

''An Act to prevent the sale of firearms, opium, and
intoxicating liquors, in certain islands of the Pacific,"
approved February fourteenth, nineteen hundred and
two;

''An Act for the suppression of train robbery in the
Territories of the United States and elsewhere and for
other purposes," approved July first, nineteen hundred
and two;

"An Act conferring jurisdiction upon the circuit and
district courts for the district of South Dakota in certain
cases, and for other purposes," approved Februaiy sec-
ond, nineteen hundred and three;

"An Act to amend section three of the 'Act further
to prevent counterfeiting or manufacturing of dies, tools,
or other implements used in manufacturing, ' and so forth,
approved February tenth, eighteen hundred and ninety-
one," approved March third, nineteen hundred and three;

"An Act for the protection of the Bull Run Forest Re-
serve and the sources of the water supply of the city of
Portland, State of Oregon," approved April twenty-
eighth, nineteen hundred and four;

"An Act to amend the Act of February eighth, eighteen
hundred and ninety-seven, entitled 'An Act to prevent
the carrying of obscene literature and articles designed
for indecent and immoral use from one State or Terri-
tory into another State or Territory,' so as to prevent
the importation and exportation of the same," approved
Fe})ruary eighth, nineteen hundred and five;

"An Act to amend section thirteen of chapter three
hundred and ninety-four of the Supplement to tlie Re-
vised Statutes of the United States," approved March
second, nineteen hundred and five;

Section five of "An Act to amend sections forty-four
Jiundred and seventeen, forty-fonr Inindred and fifty-
three, foi-fy four ImithIi'mI and eighty-eight, and forty-
fonr InnKli-cfl :in<l nin<'1\ nine of Hie Revised Statutes re-

Repealino Provisions 1287

lating to misconduct by officers or owners of vessels,"
approved March third, nineteen hundred and five;
-^ "An Act to punish the cutting, chipping, or boxing
of trees on the public lands," approved June fourth, nine-
teen hundred and six.

Sections sixteen, seventeen, and nineteen of "An Act
to establish a bureau of immigration and naturalization,
and to provide for a uniform rule for the naturalization
of aliens throughout the United States," approved June
twenty-ninth, nineteen hundred and six.

An Act entitled "An Act to prohibit corporations from
making money contributions in connection with political
elections," approved January twenty-sixth, nineteen hun-
dred and seven.

An Act entitled "An Act to amend sections one, two,
and three of an Act entitled 'An Act to prohibit shang-
haiing in the United States,' approved June twenty-
eighth, nineteen hundred and six, ' ' approved March sec-
ond, nineteen hundred and seven.

An Act entitled "An Act to promote the safe transpor-
tation in interstate commerce of explosives and other
dangerous articles, and to provide penalties for its viola-
tion," approved May thirtieth, nineteen hundred and
eight.

An Act entitled "An Act to amend section fifty-four
hundred and thirty-eight of the Revised Statutes," ap-
proved May thirtieth, nineteen hundred and eight.

Also all other sections and parts of sections of the
Revised Statutes and Acts and parts of Acts of Congress,
in so far as they are embraced within and superseded by
this Act, are hereby repealed; the remaining portions
thereof to be and remain in force with the same effect
and to the same extent as if this Act had not been passed.

§ 1778. Accrued rights, etc., not affected. See. 342. The
repeal of existing laws or modifications thereof embraced
in this title shall not affect any act done, or any right

1288 Criminal Law

accruing or accrued, or any suit or proceeding had or
cominenced in any civil cause prior to said repeal or modi-
fications, but all liabilities under said laws shall continue
and may be enforced in the same manner as if said repeal
or modifications had not been made.

§ 1779. Prosecutions and punishments. Sec. 343. All
offenses committed, and all penalties, forfeitures, or lia-
bilities incurred prior to the taking effect hereof, under
any law embraced in, or changed, modified, or repealed
by this title, may be prosecuted and punished in the same
manner and with the same effect as if this Act had not
been passed.

§ 1780. Acts of Limitation. Sec. 344. All acts of limita-
tion, whether applicable to civil causes and proceedings,
or for the recovery of penalties or forfeitures, embraced
in, modified, changed, or repealed by this title, shall not
be affected thereby; and all suits or proceedings for
causes arising or acts done or committed prior to the
taking effect hereof may be commenced and prosecuted
within the same time and with the same effect as if said
repeal had not been made.

§ 1781. Date this Act shall be effective. Sec. 345. This
Act shall take effect and be in force on and after the first
day of January, nineteen hundred and ten.

Approved, March 4, 1909.

APPENDIX

THE BILL OF RIGHTS— (1689 A. D.)

AN ACT for declaring the rights and liberties of the
subject, and settling the succession of the crown.

Whereas the Lords Spiritual and Temporal, and Com-
mons, assembled at Westminster, lawfully, fully, and
freely representing all the estates of the people of this
realm, did, upon the thirteenth day of February, in the
year of our Lord one thousand six hundred eighty-eight,
present unto their Majesties, then called and known by
the names and styles of William and Mary, Prince and
Princess of Orange, being present in their proper persons,
a certain declaration in writing, made by the said Lords
and Commons, in the words following: viz. —

Whereas the late King, James II, by the assistance of
divers evil counsellors, judges and ministers employed
by him, did endeavor to subvert and extirpate the
Protestant religion, and the laws and liberties of this
kingdom : —

1. By assuming and exercising a power of dispensing
with and suspending of laws, and the execution of laws,
without consent of Parliament.

2. By committing and prosecuting divers worthy prel-
ates, for humbly petitioning to be excused from concur-
ring to the said assumed power.

3. By issuing and causing to be executed a commission
under the Great Seal, for erecting a court, called the
Court of Commissioners for Ecclesiastical Causes.

4. By levying money for and to the use of the Crown,

1289

1290 Criminal Law

by pretense of prerogative, for other time, and in other
manner than the same was granted by Parliament.

5. By raising and keeping a standing army within this
kingdom in time of peace, withont consent of Parliament,
and quartering soldiers contrary to law.

6. By causing several good subjects, being Protestants,
to be disarmed at the same time when Papists were both
amied and eniployed, contrary to law.

7. By violating the freedom of election of members to
serve in Parliament.

8. By prosecutions in the Court of King's Bench, for
matters and causes cognizable only in Parliament; and
by divers other arbitrary and illegal courses.

9. And whereas of late years, partial, corrupt, and un-
qualified persons have been returned and served on juries
in trials, and particularly divers jurors in trials for high
treason, which were not freeholders.

10. And excessive bail hath been required of persons
committed in criminal cases, to elude the benefit of the
laws made for the liberty of the subjects.

11. And excessive fines have been imposed; and illegal
and cruel punishments inflicted.

12. And several grants and promises made of fines and
forfeitures, before any conviction or judgment against
the persons upon whom the same were to be levied.

All which are utterly and directly contrary to the
known laws and statutes, and the freedom of this realm.

And whereas the said late King James II, having ab-
dicated the government, and the throne being thereby
vacant, his Highness the Prince of Orange (who it hath
pleased Almighty God to make the glorious instrument
of delivering tliis kingdom from Popery and arbitral^
power) did (by the advice of the I^ords Spiritual and
Tompoi-al and divers principal persons of the Commons)
cause letters to be written lo Ihe Lords Sjii ritual and
Temporal, being Protestants, and other letters to the

Appendix 1 "201

several counties, cities, niiiversities, boroughs and cinque-
ports, for the choosing of such persons to represent them,
as were of right to be sent to Parliament, to meet and
sit at Westminster upon the two-and-twentieth day of
January, in this year one thousand six hundred eighty
and eiglit,^in order to such an establishment, as that their
religion, laws and liberties might not be in danger of
being subverted; upon which letters, elections have been
accordingly made.

And thereupon the said Lords Spiritual and Temporal,
and Commons, pursuant to their respective letters and
elections, being now assembled in a full and free repre
sentation of this nation, taking into their most serious
consideration the best means for attaining the ends afore-
said, do in the first place (as their ancestors in like cause
have usually done) for the vindicating and asserting
their ancient rights and liberties, declare:

1. That the pretended power of suspending of laws, or
the execution of laws, by regal authority, as it hath been
assumed, and exercised of late, is illegal.

2. That the pretended power of dispensing with laws,
or the execution of laws by regal authority, as it hath
been assumed, and exercised of late, is illegal.

3. That the commission for erecting the late Court of
Commissioners for Ecclesiastical Causes, and all other
commissions and courts of like nature, are illegal and
pernicious.

4. That levying money for or to the use of the Crown,
by pretence and prerogative, without grant of Parlia-
ment, for longer time or in other manner than the same
is or shall be granted, is illegal.

5. That it is the right of the subjects to petition the
King, and all commitments and prosecutions for such
petitioning are illegal.

6. That the raising or keeping a standing army within

1292 Ceiminal Law

the Kingdom in time of peace, unless it be with the con-
sent of Parliament, is against law.

7. That the subjects which are Protestants, may have
arms for their defense suitable to their conditions, and
as allowed by law.

8. That elections of members of Parliament ought to
be free.

9. That the freedom of speech, and debates or pro-
ceedings in Parliament, ought not to be impeached or
questioned in any court or place out of Parliament.

10. That excessive bail ought not to be required, nor
excessive fines imposed; nor cruel and unusual punish-
ments inflicted.

11. That jurors ought to be duly impanelled and re-
turned, and jurors which pass upon men in trials for
high treason ought to be freeholders.

12. That all grants and promises of fines and for-
feitures of particular persons before conviction, are illegal
and void.

13. And that for redress of all grievances, and for the
amending, strengthening, and presei'ving of the laws,
Parliaments ought to be held frequently.

And they do claim, demand, and insist upon all and
singular the premises, as their undoubted rights and lib-
erties, and that no declaration, judgments, doings or pro-
ceedings, to the prejudice of the people in any of the said
premises, ought in any wise to be drawn hereafter into
consequence or example.

To which demand of their rights, they are particularly
encouraged by the declaration of his Highness the Prince
of Orange, as being the only means for obtaining a full
redress and remedy therein.

Having therefore an entire confidence that his said
Iliglmcss the Prince of Orange will perfect tlic deliver-
ance so far advanced by him, and will still preserve them
from file violation of their rights, which they have been

Appendix 1293

here asserted, and from all other attempts upon their
religion, rights, and liberties.

II. The said Lords Spiritual and Temporal, and Com-
mons, assembled at Westminster, to resolve that William
and Mary, Prince and Princess of Orange, be, and be
declared. King and Queen of England, France and Ire-
land, and the dominions thereunto belonging, to hold the
Crown and royal dignity of the said kingdoms and
dominions to them the said Prince and Princess during
their lives, and the life of the survivor of them; and that
the sole and full exercise of the regal power be only in,
and executed by, the said Prince of Orange, in the names
of the said Prince and Princess, during their joint lives;
and after their deceases, the said Crown and royal dignity
of the said kingdoms and dominions to be to the heirs
of the body of the said Princess; and for default of such
issue to the Princess Anne of Denmark, and the heirs
of her body; and for the default of such issue to the
heirs of the body of the said Prince of Orange. And
the Lords Spiritual and Temporal, and Commons, to pray
the said Prince and Princess to accept the same accord-
ingly.

III. And that the oaths hereafter mentioned, be taken
by all persons of whom the oaths of allegiance and su-
premacy might be required by law, instead of them; and
that the said oaths of allegiance and supremacy be abro-
gated.

I, A. B., do sincerely promise and swear. That I will
be faithful and bear true allegiance to their Majesties
King William and Queen Mary.

So help me God.

I, A. B., do swear, That I do from my heart abhor,
detest, and adjure as impious and heretical, that damnable
doctrine and position, that Princes excommunicated or
deprived by the Pope, or any authority of the See of
Rome, may be deposed or murdered by their subjects, or

129-i Ckiminal, Law

any other whatsoever. And I do declare, that no foreign
prince, person, prelate, state, or potentate hath, or ought
to have, any jurisdiction, power, superiority, pre-emi-
nence, or authority ecclesiastical or spiritual, within this
realm.

So help me God.

IV. Upon which their said Majesties did accept the
crown and royal dignity of the kingdoms of England,
France, and Ireland, and the dominions thereunto belong-
ing, according to the resolution and desire of the said
Lords and Commons contained in the said declaration.

V. And thereupon their Majesties were pleased, that
the said Lords Spiritual and Temporal, and Commons,
being the two Houses of Parliament, should continue to
sit, and with their Majesties' royal concurrence make
effectual provision for the settlement of the religion, laws
and liberties of this kingdom, so that the same for the
future might not be in danger again of being subverted;
to which the said Lords Spiritual and Temporal, and
Commons, did agree and proceed to act accordingly.

VI. Now in pursuance of the premises, the said Lords
Spiritual and Temporal, and Commons, in Parliament as-
sembled, for the ratifying, confirming, and establishing
the said declaration, and the articles, clauses, matters,
and things therein contained, by the force of a law made
in due form by authority of Parliament, do pray that it
may be declared and enacted. That all and singular the
rights and liberties asserted and claimed in the said
declaration, are the true, ancient, and indul)ilable rights
and liberties of the people of this kingdom, and so shall
be esteemed, allowed, adjudged, deemed, and taken to
be, and that all and every the particulars aforesaid shall
be firmly and strictly liolden and observed, as they are
expressed in the said declaration; and all officers, and
ministers whatsoever shall serve their Majesties and their
successors according lo ilie snmc in nil <inies.to come.

AfpEj^Dix 1295

VII. And the said Lords Spiritual and Temporal, and
Commons, seriously considering how it hath pleased Al-
mighty God, in his marvelous providence, and merciful
goodness to this nation, to provide and preserve their
said Majesties' royal persons most happily to reign over
us upon the throne of their ancestors, for which they
render unto 11 im from the bottom of their hearts their
humblest thanks and praises, do truly, firmly, assuredly,
and in the sincerity of their hearts, think, and do hereby
recognize, acknowledge and declare, that King James II,
having abdicated the government, and their Majesties
having accepted the Crown and royal dignity as afore-
said, their said Majesties did become, were, are, and of
sovereign right ought to be, by the laws of this realm,
our sovereign liege lord and lady, King and Queen of
England, France, and Ireland, and the dominions there-
unto belonging in and to whose princely persons the royal
State, Crown, and dignity of the said realms, with all
honors, styles, titles, regalities, prerogatives, powers,
jurisdictions and authorities to the same belonging and
appertaining, are most fully, rightfully, and entirely in-
vested and incorporated, and annexed.

VIII. And for preventing all questions and divisions
in this realm, by reason of any pretended titles to the
Crown, and for preserving a certainty in the succession
thereof, in and upon which the unity, peace, and tran-
quillity, and safety of this nation doth, under God, wholly
consist and depend, the said Lords Spiritual and Tem-
poral, and Commons, do beseech their Majesties that it
may be enacted, established and declared, that the Crown
and legal government of the said kingdoms and domin-
ions, with all and singular the premises thereunto be-
longing and appertaining, shall be and continued to their
said Majesties, and the survivor of the other, during their
lives, and the life of the survivor of them. And that the
entire, perfect, and full exercise of the regal power and

1296 Ckiminal, Law

government be only in, and executed by, his Majesty, in
the names of both their Majesties during their joint lives ;
and after their deceases the said crown and premises
shall be and remain to the heirs of the body of her
Majesty; and for default of such issue, to her Royal
Highness the Princess Anne of Denmark, and the heirs
of her body; and for default of such issue, to the heirs
of the body of his said Majesty. And thereunto the said
Lords Spiritual and Temporal, and Commons, do, in the
name of all the people aforesaid, most humbly and faith-
fully submit themselves, their heirs and posterities for
ever; and do faithfully promise. That they will stand to,
maintain, and defend their said Majesties, and also the
limitation and succession of the crown herein specified
and contained, to the utmost of their powers, with their
lives, and estate, against all persons whatsoever that
shall attempt anything to the contrary.

IX. And AVhereas it hath been found by experience,
that it is inconsistent with the safety and welfare of this
Protestant kingdom, to be governed by a Popish Prince,
or by any King or Queen marrying a Papist, the said
Lords Spiritual and Temporal, and Commons, do further
pray that it may be enacted, That all and every persons
that is, are, or shall be reconciled to, or shall hold com-
munion with, the See or Church of Rome, or shall profess
the Popish religion, or shall marry a Papist, shall be ex-
cluded, and be forever incapable to inherit, possess, or
enjoy the Crown and Government of this realm, and Ire-
land, and the dominions thereunto belonging, or any part
of the same, or to have, use, or exercise any regal power,
authority, or jurisdiction within the same; and in all and
every such case or cases the people of these realms shall
be and are hereby absolved of their allegiance; and the
said Crown and Government shall from time to time de--
scend to, and be enjoyed by, such person or persons,
being Protestants, as sliould have inherited and enjoyed

Appendix 1297

the same, in case the said person or persons so reconciled,
holding communion, or professing, or mariying as afore-
said, were naturally dead.

THE TWELVE TABLES
TABLE I

THE SUMMONS BEFORE THE MAGISTRATE

1. If the plaintiff summon a man to appear before the
magistrate and he refuse to go, the plaintiff shall first
call witnesses and arrest him.

2. If the defendant attempt evasion or flight, the plain-
tiff shall take him by force.

3. If the defendant be prevented by illness or old age,
let him who summons him before the magistrate furnish
a beast of burden, but he need not send a covered carriage
for him unless he choose.

4. For a wealthy defendant only a wealthy man may
go bail; any one who chooses may go bail for a poor
citizen of the lowest class.

5. In case the contestants come to an agreement, the
magistrate shall announce the fact.

6. In case they come to no agreement, they shall before
noon enter the case in the comitium or forum.

TABLE II

JUDICIAL PROCEDURE

2. A serious illness or a legal appointment with an alien

should one of these occur to the judge, arbiter, or

either party to the suit, the appointed trial must be post-
poned.

3. If the witnesses of either party fail to appear, that
party shall go and sei*\^e a verbal notice at his door on

three days,
c. L.— 82

1298 Criminal Law

TABLE III

"EXECUTION FOLLOWING CONFESSION OR JUDGMENT

1. A debtor, either by confession or judgment, shall
have thirty days grace.

2. At the expiration of this period the plaintiff shall
serve a formal summons upon the defendant, and bring
him before the magistrate.

3. If the debt be not paid or if no one becomes surety,
the plaintiff shall take him away, and bind him with
shackles and fetters of not less than fifteen pounds
weight, and heavier at his discretion.

4. If the debtor wish, he may live at his own expense;
if not, he in whose custody he may be shall furnish him
a pound of meal a day, more at his discretion.

6. On the third market day the creditors, if there are
several, shall divide the property. If one take more or
less, no guilt shall attach to him.

TABLE IV

PATERNAL RIGHTS

3. If a father shall thrice sell his son, the son shall be
free from the paternal authority.

TABLE V

INITERITANCE AND TXJTELAGE

3. What has been appointed in regard to the property
or tutelage shall be binding in law.

4. If a man die intestate, having no natural heirs, his
property shall pass to the nearest agnate.

5. If there be no agnate, the gentiles shall succeed.

7 If one be liojjelessly insane, liis agnates

and geiililes shall liave aulliority over him and his prop-
erty ill case then- ho nnnc to lake cliargc.

8 fVoiii Ihal estate into that estate.

Appendix 1299

TABLE VI

OWNERSHIP AND POSSESSION

1. Whenever a party shall negotiate a nexum or trans-
fer by mancipatio, according to the formal statement so
let the law be.

5. Whoever in presence of the magistrates shall join
issue by mannum consertio

7. A beam built into a house or vine-trellis shall not
be removed.

9. W^hen the vines have been pruned, until the grapes
are removed

TABLE VII

LAW CONCERNING REAL PROPERTY

5. If parties get into dispute about boundaries

7. They shall pave the way. If they do not pave the
way with stones a man may drive where he pleases.

8. If water from rain gutters cause damage

TABLE VIII

ON TORTS

1. Whoever shall chant a magic spell

2. If a man maim another, and does not compromise
with him, there shall be retaliation in kind.

3. If with the fist or club a man break a bone of a
freeman, the penalty shall be three hundred asses; if of
a slave, one hundred and fifty asses.

4. If he does any injury to another, twenty-five asses;
if he sing a satirical song let him be beaten.

5 If he shall have inflicted a loss he shall

make it good.

8. Whoever shall blight the crops of another by incan-
tation nor shall thou win over to thyself another's

grain

1300 Criminal Law

12. If a thief be caught stealing by night and he be
slain, the homicide shall be lawful.

13. If in the daytime the thief defend himself with a
weapon, one may kill him.

15 with a leather girdle about his naked body,

and a platter in his hand

16. If a man contend at law about a theft not detected
in the act

21. If a patron cheat his client, he shall become in-
famous.

22. He w^ho has been summoned as a witness or acts
as libripens, and shall refuse to give his testimony, shall
be accounted infamous, and shall be incapable of acting
subsequently as witness.

24. If a weapon slip from a man's hand without his
intention of hurling it

TABLE IX

(No fragments of this table are extant.)

TABLE X

1. They shall not inter or burn a dead man within the
city.

2 more than this a man shall not do ; a

man shall not smooth the wood for the funeral pyre with
an axe.

4. Women shall not lacerate their faces, nor indulge in
immoderate wailing for the dead.

5. They shall not collect the bones of a dead man for a
second intennent.

7. Whoever wins a crown, either in person or by his
slaves or animals, or has received it for valor

8 lie shall not add gold ; but gold

used in joining the teeth This may be burned

or buried with the dead without incurring any penalty.

Appendix 1301

TABLE XI

(No fragments of this table are extant.)

TABLE XII

SUPPLEMENTARY LAWS

2. If a slave has committed a theft, or has done dam-
age

3. If either party sliall have won a suit concerning
property by foul means, at the discretion of the oppo-
nent the magistrate shall fix the damage at twice

the profits arising from the interim possession.

THE LAWS OF MOSES

(DEUTERONOMY. The fifth Book of the Bible, part of Chapter V, iu-
eluding the ten commandments.)

Verse 11 : Thou shalt not take the name of the Lord thy
God in vain: for the Lord will not hold him guiltless that
taketh his name in vain.

Verse 12: Keep the sabbath day to sanctify it, as the
Lord thy God hath commanded thee.

Verse 13: Six days thou shalt labour, and do all thy
work ;

Verse 14: But the seventh day is the sabbath of the
Lord thy God : in it thou shalt not do any work, thou, nor
thy son, nor thy daughter, nor thy manservant, nor thy
maidservant, nor thine cattle, nor thy stranger that is
within thy gates ; that thy, thy manservant and thy maid-
servant may rest as well as thou.

Verse 15: And remember that thou wast a servant in
the land of Egypt, and that the Lord thy God brought
thee out thence through a mighty hand and by a stretched
out arm: therefore the Lord thy God commanded thee to
keep the sabbath day.

1302 Criminal Law

Verse 16: Honour thy father and thy mother, as the
Lord thy God hath commanded thee ; that thy days may
be prolonged, and that it may go well with thee, in the
land which the Lord thy God giveth thee.

Verse 17: Thou shalt not kill.

Verse 18: Neither shalt thou commit adultery.

Verse 19: Neither shalt thou steal.

Verse 20: Neither shalt thou bear false witness against
thy neighbour.

Verse 21: Neither shalt thou desire thy neighbour's
wife, neither shalt thou covet thy neighbour's house, his
field, or his manservant, or his maidservant, his ox or his
ass, or anything that is thy neighbour's.

Verse 22: These words the Lord spake unto all your
assembly in the mount out of the midst of the fire, of the
cloud, and of the thick darkness, with a great voice : and
he added no more. And he wrote them in two tables of
stone, and delivered them unto me.

CHAPTER XII

Verse 1 : These are the statutes and judgments, which
ye shall observe to do in the land, which the Lord God
of thy fathers giveth thee to possess it, all the days that
ye live upon the earth.

Verse 2 : Ye shall utterly destroy all the places, wherein
the nations which ye shall possess served their gods,
upon the high mountains, and upon the hills, and under
every green tree.

Verse 3: And ye shall overthrow llicir altars, and break
their pillars, and burn their groves with lire; and ye
shall hew down the graven images of their gods, and de-
stroy the names of them out of that place.

CHAPTER XIII

Verse 1: It' thric ai-isc among you a i)i(i])het, or a
(hcanior of divanis, and giveth thee a sign or a wonder.

A ITKNDTX ]'.](y.)

Verse 2: And the si^n or the wonder eonie to pass,
whereof he speak unto thee, saying. Let us go after other
gods, which thou hast not known, and let us serve them;

Verse 3 : Thou shalt not hearken unto the words of that
prophet, or that dreamer of dreams: for the Lord your
God proveth you, to know whetlier ye love the Lord your
God with all your heart and with all your soul.

Verse 4: Ye shall walk after the Ijord your God, and
fear him, and keep his commandments, and obey his voice,
and ye shall serve him, and cleave unto him.

Verse 5: And that prophet, or that dreamer of dreams,
shall be put to death; because he hath spoken to turn
you away from the Lord your God, which brought you
out of the land of Egypt, and redeemed you out of the
house of bondage, to thrust thee out of the way which the
Lord thy God commanded thee to walk in. So shalt thou
put the evil away from the midst of thee.

Verse 6: If thy brother, the son of thy mother, or thy
son, or thy daughter, or the wife of thy bosom, or thy
friend, which is as thine own soul, entice thee secretly,
saying, Let us go and serve other gods, which thou hast
not known, thou, nor thy fathers;

Verse 7: Namely, of the gods of the people which are
round about you, nigh unto thee, or far off from thee,
from the one end of the earth even unto the other end of
the earth;

Verse 8: Thou shalt not consent unto him nor hearken
unto him; neither shall thine eye pity him, neither shalt
thou spare, neither shalt thou conceal him:

Verse 9: But thou shalt surely kill liim; thine hand
shall be first upoii him to put him to death, and after-
wards the hand of all tlie people.

Verse 10: And thou shalt stone him with stones, that
he die; because he hath sought to thrust thee away from
the Lord thy God, which brought thee out of the land of
Egypt, from the house of bondage.

1304 Criminal Law

Verse 11 : And all Israel shall hear, and fear, and shall
do no more any such wickedness as this is among you.

Verse 12: If thou shalt hear say in one of thy cities,
which the Lord thy God hath given thee to dwell there,
saying,

Verse 13 : Certain men, the children of Belial, are gone
out from among you and have withdrawn the inhabitants
of their city, saying. Let us go and serve other gods, which
ve have not known;

Verse 14: Then shalt thou inquire, and make search,
and ask diligently; and, behold, if it be truth, and the
thing certain, that such abomination is wrought among
you;

Verse 15: Thou shalt surely smite the inhabitants of
that city w^ith the edge of thy sword, destroying it utterly
and all that is therein, and the cattle thereof, with the
edge of thy sword.

Verse 16: And thou shalt gather all the spoil of it into
the midst of the street thereof, and shalt burn with lire
the city, and all the spoil thereof every whit, for the
Lord thy God; and it shall be an heap forever; it shall not
be built again.

Verse 17: And there shall cleave nought of the cursed
thing to thine hand: that the Lord may turn from the
fierceness of his anger, and show thee mercy, and have
compassion upon thee, and multiply thee, as he hath sworn
unto thy fathers;

CHAPTER XIV

Verse 1: Ye are the children of the Lord your God; ye
shall not cut yourselves, nor make any baldness between
your eyes for tlie dead.

Verse 2: For thou art nn holy people unto llie Lord thy
God, niul llie Lord hath chosen thee to be a peculiar
people unto himself, above all the nations that are upon
the earth.

Appendix 1305

Verse 3 : Thou shalt not eat any abominable thing.

Verse 4: These are the beasts which ye shall eat: the
ox, the sheep, and the goat.

Verse 5: The hart, and the roebuck, and the fallow deer,
and the wild goat, and the pygarg, and the wild ox, and
the chamois.

Verse 6: And every beast that parteth the hoof, and
cleaveth the cleft into two claws, and cheweth the cud
among the beasts, that ye shall eat.

Verse 7: Nevertheless these ye shall not eat of them
that chew the cud, of them that divide the cloven hoof; as
the camel, and the hare, and the coney, for they chew the
cud, but divide not the hoof; therefore they are unclean
unto you.

Verse 8: And the swine, because it divideth the hoof,
yet cheweth not the cud, it is unclean unto you: ye shall
not eat of their flesh, nor touch their dead carcass.

Verse 9 : These ye shall eat of all that are in the waters :
all that have fins and scales shall ye eat.

Verse 10: And whatsoever hath not fins and scales ye
may not eat; it is unclean unto you.

Verse 11 : And of all clean birds ye shall eat.

Verse 12: But these are they of which ye shall not eat:
the eagle, and the ossifrage, and the ospray.

Verse 13: And the glede, and the kite, and the vulture
after his kind.

Verse 14: And every raven after his kind.

Verse 15: And the owl, and the night hawk, and the
cuckoo, and the hawk after his kind.

Verse 16: The little owl, and the great owl, and the
swan,

Verse 17 : And the pelican, and the gier eagle, and the

cormorant.

Verse 18: And the stork, and the heron after her kind,
and the lapwing, and the bat.

Verse 19: And every creeping thing that flieth is un-
clean unto you : they shall not be eaten.

13.Q6; CEiMrN'.JEB" Law

Verse 20: But of all clean fowls ye may eat.
f Verse 21 : Ye shall not eat of any thing that dieth of
itself: thou shalt give unto the stranger that is in thy
gates, that he may eat it ; or thou mayest sell it unto an
alien : for thou art an holy people unto the Lord thy God.
Thou shalt not seethe a kid in his mother 's milk.

Vei-se 22 : Thou shalt truly tithe all the increase of thy
seed, that the held bringeth forth year by year.

Verse 23: And thou shalt eat before the Lord thy God,
in the place which he shall choose to place his name there,
the tithe of thy corn, of thy wine, and of thine oil, and the
firstlings of thy herds and of thy flocks; that thou mayest
learn to fear the Lord thy God always.

Verse 24: And if the way be too long for thee, so that
thou are not able to carry it; or if the place be too far from
thee, which the Lord thy God shall choose to set his name
there, when the Lord thy God hath blessed thee:

Verse 25: Then shalt thou turn it into money, and bind'
up the money in thine hand, and shalt go unto the place
which the Lord thy God shall choose:

Verse 26: And thou shalt bestow that money for what-
soever thy soul lusteth after, for oxen, or for sheep, or for
wine, or for strong drink, or for whatsoever thy soul de-
sireth : and thou shalt eat there before the Lord thy God,
and thou shalt rejoice, thou, and thine household.

Verse 27: And the I^evite that is within thy gates; iliou
shalt not forsake him; for lie hath no part nor inlicritance
with thee.

Verse 28: At the end of three years thou shalt bring
fortli all the lithe of lliiiic increase the same year, and
shall lay it up witliin thy gates:

Verse 29: And tlie liovite (because he hath no i)<Mrt nor
iiilioritanco with tlieo), and Ihc stranger, and the father-
less, ;iii(l the widow, wliicli are witliin 1hy gates, shall
come, and shall eat and be satisfied; that the Lord thy
God may l)lcss thcc in ;ill the work of Ihinc iiinid which
thou doest.

Appendix 1307

chapter xv

Verse 1: At the end of every seven years thou shalt
make a release.

Verse 2 : And this is the manner of the release : Every
creditor that lendeth aught unto his neighbour shall re-
lease it; he shall not exact it of his neighbour, or of his
brother; because it is called the Lord's release.

Verse 3 : Of a foreigner thou mayest exact it again : but
that which is thine with thy brother thine hand shall
release ;

Verse 4: Save when there shall be no poor among you;
for the Lord shall greatly bless thee in the land which
the Lord thy God giveth thee for an inheritance to possess
it:

Verse 5: Only if thou carefully harken unto the voice
of the Lord thy God, to observe to do all these command-
ments which I command thee this day.

Verse 6: For the Lord thy God blesseth thee, as he
promised thee: and thou shalt lend unto many nations,
but thou shalt not borrow ; and thou shalt reign over many
nations, but they shall not reign over thee.

Verse 7 : If there be among you a poor man of one of
thy brethren within any of thy gates in thy land which
the Lord thy God giveth thee, thou shalt not harden thine
heart, nor shut thine hand from thy poor brother:

Verse 8 : But thou shalt open thine hand wide unto him,
and shalt surely lend him sufficient for his need, in that
which he wanteth.

Verse 9: Beware that tliere be not a thought in thy
wicked heart, saying, the seventh year of release is at
hand, and thine eye be evil against thy poor brother, and
thou givest him nought; and he cry unto the Lord.

Verse 10: Thou shalt surely give him and thine heart
shall not be grieved when thou givest unto him: because
that for this thing the Lord thy God shall bless thee in all
thy works, and in all that thou puttest thine hand unto.

1308 Ceiminal Law

Verse 11: For tlie poor shall never cease out of the
land: therefore I command thee, saying, Thou shalt open
thine hand wide unto thy brother, to thy poor, and to thy
needy, in thy land.

Verse 12: And if thy brother, an Hebrew man, or an
Hebrew woman, be sold unto thee, and serve thee six
years ; then in the seventh year thou shalt let him go free
from thee.

Verse 13: And when thou sendest him out free from
thee, thou shalt not let him go away empty:

Verse 14: Thou shalt furnish him liberally out of thy
flock, and out of thy floor, and out of thy winepress: of
that wherewith the Lord thy God hath blessed thee thou
shalt give unto him.

Verse 15: And thou shalt remember that thou wast a
bondman in the land of Egypt, and the Lord thy God
redeemed thee: therefore I command thee this thing
today.

Verse 16: And it shall be, if he say unto thee, I will
not go away from thee : because he loveth thee and thine
house, because he is well with thee.

Verse 17: Then thou shalt take an awl, and thrust it
through his ear unto the door, and he shall be thy servant
forever. And also unto thy maid-servant, thou shalt do
likewise.

Verse 18 : It shall not seem hard unto thee, when thou
sendest him away free from thee; for he hath been worth
a double hired servant to thee, in serving thee six years :
and the Lord thy God shall bless thee in all that thou
doest.

Verse 19: All the firstling males that come of thy herd
and of thy flock thou shalt sanctify unto the Lord thy God:
thou shalt do no work with the firstlings of thy bullock,
nor shear tlie firstling of thy slicep.

Verse 20: Thou shalt eat it before the Lord thy God
year by year in the place which the Lord shall choose,
thou and thy household.

Appendix 1301)

Verse 21: And if there be any blemish therein, as if it
be lame, or blind, or have an ill blemish, thou shalt
not sacrifice it unto the Lord thy God.

Verse 22: Thou shalt eat it within thy gates: the un-
clean and the clean person shall eat it alike, as the roe-
buck, and as the hart.

Verse 23: Only thou shalt not eat the blood thereof;
thou shalt pour it upon the ground as water.

CHAPTER XVII

Verse 1 : Thou shalt not sacrifice unto the Lord thy God
any bullock, or sheep, wherein is a blemish or any evil
f avoredness : for that is an abomination unto the Lord thy
God.

Verse 2: If there be found among you, within any of
thy gates which the Lord thy God giveth thee, man or
woman, that hath wrought wickedness in the sight of the
Lord thy God, in transgressing his covenant.

Verse 3: And hath gone and served other gods, and
worshipped them, either the sun, or moon, or any of the
host of heaven, which I have not commanded;

Verse 4: And it be told thee, and thou hast heard of it,
and inquired diligently, and, behold, it be true, and the
thing certain, that such abomination is wrought in Israel :

Verse 5: Then shalt thou bring forth that man or that
woman, which have committed that wicked thing, unto
thy gates, even that man or that woman, and shalt stone
them with stones, till they die.

Verse 6: At the mouth of two witnesses, or three wit-
nesses, shall he that is worthy of death be put to death;
but at the mouth of one witness he shall not be put to
death.

Verse 7 : The hands of the witnesses shall be first upon
him to put him to death, and aftei'ward the hands of all
the people. So thou shalt put the evil away from among
yon.

Verse 8: If there arise a matter too hard for thee in

1310 Criminal Law

judgment, between blood and blood, between plea and
plea, and between stroke and stroke, being matters of con-
troversy within thy gates : then slialt thou arise, and get
thee up into the place which the Lord thy God shall
choose :

Verse 9: And thou shalt come unto the priests the Le-
vites, and unto the judge that shall be in those days, and
inquire; and they shall shew thee the sentence of judg-
ment :

Verse 10: And thou shalt do according to the sentence,
which they of that place show thee; and thou shalt ob-
serve to do according to all that they inform thee:

Verse 11: According to the sentence of the law which
they shall teach thee, and according to the judgment
which they shall tell thee, thou shalt do: thou shalt not
decline from the sentence which they shall show thee to
the right hand, nor to the left.

Verse 12: And the man that will do presumptuously,
and will not harken unto the priest that standeth to min-
ister there before the Lord thy God, or unto the judge,
even that man shall die: and thou shalt put away the
evil from Israel.

Verse 13: And all the people shall hear, and fear, and
do no more presumptuously.

Verse 14: When thou art come unto the land which the
Lord thy God giveth thee, and shalt possess it, and
shalt dwell therein, and shalt say, I will set a king over
me, like as all the nations tliat are about mc:

Verse 15: Tliou shalt in any wise set liiin king over
thee, whom the Tjoid tliy God shall choose: one from
among thy brelliicii shalt tiiou set king over thee: thou
mayest not set a sli-anger over thee, wliich is not thy

l>T"of]l('I".

\'erse J<i: l>nt lie sliail no! multiply horses to himself,
nor cause the pcoijlc jo i-eturii to Egypt, to the end that
lie shonlfl ninhipl> horses: forasmuch as the Lord hath

Appendix I.'? 11

•
said unto you, Ye sliall lieiiccl'orth leluni no moi-e that
way.

Verse 17: Neither shall he iiuilliijly wives to himself,
that his heart turn not away: neither shall he greatly mul-
tiply to himself silver and gold.

Verse 18: And it shall be, when he sitteth upon the
throne of his kingdom, that he shall write him a copy of
this law in a book out of that which is before the priests
the Levites:

Verse 19: And it shall be with him, and he shall head
therein all the days of his life : that he may learn to fear
the Lord his God, to keep all the words of this law and
these statutes, to do them:

Verse 20: That his heart be not lifted up above his
brethren, and that he turn not aside from the command-
ment, to the right hand, or to the left: to the end that
he may prolong his days in his kingdom, he, and his chil-
dren, in the midst of Israel.

CHAPTER XIX

Verse 1: When the Lord thy God hath cut off the na-
tions, whose land the Lord thy God giveth thee, and thou
succeedest them, and dwellest in their cities, and in tlieir
houses :

Verse 2 : Thou shalt separate three cities for thee in the
midst of thy land, which the Lord thy God giveth thee to
possess it.

Verse 3: Thou shalt prepare thee a way and divide the
coasts of thy land which the Lord thy God giveth thee to
inherit, into three parts, that every slayer may flee
thither.

; Verse 4V And this is the case of the slayer, which shall
•flee thither, that he may live: Who sokilieth his neigh-
bour igiiorantly, whom he hated hot in time past; .

Verse 5: As wlieii "a man goeth into the wood Avith his
neighbour to hew wood, and his hand fetcheth a stroke

1312 Criminal Law

•
with the ax to cut down the tree, and the head slippeth
from the helve, and lighteth upon his neighbour, that he
die; he shall flee unto one of those cities, and live:

Verse 6: Lest the avenger of blood pursue the slayer,
while his heart is hot, and overtake him, because the way
is long, and slay him ; whereas he was not worthy of death,
inasmuch as he hated him not in time past.

Verse 7 : "Wherefore I command thee, saying, Thou slialt
separate three cities for thee.

Verse 8: And if the Lord thy God enlarge thy coast, as
he hath sworn unto thy fathers, and give thee all the land
which he promised to give unto thy fathers;

Verse 9 : If thou slialt keep all these commandments to
do them, which I command thee this day, to love the Lord
thy God, and to walk ever in his ways; then shalt thou
add three cities more for thee, beside those three :

Verse 10 : That innocent blood be not shed in thy land,
which the Lord thy God giveth thee for an inheritance,
and so blood be upon thee.

Verse 11: But if any man hate his neighbour, and lie
in wait for him, and rise up against him, and smite him
mortally that he die, and fleeth into one of these cities :

Verse 12: Then the elders of his city shall send and
fetch him thence, and deliver him into the hand of the
avenger of blood, that he may die.

Verse 13 : Thine eye shall not pity him, but thou shalt
put away the guilt of innocent blood from Israel, that it
may go well with thee.

Verse 14: Thou shalt not remove thy neighbour's land-
mark, which they of old time have set in thine inheritance,
which thou shalt inherit in the land that the Lord thy
God giveth thee to possess it.

Verse 15: One witness shall not rise up against a man
for any iniquity, or for any sin, in any sin that he sinneth:
at the mouth of two witnesses, or at the mouth of three
witnesses, shall the matter be established.

Ai'l'ENDlX ]'M'.\

Verse 16: If a false witness rise up against any man to
testify against him that which is wrong;

Verse 17: Then both the men, betw^een whom tlie con-
troversy is, shall stand before the Lord, before the priests
and the judges, which shall be in those days;

Verse 18: And the judges shall make diligent inquisi-
tion: and, behold, if the witness be a false witness, and
hath testified falsely against his brother:

Verse 19: Then shall ye do unto him, as he had thought
to have done unto his brother: so shalt thou put the evil
away from among you.

Verse 20: And those which remain shall hear, and fear,
and shall henceforth commit no more any such evil among
you.

Verse 21: And thine eye shall not pity; but life shall
go for life, eye for eye, tooth for tooth, hand for hand,
foot for foot.

CHAPTER XX

Verse 1: When thou goest out to battle against thine
enemies, and seest horses, and chariots, and a people more
than thou, be not afraid of them: for the Lord thy God
is with thee, which brought thee up out of the land of
Egypt.

Verse 2: And it shall be, when ye are come nigh unto
the battle, that the priest shall approach and speak unto
the people.

Verse 3: And shall say unto thee, Hear, Israel, ye
approach this day unto battle against your enemies: let
not your hearts faint, fear not, and do not tremble, neither
be ye terrified because of them;

Verse 4: For the Lord your God is he that goeth with
you, to fight for you against your enemies, to save you.

Verse 5: And the officers shall speak unto the people
saying. What man is there that hath built a now house,
c. L.— 83

1314 Ckiminal Law

and hath not dedicated it? let him go and return to his
house, lest he die in the battle, and another man dedicate

it.

Verse 6 : And what man is he that hath planted a vine-
yard, and hath not yet eaten of it? let him also go and
return unto his house, lest he die in the battle, and an-
other man eat of it.

Verse 7: And what man is there that hath betrothed
a wife, and hath not taken her? let him go and return unto
his house, lest he die in the battle, and another man take
her.

Verse 8: And the officers shall speak further unto the
people, and they shall say, What man is there that is fear-
ful and fainthearted? let him go and return unto his
house, lest his brethren's heart faint as well as his heart.
Verse 9: And it shall be, when the officers have made
an end of speaking unto the people, that they shall make
captains of the armies to lead the people.

Verse 10 : When thou comest nigh unto a city to fight
against it, then proclaim peace unto it.

Verse 11: And it shall be, if it make thee answer of
peace, and open unto thee, then it shall be, that all the
people that is found therein shall be tributaries unto thee,
and they shall serve thee.

Verse 12 : And if it will make no peace with thee, but

will make war against thee, then thou shalt besiege it:

Verse 13: And when the Lord thy God hath delivered it

unto thine hands thou shalt smite every male thereof with

the edge of thy sword:

Verse 14: But the woman, and the little ones, and the
cattle, and all that is in the city, even all the spoil thereof,
shalt thou take unto thyself; and thou shalt eat the spoil
of thine enemies, which the Lord thy God hath given

thee.

Verse 15: Thus slialt thou do unto all the cities which
arc very far off from thee, which are not of the cities of
these nations.

Appendix 1315

Verse 16: But of the cities of these people which the
Lord thy God doth give thee for an inheritance, tlion shalt
save alive nothing that breatheth :

Verse 17: But thou shalt utterly destroy thcni; namely,
the Hitites, and Amorites, the Canaanites, and the Periz-
zites, the Ilivites, and the Jebusites ; as the Lord thy God
hath commanded thee:

Verse 18 : That they teach you not to do after all their
abominations, which they have done unto their gods; so
should ye sin against the Lord your God.

Verse 19 : When thou shalt besiege a city a long time,
in making war against it to take it, thou shalt not destroy
the trees thereof by forcing an ax against them: for thou
mayest eat of them, and thou shalt not cut them down (for
the tree of the field is man's life) to employ them in the
siege :

Verse 20 : Only the trees which thou knowest that they
be not trees for meat, thou shalt destroy and cut them
down; and thou shalt build bulwarks against the city
that maketh war with thee, until it be subdued.

CHAPTER XXI

Verse 1: If one be found slain in the land which the
Lord thy God giveth thee to possess it, lying in the field,
and it be not known who hath slain him :

Verse 2: Then thy elders and try judges shall come
forth, and they shall measure unto the cities which are
round about him that is slain:

Verse 3: And it shall be, that the city which is next
unto the slain man, even the elders of that city shall take
an heifer, which hath not been wrought with, and which
hath not drawn in the yoke ;

Verse 4: And the elders of that city shall bring down
the heifer unto a rough valley, which is neither eared
nor shewn, and shall strike off the heifer's neck there in
the valley:

1316 Criminal Law

Verse 5: And the priests the sons of Levi shall come
near; for them the Lord thy God, hath chosen to minister
unto him, and to bless in the name of the Lord; and by
their word shall every controversy and every stroke be
tried :

Verse 6: And all the elders of that city, that are next
unto the slain man, shall wash their hands over the
heifer that is beheaded in the valley.

Verse 7: And they shall answer and say, Our hands
have not shed this blood, neither have our eves seen it.

Verse 8: Be merciful, Lord, unto thy people Israel,
whom thou hast redeemed, and lay not innocent blood
unto thy people of Israel's charge. And the blood shall
be forgiven them.

Verse 9: So shalt thou put away the guilt of inno-
cent blood from among you, when thou shalt do that
which is right in the sight of the Lord.

Verse 10: When thou goest forth to war against thine
enemies, and the Lord thy God hath delivered them into
thine hands, and thou hast taken them captive.

Verse 11: And seest among the captives a beautiful
woman, and hast a desire unto her, that thou wouldst
have her to thy wife ;

Verse 12: Then thou shalt bring her home to thine
house; and she shall shave her head, and pare her nails;

Verse 13: And she shall put the raiment of her cap-
tivity from off her, and shall remain in thine house, and
bewail her father and her mother a full month; and after
that thou shalt go in unto her and be her husband, and
she shall be thy wife.

Verse 14: And it shall be, if thou have no delight in
her, then thou shalt let her go whither she will; but thou
slialt not sell her at all for money, thou shalt not make
merchandise of her, because thou hast humbled her.

Verse 15: If a man have two wives, one beloved, and
auotlicr li;i1('(], niid llicv liavo l)orii(' liiiii cliildrcMi, botli the

Appendix l.'HT

beloved and the hated; and if the firstborn son be hers
that was hated:

Verse 16: Then it shall be when he maketh his sons
to inherit that which he hath, that he may not make the
son of the beloved firstborn before the son of the hated,
which is indeed the firstborn.

Verse 17: But he shall acknowledge the son of tlie
hated for the firstborn, by giving him a double portion
of all that he hath: for he is the beginning of his strength;
the right of the firstborn is his.

Verse 18: If a man have a stubborn and rebellious son,
which will not obey the voice of his father, or the voice
of his mother, and that, when they have chastened him,
will not hearken unto them:

Verse 19: Then shall his father and his mother lay
hold on him, and bring him out unto the elders of his city,
and unto the gate of his place;

Verse 20: And they shall say unto the elders of his city.
This, our son, is stubborn and rebellious, he will not
obey our voice; he is a glutton, and a drunkard.

Verse 21: And all the men of his city shall stone him
with stones, that he die: so shalt thou put evil away
from among you ; and all Israel shall hear and fear.

Verse 22 : And if a man have committed a sin worthy
of death, and he be put to death, and thou hang him on
a tree:

Verse 23: His body shall not remain all night upon
the tree, but thou shalt in any wise bury him that day;
(for he that is hanged is accursed of God); that thy
land be not defiled, which the Lord thy God giveth thee
for an inheritance.

CHAPTER XXII

Verse 1: Thou shalt not see thy brother's ox or his
sheep go astray, and hide thyself from them: thou shalt
in any case bring them again unto thy brother.

1318 Criminal Law

Verse 2 : And if tliy brother be not nigh unto thee, or if
thou know him not, then thou shalt bring- it unto thine
own' house, and it shall be with thee until thy brother seek
after it, and thou shalt restore it to him again.

Verse 3 : In like manner shalt thou do with his ass ; and
so shalt thou do with his raiment ; and with all lost thing
of thy brother's, which he hath lost, and thou hast found,
shalt thou do likewise ; thou mayest not hide thj^self .

Verse 4: Thou shalt not see thy brother's ass or his ox
fall down by the way, and hide thyself from them: thou
shalt surely help him to lift them up again.

Verse 5: The woman shall not wear that which per-
taineth unto a man, neither shall a man put on a woman 's
garment ; for all that do so are abomination unto the Lord
thy God.

Verse 6: If a bird's nest chance to be before thee in the
way in any tree or on the ground, whether they be young
ones or eggs, and the dam sitting upon the young, or upon
the eggs, thou shalt not take the dam with the young.

Verse 7 : But tliou shalt in any wise let the dam go, and
take the young to thee ; that it may be well with thee and
that they mayest prolong thy days.

Verse 8: When thou buildest a new house, then thou
shalt make a battlement for thy roof, that thou bring
not blood upon thine house, if any man fall from thence.

Verse 9 : Thou shalt not sow thy vineyard, with divers
seeds: lest the fruit of thy seed which thou hast sown,
and the fruit of thy vinej^ard be defiled.

Verse 10: Thou shalt not plow with an ox and an ass
together.

Verse 11: Thou shalt not wear a garment of divers
sorts, as of woolen and linen together.

Verse 12: Thou shalt make thee fringes upon the four
quarters of thy vesture, wherewith thou coverest tliyself.

Verse 13: If any man take a wife, and go in unto her,
and hate her:

Verse 14: And give occasions of speech against her.

Appendix 1319

and bring up an evil name upon her, and say, I took
this woman, and when I came to her, I found her not a
maid:

Verse 15: Then shall the faiher of the damsel, and her
mother, take and bring forth the tokens of the damsel's
virginity unto the elders of the city in the gate:

Verse 16: And the damsel's father shall say unto the
elders, I gave my daughter unto this man to wife, and
he liateth her;

Verse 17: And, lo, he hath given occasions of speech
against her, saying, I found not thy daughter a maid;
and yet these are the tokens of my daughter's virginity.
And they shall spread the cloth before the elders of the
city.

Verse 18: And the elders of that city shall take that
man and chastise him.

Verse 19: And they shall amerce him in an hundred
sheckels of silver, and give them unto the father of the
damsel, because he hath brought up an evil name upon
a virgin of Israel: and she shall be his wife; he may not
put her away all his days.

Verse 20: But if this thing be true, and the tokens
of virginity be not found for the damsel;

Verse 21: Then they shall bring out the damsel to the
door of her father's house, and the men of her city
shall stone her with stones that she die: because she hath
wrought folly in Israel, to play the whore in her father's
house: so shalt thou put evil away from among you.

Verse 22: If a man be found lying with a woman mar-
ried to an husband, then they shall both of them die, both
the man that lay with the woman, and the woman: so
shalt thou put away evil from Israel.

Verse 23: If a damsel that is a virgin be betrothed unto
an husband, and a man find her in the city and lie with
her;

Verse 24: Then ye shall bring them both out into the
gate of that city, and ye shall stone them with stones

Io20 Criminal Law

that they die; the damsel, because she cried not; being in
the city; and the man, because he hath humbled his neigh-
bour's wife: so thou shalt put away evil from among you.

Verse 25 : But if a man find a betrothed damsel, in the
field, and the man force her, and lie with her: then the
man only that lay with her shall die.

Verse 26: But unto the damsel thou shall do noth-
ing; there is in the damsel no sin worthy of death; for
as when a man riseth against his neighbour, and slayeth
him, even so is this matter :

Verse 27: For he found her in the field, and the be-
trothed damsel cried, and there was none to save her.

Verse 28 : If a man find a damsel that is a virgin, which
is not betrothed, and lay hold on her, and lie with her,
and they be found:

Verse 29: Then the man that lay with her shall give
unto the damsel's father fifty shekels of silver, and she
shall be his wife; because he hath humbled her, he may
not put her away all his days.

Verse 30: A man shall not take his father's wife, nor
discover his father's skirt.

CHAPTER XXIII

Verse 1: He that is wounded in the stones, or hath his
privy member cut off, shall not enter into the congrega-
tion of the Lord.

Verse 2: A bastard shall not enter into the congrega-
tion of the Lord; even to his tenth generation shall he
not enter into the congregation of the Tjord.

Verse 3: An Ammonite or Moabite sliall not enter into
the congregation of the Lord; even to their toiitli genera-
tion sliall they not enter into the congregation of the
Lord for ever:

Verse 4: Because they met you not with bread and with
water in llic way, when ye came forth out of Egy})t: and

Appendix ]:V2\

because they hired against thee Balaam the son of Beor
of Pethor of Mesopotamia, to curse thee.

Verse 5: Nevertheless the Lord thy God, would not
hearken unto Balaam; but the Lord thy God turned the
curse into a blessing unto thee, because the Lord thy
God loved thee.

Verse 6: Thou shalt not seek their peace nor their
prosperity all the days for ever.

Verse 7: Thou slialt not abhor an Edomite; for he is
thy brother: thou shalt not abhor an Egyptian; because
thou wast a stranger in his land.

Verse 8: The children that are begotten of thee, shall
enter into the congregation of the Lord in their third
generation.

Verse 9: When the host goeth forth against thine ene-
mies, then keep thee from eveiy wicked thing.

Verse 10: If there be among you any man that is
not clean by reason of uncleanness that chanceth him
by night, then shall he go abroad out of the camp, he shall
not come within the camp:

Verse 11: But it shall be, when evening cometh on, he
shall wash himself with water : and when the sun is down,
he shall come into the camp again.

Verse 12: Thou shalt have a place also without the
camp, whither thou shalt go forth abroad :

Verse 13: And thou shalt have a paddle upon thy
weapon; and it shall be, when thou wilt ease thyself
abroad, thou shalt dig therewith, and shalt turn back
and cover that which cometh from thee:

Verse 14: For the Lord thy God walketh in the midst
of thy camp, to deliver thee, and to give up thine enemies
before thee; therefore shall thy camp be holy: that he
see no unclean thing in thee, and turn away from thee.

Verse 15: Thou shalt not deliver unto his master the
servant which is escaped from his master unto thee:

Verse 16: He shall dwell with thee, even among you.

1322 Ckiminal Law

in that place which he shall choose in one of thy gates,
where it liketh him best : thou shalt not oppress him.

Verse 17 : There shall be no whore of the daughters of
Israel, nor a sodomite of the sons of Israel.

Verse 18: Thou shalt not bring the hire of a whore,
or the price of a dog, into the house of the Lord, thy
God, for any vow: for even both these are abomination
unto the Lord thy God.

Verse 19: Thou shalt not lend upon usury to thy
brother; usury of money, usury of bicurals, usury of any
thing that is lent upon usury.

Verse 20: Unto a stranger thou mayest lend upon
usury; but unto thy brotlier thou shalt not lend upon
usury: that the Lord thy God may bless thee in all that
thou settest thine hand to in the land whither thou goest
to possess it.

Verse 21: When thou shalt vow a vow unto the Lord
thy God, thou shalt not slack to pay it ; for the Lord thy
God will surely require it of thee; and it would be sin
in thee.

Verse 22: But if thou shalt forbear to vow, it shall
be no sin in thee.

Verse 23: That which is gone out of thy lips thou
shalt keep and perform ; even a freewill offering, accord-
ing as thou hast vowed unto the Lord thy God, which
tliou hast promised with thy mouth.

Verse 24: When thou comest into thy neighbor's vine-
yard, then thou mayest eat grapes thy fill at thine own
pleasure; but thou shalt not put any in thy vessel.

Verse 25: When thou comest into the standing corn
of thy nciglibor, then thou mayest pluck the ears with
thine band; but thou shalt not move a sickle unto thy
neighbor's standing com.

CHAPTER XXIV

Verse 1 : Wlion a mnn liath taken a wife, and married
her, and it come to pass that she find no favor in his

Appendix 1323

eyes, because he hath found some uncleanness in her:
then let him write her a bill of divorcement, and give
it into her hand, and send her out of his house.

Verse 2: And when she is departed out of his house,
she may go and be another man's wife.

Verse 3: And if the latter husband hate her, and write
her a bill of divorcement, and giveth it into her hand,
and sendeth her out of his house; or if the latter husband
die, which took her to be his wife;

Verse 4: Her former husband, which sent her away,
may not take her again to be his wife, after that she is
defiled; for that is abomination before the Lord: and
thou shalt not cause the land to sin, which the Lord thy
God giveth thee for an inheritance.

Verse 5 : When a man hath taken a new wife, he shall
not go out to war, neither shall he be charged with any
business; but he shall be free at home one year, and
shall cheer up his wife which he hath taken.

Verse 6: No man shall take the nether or the upper
millstone to pledge: for he taketh a man's life to pledge.

Verse 7 : If a man be found stealing any of his brethren
of the children of Israel, and maketh merchandise of
him, or selleth him; then that thief shall die; and thou
shalt put evil away from among you.

Verse 8: Take heed in the plague of leprosy, that thou
observe diligently and do according to all that the priests
the Levites shall teach you: as I commanded them, so
ye shall observe to do.

Verse 9: Remember what the Lord thy God did unto
Miriam by the way, after that ye were come forth out
of Egypt.

Verse 10: When thou dost lend thy brother any thing,
thou shalt not go into his house to fetch his pledge.

Verse 11: Thou shalt stand abroad, and the man to
whom thou dost lend shall bring out the pledge abroad
unto thee.

1324 Criminal Law

Verse 12: And if a man be poor, thou shalt not sleep
with his pledge.

Verse 13 : In any case thou shalt deliver him to pledge
again when the sun goeth down, that he may sleep in
his own raiment, and bless thee: and it shall be right-
eousness unto thee before the Lord thy God.

Verse 14: Thou shalt not oppress an hired servant
that is poor and needy, whether he be of thy brethren
or of thy strangers that are in thy land within thy gates.

Verse 15: At his day thou shalt give him his hire,
neither shall the sun go down upon it; for he is poor,
and setteth his heart upon it: lest he cry against thee
unto the Lord, and it be sin unto thee.

Verse 16: The fathers shall not be put to death for
the children, neither shall the children be put to death
for the fathers: every man shall be put to death for his
own sin.

Verse 17. Thou shalt not pervert the judgment of the
stranger, nor of the fatherless: nor take a widow's rai-
ment to pledge:

Verse 18: But thou shalt remember that thou wast a
bondman in Egypt, and the Lord thy God redeemed thee
hence: therefore I command thee to do this thing.

Verse 19: When thou cuttest down thine harvest, in
thy field, and hast forgot a sheaf in the field, thou shalt
not go again to fetch it: it shall be for the stranger, for
the fatherless and for the widow:

Verse 20: And thou shalt remember that thou wast a
bondman in the land of Egypt: therefore I command
thee to do this thing.

CHAPTER XXV

Verse 1: If there be a controversy between men, and
they come unto .indgmcnt, that the judges may judge
them; then they shall justify the righteous, and condemn
the wicked.

Appendix I.'JlTj

Verse 2: And it shall be, if the wicked mau be worthy
to be beaten, that the judge shall cause him to lie down,
and be beaten before his face, according to his fault, by
a certain number.

Verse 3: Forty stripes he may give him, and not ex-
ceed: lest, if he should exceed, and beat him above these
with many stripes, then thy brother should seem vile
unto thee.

Verse 4: Thou slialt not nmzzle the ox when he
treadeth out the corn.

Verse 5: If brethren dwell together, and one of them
die, and have one child, the wife of the dead shall not
marry without unto a stranger: her husband's brother
shall go in unto her, and take her to him to wife, and
perform the duty of an husband's brother unto her.

Verse 6: And it shall be, that the first born which she
beareth shall succeed in the name of his brother which
is dead, that his name be not put out of Israel.

Verse 7: And if the man like not to take his brother's
wife, then let his brother's wife go up to the gate, unto
the elders, and say. My husband's brother refuseth to
raise up unto his brother a name in Israel, he will not
perform the duty of my husband's brother.

Verse 8: Then the elders of his city shall call him,
and speak unto him: and if he stand to it, and say, I like
not to take her;

Verse 9: Then shall his brother's wife come unto liim
in the presence of the elders, and loose his shoe from
off his foot, and spit in his face, and shall answer and
say. So shall it be done unto that man that will not build
up his brother's house.

Verse 10: And his name shall be called in Israel, The
house of him that hath his shoe loosed.

Verse 11: When men strive together one with another,
and the wife of the one draweth near for to deliver her
husband out of the hand of him that smiteth him, and
putteth forth her hand, and taketh him by the secrets:

1326 Criminal Law

Verse 12 : Then thou shalt cut off her hand, thine eye
shall not pity her.

Verse 13: Thou shalt not have in thy bag divers
weights, a great and a small.

Verse 14: Thou shalt not have in thine house divers
measures, a great and a small.

Verse 15: But thou shalt have a perfect and just
weight, a perfect and just measure shalt thou have:
that thy days may be lengthened in the land which the
Lord thy God giveth thee.

Verse 16: For all that do such things, and all that do
unrighteously, are an abomination unto the Lord thy
God.

Verse 17: Eemember what Amelek did unto thee by
the way, when ye were come forth out of Egypt:

Verse 18 : How he met thee by the way, and smote the
hindmost of thee even all that were feeble behind thee,
when thou w^ast faint and weary; and he feared not God.

Verse 19: Therefore it shall be, when the Lord thy
God hath given thee rest from all thine enemies round
about in the land which the Lord thy God giveth thee
. for an inheritance to possess it, that thou shalt blot out
the remembrance of Amelek from under heaven; thou
shalt not forget it.

TABLE OF CASES

Parts I and II

[references ark to sections]

Anderson v. O'Donell, 13 A. S.

R. 728

Anderson v. Dunn, 6 Wh. 201 .
A. T. & S. R. R. V. State, 40

L. R. A. 29

Abbrey v. State, 36 S. W.

(Tex. App.) 930

Adair v. State, 6 Okla. Crini.

284, 118 P. 416, 44 L. R. A.

(N. S.) 119

Ayors v. State, 10 Okla. Crim.

616, 140 Pac. 1025, 52 L. R.

A. (N. S.) 2480

Ayers v. State, 26 S. W. 396. .
Angelo V, People, 96 111. 209,

36 Am. Rep. 132

Armour Packing Co. v. United

States, 153 Fed. 1, 82 C. C.

A. 136, 14 L. R. A. (N. S.)

400

Adams v. State, 25 Ark. 405. .
Alonzo V. State, 15 Tex. App.

378, 19 Am. Rep. 207

Arrington v. Com., 87 Va. 96,

12 S. E. 224

Alexander v. State, 21 Tex.

App. 406, 57 Am. Rep. 617,

17 S. W. 139

Anderson v. State, 174 Ala. 11,

50 So. 998, Am. Cas. 1914 B

760

Angerhoffer v. State, 15 Tex.

App. 613

Anderson v. Com., 5 Rand

(Va.) 627, 16 Am. Dec.

775

14
20

113

113
114

133

164
167

204

206

224

718a

328

Alonzo V. State, 15 Tex. App.

378, 39 Am. Rep. 207 331

Allen V. People, 82 111. 010.. 349
Anoeliieks v. State, 6 Tex.

App. 524 353

Adams v. Waggoner, 33 Ind.

531, 5 Am. Rep. 230 353

Atwater v. Sawyer, 76 Me.

538, 49 Am. Rep. 634 358

Allen V. State, 73 Am. Dec.

760, 28 Ga. 395 371

Alderman v. People, 4 Mich •

414 420

Allen V. State, 91 Ala. 19, 24

A. S. R. 856 581

Adams v. Com., 153 Ky. 88,

154 S. W. 381, 44 L. R.

A. (N. S.) 637 586

Adams v. State, 60 Ala. 52.. 590
Alexander v. State, 12 Tex.

540 593

Arcid V. State, 26 Tex. App.

205 597

Ashley v. Young, 2 Burr 802. 606
Adams v. Com., 153 Ky. 88,

154 S. W. 381, 44 L. R. A.

(N. S.) 637 697

Arnold v. State, 52 Ind. 281,

21 Am. Rep. 175 698

Andre v. State, 5 la. 389, 68

Am. Dec. 708 705

Arnold v. Cost., 22 Am. Dec.

300 506

Arnold v. Cost., 22 Am. Dec.

312 511

Alexander v. State, 28 Tex,

App. 187, 12 S. W. 595 517

1327

1328

Table of Cases

[REFERENCES ARE

Arnald v. Cost., 22 Am. Dec.

316 517

Allen V. State, 44 Tex. App.
63, 68 S. W. 286, 100 A. S.

K. 830 518

Alexander v. State, Tex. 2 S.

W. 595 524

Adams v. State, 65 Ind. 565 . . 530
Adams V. State, 47 111. 376.. 534
Anderson v. State, 27 Tex.

App. 177, 11 A. S. E. 33.. 552
Alexander v. State, 25 Tex.
App. 260, 7 S. W. 67, 8 A.

S. K. 438 557

Adams v. State, 47 HI. 376 ... . 558
Aldrich V. State, 53 N. H. 398,

16 Am. Eep. 339 567

Adams v. Com., 153 Ky. 88
154, S. W. 381, 44 L. E. A.

(N. S.) 637 570

Alierman v. People, Mich. 414 434
Anderson v. Dunn, 6 Wh. (U.

S.) 204 450

Anderson v. Dunn, 61 Ohio 216 450
Anderson v. Dunn, 6 Wh. (U.

S.) 204 452

Alderson v. Commissions, 32
W. Va. 640, 9 S. E. 868, 25
A. S. E. 840, 5L. E. A. 334. 456
Arnold v. Com., 80 Ky. 300,

44 Am. Eep. 480 468

Atwell V. United States, 162
Fed. 97, 89 C. C. A. 97, 15
Ann. Cas. 253, 17 L. H. A.

1049 472

Allen V. State, 10 Tex. App.

150 495

Allen V. State, 16 Tex. App.

150 500

Allen V. State, 44 Tex. App.
63, G8 S. W. 286, 100 A. S.

E. 839 •''06

Arnold v. State, 52 Ind. 2Sl,

21 Am. Ifr'p. 175 698

TO SECTIONS]

Bowers v. State, 24 Tex. App.
542, 7 S. W. 247, 5 A. S. E.

901 443

Burdett v. Abbot, 14 E. Eep. 1 445
Burdett v. Coleman, 14 East. . 445
Buruham v. Morrissey, 14 Gray
(Mass.) 226, 74 Am. Dec.

676 458

Bell V. State, 45 Am. Dec. 130 458
Bullock V. McDoughno, 2 Pear-
sou (Pa.) 195 469

Boshford v. Willis, 78 Kan. 96 .
Pac. 663, 16 Ann. Cas. 310,

18 L. E. A. 268 328

Boshford v. Wells (Kans.), 18
L. E. A. (N. S.) 581, see

note to this ease 329

Boshford v. Wells, 78 Kans.
295, 96 Pac. 663, 16 Ann.
Cas. 310, 18 L. E. A. (N. S.)

580 330

Bird V. State, 27 Tex. App.

635, 11 A. S. E. 214 330

Bediford v. State, 86 Ala. 67,

11 A. S. E. 20 330

Blake v. Barnard, 9 C. & P.

626 346

Bartlier v. People, 5 N. E.

(111.), 338 536

Buel V. People, 78 N. Y. 492,

34 Am. Eep. 555 541

Bethellieimer v. State, 54 Ind.

128 542

Burner v. State, 58 Ind. 158. . 544
Bayette v. State, 2 Tex. App.

93 548

Bryant v. State, 65 N. C. 327. 550
Brown v. Weaver, 42 L. E. A.

423 Miss. 7 550

Bohannan v. Com., 6 Bush 312 557

Boyd V. Elliott, 11 Ta. 97 16

l'.ak("r V. People, 3 Cow. (N.

V.) 486, 15 Am. Dec. 322... 18
Barnott v. Hopkins, 7 Fed. 312 50

Takle of Cases

1321)

[references are

Brownsville v. Bosse, 43 Tex.

440 78

Buch V. llausoii, 7U 111. 480.. 78
Blackhard v. State, 18 Tes.

App. 500 103

Bradley v. State, 31 Iiul. 492. lOG
Barnhart v. State, 82 Wis. 23,

51 N. W. 1009 117

Bowling V. State, IG S. W.

658 123

Burt V. State, 40 S. W. 1000. 129
Bibb V. State, 94 Ala. 31, 10

So. 506 136

Barber v. State, 78 Ala. 19. . . 161
Bechtelheinier v. State, 54 Ind.

28 169

Brooks V. State, 90 Ind. 428.. 169
Bratton v. State, 10 Hump. 103 169
Brooks V. State, 51 Ga. 612. . . 172
Broughtou V. McGraw, 39 Fed.

692 174

Boyd V. State, 88 Ala. 169, 7

So. 268 180

Bower v. State, 24 Tex. A. 542,

5 A. S. K. 901, 7 S. W. 247. 192
Breese v. State, 12 Ohio St.

146, 80 Am. Dee. 340 192

Black V. State, 36 Ga. 447, 91

Am. Dec. 772 210

Bell V. State, 48 Ala. 684, 17

Am. Eep. 40 213

Ben V. State, 22 Ala. 958 Am.

Dec. 234 218

Brown v. State, 38 Tex. 482. . 230
Blocker v. State, 9 Tex. App.

279 242

Barows v. State, 49 Miss. 17,

19 Am. Rep. 25, 1 Cr. Eep.

249 242

Brown v. State, 98 Miss. 786,

54 So. 305, 34 L. R. A. (N.

S.) 841 243

Billard v. State, 30 Tex. 94

Am. Dec. 317 244

Ballard v. Carmicheol, 83 Tex.

355 249

C. L.— 84

TO sections]

Block V. State, 83 Ala. 81, 3

A. S. R. 691, 3 So. 814 256

Belote V. State, 36 Miss. 96, 72

Am. Dec. 163 256

Brown V. Walker, 161 U. S. 91 307
Barron v. Baltimore, 7 Pet.

(U. S.) 243 326

Baker v. , 3 Cow. (N. Y.)

686, 15 A. M. Dec. 322 326

Brinkley v. State, 89 Ala. 34,

8 So. 22, 18 A. S. R. 87 559

Brown v. State, 98 Miss. 786,

54 So. 305, 34 L. R. A. (N.

S.) 811 560

Bonfonti v. State, 2 Minn. 123 569
Bratton v. State, 10 Hunph.

103 569

Black V. State, 83 Ala. 81, 3

So. 814, 3 A. S. R. 691 570

Bell V, State, 7 Tex. App. 25. . 577
Barfield v. State, 29 Ga. 127,

72 Am. Dec 511

Baldwin v. Com., 71 Am. Dec.

704, Supra 511

Biles V. Com., 75 Am. Dec. 568,

32 Pa. St. 529 512

Brown v. State, 15 Ohio St.

717, 45 Am. Dec. 671 512

Barefield v. State, 29 Ga. 127. 513
Barrum v. State, 15 Ohio St.

717, 45 Am. Dec. 601 518

Burks V. State, 24 Tex. App.

326 525

Butler V. State, 125 111. 641,

18 N. E. 338, 8 A. S. R. 423,

1 L. R. A. 211 530

Brown v. State, 83 Ala. 33, 3

So. 857, 3 A. S. R. 685 531

Brown v. State, 83 Ala. 33, 3

So. 857, 3 A. S. R. 685 532

Blozer v. People, 129 111. 112,

21 N. E. 818, 4 L. R. A. 579 534
Brennon v. State, 25 Ind. 403 . 694
Bloom V. Richards, 2 Ohio St.

391 716

1330

Table of Cases

[references are

Bohney v. State, 21 Tex. App.

597 718

Baker v. State, 4 Ark. 56 631

Buell V. State, 45 Ark. 336. . . 663
Brown v. XT. S. Cert. Court,

Maj', 1875 ....". 664

Beacher v. Anderson, 45 Mich.

543, 8 N. W. 539 667

Baniber v. Com., 10 Pa. St.

339 674

Beckwith v. State, 21 Ind. 225 675
Bailey v. Com., 82 Va. 107,

3 A. 8. E. 88 687

Bass V. State, 15 Tex. App.

62 687

Burney v. State, 21 Tex. App.

565' 689

Bean v. State, People (111.),

16 N. E. 656 692a

Bunnett v. State, 83 Ala. 40, 3

So. 612 692a

Britt V. State, 7 Hunp.

(Tenn.) 45 693

Brown v. State, 28 Ark. 128.. 694
Barnes v. State, 9 Tex. App.

128 694

Braley v. Rose, 47 la. 651... 577
Bell V. State, 7 Tex. App. 25 577
Baker v. State, 29 Ohio St.

184, 23 Am. Rep. 731, 2 Am.

Cr. Rep. 337 581

Brewer v. State, 93 Ark. 470,

125 S. W. 127, 20 Ann. Cas.

1378, 30 L. R. A. (N. S.)

339 581

Brown v. State, 9 Tex. App.

81 583

Beatty v. State, 61 Miss. 18.. 584
P.rooks V. State, 26 Tex. App.

184 587

Blunt V. Com., 4 Leigh 680. . . 587
Bailey v. State, 58 Ala. 414.. 587
Burrows v. State, 137 Ind. 474,

45 A. S. R. 210 590

Baxter v. State, 34 Tex. App.

516, 31 S. W. 394, 53 A. S.

R. 720 604

TO SECTIONS]

Baker v. State, 4 Ark. 56 630

Bowers v. State, 24 Tex. App.

542, id., 5 A. S. R. 901 631

Beach v. Hancock, 59 Am. Dec.

373, 27 N. H. 223 346

Berehard v. Booth, 4 Wis. 67. 349
Brown v. State, 58 Ga. 212.. 349
Boyd V. State, 88 Ala. 169, 7

So. 268, 16 A. S. R. 820... 359
Bright V. State, 10 Tex. App.

68 361

Burney v. State, 21 Tex. App.

565 375

Baker v. People, 203 111. 68 N.

E. 93 399

Burfield v. State, 14 Ala. 603. 406
Beal V. State, 15 Ind. 378... 419
Bonifield v. Blake, 6 Car. and

P. 75 426

Barr v. Essex Trades Council,

45 N. J. Eq. 101, 29 Atl.

881 432

Brown v. State, 2 Tex. App.

115 438

Bloomer v. State, 48 Md. 521-

31 442

Buel V. Street, 9 John. 441... 459
Burdett v. Com., 103 Va. 838,

48 S. E. 878, 106 A. S. R.

916, 68 L. R. A. 251 472

Burk V. People, 91 N. Y. 5. . . 481
Berry v. Com., 96 Am. Dec.

767 481

Brown v. State, 23 Tex. App.

214, 4 S. W. 588 482

Brown v. State, 1 Ala. 3 S.

W. 816 487

Bcaty V. State, 82 Ind. 228. . . 491
Buckalow V. State, 11 Tex.

App. 353 496

Buckaloo V. State, 11 Tex.

App. 353 496

Buckaloo V. State, 1 1 Tox.

App. 353 500

Barton v. People, 135 111. 405,

25 A. S. R. 375 501

Table of Cases

1331

[referen

Blackwcll V. State, 41 Tex.

App. 104, 51 S. W. 919, 96

A. S. R. 778

Brown v. State, 37 Tex. App.

104, 38 S. W. 1008, 66 A. S.

E. 794

Barton v. People, 135 111. 405,

25 N. E. 776, 25 A. S. E.

375, 10 L. R. A. 302

Barton v. People, 25 A. S. R.

378 to 387

Baysiuger v. State, 77 Atl. 63,

54 Am. Rep. 46

Biles V. Com., 75 Am. Dec. 568,

32 Pa. St. 529

Com. V. Edwards, 9 Dana 447
Com. V. Clary, 8 Mass. 72. . . .
Com. V. Commissioners, 37 Pa.

St. 237

Com. V. Terrel, 1 Duvall 153. .
Com. V. CoUens, 1 Mass. 116.
Com. V. Upricbards, 3 Grey

434

Com. V. Gillespi, 7 S. & R. 469,

10 Am. Dec. 475

Com. V. Harvey, 8 Am. Jur.

Com. V. Gillespi, 7 S. & R. 469,

10 Am. Dec. 475

Com. V. Van Floy, 1 Met. (K.

Y.) 1

Com. V. Rogers, 9 Met. 500..
Com. V. Pulaski County, 17 S.

W. 448 (Ky.)

Com. V. Illinois Cent. R. R.

Co., 152 Ky. 320, 153 S. W.

459, 45 L. R. A. (N. S.)

334

Com. V. Pulaski County, 17 S.

W. 448 (Ky.)

Com. V. Pulaski County, 17 S.

W. 338 (Ky.)

Com. V. Bagley, 24 Mass. 279

CES ARE TO SECTIONS]

Com. V. Murphey, 165 Mass.
66, 43 N. E. 405, 52 A. S.

501 R. 496 156

Com. V. Connelli, 163 Mass.

539, 40 N. E. 862 160

501 Com. V. Campbell, 7 Allen.

541, 83 Amer. Dec. 705 162

Com. V. Mixer, 207 Mass. 141,

501 93 N. E. 249, 31 L. E. A.

(N. S.) 467, 20 Ann. Cas.

505 1152 and note 164

Com. V. Emmons, 98 Mass. 6. 164

506 Com. V. Farren, 9 Allen 489. 164
Com. V. White, 11 Allen 264. 164

508 Com. V. Bradford, 9 Mete. 268 166

Com. V. Shields, 1 Mass. 228. 166

Com. V. Devlin, 126 Mass. 253 . 170

Com. V. York, 9 Mete. 103... 171

9 Com. V. Makely, 131 Mass. 21 172

88 Com. V. Bradford, 126 Mass.

42 172

87 Com. V. Goldstein, 114 Mass.

91 273 172

91 Com. V. Brooks, 9 Gray 299.. 173
Com. V. Bonner, 9 Mete. Mass.

94 410 174

Com. V. Hill, 11 Mass. 136. . . 187

95 Com. V. Knapp, 9 Pick. 496. 188
Com. V. Glover, 111 Mass. 395. 189

95 Com. V. Harris, 7 Grat. 600.. 204
Com. V. McChard, 2 Danna.

99 242 205

Com. V. Vaughn, 101 Ky. 603,
99 42 S. W. 117, 45 L. R. A.

129 858 207

Com. V. Harrison, 11 Grey

^^^ 398 207

Com. V. Thompson, 24 Pick,

374 207

Com. V. Sheldon, 3 Mass. 188. 208

Com. V. Clair, 7 Allen 525 211

1 41

Com. V. Summerville, 1 Va.

Cas. 163 211

142 Com. V. Squires, 1 Mete. 258. . 217

Com. V. Pinchase, 2 Pick. 521. 232

142 Com. V. Bockman, 105 Mass.

145 53 232

1332

Table of Cases

[REFERENCES ARE

Com. V. Farherty, 140 Mass.

454, 5 N. E. 758 250

Com. V. Welsch, 97 Mass. 523. 250
Com. V. Musey, 112 Mass. 287 250
Com. V. Kenedy, 131 Mass. 584 272a
Com. V. Keys, 11 Grey Mass.

323 273

Com. V. Brown, 9 Leigh (Va.)

633 273

Com. V. Brown, 9 Leigh 633,

36 Va. — , 33 Am. Dec.

263 273

Com. V. Culver, 126 Mass. 464. 275
Com. V. Sego, 125 Mass. 210. . 278
Com. V. McDermott, 123 Mass.

440, 25 Am. Rep. 120 280

Com. V. Knapp, 10 Pick. 477,

20 Am. Dee. 534 281

Com. V. Knapp, 9 Pick. 496 . . 283
Com. V. Brown, 131 Mass. 69. 284
Com. V. McDermott, 123 Mass.

440 285

Com. V. Call, 21 Pick. 515 287

Com. V. Goodwin, 186 Pa. 218,

40 A. T. L. 412, 65 A. S. E.

852 290

Com. V. Smith, 119 Mass. 505. 292

Com. V. Howe, 9 Grey 110 292

Com. V. Hickman, 46 Pa. St.

357 302

Com. V. Ahl, 43 Pa. St. 53 . . . 302
Com. V. Obrian, 89 Ky. 354, 12

S. W. 516 321

Com. V. Weghnioth, 79 Am.

Dec. 776, 2 Allen 144 324

Com. V. Putman, 1 Pick.

(Mass.) 136 328

Com. V. Call, 32 Am. Dec. 284,

21 Pick. 509 and note 328

Com. V. Kilwell, 1 Pittsb.

(Pa.) 255 328

Com. V. Call, 21 Pick. 509, 32

Am. Dec. 284 329

Com. V. Tucker, 11 Mass. 403. 345

Com. V. Flynn, 3 Cu.sh. 529. . . 345

Com. V. Harvey, 10 Met. 423. 345

Com. V. McDonald, 5 Cush. 365 347

TO SECTIONS]

Com. V. Straton, 114 Mass.

303, 19 A. S. R. 350 348

Com. V. McDonald, 5 Cush. 365 350
Com. V. Mann, 116 Mass. 58. . 351
Com. V. Straton, 19 Am. Dec.

350, 114 Mass. 303 352

Com. V. Eyrl, 1 S. & K. 347 .. . 354
Com. V. Powers, 7 Met. 600,

41 Am. Dec. 465 356

Com. V. Mithel, 1 Phila. 63 . . 357
Com. V. Powers, 7 Met. 600 . . 357
Com. V. White, 110 Mass. 407. 361
Com. V. Tolliver, 69 Am. Dec.

252, 8 Gray (Mass.) 397... 371
Com. V. McKie, 61 Am. Dec.

410, 1 Gray (Mass.) 61 371

Com. V. Baxter, 4 Mass. 439. . 372
Com. V. Kingberry, 5 Mass.

105 372

Com. V. Flagg, 135 Mass. 545 372
Com. V. Randolph, 146 Pa. 82,

23 Atl. 388, 28 A. S. R. 782 372
Com. V. McCullock, 15 Mass.

227 380

Com. V. Jackson, 11 Bush. 679,

74 Ky. 21, Am. Rep. 225.. 393
Com. V. Lane, 113 Mass. 471,

18 Am. Rep. 509, 5 Vol.

Cyc, p. 692 397

Com. V. Colloghan, 2 Va. Cas.

460 402

Com. V. Silsbee, 9 Mass. 417.. 404
Com. V. Ilickey, 16 Mass. 385. 404
Com. V. Lowery, 158 Mass. 18 413
Com. V. Glover, 111 Mass. 395 415
Com. V. Hunt, 4 Met. Ill, 38

Am. Doc. 346 419

Com. V. Bliss, 12 Phil. 580... 420
Com. V. Kingsberry, 5 Mass.

105 421

Com. V. Walker, 108 Mass. 309 421
Com. V. Goldsmith, 12 Phil.

632 425

Com. V. Warren, 6 Mass. 74.. 425
Com. V. Hunt, 38 Am. Dec. 346 427
Com. V. Eastman, 48 Am. Dec.

596 427

Table oi- Cases

1333

[references are

Com. V. Hunt, 4 Mete. (Mass.)

Ill, ;i8 Am. Dec. 346 436

Com. V. Brown, 14 Gray 419. 442
Com. V. Bond, 1 Gray (Mass.)

364 448

Com. V. Hensley, 2 Va. Cas.

149 448

Com, V. Price, 10 Gray

(Mass.) 472, 71 Am. Dee.

668 448a

Com. V. Perkins, 124 Pa. St.

36, 16 Atl. 525, 2 L. E. A.

223 458

Com. V. Jackson, 38 S. W.

(Ky.) 424 466

Com. V. Eyan, 155 Wis. .523,

31 A. S. E. 560, 15 L. E. A.

317, 30 N. E. 364 479

Com. V. Berry, 99 Mass. 428 . . 479
Com. V. Doherty, 127 Mass. 26 479
Com. V. Simpson, 9 Mete. 138. 481
Com. V. Smith, 129 Mass. 124. 483
Com. V. Cooper, 130 Mass. 285 483
Com. V. Libbey, 45 Am. Dec.

—, 11 Met. (Mas.) 64 487

Com. V. King, 9 Cush. 284... 487
Com. V. Turner, 97 Mass. 50 . . 487
Com. V. Marressy, 86 Pa. St.

416 487

Com. V. Libbey, 45 Am. Dec.

185, 11 Met. (Mass.) 64 489

Com. V. Stone, 236 Pa. 35, 84

Atl. 659 489a

Com. V. Foster, 107 Mass. 221. 490
Com. V. Ferguson, 135 Ky. 32,

121 S. W. 967, 21 Ann. Cas.

434, 24 L. E. A. 1101 and

note 490

Com. V. Eichelberber, 119 Pa.

St. 254, 4 A. S. E. 642, 13

Atl. 422 490

Com. V. Ferguson, 135 Ky. 32,

121 S. W. 967, 21 Ann. Cas.

434, 24 L. E. A. (N. S.)

1101 495

Com. V. Wallace, 114 Pa. St.

405, 6 Atl. 685 495

TO SECTIONS]

Com. V. Grady, 13 Bush (Ky.)

285 496

Com. V. Beckett, 119 Ky. 817,

84 S. W. 758, 27 Ky. L. Eep.

265, 115 A. S. E. 285, 68

L. E. A. 638 498

Com. V. Drew, 36 Mas. 179. . . 498
Com. V. Drew, 36 Mass. 119 .. . 500
Com. V. Coe, 115 Mass. 502. . . 500
Com. V. Schwarts, 92 Ky. 510,

36 A. S. E. 609, 18 S. W.

775 500

Com. V. DreAv, 19 Pick. 179.. 501
Com. V. Coe, 115 Mass. 481. . . 503
Com. V. Swartz, 18 S. W. 775. 503
Com. V. Devlin, 141 Mass. 423,

6 N. E. 64 504

Com. V. Foster, 114 Mass. 311,

19 Am. Eep. 353 509

Com. V. Baldwin, 77 Mass. 187,

11 Gray 197, 71 Am. Dec.

703 509

Com, V. Foster, 114 Mass. 311,

19 Am. Eep. 353 509

Com. V. Baldwin, 71 Am. Dec.

704, 11 Gray 197 (Mass.) . . 511
Com. V. Sonkey, 22 Pa. St.

390, 60 Am. Dec. 91 511

Com. V. Baldwin, 71 Am. Dec.

703, 11 Gray 197 (Mass.) . . 513
Com. V. Foster, 114 Mass. 417 513
Com. V. Este, 140 Ma.ss. 279,

2 N. E. 769 514

Com. V. Baldwin, 11 Gray

(Mass.) 197, 71 Am. Dec.

704 515

Com. V. Sarle (2 Binn), 4 Am.

Dec. 446 518

Com. V. Brown, 147 Mass. 585,

18 N. E. 587, 9 A. S. E. 736,

1 L. E. A. 620 518

Com. V. Houston, 8 Mass. 107. 520

Com. V. Eoss, 2 Mass. 373 524

Com. V. White, 145 Mass. 392,

14 N. E. 661 525

Com. V. Foster, 114 Mass. 311,

19 Am. Eep. 353 527

1334

Table of Cases

[references are

Com. V. Eay, 3 Gray 446 527

Com. V. Dunn, 58 Pa. St. 9. . . 530

Com. V. HaAvkins, 3 Gray 463. 531

Com. V. Webster, 5 Cush 305. 531

Com. V. Drumm, 58 Pa. St. 9. 532

Com. V. Hopkins, 3 Gray 463. 532
Com. V. Cauffman, 10 Bush

495 535

Com. V. Fox, 7 Gray 585 536

Com. V. Campbell, 89 Mass.

541, 83 Am. Dee. 705, 9 Am.

& Eng. End. 536 536

Com. V. Spotford, 66 Mass. 176 537
Com. V. Webster, S. Cush

(Mass.) 295, 52 Am. Dec.

711 545

Com. V. Drum, 58 Pa. St. 9.. 548
Com. V. Selfridge, Har. &

Thorn. Self Defense 1 548

Com. V. Drew, 4 Mass. 396... 549
Com. V. Hartwell, 128 Mass.

415, 35 Am. Rep. 391 552

Com. V. Drew, 68 Pa. St. 563. 558

Com. V. Drew, 4 Mass. 491.. 560
Com. V. Boeman, 8 Gray

(Mass.) 497 573

Com. V. Brown, 4 Mass. 580. . . 579

Com. V. Williams, 2 Cush 583. 582

Com. V. Collins, 12 Allen 181. 583
Com. V. Lawless, 103 Mass.

425 583

Com. V. White, 11 Cush. 483. 584

C;om. V. Toney, 97 Mass. 58. . . 589
Com. V. O'Brien, 12 (Mass.)

Allen 183 591

Com. V. McDonald, 5 Cush.

365 594

Com. V. Morris, 1 Va. Cas. 176,

5 Am. Dec. 515 602

Com. V. Clap, 3 Am. Dec. 212,

4 Mass. 163, 3 Greenl. Ev.

164 602

Com. V. Clap, 3 Am. Dec. 212. 604

Com. V. Smith, 33 S. W. 420. . nn.|
Com. Duonc (Pa.), 1 Burncy

601, 2 Am. Dec. 497 604

TO SECTIONS]
Com. V. Blanding, 15 Am. Dee.

210, 3 Pick 304 605

Com. V. Blanding, 12 Am. Dec.

218-219 606

Com. V. Blanding, 15 Am. Dec.

210 609

Com. V. Clap, 3 Am. Dec. 212. 613
Com. V. Chambers, 3 Cr. Law

Mag. 543 617

Com. V. Lourbert, 12 Allen

(Mass.) 177 638

Com. V. Cheney, 114 INIass. 281 639
Com. V. Hopkins, 43 Am. Eep.

527, 133 Mass. 38 639

Com. V. Oaks, 113 Mass. 8 639

Com. V. Upton, 6 Grey 473 .. . 640
Com. V. Lovett, 4 Clark 65 . . . 643
Com. V. Munget, 4 Clark 6 . . . . 643
Com. V. Warden, 128 Mass. 52,

35 Am. Eep. 357 645

Com. V. Passamore, I. S. & IJ.,

219 648

Com. V. Boone, 2 Gray 74 651

Com. V. Card, 105 Mass. 582. 659
Com. V. Parker, 2 Cush 212. . . 667
Com. V. Baker, 133 Mass. 399. 677
Com. V. Burke, 105 Mass. 376,

7 Am. Rep. 531 686

Com. V. Green, 2 Pick 380 688

Com. V. Murphey, 165 Mass.

66, 52 A. S. R. 496, 42 N.

E. 504 090

Com. V. Fogerty, 8 Gray

(Mass.) 489 691

Com. V. White, 133 Pa. St. 182,

19 Atl. 340 700

Com. V. Wriglit, 27 S. W. 815. 705
Com. V. Howe (1908), 35 Pa.

Super. Ct. 554, same case on

other appeals in (1009) 38

Pa. Super. Ct. 208 and

(1910) 42 Pa. Super. Ct.

136 705

Com. V. Knalnnd, 20 Pick

206 708

Com. V. Has, 122 Mass. 40. . . 721

Table or Cases

1335

[arFERENCES ARK

Coniniiiigs v. State of Mis-
souri, 4 Wall 277 12

Commings v. State of Mis-
souri, 4 Wall. 277 14

Carpenter v. State of Pa., 17

Wall 191 14

Crandell v. Nev., 6 Wall. 25.. 42
Campbell v. Wilson, 6 Tex.

379 82

Cypress Ponn Draining Co. v.

Hooper, 2 Met. (Ky.) 350.. 81
Cressman v. State, 54 Ark.

283 117

Carpenter v. Com., 92 Ky. 452,

18 S. W. 9 117

Coyle V. Com., 100 Pa. St. 573,

45 Am. Eep. 397 127

Oark V. State, 12 Ohio St. 483,

40 Am. Dec. 431 128

Clark V. State, 26 S. W. 68. . . 128
Goodwin v. State, 96 Ind. 550. 129
Commissioners v. Boston & M.

E. E. C, 8 Amer. & Eng.

E. E. Cas. 298 141

Guttler V. State, 36 N. J. L.

125 147

Clark V. State, 98 Ala. 474,

56 A. S. E. 45 156

Crisman v. State, 54 Ark. 283,

15 S. W. 889, 26 A. S. E. 4 161
Chapman v. State, 43 Tex.

App. 326, 65 S. W. 1078,

96 A. S. E. 874 189

Cartwrite v. State, 16 Tex.

App. 493 189

Camnieron v. State, 32 Tex.

App. 180 195

Cross V. N. C, 132 U. S. 131 . 199
Cannon v. People, 127 111. 507,

11 A. S. E. 147, 21 N. E.

525 215

Carroll v. State, 50 Tex. App.

485, 98 S. W. 859, 123 A.

S. E. 851, 14 Ann. Cas. 476. 228
Cane v. State, 18 Tex. App.

387 275

TO SECTIONS]

Carter v. State, 37 Tex. 362. . 277
Collens V. State, 20 Tex. App.

399 277

Clawson v. State, 14 Ohio

St. 1 286

Cuddington v. Wilksons, Ho-

hert's Ecp. 81 302

Chanler v. State, 141 Ind. 106,

39 N. E. 444 158

Clemm v. State, 154 Ala. 12,

45 So. 212, 129 A. S. E. 17

and note 220

Crouse v. State, 16 Ark. 566. 327
Carolti v. State, 97 Am, Dec.

471, 42 Miss. 334 328

Caroti v. State, 42 Miss. 224,

97 Am. Dee. 465 328

Crouse v. State, 16 Ark. 566 . . 328
Carotti v. State, 42 Miss. 334,

97 Am. Dec. 465 330

Carotti v. State, 42 Miss. 334,

97 Am. Dec. 471 330

Collins V. State, 14 Ala. 608. . 330
Canvile v. State, 35 Ala. 392. 333
Curkinstate v. People, 36

Mich. 309 339

Casej V. State, 25 Tex. 380. . . 459
aark V. State, Breese 340

(111.), 12 Am. Dec. 184... 460

Crow V. State, 24 Tex. 12 464

Casey v. State, 25 Tex. 384. . . 464
Cooper V. People, 13 Colo. 337,

22 Pac. 790, 6 L. E. A. 430. 468
Carter v. Com., 96 Va. 791. . . 472
Cobhcy V. Burks, 38 Am. Eep.

364 477

Calkins v. State, 98 Am. Dec.

121 481

Campbell v. State, 35 Ohio St.

70 487

Clark V. Com. Ky., 29 S. W.

973 489

Calwell V. Hall. 60 Miss. 330. 489a
Clark V. State, 61 Tex. Cr.

Eep. 539, 135 S. W. 575... 489a
Campbell v. State. 35 Ohio 70 . 490

1336

Table of Cases

[references are

Clawson v. Case, 120 Wis. 650,

100 N. W. 578, 116 A. S. E.

972, 9 Am. Cas. 966 503

Chancey v. State, 130 Ala.

71, 50 So. 403, 89 A. S. E.

17 505

Canntee v. State, 33 S. W. 127 510
Carver v. People, 39 Mich. 786 518
Couch V. State, 28 Ga. 367 .. . 518
Cox V. State, 117 Ala. 103, 23

So. 806, 67 A. S. R. 41,

L. E. A. 760 399a

Crump V. Com., 54 Va. 927,

6 S. E. 620, 10 A. S. E. 805. 418
Cov V. State, 8 Tex. App. 303 423
Crump V. Com., 84 Va. 927, 6

N. E. 620, 10 A. S. R. 595. 430
Carew v. Eutherford, 106

Mass. 10-15, 8 Am. Eep. 287 430
Crump V. Com., 84 Va. 927. . . 431

Cole V. People, 84 111. 216 434

Cole V. People, 34 la. 216 436

Cohea v. State, 11 Tex. App.

153 443

Carnahan v. Camahan, 143

Mich. 390, 107 N. W. 73,

114 A. S. R. 660, 8 Ann.

Cas. 53 449

Clifford V. Brandon, 2 Camp.

370 726

Cooper V. Ilohnson, 81 Mo.

483 634

Clark V. Com., 79 Ky. 349... 637
Cadwell v. State, 17 Conn. 467 638
Clark V. Com., 79 Ky. 358, 1

Hawk P. C. 693 647

Chamherlin v. People, 23 N. J.

85, 80 Am. Dec. 255 658

Covey V. State, 23 Tex. App.

388, 5 S. W. 283 659

Crump V. Com., 75 Va. 922. . . 667
Cameron v. United States, 231

U. S. 710, 58 Led. 448 668

Cox V. State, 3 Tox. App. 479,

»ec 18 Tox. App. 134, 26

Tex. Ajip. 14 669

TO SECTIONS]

Crosswell v. State, 13 Mich.

427, 87 Am. Dec. 774 685

Cunningham v. Com., 88 Va.

37 689

Childs V. State Sup. Court,

1875 ..- 694

Callahan v. State, 30 Am. Eep.

211 705

Carroll v. State, 74 Miss. 688,

60 A. S. E. 539 705

Carroll y. State, 23 Ala. 28,

58 Am. Dec. 282 559

Campbell v. Com., 88 Ky. 402,

21 A. S. R. 348 562

Crawford v. State, 96 Ga. 701,

17 S. E. 620, 35 A. S. R.

535 562

Crowell v. State, 24 Tex. App.

404, 6 S. W. 318 570

Curtis V. Topeka, 30 Kans. 76,

59 Am. Rep. 529 574

Gulp V. State, 1 Part (Ala.)

33, 26 Am. Dec. 357 575

Calentine v. State, 50 Tex.

App. 94, S. W. 1061, 123 A.

S. R. 837 575

Conner v. State, 6 S. W.

(Tex.) 138 577

Coomes v. State, 17 Tex. App.

258 585

Clark v. State, 86 Tenn. 511. . 594
Castleberry v. State, 35 Tex.

App. 382, 60 A. S. R. 531. . 598
Cooper v. State, 29 Tex. App.

8, 25 A. S. R. 712 598

Coffin V. Coffin, 1, 1 Kent. 235 609

Click V. State, 3 Tex. 282 619

Click V. State, 3 Tex. 280 622

Coyle V. State, 44 (Tex.) S.

W. 1087 521

Cross V. People, 47 Til. 152,

95 Am. Dec. 474 525

Cunningham v. State, 49 Miss.

703 527

Cupps V. Stale, 120 Wis. 504,

97 N. W. 210, 102 A. S. R.

990 531

Table of Cases

133;

[kkferences ake

Com well V. State, 61 Tex. App.

122, 134 S. W. 221 Ann. Cas.

1913b, 71 531

Coffee V. State, 3 Yerg

(Tenn.) 283, 24 Am. Dec.

570 533

Copeland v. State, 7 Hump.

479 541

Cupps V. State, 120 Wis. 504,

97 N. W. 210, 102 A. S. K.

996 542

Copeland v. State, 7 Hump.

(Tenn.) 342 546

Coldwell V. State, 41 Tex. 86. 550
Clements v. State, 50 Ala. 117 550
Clampett v. State, 9 Tex. App.

27 555

Case V. State, 41 Tex. 182 555

Cunningham v. State, 17 Tex.

App. 89 558

Carlton v. People, 150, 181, 37

N. E. 244, 41 A. S. R. 346. 345b
Chapman v. State, 78 Ala. 463,

56 Am. Rep. 42 346

Clamper v. State, 12 Ohio St.

466 353

Cole V. Ronen, 88 Mich. 219,

50 N. W. 138, 13 L. R. A.

848 358

Clampett v. State, 9 Tex. App.

27 361

Campbell v. People, 16 111. 17,

61 Am. Dec. 49 361

Connor v. State, 4 Yeager, 137,

26 Am. Dec. 217 363

Cunningham v. State, 49 Miss.

685 364

Cox V. People, 82 111. 191 373

Crawford v. State (Miss.), 35

L. R. A. 224 397

Canon v. United States, 116

U. S. 55, 29 L. ed. 56 399a

Chicago B. & O. R. Co. v. Gil-

dersleeve, 219 Mo. 170, 118

S. W. 86, 16 Ann. Cas. 749. 452

TO SECTIONS]

Donald v. State, 48 Miss. 661,

12 Am. Rep. 375 18

Dynes v. Hoover, 20 How. 65. 47
Doherty v. State, 73 Vt. 386,

50 Atl. 1113 113

Dod.son V. State, 62 Ala. 308,

34 Am. Rep. 2 154

Davis V. Com. (Ky.), 23 S. W.

505 296

Dominiek v. Bowduin, 44 Ga.

357 304

Dunkin v. Com., 36 Ky. 295.. 332
Duncan v. Com., 6 Dana (Ky.)

295 353

Dunn V. Miller, 135 N. C. 204,

47 S. E. 421, 102 A. S. R.
528, 65 L. R. A. 800 359

Damemhofer v. State, 69 Ind.

295, 35 Am. Rep. 216 359

Doralin v. State, 14 Tex. App.

61 359

Drysdale v. State, 83 Ga. 744,

10 S. E. 358, 20 A. S. R.

340, 6 L. R. A. 124 360

Dunaway v. People, 51 Am.

Rep. 686, 10 111. 333 374

Dwyer v. Brannoch, 66 Mo.

391, 27 Am. Rep. 359 391

Dill V. State, 35 Tex. App.

240, 33 S. W. 126, 60 A. S.

R. 37 420

Dumas v. State, 14 Tex. App.

464, 46 Am. Rep. 241 393

Denet v. State, 2 Head

(Tenn.) 505, 75 Am. Dec.

747 -i-iS

Dashing v. State, 78 Ired 357 . 447
Dahnke v. People, 168 111. 102,

48 N. E. 108, 39 L. R. A.

197 449

Dunham v. State, 6 la. 245. . . 466
Davis V. Davis, 20 N. C. 170. 469
Dorsey v. State, 11 Ala. 40. . . 500

1338

Table of Cases

[references are

Delk V. State, 135 Ga. 312, 69
S. E. 541, Am. Cas., 1912a,

105 532

Dabney v. State, 113 Ala. 38

21 So. 211, 59 A. S. K. 92. 542

Dill V. State, 25 Ala. 15 548

Dyson v. State, 26 Miss. 362 . . 555

Dell V. State, 25 Ala. 15 561

Dabney v. State, 113 Ala. 38,

59 A. S. E. 92, 21 So. 211. 565
Dunaway v. People, 110 111.

333, 51 Am. Eep. 686 569

Dignowitty v. State, 17 Tex.

App. 67, Am. Dec. 670 588

Davis V. State, 10 Lea (Tenn.)

707 588

Debs V. State, 45 Tex. 650 589

Deere v. Wolf, 65 la. 32, 21

X. W. 168 601

Davis V. State, 22 Tex. App.

45 630

Davis V. State, 22 Tex. App.

45 632

Drake V. State, 14 Neb. 535... 639
Don Moran v. People, 25 Mich.

12, Am. Eep. 283 685

Doyle v. State, 39 Fla. 155,

63 A. S. E. 159 687

Dalas v. State, 3 A. L. E.

1459 705a

Davis V. Brown, 27 Ohio 326. 707

Ex parte Wilson, 114 U. S.

417, 4 Am. Cr. Eep. 283... 16
Ex parte Wilson, 114 U. S.

417, 29 L. ed. 89 17

Ex parte Bergcr, 193 Mo. 16,

112 A. S. R. 472 18

Erie R. Ey. v. Cf.opcr, 33 Pa.

St. 282 21

Ex parte Bolman, 4 Cranch 75 24
Ex parte Milliagn, 4 Wall. 125 43
Ex parte Garland, 4 Wall. 333 43
Ex parte Eecd, 100 U. S. 13-

25 47

Ex parte Mason, 105 U. S. 697 47

TO SECTIONS]

Ex parte McKnight, 28 N. E.

(Ohio) 1034 70

Ex parte Toss, 102 Col. 347,

21 A. S. E. 181 70

Ex parte Burnett, 44 Cal. 84. 78
Ex parte Eobinson, 6 McLean

(U. S.) 355 84

Ex parte Bushnell, 8 Ohio St.

599 84

Ex parte Knowles, 5 Cal. 301. 85
Ex parte Watkins, 3 Pet. (U.

S.) 193 85

Ex parte McArdle, 7 Wall. 506 87
Ex parte Eodgers, 10 Tex.

App, 655 95

Eskridge v. State, 25 Ala.

30 291

Ex parte WeU, 18 How. 533 . . 300
Ex parte Hunt, 1010 Ark. 284. 300
Ex parte Friffiths, 118 Ind. 83 300
Ex parte Garland, 4 W^all. (U.

S.) 333 302

Ex parte Correll, 13 Nev. 193 . 302
Ex parte Hawkins, 61 Ark.

341, 54 A. S. E. 209 303

Ex parte Eeno, 66 Mo. 266, 27

Am. Eep. 337 306

Ex parte Powel, 73 Ala. 517. . 306
Elliott v. State, (Tex. App.)

19 S. W. 249 300

Evans v. O'Connor, 174 Mass.

287, 75 A. S. E. 346 306

Ex parte Nicholds, 110 Cal.

654 326a

Easton v. State, 39 Ala. 551

87 Am. Dec. 491 460

Elsey V. State, 47 Ark. 572,

2 S. W. 337 518

Estell V. State, 51 N. J. L.

182, 17 Atl. 118 553

Evans v. State, 44 Miss. 762. . 557
Estop v. Com., 86 Ky. 39,

9 A. S. E. 260 562

Evans v. Slate, 33 Ga. 4,566. . 566
Ellis V. People, 21 How. 356. . 584
Exum V. State, 90 Tenn. 501,
17 S. W. 107, 25 A. S. E.

Table of Cases

1339

[references are

700, 15 L. R. A. 381, S. W.

25 A. S. K. 703 662

Easton v. State, 39 Ala. 551,

87 Am. Dec. 49 456

Easton v. State, 39 Ala. 551. . 459
Ex parte Geisler, Cr. Court

Unites N. D. Tex. 50 Fed.

411 447

Ex parte Smith, 135 Mo. 223,

36 S. W. 628, 58 A. S. R.

505 365

Ex parte Parker, 74 S. C.

466, 55 S. E. 122, 114 A. S.

R. 1011, 7 Ann. Cas. 874. . . 450
Ex parte Adams, 25 Miss. 833. 455
Ex parte Robetson, 19 Wall.

505 455

Ex parte Rowe, 7 Cal. 175... 455
Ex parte O 'Brian, 30 S. W.

(No.) 150 458

Ex parte Clark, 126 Cal. 235,

58 Pac. 546, 77 A. S. R.

176 46 L. R. A 458

Ex parte Adams, 25 Miss.

883, 59 Am. Dee. 234 458

Ex parte Arnold, 128 Mo. 256,

30 S. W. 768, 49 A. S. R.

557, 44 L. R. A. 386 458

Ex parte Parks, 37 Tex. App.

590, 40 S. W. 300, 66 A. S.

R. 835 458

Ex parte Warfield, 40 Tex.

App. 413, 50 S. W. 933,

76 A. S. R. 724 458

Ex parte Thatcher, 2 Gilm. 170 459
Ex parte Wray, 30 Miss. 673. 529
Ex parte Adams, 25 Miss. 883 . 459
Ex parte Robertson, 9 Wall.

505 460

Ex parte McGill, 6 Tex. App.

498 461

Ex parte Kellog, 56 Vt. 511,

461 461

Ex parte Al Men, 77 Cal.

178 461

Ex parte O 'Brian, 30 S. W.

(Mo.) 160 463

TO SECTIONS]

Ex parte Kirby, 34 S. W.

(Tex.) 635 463

Ex parte Burford, 1 Cranch.,

456 463

Ex parte Hickey, 4 Sniede.,

and N. 783 464

Ex parte Gould, 99 Cal. 360. . 465
Ex parte Barry, 85 Cal. 603,

25 P. 256, 20 A. S. R. 248. 466
Ex parte Turner, 3 Mont., D.

& D. 523 466

Ex parte Ah Men, 77 Cal.

198 469

Ex parte Fau Gen You, 19

P. (Cal.) 500 469

Ex parte Mylius, W. Va. 406,

45 S. E. 602, 11 Ann.

Cas. 812 469

Ex parte Looper, 61 Tex.

App. 129, 134 S. W. 345,

Ann. Cas. 1913B. 32 470

Ex parte Robertson, 19 Wall.,

505 470

Ex parte Kearney, 7 Wh. 38. . 470
Ex parte Robinson, 19 Wall.

505 472

Ex parte Ward, 173 U. S.

452 661

Ex parte Briggs, 2 Woods, 428 664
Ex parte Rittenhouse, 4 N. J.

L. 230 683

Ex parte Sundstrom, 25 Tex.

App. 133 718a

Ex parte Wilson, 114 .U. S.

417, id., 4 Am. Cr. Rep. 283 . 447
Evans v. State, 13 Tex. App.

225 355

Estes V. Carter, 10 la. 400 419

Elkins V. People, 28 N. Y. 177 421
Elsey V. State, 47 Ark. 572.. 421
Egleston v. State, 129 Ala. 80,

30 So. 582 479

Egleston v. State, 129 Ala. 80,

30 So. 582, 87 A. S. R. 37

and note 490

Easton v. State, 36 Miss. 593. 493

1340

Table of Cases

[references are
F

Falcon v. Campbell, 2 McLeon,

195 21

Ft. Leavensw'orth v. Lowe, 114

U. S., 525 88

Florensville v. State, 91 Ala.

39 117

Felton V. U. S., 96 W. S.

699, 24 (L. ed.) 875 160

Fisher v. Com., 1 Bush, Ky.,

211, 89 Amer. Dec. 620.... 209
Franklin v. State, 85 Ga. 470,

11 S. E. 876 232

Forbes v. Foot, 13 Amer. Dec.

732 248

Fletcher v. State, 12 Ark., 169 272a
Frank v. State, 39 Miss. 705. . 279
Fuller V. State, 122 Ala. 32,
26 So. 146, 82 A. S. K,

17 303

Farrar v. State, 29 Tex. App.

250, Id. 15 S. W. 717 346

Ford V. Skinner, 4 C. & P.

239 348

Fink V. Thomas, 60 W. Va.
187, 66 S. E. 650, 19 Ann.

Cas. 571 360

Finey v. State, 3 Head., 544,
1 East P. C. 470, 11 Me.

391 393

Furguson v. State, 52 Neb.
432, 72 N. W. 590, 66 A. S.

R. 512 411

Forsythe v.* State, 6 Ohio St.

19 414

Franklin Union No. 41 v.
People, 220 111. 77 N. E.
176, 110, A. S. K. 248, 4
L. R. A. (N. S.) 1001.... 418
Ferguson v. State, 134 Ala.
63, 32 So. 760, 92 A. S. R.

] 7 443

Fox V. State, Ohio, 46 U. S.

410, 12 U. S. L. ed. 213 447

First Congregational Church v.
Muscatine, 2 la. 69 455

TO SECTIONS]

Froid V. State, 7 Tex. 215 459

Farnliam v. Coleman, 19 S.
Dak. 342, 103 N. W. 161,
117 A. S. R. 944, and

note 953 462

Fulton V. State, 13 Ark. 168. . 479
Fitzgerald v. State, (N. J. L.)

14 Atl. 746 491

Foote V. People, 17 Hun. (N.

Y.) 218 499

Foute V. State, 15 Lea 715. . . 523
Farris v. Com., 14 Bush 362. . 542
Fouts V. State, 8 Ohio St. 98. . 542
Farrar v. State, 29 Tex. App.

250, 15 S. W. 719, 545 545

Fredo v. State, 127 Tenn 547

Fleetwood v. Com., 80 Ky. 1,

4 Am. Cr. Rep. 36 549

Fitzgerald v. State, 112 Ala.

34, 20 So. 966 552

Field V. State, 47 Ala. 603 . . 557

Fisher v. Bridges, 4 Blacf 548

Frederick Fox Resp. v. Hu-
mane Society, 51 L. R. A.

681 574

Felter v. State, 9 Yerg. 398. . 588

Floyd V. State, 12 Ark. 43 621

Floyd V. State, 12 Ark. 43.. 624
Ferfoot v. Com., 89 Ky. 174,

12 S. W. 189 663

Fitzgerald v. State, 20 Tex.

App. 280 687

Fitzgerald v. State, 20 Tex.

App. 281 692a

Foster v. Com., 96 Va. 306, 70

A. S. R. 846, 31 S. E. 22.. 688
Flood V. State, 19 Tex. App.

584 718a

Ford V. State, 112 Ind. 373,
14 N. E. 241 443

Gage V. Sheldon, 3 Rich. (S.

C.) 242 340

Gibson v. State, 54 Md. 447 . . 340

Garrett v. State, 109 Ind. 527. 343

Table of Cases

1341

[rkferences ark

Goldnamer v. O'Brien, 98 Ky.

569, 33 S. W. 831, 56 A.

S. R. 378, 36 L. R. A. 715.. 353
Gut V. State of Minnesota, 9

Wall. 35 14

Goodman v. Winter, 64 Ala.

410 78

Grignon v. Aston, 2 Wall. 342 79
Grimmett v. Asken, 48 Ark.

151 79

Gibson v. Temple, 62 Tex. 555 89
Green v. State, 66 Ala. 40,

41 Amer. Rep. 744 97

Garner v. State, 28 F. L. A.

113, 29 A. S. R. 232, 9 So.

845 117

Guiteg V. State, 66 Ind. 94,

32 Am. Rep. 99 124

Grays v. State, 16 Vroom, 347,

46 Amer. Rep. 778 124

Godfrey v. State, 31 Ala. 323,

70 Am. Dec. 194 124

Gonzales v. State, 30 Tex.

App. 203, 16 S. W. 973 124

Garner v. State, 28 Fla. 113,

9 So. 835, 29 A. S, R. 232 170
Grafton v. U. S., 206 U. S.

333, 41 (L. ed.) 1084, 11

Ann. Cas. 640 202

Gannon v. People, 127 111.

507, 11 A. S. R. 147, 21

N. E. 525 215

Girard v. People, 3 111. 362.. 232
Guiteg V. State, 63 Ind. 278. . 242
Greeley v. State, 60 la. 141 . . 244
Goldstein v. State, 82 N. Y.

231 250

Garcia v. State, 26 Tex. 209,

82 Amer. Dec. 605 256

Gilland v. State, 24 Tex. App.

524 263

Gore V. People, 162 111. 259,

44 N. E. 500 272

Grossman v. Oakland, 30 Ore.

476, 60 A. S. R. 832, 41 P. 5. 2?2a

TO SECTIONS]

Grun V. State, 151 Ala. 141,
44 So. 194, 125 A. S. R.
17, 15 Am. Cas. 81 628

Groton v. Gilden, 84 Me. 589,
24 Atl. 1008, 30 A. S. R. 413 . 353

German v. State, 42 Tex. 245. . 359

Gray v. State, 63 Ala. 66 364

Graham v. People, 181 111. 477,
55 N. E. 170, 47 L. R. A.
731 364

Graves v. State, 116 Ga. 576,
42 S. E. 755, 59 L. R. A.
598 365

Gohogan v. People, 1 Parker
Or. Cas. 378 393

Gaddie v. Com., 117 Ky. 468,
78 S. W. 162, 111 A. S. R.
259 415

Gray v. Building Trades Coun-
cil 91 Minn. 171, 97 N. W.
663, 103 A. S. R. and note
P. 479 & 499 427

Garland v. State, 112 Md. 83,
75 Atl. 631, 21 Ann. Cas.
28 , 429

Gunther v. Aston, B. Mon. 12. 431

Gray v. Building Trades Coun-
cil 91 Minn. 171, 97 N. W.
663, 1118, 103 A. S. R. 477,
see note this last author-
ity Subd. Ill p. 495 432

Gregory v. State, 20 Am. Rep.
774, 26 Ohio St. 510 513

Gongales v. State, 30 Tex. 203,
16 S. W. 978 534

Gonzallis v. State, 16 S. W.
12 Tex. App. 15 541

Groom v. State, 85 Ga. 718,
21 A. S. R. 179 551

Granger V. State, 5 Bearg 459. 556

Gongales v. State, 30 Tex.
App. 203 556

George v. State, 145 Ala. 41,
40 So. 961, 117 A. S. R. 17. 557

Gonzales v. State, 30 Tex.
App. 203, 16 S. W. 978 558

Gresher v. People, 53 111. 295. 559

1342

Table or Cases

[RKFEREXCES ARE

Gray v. Coombs, 7 J. J. Mar-
shall 1 Hor. & Thomp. Cr.

Def. 891 567

Guthrie v. Jones, 108 Mass.

191 572

Grun V. State, 151 Ala. 14,

44 So. 194, 125 A. S. K.

17, 15 Ann. Cas. 81 628

Gartner v. State, 16 Tex.

App. 215 669

Garland v. State, 112 Md. 83,

75 Atl. 631, 21 Ann. Cas. 28

and note 435

Glass V. State. 45 Tex. App.

605, 78 S. W. 1058 445

Gompers v. Buck Stove Co.,

221 U. S. 418, 55 (Led.)

797, 34 L. K. A. (N. S.)

874 449

Gates V. McDonald, 3 Post

356 455

Gallord v. Gallord, 44 Clal.

475 460

Goodhart v. State, 84 Com., 60

78 Atl. 853, Ann. Cas.

1912B, 1297 462

Globe News Paper Co. v. Com.,

188 Mass. 449, 74 N. E. 682,

3 Ann. Cas. 761 466

Givson V. Hutchindon 148 La.

139, 126 N. W. 790, Ann.

Cas. 1912B, 1007 470

Gardner v. People, 62 N. Y.

299 477

Gravatt v. State, 25 Ohio St.

162 487

Gordon v. Com., 100 Va. 825,

41 S. E. 746, 57 L. K. A.

744 507

Gilman v. State, 31 Am, Rep.

257, 69 Me. 163 569

Gare v. State, 119 Ga. 418,

46 S. E. 671, 100 A. S. R.

182 685

Gordon v. State, 93 Ga. 531,

44 A. S. R. 189, 21 S. E.

54 688

TO SECTIONS]

Glover v. Com., 86 Va. 382. . . 689
Garrity v. State, 70 111. 83 . . . 699
Grover v. State, 170 Ind. 450,
101 N. E. 620, 45 L. R. A.,

N. S. 473 707a

Gaines v. State, 40 Am. Eep.
64 713

Hopp V. U. S., 110 U. S. 574. 14
Holder v. State of Minn., 137

U. S. 483 14

Huston V. Moore, 5 Wh. 1 43

Hamilton v. Dillon, 21 Wall.

73 4.T

Horn V. State, 4 Tex. App.

45 70

Harland v. Ter., 3 Wash. 131. 70
Hamilton v. State, 11 Ohio St.

435 97

Holmes v. Barclay-, 4 L. R. A.

63 98

Hatlnvay v. State (Tex. App.),

36 S. W. 465 99

Hatfield v. Com. (Ky.), 12 S.

W. 309 100

Hovey v. Chase, 52 Me. 83,

Am. Dec. 514 103

Hopp V. People, 31 111. 385,

83 Am. Dec. 231 106

Hawe V. State, 11 Neb. 537,

38 Am. Rep. 375 106

Hall V. Com., 155 Ky. 541,

159 S. W. 1155 ni'

Howard v. State, 172 Ala. 402,

55 So. 255, 34 L. R. A. (N.

S.) 990 121

Hard v. People, 25 Mich. 405. 167
Ilofrnn v. State, 36 Wis. 226. 169
Hudson V. State, 61 Ala. 333. 172
Ilinkle v. State, 127 Ind. 490,

26 N. E. 777 180

Howe V. State. 11 Neb. 537.. 244
Hunt V. Com., 13 Grat. 557,

70 Am. Dec. 423 246

Higpcns V. People, 135 111.

243, 25 A. S. R. 357 247

Table of Cases

1343

[references are
Hardy v. FoUey, 121 Mass.

259 250

nines V. State, 35 N. H. 207. . 250
High V. State, 26 Te.x. App.

545, 8 A. S. E. 448

Hunt V. Com., 18 Grat. 757,

70 Am. Dec. 443 256

Hess V. Culver, 77 Mich. 598,

43 N. W. 994, 18 A. g. E.

421, 6 L. R. A. 498 257

Hallett V. Alexander, 50 Colo.

37, 114 p. 490, Ann. Cas.

1912 B 1277 257

Hyde v. State, 234 Mo. 200,

136 S. W. 316, Ann. Cas.

1912 B 191 260

Hardin v. State, 4 Tex. App.

335 263

Holt V. U. S., 110 U. S. 574. . 271
Henderson v. State, 60 Ind.

276 272a

Hamilton v. People, 29 Mich.

173, 20 Am. Dec. 534 281

Hendrickson v. People, 10 N.

Y. 13, 61 Am. Dec. 721 289

Hawkins v. State, 58 Am. Dec.

517, 13 Ga. 322 334

Hooskins v. State, 13 Ga. 322,

58 Am. Dec. 517 337

Ilagerty v. People, 46 Cal. 354 344
Hamilton v. State, 36 Ind. 280,

10 Am. Rep. 22 350

Hanley v. State, 47 S. W.

Rep. 375 (Tex.) 350

Hill V. State, 36 Ga. 578 351

Hickey v. United States, 168

Fed. 536, 93 C. C. A. 516,

22 L. E. A. (N. S.) 728.... 356
Hicks V. Com., 86 Va. 223, S.

E. 1024, 19 A. S. E. 891 364

Hicks V. Com., 86 Va. 23 365

Hicks V. Com., 96 Va. 223 367

House V. State, 9 Tex. App.

53, 66 373

Hicks V. Com., 96 Va. 223 373

Hall V. State, 9 Fla. 203 ... . 374
Hamilton v. State, 36 Ind. 280 377

TO SECTIONS]

Hinkle v. State, 32 Ind. 220. . 377
Hicks V. Com., 86 Va. 223, 9

S. E. 1024, 19 A. S. E. 891. 378
Ilalhrook v. State, 34 Ark.

511, 30 Am. Eep 388

Hiler v. People, 156 111. 514,

41 N. E. 181, 47 A. S. E. 221 389
Honcker v. Board of Educa-
tion, 42 W. Va. 170, 24 S.

E. 544, 57 A. S. R. 847,

32 L. E. A. 413 407

Hild V. State, 67 Ala. 69 414

Harris v. People, 44 Mich. 305. 408
Hollister v. Com., 60 Pa. St.

103 409

Hahn v. State, 83 N. W. 674. . 409
Hollister v. Com., 60 Pa. St.

103 417

Heina v. Com., 91 Pa. St, 145. 420
Hoyt V. People, 140 111. 588,

30 N. E. 315, 16 L. E. A.

239 421

Harris v. Com., 113 Va. 746,

73 S. E. 561, 38 L. E. A.

(N. S.) 458 422

Hall V. Eaton, 25 Vt. 458 425

Heine v. Com., 91 Pa. St. 145. 425
Heap V. Dunham, 95 111. 583. . 426
Hooker v. Vande Water, 4

Denio 349 433

Hazen V. Com., 23 Pa. St. 355. 436
Hanna v. People, 86 111. 243 . . 439
Ha 11a n v. People, 1 Doug.

(Mich.) 207 447

Hale V. State, 55 Ohio St.

210. 45 N. E. 199; 60 A. S.

R. 691, 36 L. R. A. 254 452

Hill V. Crandall, 52 111. 70. . . 459
Haight V. Lucia, 36 Wis. 355. . 462
Hurley v. Com., 188 Mass.
443, 74 N. E. 677, 3 Ann.

Cas. 757. and note 463

Harris v. State, 35 Ark. 418. 463

Henry v. Ellis, 49 la. 205 467

Hunter v. State, 6 Ind. 423 . . 470

1344

Table of Cases

[references are

Hale V. State, 55 Ohio St.

210, 45 N. E. 199, 60 A. S.

E. 691, 36 L. E. A. 254 472

Herryton v. State, 103 Ga. 318,

298. E. 931, 68 A. S. E. 95. 475
Hutchinson v. Com., 82 Pa. St.

472 487

Hoyt V. State, 50 Ga. 313. .. . 491
Horton v. State, 85 Ohio St.

13, 96 N. E. 797, Ann. Gas.

1913 B 90 495

Hendricks v. State, 26 Tex.

App. 176, ..8 A. S. E. 466.

9 S. W. 555, 8 Am. Cr. Eep.

276 507

Hunt V. Adams, 6 Mass. 519. . 507
Hooper v. State, 30 Tex. App.

412 508

Hill V. State, 1 Yerg. 75 511

Hennesy v. State, 23 Tex. App.

157, 5 S. W. 789 512

Harrington v. State, 54 Miss.

490 522

Horton v. State, 53 Ala. 468. . 522
Heathon v. State, 2 Hayw.

Conn. 1 Boot 296 525

Ham V. State, 4 Tex. App.

645 525

Head v. State 9 Medc. 104,

3 Greel Eedf. Ed. 147 431

Hays V. State, 23 Mo. 287 534

Hendrickson v. Com., 85 Ky.

281, 3 S. W. 166, 7 A. S. E.

596 537

Hicks V. State, 6 So. 441, 25

Fla. 535 541

Henton v. State, 24 Tex. 454. 545

Hill V. State, Tex. App. 2 54;")

Hill V. State, 5 Tex. App. 2.. 547
Hinton v. State, 24 Tex. 454. . 548
Harrison v. State, 24 Ala. 67,

60 Am. Dec. 450, 17 Law

Times 222 548

Haywood v. State, 41 Ark. 479 573
Head v. Martin, 85 Ky. 480.. 550

TO SECTIONS]

Hawkins v. Com., 14 B. Mon.

(Ky.) 395, 61 Am. Dec. 158. 551
Humphries v. State 25 Tex.

App. 126 556

Harrison v. State 24 Ala. 67. . 557
Huddleton v. State, 54 Tex.

App. 93, 112 S. W. 64, 130

A. S. E. 875 557

Harris v. State, 24 Ala. 67. . . 560

Hall V. State, 9 Fla. 203 569

House V. State, 19 Tex. App.

277 570

Harris v. State, 22 Tex. App.

670, 3 S. W. 477. 570

Hargcr v. State, 4 Tex. App.

26 571

Haskin. v. Terrance, 35 Am.

Dec. 129, 5 Blackf. 417 571

Harness v. State, 27 Ind. 425 574
Haggerton v. Witner 86 Me.

293, 37 Atl. 965, 39 L. E. A.

649 574

House V. State 19 Tex. App.

227 577

Hunt V. Com., 13 Gratt (Va.)

757, 70 Am. Dec. 443 581

Heskcn v. State, 18 Tex. App.

275 583

Harris v. State 29 Tex. App.

101, 14 S. W. 390, 25 A. S.

E. 717 586

Ilornandes v. State, 20 Tex.

App. 151 587

Hatchet v. Com., 75 Va. 925. . 596
High V. State, 20 Tex. App.

545, 10 S. W. 238. 8 A. S.

E. 488 628

Howard v. State, 121 Ala. 23,

25 So. 1000 674

Hagerman v. State, 47 la. 151. 687
Heahiian v. Com., 84 Ky. 457,

4 A. S. E. 207 688

Hope V. People, 38 Am. Hep.

460, 83 N. Y. 418 609

Hannon v. State 43 Ohio St.

376 699

Tabt.e of Cases

1345

[references are to sections]

Hill V. state 53 Ga. 126 701

Hellams v. Aborcombre, 40

Am. Rep. C84, 15 S. C. 110. 719

Hendhouser v. U. S. Ileish 702 459

Irwin V. Com., 3 Bush, (Ky.)

181

In re Dobson, 25 P. 442

(Mont.)

In re Stevens, 52 Kan. 56,

34 P. 459

In re Davidson, 27 Fed. 618.
In re Grain. 84 Fed. 788. . .
In re Nagle, 135 U. S. 1, 34

(L. ed.) 55

In re McVey, 23 Fed. 878

In re White, 17 Fed. 685

International E. Ry., co. Bled-
soe, 40 Tex. 527

In re Asher, 130 Mich. 540,

90 N. W. 418, 57 L. R. A.

806

Isaacs V. State, 48 Miss. 234. .
In re Fanton 55 Neb. 703, 55

N. W. 447, 70 A. S. R.

418

In re Barry, 4 Gal. 562

In re Ghadwick, 67 N. W.

1074

In re Simms 54 Kans. 1, 25

L. R. A. 110

In re Murpliey 39 Wis. 286 . .
In re Tully 20 Fed. Rep. 812. .
In re Tully 20 Fed Rep. 812. .
In re Morris 39 Kan. 28, 18 P.

171, 7 A. S. R. 512, and

note

In re Williamson 26, Pa. St.

9 67, Am. Dec. 374, and

note 456

In re Gopcr, 32 Vt. 258 467

In re Clark, 208, Mo. 121,

106 S. W. 990, 15 L. R.

A. 389 469

G. L.— 85

35
47
48

49
50
50

224
420

458
459

464

464
465
509
512

456

Iowa — State v. Roth, 17 Iowa

336 327

In Re Judson, 3 Blackl. G. G.

148 469

Independent v. Truevalle, 15

Kans. 70 574

Irwin v. State, 9 Tex. App.

66 689

Johnson v. State, 28 Tex. App.

562 15

Jenkins v. State, 28 Tex. App.

86 15

Jackson v. King, 4 Cow. (N.

Y.) 207, 15 Am. Dec. 354.. 103
Jamison v. People, 145 111.

357, 34 N. E. 486 107

Jenkins v. State, 18 S. E.

(Ga.) 992 117

Johnson v. State, 27 Tex. App.

188 125

Jackson v. State, 81 Ala. 33.. 167
John.son v. State, 65 Ind. 204. 172
Jones V. State, 66 Miss. 380,

6 So. 231, 14 A. S. R. 570. 207
Johnson v. State, 19 Tex. App.

453, 53 Am. Rep. 385 208

Jones V. State, 13 Tex. 168, 62

Am. Dec. 209 208

Johnson v. State, 1 Okla, Cr.

321, 97 P. 1059, 12 Ann.

Gas. 300 226

Jones V. State, 55 Ga. 625 .. . 226
Jones V. Gom., 86 Va. 740, 10

N. E. 1001 232

Jourdan v. State, 79 Ala. 9. . . 262
Johnson v. State, 59 La. 37.. 271
Johnson v. State, 20 Tex. App.

28 271

Johnson v. State, 107 Miss.

196, 65 So. 218, 51 A. L. R.

N. S. 183 275

Johnson v. State, 18 Ga. 16.. 342
Jenkin v. State, 53 Ga. 33, 21

Am. Rop. 255 345a

VPA6

Table of Cases

[references are

Johnson T. State, 17 Tex. 515. 352
Johnson v. State, 19 Tex. App.

545 356

Jackson v. State, 91 Ala. 55,

8 So. 773, 24 A. S. E. 860.. 365
Johnson v. Com., 86 Ky. 122, 5

S. W. 365, 9 A. S. K. 269.. 397
Johnson v. Com., 86 Ky. 122,

5 S. W. 365, 9 A. S. R. 269. 398

Jones V. State, 67 Ala. 84 398

Johnson v. Com., 86 Ky. 122,

9 A. S. E. 269 399

Johnson v. State, 3 Tex. App.

590 412

Johnson v. Com., 27 Am. Eep.

622 413

Johnson v. State, 36 N. J. L.

313 419

Johnson v. State, 3 Tex. App.

590 420

Johnson v. State, 3 Tex. App.

590 429

Jenna v. Joslin, 41 Vt. 478. . . 442
Jenkin v. State, 89 Ala. 115,

8 So. 23, 18 A. S. E. 91 443

Johnson v. Com., 5 Bush 431 . . 479
Johnson v. State, 9 Baxter 279. 490
Johnson v. State, 36 Ark. 242. 496
Jones V. State, 97 Ga. 430, 25

S. E. 319, 54 A. S. E. 383.. 497
Jackson v. People, 126 111. 139,

18 N. E. 286 499

Johnson v. State, 41 Tex. 65. . 500

John V. State, 23 Wis. 504 516

Johnson v. State, 66 Ohio St.

50, 63 N. E. 607, 90 A. S. E.

561 and note 530

Johnson v. State, 30 Tex. App.

748 543

Jenkins v. State, 41 Tex. 128. . 541
Jackson v. State, 66 Miss. 95. . 550
Johnson v. State, 94 Ala. 35,

10 So. 667 552

Jackson v. State, Ilor. &

Thorn., S. D., 476 556

Jackson v. State, 11 Ohio St.
195 571

TO sections]

Jarechi v. Philharmonic Soci-
ety, 21 Am. Eep. 78, 79 Pa.

St. 403 572

Jardon v. State, 56 Ga. 92 596

James v. Com., 12 S. & R. 236. 640
Jones T. State, 18 Tex. App.

485 689

Jackson v. State, 69 Ala. 249. 698
Johns T. State, 78 Ind. 332,
41 Am. Eep. 557n 721

Knight V. State, 107 U. S. 232 14

Kerr v. III., 119 U. S. 436 70

Kerr v. People, 110 111. 627. . . 70
Kruse v. Wilson, 79 111. 233.. 86
Kearney v. State, 68 Miss. 233 110
Kennon v. Com., 84 Am. Dec.

414 117

King V. State, 9 Tex. App.

515 121

Knapp V. Com., 10 Pick 478. . 192
Knuckler v. People, 48 Cal.

331 223

Kohlheimer v. State, 39 Miss.

548. 79 Am. Dec. 689 212

Kermcen v. State, 17 Ariz. 263,

151 P. 738 279

King V. State, 40 Ala. 314 282

Kahoe V. Com., 86 Pa. St. 127. 286
Kop Cyozn.ski v. State, 137
Wis. 358, 118 N. W. 863, 16

Ann. Cas. 805 342

Kunkle v. State, 32 Ind. 220. 347
Klecn V. Stub, 9 Ind. App. 365,

53 A. S. E. 354 351

Kerby v. State, 5 Tex. App.
60, Ilor. & Thom. Cr. De-
fenses 719 355

Kelly V. Com., 1 Gratt 15 366

Kink V. State, 65 Ga. 159 388

Klieforth v. State, 88 Wis.
163, 43 A. S. R. 875 and

note 417

Knight V. Miller, 772 Ind. 27,
87 N. E. 523, 18 Ann. Cas.
11^6 418

Table of Cases

134

[rkferences ark
King V. Gill, 2 Barn and Old

204 420

King V. Turner, 13 East 231. . 424
King V. Armstrong, 1 Vent

304 426

Knowles v. Peck, 42 Conn. 386,

19 Am. Rep. 542 429

King V. Sharp, 3 Cox C. C.

288 441

Kilburn v. Thompson, 103 U.

S. 163, 26 U. S. (Fed.) 377. 450
Karcl V. Conlan, 155 Wis. 221,

144 N. W. 266, 49 L. R. A.

(N. S.) 826 459

Kilcot V. Sharp, 52 N. J. L.

154 466

Kerr v. People, 110 111. 630. . . 479
Kerr v. People, 110 111. 630. . 481
Kranse v. Com., 93 Pa. St.

418 487

Kegg V. State, 10 Ohio St. 75 . 508
King V. State, 27 Tex. App.

569 521

King V. State, 89 Ala. 43 549

Kelly V. State, 27 Tex. App.

502 556

Kemp V. State, 13 Tex. App.

561 556

Kemp V. State, 12 Tex. App.

561 558

King V. Hayes, 80 Me. 206, 13

Atl. 882 574

King V. Patterson, 49 N. J. L.

417, 60 Am. Eep. 622 610

Kitchens v. State, 80 Ga. 812. 630
King V. People, 83 N. Y. 587. 639
Kerr v. U. S., 7 Ind. Territory

486, 104 S. W. 809 705

Kenyon v. People, 26 N. Y.

203, 84 Am. Dec. 117 705

Laughlin v. Com., 12 Bush 261.

Lybarger v. State, 2 Wash. 268

Luther v. Borden, 7 How. (TJ.

S.) 51

14
16

TO SECTIONS]

Le Frost v. Tillman, 117 Mass.

109 98

Landcaster v. Moore, 78 P. St.

409, 21 Am. Rep. 24 103

Leech v. State, 2 Tex. App.
279, 3 S. W. 539, 58 Am.

Rep. 638 108

Lowe V. State, 118 Wis. 641,

96 N. W. 417 113

Leeper v. State, 29 Tex. App.

63, 14 S. W. 398 117

Latimer v. State, 55 Neb. 609,
76 N. W. 207, 70 A. S. R.

403 155

Levine v. Com. (Ky.), 117 S.

W., 253 158

Lovett V. State, 30 Fla. 142,

11 So. 550, 17 L. R. A. 705. 167
Long V. State, 127 Ga. 350,

56 S. E. 444 167

Lewis V. State, 72 Ga. 164, 53

Am. Rep. 835 167

Lenard v. People, 114 N. Y.

371, 11 A. S. R. 667 189

Lopez V. State, 34 Tex. 133. . . 189
Ledbeter v. State, 21 Tex.

App. 344, 17 S. W. 437 204

Lee V. State, 26 Ark. 260, 7

Am. Rep. 611 211

Loper V. State, 3 Miss. 429. . . 231
Lowe V. Fouke, 103 111. 58... 249
Leamon v. State, 18 Tex. App.

194, 51 Am. Rep. 298 256

Lewis V. State, 96 Ala. 6, 36

A. S. R. 75, n So. 259 262

Logan V, State, 17 Tex. App.

50 269

Laros v. Com., 84 Pa. St. 200 283
Loggins V. State, 8 Tex. App.

434 286

Lindsey v. State, 66 Fla. 341,
63 So. 832, 5 L. R. A. (N.
S.) 107, Ann. Cas., 1916 C,

1167 291

Lowridge v. State, 6 Mo. 594. 596
Lewis V. State, 15 Tex. App.
647 532

1348

Table of Cases

[references are

Ludden v. State (Neb,), 48

N. W. 61 469

Lymon v. People, 198 111. 514,

64 N. E. 974 329

Luke V. State, 49 Ala. 30 344

Lawson v. State, 30 Ala. 14, 1

East P. C. 406 346

Lawson v. State, 30 Ala. 14. . 349
Lee V. Woolsey, 19 Johns (N.

Y.) 319, 10 Am. Dec. 230.. 349
Long V. Eodgers, 17 Ala. 540. 352
Long V. People, 102 111. 331.. 356
Landrigan v. State, 31 Ark.

50, 25 Am. Eep. 547 358

Lander v. Seaver, 32 Vt. 114. 359
Lonfield v. State, 34 Ark. 275. 374
Lewis V. State, 35 Ala. 380, 28

Am. Dec. 416 375

Lamb v. State, 66 Md. 285. . . 375
Langley v. State, 30 Ala. 536. 393
Loggins V. State, 8 Tex. App.

434, 442 423

Landingham v. State, 49 Ind.

136 436

Lamb v. People, 96 111. 74 439

Loggins V. State, 8 Tex. App.

443 443

Lockwood V. State, 1 Ind. 161. 459
Land & Water Co. v. Superior

Court of Fresno Co., 93 Cal.

139 459

Liming v. Barthom, 2 Bay 11. 462
Lester v. People, 150 111. 408. 465
Laggett V. Prideaux, 16 Mont.

205, 50 A. S. E. 498 477

Leanard v. State, 7 Tex. App.

418 481

Leanard v. State, 7 Tex. App.

418 483

Lesser v. People, 73 N. Y. 78. 501
Lefter v. State, 153 Ind. 82,

54 N. E. 439, 74 A. S. R.

300, 45 L. E. A. 424 505

Luttrcll V. State, 1 S. W.

(Tenn.) 886 515

Lingo V. State, 29 Ga. 470. . . 534
I>ang V. State, 4 So. Efp. Ml.?, 541

TO SECTIONS]

Landers v. State, 1 Tex. 462. . 542
Linch V. State (Ala.), 6 So.

551 545

Lingo V. State, 29 Ga. 484... 548
Lyons v. State, 22 Ga. 399 .. . 548
Louge V. Com., 2 Wright Penn.

261 555

Lander v. State, 12 Tex. App.

462 557

Lilly V. State, 20 Tex. App. 1 . 560
Lewer v. Com., 15 S. & R. 93. 583
Loomis V. People, 67 N. Y. 322,

23 Am. Eep. 123 583

Lopez V. State, 21 Tex. App.

780 590

Laurance v. State, 1 Hump.

231 595

Lavina v. State, 63 Ga. 513... 621
Lewis V. State, 30 Ala. 54, 68

Am. Dec. 113 685

Lynn v. Com. (Ky.), 13 S. W.

74 692a

Long V. State, 12 Ga. 298 . . 693
Lewis V. State, 36 Tex. App.

37, 61 A. S. R. 831 706

Liberman v. State, 26 Neb.

464 721

Mrous V. State, 31 Tex. App.

597 15

Ma no V. State, 25 Tex. App.

105 15

Miller V. U. S., 11 Wall. 268. 43
Mason v. U. S., 105 U. S. 696. 51
Mhone v. Justice, 121 U. S.

700, 8 Sup. Ct. Rep. 1204.. 70
Moore v. State, Tex. App., 40

S. W. 287 28

Miller v. State, 3 Wyo. 65,

29 P. 136 110

Mihcsker v. State (Tex. App.),

182 S. W. 1127 113

Mayficld, 44 Tex. 59 114

Montague v. People, 141 111.

75, 30 N. E. 337 125

M<-Doiigl(^ V. Stnto, 88 Ind. 24 125

Table oj- Cases

134!)

[rkferences ar
Montgomery v. Com., 18 S. W.

475 128

McColIem v. State, 96 Ala. 98,

11 So. 408 128

Morton v. State (Tenn.), 209

S. W. 644, 4 L. R. A. 266.. 137
Milbroth v. State, 138 Wis.

354, 120 N. W. 252 141

Massie v. State, 18 S. W. 720. 153
McVey v. State, 57 Neb. 471,

77 N. W. 1111 167

Miller v. People, 30 Mich. 16. 167
McGahee v. State, 62 Miss. 772,

52 Am. Kep. 209 168

Mason v. U. S., 105 U, S. 696. 202
Medis V. State, 27 Tex. App.

194, 11 A. S. R. 192, 11 S.

W. 112 204

Murphy v. State, 25 Nev. 807,

41 N. W. 792 206

McCutcheon v. State, 179 Ind.

13, 93 N. E. 545 214

Mahala v. State, 10 Yearg.

532, 31 Am. Dec. 591 218

McFadden v. Com., 23 Pa. St.

12, 42 Am. Dec. 208 223

McKee v. State, 1 Balily L.

251, 21 Am. Dec. 499 223

McQuinn v. State, 46 Neb.

427, 65 N. W. 46, 50 A. S. R.

617 223

Mapes V. State, 13 Tex. App.

85 230

Mount V. Com., 2 Duval (Ky.)

93 232

Mann v. State, 124 Ga. 760,

53 N. E. 30, 4 L. R. A.,

N. S. 934 243

Montgomery v. Elevens (U.

S.), 1 Sawy. 666 261

Mercer v. State, 17 Tex. App.

452 ^ 263

Montgomery v. State, 80 Ind.

338, 41 Am. Rep. 815 267

McKnight v. State, 6 Tex.

App. 158 269

E TO .SECTIONS]

McKiney v. State, 134 Ala.

134, 32 S. O. 726 281

Meyers v. State, 19 Ark. 156. 282
Murphy v. State, 36 Ohio St.

528 285

McKees v. People, 36 N. Y.

113 285

Moore v. State, 6 Tex. App.

564 285

Martin v. State, 25 Tex. App.

557 286

Morris v. State, 35 Tex. App.

313, 33 S. W. 539 165

Milliagn v. State, 25 Tex. App.
199, 7 S. W. 664, 8 A. S. R.

435 343

McGray v. People, 45 N. Y.

153 345

McDade v. People, 29 Mich.

50 345

Morgan v. State, 33 Ala. 413. 348
McDade v. People, 29 Mich. 50 366
Maher v. People, 10 Mich. 212,

81 Am. Dec. 781 374

Maher v. People, 10 Mich. 212 385
Martin v. State, 1 Tex. App.

525 411

Martin v. State, 1 Tex. App.
525, 2 Russ on Crs. 9, ed.

Tit. Burglary 412

Mitchel V. State (Tex.), 24 S.

W. 280 416

McNair v. State, 53 Ala. 453. 416
McCourt V. People, 64 N. Y.

583 416

Michaels v. State, 68 Wis. 416,

60 Am. Rep. 870 417

Meffin v. Com., 5 Watt & S.

461 428

Miles V. State, 58 Ala. 390. . . 428
McDermot v. Com., 123 Mass.

441, 25 Am. Rep. 120 443

Matterson v. State, 3 Mo. 421 . 447
McCulloch V. Maryland, 4 Wh.
316 452

1350

Table of Cases

[references are

Miskunimins v. Shaver, 8 Wyo.
392, 58 P. 411, 49 L. K, A.

831 458

McCurdie v. Senior, 4 Paige

378 459

Matter v. Watson, 2 Nelson, 69

N. Y. 536 462

McCarmack v. Sheridan, 2 Op.

Pac. Utah 24, 26 467

Mahoney v. State, 33 Ind.
App. 655, 72 N. E. 151, 104

A. S. R. 276 472

McElroy v. People, 202 111.

473, 66 N. E. 1058 489

Maley v. State, 31 Ind. 92... 499
McKinney v. State, 11 Ark.

594 500

Maley v. State, 31 Ind. 192.. 501
Mann v. People, 15 (N. Y.)

Hun. 155 509

McPherson v. State, 22 Ga.

487 530

Mann v. State, 124 Ga. 760,
53 S. E. 324, 4 L. E. A.

(N. S.) 934 533

Moynanhan v. State, 70 Ind.

1*26, 36 Am. Eep. 178 541

Maden v. State, 10 Kans. 356. 542
Mayher v. People, 10 Mich.

212, 81 Am. Dec. 781 542

Musick V. State, 21 Tex. App.

69 543

Mahcr v. People, 10 Mich. 212,

81 Am. Dec. 781 545a

Muqihey v. State, 9 Colo. 435. 546
Miller v. State, 31 Tex. App.
600, 21 S. W. 925, 37 A. S.

R. 836 549

Mary Petrie v. S. H. Cart-
wriRht (Ky.), 59 L. R. A.

720 550

McDanicl v. State, 47 Am.

Dec. 93 551

Morgan v. State, 51 Neb. 672,

71 N. W. 788 552

McRcynalds v. State, 4 Tex.
App. 327 556

TO SECTIONS]

McPherson v. State, 22 Ga.

478 560

McNeil V. State, 102 Ala. 121,
48 A. S. R. 17 and note, 15

So. 352 565

McCullough V. State, 24 Tex.

App. 125 569

Martenz v. State, 16 Tex. App.

112 581

Martin v. State, 5 S. W. 859. . 582
McSay v. People, 6 Park Cr.

114 594

Moody V. People, 20 111. 315. . 619
Mitchell V. State, 12 Ark. 50. 621
Mitchell V. State, 12 Ark. 50. 624
Molett V. State, 49 Ala. 18... 630
Moore v. State, 4 Chand. 170. 630
McDonaugh v. State (Tex.),
84 S. W. 594, 122 A. S. R.

684 653

Melford v. Teonton, 10 Okla.
741, 63 P. 958, 54 L. R. A.

513 660

Maynard v. People, 135 111.

416, 25 N. E. 740 663

Morford v. Territory of Okla.,

10 Okla. 741, 54 L. R. A... 663
Martin v. Miller, 28 Am. Dec.

342, 4 Mo. 47 667

Mackin v. People, 115 111. 312,

5G Am. Rep. 167 668

Merhan v. State, 46 N. J. L.

355 683

Miller v. State, 23 Tex. App.

204 690

More V. Bennet, 140 111. 69,
33 A. S. R. 216 433

N
Norris v. State, 25 Ohio St.

217 99

Newton V. State, 88 Ala. 23,

9 So. 103 160

Nye V. Pcopfe, 35 Mich. 16. . . 169
Neoling v. Com., 98 Pa. St.

323 170

Neal V. State, 64 Ga. 275 230

Table of Cases

1351

[references are
Noel V. State, 160 Ala. 25, 49

So. 824 273

Nicholson v. State, 28 Md. 140 279
Nofsinger v. State, 8 Tex.

App. 102 284

Nolen V. State, 14 Tex. App.

474 284

New Hampshire State v. Mar-
vin, 35 N. H. 22 327

New Jersey State v. Lasli, 16

N. J. L. 380, 32 Am. Dee.

397 327

Nelms V. State, 84 Ga. 466, 20

A. S. E. 377 399a

Naurse v. State, 2 Tex. App.

304 595

Nourse v. State, 2 Tex. App.

304 597

Nelson v. State, 47 Miss. 621. 667
Nicholds V. State, 32 N. W.

543 413

National Protective Assn. of

Steamfitters and Helpers v.

Cummlngs, 170 N. Y. 315,

63 N. E. 369, 88 A. S. R.

648, 50 L. R. A. 135 431

Neil V. State, 60 Ind. 308-10.. 442
Newton v. Lockland, 77 111.

103 462

Noakes v. People, 25 N. Y.

387 521

Normals v. State, 26 Tex. App.

221, 9 S. W. 606 547

Ober V. Gallaher, 93 U. S. 199 . 84
Ortwein v. Com, Pa. St., 414,

18 Am. Rep. 420 121

Oborn v. State, 143 Wis. 249,

126 N. W. 737 224

Ostwald V. State, 118 N. C.

1208, 24 S. E. 660, 32 L. R.

A. 396 227

O'Connell v. State, 10 Tex.

App. 367 269

TO SECTIONS]

Old Colony R. R. C. v. Tripp,

147 Mass. 35, 9 A. S. R. 661,

17 N. E. 89 357

O'Neal V, Com., 17 Grat. 582. :i93
O 'Brian v. State, 7 Tex. App.

188 403

Ovcrnled by Crum v. State, 64

Miss. 1, 60 Am. Dec. 44... 535
Oliver v. State, 17 Ala. 587.. 548
Ogles v. Com., 11 S. W. 816. . 549
Oliver v. State, 17 Ala. 587. . . 549
Oliver v. State, 17 Ala. 587.. 561
O'Reelcy v. People, 86 N. Y.

154, 40 Am. Rep. 525 653

O'Reilly v. People, 40 Am.

Rep. 526, 1 Phil, on Ev. 15. 656
O'Connell v. Reg, 11 C. & F.

155 369

Old Dominion Steam Ship Co.

V. McKenna 431

Owensby v. People, 53 N. Y.

472 443

Owens V. Gonzales, 4 Dill 438. 461
Ooitt V. Smith, 68 Vt. 35 397

People V. Hays, 140 N. Y. 484,

35 N. E. 951 13

People V. Motimer, 46 Cal. 114 14
People V. Campbell, 43 Am.

Rep. (Cal.) 257 14

People V. Cross, 135 N. Y.

536, 35 N. E. 246 70

People V. Jones, 20 Cal. 51 . . . 82
People V. Godfrey, 17 John

(N. Y.) 225 88

People V. Slack, 90 Mich. 548,

51 N. W. 533 110

People V. Wood, 126 N. Y. 249,

27 N. E. 362 110

People V. Bowden, 90 Cal., 27

Pac. 201 110

People V. Herbet, 119 Cal. 206,

63 A. S. R. 72, 51 P. 329.. 110

1352

Table of Cases

[references are

People V. McCarty, 115 Cal.

255, 46 P. 1073 110

People V. Young, 102 Cal. 411,

36 Pac. 770 114

People V. Gabbatt, 17 Mich. 9,

97 Am. Dec. 162 115

People V. Lane, 11 Cal. 379,

34 Pac. 856 115

People V. Young, 102 Cal. 411,

36 Pac. 770 115

People V. Ebanks, 40 L. E. A,

(Cal.) 269 119

People V. Worthiugton, 105

Cal. 166 119

People V. Kohn, 76 Cal. 386,

18 Pac. 410 125

People V. Elliott, 80 Cal. 276,

22 Pac. 207 125

People V. Lane, 101 Cal. 513,

36 P. 16 126

People V. Wright, 38 Mich. 744 135
People V. White Lead Works,

82 Mich. 471, 46 N. W. 735,

9 L. E. A. 722 143

People V. Anderson, 44 Cal. 65. 146
People V. Devine, 25 Cal. 227,

30 Pac. 378 151

People V. Welsh, 71 Mich. 548,

39 N. W. 747 151

People V. MeCann, 16 N. Y.

58, 69 Am. Dec. 642 158

People V. West, 106 N. Y. 293,

12 N. E. 610, 60 Am. Eep.

452 164

People V. Faren, 25 Cal. 361. . 169
People V. IlamJjlin, 68 Cal.

101, 8 P. 687 170

People V. Kane, 131 N. Y. Ill,

29 N. E. 1015, 27 A. S. E.

575 173

People V. Murry, 4 Park Cr.

Ca8. 234 187

People V. Bliven, 112 N. Y. 79,

8 A. S. B. 701 and note 190

People V. Blivon, 112 N. Y. 79,

19N. E. 638, 8 A. S. E. 701. 191
People V. Woody, 45 Cal. 289 . 192

TO SECTIONS]

People V. Gunzbol, 14 Pac. 836 196
People V. Sinell, 131 N. Y. 571,

30 N. E. 47 206

People V. Dewey, 58 How. 62. 206
People V. Downing, 84 N. Y.

478 208

People V. Barnes, 1 Johns Eep.

66 210

People V. McNealy, 17 Cal. 332 211
People V. Comstock, 8 Wend.

549 214

People V. Travers, 77 Cal. 176,

215 216

People V. Horn, 70 Cal. 17, 11

P. 470 216

People V. Webb, 38 Cal. 478. 218
People V. Van Curen, 5 Park

Cr. Cas. 66 219

People V. Case, 48 Cal. 323 .. . 223
People V. Goodwin, 18 Johns

187 232

People V. Tyler, 7 Mich. 161. . 232
People V. McCarty, 110 N. Y.

309 243

People V. Molineux, 168 N. Y.

264, 61 N. E. 286, 62 L. E.

A. 193 260

People V. Ogle, 104 N. Y. 511. 262
People V. Gould, 70 Mich. 240,

38 N. W. 282, 14 Am. St.

Eep. 493 272a

People V. Wynne, 15 Cal. 70. . 273
People V. Murphey, 39 Cal. 52 . 273
People V. Gonzales, 136 Cal.

606, 69 Pac. 487 276

People V. McCuUow, 81 Mich.

25, 45 N. W. 315 282

People V. Standley, 47 Cal.

113, 17 Am. Eep. 401 284

People V. McMahaii, 15 N. Y.

386 289

People V. Falck, 125 N. Y.

324, 26 N. E. 267, 1 1 L. I?.

A. 807 253

People V. Baker, 60 Mich. 277,

27 N. W. 539, 1 A. S. R. 50. 290

Table of Cases

1 '>."')

[references are
People V. Barker, 60 Mich.

277, 27 N. W. 539 291

People V. Mairez, 86 Cal. 533. 292
People V. Keeler, 99 N. Y. 468,

2 N. E. 615 300

People V. Daton, 55 N. Y. 380 300
People V. Felix, 45 Cal. 163.. 321
People V. Riley, 53 Mich. 260,

18 N. W. 849 321

People V. Everhart, 104 N. Y.

591 322

People V. Solomon, 148 Col.

303, 83 Pac. 42, 113 A. S. R.

268 328

People V. Moore, 3 Wheeler Cr.

Cas. 82 336

People V. DeWinton, 113 Cal.

403, 45 Pac. 708, 54 A. S.

E. 357, 33 L. R. A. 374 342

People V. Bush, 4 Hill 133. . .. 345
People V. Lee Kong, 95 Cal.

666, 29 A. S. R. 165, 30 P.

800 347

People V. Sullivan, 172, N. Y.

122, 93 A. S. R. 582, 65 N.

E. 989 347

People V. Jones, 46 Mich. 441,

9 N. W. 486 350

People V. Lie Hang, 95 Col.

666, 30 Pac. 800, 29 A. S. R.

165, 17 L. R. A. 626, 103 A.

S. R. 974 and note 13 Ann.

Cas., 41 L. R. A. (N. S.)

182 350

People V. Vandergreen, 106

Cal. 241, 39 P. 607, 46 A. S.

R. 234 353

People V. Yrlas, 27 Cal. 630.. 354
People V. Barnsby, 32 N. Y.

525-532 361

People V. Murrey, 14 Cal. 159. 365
People V. Stiles, 75 Cal. 70. . . 365
People V. Young, 122 Mich.

292, 81 N. W. 114, 47 L. R.

A. 108 365

TO SECTIONS]

People V. Sullivan, 173 N. Y.

122, 65 N. E. 989, 93 A. S.

R. 582, 63 L. R. A. 353 365

People V. Bush, 4 Hill 133 366

People V. Gleason, 99 Cal. 359,

33 P. 1111, 37 A. S. R. 56.. 373

People V. Mize, 80 Cal. 42 374

People V. Scott, 6 Mich. 296. . 375
People V. Moran, 123 N. Y. 25

N. E. 412 377

People V. Jones, 46 Mich. 441,

9 N. W. 486 377

People V. Gardner, 144 N. Y.

119, 38 N. E. 1003, 43 A.

S. R. 741, 28 L. R. A. 699. . 377
People V. Mason, 254, 25 N. E.

412, 20 A. S. R. 732 377

People V. Murrey, 14 Cal. 159. 378
People V. Spoor, 235 111. 85,

N. E. 207, 136 A. S. R. 197

and note p. 201 and authori-
ties collated 388

People V. Brown, 34 Mich. 339,

22 Am. Rep. 531 388

People V. Lambert, 5 Mich.

349, 72 Am. Dec. 49 389

People V. Hartman, 130 Cal.

487 390

People V. McQuid (Mich.), 48

N. W. 161 391

People V. Spoor, 126 A. S. R.

page 216 and note page 215 391
People V. Lambert, 5 Mich. 349 393
People V. Brown, 34 Mich. 339,

Cyc. vol. 5, p. 693, note 24,

22 Am. Rep. 531 395

People v. Faber, 2 N. Y. 146,

44 Am. Rep. 357 396

People V. Spoor, 235 111. 2.'30,

85 N. E. 207, 126 A. S. R.

197 399

People V. Morhan, 64 Cal. 157,

30 P. 620, 39 Am. Rep. 700. 402

People V. Bush, 4 Hill 133 403

People V. Thornton, 25 Ilun.

485 404

1354

Table of Cases

[r'^ferences are

People V. Markham, 64 Cal.

157 406

People V. Jackson, 191 N. Y.

293, 84 N. E. 65, 14 Am.

Cas. 243, 15 L. K. A. (N.

S.) 1173 406a

People V. Coffey, 161 Cal. 433,

119 P. 901, 30 L. K. A. (N.

S.) 704 407

People V. White, 153 Mich.

617, 117 N. W. 161, 15 Ann.

Cas. 927, 17 L. E. A. (N.

S.) 1102 411

People V. McCloskey, 5 Park

(N. Y.) 63 412

People V. Richards, 2 A. S. K.

note p. 388 415

People V. Targart, 43 Cal. 81. 417
People V. Strauch, 240 111. '60,

88 N. E. 155, 130 A. S. R.

255 418

People V. Richards, 1 Mich.

216, 51 Am. Dec. 75 and

note 82 420

People V. Richards, 1 Mich.

216, 51 Am. Dec. 75 421

People V. Richards, 67 Cal.

412, 7 P. 828, 56 Am. Rep.

716 422

People V. Miller, 82 Cal. 107,

22 P. 934 422

People V. Flack, 125 N. Y.

324, 26 N. E. 267, 11 L. R.

A. 807 423

People V. Richards, 1 Mich.

216, 5 Am. Dec. 75 424

People V. Chase, 16 Barb. 485. 430
People V. Flack, 125 N. J. L.

324, 26 N. E. 267, 1 1 L. R.

A. 807 430

People V. Fisher, 14 Wend. 10,

28 Am. Dec. 501 431

People V. Sheldon, 1893, 139

N. Y. 251, 36 A. S. R. 690. 433
People V. Arnold, 46 Mich. 268,

273 436

TO SECTIONS]

People V. Richards, 1 Mich.

216, 51 Am. Dec. 75-n 436

People V. Richards, 51 Am.

Dec. 1, Mich. 216 438

People V. Arnal, 46 Mich. 268,

38 Am. Dec. 347 438

People V. Strouch, 240 111. 60,

88 N. E. 155, 130 A. S, R.

255 439

People V. Brown, 59 Cal. 345.. 442
People V. Freedman, 205 N.

Y. 161, 98 N. E. 471, 45

L. R. A. (N. S.) 55 443

People V. McDonnell, 80 Cal.

285, 22 P. 199, 13 A. S. R.

159 447

People V. McDonald, 80 Cal.

285, 22 P. 160, 13 A. S. R.

150 448

People V. Keeler, 99 N, Y.

463, 2 N. E. 615, 52 Am.

Rep. 49 450

People V. County .Tudge, 27

Cal. 151 455

People V. Cassets, 5 Hill 164. 458

People V. Story, 79 111. 45 460

People V. Wilson, 64 111. 195. 460
People V. Murrey, 50 N. W.

995 466

People V. Wilson, 69 111. 219. 467
People V. Frier, 1 Caines 484. 467
People V. Frio, 2 Johns. 290.. 467
People V. Tool, 35 Colo. 225,

86 Pac. 224, 117 A. S. R.

108, 6 L. R. A. (N. S.) 822. 470
People V. Mode, 92 N. Y. 415. 470
People V. O 'Brian, 96 Cal. 171 477
People V. Miller, 160 N. Y.

339, 6 N. E. 418, 88 A. S. R.

546 479

People V. Burr, 41 IIow. Pr.

295 479

People V. Dalton, 15 Wend.

581 481

People V. Ilcnnossy, 15 Wend.

147 481

Table oi^ Cases

1305

[rkferences are
People V. 'Williniiis, 60 Cal. 1 . 482
People V. Dalton, 15 Wend.

581 484

People V. Allen, 5 Denio 79. . . 484
People V. Sheniian, 10 Wend.

298, 25 Am. Dec. 563 487

People V. Peterson, 9 Cal. 313 . 487
People V. Treadwell, 69 Cal.

226 487

People V. McKinney, 10 Mich.

54 487

People V. Thomas, 82 N. Y.

Supp. 215 489a

People V. Warren, 122 Mich.

504, 81 N. W. 360, 80 A.

S. R. 582 491

People V. Babcock, 7 John.

(N. Y.) 201, 5 Am. Dec.

26 493

People V. Rothstein, 180 N. T.

148, 72 N. E. 999, 1 Ann.

Cas. 978 495

People V. Ilaynes, 14 Wend.

546, 28 Am. Dec. 530 496

People V. Donnalson, 70 Cal.

116, 11 P. 681 497

People V. McAllister, 49 Mich.

12, 12 N. E. 891 498

People V. Donnalson, 70 Cal.

116 498

People V. Donnalson, 70 Cal.

116, 11 P. 681 501

People V. Lewinger, 252 111.

332, 96 N. E. 837, Ann.

Cas., 1912 D 239 507

People V. Wilson, 6 Johns. 320. 507
People V. Bendit, 141 Cal.

274, 31 L. E. A. 831 509

People V. Bendit, 111 Cal.

274, 43 P. 901, 52 A. S. R.

186, 31 L. R. A. 831 509

People V. Phelps, 49 How. (N.

Y.) Pr. 462 512

People V. Pfeiffer, 243 111.

200, 90 N. E. 680, 17 Ann.

Cas. 703, 26 L. R. A. (N.

S.) 138, see note 17 Ann.

TO SECTION.'?]

Cas. 703, see note 26 L. R.

A. (N. S.) 138 515

People V. Caton, 25 Mich.

390 518

People V. Swctland (Mich.),

43 N. W. 779, 77 Mich. 53. 519
People V. Rathborn, 21 Wend.

505 519

People T. Bingham, 2 Mich.

550, Ind ' 519

People V. Kingley, 2 Cow. 522. 520
People V. Stevens, 21 Wend.

409 521

People V. Van Alstine, 57

Mich. 74, 23 N. W. 594 521

People V. O 'Brine, 96 Cal.

171, 31 P. 45 521

People V. Phillips, 70 Cal. 61,

11 P. 493 524

People V. Frank, 28 Cal. 507. . 525
People V. Bingham, 2 Mich.

550 525

People V. Schrayver, 42 N. Y.

1, 1 Am. Rep. 480 533

People V. McLead, 1 Hill. 436. 533
People V. Cotteral, 18 Johns.

120, 2 Starkie's ev. 489 533

People V. Lewis, 124 Cal. 551,

67 P. 470, 45 L. R. A. 783. . 536
People V. Kane, 213 N. Y. 260,

107 N. E. 655, L. R. A.,

1915 F 607 535

People V. Enoch, 13 Wend. (N.

Y.) 159, 27 Am. Dec. 192.. 539
People V. Howe, 44 Cal. 906. . 541
People V. Fain, 25 Cal. 361.. 541
People V. Ilorton, 4 Mich. 67,

Foster 296 547

People V. Campbell, 50 Cal.

243, 43 Am. Rep. 257 547

People V. Horton, 4 Mich. 67. 549
People V. Kilvington, 104 Cal.

86, 37 P. 799 550

People V. Pearne, 118 Cal. 154,

50 Pac. Rep. 376 553

People V. Shorter, 4 Barb. 460. 555

1356

Table or Cases

[references are
People V. Williams, 32 Cal.

280 556

People V. Lennon, 71 Mich.

298, 38 N. W. 82, 15 A. S.

E. 259 556a

People V. McGinnis, 234 111.

68, 84 N. E. 687, 123 A. S.

E. 73 556a

People V. Lamb, 41 N. Y. 360. 557
People V. Pond, 8 Mich. 150. . 558
People V. Coughlin, 67 Mich.

466, 35 N. W. 72 559

People V. Walsh, 43 Cal. 337. . 559
People V. Horton, 4 Mich. 67 . . 559
People V. Payne, 8 Cal. 341. . . 560
People V. Rector, 19 Wend. 569 560
People V. Flannagan, 66 Cal. 2 560
People V. Dann, 53 Mich. 490,

19 N. W. 159, 51 Am. Eep.

151 560

People V. Cook, 39 Mich. 236,

33 Am. Eep. 380 562

People V. Adams, 47 111. 376. . 563
People V. Button, 105 (Cal.)

628, 46 A. S. R. 259 566

People V. Simons, 60 Cal. 72 . . 566
People V. Mise, 80 Cal. 42, 22

P. 80 569

People V. Hoban, 249 111. 303,

88 N. E. 806, 16 Ann. Cas.

226, 22 L. E. A. (N. S.)

1132 570

People V. Miller, 169 N. Y.

339, 62 N. E. 418, 88 A. S.

R. 546 and note 573

People V. Button, 46 A. S. E.

259 566

I'eople V. Hecker, 109 Cal. 451,

42 P. 307 566

People rel. Shand v. Tighe,

35 N. Y. 305 574

People V. McKinley, 9 Cal. 250 577
People V, Lonf^, 50 Mich. 249,

15 N. W. 105 577

People V. Nicholdfl, 17 N. Y.

114 579

TO SECTIONS]

People V. Anderson, 14 Johns.

(N. Y.) 294 581

People V. Swartz, 32 Cal. 160. 582
People V. McClosky, 5 Parker

Crim. E. 57 582

People V. Eea, 66 Cal. 423, 56

Am. Eep. 102 583

People V. Moore, 37 Hun. (N.

Y.) 84 584

People V. Schuyber, 6 Cow, 572 585
People V. Swelm, 80 Cal. 46,

13 A. S. R. 96, 22 P. 67 . . . 585
People V. Miller, 169 N. Y.

339, 62 N. E. 418, 88 A. S.

E. 546 note 597 585

People V. Eeynolds, 2 Mich.

422 587

People V. Bennett, 37 N. Y.

117 591

People V. Hanselman, 76 Cal.

460, 9 A. S. E. 238 593

People V. Moran, 123 N. Y.

254, 25 N. E. 412 594

People V. Stranch, 153 111.

App. 544, see 247 111. 220,

93 N. E. 126 606

People V. De Leon, 109 N. Y.

226, 16 N. E. 46, 4 A. S. E.

444 619

People V. De Lean, 109 N. Y.

226, 4 A. S. E. 444, 16 N. E.

46 622

People V. De Leon, 4 A. S. R.

449 623

People V. Kane, 131 N. Y.

Ill, 27 A. S. R. 575, 29

N. E. 1015 626

People V. Golden, 62 Cal. 542.. 630
People V. Wright, 3 Cal. 564. . 631
People V. Mullcr, 96 N. Y. 408,

48 Am. Rep. 635 650

People V. Eastman, 188 N. Y.

478, 8 N. E. 459, 11 Ann.

Cas. 302 and note 650

People V. Teal, 196 N. Y. 372,

80 N. E. 1086, 17 Am. Cas.

Table of Cases

135^

[hefkrences ark

1172, 25 L. E. A. (N. 8.)

120 653

People V. Cohen, 118 Cal. 74,

50 P. 20 661

People V. Kelley, 38 Cal. 145,

99 Am. Dec. 360 662

People V. Kelly, 38 Cal. 145,

99 Am. Dec. 360 664

People V. McKinney, 3 Park

Cr. L. 510 665

People V. McDermott, 8 Cal.

288 667

People V. Cohill, 193 N. Y.

232, 20 L. R. A. (N. S.)

1084 668

People V. Coswell, 13 Mich.

433, 87 Am. Dec. 774 685

People V. Griffin, 117 Cal. 583,

49 P. 711, 59 A. S. R. 216. 686
People V. Chapman, 62 Mich.

280, 4 A. S. R. 857, 28 N.

W. 896 688

People V. Verdegreen, 106 Cal.

211, 46 A. S. R. 234, 39 P.

607 690

People V. Chapman, 62 Mich.

280, 4 A. S. R. 857, 28 N.

W. 896, 68 Am. Dec. 264. . . 691
People V. Bates, 38 N. W. 231. 692a
People V. Kehoe, 128 Cal. 224,

69 A. S. R. 52 704

People V. Kehoe, 69 A. S. R.

54 704

People V. aark, 33 Mich. 112. 704
People V. Hubbard, 92 Mich.

322, 52 N. W. 729 705

People V. Nelson, 153 N. Y.

90, 60 A. S. R. 592 705

People V. Squires, 49 Mich.

487 705

People V. Nelson, supra 705

People V. Ruggles, 8 Johns.

290 708

People V. Scranton, 61 Mich.

244 718

People V. Scranton, 61 Mich.

244, 28 N. W. 81 719

; TO SECTIONS]

People V. Most, 128 N. Y. 108,

26 A. S. R. 453 726

Perry v. State, 87 Ala. 114.. 14
Prescott V. State, 19 Ohio St.

184 16

Piatt V. Denver, Canall and

Milling Co. (Colo.), 30 P.

68 37

Peake v. State, 121 Ind. 433,

23 N. E. 273 125

Physico Medico Col. of Ind. v.

Wilkinson, 108 Ind. 314, 9

N. E. 167 126

Prinder v. State, 27 Fla. 370, 8

So. 837, 26 A. S. R. 75.... 151
Price V. State, 18 Tex. App.

474 153

Patterson v. Nutter, 78 Me.

509, 7 Atl. 266 180

Price V. State, 36 Miss. 356, 72

Amer. Dec. 195 209

Parham v. State, 2 Tex. App.

228 211

Prince v. State, 19 Ohio 423.. 221
Perry v. State, 44 Tex. 773 . . 243
Pennegar v. State, 2 L. R. A.

703, 87 Tenn. 244 397

Parter v. Com., 61 S. W. 16, 22

Ky. Rep 591

Poage V. State, 3 Ohio St. 229 521
Pollock V. State, 32 Tex. App.

29 336

Pond V. People, 38 Mich. 150. 339
Price V. State, 17 Tex. App.

132 355

Price V. State, 36 Miss. 531, 72

Am. Dec. 195 355

Pinkerton v. Woodward, 91

Am. Dec. 660, 33 Col. 557. . 357
Perry v. People, 14 111. 496.. 374
Pickard v. State, 30 Ga. 767. . 376
Pennegar v. State, 2 L. R. A.

703, 87 Tenn. 244 397

Pitcher v. People, 16 Mich. 142 409
Painter v. State (Tex.), 9 S.

W. 774 414

1358

Table of Cases

[references are

Patton V. Gurney, 17 Mass.

182 425

Parker v. Griswald, 17 Conn.

302, 43 Am. Dec. 739 430

Plant V. Woods, 176 Mass. 79,
A. S. K. 330, 57 N. E. 1011,

51 L. K. A. 339 432

Phillips V. State, 6 Tex. App.

364 442

Preston v. Brown, 13 Ohio St.

1-13 442

Powers V. Com., 110 Ky. 386,
61 S. W. 735, 53 L. R. A.

245 443

Patten v. State, 6 Ohio St. 467 443
Patton V. Harris, 15 B Mon.

607 459

Plunkett V. Hamilton, 136 Ga.
72, 70 S. E. 781, Ann. Cas.
1912 B 1250, 35 L. E. A. (N.

S.) 583 462

Powel V. State, 34 Ark. 693 . . 481
Pullam V. State, 78 Ala. 31, 56

Am. Eep. 21 484

Pullam V. State, 78 Ala. 31, 56

Am. Eep. 21 487

Pugh V. Paine, 62 Ala. 340, 34

Am. Eep. 24 489a

Perkins v. State, 67 Ind. 270,

32 Am. Eep. 89 495

Poage V. State, 3 Ohio St. 229 522

Perry v. State, 43 Ala. 21 545

Powel V. State, 28 Tex. App.

393, 13 S. W. 599 545

Patterson v. State, 66 Ind. 185 548
Pond V. State, 8 Mich. 150.. 548
Pritchet v. State, 22 Ala. 39. . 549
Pierce v. State, 17 Tex. App.

132, 22 S. W. 587 549

Powell V. State, 5 Tex. App.

234 556

Pugli V. State, 2 Tex. App. 539 556
Pridgcn v. State, 31 Tex. 420 557
Patterson v. State, 12 Am. L.
Eep. N. S. 647, Hor. &
Thorn. Self Defense, Vol. 1,
861 560

TO SECTIONS]

Pierce v. State, 17 Tex. App.

232, 22 S. W. 587 560

Parmer v. State, 9 Wyo. 40, 87

A. S. E. 910, 59 P 793.... 566
Pruet V. State, 20 Tex. App.

129 569

Patterson v. State, 85 Ga. 131,

21 Am. Eep. 152 569

Patton V. State, 24 L. E. A.

782 574

Patrick v. State, 50 Tex. App.

496, 98 S. W. 840 575

Parvell v. State, 34 Ark. 693 . . 578
Phillips V. State (Tenn.), 3 S.

W. 434 580

Pitts V. State, 5 Tex. App. 12 583
Phelps V. People, 55 111. 334. . 589
Printz V. People, 42 Mich. 144,

36 A. S. E. 437, 3 N. W. 306 590
Pattrick v. Smoke, 3 Strab. 147 665
Payne v. State, 38 Tex. App.

494, 70 A. S. E. 760, 49 S.

W. 604, 76 A. S. E. 712... 685
Payne v. State, 40 Tex. App.

202, 76 A. S. E. 713, 28 P.

235, 37 A. S. E. 505 686

Putnam v. State, supra 705

Prindle v. State, 31 Tex. App.

551, 37 A. S. E. 833 706

Pratt V. Price, 11 Wend. 128. 658

Eatsky v. People, 29 N. Y.

124 13

Eced V. State, 26 Miss. 51 . . . 96
Eohertson v. State, 16 Tex.

App. 54 97

Eyan v. People (Colo.),

1917 C, Ann. Cas. 605, 60

Colo. 425, 153 P. 756 107

Eathcr v. State, 25 Tex. App.

623, 9 S. W. 69 108

Eeagnn v. State, 28 Tex. App.

227, 12 S. W. 601, 19 A.

S. E. 333 ICl

Eublc V. State, 10 S. W. 362.. 206

Table of Cases

1359

[RKFERENCES ARE TO SECTIONS]

Roberst v. State, 14 Ga. 8,

58 Am. Dec. 528 218

Ruthiford v. Corn., 78 Ky. 639 209
Reagan v. State, 49 Colo. 316,

112 P. 785 275

Rofferty v. State, 91 la. 655. . 527
Roberts v. State, 7 Cold.

(Tcnn.) 359 342

Rex V. March, R, & M. C. C.

182 343

Rex V. Harris, 2 East. 1023.. 343
Rex V. Russell, C. & M. 541. . . 344
Rex V. Stallion, 1 Mood. C. C.

1020 344

Rex V. Taylor, 2 East. P. C.

398 344

Rex V. Parker, 9 C. & P. 45 . . . 344

Rex V. Jones, C. & K. 530 346

Rex V. George, 9 C. & P. 483 . . 346
Rex V. Rosinski, 1 M. C. C. 19 348
Rex V. Walkden, 1 Cox C. C.

282 352

Rex V. Dilworth, 2 M. & R.

531 352

Rex V. Bennett, 4 R, & F.

1005 353

Rex V. Case, 4 Cox C. C. 220.. 353
Rex V. Clayton, 1 Car. & K.

128 368

Reg V. Meredith, 8 C. & P.

589 371

Reg V. Phillips, 3 Cox C. C.

225 371

Rex V. Phillips, 6 East. 464. .. 373
Rex V. Donivan, 4 Cox C. C.

425 375

Reagan v. State, 28 Tex. App.

227, 19 A. S. R. 833 375

Rex V. Thomas, 1 East. P. C.

417 375

Rex V. James, 9 Leach 258. . . . 375
Rex V. Holt, 7 Car. & P. 518.. 375
Rogers v. Com., 5 Serg. & R.

463 377

Rec V. Chapin, 3 Con. C. C.
467 378

Rex V. McPherson, D. & B.

190 378

Rex V. Cheezeman, 9 Con. C. C.

108 378

Rex V. Taylor, 1 F. & F. 511. 378
Rt'X V. Brown, 1 C. & K. 114. 389
Robertson v. Com., 69 Ky. (6

Bush) 300 392

Rex V. Jacobs, 1 Moody C. C.

140 399

Rex V. Brigs, 1 Denio, 4 Bell

98 399

Rex V. Vaughn, 4 Burr 2494. . 406
Rex V. Pallman, 2 Camp 229.. 406
Rudolph V. State, 128 Wis.
222, 107 N. W. 467, 116 A.

S. R. 32 406a

Robertson v. State, 34 Tex.
Jourt App. 71, 29 S. W. 40,

53 A. S. R. 701 412

Roberts v. Territory, 8 Okla.

326, 57 P. 840 413

Rogers v. State, 43 Tex. 406.. 414
Richards v. People, 51 Am.

Dec. 85 427

Randall v. Lonsdorf, 126 Wis.
147, 105 N. W. 663, 5 Ann.
Cas. 371, 3 L. R. A. (N. S.)

407 428

Rouse V. State, 4 Ga. 136 447

Rex V. Thorley, 1 Moody C. C.

343 479

Rex V. Armon, 7 Con. C. C. 45 479
Rex V. Latisberry, 5 Car. & P.

156 479

Rex V. Beaumont, Dears C. C.

270 479

Rex V. Harris, 6 Cox C. C. 360. 479
Reed v. State, 16 Tex. App.

590 484

Raincy v. People, 22 N. Y. 413 495
Roberts v. People, 9 Colo. 458,

13 P. 630 497

Rainey v. State, 94 Ga. 599. . . 500
Regina v. Smith, 9 Cox C. C.
162 512

1360

Table of Cases

[references are

Eembert v. State, 25 Am. Kep.

639, 53 Ala. 467 521

Eatlibuni v. People, 21 Wend.

509

Eeg V. Mawbridge, Kely, 119.
Kex V. Hovey, 2 B. & C. 268 . .
Eoberts v. State, 14 Mo. 147,

55 Am. Dec. 97

Eobinson v. State, 93 Ga. 77,
18 S. E. 1018, 44 A. S. K.

127

Eeneau v. State, 2 Lea 720 .. .
Eoberts v. State, 14 Mo. 138. .
Eippy V. State, 2 Head

(Tenn.) 27 555

Kipply V. State, 2 Head 217 . .
Eippy V. State, 26 Miss. 362 . .
Eoach V. People, 77 111. 25...
Eex V. Hawkins, 4 Cox C. C.

224

Eoberts v. State, 83 Ga. 369,

9 S. E. 678

Eombo V. State, 28 Tex. App.

Eice V. State, 3 Heisk 226

Eex V. White, 1 F. & P. 665. .
Eoss V. State, 55 Ga. 192, 21

Am. 278

Eeg V. Dunn, 12 A. & E. 599 . .
Eex V. Clark, 6 Cox C. C. 413 .
Eeg V. Barrow, 11 Cox C. C.

191

Eeg V. Williams, 8 Cox C. C.

223

Ecgina v. Barrett, 12 Cox 0. C.

498

Eegina v. Young, 14 Cox C. C,

114

Eex V. Mayers, 12 Cox C. C

311

Ehodcs V. State, 1 Cold. 350..
Eo(l(,'f"rH V. State, 1 Tex. A])p.

187

Eex V. Hickman, 1 Moody 34. .
EugglcH V. I'c'oplc, 5 Am. Dec.
335 71

TO SECTIONS]

525

529
529

548

549
550
551

556

557
560

578

581

587
595
597

662
675
685

685

686

686
690

602a
707

State V. Manning, 14 Tex. 402. 13
State V. Sneed, 25 Tex. Sup.

66 13

State V. McDonald, 20 Minn.

136 14

State V. Barnett, 3 Kan. 250.. 16
State V. Jackson, 21 La. Ann.

574 16

State V. Hoyt, 4 Wash. St.

Eep. 465 16

State V. Harr. (W. Va.), 17

S. E. 794 35

State V. Melton, 117 Mo. 608,

53 Mo. App. 646 35

State V. Aleson (Minn.), 52 N.

W. 220 37

State V. Smith (Iowa), 48 N.

W. 727 39

State V. Wolf (N. C), 17 S. E.

528 39

State V. Sparks, 27 Tex. 627. . 42
State V. Eankin, 44 Tenn. 145. 51
State of Ky. v. Denison, 24
How. U. S. Eep. vol. 62-65-

717 68

State V. Eoss, 21 la. 467 70

State V. Stewart, 60 Wis. 587,

19 N. E. 429 70

State V. Hall. 40 Kans. 338,

19 Pac. 918 70

State V. Witford, 54 Wis. 150-

57 78

State V. Eoberts, 8 Nev. 239.. 83
State V. Judge, 21 La. Ann.

119 83

State V. Doyle, 40 Wis. 175,

32 Am. Eep. 692 90

State V. Ellis, 3 Conn. 185, 8

Am. Dec. 175 91

State V. Bartlott, 11 Vt. 650.. 01
State V. Johnson, 2 Oregon

115 91

State V. Burnet, 14 Iowa 479. 91
State V. Eennols, 14 La. Ann.
278 91

Tai'.i.k oi' Cases

i;j(Jl

(rkkerences ark

State V. Newman, 9 Nev. 48,

16 Am. liep. 3 92

State V. Nuwiiian, 9 Nev. 98.. 93
State V. Stuutly, 24 Ohio IGG. 94
State V. Kelley, 76 Me. 645.. 96

State V. Kelly, 26 Me. 331 98

State V. Wycoff, 31 N. J. L.

68 99

State V. Dennis, 80 Mo. 594. . . 99
State V. Sheffer, 1 S. W. 293 . . 99
State V. Moore, 40 S. W. 287. 100
State V. Jones, 50 N. H. 369. . 106
State V. Bowling, 116 S. W.

(Ark.) 658, 20 Neb. 333... 107
State V. Lewis, 22 Pa. 241 .. . 107
State V. Lowe, 93 Mo. 547, 5

S. W. 889 109

State V. Leach, 3 S. W. 539. . . 109
State V. Williams, 9 S. W. 5. . 109
State V. Reidell, 9 Houst.

(Del.) 470, 14 Atl. 550.... 109
State V. Giebel (Tex.), 12 S.

W. 591, Id. 28 Tex. App.

151 109

State V. Lewis, 20 Nev. 333, 8

Am. Cr. Rep. 594, 22 Pac.

241 109

State V. Parsons, 21 So. 854. , 108
State V. Lowe, 93 Mo. 547, 5

S. W. 889 109

State V. Leach, 3 S. W. 539. .. 109
State V. Williams, 9 S. W. 5 . . 109
State V. Mawry (Kan.), 15 P.

R. 232 109

State V. Ridell (Del.), 14 All.

Rep. 550 109

State V. Giebel (Tex.), 12 S.

W. 591, Id. 28 Tex. App. 151 109
State V. Lewis, 20 Nev. 333, 8

Am. Cr. Rep. 941 109

State V. Riddle, 245 Mo. 451,

Ann. Cas. 1914 A 886, 150

S. W. 1044, 43 L. R. A.

(N. S.) 150 113

State V. Cooper, 170 N. C. 719,

87 S. E. 50 113

C. L.— 86

TO sections]

state V. Ilassing, 60 Ore. 81,

iTS Pac. 195 113

State V. Mowliinney, 43 Utah

135, Ann. ('as. 1916 C 537,

134 Pac. 632, L. R. A.

1916 D 590 113

State V. Leakey, 44 Mont. 354,

120 Pac. 234 113

State V. Kelley, 74 Vt. 278,

52 Atl. 434 113

State V. Hanson, 25 P. O. 976. 115
State V. Tom (Ore.) 30 P. 307 115
State V. Alexender, 30 S. C.

74, 8 S. E. 440, 14 A. S. R.

878 121

State V. Felter, 32 Iowa 495. . 121
State V. Lawrence, 57 Me. 574 121
State V. Redmen, 71 Mo. 170. . 121
State V. Felter, 32 Iowa 495. . 122
State V. Lawrence, 57 Me. 574. 122
State V. Redmen, 71 Mo. 170. 122
State V. Redmore, 71 Mo. 171,

35 Am. St. Rep. 462 124

State V. Gabbutt, 17 Mich. 97. 125
State V. Marler, 2 Ala. 43, 36

Am. Dec. 398 125

State V. Bartlett, 43 N. H. 224,

80 Am. Dec. 154 125

State V. Redimeir, 71 Mo. 173,

36 Am. Rep. 462 127

State V. Anderson, 43 Conn.

514, 21 Am. Rep. 669 127

State V. Hockett, 70 la. 442,

30 N. W. 742 128

State V. Pennyman, 68 la. 216,

26 N. W. 82 128

State V. Leochman, 3 S. Dak.

171, 49 N. W. 3 128

State V. Lewis, 20 Nev. 333,

22 P. 241 128

State V. Green, 40 S. C. 328,

18 S. E. 933 128

State V. Robertson, 117 Mo.

649, 23 S. W. 1066 128

State V. Calla, 8 Wash. 512,

;56 P. 474 128

1362

Table of Cases

[references are
state V. Nacton, 26 S. W. 551. 128
State V. Bartlett, 43 N. H. 224,

80 Am. Dec. 154 129

State V. Jones, 50 N. H. 369,

9 Am. Eep. 242 129

State V. Johnson, 40 Conn. 136 129
State V. Crawford, 11 Kans.

32 129

State V. Feller, 32 la. 49 129

State V. Klinger, 43 Mo. 127. . 129
State V. Aron, 7 Am. Dec. 592,

1 South. 231 131

State V. Fowler, 52 Iowa, 2 N.

W. 983 131

State V. Nickerson, 45 La.

Ann. 1172, 14 So. 134 132

Satte V. Dowell, 106 N. C.

722, 19 Am. St. 568 138

State V. Passcocco Soc, 54 N.

J. L. 546, 23 A. 680 143

State V. Portland, 74 Me. 268,

43 Am. Rep. 586 143

State V. Gardner, 5 Nev. 377. . 146
State V. Gates, 17 N. H. 373. . 147
State V. Harris, 17 Mo. 379.. 148
State V. Bond, 8 Iowa 540 .. . 148
State V. Goodenow, 65 Me. 30. 149
State V. Goodenow, 65 Me. 30. 150
State V. Benhaui, 23 Iowa 154,

92 Am. Dec. 417 152

State V. Wells, 1 N. J. L. Rep.

424, 1 Am. Dec. 211 153

State V. Welch, 73 Mo. 284,

39 Am. Rep. 515 154

State V. O'NeU, 147 la. 513,

126 N. W. 415, Ann. Cas.

1912 B 691 154

State V. Rumble, 81 Kan. 16,

105 P. 1, 25 L. R. A. (N.

S.) 276 155

State V. Luff, 24 Del. 152, 74

Atl. 1079 155

State V. Hoot, 120 la. 238, 94

N. W. .'364, 9 A. S. R. 352. . 155

TO SECTIONS]

State V. Earns, 15 Del. 477,
41 Atl. 136 156

State V. Gillmon, 69 Me. 163,
31 Am. Rep. 257 156

State V. Renfsow, 111 Mo. 589,

30 S. W. 359 158

State V. Asher, 50 Ark. 427,

8 S. W. 177 158

State V. Evans, 15 Del. '477,

41 Atl. 136 159

State V. Henson, 81 Mo. 384. . 159
State V. Cooper, 13 N. J. L.

361, 25 Am. Dec. 490 159

State V. Gilmon, 69 Me. 163,

31 Am. Rep. 257, 3 Am. Cr.
Eep. 15 159

State V. Walker, 37 La. Ann.

560 160

State V. Lane (Mo. App.), 193

S. W. 948 160

State V. Heaton, 77 N. C. 505. 160
State V. Mitchcl, 27 N. C, 5

Ired. 350 161

State V. Evans, 15 Del. 477,

41 Atl. 136 163

State V. Cooper, 13 N. J. L.

361, 25 Am. Dec. 490 163

State V. Simmons, 143 N. C.

613, 56 S. E. 701 164

State V. McBrager, 98 N, C.

619, 2 S. E. 755 164

State V. Justus, 11 Ore. 178,

50 Am. Rep. 470, 8 P. 337.. 165
State V. Vance, 17 la. 138... 165
State V. Jones, 79 Mo. 441.. 167
State V. Partlon, 90 Mo. 608. 168
State V. Schoenwold, 31 Mo.

147 167

State V. Turner, Wright 30

(Pa.) 167

State V. Anderson, 2 Overt. 6,

5 Am. Dec. 648 168

State V. Sliirley, 64 N. C. 610. 168
State V. Reynolds, 11 Neb. 98.. 168
State V. Kerby, 26 Kans. 77. . 170

Table of Cases

1363

[REFERENCES ARE

State V. Hoyle, 13 Minn. 132. 170

State V. Ilopkirk, 84 Mo. 278. 170

State V. Kron, 7 Ore. 186 170

State V. Lopez, 15 Nev. 407.. 170

State V. Lewis, 74 Ind. 1 170

State V. Townsend, 6G la., 24

N. W. 535 170

State V. Lewis, 74 Mo. 222. . . 170
State V. Johnson, 1 Ired. 354,

35 Am. Dec. 742 171

State V. Thorn, 81 N. C. 555. 172

State V. Babcock, 51 Vt. 570. 172

State V. Watson, 63 Me. 128. 172

State V. Englan, 78 N. C. 552. 172
State V. Waters, 6 Johns. N.

C. 560 173

State V. Wanderford, 35 Fed.

K. 282 173

State V. Jackson, 12 Ired. 34

(N. C.) 329 173

State V. Jones, 95 N. C, 588. . 177

State V. Bitman, 13 la. 485.. 177

State V. Murrey, 43 Ala. 316. 183

State V. Huston, 29 S. C. 108. 183

State V. Bell, 29 la. 316 183

State V. Mathews, 20 Mo. 55. 187

State V. Cranch, 2 Bailey, 66. 189
State V. Khulman, 152 (Mo.)

100, 75 Am. St. Eep. 438. . . 193
State V. Graham, 41 N. J. L.

15, 32 Am. Rep. 174 195

State V. Roberts, 15 Ore. 187,

13 Pac. 896 196

State V. Tutt, 2 Bailey Law

44, 21 Am. Dec. 508 199

State V. Ellis, 74 Mo. 385, Id.

41 Am. R. 321 204

State V. McClintock, 1 Green,

392 205

State V. Rose, 29 Me. 32 205

State V. Larkin, 40 N. H. 36. . 205
State V. Martin, 30 Wis. 216,

11 Am. Rep. 567 205

State V. Judge of Second Re-
corder's Court, 43 L. Ann.

1119 206

TO SECTIONS]

State V. Franklin, La., 2 South

539 107

State V. Wiles, 26 Minn. 381. 208
State V. Murrey, 55 la. 530. . . 208
State V. Bizzell, 58 N. H. 257. 208
State V. Lillefield, 70 Me. 452,

35 Am. Rep. 335 208

State V. Hall, 50 Ark. 28, 6

S. W. 20 209

State V. Gooch, 60 Ark. 218.. 200
State V. Ward, 48 Ark. 36,

Id. 3 Am. State Rep. 213, 2

S. W. 191 200

State V. McCoy, 14 N. H. 364. 211
State V. Scott, 99 la. 36, 68 N.

W. 451 212

State V. Scott, 99 la. 36 212

State V. Stanton, 23 N. C. 424 213
State V. Hopkins, 1 Bay. 372. 214
State V. McKee, 1 Bailey Law,

651, 21 Am. Dec. 504 216

State Ex rel. Rowe v. District

Court, 44 Mont. 318, 119,

P. 1103, Ann. Cas. 1913 B

369 216

State V. Reed, 52 Ore. 377, 97

P. 753 216

State V. Cooper, 1 Green, 13

(N. J.) 361, 25 Am. Dec.

490 217

State V. Sheppard, 7 Conn. 156 217
State V. Damun, 2 Tyler (Vt.)

387 217

State V. Fayetteville, 2 Mur-

phey (N. C.) 371 217

State V. Burnham, 7 Conn.

414 217

State V. Standerfer, 5 Porter

(Ala.) 523 217

State V. Thurston, 2 McMil-

lian (S. C.) 382 217

State V. Mowser, N. J., 106

Atl. 416, 4 A. L. R. 6951. . . 217
State V. Williams, 10 Humph.

(Tenn.) 101 218

State V. Nelson, 29 Me. 329.. 218
State V. Ray, 33 Am. Dec. 90. 218

1364

Table ' of Cases

[references are

state V. Lambert, 9 Nev. 321. 218
State V. Benham, 7 Conn. 414. 219
State V. Egglesht, 41 la. 574,

20 Am. Eep. 612 219

State V. Sampson, 157 la. 257,
138 N. W. 473, 42 L. K. A.

(N. S.) 967 219

State V. Cooper, 1 Green, N. J.

361 220

State V. Sheppard, 7 Conn, 541 220
State V. Damon, 2 Tyler 381. . 220
State V. Douglas, 26 Nev. 196,
65 P. 802, 99 A. S. E. 688,

note 124 A. S. E. 637 220

State V. Vinco, 34 La. Ann.

1072 221

State V. Hays, 67 la. 271, 24

N. W. 575 221

State V. Moor., 12 Am. Dec.

547 224

State V. McKee, 1 Bailey Law.

651, 21 Am. Dec. 499, note. 226
State V. Martin, 30 Wis. 216,

11 Am. Eep. 567 226

State V. Book, 61 Kan. 382,

59 P. 653, 49 L. E. A. 186.. 227
State V. Hotel McCrery Co.,

68 W. Va 227

State V. Freeman, 66 N. C. 47 . 227
State V. Grayham, 1 Pike 428. 227

State V. Foit, 22 la. 140 227

State V. White, 71 Kan. 356,

80 P. 589, Am. Cas. 132.... 231
State V. Brooks, 3 Humph. 70. 232
State V. Paterno, 9 So. 442

(La. Ann.) 232

State V. Battle, 7 Ala. 259. .. . 232
State V. Eeed, 26 Conn. 202. . . 232
State V. Green, 16 la. 239. .. . 232
State V. Eedman, 17 la. 239.. 232
State V. Vincent, 24 la. 670 . . 243
State V. Willis, 63 N. C. 26. . . 243
State V. Briscoe, 30 La. Ann.

433 243

State V. Dillon (la.), 38 N, W.
535, 74 la. 653 24:{

TO SECTIONS]

State V. Davis, 50 S. C. 405,

27 S. E. 905, 62 A. S. K. 837 243
State V. Trivas, 32 La. Ann.

1086, 36 Am. Eep. 293 243

State v. Bowles, 146 Mo. 6, 47

S. W. 892, 69 A. S. E. 598.. 243
State V. Haxsie, 15 E. L 1, 2

A. S. E. 838 244

State V. Des Champs, 42 La.
Ann. 567, 7 So. 703, 21 A.

S. E. 392 244

State V. Thomas, 98 N. C. 599. 244
State V. Shippey, 10 Minn. 223,

88 Am. Dec. 70 244

State V. Briscoe, 30 La. Ann.

433 244

State V. Spencer, 2 N. J. L.

196 244

State V. Jarnett, 82 N. C. 655 . 246
State V. Kelly, 73 Mo. 608... 246

State V. Bobb, 76 Mo. 501 246

State V. Guild, 149 Mo. 370, 50

S. W. 909, 73 A. S. E. 395. 246
State V. Gentry, 149 Mo. 374,

73 Am. St. Eep. 3911 247

State V. Jacob, 14 Am. St.

Eep. 897 247

State V. Filden, 3 Cr. Mag.

Cal. 49 248

State V. Williams, 65 N. C. 399 250
State V. Patton, 42 Vt. 495. . . 250
State V. Nelson, 29 Me. 329. . 250
State V. Banks, 48 Ind. 197.. 250
State V. Gilmore, 69 Me. 163,
31 Am. Eep. 257, 3 Am. Cr.

Eep. 15 253

State V. Payton, 70 Mo. 220,

52 S. W. 394 253

State V. Murphy, 17 N. Da. 48,
15 N. W. 84, 16 Ann. Cas.

1133 253

State V. Levelle, 34 N. C. 120,

13 S. E. 319, 27 A. S. E. 779 253
State V. Williams, 14 Ohio 222 254
State V. Salt Lake City, 35
Utah 25, 99 P. 255, 18 Am.
Cas. 1130 257

Table of Cases

]:;Grj

[rkferences are

state V. Raimsbarger, 91 la,

746 258

State V. Perrigo, 70 la. 657 .. . 258
State V. Barnwell, 80 N. C. 466 258
State V. Wisdom, 84 Mo. 177. . 258
State V. Sherley, 64 N. C. 610 . 258
State V. Knight, 43 Maine 11.
State V. Medley, 66 W. Va.

216, 66 S. E. 358, 18 Ann.

Cas. 761 258

State V. Merrill, 2 Dev. (N.

C.) L. 269 260

State V. Northcut, 48 la. 583. 260
State V. Jones, 2 N. W. Eep.

1060 260

State V. Linley, 51 la. 343. . . 260
State V. Swain, 68 Mo. 905. . . 260
State V. Dobbins, 152 la. 632,

132 N. W. 805, 42 L. E. A.

(N. S.) 735 260

State V. Saunders, 76 Mo, 35. . 262
State V. Dupeor, 31 La. Ann.

804 262

State V. Pee, 123 la. 118, 98

N, W. 287, 101 A. S, R. 307. 262
State V. Duncaw, 7 Wash. 336,

38 A. S. E. 888, 35 P. 117.. 262
State V. Phillips, 24 Mo. 475. 262
State V. Sheffield, 43 Tex. 370, 263
State V. Barber, 36 U. S, 313 . 265
State V. Gould, 26 W. Va. 258 265
State V. Furney, 41 Kan, 115,

13 A. S, E. 262, 21 P, 213. . 267
State V, Johnson, 118 Mo. 401,

40 A. S. E. 405, 25 S. W,

229 267

State V. Meyer, 65 N. J, L.

237, 47 Atl. 486, 86 A. S, E.

634 and note 267

State V. Jefferson, 20 Am. Dec.

534, 6 Ired. (N. C.) 305... 270
State V. Gould, 10 N. J. L,

163, 18 Am. Dec. 404 270

State V. Patterson, 73 Mo. 705, 271
State V, Knowles, 48 la. 598. . 271
State V. Abrams, 131 la. 479,

108 N. W. 1041 272

TO sections]

state V, Martener, 20 , 3. 272

State V. Lamb, 28 Mo. 218... 272
State V. Knapp, 70 Ohio State

380, 71 N, E. 751, 1 Ann.

Cas. 819 272

State V. Kelley, 206 Mo, 685,

12 Ann. Cas. 681 272a

State V. Ilollenchat, 61 Mo.

302 273

State V. Elliott, 15 la, 723 273

State V. Nahone, 32 Vt. 241.. 273

State V. Isaac, 3 La. Ann. 359. 273
State V. Covington, 2 Bailey

(S. C.) 569 273

State V. Gelabut, 39 Cal. 663. 273

State V. Busse, 127 la. 318, *

100 N. W. 536 273

State V. Calvin, 226 Mo. 446,

126 S. W, 448 273

State V. Knowles, 48 la, 598.. 274

State V. Davidson, 30 Vt. 377. 274

State V. Brite, 73 N, C. 26. . . 275

State V. Dunkin, 64 Mo. 262. 275

State V. Vance, 8 N. C. 631. . . 275
State V. Jay, 116 la. 264, 89

N. W. 1070 276

State V. Brookman, 46 Mo. 566 276
State V. Whitfield, 70 N. C,

356 276

State V, Dye, 36 Nev. 143, 133

P. 935 276

State V. Farthington, 43 la.

494 277

State v. George, 15 La. Ann,

145 277

State V. Cruse, 74 N, C, 491 . . 278

State V. Com., 55 Vt, 513 279

State V, Howard, 17 N. H, 171 279

State V. Porter, 18 Conn. 166. 279
State V. Guild, 10 N, J. L.

163 279

State V. Mills, 1 N, C, 428. . . . 279

State V. Carrick, 16 Nev. 120. 279

State V. Patterson, 73 Mo. 696 279

State V, Branham, 13 S, C, 389 279
State V. Wentworth, 37 N. H,

196 281

1366

Table of Cases

[references are

State T. Johnson, 30 La. Ann.

1881 281

State V. Sopher, 70 la. 494. . . 282

State V. Pratt, 20 la. 267 284

State V. Eeed, 62 He. 129 284

State V. Perkins, 3 Hawks (N.

C.) 377 284

State V. Edward, 13 S. C. 30. 285
State V. Beknapp, 39 W. Va.

427, 19 S. E. 507 285

State V. Dodson, 16 S. C. 453. 287

State V. Fuller, 39 Vt. 74. . . . 287
State V. Warknian, 15 S. C.

541 287

State V. Foster, 136 la. 527,

114 N. W. 361 288

State V. Lowery, 170 N. C. 730,

87 S. E. 62 288

State V. Busse, 127 la." 318.. 288
State V. Miller, 68 Wash. 239,

46 A. 752 288

State V. Knop, 70 Ohio 380, 71

N. E. 705, 1 Ann. Gas. 819. . 288
State V. Garrey, 25 La. Ann.

191 ' 289

State V. Staley, 14 Minn. 105. 291

State V. James, 54 Mo. 478. . . 291

State V. Guild, 10 N. J. L. 163 292

State V. Frcdricks, 85 Mo. 145 292
State V. Guar, 28 Minn. 426,

41 Am. Rep. 296 292

State V. Rush, 95 Mo. 1995, 8

S. W. 221 292

State V. Hodgkins, 19 Me. 155 295

State V. Libbey, 44 Mc. 469 . . 295
State V. Lash, 1 Harr. (N. J.)

380 295

State V. Hilton, 3 Rich. (S. C.)

424 205

State V. Britton, 4 McCurd,

(S. C.) 256 295

State V. Abbey, 29 Vt. 60 295

State V. West, 45 La. Ann.

928 296

State V. Nichold. 25 Ark. 74. . 300

State V. Murrell, 16 Ark. 384. 300

TO SECTIONS]

State V. Douglass, 26 Wis. 428,

7 Am. Rep. 87 300

State V. Messmore, 14 Wis. 163 300
State V. Farley, 8 Blackl.

(Ind.) 229 302

State V. Mooney, 74 N. C. 98. 302
State V. Wolfer, 53 (Minn.)

135, 39 Am. St. Rep. 582. . . 303
State V. Barnes, 17 Am. St.

Rep. 832 303

State V. Chanclor, 1 Strabb

347, 47 Am. Dec. 557 303

State V. Smith, 19 Am. Dec.

679 303

State V. Noore, 62 Mich. 496. 303
State V. Merrill, 16 Ark. 384.. 304

State V. Lock, 5 Ind. 359 305

State V. Nieholds, 26 Ark. 74,

7 Am. Rep. 600 305

State V. Barnes, 32 S. C. 14,

17 Am. St. Rep. 832, 32 S.

C. 14 308

State V. Sauvenet, 24 La. Ann.

119, 13 Am. Rep. 115 310

State V. People, 25 111. 17, 76

Am. Dec. 780 319

State V. Wilson, 2 Root

(Conn.) 62 319

State V. Watson, 8 S. W. 383. 321
State V. Everhart, 104 N. Y.

591 322

State V. Eisenhour, 132 Mo.

140 322

State V. Fallen, 79 Wash. 165,

126 Pac. 705 323

State V. Fallen, 77 Wash. 165,

176 Pac. 75 323

State V. James, 37 Conn. 355. 324
State V. Carter, 2 Ind. 204. . . 325
State V. Roth, 17 La. 336. ... 327
State V. Roth, 17 Iowa 336. . . 328
State V. Marvin, 35 N. H. 22. 328
State V. Lash, 16 N. J. L. 380,

32 Am. Dec. 397 328

State V. Cooper, 16 Vt. 551 . . . 328
State V. Kosky, 121 Iowa 507,

96 N. W. 1115 329

Table of Cases

13G;

[references art
state V. Fellows, 50 Wis. 65,

6 N. W. 239 329

State V. Lash, 1 Harrison 380,

32 Am. Dec. 397 329

State V. Ellis, 74 Mo. 385, 41

Am. Eep. 321 331

State V. Sanders, 30 la. 582. . 331
State V. Donavan, 61 la. 278,

16 N. W. 130-206 331

State V. Cutshall, 109 N. C.

7G4. Am. St. Rep. 599, 14 S.

E. 107 331

State V. Warren, 57 Mo. App.

502 332

State V. Weekly, 29 Ind. 206. 333
State V. Billings, 72 Mo. 662. . 333
State V. Perry, 50 N. C. 9, 69

Am. Dee. 768 334

State V. Faining, 94 N. C.

940, 53 Am. Rep. 653 334

State V. Davis, 80 N. C. 351,

30 Am. Rep. 86 334

State V. Huntley, 25 N. C.

(Ired.) 418, 40 Am. Dee.

416 335

State V. Summer, 5 Straub.

53 335

State V. Laneir, 71 N. C. 288. 335
State V. Huntlej', 40 Am. Dec.

416 335

State V. Snow, 18 Me. 346... 337
State V. Show, 79 Me. 306, 100

Pac. 78, 131 A. S. R. 298,

21 L. R. A. (N. S.) 27... 338
State V. Young, 139 Ala. 136,

36 So. 19, 101 A. S. R. 21.. 338
State V. Mortin, 87 Neb, 529,

127 N. W. 896, Ann. Cas.

1912 A 1125 338

State V. Jim, 8 Jones L. (N.

C.) 459 339

State V, Stewart, 6 Conn. 47.. 339
State V. Fish, 27 N. J. L. 323. 339
State V. Porter, 90 N. C. 719. 340
State V. Kenna, 63 Conn. 329,

28 Atl. 522 342

TO SECTIONS]

State V. Toole, 29 Conn. ,

76 Am. Dec. 602 342

State V. Sarvis, 55 Am. St.

Rep. 806, 32 L. R. A. 647. . 342
State V. Haynes, 66 Me. 307,

22 Am. Rep. 569 342

State V. Hannet, 54 Vt. 83 342

State V. Sarvis, 55 Am. St.

Rep. 806, 32 L. R. A. 647. . 342
State V. Sarvis, 45 S. C. 668,

24 S. E. 53, 55 A. S. R.

806, 32 L. R. A. 647 342

State V. Shaw, 79 Kans. 396,

100 Pac. 78, 131 A. S. R.

298, 21 L. R. A. (N. S.) 27. 342
State V. McGown, 20 Conn.

245, 52 Am. Dec. 336 342

State V. Haynes, 66 Me. 307,

22 Am. Rep. 569 343

State V. Show, 70 Kan. 306,

100 Pac. 78, 131 A. S. R.

208, 21 L. E. A. (N. S.) 27,

81 Am. Dec. 70, 16 Ann.

Cas. 807, see 101 A. S. R.

27 343

State V. Hall, 93 N. C. 57 . . . 344
State V, McGown, 20 Conn.

245 345

State V. Wolfinger, 20 Ind. 242 345
State V. Johnson, 19 la. 233. 345
State V. Young, 101 Am. St.

Rep. 24 345a

State V. Taylor, 47 Ore. 455,

84 Pac. 828, Ann. Cas. 627,

4 L. R. A. (N. S.) 417.... 34oa
State V. Dumas, 118 Minn. 77,

136 N. W. 814, 41 L. R. A.

(N. S.) 430, 6 L. R. A. (N.

S.) 805 345a

State V. Taylor, 47 Ore. 455,

84 Pac. 828, Ann. Cas. 627,

4 L. R. A. (N. S.) 417.... 345a
State V. Bowers, 35 S. C. 262,

14 S. E. 488, 28 A. S. R.

847, 15 L. R. A. 199 345a

State V. McLain, 43 Wash.

267, 86 Pac. 390, 10 Ann.

1368

Table of Cases

[refepiences ake

Cas, 321 345a

State V. Blackwell, 9 Ala. 79., 346
State V. Shepard, 10 la. 106.. 346
State V. Mitchell, 170 Mo. 633,
71 S. W. 175, 94 Am. St.

Kep. 763 347

State V. Baker, 65 N. C. 332. 348
State V. Johnson, 17 Tex. 515,

19 Am. Eep. 350 348

State V. Sims (S. C), 35

Strob. 137 348

State V. Shipman, 81 N. C.

513 348

State V. Rowls, 65 N. C. 334. . 348
State V. Davis, 1 Ired. (N.

C.) 125, 35 Am. Dec. 735.. 349
State V. Martin, 30 Wis. 216. 349
State V. Sliipman, 81 N, C.

513 349

State V. Rowls, 65 N. C. 334. 349
State V. Blackwell, 9 Ala. 79. 349
State V. Daniel, 136 N. C. 571,

48 S. E. 544, 103 A. S. E.

970 349

State V. Godfry, 17 Ore. 300,

20 Pac. 625, 11 A. S. R. 830 349
State V. Martin, 85 N. C. 508,

39 Am. Rep. 711 350

State V. Herron, 12 Mont. 230,

20 Pac. 810, 33 A. S. R. 576 351
State V. Daniel, 136 N. C. 571,

48 S. E. 544, 103 A. S. R.

970 351

State V. Herron, 12 Mont. 230,

33 A. S. R. 576 351

State V. Hampton, 63 N. C.

13 352

State V. Church, 63 N. C. 15. . 352

State V. Crow, 1 Ired. 375 354

State V. Vannoy, 65 N. C. 532. 354
Stale V. Sliipman, 81 N. C.

513 354

State V. Blackwell, 9 Ala. 79. 354
State V. Martin, 85 N. C. 508,

39 Am. Rep. 711 354

State V. Davis, 80 N. C. 351,

30 Am. Rep. 86 356

TO SECTIONS]

State V. Steel, 106 N. C. 766,

11 S. E. 478, 19 Am. St.

Rep. 573, 8 R. L. A. 516. . . 356
State V. Steel, 106 N. C. 766,

11 S. E. 478, 10 A. S. R.

573, 8 L. R. A. 516 356

State V. Kindry, 20 la. 567 . . 356
State V. Steel, 19 Am. St. Rep.

573 356

State V. Chovin, 7 la. 204 356

State v, McDonald, 7 Mo. App.

510 356

State v. Steele, 106 N. C. 766,

19 Am. St. Rep. 580 357

State V. Steele, 106 N. C. 766,

19 Am. St. Rep. 573 358

State V. Steele, 106 N. C. 766,

11 S. E. 478, 10 A. S. R.

573, 8 L. R. A. 516 358

State V. Williams, 27 Vt. 755. 359
State V. Misner, 50 la. 145,

32 Am. Eep. 128 359

State V. Alvord, 68 N. C. 332. 359
State V. Snowden, 12 Tex.

App. 105, 42 Am. Rep. 245. 259
State V. Yomig, 52 Ore. 227,

96 Pac. 1067, 132 A. S. R.

689, 18 L. R. A. (N. S.)

688 360

State V. Bright, 10 Tex. App.

68 361

State V. Sheppard, 10 la. 126 361
State V. Totman, 80 Mo. 125. . 361
State V. Swails, 8 Ind. 524... 364
State V. Wilson, 30 Conn. 500. 364
State V. Jordon, 75 N. C. 27. 364
State V. Calvin, 9 N. C. 717. . 364
State V. Bailer, 26 W. Va. 90. 364
State V. Mitchell, 170 Mo. 633,

71 S. W. 175, 94 A. S. R.

763 364

State V. Tayler, 47 Ore. 455,

84 Pac. 82, 8 Ann. Cas.

627, 4 L. R. A. (N. S.) 417. 364
State V. Hurley, 79 Vt. 28,

64 Atl. 78, 118 A. S. R. 934,

6 L. R. A. 804 366

Table of Cases

1360

[REFEREN'CES akk
State V. Wilson, 30 Conn. 500. 364
State V. Jordon, 75 N. C. 27 . . 364
State V. Calvin, 9 N. C. 717.. 364
State V. Bailer, 26 W. Va. 90. 364
State V. Mitcliel, 170 Mo. 633,

71 S. W. 175, 94 A. S. R.

763 364

State V. Taylor, 47 Ore. 455,

84 Pac. 82, 8 Ann. Cas. 627,

4 L. R. A. (N. S.) 417 364

State V. Hurley, 79 Vt. 28,

64 Atl. 78, 118 A. S. R. 934,

6 L. R. A. 804 365

State V. Avery, 7 Conn. 266.. 366
State V. Wilson, 30 Conn. 500. 368
State V. Summer, 2 Spur. 599. 370
State V. Swails, 65 Am. Dec.

772, 8 Ind. 524 371

State V. Donovan, 28 Del. 40,

90 Atl. 20 371

State V. Sulivan, 110 Mo. App.

75, 84 S. W. 105 372

State V. Kendall, 73 la. 255, 5

A. S. R. 677, 34 N. W. 843. 373
State V. Jarvis, 20 Ore. 437,

23 A. S. R. 141, 26 Pac. 302 373
State V. Oilman, 31 Am. Rep.

257, 69 Me. 118 374

State V. Marshall, 14 Ala. 411 375
State V. Allen, 47 Conn. 121. 376
State V. Hays, 78 Mo. 307... 376
State V. Eleck, 7 Johns. 68. . . 376
State V. Beal, 37 Ohio St.

108, 41 Am. Rep. 490 377

State V. Mitchel, 170 Mo. 633,

71 S. W. 175, 94 A. S. R.

763 377

State V. Fitzgerald, 40 La. 260,

31 Am. Rep. 148 377

State V. Boon, 57 Am. Dee.

555 378

State V. Elick, 52 N. C. 68. . . 378
State V. Hayes, 78 Mo. 307. . . 378
State V. McHaffey, 132 N. C.

1062, 44 S. E. 107 378

State V. Williams, 121 N. C.

628, 28 S. E. 405 378

TO .SECTlON.Sj

State V. Chitty, 1 Bailey 379. 380
State V. Stewart, 194 Mo. 245,

92 S. W. 878, 112 A. S. E.

529, 5 Ann. Cas. 963 388

State V. Sniffin, 44 Wash. 485,

12 Ann. Cas. 113, 87 Pac.

837, 120 A. S. R. 1009 389

State V. Johnson, 12 Minn.

476, 93 Am. Dec. 244 389

State V. Cooper, 103 Mo. 266,

15 S. W. 327 389

State V. Bently, 75 Vt. 163,

53 Atl. 1068 389

State V. Davis, 14 S. E. (N.

C.) 55 391

State V. Cooper, 15 S. W. 327 . 391
State V. Bittick, 15 S. W. 325. 391
State V. Zichfeld, 23 Nev. 304,

46 Pac. 802, 62 A. S. R.

800, 34 L. R. A. 784 392

State v. Abbey, 29 Vermont 60 393
State v. Johnson, 12 Minn.

476 393

State V. Catchall, 110 N. C.

538, 15 S. E. 261, 16 L. R.

A. 130 398

State ^. Kay, 151 N. C. 710,

66 S. E. 204, 134 A. S. R.

1005, 10 Ann. Cas. 556 398

State V. Stewart, 194, Mo. 345,

92 S. W. 878, 112 A. S. R.

529, 5 Ann. Cas. 963 398

State V. McDonald, 6 N. E.

607, Ind 400

State V. Keys, 8 Vt. 57 400

State V. Carpenter, 20 Vt. 9. 400
State V. Binbaset, 32 Mo. 276. 400
State V. Howard, 66 Minn. 309,

68 N. W. 1096, 61 A. S. R.

403, 34 L. R. A. 178 402

State V. Ellis, 33 N. J. L. 102,

97 Am. Dec. 713 403

State V. Keys, 8 Vt. 57 403

State V. Ellis, 97 Am. Dec.

713, 33 N. J. L. 707 403

State V. Jackson (Me.), 40

Am. Kcp. 342 404

1370

Table of Cases

[references are

state V. Pendy, 36 Wis. 224,

17 Am. Kep. 485 404

State V. Collins, 72 Mo. 13... 4U4
State V. Lehman, 182 Mo. 424,
81 S. W. 1118, 103 A. S. K.

689, 66 L. R. A. 400 404

State V. Ellis, 33 N. J. L. 102,

97 Am. Dec. 707 406

State V. Bowles, 70 Kans. 821,

69 L. K. A. 176 406a

State V. Ellis, 33 N. J. L. 102,

97 Am. Dec. 707 and note. . 407
State V. Weber, 56 S.W. 893.. 409
State V. Jenkins, 50 N. C. 430 409

State V. Dan, 18 Nev. 345 409

State V. Williams, 21 S. E.

721 409

State V. Reid, 20 la. 413 411

State V. Vierck, 23 S. D. 166,
120 N. W. 1098, 139 A. S.

R. 1040 and note 411

State V. Abbey, 109 la. 61, 80
N. W. 225, 77 A. S. R. 520,

46 L. R. A. 862 412

State V. Stickney, 53 Kans.
308, 36 Pac. 714, 42 A. S. K.

284 412

State V. Carrie, 13 N. D. 655,
102 N. W. 875, 112 A. S. R.

687, 69 L. R. A. 405 412

State V. Abbey, 109 la. 61,
80 N. W. 225, 77 A. S. R.

520 414

State V. Hayes, 105 Mo. 76,

24 A. S. R. 360 415

State V. Cooper, 16 Vt. 551.. 416
State V. Ryan, 12 Nev. 401. . . 416
State V. Lymus, 26 Ohio St.

400 416

State V. BuUett, 64 N. J. L.

379 416

State V. Leaden, 35 Conn. 515. 417
State V. Seymore, 36 Me. 225. 417

State V. Ruby, 61 la. 86 417

State V. YouriR, 12 N. C. 357,
17 Am. Dec. 571...'. 418

TO SECTIONS]

State V. Stuart, 59 Vt. 273, 9

Atl. 550, 59Am. Rep. 710. . . 418
State V. Assurance Co., 251
Mo. 278, 158 S. W. 640, 16

L. R. S. (N. S.) 955 418

State V. Stewart, 50 Vt. 273,

9 Atl. 550, 50 Am. Rep. 710 418
State V. Xorton, 26 N. J. L.

33 and 34 419

State V. Biddle, 12 Minn. 164. 419
State V. Ohio R. R. Co., 23

Ind. 363 419

State V. Rowby, 12 Conn. 101. 419
State V. Murray, 15 Me. 100. . 420
State V. Cawood, 2nd Stew.

360 420

State V. Sitter, 57 Conn. 461,

18 Atl. 782, 14 A. S. R. 12. 420
State V. Blackman, 5 Har. &

J. 317 420

State V. Strow, 42 N. H. 392. 420
State V. Ritchie, 9 N. J. L.

293 420

State V. Noyes, 25 Vt. 415. . . 420
State V. Noyes, 25 Vt. 415-421 421
State V. Mayberry, 48 Mo. 218 421
State V. Murphy, 6 Ala. 765,

41 Am. Dec. 79 421

State V. Muney, 15 Me. 100. . . 421
State V. Sitter, 57 Conn. 461,

18 AtL 782, 14 A. S. R. 121. 421
State V. Glidden, 55 Conn. 46,

8 Atl. 800, 3 A. S. R. 23 . . . 424
State V. Switzer, 63 Vt. 604,

25 A. S. R. 789, 22 Atl. 724 424
State V. Rickey, 9 N. J. 1293 . 425
State V. DeWitt, 2 Hill S. C.

282, 27 Am. Dec. 371 425

State V. Crowley, 41 Wis. 271,

22 Am. Rep. 719 425

State V. Hickling, 41 N. J. L.

208 426

State V. Coward, Slaw. 360... 426
State V. Donalson, 3 Vroom.

151 427

State V. McNally, 56 Am. Dec,
650 427

Table of Cases

1371

[RKrERENCES ARK

State V. Murphey, 41 Am. Dec.

79 ; 427

State V. Cole, 39 N. J. L. 324. 427
State V. Glidden, 55 Conn. 46,

8 Atl. 800, 3 A. S. R. 23 427

State V. Davis, 88 S. C. 229, 70

S. E 427

State V. Huegin, 110 Wis. 189,

85 N. W. 1046, 62 L. R. A.

700 428

State V. Dewitt, 2 Hill 283 .. . 429
State V. Noyes, 25 Vt. 415... 429
State V. Bartlett, 30 Me. 132. 429
State V. Donalson, 32 N. J. L.

151, 90 Am. Dec. 649 430

State V. Wilson, 30 Conn. 507. 430
State V. Glidden, 55 Conn. 76,

3 Am. Eep. 23 430

State V. Stockford, 77 Conn.

227, 58 Atl. 760, 107 A. S.

E. 28 430

State V. Stewart, 59 Vt. 273,

9 Atl. 550, 69 Am. Rep. 710 430
State V. Duncan, 78 Vt. 364,

63 Atl. 225, 112 A. S. E.

922, 6 Ann. Cas. 602, 4 L.

E. A. (N. S.) 1144 430

State V. Stewart, 59 Vt. 373, 9

Atl. 550, 59 Am. Eep. 710. 431
State V. Duncan, 78 Vt. 264,

63 Atl. 225, 12 A. S. R. 922,

6 Ann. Cas. 602, 4 L. R. A.

(N. S.) 1144 431

State V. Van Pelt, 136 N. C.

663, 40 S. E. 177, 1 Ann.

Cas. 495, 68 L. E. A. 760,

note to 1 Am. Cas. 508 431

State V. Glidden, 55 Conn. 46. 431
State V. Glidden, 55 Conn. 46,

Am. & Eng. Enc. Law pp.

609-609 432

State V. Stewart, 59 Vt. 273, 9

Atl. 550, 59 Am. Eep. 710. 432
State V. Van Pelt, 136 N. C.

603, 40 S. E. 177, Ann. Cas.

495, 68 L. R. A. 760 432

TO SECTIONS]

State V. Stockford, 77 Conn.
227, 58 Atl. 769, 107 A. S.

R. 28 432

State V. Paten, 28 la. 554 434

State V. Mayberry, 48 Me. 218 434
State V. Barliam, 15 N. H.

396 434

State V. Ormislon, 66 Iowa

143, 27 N. W. 37 435

State V. Barglett, 30 Me. 132. 435
State V. Noyes, 25 Vt. 415... 435
State V. Van Pelt, 136 N. C.
633, 49 S. E. 177, 1 Am. Cas.

495, 68 L. R. A. 760 435

State V. Stewart, 59 Vt. 273,
9 Atl. 559, 59 Am. Eep.

710 435

State V. Crowley, 41 Wis. 271,

22 Am. Rep. 719 435

State V. Wilson, 30 Conn. 500. 436
State V. Reply, 31 Me. 389... 436
State V. Buchanan, 5 Harrison
and Johnson 317 (Md.), 9
Am. Dec. 531, p. 571, note

and authorities 436

State V. Huegin, 110 Wis. 189,
85 N. W. 1046, 62 L. R. A.

700 436

State V. Crowley. 41 Wis. 271. 437
State V. McCahill, 30 N. W.

Eep. 553 439

State V. Jackson, 7 S. C. 283. 440
State V. Buchanan, 35 La.

Ann. 89 442

State V. Larkiu, 49 N. H. 44. 442
State V. Nash, 7 Iowa 347-84. 442
State V. Weaver, 57 Iowa 730,

11 N. W. 675 443

State V. Taylor, 70 Vt. 1, 39
Atl. 447, 67 A. S. E. 648,

42 L. E. A. 673 443

State V. Ross, 29 Mo. 32-50. . . 443
State V. Crowley, 33 La. Ann.

672 443

State V. :MeKonsio. 42 Me. 3i>2 445
State V. Moore, 6 Ind. 436... 447

1372

Table of Cases

[references are
state V. Mathews, 37 N. H.

450 450

State V. White, T. M. T. Cholt

136 456

State V. Capp, 15 N. H. 212.. 456
State V. Middlebrook, 43 Conn.

257 456

State V. Woodfine, 5 Ired. 199. 456
State V. King, 17 La. Ann.

696, 17 So. 254, 49 A. S. E.

374 458

State V. Superior Court, 56

Wash. 649, 106 Pac. 150, 28

L. E. A. (N. S.) 576 459

State V. Bland, 189 Mo. 197,

88 S. W. 28, 3 Ann. Cas.

1044 459

State V. Towle, 42 N. N, 540 . . 459
State V. Galloway & Ehea, 98

Am. Dec. 411 460

State V, Marrell, 16 Ark. 384. 460
State V. Woodfin, Ired. 152, 42

Am, Dec. 101 and note 460

State V. Galloway & Ehea, 98

Am. Dec. 404 461

State V. Brewster, 7 Vt. 118.. 461

State V. Johnson, 2, 385 462

State V. Galloway, 5 Cold.

(Tenn.) 326, 98 Am. Dec.

404 462

State V. Sauvinct, 24 La. Ann.

119, 13 Am. Eep. 115 464

State V. Thurmond, 37 Tex.

340 464

State V. Trugwell, 10 Wash.

238, 52 Pac. 1056, 43 L. E.

A. 717 466

State V. Frew, 24 W. Va. 416. 466
State V. Gibson, W. Va., 10

S. E. 58 467

State V. Crumm, 7 N. D. 299. . 467
State V. Garland, 25 La. Ann.

532 467

State V. Kaiser (Ore.), 8 L.

R. A. 584, note 586 and

cases there cited 468

TO SECTIONS]

State V. Shepherd, 177 Mo.

205, 76 S. W. 79, 99 A. S.

E. 624 468

State V. Johnson, 77 Ohio St.

461, 83 N. E. 702, 21 L. E.

A. (N. S.) 905 468

State V. Hutchings (Han.), 26

P. 937 469

State V. Vincent, 26 P.

(Kans.) 939 469

State V. Woodfin, 5 Ired. (N.

C), 42 Am. Dec. 161 470

State V. Mathews, 37 N. H.

400 470

State V. Morrill, 16 Ark. 384. 472
State V. Merritt, 5 Sneed 67 . . 474
State V. Morris, 33 N. J. L.

142 474

State V. McEntyre, 3 Ired.

(N. C.) 171 475

State V. Celeman, 99 Minn.

487, 110 N. W. 5, 116 A. S.

E. 441, note 476

State V. Singo, 89 Ind. 264. . . 479
State V. Moyer, 58 W. Va. 146,

52 S. E. 30, 6 Ann, Cas, 344 479
State V. Buttler, 26 Minn. 90. 481
State V. Wingo, 89 Ind. 202.. 481
State V. Parmer, 32 La. Ann.

565 481

State V. Polard, 33 La. Ann,

524 481

State V. Staler, 36 la. 321 482

State V, Orwing, 24 la, 102 . , 482

State V. Sage, 22 Idaho 482

State V. Farley, 7 W. Va, 100,

76 S. E. 132, 42 L, R, A. (N.

S.) 498 282

State V. Tumey, 3 Cr. Lw.

Mag. 504 483

State V. Williamson, 21 L. E.

A. 527, 118 Mo. 146 483

State V. Casey, 207 Mo. 1, 105 484
State V. Costin, 4 Am. Cr. Rep.

169, 80 N. C. 511 485

TAjiLE OF Cases

i:{

( •)

[KEFERENCES ABE TO SECTIONS]

487
487

488

489

State V. Roubles, 43 La. Ann.

200, 9 So. 435, 20 A. S. R.

179 487

State V, Farley, 71 W. Va. 100,

76 S. E. 134, 42 L. R. A.

(N. S.) 498 487

State V. Belden, 35 La. Ann.

823

State V. Brandt, 41 la. 593..
State V. Farley, 71 W. Va.

100, 76 S. E. 134, 42 L. R.

A. (N. S.) 498

State V. Meyer, 58 W. Va. 146,

52 S. E. 30, 6 Ann. Cas. 344.
State V. Brj-an, 75 N. C. 104. 489a
State V. Foster, 37 la. 146... 490
State V. Lyon, 45 N. Y. L. 272 491
'state V. Sage, 22 Idaho 489,

126 Pac. 403, Ann. Cas.

1914 B 251 491

State V. McFetridge, 84 Wis.

473, 54 N. W. 1, 998, 20 L.

R. A. 223

State V. Beach, 147 Ind. 74,

43 N. E. 940, 36 L. R. A.

170

State V. Trolson, 21 Nev. 419,

9 Am. Cr. Rep. 243 491

State V. Pratt, 98 Mo. 482 491

State V. Combs, 47 Kans. 136. 491
State V. Patterson, 66 Kans.

447 491

State V. Noland, 19 S. W.

(Mo.) 715 491

State V. Pierce, 42 N. W. 181,

77 la. 245 491

State V. Duerksen, 8 Okla. Cr.

Rep. 601, 129 Pac. 881, 52

L. R. A. (N. S.) 1013 and

note 492

State V. Boxter, Ohio St., 104

S. E. 331, 52 L. R. A. 1019,

note 1025 492

State V. Renick, 33 Ore. 584,

56 Pac. 275, 72 A. S. R.

758, 44 L. R. A. 766 493

491

State V. Briggs, 74 Kans. 377,

86 Pac. 447, 10 Ann. Cas.

904, 7 L. R. A. (N. S.)... 495
State V. Ferris, 171 Ind. 562,

86 N. E. 993, 4 L. R. A.

(N. S.) 173 495

State V. Collery (La.), 2 So.

496 495

State V. Whitney, 3 S. W. 537 495
State V. Montgomery, 56 la.

195 N. W. 126 495

State V. Vorback, 66 Mo. 168. 495
State V. Cowdin, 28 Kan. 229. 495
State V. Thatcher, 35 N. J. L.

445 496

State V. Leyes, 196 Mo. 136,

93 S. W. 801, 7 Ann. Cas.

23, 6 L. R. A. (N. S.) 369. 496
State V. Fooks, 21 N. W. 561,

56 la. 196 496

State V, Goble, 60 la. 447, 15

N. W. 272 497

State V. Swan, 55 Wash. 67,

104 P. 145, 133 A. S. R.

1024, 19 Ann. Cas. 1129, 24

L. R. A. 575 497

State V. Bohle (Mo.), 81 S.

W. 179 498

State V. Delyon, 1 Bay (S. C.)

53 499

State V. Mathews (Kans.), 10

L. R. A. 308 499

State V. Mathews, 10 Tex.

App. 279 500

State V. Mathews, 44 Kans.

662, 25 P. 36 500

State V. Field, 118 Ind. 491,

21 N. C. 252 500

State V. Young, 76 N. C. 258. 500
State V. Lambeth, 80 N. C.

296 500

State V. Wilkinson, 103 N. C.

337, 9 S. F. 415 500

State V. Ilammelsy, 52 Ore.

156, 96 P. 865, 132 A. S. R.

686, 17 L. R. A. (N. S.) 244 501

1374

Table of Cases

[references are

state V. Foxton, 166 la. 181,
147 N. W. 347, 52 L. E. A.

919 501

State V. Thatcher, 35 N. J. L.

445 503

State V. Neunier (la.), 24 N.

W. 247, 66 la. 634 503

State V. Wison (Mo.), 44 S.

W. 722 503

State V. Stone, 95 S. C. 390,
76 S. E. 108, 49 L. E. A.

(N. S.) 574 503

State V. Mathew, 44 Kan. 596,

25 P. 36, 10 L. E. A. 308.. 503
State V. McCorniick, 57 Kans.
440, 46 P. 777, 57 A. S. E.

341 503

State V. Ham, 93 Mo. 190, 6

S. W. 96 503

State V. Asher, 50 Ark. 427.. 504
State V. Miller, 47 Ore. 562,
85 Pac. 81, 6 L. E. A. (N.

S.) 265 505

State V. Mathews, 44 Kans.
591, 25 P. 36, 10 L. E. A.

308 505

State V. Chune, 82 Kans. 338,
108 P. 789, 20 Ann. Cas. S.
W. 164, 27 L. E. A. (N. S.)

1003 506

State V. Warren, 109 Mo. 430,
10 S. W. 101, 32 A. S. E.

681 506

State V. Stratton, 27 la. 420,

1 Am. Eep. 282 507

State V. Mitton, 37 Mont. 366,

96 P. 926, 127 A. S. E. 732. 507
State V. IliRcins, 60 Minn. 1,
61 N. W. 816, 51 A. S. E.

490, 27 L. E. A. 74 507

State V. Hindry, 156 Ind. 392,
50 N. E. 1041, 54 L. E. A.

794 507

State V. Gherkin, 7 Ired. 7,

206 507

State V. Millner, 33 S. W. 15.. 508
State V. Krocgcr, 47 Mo. 552. 508

TO SECTIONS]

Stai;fl V. McLean, Aikens 311.. 508

State V. Thornberry, 6 Ired.

79 508

State V. Davis, 53, 252, 5 N.

W. 147 508

State V. Taylor, 46 La. Ann.
1332, 16 So. 190, 49 A. S.

E. 351 509

State V. Wilson, 28 Minn. 52,
3 Cr. L. Mag. 124, A. N. E.
28, In Ee Tully, 20 Fed.

Eep. 812 509

State V. Shartliff, 18 Me. 368. 511
State V. Young, 88 Am. Dec.

212, 46 N. H. 266 512

State V. Chance, 82 Kans. 392,

108 P. 791, 20 Ann. Cas. 134 512
State V. Thompson, 19 So. 299. 516
State V. Johnson, 96 Am. Dec.

158, 26 la. 407 516

State V. Fisher, 65 Mo. 437.. 516
State V. Tobie, 42 S. W. 1079 516
State V. Calkins, 73 la. 128,

34 N. W. 777 518

State V. Cross, 101 N. C. 770,

7 S. E. 715, 9 A. S. E. 53.. 518
State V, Sherwood, 90 la. 550,
58 N. W. 911, 48 A. S. E.

461 519

State V. Blogitt, 143 la. 578,
121 N. W. 685, 21 Ann. Cas.

231 519

State V. Tingler, 9 S. E. 935,

32 W. Va. 546 520

State V. Callahan, 24 N. E.

(Ind.) 732, 124 Ind. 364... 520
State V. Callendine, 8 la. 288. 520
State V. Johnson, 26 la. 407,

96 Am. Dec. 158 520

State V. Warren, 109 Mo. 432. 521
State V. Nelson, 28 La. Ann.

46 521

State V. Fisher, 58 Mo. 256.. 521
State V. Means, 47 La. Ann.

1535, 13 So. 514 521

State V. Fislier, 65 Mo. 438.. 522

Table of Cases

1373

[rkferences are

State V. Stevens, 45 La. Ann.

702, 12 So. 883 522

State V. McKiernan, 17 Nov.

227, 30 P. 831 522

State V. Clement, 42 La. Ann.

583 523

State V. Blanchard (la.), 38

N. W. 519, 38 N. W. 519.. 524
State V. Hodges, 45 (Mo.) S.

W. 1093 525

State V. Meyers, 82 Mo. 558.. 525
State V. Hodges, 45 S. W. 1093 525

State V. Aims, 2 Me. 365 527

State V. Weimes, 66 Mo. 13. . . 529
State V. Hardz, 47 la. 647, 29

Am. Rep. 496 530

State V. Vance, 17 U. 138 530

State V. Jones, 78 Mo. 77, 47
Am. Eep. 92, Am. & Eng.

Encl. Vol. 9, P. 589 530

State V. Douglass, 28 W. Va.

297 530

State V. John, 172 Mo. 220,
72 S. W. 525, 95 A. S. E.

513 531

State V. Jackson, 36 S. C. 487,

15 S. E. 550, 31 A. S. R. 890 531
State V. Doherty, 72 Vt. 381,

48 Atl. 658, 82 A. S. R. 951. 532
State V. Legg, 50 W. Va. 315,
53 S. E. 545, 3 L. R. A. (N.

S.) 1152 532

State V. Moore, 25 la. 128, 95

Am. Dec. 776 533

State V. Landgraf, 95 Mo. 97,

8 S. W. 237, 6 A. S. R. 26. 533
State V. Alexander, 30 S. C.
74, 8 S. E. 440, 14 A. S. R.

879 533

State V. Johnson, 47 N. C. 247,

64 Am. Dec. 742 534

State V. Wood, 53 Vt. 560... 536
State V. Maren, 2 Ala. 275... 536
State V. Johnson, 47 N. C. 247,
State V. Williams, 2 Tex. App.
271 538

TO SECTIONS]

State V. Cooper, 22 N. J. L.

52, 57 Am. Dec. 214 538

State V. Winthrop, 43 la. 519,

22 Am. Rep. 527 538

State V. , 7 Tex. App.

570 538

State V. Hill, 4 D. & B. 491. . 539
State V. Evans, 44 Miss. 762 . . 539
State V. King, 24 Utah 482,

68 Pac. 418, 91 A. S. R. 808 541
State V. Lake, 80 N. C. 403. . . 542
State V. Waggoner, 78 Mo.

644, 47 Am. Rep. 131 542

State V. Bottoms, 10 Humph.

(Tenn.) 103 542

State V. Wells, 61 la. 620, 17

N. W. 90, 47 Am. Rep. 822. 542
State V. O 'Hara, 92 Mo. 59 . . 643
State V. Robinson, 73 Mo. 306,
see 9 Am. & Eng. Enc. 566

and 567 544

State V. Hill, 4 D. & B. 491

(N. C.) 545

State V. Brown, 58 Ind. 159. . 545
State V. Hocket, 70 la. 442.. 545
State V. Spangler, 40 la. 540. 545
State V. Hill. 4 D. & B. 564. . . ' 545
State V. Cooley, 19 N. M, 91,
140 Pac. 1111, 52 L. R. A.

(N. S.) 230 545

State V. Harlley, 185 Mo. 669,
84 S. W. 910, 105 A. S. R.

608 545

State V. Averill, 85 Vt. 115,
81 Atl. 461, Ann. Cas.

1914 B 1005 545

State V. Sealous Grugin, 42 L.

R. A. 774 545a

State V. Hill, 4 D. & B. 491. . 546
State V. Samuels, 48 N. C. 74,
64 Am. Dec. 596 (3 Jones

Law) 547

State V. Neivilles, 6 Jones,

453 547

State V. Grugin, 147, 42 L. R.
A. 774 548

1376

Table of Cases

[references are

State V. Lowery, 4 Nev. 161-

170 548

State V. Croton, 6 Ired. 164. .. 548
State V. Croton, 6 Ired. 164. . . 549
State V. Alford, 80 N. C. 445. 549
State V. McDaniel, 8 Miss. 411 549
State V. Lambert, 23 Miss. 322 549
State V. Benham, 23 la. 154,

92 Am. Dee. 417 549

State V. Thompson, 9 la. 188,

74 Am. Dec. 342 549

State V. Shippey, 10 Minn.

223, 88 Am. Dee. 70 549

State V. Oliver (Del.), 2 Hous-
ton 585 549

State V. Stockston, 25 Tex. 776 549
State V. Eoberts, 14 Mo. 146. . 549
State V. Level, 23 la. 304, 20

Tex. App. 360 549

State V. Evans, 161 Mo. 95,

61 S. W. 500, 84 A. S. E.

669 549

State V. Evans, 161 Mo. 95,

61 S. W. 690 550

State V. Hunter, 106 N. W.

796, 8 L. E. A. 529 550

State V. Taylor (76 Vt. 1), 42

L. R. A. 673 and note there-
to 550

State V. Adams, 78 la. 292, 43

N. W. 194 551

State V. Taylor, 70 Vt. 1, 67 A.

S. R. 648, 39 Atl. 447 551

State V. Abarr, 49 la. 185 552

State V. McNabb, 20 N. H.

160 552

State V. Smith, 32 Me. 369, 54

Am. Dee. 578 552

State V. Meyers, 99 Mo. 107,

12 S. W. 516 552

State V. O 'Brian, 32 N. J. L.

169 552

State V. Dorsey, 118 Ind. 167,

lOA. S. E. Ill 552

State V. Harris, 1 Jones 190. . . 555

TO SECTIONS]

State V. Chandler, 5 La. Ann.

490 556

State V. Chopin, 10 La. Ann.

458 559

State V. O'Connor, 31 Mo. 389 556
State V. Perder, 27 Fla. 370,

26 A. S. R. 75 556

State V. Scott, 2 Head 217. . . 557
State V. Benham, 23 la. 154,

92 Am. Dec. 47 558

State V. Hill, 4 D. & B. 496. . 558
State V. Perkins, 88 Conn. 360,

91 Atl. 265, L. R. A. 1915 A

73 559

State V. Patterson, 12 Am. L.

Reg. N. S. 647 559

State V. Moore, 31 Conn. 470,

83 Am. Dec. 159 560

State V. Isone, 25 Tex. 74 563

State V. Waggoner, 33 Ind. 533 564
State V. Morgan, 3 Ired. 188

(N. C), 38 Am. Dee. 714.. 564
State V. Stockton, 25 Tex. 777. 564
State V. Mitchell, 41 Ga. 537. . 564
State V. Burwell, 63 N. C. 561 564
State V. Harrell, 10 Am. St.

294, 97 Mo. 105 565

State V. Smith, 10 Nev. 106.. 566
State V. Barr, 11 Washington

481, 48 A. S. E. 890, 39 P.

1080 667

State V. Moore, 31 Conn. 479,

83 Am. Dec. 159 567

State V. Nicholds, 8 Conn. 496 569
State V. Johnson, 4 Mo. 618.. 569
State V. Meadows, 18 W. Va.

658 569

State V. Hickam, 95 Mo. 322,

6 A. S. E. 54 569

State V. South, 28 N. J. L. 28,

75 Am. Dec. 456 570

State V. Powell, 103 N. C. 421,

9 S. E. 627, 14 A. S. E. 821,

4 L. E. A. 291 570

State V. Parker, 34 Ark. 158,

30 Am. i?cp. 5 571

State V. Moore, 11 Ired. 70. . . 571

Table of Cases

137

[references are
State V. Klinkcnberg, 76 Wash.

466, 136 Pac. Ann. Cas.

1915 D 468, 49 L. R. A. (N.

S.) 965 572

State V. Fox, 83 Conn. 286, 76

Atl. 302, 19 Ann. Cas. 682,

see 49 L. R. A. (N. S.) 965. 572
State V. Krider, 78 N. C. 481. 573
State V. Shaw, 60 L. E. A. 481 573
State V. Geer, 13 L. R. A. 804,

161 N. S. 618, 40 L. ed. 793 573
State V. Repp, 104 la. 305,

73 N. W. 829, 65 A. S. R.

463, 40 L. R. A. 687 573

State V. Harrimon, 75 Me. 662,

46 Am. Rep. 423n 574

State V. Lathom, 35 N. C. 38

(13 Ired. L.) 574

State V. Sumner, 2 Ind. 377... 574
State V. Marshall, 13 Tex. 55. 574
State V. James, 52 N. H. 67. . 576
State V. Bishop, 4 S. E. 357,

98 N. C. 773 577

State V. McCoy, 17 N. C. 474. 577
State V. Fairclaugh, 29 Conn.

47, 76 Am. Dec. 690 578

State V. Ruffin, 164 N. C. 416,

79 S. E. 417, 47 L. R. A.

(N. S.) 852 578

State V. Ruffin, 164 N. C. 416,

79 S. E. 417, 47 L. R. A. (N.

S.) 852 579

State V. Fairclaugh, 29 Conn.

47, 76 Am. Dec. 690 579

State V. Fairclaugh, 27 Conn.

47 579

State V. Dapke, 68 Mo. 208.. 580
State V. Courtsol, 89 Conn.

564, 94 Atl. 973, L. R. A.

1915 A 465 581

State V. Clifford, 14 Nev. 72,

33 Am. Rep. 526 581

State V. Dean, 49 la. 150, 31

Rep. 143 581

State V. Wiston, 9 Conn. 527. 581
State V. Conway, 18 Mo. 321. . 581
State V. Mead, 27 Vt. 722. .. . 582
C. L.— 87

TO sections]

State V. Grant, 10 S. E. 554,

104 N. C. 908 582

State V. Shields, 89 Mo. 259,

1 S. W. 247 582

State V. Scripture, 42 N. H.

485 582

State V. Rand, 38 N. H. 216. . 582
State V. Edwards, 51 W. Va.

220, 41 S. E. 429, 59 L. R.

A. 465 583

State V. Edwards, supra 583

State V. Brown, 25 la. 561... 583
State V. Coombs, 55 Me. 477 . . 583
State V. Stone, 68 Mo. 101 . . . 584
State V. Humphrey, 32 Vt.

569, 78 Am. Dec. 605 584

State V. Parker, 26 Atl. L. J.

423 585

State V. Chambers, 22 W. Va.

770, 46 Am. Rep. 550 586

State V. Johnson, 12 S. W.

500 587

State V. Slengerland, 19 Nev.

135 587

State V. Wood, 46 la. 116 587

State V. Cliford, 14 Nev. 72, 33

Am. Rep. 526 587

State V. Humphrey, 32 Vt. 569,

78 Am. Dec. 605 588

State V. Holmes, 57 Am. Dec.

369 589

State V. Humphrey, 32 Vt. 569,

78 Am. Dec. 606 589

State V. Holmes, 57 Am. Dec.

271 589

State V. Maggard, 160 Mo.

469, 61 S. W. 184, 83 A. S.

R. 484 590

State V. Riley (Mo.), 13 S. W.

1036 590

State V. Daniels, 118 lU. 301. 590
State V. Doppke, 68 Mo. 208. . 591
State V. Shields, 89 Mo. 259. . 591
State V Jenkins, 78 N. C. 478. 591
State V. Allen, 9 S. E. 626. . . 591
State V. Parnell, 9 S. E. 627,

103 N. C. 424 591

1378

Table of Cases

[references are

state V. Bench, 68 Mo. 78 591

State V. Morgan, 69 S. W. 970 691
State V. Jansen, 22 Kans. 498. 593
State V. Hayes, 105 Mo. 76,

24 A. S. E. 360 593

State V. Hull, 33 Ore. 56, 72

A. S. K. 694 593

State V. Turner, 19 la. 144. . . 597
State v. Guild, 149 Mo. 370,

73 A. S. K. 395 598

State v. Haskins, 109 la. 656,

80 N. W. 1063, 77 A. S. E.

560, 47 L. E. A. 223 602

State V. Herrick (Wis.), 3 Cr.

Law Mag. p. 177 602

State V. Sheridan, 14 Ida. 222,

93 P. 656, 15 L. E. A. (N.

S.) 497 605

State V. Brady, 44 Kans. 435,

21 A. S. E. 296 605

State V. Burnham, 9 N. H. 34,

31 Am. Dec. 217 605

State V. Smiley, 37 Ohio St.

30, 41 Am. Eep. 487 605

State V. Torbusgh, 32 S. Dak.

370, 143 N. W. 279, Ann.

Gas. 1916 A 424 606

State V. Sefrit, 82 Wash. 520,

144 P. 725 606

State V. Londale, 48 Wis. 348,

4 N. W. 390 611

State V. Londale, 48 Wis. 348,

4 N. W. 390 612

State V. Avery, 7 Conn. 226.. 617
State V. Herrick, 3 Cr. Law.

Mag. 179 617

State V. Hunter, 106 N. C. 796,

11 S. E. 366 621

State V. Eollins, 8 N. H. 550. 622
State V. Watts, 48 Ark. 56, 3

A. S. E. 216 625

State V. Johnson, 58 Ohio St.

Eep. 417, 51 N. E. 40, 65 A.

S. E. 770 630

State V. Conahan, 10 Wash.

268 630

State V. Briley, 8 Port. 412.. 630

TO SECTIONS]

State V. Ma Foo, 110 Mo. 7,

33 A. S. E. 415 630

State V. Bowers, 24 Tex. App.

542, 5 A. S. E. 901 630

State V. Hair, 37 Minn. 351.. 631

State V. Cody, 18 Ore. 506 631

State V. Johnson, 58 Ohio St.

417, 65 A. S. E. 770 : 632

State V. Vowels, 4 Ore. 325. . . 632
State V. Davis, 14 E. L 281.. 634
State V. Evans, Ired. N. C. 603 638
State V. Millard, 18 Vt. 574,

46 Am. Dec. 170 645

State V. Waller, 3 Mur. 229. . 651
State V. Powell, 70 N. C. 68 . . 651
State V. Brown, 38 Kans. 390,

16 Pac. 259 651

State V. Graham, 3 Sneed

(Tenn.) 134 651

State V. Locker, 50 N. J. L.

512, 14 Ayl. 749 651

State V. Doyton, 23 N. J. L.

40, 53 Am. Dec. 270 653

State V. Shupe, 16 la. 36, 85

Am. Dec. 485 653

State V. Shupe, 16 la. 26 655

State V. Dayton, 53 Am. Dec.

270 657

State V. Kane, 26 Me. 33 657

State V. Dayton, 53 Am. Dec.

270 659

State V. Gates, 17 N. H. 373. . 659

State V. Trask, 42 Vt. 152 659

State V. Shupe, 16 la. 26, 86

Am. Dec. 496 and note.... 660
State V. Townley, 67 Ohio St.

21, 65 N. E. 149, 93 A. S.

E. 626 and note 660

StAte V. Jackson, 36 Ohio St.

281 661

State V. McClusky, 8 McCord

L. 308 . 661

State V. Gallimon, 24 N. C.

(2 Ired.) 374 663

State V. Wimberly, 40 La.

Ann. IGO, 4 So. 161 663

Tabi.e of Cases

i:i7!»

[rf.ferences are

state V. McCone, 59 Vt. 117,

7 Atl. 406 663

State V. Cruikhank, 6 Blackl.

62 665

State V. Knox, Phill. (N. C.)

312 665

State V. Conner, 3 McLean 573 666
State V. Meadow, 54 Vt. 126.. 667
State V. Peters, 107 N. C. 876. 669
State V. Gilliland, 51 W. Va.

278, 41 S. E. 131, 90 A. S.

E. 793 670

State V. Gilliland, 51 W. Va.

278, 90 A. S. K. 793 671

State V. Gilliland, 51 W. Va.

278, 90 A. S. R. 793 672

State V. Chandler, 31 Kans.

201, 1 Pac. 787 674

State V. Pamenter, 60 Kans,

857, 56 Pac. 1132 674

State V. Locust, 93 N. C. 577. 674
State V. Sayer, 35 Ind. 379.. 674
State V. Steward, 48 Ind. 146. 674
State V. Sargent, 74 Minn. 245,

76 N. W. 1129 675

State V. Bass, 75 N. C. 139. . . 675
State V. Davis, 138 Ind. 11, 37

N. E. 397 675

State V. Leach, 18 Am. Dec.

118 677

State V. Lewis, 19 Kans. 266. . 677
State V. Beebe, 13 Kans. 589.. 677
State V. Lewis, 19 Kans. 266.. 679
State V. Davis, 14 Neb. 439. . . 680
State V. Leach, 7 Conn. 452.. 681
State V. Tuttle, 67 Ohio St.

440, 66 N. E. 624, 93 A. S.

R. 689 685

State V. Lung, 21 Nev. 209, 28

Pac. 235. 37 A. S. R. 505... 685
State V. Lung, 21 Nev. 209, 37

A. S; E. 506, 28 P. 235 685

State V. Dowell, 106 N. C. 570,

11 S. E; 525 688

State V. Pugh, 7 Jones (N. C.)

61 688

TO SECTIONS]

State V. Cunningham, 100 Mo.

382 688

State V. Preston, 74 Mo. 24. . . 689
State V. Lung, 21 Nev. 209,

37 A. S. R. 505 689

State V. Dalton, 106 Mo. 463. 689
State V. Schoyer, 104 Mo. 441,

24 A. S. R. 344 689

State V. Houx, 109 Mo. 32, A.

S. R. 686 690

State V. Shroyer, 24 A. S. R.

344, 104 Mo, 441 690

State V. Neely, 21 Am. Rep.

496 690

State V. Houx, 109 Mo. 654 . . 690
State V. Comstock, 46 la. 265. 691
State V. Jones, 83 N. C. 605,

35 Am. Rep. 586 691

State V. Carr, 43 la. 418 693

State V. Holloway, 41 la, 200,

20 Am. Rep. 686 694

State V. McCune, 5 R. I. 60,

70 Am. Rep. 176n 694a

State V. John, 5 Jones (N. C.)

163 694a

State V. Parson, 44 Wash. 299,

87 Pac. 349, 120 A. S. R.

1003 695

State V. Lamb, 42 S. W. 827. 695
State V. Stinson, 124 Mo. 447,

27 S. W. 1098 695

State V. Lawler, 130 Mo. 366,

32 S, W. 979 695

State V. Perley, 86 Me. 427,

30 Atl. 74, 41 A. S. R. 564. 698
State V. Lewis, 30 Ala. 54, 68

Am. Dec. 113 701

State V. Summers, 1 Mo. App.

374 701

State V. Womack, 41 La. Ann.

635 701

State V. Brownon, 55 Mo. 63,

17 Am. Rep. 643 701

State V. Adams, 42 A. S. R.

790 704

State V. Higdon, 32 la. 2G'J.. 7U4

1380

Table of Cases

[referen

state V. Reeves, 10 A, S. R.

349

State V. KwUey, 245 Mo. 489,

43 L. E. A. (N. S.) 476,

150 S. W. 1057

State V. McMahon, 234 Mo.

611, 137 S. W. 872

State V. Cook (Mo.), 207 S.

W. 831

State V. Start, 65 Ore. 178,

132 P. 572, 16 L. E. A. (N.

S.) 260

State V. Gainse, 40 Am. Dec.

State V. Graham, 3 Sneed 134
State V. Crisp, 39 Am. Eep.

713, 85 N. C. 528

State V. Orleans Judge, 39 La.

Ann. 132

State V. Orleans Judge, 39 La.

Ann 132

State V. Baltimore R. R. Co.,

24 W. Va. 783

State V. Langstone, 88 N. C.

692

State V. "Walsh, 36 Conn. 215.
State V. Ohmer, 34 Mo. 115. . .
State V. Sumner, 2 Speer 599.
State V. Heitman, 181 Pac. 630
Shepard v. People, 25 N. Y.

406

Strong V. State, 1 Blackl.

(Ind.) 193

Swain v. United States, 165 U.

S. 553

Swain v. U. S. 165 U. S. 553..

Smith V. Curtis, 7 Cal. 584

Smith V. Chichester, 1 Cal. 409
Spiller V. Wells, 96 Va. 598, 70

A. S. R. 881 and note

Stark V. Jenkins, 1 Wash. Ter.

421

Stermain v. Davis, Selk 404..

Sears v. Terry, 36 Conn. 273. .

Scnks V. Reeves, 19 Ohio St.

306

CES ARE TO SECTIONS]

Stanley v. State, 24 Ohio St.
704 Rep. 166, 15 Am. Rep. 604. . 91

Simpson v. State, 4 Humph.

456 91

705a Stanley v. State, 24 Ohio 166,

Rep. 604 91

705a 15 Am. Rep. 604 93

Simms v. State, 28 Tex. App.

705a 447 97

Smith v. State, 55 Ark. 259, 18

S. W. 237 110

707a Scott v. Com., 83 Am. Dec. 461 111
Steven v. State, 99 Am. Rep.

712 634 Ill

713 Smith v. State, 55 Ark. 25, 18

S. W. 237 112

713 Smith v. State (Okla.), 155

Pac. 699 113

726 Stokes v. People, 53 N. Y.

164, 13 Am. Rep. 492 125

727 Subert v. State, 66 Miss. 446,

6 So. 238 125

^^^ Stevens v. Fields (N. Y.) 640 129
Stanley v. State, 16 Tex. App.

yjgj^ 392 138

Stern v. State, 53 Ga. 229, 21

^■^^* Am. Rep. 266 146

'^^ Sumner v. Buler, 50 Ind. 341,

'^2^ 19 Am. Rep. 718 149

^26a Sternmeyer v. People, 95 111.

383 151

13 Shorter v. People, 2 N. Y. 193,

51 Am. Dec. 286 153

13 Spies V. People, 122 111. 13 Am.

St. 320 156

48 Spanell v. State, — Tex. App.
50 _, 203 S. W. 357, A. L. R.

82 593 169

83 Seam v. State, 4 (Ala.) 52... 170
Scott v. State, 23 Tex. App.

84 432 170

>;. Sullevan v. State, 102 Ala. 245,

83 • 15 So. 264, 48 A. S. R. 22.. 170
86[ Stewart v. Lovel, 2 Stark, R.

86\J| 93 174

jff Shannon v. People, 5 Mich. 90 177

88B|s^'i"fifld v. State, 43 Tex. 167 185

Table of Cases

1381

[references ar

Spies V. People, 122 111. 1 187

Spies V. People, 122 111. 1, 12

N. E. 865, 17 N. E. 898, 6

Am. Cr. R. 570, 3 Am. St.

Eep. 320 188

Spies V. People, 122 111. 1, 3

Am. St. Eep. 320, 12 N. E.

865, 17 N. E. 898, 6 Am. Cr.

Rep. 570 189

Slip V. State, 11 Ind. 62 189

Spies V. People, 122 111. 3 Am.

St. Rep. 320, 122 111. 1, 12

N. E. 865, 17 N. E. 898... 191
Spies V. People, 122 111. 1, 3

Am. St. Rep. 320, 12 N. E.

865, 17 N. E. 898, 6 Am. Cr.

Rep. 570 192

Stewart v. State, 35 Tex. App.

174, 32 S. W. 766, 60 A. S.

R. 350 207

Sadberg v. State, 46 S. W. 620 220
Simco V. State, 9 Tex. App.

338 220

Stone V. State, 9 Tex. App. 338 220
Stone V. State, 135 A. S. R. 72 229
Stirling v. State, 15 Tex. App.

249 230

Spear v. State, 15 Ga. 562... 231
Stone V. State, 160 Ala. 94, 40

So. 823, 135 A. S. R. 69 231

Smith V. State, 9 Tex. App.

150 242

Smith V. People, 103 111. 82.. 246
Steyens v. McNamara, 36 Me.

176 249

Smith V. Knowlton, 11 N. H.

191 249

Stokes V. People, 53 N. Y. 164,

13 Am. Rep. 492 258

Sullivan v. State, 102 Ala. 135,

15 So. 264, 48 A. S. R. 22. . 258
Snyder v. State, 234 Mo. 200,

136 S. W. 316, Ann. Cas.

1912 D 191 260

Sylvester v. State, 1 Ala. Law

Journal 134 263

Straight v. State, 43 Tex. 486. 271

E TO sections]

Scuggs V. State, 88 Ark. 62,

113 S. W. 346, 16 Ann. Caa.

622 272

Supra Gone v. People, 162 111.

2.59, 44 N. E. 500 272

Stringfellow v. State, 26 Miss.

157 274

Sparf v. U. S., 156 U. S. 51,

39 L. ed. 343 285

Sehoeffler v. State, 3 Wis. 717. 289
Sanders v. State, 113 Ga. 267,

38 N. E. 841 290

Squires v. State, 46 Ind. 459.. 295
Simmons v. Com., 29 Ky. 614. 332
Supreme Council Order v. Gar-

rigus, 104 Ind. 133, 3 N. E.

818, 54 Am. Rep. 298, 13 L.

R. A. 163 332

Snyder v. People, 26 Mich. 106

(Sec. .342, Note 4) 342

Snyder v. People, 26 Mich.

106, 12 Am. Rep. 305 343

Stevens v. Meyers, 4 C. & P.

340 346

Speers v. State, 2 Tex. App.

244 349

Stevens v. Meyers, 4 C. & P.

349 354

Simms v. State, 9 Tex. App.

586 361

Seoby v. Ross, 13 Ind. 117... 383
Sedgcwick v. Stanton, 4 Kerr

(N. Y.) 289 383

Squires v. State, 46 Ind. 350. . 399
Speiden v. State, 3 Tex. App.

178, 30 Am. Rep. 126 413

Sherry v. Perkins, 147 Mass.

212, 9 A. S. R. 689, 17 N.

E. 207 432

Spies V. People, 122 lU. 1, id.,

3 A. S. R. 320, ct seq 441

Snoddy v. Howard, 51 Ind.

411, id., 19 A. S. R. 738... 447
Shultock v. State, 51 Minn. 50 459
Shattock v. State, 51 Miss. 50,

24 Am. Rep. 624 46.3

Snyder v. State, 52 Me. 152.. 467

1382

Table of Cases

[references are
straight v. Williams, 18 Nev.

43 469

Shad V. State, 80 Mo. 358 483

Stone V. Com., 104 Ky. 220, 46

S. W. 721, 84 A. S. E. 452. . 489
Shaffer v. State, 82 Ind. 221. . 496
Sonahoo v. State, 27 S. W. 226 496
Smith V. State, 55 Miss. 513. . 496
Solbert v. State, 1 Tex. App.

314 496

Smith V. Com., 19 Ky. 1073,

428 W. 1138 530

Stokes V. People, 53 N. Y. 13,

Am. Bep. 492 546

Silvas V. State, 22 Ohio St. 90,

1 East P. C. 2244 546

Stevens v. State, 137 Ga. 520,

73 S. E. 737, 38 L. E. A. (N.

S.) 99 547

Stewart v. State, 1 Ohio 71. . . 555
Stoffer V. State, 15 Ohio St. 47,

86 Am. Dee. 470 566

Simpson v. State, 59 Ala. 1, 31

Am. Eep. 1, see note 15,

Ann. Cas. 584 567

Scott V. State, 49 Ark. 156... 569
Steffy V. People, 130 111. 98,

22 N. E. 861, 6 A. S. E. 54. . 569
Shand v Tighe, 35 N. Y. 305. . 574
Sentell v N. O. E. E. Co., 166

U. S, 698 574

Sargent v Consier, 66 111. 245. . 577
Spivey v. State, 26 Ala. 90 . . . 577
Stockly V. State, 6 S. W.

(Tex.) 538 578

Htarley v. State, 6 (Tex.) 538 583
Smith V. People, 53 N. Y. Ill,

13 Am. Eep. 474 584

Stegall V. State, 40 Am. St.

Rep. 761 588

Shor V. State, 5 S. W. 317, 28

Tex. A [.p. 493, 13 S. W. 784 590
Smith V. State, 28 Ind. 321... 591

Smith V. State, 6 S. W. 40 591

Stewart v. People, 65 A. S. 1{.

i:'.:i, 17.'! III. Kit 592

TO sections]
Shreidley v. State, 23 Ohio St.

130 596

Squires v. State, 39 Tex. App.

96, 45 S. W. 147, 73 A. S. E

904 605

Stewart v. Hall, 83 Ky. — , 33

S. W. 420 604

Storey v. Challends, 8 0. & P.

234 611

Searbrough v. State, 46 Ga. 26 639
Stetson V. Faxon^ 31 Am. Dec.

133 and note 641

Stevens v. State, 1 Swan 157. . 661
Steinson v. State, 6 Yearg. 531 663
Stewart v. State, 22 Ohio St.

477 664

Stevena v. State, 11 Ga. 225 . . 689
Shinn v. State, 31 Am. Eep.

110, 64 Ind. 18 699

Shover v. State, 10 Ark. 259.. 715
Scales V. State, 47 Ark. 476, 58

Am. Eep. 768 715

Speclet V. Com., 49 Am. Dec.

518, 8 Pa. St. 312 717

Scott V. United States, Morris

142 725

Spies V. People, 3 A. S. E. 320 726

Thompson v. State, 8 Utah 170,

U. S. 35 14

Twichel v. Com., 7 Wall. 186. . 16
Taylor v. Ft. Wayne, 49 Ind.

274 84

Towle V. State, 3 Fla. 303 89

Thayer v. Brooks, 19 Ohio St.

489 98

Twieker v. State, 27 Tex. App.

539 125

Taffe V. State, 90 Ga. 459, 16

S. E. 204 128

Territory v. Roberts, 9 Mont.

12, 22 P. 241 128

Thomas v. People, 2 Colo. App.

513, 31 P. 349 165

Tcr. V. Manton, 8 Mont. 95, 19

P. 387 165

Table oi- Cases

138:]

Thomas v. State, 127 La. 576,
5.i So. 8G8, Ann. Cas., 1912
A 1059, 37 L. K. A. (N. S.)

172 169

Times Pub. Co. v. Carlile, 94

Fed. 762 174

Triplet v. Com., 84 Ky. 196, 1

S. W. 84 221

Ter. V. McAndrews, 3 Mont.

148 243

Tiffany v. Com., 121 Pa. St.

165, 6 A. S. R. 775 244

Tnimbel v. State, 3 Wyo. 280,

21 P. 1081, 6 L. R. A. 384. . 244
Turner v. State, 86 Pa. St. 54. 244
Tomason V. Odun, 23 Ala. 486. 248

Ter. V. Keyes, 5 l)a. 244 254

Thomas v. State, 43 Tex. 658. . 268
Thompson v. State, 19 Tex,

App. 590 281

Taylor v. State, 22 Ala. 15 337

Tuller V. State, 8 Tex. App,
501 343

[UKPERENCES ARE TO SECTIONS]

Taylor v. Goodrich, 40 S. W.
(Tex.) 515

United States v. Power, 11

How. (U. S.) 570

United States v. Hudson, 1

Wheat. 415

United States v. Barney, 5

Blachf. 294

United States v. Wilson, 3

Blachf. 435

United States v. Warrall, 2

Dalas 384

United States v. Coolage, 1

Gallison 488

United States v. Varrall, 2

Dallas 384

United States v. Coolage, 1

Gallison 488

United States v. Wilson, 3

Blackf. 435

608

385

Tuberville v. Savage, 1 Mod. 5 354 United States v. Eaton, 144 U.

378 S. 671, 36 Law ed. 591

United States v. Hall, 2 Wash.

(U. S.) 366

United States v. Hall, 2 Wash.

(U. S.) 366

United States v. De Witt, 9 Ct.

Ill

United States v. Cobb, 43 Fed.

Rep. 570

United States v. De Mouse

Nav. Co., 142 U. S. 510

United States v. Insurgents, 2

Dall. 335

United States v. Mitchell, 2

Dall. 348

United States v. Vallato, 2

Dall. 370

United States v. Prior, 4 Wash.

334

United States v. Vigil (N. M.),

34 P. 530 '

United States v. Kirby, 7 Wall.
482

Taylor v. State, 50 Ga. 79
Thallherimer v. Brinckerhoff,
15 Am. Dec. 312, 3 Cowen

623

Thompson v. State, 81 Am.

Dec. 364, 18 Ind. 386 413

Timmons v. State, 34 Ohio St.

426, 32 Am. Rep. 376 414

Thomas v. State, 6 Miss. 20.. 417
Turner v. Com., 2 Met. (Ky.)

619 459

Taylor v. Goodrich, 40 S. W.

(Tex.) 515 463

Territory v. Hale, 13 N. M.
181, 81 P. 583, 13 Ann, Cas,

551

Taylor v. State, 32 Tex. App.

110

Tatum V. State, 58 Ga. 409 . . .
Timmons v. State (Ga.), 4 S.

E. 766, 80 Ga. 216 519

Territory v. Pendey, 22 P.
(Mont.) 760 , 590

491

493
499

2
5
5
5
5
5
6
6
6
6
10
12
16

1384

Table of Cases

[REFERENCES ARE TO SECTIONS]

United States v. Bevens, 3

Wash. 336

United States v. Kline, 13

Wall. 128

United States v. Milligan, 4

Wall. 125

United States v. Clark, 31 Fed.

Eep. 710

United States v. Grimlej, 137

U. S. 147

United States v. Clark, 31 Fed.

Eep. (1887) 710, Fed. Cas.

No. 14,744

United States v. Cashier, 1

Hughes (U. S.) 560

United States v. Pirates, 5 Wh.

181, U. S. Eep. 18-21, 62...
United States v. Smith, 5 Wh.

153

United States v. Ferlong, 5

Wh. 184

United States v. Pirates, 5

Wh. 189

United States v. Baker, 5

Blatch. 6

United States v. Klintock, 5

Wh. 144

United States v. Pirates, 5

Wh. 188

United States v. Pirates, 5

Wh. 84

United States v. Smith, 5 Wh.

144

United States v

United States v. Davis, 2

Sumner 486

United States v. Smith, 5 Wh.

152

United States v. Furling, 5 Wh.

182

United States v. Griffin &

Bradford, 5 Wh. 182

United States v. Bowers &

Mathews, 5 Wh. 182

United States v. Bevin, 3 Wh.

336

United States v. Wiltberger, 5

43 Wh. 76 74

United States v. Davis, 2 Sum-

43 ner 482 74

United States v. Coombs, 12

44 Peters 72 74

United States v. Cooledgel,

49 Gall. 488 74

United States v. Wiltberger, 5

50 Wh. 76 75

United States v. Pirates, 5 Wh.

180 75

51 United States v. Eors, 1 Gallis.

624 75

51 United States v. Hamilton, 1

Mason 152 75

62 United States v. Wiltsberger, 5

Wh. 76 76

63 United States v. Arrenda, 6

Pet. 691-709 78

63 United States v. Moore, 3 Cr.

(U. S.) 159-170 87

63 United States v. Davis, 2 Sum.

485 95

63 United States v. Guiteau, 10

Fed. 161 106

64 United States v. Drew, 1 Lead-

ing Cases 131 116

64 United States v. McClane, 7 L.

Eep. 439 125

65 United States v. Dequelfeut, 3

Cr. L. Mag. P. 213-14 134

65 United States v. Terry, 42

67 Fed. 317 134

United States v. Dequelfelds,

68 Cr. L.Mag. 213 137

United States v. 14 Packages

73 Filp, C. D. 235 149

United States v. Wiltberger, 3

73 Wli. C. D. 515-521 153

United States v. Freeman, 4

73 Mason C. C. 505 163

United States v. Wilson, 1

73 Bowl. 102 188

United States v. Gilbert, 2

74 Sumners 19 188

Table of Cases

1385

[references are
United States v. , 7

Biss. Ill 192

United States v. Henry, 4

Wash. C. C. R. 428 194

United States v. Ford, 99 U.

S. 594 195

United States v. Gilbert, 2

Sumners 42 198

184-197 198

United States v. More, 5 Wh. 1 199
United States v. Marigold, 9

How. 560 201

United States v. Perez, 9 Wh,

579 232

United States v. Freis, 3 Dall.

375, 1 (L. C. P. ed.) 214

United States v. Riley, 5

Blachf. 204, Fed. Cas. 16,164 222
United States v. Natt, 1 Mc-
Lean (U. S.) 499 274

United States v. Prior, 5 Cr.

37 273

United States v. Stone, 8 Fed.

Rep. 232 277

United States v. Stone, 8 Fed.

232 281

United States v. Jones, 2

Wheeler Cr, Cas. 450 298

United States v. Wilson, 7 Pet.

(U. S.) 150 301

United States v. Allen's Ar-
mory, 2 Abb. (U. S.) 129.. 302
United States v, Lancaster, 4

Wash. (U. S.) 64 302

United States v. Harris, 1

Abb. (U. S.) 110 302

United States v. Athens Ar-
mory, 35 Ga. 344 302

United States v. 6 Lots of

Ground, 1 Wood (U. S.) 234 302
United States v. Paddleford,

U. S. Rep. Book 17,788 302

United States v. Wilson, 7 Pet.

161 303

United States v. Six Lots of

Ground, 1 Wood 234 303

TO sections]

United States v. Wilson, 7 Pet.

150 304

United States v. Jones, 2

Wheeler 451 311

United States v. Royall, 3 Cr.

C. C. 620 317

United States v. Colladge, Gal-

lison 488 319

United States v. Jones, 2

Wheeler Cr. Cas. 451 320

United States v. Kruisenshank,

92 U. S. 542 326

United States v. Wilbarger, 3

Wood 515 361

United States v. Warrell, 2

Dall. 384 403

United States v. Goldberg, 7

Biss. 175, 4 Lawsons Cr.

Def. 565 419

United States v. Munscher, 7

Biss. 400 419

United States v. Donan, 11

Blatch. 168 420

United States v. Marrow, 4

Wash. (U. S.) 733 445

United States v. Gardener, 10

Pet. (U. S.) 618 448

United States v, Stevens, 52

Fed. Rep. 120 448

United States v. Williams, 14

Fed. 550 448

United States v. Wilson, 44

Fed. Rep. 751 448

United States v. New Bedfore

Bridge, 1 Weed & M. 440.. 455
United States v. Late Corpora-
tion of Church Jesus Christ

of the Latter Day Saints, 21

P. Utah 524 467

TTnitcd States v. Clew, 4 Wash.

C. C. 700 479

United States v. Farnham, 127

Fed. Rep. 478 498

United States v. Carpenter, 151

Fed. 214, 81 C. C. A. 104, 10

Ann. Cas. 509, 9 L. R. A.

(N. S.) 1043 519

1386

Table of Cases

[references are

United States v. Caril, 105 U.

S. 612 523

United States v. Wiltberger, 3

Wash. 515 546

Utterback v. Conn., 105 Ky.

723, 40 S. W. 479, 88 A. S.

R. 328 560

United States v. Askins, 4

Cranch. C. C. 98 630

United States v. Hall, 131 U.

S. 50, 33 (N. S., L. E. D.)

97 660

United States v. Shellmire,

Bald. 370 665'

United States v. Adkins,

Sprague 558 665

United States v. Stanley, 6 Mc-
Lean 409 666

United States v. Grottkau, 30

Fed. Eep. 672 667

Updegraft v. Com., 11 Serg. &

R. 394 708

Ulrich V. Com., 6 Bush. 400. . . 164

U. S. Crim. Code 335 17

U. S. Cr. Code 338

U. S. Revised Statute, 1878,

sees. 5331 & 5332 24

Undcrhill on Ev., sec. 237 265

Underbill on Ev., p. 138 266

Underbill on Ev., 277, 1 Crim.

Law Mag., p. 428 268

Ulriek v. People, 39 Mich. 245 277
Underbill on Ev., sec. 237 265

Veal V, State, 8 Tex. App. 474 14
Voss V. Com., 3 Leigh. 286, 24

Am. Dec. 695

Voshorg v. Putney, 80 Wis.

527, 27 A. S. R. 47 351

Vannactor v. State, 113 Ind.

276, 3 A. S. R. 645 359

Vandcrmark v. People, 47 111.

22 374

Velor V. Barrton, 27 Vt. 56. . . 459
Vandcrmark v. People, 47 HI.

122 569

TO SECTIONS]

Vaught V. State, 135 Wis. 6,

114 Nev. 518, 128 A. S. R.

1008, 32 L. R. A. (N. S.)

234, note, 88 A. S. R. 586.. 576
Varner v. Spencer, 72 N. C.

381 577

Vaugh V. Com., 10 Gratt. (Va.)

758 588

Varner v. State, 72 Ga. 745. . . 593
Vanwick v. Aspenwall, 17 N. Y.

190 610

Von Steenberg v. Kotz, 10

Johns. 166 667

Wright v. State (Wyo.), 27

Pac. 565 16

Wheelock v. Van Riswick, 92

U. S. 202 43

Wales V. Whitney, 114 U, S.

564 50

Waterman v. State, 116 Ind.

51, 18 N. E. 63 70

Wbitworth v. U. S., 114 Fed.

302 77

Whitman v. Krasner, 20 Ala.

464 78

Wasson v. Cone, 86 111. 46 82

White V. Gibbes, 20 U. S. 541

Watson V. State, 36 Miss. 593 91
Watson V. State, 133 Penn.

198, 128 S. W. 168 113

Webb V. State, 9 Tex. App. 490 122
Wood V. State, 58 Miss. 741.. 128
Wharton v. State, 37 Miss. 379 145
Wilson V. State, 69 Ga. 224. . . 160
Warren v. State, 4 Cold.

(Tenn.) 130 167

Willinnis v. State, 61 Ala. 61,

1 So. 179 170

Wright V. State, 30 Ga. 325, 76

Am. Dec. 656 173

Winn V. State, 82 Wis. 576, 52

N. W. 775 208

Wright V. State, 5 Ind. 290, 61

Am. Dec. 90 209

Table of Cases

1387

[rkferences ark

Williams v. State, 2 Grat. 567,

44 Am. Dec. 403 218

Welsh V. State, 126 Ind. 71, 25

N. E. 883 232

Watts V. People, 126 111. 9, 18

N. E. 240 232

Wakefield v. Smart, 8 Ark. 489 248
Ward V. Cole, 32 N. H. 452. . . 248
Williams v. State, 22 Tex. App.

497 263

Worthington v. State, 92 Md.

.222, 48 Atl. 355, 84 A. S. E.

506 267

Wieks V. State, 28 Tex. App.

448 268

Wilmoth V, Ilensel, 151 Pa. St.

200, 25 Atl. 86 272a

Williams v. State, 69 Ark. 599,

65 S. W. 103 273

Winslow V. State, 76 Ala. 42. . 274
Weaver v. State, 77 Ala. 26, 5

Am. Cr. Eep. 366 284

Williams v. State, 47 Ind. 568 286
Wilson V. State, 50 Tenn. 278 333
Woolsey v. State, 30 Tex. App.

346 344

Wilson V. State, 18 Tex. App.

156, 32 N. Y. 525-532 361

Warren v. State, 33 Tex. 517. . 361
Wright V. Meek, 15 Am. Dec.

note, p. 318 386

Waldrope v. State, 41 Tex.

App. 194, 53 S. E 389

Wall V. State, 32 Ark. 565 389

Walsh V. People, 65 111. 58, 16

Am. Dee. 569 406a

Welsh V. People, 65 111. 58, 16

Am. Eep. 569 407

Walker v. State, 63 Ala. 49, 35

Am. Eep. 1 415

Williams v. State, 46 Ga. 212. . 417

Wood V. State, 46 Ga. 322 417

Ware v. United States, 154

Fed. 577, 84 C. C. A. 503, 12

Ann. Gas. 233, 12 L. E. A.

(N. S.) 1053 418

TO SECTIONS]

Ware v. United States, 154
Fed. 577, 84 C. C. A. 503, 12
Ann. Gas. 233, 12 L. E. A.
(N. S) 1053 420

Woodard v State, 20 Tex. App.

375 440

White V. People, 139 111. 143,

32 A. S. E. 196 443

Welsh V. Nash, 8 East Cit. 403 458
Wilson V. Williams, 36 Miss.

331 459

Watson V. Thomas, 6 111. 248. . 459
Wilson V. Hickman, 35 W. Va.

705 459

Watt V. People, 17 Col. 252. . . 465
Warmoth v. Com., 81 Ky. 133 479
Witmore v. State, 11 Tex. App.

414 481

Wilderson v. State (Ala.), 36

So. 1004 495

Walker v. State, 68 Fla. 278,

67 So. 94, L. E. A., 1915C

1161 496

Woodberry v. State, 69 Ala.

242 496

Woodberry v. State, 69 Ala.

242, 44 Am. Eep. 516 498

Wilkerson v. State (Ala.), 36

So. 1004, 140 Ala. 155 498

Walker v. State, 127 Ga. 48, 56

S. E. 113, 119 A. S. E. 314

and note, p. 317 507

Westbrook v. State, 23 Tex.

App. 401 521

Wamble v. State, 44 S. W.

(Tex.) 827 521

Waterman v. People, 67 111. 91 527
Walter v. State, 116 Ga. 537,

42 S. E. 787, 67 L. E. A. 426 536
Wallace v. State, 10 Tex. App.

255 538

Williams v. State, 3 Heish.

(Tenn.) 376 546

Williams v. State, 3 Heish.

376 555

Wilkerson v. State, 91 Ga. 729,

44 A. S. E. 63 565

1388

Table of Cases

[references ABE

Woods V. State, 27 Tex. App.

393 569

Warren v. State, 1 la. 106 573

Wortham v. State, 56 Tex.
App. 253, 120 S. W. 439, 14

Ann. Cas. 134 576

Williams v. State, 6 S. W. 357 577
Wilson V. State, 8 So. 665, 20

Tex. App. 662 581

Williams v. State, 49 Ind. 367 583
Wilson V. State, 96 Ark. 136,
131 S. W. 336, Ann. Cas.,
1912B 339, 41 L. E. A. (N.

S.) 549. 584

Williams v. State, 11 S. W. 680 587
Warden v. State, 60 Miss. 638,

57 Am. Dec. 274 588

Williams v. State, 9 S. W. 357 591
Williams v. State, 5 S. W. 129 591
Westly V. State, 73 S. W. 960

(Tex.) 591

Williams v. State, 23 Tex,

App. 619 592

Williams v. State, 19 Tex.

App. 270 592

Williams v. State, 13 Tex.

App. 574 592

Wright V. State, 5 Yerg. 154, 4

Bla. Com. 133 595

Wright V. State, 76 Am. Dec.

656 and note 625

Wright V. State, 30 Ga, 325, 76

Am. Dec. 656 626

Wood V. People, 59 N. Y. 117 667
Wyatt V. State, 2 Swan

fTenn.) 394 685

Whittaker v. State, 50 Wis.
518, 36 Am. Rep. 856 687

TO SECTIONS]

Williams v. State, 14 Ohio St.

466 689

Warren v. State, 41 S. W. 634 690

Witten V. State, 15 S. W. 871 692a
Williams v. State, 10 Tex.

App. 8 698

Wesley v. State, 61 Ala. 282. . 698
West V. State, 21 S. W. (Tex.)

686 701

Wisou V. State, 73 Ala. 527 .. . 705

Young V. Hamilton, 135 Ga.

339, 60 S. E. 593, Ann. Cas.,

1912 A 144, 31 L. E. A. (N.

S.) 1057 84

Yates V. People, 32 N. Y. 509 146
Younger v. State, 2 W. Va.

579, 98 Am. Dee. 791 214

Yearger v. State (Tex. App.),

41 S. W. 621 222

Young V. State, 68 Ala. 596.. 282
Yates V. State, 47 Ark. 658 .. . 283
Young V. Com., 6 Bush. 312. . . 361
Yates V. Lansing, 6 Am. Dec.

290 455

Young V. State (Tenn.), 11

Humph. 200 545

Young V. Com., 8 Bush. 481 .. . 557

Zoldoski V. State, 82 Wis. 580,
52 N. W. 778 129

Zysman v. State (Tex.), 60 S.
W. 669 481

Zabriske v. State, 43 N. J. L.
640, 39 Am. Eep. 610 705a

INDEX

Parts I— II

(references are to sections)

A
Accessories, Chapter VIII.

distinction from principles in second degree, 189.

before the fact, 190.

defined, 191.

after the fact, 197, 422.
Accomplice, 193-196.

defined, 193.

government may discharge, 194.
immunity, 195.
testimony, 196.
Admission, of defendant in Bigamy, 393.

See Chapter XI on "Confessions."
Adultery, Chapter XIV.

at common law, 327.

definition, 328.

common, Roman and canon law, 329.

in United States, 329.

under the statutes, 330.

in commission of incest, rape, or bigamy, 331.

indictment for, example, 331a.
Affray, Chapter XV.

definition, 332.

gravamen of offense, 333.

"what constitutes, 334.

may be committed short of blows, when, 335.

rout and riot, 336.

self-defense, 337.
Age, presumption as to, 254.
Agent, defined, 487.

signing as, not forgery, 509.
Aider and abetter, 368.
Alien,

responsibility to laws of country where lives, 57.

1389

1390 Index

(references are to sections)

Animals, wild, in larceny, 573.

dogs, cats, birds, ferrets, in same, 574.
Antedating an instrument, 513.
Appeal, in contempts, 456, 459, 463.
Arson, Chapter XVI.

definition, 172, 338.

dwelling house, what includes, 339.

barns in field, 340.

how extended by statutes, 341, 342, 343.

owner of house, 342.

wife's house, 343.

total destruction not necessary, 344.

attempt, 345, 345a.

act need not be done in person, 345a.

intent, 345b.
Assault and Battery, Chapter XVII.

definitions and illustrations, 346.

"present ability" from defendant's standpoint, 347.

distinction between, 348.

physical force, 349.

intent and ability, 350, 351.

means used, 353.

effect of consent of assailed, 353.

simultaneous language, explanatory, 354.

when violence may be inflicted, 355, 356.

right of those who frequent hotels, 357, 358.

schoolmaster may chastise pupils, 359.

parent and child, 359, 360.

other relationship, 360.

assailed 's conduct, 361.

solicitation, when not an attempt, 367.

aider and abetter, 368.

no attempts in some crimes, 369, 370, 371.

solicitation in some crimes constitutes attempt, 373.
intent, 374-378.
Attorney, definition, 487.

auter fois, 63.

Bailee, definition, 487.
Barratry, Chapter XIX.

at common law, 379.

in American States, 380.

champerty and maintenance, 383.

arc ofTenscs whicli intcrrniit course of justice, 384, 385, 386.
Bawdy and disorderly houses, sec "Nuisances."

Index 1391

(refeuences ake to sections)

Bigamy, Chapter XX.
definition, 387.

indictment, what must contain, 389.
marriage, how may be proved, 390.
defenses, 391, 396, 399.
incestuous marriage, 395.
right to remarry upon a contingency, 397.
place of marriage, 398.
former marriage, 398.
marriage must be solemnized, 399a.
marriage before expiration of 7 years, 249.
Bill of rights, 16, 17.
Bills of attainder, 10, 11.
Blasphemy, 711.
Boycott, 431.
Bribery, Chapter XXI.
definition, 400.
thing accepted, 402.
offering and accepting, 403,
to control vote, 404.
to fill office without compensation, 405.
to bribe in the nature of an attempt, 406,
soliciting, 406a.
embracery, 407.
Burglary, Chapter XXII.
definition, 408.
dwelling house defined, 409,
common law governs, when 410,
five concurrent elements, 410.
breaking, 411-414.
entry, 415.
dwelling, 409.
at night time, 417.
intent to commit felony, 416.

Caveat emptor, in false pretenses, 505.
Champerty and maintenance, 383, 386.

also see Chapter XIX.
Clerk, defined, 487.
Combination of dealers to lower or raise prices, 433.

to effect legal ends by illegal means, 434.
Comity, international, 52,
Common law,

when may be resorted to, 5.

no authority for common law jurisdiction in U. S. courts, 6, 22.

1392 Index

(references are to sections)

Common scolds, 640.
Confessions, Chapter XL

admissions and confessions, 270.

effect of 271.
classes, 272, 272a, 274.
a fact to be proved, 273.
admissibility, 275, 294.
threat or inducement, 276-282.
deception, 290.
force or duress, 289.
at time of arrest, 284.
when may be made, 295.
implied, 285-286.
conspiracy, 286.
by principles to accessory, 287.
while drunk, 291, 292.
as to former marriage, 295.
third parties, 296.
presumption as to judicial, 266.
Conspiracy, Chapter XXIII.

definition and description, 95, 422.
abetting residents of another state, 101.
confession of one conspirator, 286.
no attempt, 369, 418.
acts indictable per se, 419.
criminality, how determined, 419a.

substantive offense, 420.

merged into consummated offense, 421.

each responsible of act of another, 421.

mere willingness does not constitute, 423.

to defraud another of his property, 424.

partners, 425.

other circumstances, 426.

ill will, 427.

act of immorality, 428.

to defeat public justice, 429.

wages of workmen, 430.

boycott, 431.

capital, skill and labor of workingman, 432.

combination of dealers to lower or raise prices, 433.
to effect legal ends by illegal means, 434.

indictment, 435, 436.

illegal act by illegal means, 437.
act has been consummated, 438.

principal and accessory, 439.

where two persons only, 440.

where minds influenced by speech, 441.

Index 1393

(references are to sections)

Conspiracy — Continued.

declarations made before or after commission of offense, 443.

old rule as to prima facie case, 444.
Constitution of United States, powers of states in counterfeiting, 447.
Contempts of court. Chapter XXV.

quasi criminal offense, 449.

definition, 449.

legislature, powers same as of courts, 450, 452, 460.

other assemblies, 451.

English Parliament, 453.

inferior legislative bodies, 454.

of courts, 455.

In England, 455.
appeal, 456, 459, 463.
habeas corpus, 456, 458, 463.

committed in another court, effect of, 457.

judgment must show, 461.
summary manner, 468.
courts not of record, 462.

pardon for, 464.

whether criminal offense, 465.

comments on cases pending, 466.

intent of contemner, 468.

punishment, 470.

crime against general law, 471.

constitutional courts, 472.
Cooling time, in manslaughter, 458.
Corporations, 141-144.

crimes may be held for, 141, 143.

early history, 142.

legislature may punish, 144.

subject to police regulations, 37.
Counterfeiting, Chapter XXIV.

definition and description, 445.

English statutes, 446.

Constitution of United States, power of states under, 447.

custom cannot legalize a coin, 448.

distinguished from forgery, 448a.
Court Martial, See Military Law.
Courts.

where held, 83. ,

superior and inferior, 85.

presumptions of courts of record, 86.

not of record, 462.

constitutional, 472.

proceedings of, publication, 607, 608.

court made laws, 22.
C. L.— 88

1394 Index

(ref.eeences are to sections)

Crime, in army and navy, 46.

defendant not responsible when forced to commit, 138-139.

of corporations, 141.

at common law, 24, 26, 27.
Criminal law, definition, 1.

crimes at common law, 24.

derivation of our criminal law, 4.

relation to military law, 43.
Cumulative statutes, 326.

Declarations, made before or after commission of offense of conspiracy,
443.
dying, 267.
Divisions of government, 18-21.
Duelling, 539, 540.

Eavesdropping, 643.
Embezzlement, Chapter XXVII.
definition, 478.

distinguished from larceny, 478, 479.
at common law, 479, 481.
statutory, 480.

clerks, servants and the like, 481, 484.
authority of legislature, 481.
indictment, 481.
property, kinds of, 482.

illegally acquired by principal, 483.
relation of trust, 484, 485.

holding out as agent, 485.
persons of such classes as in statutes, 486.

definition of terms, 487.
compensation not necessary, 488.
part owners, 489.

borrowing money for specific purpose, 489a.
employment, when of a special nature, 490.
intent, 491.

return of property, offer of, 492,
Embracery, 407.
Employee defined, 487.
Escapf and Rescue, see Prison Breach.
Ex post facto law, 12-14.

evidence, altering rules of, 14.

instances where do not apply, 13.

defendant may rloct to lie tried under the old law, 15.

Index 1395

(references are to sections)

Evidence,

in forgery, 524, 525.

not nccessarj' that it be believed, 667,

altering rules of, 14.

suppression of, 267.
Exposing the person, see Nuisance.
Extortion, Chapter XXVI.

definition, 473.

officers of government, 474.

usurper, 476.

intent, 477.

False imprisonment, 621-624.

must be taken against will, 622.
indictment, 623.

form of, 624.
False pretenses, Chapter XXVII.

common law cheats and false pretenses, 493.
English statutes, 494.
character of, 495.

must relate to some existing or passed fact, 495.

promise of marriage, 495.

degree of, 496.

promise and expression of opinions, 498, 499.

statement as to wealth, 498.
sellers and purchasers may both be guilty, 499.
non-criminal lie, 500.
by act of silence, 501.

elements, 502.
intent, 503.

defendant must have knowledge of falsity of statements, 504.
prosecutor must have believed statements, 505.
caveat emptor applies, 505.
Federal courts, perjury in, 664.

no degrees of murder in, 544.
Felony,

right to kill to prevent commission of, 31.
misprision of, 30.
compounding of, 32.

definition, 32.

at common law an accessory, 32.

as applied to misdemeanor 33, 34.
definition, 35.

punishments that have been abolished, 35.
Forgery, Chapter XXIX.

distinguished from counterfeiting, 448a.

1396 Index

(REFERENCES ARE TO SECTIONS)

Forgery — Continued,
definition, 506.
how committed, 507-508.
material change, 507.
filling in blanks, 508.
signing as the agent, 509.
ratification by principal, 510.
falsely personating another, 511.
altering original entries, 512.
antedating an instrument, 513.
falsifying an instrument, 513.
falsifying records, 514.
falsely reading instrument, 515.
instrument, character of, 516.
must affect property, 516.
recording as publication, 519.

must be set out in words and figures, in indictment, 520.
what instrument basis of forgery, 521.
indictment, 522.

averment, language of statute sufficient, 522.
may contain count for the passing of, 523.
proof of one not admissible to establish other, 523, 527.
evidence, 524.

laws of Scotland, 525.

not necessary to show accused received any benefit, 525.
proof of passing, when complete, 526.
attempt to commit, 527.
Fugitive from justice, 68-70.
Fundamental laws of the land, 7.
extracts from constitution, 8.
prohibitions to states, 9.

Government, City, power of, 718.
Gaming and gaming house, 647.
Gossip, scandal, 638.
Guardian and ward, 185.

Habeas corpus,

under military law, 44, 47, 53.

in contempts, 456, 458, 463.
Homicide, Chapter XXX.

Justifiable, 31.

committed on border state, 96, 100.

result of voluntary intoxication, 117, 120.

when committed under misconception of facts, 153.

Index 1397

(references are to sections)
Homicide — Continnocl.
definition, 528.
divisions, 528.
Murder, defined, 529.

malice, need not be against person killed, 530. See also "Malice."
express, 532.
implied, 531.
continuance of, 534.
corpus delicti, presumption from proof of, 533.
physician, ignorance and negligence of, 535.
first wound, 536.

by other than physical means, 537.
person must be alive when wound inflicted, 538.
duelling, 539, 540.
degrees, 541.

under federal statutes, no degrees, 544.
lying in wait, poison, etc., 542.
Manslaughter, 545-551.
definition, 545.

exception to rule reducing murder to manslaughter, 545a.
new provocation, 546.
insulting words to female relative, 547.
cooling time, 548.

killing officer while making arrest, 549-551.
involuntary, 522-554.
definition, 552.

misdemeanors merely mala prohibita, 553.
negligent acts, 554.
Self-defense, 555-567.
illustrations, 555.
apprehension of danger, 556.

cowardice, fear, etc., 556a.
threats to take life, 557.
non-felonious assaults, 558, 564.
assault upon habitation, 559.
attack upon property other than habitation, 560.
homicide committed in the prevention of a felony, 561.
members of family, right to defend, 562.
degree of force used, 563.

wrongful act contributing to necessity to kill, 565.
retreat and pursuit, 566.
spring guns, 567.
assaults to murder, 568, 569.
intent, 569.
Husband and wife, 182, 183.

distinction as to relative rights, 25.
presumption of coercion by husband, 237, 250.

1398 Index

(references are to sections)

Husband and wife — Continued.

right of husband to chastise, 360.

wife's possession, 585.

assault to rape by husband, 691.
Hypnotic influences, 119.
Hypothetical questions, 129.

Idiots,

definition, 103.
kinds, 105.
lucid interval, 104.
insane delusion, 106, 107.

burden on defendant to show incapacity, 108, 109.
Ignorance of the law, 145-153.
exceptions, 146.

special intent, 147.
larceny, 148, 149.
ignorance of facts, 151.
mistake, 152, 153.
Immunities, 25.
Indictment,

discussion, 210-214.
defective, 210, 212.

variance between indictment and proof, 211.
court must have jurisdiction, 212.
different counts, 213,

test whether two charges are the same, 221.
in bigamy, 389.
in conspiracy, 435, 436.
in contempts, 468.
in extortion, 477.
in embezzlement, 481.
in forgery, 522, 523.
in false imprisonment, 623, 624.
in mayhem, 632.
in prison breach, 677.
in robbery, 701.
Infants, capacity to commit crimes, 131, 132.

rule in southern states, 133.
Intent, guilt follows, 140, 154.

criminal intent, Chapter VII.
evil purpose of which law takes notice, 154.
to commit specific crime, 155, 159.
mistake, misadventure or accident, 156.
accident or mistake, not a crime, 157.
depends upon" consequent act, 158.

Index 1399

(references akf, to sections)

Intent, guilt follows — Continued,
how measured, 160, 161.
third person, 162.
by what evidenced, 163.
guilty knowledge, 164.

in pursuit of peaceable and lawful business, 165.
in arson, 345b.

in assault and battery, 350, 351, 374-378.
in burglary, 416.
in embezzlement, 492.
in false pretenses, 503.
in assault to murder, 569.
in malicious mischief, 626.
in mayhem, 631.
in robbery, 699.

in non-observance of Sabbath, 722.
International law, Chapter IV.
offenses against nations, 57.
part of criminal law, 58.
each nation sovereign, 59.
comity of nations, 60.
piracy, definition, 62.

jurisdiction, 63, 73.
of Congress, 63.
of several states, 63.
laws of United States, 64.

as to foreigners, 65.
slave trades, 66.
ambassadors, 67.
fugitive from justice, 68.

between the states, 69.

no authority to compel compliance, 69.
trial for crime other than the crime extradicted, 70.
Insanity,

right and wrong theory, 108.
moral, 111-113.

irresistible impulse, 112.
defendant presumed to be sane, 121, 122.
plea of defendant, 123, 124.
state must prove sanity, when, 125.
presumed to continue, when, 126.

author's view, 127.
opinions of non-expert witnesses, 128.
hypothetical questions, 129.
insane after conviction, 130.

before trial, 130.

1400 Index

( REFERENCES ARE TO SECTIONS)

Intoxication, 114-130.

mitigation of crime, 114.
voluntary drinking, 115-117, 120.

Jeopardy, Cliapter IX.

law of universal conscience, 198.

military laws, 202.

concurrent jurisdiction, 203.

punishments cannot be inflicted jointly, 204.

acquittal of one where there is a joint intent, 204, 205.

offenses containing common elements, 206.

different crimes from same facts, 207.

when in jeopardy, 209, 222, 232.

indictment, 210-214.
New trial, 214, 215.

two offenses committed by same act, 217.
larceny of different persons at the same time, 218.
forged paper, passing of, 219.
arraignment, 222.
jury, discharge of, 223, 228.
discretion of court, 223.
failure to agree, 224.
separation of, 231.
waiver of rights, 225-231.
nolle prosequi, 232.
Judge, an interested party, 81.

mistake of, how corrected, 83.
Judgments, validity, 79.

in courts of general jurisdiction, 80.
Judicial notice, in pardons, 308.
Jurisdiction, Chapter V.

territorial of United States, 71.
high seas, 72.

maritime and admiralty, 74.
of states, 78, 89.

out of jurisdiction of any particular state, 75.
bordering on sea coast, 76.
of United States district court, 77.
of judge, where interested party, 81.
consent of parties cannot confer, 82.
court, where held, 83.
proRumptions, 86.

conferred by constitution and laws, 87.
political questions, 88.
duties of officers, 90.
larceny, 91-94.
conflicts, 99.

Index 1401

(REFERENCES ARE TO SECTIONS;

Jury, discharge of, 223, 228.

discretion with the court, 223.
failure to agree, 223.
separation of, 231.
waiver of,

in felony, an exception, 225.

in America, 227, 229.
to remain together, 230.
arraignment, 222.

Kidnapping, and false imprisonment, Chapter XXXIII.
definition, 619-620.
false imprisonment, 621.

must be taken against will, 622.
indictment, 623.
form of, 624.

Larceny, Chapter XXXI.
jurisdiction, 91, 93, 94.
foreign state and state of union, 92.
of different persons at same time, 218.
distinguished from embezzlement, 478-479.
at common law, 493, 571.
definition, 570.
of property, 571-576, 587.
ownership and possession, 577-586.

conversion after term of bailment of deceased person, 580.

lost property, finder of, 581.

allegation of, when in corporation, 582.

delivered for a specific purpose, 584.

two questions of possession, 586.
intent, 587-601.

right and title of property, 587.

lucri causa, 588.

repentance, not a defense, 589.

value of property, rule in estimating, 590.

minors and deceased persons, 591.

consent to taking, 592.

entrapping the thief, 593.

attempt, 594.

receivers, offense of, 595, 597-598.

restored to owner, 599.

theft-bote, 601.
exception to rule "presumed to know the law," 148, 149.

.1402 rJ^i^EX

{REFERENCES ARE TO SECTIONS)

Laws, court made, 22.

of parent country, 2.

uninhabited country, 2.

effect of conquest on laws of a country, 2.

as to foreigners, 64, 65.
Legislature,

powers in contempts, 450-452, 460.

authority to make an act embezzlement, 481.

in libel, 609.

powers, in general, 18, 19.

how conducted, 20.

distinction between judicial and legislative powers, 21.

how restricted, 19.
Libel, Chapter XXXII.

definition, 174, 175, 602.

justification, 603.

breach of peace, 604.

per 86, 605.

indictable, 606.

court proceedings, publication of, 607.
privileged, 608.

legislatures, 609.

communications between persons in interest, 610.

inquiries as to another's character, 611.

reports of mercantile agencies, 612.

candidates for office, 613.

public offices, 615.

elements, 616.

publication, what constitutes, 617.
criminal slander, 618.

Malice,

proof of, must be beyond reasonable doubt, 125.

what constitutes, 166.

in murder, 167-109; 530-534; 529.
express and implied, 531-532.

how shown, 170, 171.

in arson, 172.

in malicif)U3 mischief, 173.

in libel, 174-175.
Malicious intent, see "Intent."

in insanity, 124.
Malicious mi.scliiof, Chupter XXXIV and 173.

at common law, 625.

intent, 626.

against owner of property, 626.

Index l*i^^;*

(kepebences are to sections)

Mandamus, 90.

Maritime and admiralty jurisdiction, 74.
Marriage, defined, ;i91, 392.
how may be proved, 390.
incestuous, 395.
place of, 395.

statements as to former marriage, 295.
promise of, 495, 704.
see also "Bigamy."
Married women, 134-140.
presumptions, 134-137.

does not extend to felony, 135.
as a defense, 250,
wife not competent to testify at common law in bigamy, 394.
as to keeping bawdy or disorderly house, 639.
Master and servant,

right of master to chastise, 360.
Mayhem, Chapter XXXV.

at common law, 627, 629.
early English statutes, 628.
under the statutes, 630.
intent, 631.
indictment, 632.

"feloniously," not necessary to state, 632.
Mercantile agencies, reports of, 612.
Military law, Chapter III.

distinction between civil and military, 41.
responsibility to two laws at same time, 42.

soldier, 42.
relation to criminal law, 43.
authority over the military, 43.

inherent in every government, 44.
law martial, 45.

army and navy, crimes committed in, 46.
court martial, 47, 48.

who may convene, 48.
jurisdiction, 49, 53, 202.

civil courts, power to review, 50.
conviction in military courts, 51.
when attaches, 54.
who subject to military duty, 55.
state militia, 56.
international comity, 52.
Misprision, Chapter XXXVI.
at common law, 633.
in United States, 633, 634.

1^04 Index

(references ABE TO SECTIONS)

Misprision — Continued.

■what constitutes, 634.

See also Treason and Felony.
Misdemeanor, definition, 36.

classes, 36.

morality, not a test, 36.

mala prohibita, 39.

no attempt applied, 372.
Monopolies, Chapter XXXVII.

at common law, 635.

nature of, 635.

Nations, offenses against, 57.

see also ** International Law."
New Trial.

at common law, 214.

does not operate against jeopardy, 214, 215.
Non-criminal lie, 500.
Nolle prosequi, 232.
Notice, judicial, 308.
Nuisances, Chapter XXXVIII.

possesses both civil and criminal character, 40.
what includes, 636.
bawdy and disorderly houses,
definition, 637.
gossip, 638.
married women, 639.
common scolds, 640.
obsolete in America, 640.
offensive trades, 641.
gaming and gambling houses, 647.
exposing the person, 644-646,
in private places, 645.
under statutes, 646.
public shows, 650.
eavesdropping, 643.
obstruction of highways, 648-650.
necessity may justify, 648.
custom will not justify, 649.
public shows, 650.
drunkenness, 651.

Office, defined, 487.

candidates for, 613.
public, 615.

Index 1405

(refkrences are to sections)
Officers, of government, 474.

de facto, 475.

usurper, 476.

killing while making arrest, 549-551.

negligent of duty, 678.

duties of, 90.

presumption as to, 269.
Opinions, of non-expert witnesses, 128.
Original settlers, 3.

carry with them laws of mother country, 3.

how these laws are changed, 3.

Pardon, Chapter IX.

at common law, 297, 299.

in United States, with executive, 298, 299, 307.

exception, 299, 309.
definition and classes, 301.
unconditional, 302,
conditional, 303.
general amnesty, 304.
obtained by fraud, or deception, 305.
must be delivered and accepted, 306..
in impeachment, 309,
in contempts, 310, 464.
Parent and Child,

duties and obligations of parent, 181, 176, 178.
mutual obligations, 177, 179, 180.
duties the strong owe to the weak, 178.
may chastise the child, 359.
Partners, in conspiracy, 425.
Perjury, Chapter XXXIX.

attempt, can be none in this, 370.
definition, 652.

at common law, a misdemeanor, 653.
oath, necessity of, 654,
corporeal, 655.

administered properly, 656, 657, 660.
■who may administer, 661.
where may be administered, 662.
requirements of statutes must be complied with, 659.
voluntary appearance, 658.

jurisdiction of person and subject matter, 663.
in federal courts, 664.
facts believed to be true, 665.
wilfully and corruptly, 666.
matter material to issue, 667.

1406 I^^^^

(RErERENCES ARE TO SECTIONS)

Perjury— Continued.

witness compelled to testify against self, 668.

corroboration, 669.
Persons, aU equal before the law, 326a.

^^^TgnoTance and negligence of in murder, 535.
Piracy, 62, 63, 73.
Police regulations,
classes of, 38.

in towns, cities and states, 37.
corporations, subject to, 37.
Political questions, 88.
Presumptions, Chapter X.
of courts of record, 86.
part of criminal law, 233.
how created, 235.
legislative or statutory, 235.
definition, 235.

of incapacity to commit crime, 237.
of death, 237, 248.
of coercion by husband, 237, 250.
rebuttable, 238.
burden of proof, 239.
of fact, 241.
of doing those things required by law, <i4Z.

of innocence, 243, 246.

corpus delicti, effect on, 243.
of sanity, 244, 251.
defendant's duty, 244.
as to conspirators, 246.
possession of recently stolen goods, 247.

corpus delicti, from proof of, 253.
of continued life, 249.
as to married women, 250.
probable results of a man's acts, 253.
as to ages, 254.
talcing property, 256.
malice, 258.

death after year and a day, 259.
as to lesser grade of offense, 259.
character, 260.
conflic-ting, 261.

defendant fleeing from country, 262.
suppression of, 264.
as to judicial confessions, 266.
dying declarations, 267.
testimony of accomplice, 268.

Index 140/

(references ABE TO SECTIONS)

Presumptions — Continued.

as to officers, 269.

of previous chaste character, 705A.
Preventative justice, Chapter XL.

nature of, 670.

security after conviction, 671, 674.

at common law, 672, 673.

under the statutes, 674.

even when acquitted, 674.

magistrate must have summary power, 674.

extent of threat and probable cause, of injury, 675.
Principals and accessories. Chapter VIII.

as distinguished from accessories, 186.

accessories, 186.

effect of death of principal accessory, 186.

kinds, 187, 188.

in conspiracy, 439.
Prison breach, escape and rescue, Chapter XLI.

definition, 676.

indictment, 677.

officer negligent of duty, 678.

prisoner escaping, 679.

defendant may break, when, 680.

prisoner must be held by legal warrant to arrest, 681.

negligent escape, 682.

voluntary escape, 683-684.

discharge of prisoner, when, 682.
Property, kinds of in embezzlement, 482.

illegally acquired by principal, 483.

taking of property, presumption in, 256.