uSBs i 11^1 mw pHULMy f m 1 ^^^S[q« 1^:1 ^ ias^gms 1 ^^1 1 1 i fia *^' SW 1: Sl 1 1 !l !S5ff*^ lKi« ^m g^^^H^ wt g fj^g Sijiisf' ' SnWj 1 |i ;h 1' M n H mi nj^S ^ ^^sS bF £ Si L_. 3 ' 1 *^&t^ 1 imsmif^mf*nf 11 £ rA£ K {£ !^^> i^ 1 K W^ K ^^t^^ I Ir ■EilS I) 1 c 11 1 ifll Si '■ ■^Wf i lis ii Ifa ,ii iii 1^41 is i THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LAW Lie OF i^S4WG£l£S v.JAITV LONG BEACH BRANCH s^ 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 BY JAMES E. GRIGSBY OF THE ALBUQUERQUE, NEW MEXICO BAR ¥.: : ' '.AWN L. A. CO. L. L CHICAGO BURDETTE J. SMITH & COMPANY PUBLISHERS 1922 T Copyright, 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 • • • ui 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 V 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 § 26 § 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. s 64. § Co. is 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. 9 252. § 253. 9 254. § 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. s 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. fi 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. fi 503. 8 504 8 505 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. 9 § 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 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 1 Table of Contents PAGE § 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) 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 19 20 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. 22 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. 8 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 25 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 26 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 29 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. 30 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 31 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 33 § 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. 46 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. 47 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 56 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. Same, continued. 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, 57 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- 63 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 67 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 73 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 77 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. 80 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. 81 82 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. 83 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- 86 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^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. 99 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 24 § 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\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 18 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. Ry 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. Staty 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 Gl; 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\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 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 46 § 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 47 § 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 9 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 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. S 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 3 458 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.^ 22 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. 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 . 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' . 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'riiili. 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',' 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- :r (Minn.), 37 Wtate, 26 In!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 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'\Ax. 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, . U'.t"). Am. 8t. H»'p. 2.38; 8ce caHes cite 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.' 94 § 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 it 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). 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(); ("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. 32 § 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. n 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 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 oo 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) 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 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 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. . 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. 10 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 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. 81 § 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 s 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' 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- vih)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 inar 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 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- 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. (c) Patented, patent, and proprietary medicines that are unfit for beverage 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 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 ;iiiinn 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<- 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 suint 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, 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. 1 § 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 '^ 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