THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW A SELECTION OF CASES AND OTHER AUTHORITIES UPON CRIMINAL LAW. BY JOSEPH HENRY BEALE, Jr., ASSISTANT PROFESSOR OK LAW IN HARVARD UNIVERSITT. CAMBRIDGE: HARVARD LAW REVIEW PUBLISHING ASSOCIATION. 1894. Copyright, 1894, Bt Joseph Henrt Bealb, Jr 1 JcjuN Wilson and Son, Cambkidok, U.S.A. PREFACE. This collection of cases is chiefly intended for the use of classes in the schools. That students may get the benefit to be derived from studying cases, it is necessary to omit head- notes. In order, however, that the collection may be useful to the lawyer in practice, an index has been added, which is intended to enable one quickly to find the authorities upon any subject herein contained. Experience shows that a class studying such a collection of cases under the superintendence of an instructor is by no means inclined to give too much weight to the mere decision of a case. But those who may study this book without the help of a teacher must be warned not to regard as law the decision of every case here printed. The course of study to be pursued involves a determination of the point decided, a careful consideration of the reasons which led the court to its decision, a comparison of these reasons with those which were urged, or might have been urged, on the opposite side, and an independent solution of the question by the student. The object of study is not only to gain familiarity with the legal principles usually involved in criminal cases, but also to build up a legal mind — to acquire the science of legal reasoning, and the faculty of sound legal common-sense. One or two of the cases are now for the first time printed. They are taken from a contemporary manuscript, in the library of the Harvard Law School, entitled "Anonymous Reports temp. Eliz. and Jac, vol. II." The manuscript is one of two yj PREFACE. presented to tlie library in 1835, by J. J. Wilkinson, Esq., of the Temple, London, through Judge Story, then Dane Pro- fessor. It contains, among other reports, cases in the King's Bench during the first ten years of James I. The reports for the first five terms are identical with those at the beginning of Croke's James ; the remainder of them have never been printed. Upon a comparison of these reports with other reports which have been printed of some of the cases, the reporter seems to have been careful and accurate, and fuller and more graphic than his contemporaries. The reports appear to have been re- garded with favor; another manuscript copy, covering some of the years, is in the Social Law Library, Boston. JOSEPH HENRY BEALE, Jr. Cambridge, September 1, 1894. TABLE OF CONTENTS. CHAPTER I. Paoe Sources of the Criminal Law 1 CHAPTER n. Criminal Procedure 10 CHAPTER HI. The Indictment 18 CHAPTER IV. Former Conviction or Acquittal 67 CHAPTER V. The Criminal Act 95 CHAPTER VI. The Criminal Intent 174 CHAPTER VII. Intent as Affected by Circumstances 231 CHAPTER VIII. Intent in Statutory Offences 284 CHAPTER IX. Justification 311 Paos 372 yiii TABLE OF CONTENTS. CHAPTER X. PARTIK9 JH Crime CHAPTER XL Jurisdiction ovkr Offences ^^° CHAPTER XU. Cbzmes against thk Person ^^^ CHAPTER Xni. LARCENr * CHAPTER XIV. Emdezzlkment 700 CHAPTER XV. Odtaining Property by False Pretences 718 CHAPTER XVI. Rbckiving Stolen Property 758 CHAPTER XVIL Crimes against the Dwelling-house 780 CHAPTER XVIII. Criminal Conspiracy 801 CHAPTER XIX. Nuisance 842 CHAPTER XX. Contkmit and Disbarment 854 TABLE OF CONTENTS. ix CHAPTER XXr. Tkrbitorial Jurisdictiox ays CIIAPTEU XXII. Extradition 939 APPENDIX 959 INDEX 971 TABLE OF CASES, A. Adams, C. v. (114 Mass. 323) li. V. (R. & K. 225) (1 F. & F. 86) V. S. (45 N. J. L. 448) Alderman, C. «. (4 Mass. 477) Allen, S. V. (47 Conn. 121) Anderson, R. f. (11 Cox, 198) Anon. (30 & 31 E. 1, 108) (11 & 12 E. 3, 640) (39 E. 3, 7) (Lib. Ass. 137) (Lib. Ass. 137) (7 H. 4, 43) (13E. 4, 9) (3 H. 7, 12) (4 H. 7, 5) (11 H. 7,1) (13 H. 7, 14) (21 H. 7, 14) (21 H. 7, 39) (19 H. 8, 2) (Dyer, 5) (Dyer, 99) (Moore, 660) (2 Leon. 12) (Anderson, 114) (Comb. 46) (Kel. 31) (Kel. 35) (Kel. 52) (Kel. 58) (12 Mod. 342) (Fost. C.L.439) (R. & R. 489) (1 Cox, 250) Articles of Inquest (Lib. Ass. Asher, S. v. (50 Ark. 427) Ashton's Case (12 Mod. 256) Ashwell, R. V. (16 Cox, 1) Atkinson, R. v. (2 East, P. C. B. 138) 673) Page 204 720 777 679 70 394 895 385 n. 488 281 n. 272 614 595 638 523 596 797 201 524 346 490 524 781 782 371 n. 782 96 273 515 377 329 843 284 40 158 817 229 392 566 660 Bailey, R. v. (R. & R. 1) 280 Bamber, R. v. (5 Q. B. 279) 356 Banks, R. r. (R. & R. 441) 632 Bannen, R. v. (2 Moody. 809) 879 Barnard. R. w. (7 C. & P. 784) 727 Barnes, R. v. (8 Cox, 129) 710 Barrow, R. v. (L. R. 1 C. C. R. 166) 4.55 Barry, C. v. (125 Mass. 390) 608 Bass, R. V. (Leach, 251) Bazeley's Case (Leach, 835) Bean, C. «. (UCush. 414) Beaton, S. v. (79 Me. 314) Beatty v. Gillbanks (15 Cox, 138) Beecham, R. v. (5 Cox, 181) Berry, C. v. (99 Mass. 428) Bingley, R. v. (R. & R. 446) Birney, S. v. (8 Oh. 230) Black, S. V. (75 Wis. 490) Blackham, R. v. (2 East, P. C. 711) Blake, R. v. (3 Burr. 1731) Boyce, R. r. (1 Moody, 29) Boynton, C. v. (2 All. 160) Bradshaw, R. i;. (14 Cox, 83) Breese v. S. (12 Oh. St. 146) Brennan v. P. (15 111. 511) Brooks, C. V. (99 Mass. 434) Brown, R. v. (14 Cox, 144) S. «. (3 Murphy, 224) Bruce, R. u. (2 Cox, 262) Bryan, R. u. (7 Cox, 312) Buckmaster, R. v. ( 16 Cox, 339) Bunce, R. v. (1 F. & F. 523) Burke, C.w. (105 Mass. 376) Burnett, R. v. (4 M. & S. 272) Cabbage, R. v. (R. & R. 292) Caldwell, Resp. v. (1 Dall. 160) Callaghan, C. v. (2 Va. Cas. 460) Calvi, R. V. (10 Cox, 481 n.) Carr, R. v. (15 Cox, 131 n.) Carrier's Case (14E. 4, 9) Carter, S. v. (3 Dutch. 499) Cart Wright's Case (114 Mass. 230) Case. R. v. (4 Cox. 220) Castell V. Bambridge (2 Stra. 854) Castro, R. v. (L. R. 9 Q. B. 230) V. R. (6 App. Cas. 229) Chamberlain, R. v. (10 Cox, 486) Cheafor, R. v. (5 Cox, 367) Chissers, R. v. (T. Ray. 275) Choice V. S. (31 Ga. 424) Churchill, C. v. (2 Met. 118) Claasen r. U. S. (142 U. S. 140) Clair, C. V. (7 All. 625) Clarence, R. v. (16 Cox, 611, 22 Q. D. 23) Clark, U. S. v. (31 Fed. 710) Clayton, R.r. (IC. &K. 128) Page 631 625 38 49 105 697 714 381 303 723 202 102 182 306 146 386 74 364 389 19 202 729 663 651 457 104 682 177 116 80 774 638 407 867 4:35 420 856 56 187 492 515 269 6 65 93 4.38 319 388 B. xu TABLE OF CASES. Page 148 137 316 424 345 593 347 865 339 844 95 28 s:iS 685 367 707 CoUberg, C. v. (119 Mass. 350) Collins, U. V. (9Co.x, 497) Coiupton, R. r. (Lib. Ass. 97) Conde, R. v. (10 Cox, 547) Cook, P. V. (39 Mich. 236) Coombs, S. V. (55 Me. 477) Cooper's Case (Cro Car. 544) Copp, S. r. (15N. H. 212) Creifliton l: C. (84 Ky. 103) Cross, U. V. (2 C. & P. 483) Crouther's Case (Cro. Eliz. 654) Cruiksiiank. U. S. v. (92 U. S. 542) Crump V. C. (84 Va. 927) R. I'. (1 C. &P. 658) Crutcliley, R. v. (5 C. & P. 133) Cullom, R. I'. (L. R. 2 C. C. R. 28) D. Dadson, R. v. (4 Cox, 358) 317 Daley, C. v. (148 Mass. 11) 275 Dalloway, R. v. (2 Cox, 273) 165 Damon, S. v. (2 Tyler, 387) 88 Damon's Case (6 Me. 148) 20 Da vies, R. r. (Leach, 876) 785 Davis, R. r. (5 Cox, 2:37) 42 (14 Cox, 563) 262 (15 Cox, 174) 171 U. S. V. (2 Sumn. 482) 398 Deane. R. p. (5 Cox, 501) 69 Dee, R.i;. (15 Cox, 579) 456 «. Delaval, R. v. (3 Burr. 1434) 101 Detroit White Lead Works, P. v. (82 Midi. 471) 851 Dickinson, R. v. (R. & R. 420) 684 Dobbs's Case (2 East, P. C. 513) 181 Dodge, S.u. (81 Me. 391) 49 Dolan, R. v. (6 Cox, 449; Dears. 436) 765 Donahue, C. v. (148 Mass. 629) 353 Donaldson, S. v. (32 N. J. L. 151) 828 Donnelly, S. v. (69 la. 705) 338 Donovan, R. v. (4 Cox, 401) 430 n. Doody, R. u (6 Cox, 463) 261 Downes, R. v. (13 Cox, 111) 195 Drew, C.r. (19 Pick. 179) 744 Dudley, R.r. (16 Cox, 624, 11 Q. B. D. 273) 357 Dugdale v. R. (1 E. & B 435) 221 Dykes, R. v. (16 Cox, 771) 274 E. Eckert, C. v. (2 Browne, 249) 110 Edmonds r. S. (70 Ala. 8) 511 Edwards, R. i;. (8 Mod. 320) 804 (13 Cox, 384) 612 Efigington's Case (2 East, P. C. 666) 154 Esop, R. V. (7 C. & P. 456) 282 F. Faulkner, R. v. (13 Cox, 550) Felter, S. v. (25 la. 67) 213 238 n. Page Fidling, R. v. (MS.) 783 Finlayson, R. r. (3 N. S. W. 301) 666 Fitchburg R. R., C. v. (120 Mass. 372) 63 Flanagan v. P. (52 N. Y. 467) 241 Flowers, R. v. (16 Cox, 33) 574 Foley, R. v. (26 L. R. Ire. 299) 681 Foster, C. v. (107 Mass. 221) 715 Fox, U. S. V. (95 U. S. 670) 227 Francis, R. v. (2 Stra. 1015) 699 Franklin, R. v. ( 15 Cox, 163) 203 Fray's Case (1 East, P. C. 236) 477 Friend, R. v. (R. & R. 20) 190 G. Gamlen, R. r. (1 F. & F. 90) 262 Garbutt, P. V. (17 Mich. 9) 255 Gardner, P. v. (2 Johns. 477) 698 R V. (9 Cox, 253) 686 Gessert, S. v. (21 Minn. 369) 403 Glover v. C. (86 Va. 382) 133 Goodenow, S. i'. (65 Me. 30) 309 Goodhall, R. v. (R. & R. 461) 725 Gore's Case (9 Co. 81 a) 209 Goss, R. u. (8 Cox, 202) 737 Gray, R.f. (1 Stra. 481) 784 Green, C. v. (17 Mass. 615) 70 (2 Pick. 380) 139 Greenwood, R. v. (7 Cox, 404) 424 V. S. (64 Ind. 260) 89 n. Grey's Case (Kel. 64) 463 Griffin, R. v. (11 Cox, 402) 315 H. Hadley, C v. (11 Met. 66) 372 v. S. (55 Ala. 31) 469 Haines, R. v. (2 C. & K. 368) 170 Hall, R. V. (3 C. & P. 409) 281 (3 Cox, 245) 696 Hall's Case (1 Vent. 169) 842 Halliday, R. v. (61 L. T. 701) 427 Hands, R. v. (16 Cox, 188) 614 Hard wick, in re (12 Q. B. D. 148) 881 Harkins, C. v. (128 Mass. 79) 752 Harmon, U. S. v. (45 Fed. 414) 180 Harrington, C. v. (130 Mass. 36) 31 Hartnett, C. p. (3 Gray, 450) 701 Haskins v. P. (16 N. Y. 344) 53 Haynes, R. «. (1 F. & F. 666) 234 Hays, C. v. (14 Gray, 62) 711 Head 26, R. v. (R. & R. 160) 706 Hendrickson f. C. (85 Ky. 281) 430 Herman v. P. (131 III 694) 68 n. Hersey, C. v. (2 All. 173) 183 Hewlett, R. r. (1 F. & F. 91 ) 329 Hildebrand v. P. (56 N. Y. 394) 619 Hines, R. v. (13 Cox, 111 n.) 197 n. King Quong Chow, U. S. v. (63 Fed. ooq\ 123 Hirnr. S. (lOh. St. 15) 25 Holden, C. v. (9 Gray. 7) 598 Holland, R. v:{2 Moo. & R. 351) 164 HoUoway, R. v. (3 Cox, 241) 692 TABLE OF CASES. Xlll Holmes, U. S. v. (1 Wall, Jr. 1) Holmes's Case (Cro. Car. 376) Hudson, R.v. (8 Cox, 305) U. S. y. (7 Cranch, 32) Huggett's Case (Kei. 59) Huggins, R. V. (2 Ld, Ray 2 Stra. 882) Hugh, R. y. (30 & 31 E. 1, 629) Hunt, C. V. (4 Met. Ill) Hurst, P. V. (62 Mich. 276) I. Ingles, S. V. (2 Ilayw. 4) Instan, R. v. (1893, 1 Q. B. 450) Isaac's Case (2 East, P. C. 1031) Ives, S. V. (13 Ire. 338) Page 361 n. 797 158 3 474 1574; 421 n. 16 821 716 198 799 775 J. Jackson, P. v. (3 Den. 101) 121 James, C. y. (1 Pick. 375) 645 R. y. (2 Cox, 227) 41 Jennison, R. v. (9 Cox, 158) 742 Johnson, S. v. (40 Conn. 136) 270 (32 Tex. 96) 48 Johnson's Case (2 East, P. C. 488) 785 Jones V. Leonard (50 la. 106) 950 U. S. V. (3 Wash. C. C. 209) 368 Journeyman Tailors, R. v. (8 Mod. 10) 820 K. Kanavan's Case (1 Me. 226) 115 Kelly, R. u. (1 Cr. & D. 186) 182 Kentucky v. Dennison (24 How. 66) 943 Ker V. Illinois (119 U. S. 436) 939 Kew, R. i;. (12 Cox, 355) 165 Keyn, K. v. (2 Ex. D. 63 ; 13 Cox, 403) 897 Kilham, R. v. (L. R. 1 C. C. R. 261) 718 King u. P. (83 N. Y. 587) 847 Knapp, C. V. (9 Pick. 496) 383 Knight, R. i;. (2 East, P. C. 510) 220 S. V. (2 Hayw. 109) 406 Knowlton, C. v. (2 Mass. 5.30) 1 KnoxviUe, S. v. (12 Lea, 146) 313 Kostenbauder, C. v. (20 Atl. 995) 814 L. Lannan, C. v. (153 Mass. 287) 521 Lascelles v. Georgia (148 U. S. 537) 952 Latimer, R. v. (16 Cox, 70) 217 Lavender, R. v. (2 East, P. C. 566) 532 Lawrence, S. v. (57 Me. 574) 268 Ledginham, R. «. (1 Mod. 288) 36 Lee Kong, P. v. (95 Cal. 666) 142 Leigh's Case (2 East, P. C. 694) 632 Leighton v. P. (88 N. Y. 117) 472 Le Mott's Case (Kel. 42) 783 Leonard, C. v. (140 Mass. 473) 778 Lesley, R. i;. (Bell, 220 ; 8 Cox, 269) 311 Lester, C. v. (129 Mass. 101) Levett's Case (Cro. Car. 538) Levi V. Levi (9 C. & P. 239) Lewis, S. V. (2 Hawks, 98) Lindsey v. S. (38 Oh. St. 507) Liscomb, P. v. (60 N. Y. 559) Little, R. V. (10 Cox, 559) Lombard's Case (Lib. Ass. 276) Loud, C. V. (3 Met. 328) Lovell, R. V. (8 Q. B. I). 185) Lowe, R. V. (3 C. & K. 123) Lucas, S. V. (55 la. 321) Lynn, R. v. (Leach, 497) Lyons, R. v. (Leach, 185) Pago 705 279 841 n. 89 404 61 «. 667 818 72 612 192 396 103 784 M. 86) McCarty, Resp. v. (2 Dall S. V. (22 Atl. 282) McCord V. P. (46 N. Y. 470) McDaniel, R. v. (Leach, 44) McDaniel's Case (Post. C. L. 121) McDonald, C. v. (6 Cush. 365) McGowan, P. v. (17 Wend. 386) McGrowther's Case (Post. C. L. 13) McNaghten's Case (10 CI. & F. 200) Mace, S. v. (76 Me. 64) Macloon, C. v. (101 Mass. 1) Madox, R. y. (R. & R. 301) Maher y. P. (10 Mich. 212) Malin, Resp. v. (1 Dall. 33) Manchester, C. v. (152 Mass. 2,30) Mansfield, R. v. (C. &M. 140) Marshall, C. v. (II Pick. 350) Martin, R. v. (R. & R. 196) (2 Moody, 123) Mash, C. V. (7 Met. 472) Mason v. P. (26 N. Y. 200) Merry v. Green (7 M. & W. 623) Middleton, R. v. (L. R. 2 C. C. R. 38) Mifflin?;. C. (5 W. & S. 461) Miller, C. v. (139 Pa. 77) R. V. (6 Cox, 353) Mills, R. I'. (7 Cox, 263) Mink, C.v. (123 Mass. 422) Mitchell, R. v. (2 Moody, 120) Mitchum v. S. (45 Ala. 29) Moore v. P. (50 Hun, 356) R. V. (Leach, 314) S. V. (12 N H. 42) Morfit, R. V. (R. &R. 307) Morly's Case (Kel. 53) Morrill, C. v. (8 Cush. 571) Morris, R. v. ( 10 Cox, 480) Morris Run Coal Co. v. Barclay Coal Co. (68 Pa. 1'/ 3) 8.39 Morse v. S. (6 Conn. 9) 223 Mucklow, R. V. (1 Moody, 160) 647 Mullaly V. P. (86 N. Y. 365) 502 Murphy, R. «;. (1 Cr. & D. 20) 818 Murray's Case (1 Wils. 299) 854 Murton, R. v. (3 F. & F. 492) 426 n. Myers u. S. (1 Conn. 602) 302 864 34 162 421 152 141 90 273 231 32 409 641 482 127 930 60 5 156 146 304 788 548 617 807 n. 849 759 727 20G 378 616 453 658 224 683 473 160 82 XIV TABLE OF CASES. N. Napper. R. v. (1 Moody, 44) New lieJford Bridge, C. v. (2 Gray, Newburyport Bridge, C. v. (9 Pick. \i2) NicholU. R. f. (13 Cox. 76) Noble, S. 1-. (15 Me. 476) Norton, C.I-. (11 All. 266) Norvai, R. v. (1 Coi, 95) o. O'Brien, S. r. (81 la. 88) O'Donneil, R. v. (7 C & P. 138) O'Malley, C i'. (97 Mass. 584) Page 44 277 37 193 52 750 635 433 10 518 Page Riley, R. i'. (6 Cox, 88; Dears. 149) 591 Kobins, R. v. (Dears. 418) 656 Robinson, Ex parte, (19 Wall. 505) 882 R. y. (Bell, 34) 721 Roderick, R. v. (7 C. & P. 795) 127 Rogers, C. v. (7 Met. 500) 235 P. y. (18N.Y. 9) 264 Ronkett, R. v. (MS.) 842 Rose, R. V. (15 Cox, 540) 343 Roth well, R.I-. (12 Cox, 145) 481 Rowe, R. f. (Bell, 93) 562 Rowlands, R. r. (5 Cox, 486) 807 n. RulofiFr. P. (45 N. Y. 213) 392 Russell, S. r. (14 R. I. 506) 39 Russett, R. V. ( 1892, 2 Q. B. 312) 671 Ryan, C. v. (165 Mass. 523) 643 P. Parks, P. V. (49 Mich. 333) 376 Parsons v. S. (81 Ala. 577) 242 Patterson, S. v. (45 Vt. 308) 348 Pear, R. v. (2 East, P. C. 685) 648 Pearson's Case (2 Lew. 144) 261 Pembliton, R. v. (12 Cox, 007) 210 Penny i-. Hanson ( 16 Cox, 173) 757 n. Perkins, C. u. (1 Pick. 388) 43 Perrigo, C. v. (3 Met. Ky. 5) 27 Phillips, C. V. (16 Mass. 423) 389 Plant, R. I'. (7 C. & P. 575) 79 Pocock, R. r. (5 Cox, 172) 423 Poulterers' Case (9 Co. 55) 801 Poyser, R. v. (2 Den. C. C. 233) 643 Pratt, R. V. (6 Cox, 373) 635 Prav, C. w. (13Pick. .359) 22 Presnell, S. v. (12 Ire. 103) 177 Preston, R. v. (5 Cox, 390) 657 Prince, R. v. (L. R. 1 C. C. R. 150) 660 Prius, C. V. (9 Gray, 127) 810 Prowes, R. v. (1 Moody, 349) 597 Pywell, R.V. (I Stark. 402) 807 Q. Quinn u. P. (71 N. Y. 661; 789 R. RagK, R. V. (8 Cox, 262) 737 Randolph, C. v. (146 Pa. 83) 134 Raven, R. v. (Kel. 24) 631 Reed. R. v. ( C. & M. 306) 282 n. (6 Cox, 284) 536 (12 Cox, 1) 369 Renshaw, R. v. (2 Cox, 285) 434 Revel, R.v.{\ Stra. 420) 854 Hew, R. V. (Kel. 26) 163 Reynolds v. U. S. (98 U. S. 145) 179 Rioharfls. S. v. (.39 Conn. 591) 238 Richardson, R. v. (Leach, 387) 166 (6 C. & P. 3.36) 758 Riddle, U. S. v. (6 Cranch, 311) 222 s. L. R. 442) 189 Salmon, R.u. (14 Cox, 494) Schmidt, R. v. (10 Cox, 172; 1 C. C. R. 15) Schwab r. Berggren (143 U. S Searing, R. v. (R. & R. 350) Selway, R. i;. (8 Cox, 235) Seme, R. v. (16 Cox, 311) Sexton, S. v. (3 Hawks, 184) Sharpe, R. v. (7 Cox, 214) Sharpless, C. v. (2 S. & R. 91) R. I'. (Leach, 92) Shaw, C. V. (4 All. 308) Shepnard. R. v. (R. & R. 169) Sherman, S. v. (16 R. 1.631) Shickle, R. v. (11 Cox, 189; 1 C. C. R. 158) Shorter v. P. (2 N. Y. 193) Sillem, Att'y Gen. v. (2 H. & C. 431) 139 n. Silsbee, C. v. (9 Mass. 417) 111 Simmons i^. U. S. (142 U. S. 148) 76 Skipworth, R. i-. (L. R. 9 Q. B. 230) 856 L. R. 769 14 491 700 465 45 175 113 611 501 174 341 496 330 Slattery, C. v. (147 Mass. 423) Slowly, R. V. (12 Cox, 269) Smith, C C. P. V. V. H.v. r. (Ill Mass. 429) (1 Duv 224) (25 111. 17) (53 N. Y. Ill) (1 Stra. 704) (1 Cox, 260) (Dears. 494) (11 Cox, 210) S. V. (2 Strobh. 77) (5 Harr. 490) Solomons, R. v. (17 Cox, 93) Spurgeon, R. i'. (2 Cox, 102) Stanley v. S. (24 Oh. St. 166) Starin i'. P. (45 N. Y. 333) Stedman, R. v. (Post. C. L. 292) Steimling, C. v. (27 Atl. 297) Stephens, R. v. (L. R. 1 Q. B. 702) U. S. V. (8 Sawy. 116) Stephenson, C. v. (8 Pick. 354) Stevens, R. v. (5 East, 244) Steward, C. v. (7 Dane Abr. 136) Stoffer V. S. (16 Oh. St. 47) Stone, C. V. (152 Mass. 498) 151 616 703 238 n. 811 653 844 276 760 192 468 46 668 686 606 390 477 588 845 130 787 18 n. 786 334 54 TABLE OF CASES. XV Page Stratton, C. v. (114 Mass. 303) 451 R. V. (21 How. St. Tr. 1045) 361 n. (1 Camp. 549) 157 Sutton, R, V. (Cas. t. Hard. 370) 125 Swindall, R. v. (2 C. & K. 230) 107 T. Taylor, S. v. (3 Dutch. 117) 498 Taylor'8 Case (1 Vent. 293) 96 Teisclier, Resp. v. (1 Dall. 335) 108 Terry, ex parte (128 U. S 289) 869 Thomas, P. v. (3 Hill, 169) 722 Thompson, C. v. (6 All. 591) 308 R. V. (1 Moody, 80) 477 V. S. (94 Ala. 535) 513 Thristle, R. v. (3 Cox, 573) 033 Thurborn, R. i;. (1 Den. C. C. 387) 551 Tinkler. R. v. (1 F. & F. 513) 285 Titus, C. V. (116 Mass. 42) 563 Tollett, R. V. (C. & M 112) 633 Tolliver, C. v. (8 Gray, 380) 46 Tolson, R. V. (23 Q. B. D. 168) 286 Tomson, R. v. (Kel. 66) 462 Towers, R. y. (12 Cox, 530) 425 Townley, R. v. (12 Cox, 59) 677 Towse, R. V. (14 Cox, 327) 283 Traverse, C. v. (11 All. 260) 47 Trebilcock, R. v. (7 Cox, 408) 688 Tucker, C. y. (110 iMass. 403) 800 Tunnard's Case (Leach, 214 ?i.) 640 Turner, R. v. (13 East, 228) 805 Tweed, P. ex rel. v. Liscomb (60 N .Y. 559) 61 n. Tyler, R. v. (8 C. & P. 616) 368 n. Vandercorab's Case (Leach, 708) 78 Vane's Case (Kel. 14) 44 Vaux's Case (4 Co. 44 a) 67 w. Page Wade, R. v. (1 C. & K. 739) 758 Wakcling, R. i-. (K. & R. 504) 726 Walker, P. v. (38 Mich. 156) 271 V. S. (03 Ala. 49) 794 Wall, ex parte (107 U. S. 265) 885 Walsh V. P. (65 111. 58) 128 R. V. (1 Moody, 14) 505 Warburton, R. v. (L. R. 1 C. C. R. 274) 808 Ward V. P. (3 Hill, 395) 595 Watson, R. v. (2 p:ast, P. C 562) 532 Watts, R. v. (6 Cox, 304) 493 Webster, R. v. (9 Cox, 13) 676 Welsh, R. y. (11 Cox, 336) 479 Weniyss v. Hopkins (L. R. 10 Q. B. 378) 86 West, R. V. (Dears. 402) 561 Wheatley, R. v. (2 Burr. 1125) 97 Whitcomb, C. r. (107 Mass. 486) 751 White, C. V (110 Mass. 407) 450 R V (1 F. &F. 665) 778 (6 Cox, 213; Dears. 203) 5Ci6 Wild's Case (2 Lew. 214) 3^ Wildenhus's Case (120 U. S. 1) 925 Wilkinson, R. v. (R. & R. 470) 674 Wilson, R. V. (2 Cox, 426) 41 Wing, C. V. (9 Pick. 1) 119 Wody, R. V. (10 E 4, 14) 489 Wolfstcin V. P. (6 Hun, 121) 629 Wood, R. V. (3 Cox, 453) 551 Woodward, R. v. (9 Cox, 95) 763 Wray, S v. (72 N C 253) 366 Wright's Case (Co. Lit 127 a) 145 Wyckofi, S. y (2 Vroom, 66) 399 Y. Yong's Case (4 Co. 40 a) 462 " Nothing is more common than to hear those who have taken only a superficial view of the Crown Law charge it with number- less hardships and undistinguishing rigor; whereas those who have more fully examined it agree that it wants nothing to make it admired for clemency and equity, as well as justice, but to be understood. It is so agreeable to reason, that even those who suffer by it cannot charge it with injustice ; so adapted to the common good as to suffer no folly to go unpunished, which that requires to be restrained ; and yet so tender of the infirmities of human nature, as never to refuse an indulgence where the safety of the public will bear it. It gives the Prince no power, but of doing good ; and restrains the people from no liberty, but of doing evil." — Preface to Hawkins^ Pleas of the Crown. CASES ON CRIMINAL LAW. CHAPTER I. SOURCES OF CRIMINAL LAW. COMMONWEALTH v. KNOWLTON. Supreme Judicial Court of Massachusetts. 1807. [Reported 2 Mass. 530.] The indictment in this case was found at the Court of General Ses- sions of the Peace for this county, May term, 1803. It alleges that there is a certain river or stream in this count}', which empties itself into the river Kennebeck, called Sandy River, up and through which said Sandy River salmon, shad, and alewives have been wont to pass to the ponds adjacent to cast their spawn, and which river ought bj^ law to be free from all obstructions whatever ; 3'et that the defendant, not ignorant of the premises, at Farmington, in said count}-, on the first day of June, 1801, with force and arras, built and erected a mill-dam across said Sandy River, and being owner and occupant thereof, the same hath continued to the present time, without making or providing a sufficient sluice or passage-way either through or round the said dam for the said fish to pass up as by law he ought to have done. By rea- son whereof the said fish have been and still are obstructed in their passing up the said river, "to the great injury of the public, in evil example to all others in like cases offending, against the peace and dignit}- of the Commonwealth, and contrary to the form of the statute in such case made and provided." Upon not guilty pleaded at the Court of Common Pleas,^ he was convicted and sentenced, and appealed to this court, where at Septem- ber term, 1805, he was again tried and found guilty. After verdict the defendant moved in arrest of judgment,'' because ^ By statute passed March 9, 1804, all the powers and duties of the Sessions, with certain exceptions, were transferred to the Courts of Common Pleas ; and all indict- ments, etc., then pending in the Sessions were to be proceeded in and determined by the Courts of Common Pleas. 2 Only so much of the case as involves this ground for arrest is reprinted. 1 2 COMMONWEALTH V. KXOWLTON. [CHAP. L bv law the said indictment did not lie at said Court of General Ses- sions of the Peace, and said court last named had by law no jurisdic- tion of the offence charged in said indictment. Curia. The defendant moves in arrest of judgment, on two grounds. The second objection, founded on the want of jurisdiction of the Sessions, has great weight. The Court of Sessions, to whose jurisdiction in criminal causes the Court of Common Pleas has succeeded, by statute of March, 1804, was. erected bv the statute of July 3, 1782, and it is empowered to hear and determine all matters relating to the conservation of the peace, and such offences as are cognizable by them at common law, or by the acts of the legislature. If by common law, mentioned in this statute, be understood strictly the common law of England, those words cannot have any effect ; for the Sessions being created by statute cannot have liny jurisdiction but what is given it by some statute. But, if these words import the common law of the Commonwealth, they have an extensive operation and are easily understood. Our ancestors, when they came into this new world, claimed the common law as their birth- right, and brought it with them, except such parts as were judged in- applicable to their new state and condition. The common law^ thus claimed, was the common law of their native country, as it was amended or altered by English statutes in force at the time of their emigration. Those statutes were never re-enacted in this country, but were considered as incorporated into the common law. Some few other English statutes, passed since the emigration, were adopted by our courts, and now have the authority of law derived from long practice. To these may be added some ancient usages, originating probably from laws passed by the legislature of the colony of the Massachusetts Bay, which were annulled by the repeal of the first charter, and from the former practice of the colonial courts accommo- dated to the habits and manners of the people. So much therefore of the common law of England as our ancestors brought with them, and of the statutes then in force, amending or al- tering it ; such of the more recent statutes as have been since adopted in practice ; and the ancient usages aforesaid may be considered as forming the body of the common law of Massachusetts, which has sub- mitted to some alterations by the acts of the provincial and State legis- latures, and by the provisions of our Constitution. From these principles we may conclude that the Sessions in England, having at the time of the emigration jurisdiction of all trespasses (ex- cept perhaps forgery and perjury, see 2 East's Eep. 18), which were offences against law, when the statute of 34 Ed. 3, c. 1, was passed, giving the Sessions (among other things) the cognizance of all tres- passes ; our Court of Common Pleas, as successor of the Sessions, has jurisdiction of the same trespasses by the common law of the Common- wealth ; and that it has jurisdiction of no other trespasses, unless de- rived expressly from some statute. CHAP. I.] UNITED STATES V. HUDSON". 3 The offence, of which the defendant is indicted, is clearly not an of- fence at common law, but it is a new offence created by the statute, on which this indictment is drawn, as it is not supposed that there is any other statute by which the Sessions can have jurisdiction ; the validity of the objection to judgment on this conviction must depend on tlie construction of the statute on which it was obtained. In the twelfth section it is enacted, that all the fines Imposed shall be recovered by presentment of the grand jury, or by action of debt. This section docs not expressly, or by necessary implication, include the Sessions, for the words may be perfectly satisfied by a presentment of the grand jury to this court. And the Sessions before the statute of March, 1804, or the Common Pleas since, not having jurisdiction at common law, nor by the express provisions of any statute, the Judgment must be arrested. UNITED STATES v. HUDSON. Supreme Court of the United States. 1812. [Reported 7 Crunch, 32.] This was a case certified from the Circuit Court for the District of Connecticut, in which, upon argument of a general demurrer to an in- dictment for a libel on the President and Congress of the United States, contained in the " Connecticut Currant " of the 7th of May, 1806, charg- ing them with having in secret voted two millions of dollars as a pres- ent to Bonaparte for leave to make a treaty with Spain, the judges of that court were divided in opinion upon the question, whether the Cir- cuit Court of the United States had a common-law jurisdiction in cases of libel. Pinkney, Attornej'-General, in behalf of the United States, and Dana, for the defendants, declined arguing the case. The Court having taken time to consider, the following opinion was delivered (on the last day of the term, all the judges being present) by Johnson, J. The only question which this case presents is, whether the Circuit Courts of the United States can exercise a common-law jurisdiction in criminal cases. We state it thus broadly because a decision on a case of libel will apply to every case in which jurisdiction is not vested in those courts by statute. Although this question is brought up now for the first time to be decided by this court, we consider it as having been long since settled in public opinion. In no other case for many years has this jurisdic- tion been asserted ; and the general acquiescence of legal men shows the prevalence of opinion in favor of the negative of the proposition. 4 UNITED STATES V. HUDSON. lCHAP. I. The course of reasoning which leads to this conchision is simple, obvious, and admits of but little illustration. The powers of the gen- eral government are made up of concessions from the several States, — whatever is not expressly given to the former, the latter expressly reserve. The judicial power of the United States is a constituent part of those concessions, —that power is to be exercised by courts organ- ized for the purpose, and brought into existence by an effort of the legislative power of the Union. Of all the courts which the United States may, under their general powers, constitute, one only, the Su- preme Court, possesses jurisdiction derived immediately from the Con- stitution, and of which the legislative power cannot deprive it. All other courts created by the general government possess no jurisdiction but what is given them by the power that creates them, and can be vested with none but what the power ceded to the general government ■will authorize them to confer. It is not necessary to inquire whether the general government, in any and what extent, possesses the power of conferring on its courts a jurisdiction in cases similar to the present. It is enough that such jurisdiction has not been conferred by any legislative act, if it does not result to those courts as a consequence of their creation. And such is the opinion of the majority of this court ; for the power which Congress possess to create courts of inferior jurisdiction neces- sarily implies the power to limit the jurisdiction of those courts to par- ticular objects ; and when a court is created and its operations confined to certain specific objects, with what propriety can it assume to itself a jurisdiction much more extended, in its nature very indefinite, appli- cable to a great variety of subjects, varying in every State in the Union, and with regard to which there exists no definite criterion of distribution between the district and Circuit Courts of the same district? The only ground on which it has ever been contended that this jurisdiction could be maintained is, that upon the formation of any political body an implied power to preserve its own existence and pro- mote the end and object of its creation necessarily results to it. But without examining how far this consideration is applicable to the pecu- liar character of our Constitution, it may be remarked that it is a prin- ciple by no means peculiar to the common law. It is coeval probably with the first formation of a limited government, belongs to a system of universal law, and may as well support the assumption of man}- other powers as those more peculiarly acknowledged by the common law of England. But if admitted as applicable to the state of things in this country, the consequence would not result from it which is here contended for. If it ma}' communicate certain implied powers to the general govern- ment, it would not follow that the courts of that government are vested with jurisdicrtion over any particular act done b}' an individual in sup- posed violation of the peace and dignity of the sovereign power. The CHAP. I.l COMMONWEALTH V. MARSHALL. 5 legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offence. Certain implied powers must necessarily result to our courts of jus- tice from the nature of their institution ; but jurisdiction of crimes against the State is not among those powers. To fine for contempt, imprison for contumacy, enforce the observance of order, etc., are powers which cannot be dispensed with in a court, because they are necessary to the exercise of all others ; and so far our courts no doubt ' possess powers not immediately derived from statute ; but all exercise of criminal jurisdiction in common-law cases we are of opinion is not within their implied powers.^ COMMONWEALTH v. MARSHALL. Supreme Judicial Court of Massachusetts. 1831. [Reported 11 Pick. 350.] At April term 1831 of this Court, in the county of Franklin, the defendants were indicted for a misdemeanor in disinterring a dead body on the 20th of February of the same year, contra formam statuti. The defendants pleaded nolo contendere, and afterwards moved in arrest of judgment, for the following reasons : 1. Because the offence charged in the indictment is therein stated to have been committed in violation of the statute passed March 2, 1815 (St. 1814, c. 175), which was re- pealed by the statute of Feb. 28, 1831 (St. 1830, c. 57), without any saving or excepting clause whatever ; and, 2. Because no offence now known by the laws of this commonwealth, is therein described. H. Hubbard and J. W. Clarke., in support of the motion, cited Commonwealth v. Northampton, 2 Mass. R. 116; Commonwealth v. Cooley, 10 Pick. 37 ; Miller's case, 1 W. Bl. 451 ; 6 Dane's Abr. 591, 616; United States v. Passmore, 4 Dallas, 373; Commonwealth v. Duane, 1 Binn. 601 ; 1 Hawk. P. C. c. 40, § 6 ; Hatfield Township Road, 4 Yeates, 492 ; 1 Kent's Com. 435 ; Rex v. Morgan, 2 Str. 1066; Bac. Abr. Statute, D ; Commonwealth v. Macomber, 3 Mass. R. 254. Davis (Solicitor-General) and B. E. Newcomh, for the common- wealth, cited 3 Stark. Ev. 1129; Bac. Abr. Statute, D, cites Jenk. 233, pi. 6 ; Melody v. Reab, 4 Mass. R. 471 ; Gibson v. Jenney, 15 Mass. R. 205 ; 7 Mass. R. 524. Shaw, C. J., delivered the opinion of the Court. This indictment cannot be maintained, consistently with the decision of the Court last 1 Estee V. Carter, 10 Iowa, 400 ; Mitchell v. State, 42 Ohio St. 383. — Ed. 6 COMMONWEALTH V. CHURCHILL. [CKA.P. L year in the case in this county, of Commonwealth v. Cooley, 10 Pick. 37. In that case it was held, that the statute of 1814, containing a series of provisions in relation to the whole subject-matter of the dis- interment of dead bodies, had superseded and by necessary implica- tion repealed the provisions of the common law on the same subject. If it be true, as contended, that as a general rule the repeal of a re- pealing law, reyives the pre-existing law, it would be difficult to main- tain that such a clause of repeal, in a statute containing a series^ of provisions, revising the whole subject, and superseding the existing statute, would revive the pre-existing provisions of the common law. But were that point conceded, as contended for, it would not aid this indictment. In the case supposed, the common law would not be in force during the existence of the statute, and if revived by its repeal, such revival would take effect only from the time of such repeal. It is clear, that there can be no legal conviction for an offence, unless the act be contrary to law at the time it is committed ; nor can there be a judgment, unless the law is in force at the time of the indictment and judgment. If the law ceases to operate, by its own limitation or by a repeal, at any time before judgment, no judgment can be given. Hence, it is usual in every repealing law to make it operate prospec- tively only, and to insert a saving clause, preventing the operation of the repeal, and continuing the repealed law in force, as to all pending prosecutions, and often as to all violations of the existing law already committed. These principles settle the present case. By the statute 1830, c. 57, § 6, that of 1814 was repealed without any saving clause. The act charged upon the defendants as an offence was done after the passing of the statute of 1814, and before that of 1830. The act cannot be punished as an offence at common law, for that was not in force during tlie existence of the statute ; nor by the statute of 1814, because it has been repealed without any saving clause ; nor by the statute of 1830, for the act was done before that statute was passed. No judgment therefore can be rendered against the defendants, on this indictment. Judgment arrested. COMMONWEALTH v. CHURCHILL. Supreme Judicial Court of Massachusetts. 1840. {Reported 2 Met. 118.] At the last September term of the Court of Common Pleas, the de- fendant was convicted on four counts in an indictment, the first of which alleged that he, " at Stoughton in said County of Norfolk, on the CHAP. I.] COMMONWEALTH V. CHURCHILL. 7, 16th da}' of March last past, did sell to one one glass of brandy to be by him, the said , then and there used, consumed, and drank in the dwelling-house there situate of him the said Samuel, he the said Samuel not being then and tliere duly licensed, according to law, to be an innholder or common victualler; against the peace, etc., and con- trary to the statute in such case made and provided." There were five other counts similar to the first, except that different kinds of spirituous liquor were alleged to have been sold to five different persons on sev- eral different days, to wit, on the 17th, 18th, 19th, 20th, and 21st of March, 1840. On two of the counts the defendant was acquitted. The defendant filed exceptions to the ruling of Strong, J., before whom the trial was had: " 1. Because the court instructed the jury that the 2d and 3d sections of c. 47 of the Revised Statutes, on which the indictment is founded, are binding and valid, when the defendant contends that they are unconstitutional and void. 2. Because the court instructed the jury that those sections were still in force as law, when the defendant contends that they are repealed by subsequent legislative enactments." ^ Shaw, C. J. It appears by the record that the defendant was in- dicted for selling spirituous liquors without license, on the 16th day of March last, and at several times afterwards, and that upon a trial of the indictment, in the Court of Common Pleas, he was convicted. Two exceptions were taken to the directions and opinion of that court in matter of law, upon which the case has been brought before this court, pursuant to the statute. These exceptions were as follows: 1. That the 2d and 3d sections of the 47th chapter of the Revised Statutes, upon which this prosecution is founded, are unconstitutional and void. 2. Because the court instructed the jury that these sections were in force as law, at the time when the acts charged as offences were alleged to be done ; whereas the defendant contended that they were repealed by a subsequent act of the legislature. Upon the first no argument has been offered, and it does not seem to be insisted on. The second de- pends upon the question whether the statute of 1840, c. 1. passed on the 11th of February, 1840, and which went into operation in thirty days from its passage, to wit, I3th March, 1840, simply repealing the statute of 1838, c. 157, did, by its legal operation, revive the 2d and 3d sections of the 47th chapter of the Revised Statutes. If it did, the case of the defendant was within them, the acts all being charged to have been done after the 13th of March last, and the acts themselves being made punishable by those provisions of the Revised Statutes. It is conceded to be a maxim of the common law, applicable to the construction of statutes, that the simple repeal of a repealing law, not substituting other provisions in place of those repealed, revives the pre-existing law. As a maxim of the common law, it was in force here when the Constitution of the Commonwealth was adopted. By that 1 The arguments of counsel and part of the opinion are omitted 8 COMMONWEALTH V. CHURCHILL. [CHAP. L Constitution it was declared that " all the laws, which have heretofore been adopted, used, and approved in the colony, province, or State of Massachusetts Bay, and usually practised on in the courts of law, shall still remain and be in full force, until altered or repealed by the legis- lature ; such parts only excepted as are repugnant to the rights and liberties contained in this Constitution." This Constitution has been construed as adopting the great body of the common law, with those statutes made before the emigration of our ancestors, which were made in amendment of the common law, so far as these rules and principles were applicable to our condition and form of government. Common- wealth y. Leach, 1 Mass. 59. Commonwealth v. Knowlton, 2 Mass. 534. But it was contended, at the argument, that under this provision no principle or rule of the common law could be regarded as adopted, un- less it could be shown affirmatively that it had been adjudicated before the Revolution. But we apprehend this would be much too narrow a construction. Before the Revolution, we had no regular reports of judicial decisions ; and the most familiar rules and principles of law — those which lie at the foundation of our civil and social rights — could not be so proved. No ; we rely on usage and tradition, and the well known repositories of legal learning, works of approved authority, to learn what are the rules of the common law ; and we have no doubt that these were the great sources to which the above pregnant provision of our Constitution refers. Taking it, then, as well established that the rules and maxims of the common law referred to in the Constitution were those which our an- cestors brought with them, and which had been, to some extent, modi- fied and adapted to our condition by the legislative jurisprudence of the colonial and provincial governments, it follows that these rules and principles were regarded as binding both upon legislators and judges in their respective departments. A part of this sj'stem are the well known rules of construction for the expounding of statutes, which are as much a part of every statute as its text. These are presumed to be known and kept in view by the legislature in framing the statute ; and they must be alike regarded by judges in expounding it. It was further insisted in the argument that the legislature could not have intended, when they rei^ealed one license law, in efiect to re- establish another. But their intentions must be ascertained by their acts alone, and not by evidence aliunde. We cannot possibly know the intentions of members of the legislature. It is the will of the aggre- gate body as expressed in the statutes which they pass, which can be regarded as having the force of law ; any different construction would lead to the greatest confusion and uncertainty. The legislature are presumed to understand and intend all consequences of their own measures ; and the only safe course is for courts of justice to expound the intentions of the legislature by their acts, and those acts construed by known and established rules of construction. CHAP. I.] COMMONWEALTH V. CHURCHILL. On the whole, the Court are of opinion that the simple repeal of St. 1838, c. 157, by that of 1840, c. 1, did revive the 2d and 3d sections of the Rev. Stats, c. 47, and that the provisions of those sections were in force at the time of the offences charged in the indictment, and that the conviction was right. JExce2)tions overruled. 10 BEX V. O'DONNELL. [chap. U. CHAPTER IL CRIMINAL PROCEDURE. 4 Bl. Com. 289. We are now to consider the regular and ordi- nary method of proceeding in the courts of criminal jurisdiction ; which may be distributed under twelve general heads, following each other in a progressive order, namely: 1, Arrest; 2, Commitment and Bail ; 3, Prosecution ; 4, Process ; 5, Arraignment and its incidents ; 6, Plea and Issues; 7, Trial and Conviction; 8, Clergy; 9, Judgment and its consequences; 10, Reversal of Judgment; 11, Reprieve or Pardon; 12, Execution. 2 Hawkins, Pleas of the Crown, ch. 15.^ Wherever a person is brought before a justice of peace upon an accusation of treason or felony, he must be either bailed or committed, unless it manifestly appear that no such crime was committed, or that the cause for which alone the party was suspected was totally groundless, in which cases only it is lawful to discharge him without bail. (Ibid. ch. 16, Sect. 1.) Persons apprehended for offences which are not bailable, and also all persons who neglect to offer bail for offences which are bailable, must be committed. REX V. O'DONNELL. Central Criminal Court. 1835. [Reported 1 CSfP. 138.] The prisoner was indicted for stealing fifty-four silver spoons, and various other articles, the goods of M. A. Moore, his mistress, in her dwelling-house. The prisoner was not defended b}' counsel, and he complained that he was prevented from employing an}' bj'^ the act of the officer who searched him, in taking away all the money that he had about him. Patteson, J., in the course of his summing up, said: The pris- oner complains that his monc}' was taken from him, and that he was thereby deprived of the means of making his defence. Generally speaking, it is not right that a man's money should be taken away from him, unless it is connected in some way with the property stolen. ^ The references to Hawkins are to the 8th ed. by Curwood, London, 1824. CHAP. II.] INDICTMENT. 11 If it is connected with the robber}', it is quite proper that it should be taken. But unless it is, it is not a fair thing to take away his money, whicli he might use for his defence. I believe consta])les are too uiuch in the habit of taking away every thing they find upon a prisoner, which is certainly not right. And this is a rule which ought to be observed by all policemen and other peace ofllcers. 2 llawkius, Pleas of the Crown, ch. 25. An indictment is an accu- sation, at the suit of the king, by the oaths of twelve men of the same county wherein the offence was committed, returned to inquire of all offences in general in the county determinable by the court into which they are returned, and finding a bill brought before them to be true. But when such accusation is found by a grand jury, without any bill brought before them, and afterwards reduced to a formed indictment, it is called a presentment. And when it is found by jurors returned to inquire of that particular cflTence only which is indicted, it is properly called an inquisition. (Ibid. Sect. 16.) It seems clear that by the common law every indictment must be found by twelve men at the least, every one of whom ought to be of the same county, and returned by the sheriff, or other proper officer, without the nomination of an}' other person what- soever; and ought also to be a freeman, and a lawful liege subject; and consequently neither under an attainder of any treason or felony, nor a villein, nor alien, nor outlawed, whether for a criminal matter or, as some say, in a personal action. And from hence it seems clear that if it appear by the caption of an indictment, or otherwise, that it was found by less than twelve, the proceedings upon it will be erroneous. 4 Bl. Cora. 303. This grand jury are previously instructed in the articles of their inquiry, by a charge from the judge who presides upon the bench. They then withdraw, to sit and receive indictments, which are preferred to them in the name of the king, but at the suit of any private prosecutor ; and they arc only to hear evidence on behalf of the prosecution : for the finding of an indictment is only in the nature of an inquiry or accusation, which is afterwards to be tried and determined ; and the grand jury are only to inquire, upon their oaths, whether there be sufficient cause to call upon the party to answer it. A grand jury, however, ought to be thoroughly persuaded of the truth of an indictment, so far as their evidence goes ; and not to rest satisfied merely with remote probabilities ; a doctrine that might be applied to very oppressive purposes. . . . When the grand jury have heard the evidence, if they think it a groundless accusation, they used formerly to indorse on the back of the bill, " ignoramus ; " or, we know noth- ing of it : intimating that, though the facts might possibly be true, that truth did not appear to them : but now, they assert in English more absolutely, "not a true bill;" or (which is the better way), "not 12 AKRAIGNMENT. [CHAP. 11. found ; •• and then the party is discharged without further answer. Hut a fresh bill may afterwards be preferred to a subsequent grand jiirv. If they are satisfied of the truth of the accusation, they then in- dorse upon it, " a true bill ; " anciently, " billa vera.'' The indictment is then said to be found, and the party stands indicted. But to find a bill there must at least twelve of the jury agree ; for so tender is the law of England of the lives of the subjects that no man can be con- victed at the suit of the king of any capital oflfence, unless by the unani- mous voice of twenty-four of Ms equals and neighbors ; that is, by twelve at least of the grand jury, in the first place, assenting to the accusation ; and afterwards, by the whole petit jury, of twelve more, finding him guilty, upon his trial. But if twelve of the grand jury assent, it is a good presentment, though some of the rest disagree. And the indictment, when so found, is publicly delivered into court. 2 Hawk. P. C. ch. 28, Sect. 1. Every person at the time of his arraignment, ought to be used with all the humanity and gentleness which is consistent with the nature of the thing, and under no other terror or uneasiness than what proceeds from a sense of his guilt, and the misfortune of his present circumstances ; and therefore ought not to be brought to the bar in a contumelious manner, — as with his hands tied together, or any other mark of ignominy and reproach ; nor even with fetters on his feet, unless there be some danger of a rescous or escape. It seems indeed to have been holden by some that this is a particular privilege of persons in holy orders ; but it seems the better opinion that the law makes no distinction in this respect between them and laymen. 4 Bl. Com. 324. When a criminal is arraigned, he either stands mute or co7ifesses the fact ; which circumstances we may call incidents to the arraignment : or else he pleads to the indictment, which is to be considered as the next stage of proceedings. But, first, let us observe these incidents to the arraignment, of standing mute, or confession. Regularly, a prisoner is said to stand mute, when, being arraigned for treason or felony, he either, (1) Makes no answer at all; or, (2) Answers foreign to the purpose, or with such matter as is not allowable, and will not answer otherwise ; or, (3) Upon having pleaded not guilty, refuses to put himself upon the countr}'. If he says noth- ing, the court ought ex officio to empanel a jur}' to inquire whether he stands obstinatel}' mute, or whether he be dumb ex visitatione Dei} If the latter appears to be the case, the judges of the court (who are to be of counsel for the prisoner, and to see that he hath law and justice) shall proceed to the trial, and examine all points as if he had pleaded not guilty. But whether judgment of death can be given against such a prisoner who hath never pleaded, and can say nothing in arrest of judgment, is a point as yet undetermined. If he be found to be obstinately mute (which a prisoner hath been held 1 State V. Doherty, 2 Overton, 80. —Ed. OHAP. II.J STANDING MUTE. 13 to be that hath cut out his own tongue), then, if it be on an indictment of high treason, it hath kjng been clearly settled, that standing mute is an equivalent to a conviction, and he shall receive the same judgment and execution. And as in this the highest crime, so also in the lowest species of felony, viz. : in petit larceny, and in all misdemeanors, standing mute hath alwaj-s been equivalent to conviction. But upon appeals or indictments for other felonies, or petit treason, the prisoner was not, by the ancient law, looked upon as convicted, so as to receive judgment for the felony ; but should, for his obstinacy, have received the terrible sentence of penance, or peine (which, as will appear pres- ently, was probably nothing more than a corrupted abbreviation of prisone) forte et dure. Before this was pronounced the prisoner had not only tritia admoni- tio, but also a respite of a few hours, and the sentence was distinctly read to him, that he might know his danger ; and, after all, if he continued obstinate, and his offence was clergyable, he had the benefit of his clergy allowed him, even though he was too stubborn to pray it. Thus tender was the law of inflicting this dreadful punishment ; but if no other means could prevail, and the prisoner (when charged with a capital felony) continued stubbornly mute, the judgment was then given against him without any distinction of sex or degree. A judgment which was purposely ordained to be exquisitely severe, that by that very means it might rarely be put in execution. . . . The English judgment of penance for standing mute was as follows : that the prisoner be remanded to the prison from whence he came ; and put into a low, dark chamber ; and there be laid on his back, on the bare floor, naked, unless where decency forbids : that there be placed upon his body as great a weight of iron as he could bear, and more ; that he have no sustenance, save only, on the first day, three morsels of the worst bread ; and on the second day, three draughts of standing water, that should be nearest to the prison door ; and in this situation this should be alternately his daily diet till he died, or (as anciently the judgment ran) till he a?isioered.^ . . . The other incident to arraign- ments, exclusive of the plea, is the prisoner's actual confession of the indictment. Upon a simple and plain confession, the court hath noth- ing to do but to award judgment : but it is usually very backward in receiving and recording such confession, out of tenderness to the life of ' the subject ; and will generally advise the prisoner to retract it, and plead to the indictment. 2 See Stats. 12 Geo. III., ch. 20; 7 & 8 Geo. IV., ch. 28, § 2. " If the defen(]aiit refuse to answer an indictment by demurrer or plea, a plea of not guilty mn.st be entered." N. Y. Code Crim. Proc. § 342. ^ " If on arraignment a person refuses to plead or answer, or does not confess the in- dictment to be true, tlie court shall order a plea of not guilty to be entered, and there- upon the proceedings shall be the same as if he had pleaded not guilty. It shall not be necessary in any case to ask a prisoner how he will he tried." .Mass. Tub. Stat ch. 21.3, sect. 37. U. S. Rev. Stat. § 1032, to the same effect. 24 SCHWAB V. BERGGREX. [CHAP. II. 2 Hawk. P. C. ch. 33, Sect. 1. It may not be improper to look a lillle back into the original of clergy, whereby we shall find that an- ciently the clergy strongly insisted that by the law of God their persons were so sacred tiiat they could not, without a violation of that law, be convened before, and much less be punished with the loss of life or member by, any secular judge, for any crime whatsoever. But there seems to be so little color for any pretence of this kind from Scripture, that I almost wonder how it was possible that any persons could be so far prejudiced as seriously to be persuaded that it is deducible from thence. 4 Bl. Com. 3GG. Originally the law was held that no man should be admitted to the privilege of clergy but such as had the habitutn et ton- swam clericalem. But in process of time a much wider and more com- prehensive criterion was established : every one that could read (a mark of great learning in those daj's of ignorance and her sister, superstition) being accounted a clerk or clericus, and allowed the benefit of clerk- ship, though neither initiated in holy orders, nor trimmed with the clerical tonsure. But when learning, by means of the invention of printing, and other concurrent causes, began to be more generallj- dis- seminated than formerl}- ; and reading was no longer a competent proof of clerkship, or being in holj- orders ; it was found that as many laymen as divines were admitted to the privilegiuni clericale : and therefore by statute 4 Hen. VII. c. 13, a distinction was once more drawn between mere la}' scholars, and clerks that were really in orders. And, tliough it was thought reasonable still to mitigate the severity of the law with regard to the former, yet the}'^ were not put upon the same footing with actual clergy ; being subjected to a slight degree of punishment, and not allowed to claim the clerical privilege more than once. Accordingly the statute directs that no person once admitted to the benefit of clergy shall be admitted thereto a second time, unless he produces his orders : and in order to distinguish their persons, all laymen who are allowed this privilege shall be burnt with a hot iron in the brawn of the left thumb. 4 Bl. Com. 375. When, upon a capital charge, the jury have brought in their verdict guilty, in the presence of the prisoner, he is either immediately, or at a convenient time soon after, asked bj' the court if he has anything to offer why judgment should not be awarded against him. Harlan, J., in Schwab v. Berggren, 143 U. S. 442, 446, 448. At common law it was deemed essential in capital cases that inquiry bo made of the defendant, before judgment was passed, whether he had anything to say why the sentence of death should not be pronounced ui>on him ; thus giving him an opportunity to allege any ground of ar- rest, or to plead a pardon, if he had obtained one, or to urge any other legal objection to further proceedings against him. This privilege was CHAP. II. j SCHWAB V. BERGGREN. 15 deemed of such substantial value to the accused that the judgment would be reversed if the record did not show that it was accorded to him. Ball v. United States, 140 U. S. 118, 129, 11 Sup. Ct. Rep. 7G1 ; 1 Chit. Crim. Law, 699, 700 ; Rex v. Geary, 2 Salk. 630 ; King v. Speke, 3 Salk. 358 ; Anon., 3 Mod. 266 ; 1 Archb. Crim. Pr. & PI. (Pom. Ed.) 577, 578. And it has been so ruled in the courts of some of the States. Hamilton v. Com. 16 Pa. St. 129, 133; Messner v. People, 45 N. Y. 1,5; James v. State, 45 Miss. 572, 579; Crim v. State, 43 Ala. 53, .")G ; Perry v. State, Id. 21 ; State v. Jennings, 24 Kas. 642, 659 ; Keeoh v. State, 15 Fla. 591, 609 ; Grady v. State, 11 Ga. 253, 257 ; Safford v. People, 1 Parker Crim. R. 474, 476. Numerous authorities have been cited for the appellant in support of the general common law rule that the accused must be present when the judgment against him is pronounced ; but they fall far short of estab- lishing the contention that due process of law required his personal presence in the Supreme Court of Illinois at the time the order was entered affirming the judgment by which he was sentenced to death. No case is cited, and we are aware of no well-considered case, wliich supports that contention. The personal presence of the accused from the beginning to the end of a trial for felony, involving life or liberty, as well as at the time final judgment is rendered against him, may be, and must be assumed to be, vital to the proper conduct of his defence, and cannot be dispensed with. This Court in Hopt v. Utah, 110 U. S. 574, 579, 4 Sup. Ct. Rep. 202, after observing that the public has an interest in the life and liberty of the accused, and that neither can be lawfully taken except in the mode prescribed by law, said : " That which the law makes essential in proceedings involving deprivation of life or liberty cannot be dispensed with or affected by the consent of the ac- cused, much less by his mere failure, when on trial and in custody, to object to unauthorized methods. The great end of punishment is not the expiation or atonement of the offence committed, but the prevention of future offences of the same kind. 4 Bl. Com. 11. Such being the relation which the citizen holds to the public, and the object of punish- ment for public wrongs, the legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution for felony that he shall be personally present at the trial ; that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or liberty with- out being so present, such deprivation would be without that due pro- cess of law required by the constitution." See Harris v. People, 130 111. 457, 459, 22 N. E. Rep. 826. But neither reason nor public policy require that he shall be personally present pending proceedings in an appellate court whose only function is to determine whether, in the transcript submitted to them, there appear any error of law to the pre- judice of the accused ; especially where, as in this case, he had counsel to represent him in the court of review. We do not mean to say that the appellate court may not, under some circumstances, require his 16 REX V. HUGH. [chap, IT. personal presence, but only that his presence is not essential to its jurisdiction to proceed with the case. [Note. — The following case, reported in Y. B. 30 & 31 Ed. 1, 529, is inserted as a curious illustration of ancient forms of procedure.] H. wai presented by the twelve of Y., for that he seized a certain girl, and carried her to his manor in a certain vill, and carnally knew her against her will. H. was brought to the bar by Brian and Nicholas de N. The JiSTiciAE. Brian, we are given to understand that you would have induced the prisoner not to put himself upon the jury which accused him, and you have done ill. but because he is your relative, we are willing that you should stand by him, but not that you should act as his counsel. Brian. My lord, he is my relative, but I wish to disprove this, &c., and I desire that it should 'be well with him; but he will be well advised by me to refuse his com- mon law. And lest I should be at all suspected of strife, I will withdraw. The .Tcsticiar. Hugh, the presentment is made to us that you carried off, &c., as is set forth ; how will you acquit yourself ? IJw;h. My lord, I pray that I may have counsel, lest I be undone in the King's court for lack of counsel. Tm: JisTiciAR. You must know that the king is a party in this case, and prose- cutes ex officio ; therefore the law in this case does not suffer you to have counsel against the king, who prosecutes ex officio ; but if the woman should proceed against you, you might have counsel against her, but not against the king. And therefore we order on the king's behalf that all pleaders of your counsel withdraw. (These were removed). Hugh, answer. You see the thing charged against you is a very possible thing, and a thing of your own doing ; so you can well enough, without any counsel, answer whether you did it or not. Moreover, the law ought to be general, and appli- cable to all persons ; and the law is that the king is a party ex officio, against whom one shall not have counsel ; and if, in contradiction to law, we should allow you coun- sel, and the Jury should give a verdict in your favor (as, please God, they will do), people would say that you were acquitted by reason of the favor of the Justiciars ; consequently we do not dare grant your request, nor ought you to make it. Therefore, answer. IIu(jh. My lord, I am a clerk, and ought not to be required to answer except unto my ordinary. The Justiciar. Are you a clerk ? Hugh. Yes, my lord, for I have been rector of the church of N. Ordinary. We demand him as a clerk. Hugh. He speaks for me. The JiTSTiciAR. We say that you have forfeited your benefit of clergy, inasmuch as you are a bigamist, having married a widow ; tell us whether she was a virgin when you married her ; and it is as well to know the truth at once as to delay, for we can find out in a moment from a jury. Hugh. My lord, she was a virgin when I married her. The Justiciar. This should be known at once. And he asked the twelve whether Hugh, &c., who said on their oath that she was a widow when Lord Hugh married her. But note that they were not sworn anew, because they had been sworn before. The Justiciar. Therefore this court adjudges that you answer as a layman, and agree to those good men of the twelve ; for we know that they will not lie to us. Hugh. My lord, I am accu.sed by them ; therefore I shall not agree to them. Be- sides, my lord, I am a knight, and I ought not to be tried except by my peers.^ Th?; Justiciar. Since you are a knight, we are willing that you be judged by your peers. And knights were named ; and he was asked if he wished to propound any challenges against them. Hugh. My lord, I do not agree to them; you shall take whatever inquisition yoa will from your oflRce, but I will not agree. CHAP. II.] REX V. HUGH. 17 The Justiciar. Lord Hugh, if you will agree to them, God willing, they will find for you if you will only consent to them. But if you will refuse the common law, you will incur the penalty tliorefor ordained, to wit, " one day you shall eat, and the next day you shall drink ; and on the day when you drink y.m shall not eat, and e contra; and you shall eat barley-bread, and not wlicaten-brcad, and drink water," &c explaining many reasons why it would not be well to delay at this point, but would be better to agree to these. f{u(/h. I will agree to my peers, but not to the twelve by whom I am accused ; wlierefore hear my challenges against them. Thk Justiciak. Willingly; let them be read; but if you have anything to say wherefore they ought to be removed, say it with your own voice or in writing. Iluyli. My lord, I pray counsel, for I cannot read. The Justiciar. No, for it is a matter touching our Lord the King. Hugh. Do you take them and read them. The Justiciar. No, for they ought to be proposed by your own mouth. lIiKjh. But I cannot read them. The Justiciar. How is this, that you would have claimed your benefit of clergy, and cannot read your challenges? (Hugh stood silent in confusion.) Do not be struck dumb, now is the time to talk. (To Lord N. de Leyc) Will you read Lord Hugh's challenges ? Lord N. My lord, if I do, let me have the book which he has in his hands. (After receiving it) My lord, here are written challenges against several ; shall I read them aloud 1 The Justiciar. No, just read them secretly to the prisoner, for they ought to be offered by his own mouth. And so it was done. And when they had been offered by his own mouth, since they were found true challenges, those against whom they were offered were removed from the inquisition. The Justiciar. We challenge Lord Hugh of the rape of a certain woman, he denies it, and is asked how he will be tried ; he says, by a good jury ; wherefore for good or ill he puts himself upon you ; and so we enjoin you by virtue of your oath, tell us whether Lord Hugh ravished the aforesaid woman or not. The twelve. We say that she was ravished by force by Lord Hugh's men. The Jdsticiar. Was Hugh consenting to the act or not ? The twelve. No. The Justiciar. Did they know her carnally ? The twelve. Yes. The Justiciar. Was the woman unwilling or consenting ? The twelve. Consenting.- The Justiciar. Lord Hugh, since they acquit yon, we acquit you. 1 Magna Charta (9 H. 3.) c. 29. No freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed ; nor we will not pass upon him nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right. ^ Credo quod deberet hie quod tamen post defuit. — Rep. 13 INDICTMENT. f CHAP. III. CHAPTER III. THE INDICTMENT. SECTION I. General Requisites of an Indictment. 2 Hawkins, Pleas of the Crown, ch. 25, Sect. 55. No periphrasis or circumlocution whatsoever will supply those words of art which the law hath appropriated for the description of the offence, as murdravit, in an indictment of murder ; cep**?, in an indictment of larceny ; mayhem- iavit, in an indictment of maim ; felo?nce, in an indictment of any felon}' whatever ; bxirglariter, or burgidariter, or else hurgalariter^ in an indictment of burglar}' ; proditorie, in an indictment of treason ; contra ligeajitiae suae debitum, in an indictment of treason against the king's person. 2 Hawkins, Pleas of the Crown, ch. 25, Sect. 62. Where one material part of an indictment is repugnant to another the whole is void ; for the law will not admit of such nonsense and absurdities in legal pro- ceedings, which if suffered, would soon introduce barbarism and con- fusion. Also it takes off much from the credit of an indictment that those by whom it is found have contradicted themselves. And upon this ground ... it hath been adjudged that an indictment for selling iron with false weights and measures is void, not only because it is absurd to suppose that iron could be sold by measure, but also because it is repugnant and inconsistent that it should be so sold at the same time when it was .sold by weight.^ ^ Every indictment or information ought to contain a complete description of such facts and circumstances as constitute the crime, without inconsistency or repug- nancy ; and, except in particular cases, where the precise technical expressions are required to be used, there is no rule that other words shall be employed tlian such as are in ordinary use ; or that in indictments or other pleadings a different sense is to be put upon them than what they bear in ordinary acceptation. And if, where the sense may be aniViiguous, it is sufficiently marked by tlie context, or other means, in what sense they arc intended to be used, no objection can be made on the ground of repug- nancy, which only exists where a sense is annexed to words which is either absolutely inconsistent therewith, or being apparently so, is not accompanied by anything to ex- plain or define them. If the sense be clear, nice exceptions ought not to be regarded • in respect of which Lord Hale (2 Hale's P. C. 193) says that " more offenders escape by the over-easy ear given to exceptions in indictments than by their own innocence, SECT. I.] STATE V. BROWN. 19 2 Hawkins, Pleas of the Crown, 8th ed., ch. 25, Sects. 118, 119, 126, 127, 128. As to the ninth general point of this chapter, viz.: What ono-ht to be the form of the caption of an indictment. I shall take it for granted that every such caption is erroneous, which doth not set forth with proper certainty both the court in which, and the jurors by whom, and also the time and place at which, the indictment was found. As to the first of these particulars, viz. : What certainty is necessary in the caption of an indictment in respect to the court before which it was found. It is certain that every such caption must shew that the indictment was taken before such a court as had jurisdiction over the offence indicted. As to the second particular, viz. : What certainty is necessary in the caption of an indictment in respect of the jurors by whom it was found. It seems agreed that no caption of an indictment, whether found at a court-leet, or other inferior court, can be good without expressly shew- ing that the jurors who found it were of the county, city, or burgh, or other precinct for which the court was holden, and that they were at least twelve in number, and also that they found the indictment upon their oaths. As to the third particular, viz. : What certainty is necessary in the caption of an indictment in respect of the time when it was found. It seems agreed that such caption must set forth a certain day and year when the court was holden before which the indictment was found. As to the fourth particular, viz. : What certainty is necessary in the caption of an indictment in respect of the place where it was found. It seems agreed that if such caption either set forth no place at all where the indictment was found, or do not shew with sufficient certainty that the place set forth is within the jurisdiction of the court before which it was taken, [it] is insufficient. STATE V. BROWN. Supreme Court of North Carolina. 1819. [Reported 3 Murphy, 224.] The indictment against the defendant was in the following words, to wit : — " The Jurors for the State, upon their oaths, present that John Brown, late of the County of Camden, shop-keeper, on the first day of Februar}', 1817, and continually thereafter up to the time of taking and many heinous and crying offences escape by these unseemly niceties, to the re- proach of the law, to the shame of the government, and to the encouragement of vil- lany and the dishonor of God." — Lord Ellenboro, C. J., in Rex v. Stevens, 5 East, 244, 259. 20 DAMON'S CASE. [CIIAP. III. this inquisition at Camden aforesaid, was, and yet is, a common Sabbatb-brcaker and piopbaner of tlie Lord's day, commonly called Sunday ; and that the said John Brown, on the day aforesaid, being Lord's dav, and on divers other days and times, as well before as since, being Lord's day, did then and there keep and maintain a certain open shop, and on the days and times aforesaid, there sold and exposed to sale divers goods, wares, and spirituous liquors, to negroes and others, to the great damage of the good citizens of this State, and against the peace and dignity of the State." The defendant submitted ; but the court entertaining a doubt whether the facts set forth in the indictment constituted an indictable offence as therein set forth, sent the case to this court; and Henderson, J., delivered the opinion of the court : — The indictment charges that the defendant is a common Sabbath- breaker and prophaner of the Lord's day. If it had stopped here, it woultl certainly have been insufficient, as it would not shew how, or in what manner, he was a common Sabbath-breaker and prophaner of the Lord's daj'. Tlie court, upon an inspection of the record, must be able to perceive the alleged criminal act : for an indictment, as was once well observed from this bench by Judge Lowrie, is a compound ot law and fact. The latter part of the indictment charges that the de- fendant kept an open shop and sold divers goods, wares, and spirituous liquors to negroes and others on the Sabbath. This offence, as charged, is not punishable b}' indictment ; for if the act can be intended to be lawful, it shall be so presumed, unless it be charged to be done under circumstances which render it criminal, and be so found by a jur^-. For ought that appears to the contrary, this sale might have been to the lame or weary traveller, or to others to whom it was a merit to sell, in- stead of a crime ; and nothing shall be intended against a defendant. And if this were the Sabbath-breaking spoken of in the foregoing pr.rt of the indictment, taking the whole together, the defendant well might liave done all charged against him, and j-et have committed no crime ; and as this may have been the case, we are bound to presume it ; at least, not to presume to the contrary. The judgment must be arrested. DAMON'S CASE. Supreme Judicial Court of Maine. 1829. [Reported 6 Maine, 148.] In this case the defendant was indicted for that he, having been law- fully married at Reading in Massachusetts, in 1805, was unlawfully again married to another woman, at Farmington in this county, in 1812, SECT. I.] Damon's case. 21 the former wife being still alive ; "against the peace of said State, and against the form of the statute in such case made and provided." The defendant moved for a new trial, because, 4th, the indictment was defective.* Pakkis, J. The only remaining question presented in this case is as to the sufficiency of the indictment. The case finds that the second marriage of the defendant was in this county, in 1812. Supposing it to have been proved or admitted at the trial, that at the time of the second marriage the first wife was alive (and this fact must necessarily have been established to the satisfaction of the jury), the offence set forth in the indictment was committed at that time, and consequently against the peace of the then existing government and the laws thereof. It could not have been an offence against the peace of the State of Maine, or in violation of its laws, for at that time Maine had not been invested with the sovereign power of a State. The territory was a portion of Massachusetts, and the inhabitants were amenable to the laws of that sovereignty. Whoever commits an offence indictable either b}' statute or at com- mon law is guilty of a breach of the peace of that government which exercises jurisdiction, for the time being, over the place where such offence is committed ; and in setting forth the offence an omission to charge it as having been done against the peace of that government is fatal. The Queen v. Lane, 3 Salk. 199 ; 2 Ld. Raymond, 1034. It is even insufficient, if charged as against the peace generally, without naming the particular sovereignt}', whose peace is alleged to have been violated. 2 Hale's P. C. 188. So, also, if it be an offence created by statute, as in this case, the indictment must allege it to have been com- mitted against the form of the statute, or it will be fatal. 2 Mass. Rep. 116. Now it would be preposterous to allege the offence to have been com- mitted against a statute of the State of Maine ; for at that time Maine had no statutes, and the statute touching this subject which has since been enacted by our legislature is materially different, especiallj' in the penal part, from the statute of Massachusetts. As the indictment, in this case, sets forth a statute offence committed in the year 1812, by a person subject to the laws of Massachusetts, in a place then under the jurisdiction of that government, it consequentU' must have been against the peace of that sovereignt}- and that only ; and not being so alleged, the prosecution cannot be sustained. The authorities by which our opinion on this point is supported are : 2 Hale's P. C. 188 ; 2 Hawk. ch. 25, sect. 95 ; Yelv. 66 ; 4 Com. Dig. Indictment, G. 6, and Rex v. Lookup, 3 Burr. 1903. In the latter case, Lookup was indicted for perjur}-. The fact was charged to have been committed in the time of the late king, whereas the indictment concluded against the peace of the present king. After trial, convic- 1 Part of the case not relating to qneation of pleading is omitted. .)0 COMMONWEALTH V. PEAY. [CHAP. III. tion and sentence, Lookup brought a writ of error returnable in Parha- nient, when the following question was put by the lords to the judges : '' whether the perjury being alleged in the indictment to have been com- mitted in the time of the late king, and charged to be against the peace of the now king is fatal, and renders the indictment insufficient." The Lord Baron delivered the unanimous opinion of the judges in the affirma- tive ; and upon this point the judgment of the King's Bench was re- versed and the defendant discharged. Conformably to the report of the judge who tried the cause, the ver- dict must be set aside and a new trial granted. cojMMOnwealth v. pray. Supreme Judicial Court of Massachusetts. 1832. [Reported 13 Pick, 359.] The defendant was indicted as follows, on the statute of 1786, c. 68, "The jurors, c&c, present that Edward Pray of Braintree, m the County of Norfolk, trader, on the thirtieth day of September, in the year oV our Lord one thousand eight hundred and thirty, and on divers other days between that day and the twentieth day of December next following, at Braintree aforesaid, did presume to be and was a common seller of wine, beer, ale, cider, brandy, rum, and other strong liquors by retail, in less quantities than twenty-eight gallons, and that delivered and carried away all at one time, and did at said Weymouth, during all the time hetxreen the days aforesaid^ commoyily ayid habitually sell to divers persons to the jurors unknown, loine, beer, ale, cider, brandy, rum, and other stroiig liquors by retail, in less quantities than twenty - eight gallons, and that delivered and carried away all at one time, he, the said Edward Pray, not being first duly licensed therefor accord- ing to law," &c. The defendant demurred generally to the indictment. Kingsbury , in support of the demurrer, objected to the indictment on the grounds of uncertainty and repugnancy. The allegations that the offence was committed at Braintree and at " said Weymouth," are re- pugnant, and the place of the offence is rendered uncertain. 2 Hale's P. C. 180; Bac. Abr. Indictment, G 4; Hawk. bk. 2, c. 25, § 83; Cholmley's case, Cro. Car. 465 ; Wingfield's case, Cro. Eliz. 739. The general rule is that an indictment should set forth the particular facts constituting the offence charged. There are some exceptions, as in the cases of a common barrator and a common scold, but the}' do not em- brace the offence for which this defendant is indicted. 2 Hale's P. C. 182 ; Hawk. bk. 2, c 2.5, § 59. The second allegation in the indict' SECT. I.] COMMONWEALTH V. PRAY. 23 ment is descriptive of the offence, and is repugnant to the first allega- tion, and for both of these reasons it cannot be rejected as swrplnsage. Rex u. Holt, 2 Leach, 676 ; s. c. 5 T. R. 446 ; 3 Stark. Ev. 1529 ; Com. Dig. Pleader, E 12 ; Co. Lit. 303 b ; Gould's PI. 155, c. 3, § 172. Austin, Attorney-General, for the Commonwealth, said that the clause in the indictment printed in Italics miglit be rejected as surplusage ; 1 Chit. Crim. Law, 238 ; Commonwealth v. Hunt, 4 Pick. 252 ; and that it has been the invariable practice, ever since this statute was passed, to set forth the offence in this general form, and that the case came within the reasons of the exceptions in regard to common barrators and common scolds. MoKTON, J., delivered the opinion of the court. This case comes before us on general demurrer ; and the only subject for our considera- tion is the sufficiency of the indictment. It is framed upon the first sec- tion of St. 1786, c. 68. That section contains two distinct prohibitions, enforced by different penalties. The first clause provides that no person may, without being duly licensed, "■ presume to be a common victualler, innholder, taverner, or seller of wine, beer, ale, cider, brandy, rum, or any strong liquors, by retail," under a penalty of twenty pounds. The second clause provides that if any person shall, without license, "sell any spirituous liquors, or any mixed liquors, part of which is spirituous," he shall incur a penalty of not less than forty shillings, nor more than six pounds. The first offence consists in presuming to be a common victualler, or common seller, &c. ; the second, in actually selling. Al- though the first offence may not be completed without committing the second, j'et the second may be, without committing the first. The indictment contains two distinct charges. The one, in general terms, that the defendant did presume to be and was a common seller, &c., — in the words of the statute. The other, that the defendant did commonly and habitually sell to divers persons to the jurors unknown, wine, &c. The first is laid with a proper vemie, viz., " at Braintree aforesaid," Braintree having just before been described as in the County of Norfolk. In the second, the offence is alleged to have been com- mitted " at said Weymouth ; " whereas Weymouth had not before been named. This unquestionably Is a mere clerical error. But it is incon- sistent with the former venue^ and clearly insufficient. Hawk. bk. 2, c. 25, § 83 ; 2 Hale's P. C. 180. The next inquiry is whether this defective averment may not be re- jected as surplusage. It does not contradict any other averment in the indictment ; it is not descriptive of the identity of the charge, or of anything essential to it, nor does it, in any degree tend to show that no offence was committed. 3 Stark. Ev. 1529 ; 1 Chit. Crim. Law, 238; Gould's PI. 154, 155, and authorities there cited; Commonwealth v. Hunt, 4 Pick. 252. The second allegation, embracing all between the words " all at one time," where they first occur, and the words " he the said Edward," may properly be rejected as surplusage. Indeed it must be excluded, for it 24 COMMONWEALTH V. PRAY. [CHAP. IIL contains no legal averment ; and the indictment must be treated as if originally drawn without it. But as it cannot aid the indictment, so it wilt not injure it. Utile per iniitile no7i vitiatur. The indictment describes the offence in the very words of the statute. This usually is not sufficient. The established rules of pleading require the essential facts and circumstances to be particularly, unambiguously, and certainly stated, that the court may know whether they amount to a violation of the law, and what punishment, if any, they require. A "■eneral charge, as that a man is a common thief, common forestaller, or common champertor, «S:c., is clearly insufficient. Hawk. bk. 2, c 25, But this general rule, useful and important as it may be, is not with- out its exceptions ; for there are classes of cases to which it does not ai)plv. Wherever the crime consists of a series of acts, they need not 1)0 specially described, for it is not each or all the acts of themselves, but the practice or habit which produces the principal evil and consti- tutes the crime. Thus, it is sufficient to charge a person with being a common bar- rator, or a common scold. Hawk. bk. 2, c. 25, § 59. And it is not necessary to set forth any particular acts of barratry or of scolding ; for it is the general practice, and not the particular acts which consti- tutes the offence. They go to make up the evidence of the crime, but are not the crime itself. And it is never necessary in pleadings, civil or criminal, to set forth the evidence. There is another class of cases, which, though not very similar to the above, seem to come within the same exception. It is sufficient to charge a person generally with keeping a house of ill-fame, a disorderly house, or a common gaming house. Hawk. bk. 2, c. 25, § 57 ; Davis's Free, of Indictments, 140, 198 ; Rex v. Higginson, 2 Burr. 1233. Now although all the acts which make up these general offences are in them- selves unlawful, it is not necessary to set them forth. The several acts may be indicted and punished separately, but the keeping the house is a distinct offence, and as such liable to punishment. This indictment comes within these principles. Although to make out the statute offence it may be necessary to prove particular acts, such as entertaining company or selling spirits, 3'et these acts are only evidence of the general charge, and may be proved, but need not be alleged. There is also one other class of cases, well settled, as we think, which are. in principle, similar to the case under consideration. It is made the duty of towns to keep in repair all highways within their limits ; and for a neglect of this dut}* the}- are liable, not only to indictment, but, if any individual injur}' occurs bj- reason of it, to a civil action. St. 1786, c. 81. In indictments and declarations on this statute, which are of almost daily occurrence, the practice never has been to set forth minutely the defects in the highwa}-. But a general allegation, that a certain highway is out of repair, ruiuous, and unsafe, has always been SECT. I.] HIRN V. STATE. 25 deemed sufficient. Hawk. bk. 2, c. 25, § 68 ; Davis's Free, of Indict- ments, 195 ; Rider v. Smith, 3 T. R. 766. The object of the rule requiring the charge to be particular!}-, cer- tainly, and technically set forth, is three-fold. First, to apprise the dc^fendant of the precise nature of the charge made against him. Sec- oiidl}', to enable the court to determine whether the facts constitute an offence and to render the proper judgment thereon. And thirdly, that the judgment may be a bar to any future prosecution for the same ulfcnce. 3 Stark. Ev. 1527. The allegations remaining in this indictment entirely satisfy all these objects. They fully apprise the defendant of the nature of the charge preferred ngainst him. When it is alleged that at a certain time he did presume to be and was a common innholder and common seller of spirits, «&c., he cannot be ignorant of the offence which is imputed to him. Besides, the court, according to the modern practice, in all cases of general allegations, take care that the defendant shall not be sur- prised, but that he shall seasonably be furnished with such specifica- tions and particular statements as may be necessary' to enable him to prepare for his trial, and to meet all the proof which may be brought against him. It is admitted that if the second allegation were suffi- cient, the whole indictment would be good. Now it is apparent that this second clause gives no information as to the nature of the offence, or of the particular facts to be proved, not contained in the first. That the indictment is suflScient to enable the court to render the proper judgment, and that it will be a bar to all future prosecutions for the same offence, we cannot doubt. In this case the time enters into the essence of the offence, and with entire certainty fixes the iden- tity. The defendant can never again be punished for being a common seller, &c., within the time described in the indictment. But even if the identity were not proved by the record, it might, as in man}' other cases, he established by proof aliunde. Upon the whole, the court are of opinion, that the second clause in the indictment may properly be rejected as surplusage ; that the indict- ment, without it, contains all the allegations necessarj' to its support ; and therefore that the demurrer must be overruled. HIRN V. STATE. Supreme Court of Ohio. 1852. [Reported 1 Ohio St. 15.] Bartley, J.^ It may be important to notice the question of the suf- ficiency of the indictment, for the purpose of settling a rule of pleading * Part of the case not relating to the question of pleading is omitted. 26 HIRN V. STATE. [CHAP. IIL in ref'ard to which the authorities are not clear and somewhat conflict- ine. This question is now relied on by the plaintiff in error, although not raised in the Common Pleas. It is claimed that the indictment is defective on the ground that it does not contain a negative averment, that the sale of spirituous liquor charged was not for medicinal or pharmaceutical purposes. The penal offence is described or defined in the first section of the act of 1851, and at the close of the section is a proviso in these words : " Provided, that nothing contained in this section shall be so construed as to make it unlawful to sell any spirituous liquors for medicinal and pharmaceutical purposes." The rule laid down in the authorities on this subject is generally defined in this manner : that when a criminal or penal statute contains an exception in the enacting clause, that exception must be negatived in the indictment ; but where the statute contains provisos and excep- tions in distinct clauses, it is not necessary to allege that the defendant does not come within the exceptions, nor to negative the provisos. 1 Chitty's Crim. Law, 284. In some of the authorities the negative allegation is made to depend upon the place in the statute where it occurs, 1 Term R. , 141 ; in others upon the question whether the ex- ception or proviso qualifies the description of the offence. In some, the rule is made to depend upon whether the exception be a matter of description in the negative, the affirmative of which would be a good excuse for the defendant, 2 Hawk. 255, 112 ; while in others, it is made to depend upon the distinction between a proviso in the description of the offence, and a subsequent exemption from the penalt}' under certain circumstances. This is Lord Mansfield's rule in Spiers v. Parker, 1 Term R., 86, 87. The confusion which seems to exist in regard to this rule has arisen from the various modes adopted and the indefinite language used in defining it, and the multiplicity of forms in which exceptions, qualifica- tions, and exemptions are introduced into statutes. What constitutes the enacting clause, in the meaning of some of the authorities, is not clear. A clause is a distinct member or subdivision of a sentence, in which the words are inseparably connected with each other in sense, and cannot, with proprict}', be separated b}' a point ; 5'et very frequently the language creating and describing the offence and fixing the penaltj-, in- cludes several distinct clauses and sometimes a whole section. It is requisite that ever}- indictment should contain a substantial description of all the circumstances descriptive of the offence as defined in the statute, so as to bring the defendant precisely within it. And the only substantial reason for requiring this negative averment at all is that without it the description of the offence would not be complete. When, therefore, the matter of the proviso or exception in the statute, whether it be embraced within what has been termed the enacting clause or not, enters into and becomes a part of the description of the offence, or a material qualification of the language which defines or creates the SECT. I.] COMMONWEALTH V. PERRIGO. 27 offence, the negative allegation in the indictment is requisite. But where it is a subsequent exemption, or occurs in a separate and distinct clause or part of the statute, disconnected with tlie statutory description of the offence, the negative averment is unncccssar}-. In the case before the court, the matter of the proviso in the first sec- tion of the act of 1851, points directly to tlie character of the offence, is in the same sentence with it, and made a material qualification in the statutory description of it. It is the opinion of the majority of the court that the indictment should have contained tlie negative averment, that the sale of the liquor was not for medicinal or pharmaceutical purposes, and is, therefore, defective. The judgment of the court of Common Pleas is reversed. TiiuRMAN, J., having been of counsel for the plaintiff in error, did not sit in this case. CoRwiN, J., dissented from the opinion of the court as to the suffi- ciency of the indictment, but concurred in the decision on the other points. COMMONWEALTH v. PERRIGO. Court of Appeals of Kentucky. 1860. [Reported 3 Metcalfe, 5.] A. J. James^ Attorney General, for Commonwealth, cited Crim. Code, Sect. 125. Kinclieloe & Jennings, for appellee, cited Commonwealth v. White, 18 B. Mon., 493 ; Commonwealth v. Cook, 13 B. Mon., 149. Judge Duvall delivered the opinion of the court: — The indictment charges that the defendant suffered certain named persons "to play in a house, or on premises in the county aforesaid, then in the occupation and under the control of the said Perrigo, a game of cards, at which game of cards, pla^'ed as aforesaid, money or property was won and lost." This indictment was held insufficient upon demurrer. The rule is well settled that an indictment must set forth the offence with such certaint}' as to apprise the defendant of the nature of the accusation upon which he is to be tried, and to constitute a bar to any subsequent proceeding for the same offence. Tested by this rule, the indictment under consideration is obviously defective. Whether the defendant was to be tried for suffering gaming in his house, or for suffering gaming on pronises elsewhere in the county ; or whether it was for suffering a game upon which mone}' was won and lost, or upon which property was won and lost, the defendant could not learn from anything contained in the indictment, and could 23 UNITED STATES V. CRUIKSHAXK. [CHAP. IIL not, therefore, be presumed to have been able to make any available or fifedual preparation for defence against so vague and uncertain an accusation. Nor would a conviction for sutTering a game for money to l»e played in his house have constituted a bar to a subsequent indict- ment for sutfering a game for property to be played elsewhere on his premises. Would it be pretended that, under the 2d section of the statute pun- ishing crimes against the person, it would be sufficient to charge that the defendant maliciously shot at and wounded another, with a gun or other instrument, or that the defendant cut or stabbed such person with a knife or other deadly weapon ? And yet it might, with the same propriety, be said, in support of such an indictment, that it charged but one offence ; that the shooting and stabbing were but the allegation of the diflferent modes and means by which the offence was committed, and that under the 12oth section of the Criminal Code such different modes and means might be alleged in the alternative. It is clear, however, that the section referred to cannot admit of any such construction. The judgment is affirmed. UNITED STATES v. CRUIKSHANK. Supreme Court of the United States. 1875. [Reported 92 U. S. 542.] Error to the Circuit Court of the United States for the District of Louisiana. This was an indictment for conspiracy under the sixth section of the act of May 30, 1870, known as the Enforcement Act (16 Stat. 140), and consisted of thirty-two counts. The first count was for banding together, with intent "unlawfully and feloniously to injure, oppress, threaten, and intimidate " two citi- zens of the United States, " of African descent and persons of color," "with the unlawful and felonious intent thereby " them "to hinder and prevent in theii respective free exercise and enjo^-ment of their lawful right and privilege to peaceably assemble together with each other and with other citizens of the said United States for a peaceable and lawful purpose." The fifth avers an intent to hinder and prevent the same persons " in the exercise and enjo3'ment of the rights, privileges, immunities, and protection granted and secured to them respectivel}' as citizens of the said United States, and as citizens of the said State of Louisiana, by reason of and for and on account of the race and color " of the said persons. The eighth avers an intent " to prevent and hinder" the same per- sona "in their several and respective free exercise and enjoyment of SECT. I.] UNITED STATES V. CRUIKSHANK. 29 every, each, all, and singular the several rights and privileges granted and secured" to them "by the constitution and laws of the United States." * Mr. Chief Justice Waite delivered the opinion of the court : — We come now to consider the fifth and thirteenth and the eighth and sixteenth counts, which may be brought together for that purpose. The intent charged in the fifth and thirteenth is "to hinder and pre- vent the parties in their respective free exercise and enjoyment of the rights, privileges, immunities, and protection granted and secured to tiiem respectively as citizens of the United States, and as citizens of said State of Louisiana," " for the reason that they, . . . being then and there citizens of said State and of the United States, were persons of African descent and race, and persons of color, and not white citizens thereof ; " and in the eighth and sixteenth, to hinder and prevent tliem " in their several and respective free exercise and enjoyment of every, each, all, and singular the several rights and privileges granted and se- cured to them by the constitution and laws of the United States." The same general statement of the rights to be interfered with is found in the fifth and thirteenth counts. According to the view we take of these counts, the question is not whether it is enough, in general, to describe a statutory offence in the language of the statute, but whether the offence has here been described at all. The statute provides for the punishment of those who conspire " to injure, oppress, threaten, or intimidate any citizen, with intent to prevent or hinder his free exercise and enjoyment of any right or privi- lege granted or secured to him by the constitution or laws of the United States." These counts in the indictment charge, in substance, that the intent in this case was to hinder and prevent these citizens in the free exercise and enjoyment of " every, each, all, and singular " the rights granted them by the Constitution, &c. There is no specification of any particular right. The language is broad enough to cover all. In criminal cases, prosecuted under the laws of the United States, the accused has the constitutional right " to be informed of the nature and cause of the accusation." Amend. VI. In United States v. Mills 7 Pet, 142, this was construed to mean, that the indictment must set forth the offence " with clearness and all necessarv certainty, to apprise the accused of the crime with which he stands charged ; " and in United States V. Cook, 17 Wall. 174, that " every ingredient of which the offence is composed must be accuratel}' and clearl}' alleged." It is an elemen- tary principle of criminal pleading that where the definition of an offence, whether it be at common law or b}- statute, " includes generic terms, it is not sufficient that the indictment shall charge the oflTence in the same generic terms as in the definition ; but it must state the species, — it must descend to particulars." 1 Arch. Cr. Pr. and PI., 291. The object of the indictment is, first, to furnish the accused with 1 Only BO much of the case as relates to the fifth and eightli counts is printed here. aO UNITED STATES V. CKUIKSIIANK. [CIIAP. III. siifh a description of the charge against him as will enable him to make his defence, and avail himself of his conviction or acquittal for protec- tion a"-aiust a further prosecution for the same cause ; and, second, to inform the court of the facts alleged, so that it may decide wlietherthey are sullicient in law to support a conviction, if one should be had. For lliis, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent ; and these must be set forth in the indict- ment, with reasonable particularity of time, place, and circumstances. It is a crime to steal goods and chattels ; but an indictment would be bad that did not specify with some degree of certainty the articles stolen. This, because the accused must be advised of the essential par- ticulars of the charge against him, and the court must be able to decide whether the property taken was such as was the subject of larceny. So, too, it is in some States a crime for two or more persons to con- spire to cheat and defraud another out of his property ; but it has been held that an indictment for such an offence must contain alle- gations setting forth the means proposed to be used to accomplish the purpose. This, because, to make such a purpose criminal, the conspiracy must be to cheat and defraud in a mode made criminal by statute ; and as all cheating and defrauding has not been made criminal, it is necessary for the indictment to state the means proposed, in order that the court may see that they are in fact illegal. State v. Parker, 43 N. H. 83 ; State V. Keach, 40 Vt. 118 ; Alderman v. The People, 4 Mich. 414 ; State V. Roberts, 34 Me. 32. In Maine, it is an offence for two or more to consi)ire with the intent unlawfully and wickedly to commit any crime punishable by Imprisonment in the state prison (State v. Roberts) ; but we think it will hardly be claimed that an indictment would be good under this statute which charges the object of the conspirac}- to have been " unlawfully and wickedly to commit each, every, all, and singu- lar the crimes punishable by imprisonment in the State prison." All crimes are not so punishable. Whether a particular crime be such a one or not, is a question of law. The accused has, therefore, the right to have a specification of the charge against him in this respect, in order that he ma}' decide whether he should present his defence hy motion to quash, demurrer, or plea; and the court, that it may determine whether the facts will sustain the indictment. So here, the crime is made to consist in the unlawful combination with an intent to prevent the enjoyment of any right granted or secured by the Constitution, &c. All rights are not so granted or secured. Whether one is so or not is a question of law, to be decided by the court, not the prosecutor. There- fore, the indictment should state the particulars, to inform the court as well as the accused. It must be made to appear — that is to say, ap- I)ear from the indictment, without going further — that the acts charged will, if proved, support a conviction for the offence alleged. But it is needless to pursue the argument further. The conclusion is irresistible that these counts are too vague and general. They lack the SECT. I.] COMMONWEALTH V. HARRINGTON. 31 certainty and precision required by tlie establislied rules of criuiiiuil pleading. It follows that tliey are not good and sullicient in law. They are so defective that no judgment of conviction should be pro- nounced upon them. 2Vie order of the Circuit Court arresting the judgment upon the verdict is, there/ore, affirmed; and the cause remanded, with instructio?is to discharge the defendants. COMMONWEALTH v. HARRINGTON. Supreme Judicial Court of Massachusetts. 1880. [Reported 130 Mass. 35.] SouLE, J. The only question in this case is whether a male person who is convicted on a complaint for drunkenness, which does not allege two previous convictions of a like offence within a year, can be sen- tenced to any greater penalty than the payment of a fine of one dollar, which is the penalty imposed by the St. of 1880, c. 221, § 1. It is contended, in behalf of the Commonwealth, that the greater penalty can be imposed by virtue of § 2 of the same statute, which pro- vides that, when such person " is convicted of the offence of drunken- ness, and it is proved that he has been convicted of a like offence twice before within the next preceding twelve months, he may be punished by a fine not exceeding ten dollars, or by imprisonment in any place now provided by law for common drunkards, for a term not exceeding- one year ; " and provides further that " it shall not be necessary iu complaints under the act to allege such previous convictions." The language of this section is broad enough to cover the case at bar, and the rulings of the judge who presided in the Superior Court when the motion for sentence was made and the evidence of the pre- vious convictions of the defendant was produced, were in strict con- formity to it. We are of opinion, however, that the ruling was erroneous, and that the evidence ought not to have been received. It is provided by article 12 of the Declaration of Rights that no subject shall be held to answer for any crimes or offence until the same is fully and plainly, substan- tially and formally, described to him. When a statute imposes a higher penalty on a third conviction, it makes the former convictions a part of the description and character of the offence intended to be punished. Tuttle y. Commonwealth, 2 Gray, .505 ; Commonwealth v. Holley. 3 Gra}-, 458 ; Garvey v. Commonwealth, 8 Gray, 382. It follows that the offence which is punishable with the higher penalty is not fully and substantially described to the defendant, if the complaint fi\ils to set forth the former convictions which are essential features of it. That 32 STATE V. MACE. [CHAP. III. clause of the statute, therefore, which provides that it shall not be necessary, iu complaints under it, to allege such previous convictions, is inoperative and void, as being contrary to the provisions of the Dec- laration of Rights. The result is, that the defendant is to be sentenced for a single offence of drunkenness.^ J. II. Galligan, for the defendant. G. Jilarston, Attorney-General, for the Commonwealth. STATE V. MACE. Supreme Judicial Court of Maine. 1884. [Reported 76 Maine, 64.] On exceptions. Indictment for perjury. The verdict was guilty. A motion in arrest of judgment stated as one reason: "Because said indictment does not sutficiently charge an offence against the respondent under the constitu- tion and laws of the State of Maine." The motion was overruled and exceptions were taken to that ruling. The indictment was in the form prescribed by R. S., 1871, c. 122, § 5. Walton, J. The defendant is charged with having committed the crime of perjury "by falsel}' swearing to material matter in a writing signed by him." The indictment makes no mention of the character or purpose of the writing. Nor does it state what the matter falsely sworn to was. Nor does it contain any averments which will enable the court to determine that the oath was one authorized by law. The question is whether such an indictment can be sustained. We think it cannot. It does not contain sufficient matter to enable the court to render an intelligent judgment. The recital of facts is not sufficient to show that a crime has been committed. All that is stated may be true, and yet no crime have been committed. The character of the writing is not stated, nor its purpose ; nor the use made, or intended to be made, of it. For aught that appears, it may have been a voluntary affidavit to the wonderful cures of a quack medicine. Such an affidavit, as every lawyer knows, could not be made the basis of a conviction for perjury. In the language of our statute defining perjury, it is only when one who is required to tell the truth on oath or affirmation lawfully administered, wilfully and corruptly swears or affirms falsely to material matter, in a proceeding before a court, tribunal, or officer created by law, that he is guilty of perjury. R. S., c. 122, § 1. The oath must be one authorized or required by law, to constitute perjury. Swearing to an extra-judicial affidavit is not perjury. And the indictment must contain enough to 1 See St. 1881, c. 276. SECT. I. j STATE V. MACE. 33 show that the oath was one which the law autliorized or required, or it will be defective and clearly insufllcient, even after verdict ; for the verdict will affirm no more than is stated in the indictment ; and if the indictment does not contain enough to show that perjur}' has l)ecn com- mitted, a verdict of guilty will not aid it. We think the indictment in this case is fatally defective in not setting out either the tenor or the substance of the writing sworn to by the accused, to the end that the court might see whether it was one in relation to which perjury could be committed. Besides, the writing referred to in the indictment may (and it would be strange if it did not) contain more than one statement in relation to matters of fact. The grand jury, upon the evidence before them, may have come to the conclusion that the statement in relation to one of these matters of fact was false, and thereupon voted to indict the de- fendant, while the traverse jury, upon the evidence before them, may have come to the conclusion that the statement in relation to that matter was true, but that some other statement contained in the writing was false, and thereupon convicted the defendant of perjury in swearing to the latter statement ; and thus the defendant would be convicted upon a matter in relation to which he had never been indicted by the grand jury. Surel}', an indictment which will permit of such a result cannot be sustained. True, the form followed in this case is one established by legislative authority-. But the authority of the legislature in such cases is limited. Undoubtedl}' the legislature may abbreviate, simplify, and in many other respects modify and change the forms of indictments ; but it can- not make valid and sufficient an indictment in which the accusation is not set forth with sufficient fulness to enable the accused to know with reasonable certainty what the matter of fact is which he has got to meet, and enable the court to see, without going out of the record, that a crime has been committed. This the constitution of the State forbids ; and to that instrument, the legislature as well as all other tribunals, must conform. The authority of the legislature in this parti- cular, and the extent to which it ma}' go in establishing forms, has been judicially determined in this State, and the arguments, pro and con, need not be repeated here. We refer to State v. Learned, 47 Maine, 426. The common law required indictments for perjury to be drawn with great nicety and fulness, more so, it is believed, than the purposes of justice required ; and the result was that but few such indictments proved to be sufficient when subjected to a close and searching examin- ation. To avoid this inconvenience, the legislature, in 1865, enacted two forms, which it declared should be sufficient. The first related to perjury committed by persons testifying orally before some court or other tribunal, and, although much briefer than would have answered b}- the strict rules of the common law, it was held sufficient in State v. Corson, 59 Maine, 137. The second related to perjury committed in swearing 3 34 STATE V. McCAKTY. fCHAP. HI. to some writing in relation to which an oath is authorized or required by law ; and the sutficiency of this latter form is now for the first time before the law court for consideration ; and, for the reasons already stated, and to be found more fully stated in the case cited (vState v. Learned. 47 Maine, 420), we are forced to the conclusion that it is not sutiicient ; that the legislature, in its laudable desire to prune away the oreat prolixity of the forms required by the common law, cut too deep, and did not leave enough to meet the requirements of the constitution ut the State. Exceptions sustained. Judgment arrested. STATE V. McCARTY. Supreme Court of Rhode Island. 1891. \Rtporttd 22 Atlantic Reporter, 282.] Appeal from Court of Common Pleas, Providence County. Indictment of Daniel McCarty for burglary. The defendant was convicted, and petitions for a new trial. Ziba 0. Slociim, Attorney-General, for the State. S. S. Stone and JE. F. Lovejoy, for defendant. Per Curiam. The defendant was indicted in the Court of Common Pleas at its December tenn, 1890, for breaking and entering, in the day-time, the house of one Jeremiah B. Fuller, in Providence, with the intent to commit larceny therein. At the trial the prosecution called as a witness the owner of the dwelling-house, who testified that his name was Jedediah B. Fuller. When the case for the prosecution was closed, the defendant moved that the indictment be quashed because of the variance between the allegation of the owner of the house and the proot submitted. The Court overruled the motion to quash, and upon motion of the attorney-general, and against the defendant's objection, permit- ted the indictment to be amended by striking out the name Jeremiah and inserting the name Jedediah. The defendant excepted to the rulings of the Court of Common Pleas in the matters stated, and the jury having returned a verdict of guilty, now petitions for a new trial, upon the ground, among others, that the Court of Common Pleas had no authority to permit the amendment. We think that a new trial should be granted. The amendment to the indictment being in a matter of substance, could onl}' properly have been made in the presence of and with the concurrence of the grand jur^' (1 Bish. Crim. Proc. §§ 707- 711 ; Ex parte Bain, 121 U. S. 1, 7 Sup. Ct. Rep. 781) ; or, under Pub. St. R. I. c. 248, § 4, with the consent of the accused. JPetition granted. SECT. II.] STATEMENT OF THE CRIME. 35 New York Code of Criminal Procedure, §§ 284, 293. The indict- ment is sutlicient, if it can be understood therefrom : 1. That it is entitled in a court having authority to receive it, though the name of the court be not accurately stated ; 2. That it was found by a grand jur}' of the county, or if in a city court, of the city in which the court was held ; 3. That the defendant is named, or if his name cannot be discovered, that he is described by a fictitious name, with the statement that it has been found impossible to discover his real name ; 4. That the crime was committed at some place within the jurisdiction of the court, except where . . . the act, though done without the local jurisdiction of the county, is triable therein ; 5. That the crime was committed at some time prior to the finding of the indictment ; 6. That tlie act or omission charged as the crime is plainly and con- cisely set forth ; 7. That the act or omission charged as the crime is stated with such a degree of certaint}', as to enable the court to pronounce judgment, upon a conviction, according to the right of the case. Upon the trial of an indictment, when a variance between the allega- tion therein and the proof, in respect to time, or in the name or descrip- tion of an}^ place, person, or thing, shall appear, the court may, in its judgment, if the defendant cannot be thereb}' prejudiced in his defence on the merits, direct the indictment to be amended, according to the proof, on such terms as to the postponement of the trial, to be had before the same or another jury, as the court maj' deem reasonable. SECTION II. Statement of the Crime. 2 Hawkins, Pleas of the Crown, ch. 25, Sects. 57, 59. The special manner of the whole fact ought to be set forth with such certainty, that it may judicially appear to the court that the indictors have not gone upon insufficient premises. And upon this ground it seems to be agreed that an indictment finding that a person hath feloni- ousl}' broken prison, without shewing the cause of his imprisonment, &c., by which it may appear that it was of such a nature that the break- ing might amount to felon}', is insufficient. . . . Also it seems that an indictment of perjur}', not shewing in what manner and in what court the false oath was taken, is insufficient, because for what appears it might have been extrajudicial, &c. Regularly every indictment must either charge a man with some par- ticular offence, or else with several of such oflfences, particularly and 36 KEX V. LEDGINHAM. [CHAP. III. certainly expressed, and not with being an offender in general. For no one can well know what defence to make to a charge so uncertain, or to plead it either in bar or abatement of a subsequent prosecution ; neither can it appear that the facts given in evidence against a defen- dant on such a general accusation, are the same of which the indictors have accused him ; neither can it judicially appear to the court, what punishment is proper for an offence so loosely expressed. 2 RoUe's Abridgement, 79. An indictment of a man that he is a common forestaller, without alleging anything certain, is not good, be- cause it is too general. 29 Ass. 45, adjudged. See 3 E. 2, actio7i sur le statut, 26. So an indictment that he is a common thief, without more, is not good. 29 Ass. 45 ; 22 Ass. 73, 3 E. 2, action sicr le statut, 26. So an indictment for champerty is not good without more. 29 Ass. 45. So an indictment for conspiracy is not good without more. 29 Ass. 45. So an indictment for confederacy is not good without more. Contra, 29 Ass. 45, but qucere. An indictment of a man for that he is a com- mon misfeasor is not good, because it is too general. 22 Ass. 73. So an indictment that he is commwiis pads Domini Regis per turhator, ac diversas lites & discordias tarn inter vicinos suos quam inter diversos lifjeos & siibditos domini Regis apud W. in comitatu predicto injuste excitavit moverit & procuravit, in magnum dispendium <& jyerturba- tionem vicinorum suorum i>redictorum <& aliorum subditorum domini Regis in comitatu predicto is not good, because too general. INI. 6 Car. B. R. per Curiam. Indictment quashed in Periam's case. REX V. LEDGINHAM. King's Bench. 1669. [Reported 1 Mod. 288.] Information setting forth that he was lord of the manor of Ottery St. Mary, jn the county of Devon, wherein there were many copyholders and freeholders, and that he was a man of an unquiet mind, and did make unreasonable distresses upon several of his tenants, and so was communis oppressor et perturbator pads. It was proved at the trial that he had distrained four oxen for three- pence, and six cows for eight-pence, being amercements for not doing suits of court, and that he was communis oppressor et perturbator pads. The defendant was found guilty. But it was moved in arrest of judgment that the information is ill laid : First, It is said he disquieted his tenants, and vexed them with un- reasonable distresses. It is true, that is a fault, but not a fault punish- able in this way ; for by the statute of Marlebridge, c. 4. 2. Inst. 106, 7, SECT. II.] COMMONWEALTH V. NEWBURYPORT BRIDGE. 37 he shall be punished by grievous amercements ; and where the statute takes care for due punishment, that method must be observed. Secondl}"^, As to the matter itself, the}' do not set forth how much he did take, nor from whom ; so that the Court cannot judge whether it is unreasonable or no, nor could we take issue upon them. Thirdl}', As to the commnnis oj)pressor et perturhator pacts, thoy are so general, that no indictment will lie upon them ; as in Cornwairs case, Jones, 302, which indeed goeth to both the last points. TwisDEN, J. Communis oppressor, c&c, is not good : such general words will never make good an indictment, save only in that known case of a barrator; for " communis harrectator " is a term which the law takes notice of, and understands ; it is as much, as I have heard judges say, as " a common knave," which contains all knaver}*. For the other point, an information will not lie for taking outrageous dis- tresses. It is a private thing, for the which the statute gives a remedy, viz. by an action upon the statute tarn quam. Per Curiam. It is naught. — Adjournatur. COMMONWEALTH v. NEWBURYPORT BRIDGE. Supreme Judicial Court of Massachusetts. 1829. [Reported 9 Pick. 142.] The indictment in this case recites that by a statute passed March 4, 1826 (St. 1825, c. 164) James Prince and others were incorporated b}' the name of The Proprietors of the Newburyport Bridge, and that b}' the second section it is enacted that there shall be a draw not less than thirty-eight feet wide, and a suitable pier on each side of the bridge at the draw. The indictment then alleges that the defendants, on and from the 1st of Januar}', 1828, to the taking of this inquisition, " have neglected and still do neglect to provide a suitable pier on each side of the said bridge at the said draw, according to the requirement of the act aforesaid, but have left the said bridge altogether destitute of an\' pier at the said draw, by means whereof all vessels and river craft, having masts higher than will readil}' pass under the said draw, are ob- structed, hindered, and altogether prevented from passing said bridge, to the common nuisance," &c. At the trial, before Putnam, J., the defendants objected that the in- dictment was found too soon, inasmuch as the three years allowed them by the act, for completing the bridge, had not expired when the indictment was found. They admitted that thej' had taken toll of passengers for upward of a year. The objection was overruled. A verdict against the defendants was taken, subject to the opinion of the whole court. -38 COMMONWEALTH V. BEAN. [CHAP. III. The defendants also moved in arrest of judgment, because it is not alleged in the indictment that any bridge had been built Choate and Cushhig for the defendants. Minot, Count}' Attorney, for the commonwealth. Yku Cl-riam. The answer to the first objection is that the defen- dants completed the bridge and took toll ; and if so, we think they were bound to provide the means prescribed by the statute, to enable vessels to pass with convenience through the draw. But we think the objection that the indictment does not allege that any bridge has been built is fatal. It ma}- indeed be inferred by any common reader that there was a bridge ; but no lawyer, considering that inferences are not to be made in criminal cases, would say it appears that a bridge had been built. There ought to have been an express allegation to that effect. Indictment quashed. COMMONWEALTH v. BEAN. Supreme Judicial Court of MAssAcnusEirs. 1853. [Reported 11 Cush. 414.] The defendant was indicted upon the Rev. Sts. c. 126, § 42, which enacts that every person who shall " maliciously or wantonly break the glass or any part of it, in any building not his own, or shall maliciously break down, injure, mar, or deface any fence belonging to or inclosing lands not his own, or shall maliciously throw down or open any gate, bars, or fence, and leave the same down or open, or shall maliciously and injuriously sever from the freehold of another any produce thereof, or anything attached thereto, shall be punished by imprisonment in the county jail, not more than one year, or by fine not exceeding one hun- dred dollars." The indictment averred that the defendant, " with force and arms, wilfully, maliciously, wantonly, and without cause, did break and destroy the glass, to wit, two panes of glass of the value of ten cents each, in a certain building there situate, not his own, but which building then and there belonged to and was the property of one Dorcas B. Prentice, &c." After a verdict of guilty, the defendant moved in arrest of judgment, because the indictment did not allege that the glass broken was a part of the building, but only that it was in a building not his own. Ji. F. Butler., for the defendant. R. Choate^ Attorney-General, for the Commonwealth. "Metcalf, J. It is admitted by the counsel for the Commonwealth, that the section of the statute, on which this indictment is framed, was intended to punish the malicious and wanton breaking of glass which SECT. II.] STATE V. RUSSELL. 39 is part of a building. And it is argued b}' him, that the words used in the indictment, being the same as those in the statute, must be held to have the same meaning. But this does not necessarily follow. The meaning of words in a statute ma}' be, and not unfrequcnth' must be, ascertained by examination of the context. In the present case, it is from the context that the words "glass in a building" are understood, on all hands, to mean glass which is part of a building. But the court in ascertaining the offence with which the defendant is charged, cannot look beyond the words of the indictment itself. If those words do not sullicicntly charge the offence which the statute was meant to punish, the indictment is fatally defective. 2 Hawk. c. 25, § 111; Common- wealth V. Slack, 19 Pick. 304 ; Commonwealth v. Clifford, 8 Cush. 215 ; Commonwealth v. Stout, 7 B. Monr. 247. We are, therefore, of opin- ion that the indictment in this case will not sustain a judgment against the defendant. For aught that the indictment shows, the glass, which he is charged with having maliciously and wantonly broken, may have been panes of glass which were not a part of any building. Judgment arrested. STATE V. RUSSELL. Supreme Court of Rhode Island. 1884. [Reported 14 R. I. 506.] Exceptions to the Court of Common Pleas. May 22, 1884. Durfee, C. J. The exceptions raise only one ques- tion, namely : Is a complaint under Pub. Stat. R. I. cap. 244, § 22, against a woman for being a common night-walker sufficient if it simply charges her with being a common night-walker without alleging par- ticular acts? It is well settled that for the offence of being a common scold or a common barrator such a charge is sufficient. The reason is, the offence does not consist of particular acts but of an habitual prac- tice evidenced by a series of acts. It may be argued that if a vicious practice constitutes the offence, then the practice ought to be alleged descriptively in the complaint or indictment. The answer is, the words "common scold" and " common barrator" are words having a techni- cal meaning in the law, and that they import ex vi terminorum all that would be expressed if the practice were so alleged. In State r. Dowers, 45 N. H. 543, the same reasoning was held to be applicable where the offence is the offence of being a common night-walker, and in that case it was decided that it was enough to charge the offender with being a common night-walker. We think the decision was correct. The words " a common night-walker" are words having a technical meaning in the law, and it would therefore be superfluous to spread their definition on 40 BEX V. . [chap. Ill the record. If, for the purposes of defence, the accused needs more definite information than the record affords, she should ask for a bill of particulars, which, of course, in so far as the offence is capable of being particularized, ought to be and would be supplied. Wharton's Crim. Plead. & Prac. § 155; Commonwealth v. Davis, 11 Pick. 432; Commonwealth v. Pray, 13 Pick. 359 ; Commonwealth v. "Wood, 4 Grav, 11. Exceptions overruled. Stephen A. Cooke, Jun.^ for plaintiff. John M. Brennan, for defendant. SECTION III. Particular Allegations. (a) Name. REX V. Old Bailey. 1822. [Reported Russ. 4~ Ry. 489.] The prisoner was indicted at the Old Bailey sessions in January, 1822, by the description of a person whose name was to the jurors un- known. The offence with which he was charged was that of publishing a blasphemous and seditious libel. It appeared that, when apprehended, he refused to declare bis name before the magistrate, and the prosecutors, not being able to discover his name, indicted him as a man whose name was unknown to the jurors. When called to the bar, the indictment was read to him, and he then refused to plead, and was remanded. At the following sessions, in the month of February, the prisoner was again called to the bar and by the advice of his counsel put in a demurrer in writing to the indictment. The prosecutors had time given them until the next morning to re\Ay ; but before they could do so the prisoner, by his counsel, moved the court to be permitted to withdraw his demurrer, which was granted : and being then called on for his plea, he pleaded not guilt}' ; and being told that he must plead by some name, he refused to give in an}' name. The learned Recorder was of opinion that his plea could not be received without a name, and the prisoner was again remanded for want of a plea. At the following sessions he was again called on to plead, and again pleaded not guilty ; but refused to put in that plea by an}- name, lie was agam told that the court could not receive his plea unless he would plead by some name : and, as he persevered in his refusal, he was again remanded. SECT. III.] REGINA V. WILSON. 41 As this case appeared to be without precedent, and might materially affect the administration of justice, the learned Recorder requested the opinion of the Judges upon the following points : first, whether the prisoner could be admitted to put a plea on the record without a name ; secondly, whether such a plea should be treated as a mere nullity, and the prisoner be remanded from time to time, as in contempt for not pleading ; thirdly, whether the refusal to plead by name would entitle the court to enter up judgment by default; and, fourthly, whether, in case the prisoner should ultimately plead by name, the court could proceed to try him upon this indictment or should quash the indictment as defective, and direct a fresh indictment to be preferred against him by the name by which he might plead. In Trinity term, 1822, this case being presented for consideration, some of the learned Judges, before it was discussed, suggested that the prisoner might be indicted as a person whose name was unknown, but who was personally brought before the jurors by the keeper of the prison. An indictment was preferred accordingly, and the prisoner was convicted. REGINA V. JAMES. Central Criminal Court. 1847. [Reported 2 Cox C. C. 227.] The indictment charged the prisoner with assaulting and stealing from a female " two rings, &c., the property of Jules Henry Steiner." The female was the wife of the owner of the property, and stated that, to the best of her knowledge, her husband's name was Henry Jules Steiner, and not Jules Henry Steiner. Pollock, C. B., held the rjiisnomer fatal; and the prisoner was acquitted. REGINA V. WILSON. Crown Case Reserved. 1848. [Reported 2 Cox C. C. 426.] The prisoner was convicted at Liverpool during the last "Winter As- sizes, before Coltman, J., who respited judgment and reserved the following case : — The prisoner was tried before me at the last Special Commission for Liverpool. The indictment in the first count charged that on, &c., at &c., the said E. Wilson did forge a certain warrant and order for the payment 42 EEGINA V. DAVIS, "[CHAP. Ill, of money, which said vrarrant and order for payment of money is as follows ; that is to say, — '« Xo. Liverpool, December 8, 1847. " To the cashiers of the Liverpool Borough Bank : t' Pay or bearer two hundred and fift}- pounds. "£250 6s. Od. John McNicole & Co." with intent to defraud one John McNicole.^ It was objected, on behalf of the prisoner, that the signature of the prosecutor to the cheque, as set out in the indictment, being John McXicole and Co., and the signature to the cheque proved, John Mc- XicoU, there was a variance. I, however, overruled the objection, being of opinion that the substituting of the letter " e" for " 1 " did not make it a different name. See Williams v. Ogle, 2 Str. 889 ; Aleberry V. Walby, 1 Str. 231 ; Reg. v. Drake, 2 Salk. 660 ; Rex v. Beach, Cowp. 230 : Rex v. Hart, 1 Leach, 145. The jury found the prisoner guilty ; but, entertaining some doubt whether the conviction was right, I forbore to pass sentence on him, and request the opinion of the judges thereon. W. -C. J3rett, for the prisoner. — Upon the point of variance the law is clear ; and the only question is, whether the court can sa}' that the two names are so identical in sound that no person could be misled. Co7iviction affirmed. REGINA V. DAVIS. Crown Case Reserved. 1851. [Reported 5 Cox C. C. 237.] This case was reserved b}' the Dorsetshire Sessions, The prisoner was indicted for stealing the goods of Darius Christo- pher. The evidence proved the prosecutor's name to be Tryus Christopher. The chairman ruled that, in Dorsetshire, Darius and Tryus were idem sona?itia, but requested the opinion of the judges upon the correctness of that ruling. When this case came on to be heard, on the 8th Februar}', before Jenus, C. J., Alderson, B., Williams, J., Piatt, B., and Martin, B,,^ the court intimated that it was a question ^ Part of the ca.se, not involving the question of misnomer, is omitted. 2 On that occa.sion F/ools appeared for the prisoner, and the following cases were referred to : Williams v. Ogle, 2 Stra. 889, where Segrave and Seagrave were held idem sonnntia ; Keg. v. Shakspeare, 10 East, 83, where the contrary was held as to the words Shakespeare and Shakepear; R. v. Wilson, 2 Car. & K. 527, where McNicholl was proved and McNicole averred, and held no v.iriance ; R. v. James, 2 Cox C. C. 227, where the prosecutor wa,s erroneously described as .J. H. S. instead of H. J. S. and the variance was held fatal ; R. i'. Lippiatt, 1 Cox C. C. 56, where the prosecutrix was described Sarah R. instead of Sarah Anne B., her baptismal name ; and the prisoner was acquitted on the ground of the misnomer, though it was proved that the SECT. III.] COMMONWEALTH V. PERKINS. 43 for the jur3', and directed the case to be sent back, in order that it might be stated whether the question had been left to the jury. Tlie case was now returned, with a statement that the question of variance was not left to the jur}'. Loud Campukll, C. J. — This conviction must be reversed. If it is put as a matter of law, it is quite impossible for this court to say that the two words are idem sonantia. The objection is said to have been taken in arrest of judgment; but I never heard of such a ground for arresting the judgment since the great case of Stradley v. Styles. Coleridge, J. — No doubt a Dorsetshire jury would have thought the words idem sonantia. Conviction reversed. COMMONWEALTH v. PERKINS. Supreme Judicial Court, Massachusetts. 1823. [Reported 1 Pick. 388.] The defendant being indicted by the name of Thomas Perkins, junior, for a nuisance under the statute against gaming, pleaded in abatement, at April term, 1822, of the Municipal Court, that his name was Thomas Hopkins Perkins. The county attorney demurred generally, and there was a judgment of respondeas ouster, a trial upon the general issue, and an appeal to this Court. Per Curiam. It is said on behalf of the Commonwealth ihoX junior is no part of the name. Tliis is true, but another objection to the in- dictment is, that the defendant is called Thomas instead of Thomas Hopkins. In b D. & E. 195, a person was sued by the Christian name James Richard instead of Jxicliard James, and it was held a misnomer on account of the transposition. The indictment must give the defen- dant his right Christian name. Defendant discharged. 'O' prosecutrix was called in her own family Sarah ; R. v. Bridget Smith, (7). 248, where the prosecutor was described as Patrick Henry S., which was his baptismal name ; but he had always been called Patrick or Henry, was confirmed by the name of Henry, and afterwards generally called so. Held, that he ouglit to have been so described in the indictment. 44 BEX V. NAPPER. [chap. IIL SECTION III. {continued). (6) Time and Place. SIR HENRY VANE'S CASE. King's Bench. 1663. [Reported Kelyng 14.] Memorandum, That in Trinity Term, 14 Car. 2, Sir Hen. Vane was indicted at the King's Bench for compassing the death of King Charles the 2d, and intending to change the kinglj- government of this nation ; and the overt acts which were laid were, that he with divers other unknown persons did meet and consult of the means to destro}' the king and government ; and did take upon him the government of the forces of this nation b^' sea and land, and appointed colonels, captains, and officers, and the sooner to effect his wicked design, did actually in the County of Middlesex raise war.^ Although the treason of compassing the king's death was laid in the indictment to be the 30th of May, 11 Car. 2, yet upon the evidence it appeared, that Sir Hen. Vane, the ver}- day the late king was murdered, did sit in Council for the ordering of the forces of the nation against the king that now is, and so continued on all along until a little before the kinsr's coming in. It was resolved that the dav laid in the indictment is not material, and the jur}' are not bound to find him guilt}' that da}', but may find the treason to be as it was in truth either before or after the time laid in the indictment ; as it is resolved in Syer's case, Co. PL Coron. 230. And accordingly in this case the jury found Sir H. Vane guilty of the treason in the indictment the 30th of Januar}', 1 Car. 2, which was from the ver}' day the late king was murdered, and so all his forfeitures relate to that time to avoid all conveyances and settlements made by him. REX V. NAPPER. Crown Case Reserved. 1824. [Reported 1 Moo. Cr. C. 44.] The prisoner was tried and convicted before Mr. Justice Batlet, at the Summer Assizes for Lancaster in the 3'ear 1824, of stealing in a dwelling-house ; but a doubt having occurred whether the situation of the house was sufficiently described in the indictment, the learned Judge submitted that point to the consideration of the Judges. 1 Part of the case, not involving the allegation of time, is omitted. SECT. III.] STATE V. SEXTON. 45 The indictmeut stated that tlie prisoner, on the Clh August, 5 Geo. 4, at Liverpool, in the county aforesaid, one coat, value forty shillings^ &c., of the goods and chattels of Daniel Jackson^ in the dwelling- house of William IViomas^ then and there being, then and there did feloniously' steal, &c. The doubt was, whether it should not have been stated " in the dwelling-house of Williwa Thoinas, there situate." Indictments for burglary and arson generally contain such a statement, and so do indict- ments for breaking a house in the daytime, or demolishing a house. In Michaelmas Term 1824, the Judges met and considered this case, and held that the indictment showed sufficientl}' that the house was situate at Liverpool, and that the conviction was therefore proper. STATE V. SEXTON. Supreme Court of North Carolina. 1824. [Reported 3 Hawks, 184.] Indictment for an assault with intent to kill, tried before Paxton, J. The bill was found in March Term, 1824, and charged the offence to have been committed on the 19th day of August, 1824. The defendant was put upon his trial at the same Term in which the bill was found, and afler the jury was impanelled, the prosecuting officer moved the court to amend the indictment as to the day on which the offence is charged to have been committed. The court overruled the motion, and the jury found the defendant guilt}', in manner and form as charged in the bill of indictment, and judgment was arrested, because the offence was laid to have been committed on a day yet to come. Per Curiam. It is a familiar rule that the indictment should state that the defendant committed the offence on a specific da}' and year, but it is unnecessary to prove, in any case, the precise da}' or year, except where the time enters into the nature of the offence. But if the indict- ment lay the offence to have been committed on an impossible day, or on a future day, the objection is as fatal as if no time at all had been inserted. Nor are indictments within the operation of the Statutes of Jeofails, and cannot, therefore, be amended ; being the finding of a jury upon oath, the court cannot amend without the concurrence of the Grand Jury by whom the bill is found. These rules are too plain to require authority, and shew that the judgment of the court was right, and must be affirmed. 46 COMMO^•WEALTH V. TOLLIVER. [CHAP. III. STATE V. SMITH. Delaware. 185-. {Reported 5 Harr. 490.] The defendant was indicted and convicted for disturbing a religious Society of Metliodists in Mispilliou hundred, assembled for the purpose of religious worship. Mr. Comegys moved in arrest of judgment that the indictment was not sufficiently certain as to place. Religious meetings of the Methodists were held at other places in Mispillion hundred than at the private house where this meeting was held, and this indictment did not certainly inform the defendant what meeting he was charged with disturbing. {Rnss. Cr.^ 837, n.) The Court denied the motion, saying: The indictment is in the usual form, and is framed under the act of assembly. Even without an act of assembly, this would be an indictable offence, as the Christian religion is protected by the common law. Unless time or place enter into the crime itself, it is not material to state or prove it. The locality of a road enters into the charge of obstructing it. But as to disturbing a religious society, the place is unimportant, if within the county. It is not necessary that the place should be specifically laid to guard against another trial, for the identity of the two cases is to be tried by the jury, on a plea of former acquittal or conviction. COMMONWEALTH v. TOLLIVER. Supreme Judicial Court, Massachusetts. 1857. [Reported 8 Gray, 386.] Indictment for an assault upon John Woods, at Boston. At the trial in the Municipal Court, Abbott, J. allowed the county attorney to introduce evidence to prove an assault upon Woods in Chelsea, notwith- standing the defendant's objection that this was a variance. The defen- dant, being convicted, alleged exceptions. Dewey, J. In criminal prosecutions of a character like the present, it is unnecessary to prove the place of committing the offence to be pre- cisely in accordance with the allegation in the indictment. Place is immaterial, unless when it is matter of local description, if the offence be shown to have been committed within the count}'. All that is neces- sary to be shown is that the offence was committed at any place within the county. 2 Hawk. c. 25, § 8i ; 2 Russell on Crimes (7th Amer. ed.), 799 ; 1 Archb. Crim. PI. (oth Amer. ed.) 99. It was no objection SECT. III.] COMMONWE.VLTU V. TRAVEKSE. 47 therefore to the competency of the evidence offered, that it tended to prove an assault committed in Chelsea, -while the indictment alleged the same to have been committed at Boston, both places being within the county of Suffolk, and equally within the jurisdiction. This rule has been so long recognized and acted upon that the case presents no new or doubtful question to be solved. Exceptions overruled. COMMONWEALTH v. TRAVERSE. Supreme Judicial Court of Massachusetts. 18C5. [Reported 11 All. 260.] Complaint dated April 3d, 1865, charging that the defendant "on the third day of April, in the year of our Lord eighteen hundred and sixty-five, at Newton, in the County of Middlesex, within six months last past," was a common seller of intoxicating liquors in violation of law. At the trial in the Superior Court before Wilkinson, J., on appeal from the judgment of the magistrate, convicting the defendant, the dis- trict attorney offered no evidence of sales on the 3d of April, 18G5, but relied upon evidence of sales made at several times within six months before that day. The defendant objected to this evidence, but it was admitted, and the defendant was found guilt}', and alleged exceptions. li. D. Smith, for the defendant. Reed, A. G. for the Commonwealth. Dewey, J. A well settled distinction has long prevailed as to the mode of alleging the time of the commission of an offence which con- sists of a single^ act, and that adopted in that class of cases where the alleged offence consists of a series of distinct acts. In the former, the precise day alleged is not material, ai^d the evidence of such single act before or since the day alleged, if before the finding of the indict- ment and within the period permitted by the statute of limitations, is sufficient. On the other hand, in the cases where the offence consists of a series of acts, the practice is to allege the same to have been committed on a certain day named, and on divers daj-s and times between that day and some subsequent day named. The allegation that the acts were done between a certain day named and the day of the finding of the indictment has also been held sufliciently to designate the time of the commission of the offence. This form of stating the time, as allowed in this class of cases, gives to the prosecutor great latitude in the alle- gation of time, but, having fixed it by the indictment, the government is bound by it. And this has been held to be the rule where the acts constituting such offence are alleged to have been committed on a 48 STATE V. JOHSSON. [CHAP. III. certain day named. The evidence must be confined to that day, and evidence of the commission of the offence before or after that day is incompetent. Commonwealth v. El well, 1 Gray, 462 ; Commonwealth V. Gardner, 7 Gray, 49-i ; Commonwealth v. Sullivan, 5 Alien, 513. The further inquiry is, whether this complaint has properly charged an offence on any other day than the third day of April. We are not disposed to favor any greater laxity in the form of the indictment in this class of cases than has been already sanctioned. Here the usual order of such allegation of the time is reversed. Instead of alleging the commission of the offence on a certain day, and on divers days and times subsequently between that day and a day named, the allegation is "within six months last past." We do not say that this charge would be fatally bad, had there been no other defect in stating the time. But there is no connecting word between the allegation of an offence committed on the third of April, and the further allegation, " within six months last past." It may be read as an averment that the third day of April was within six months last past. We think the only offence properly charged here is that of being a common seller of intoxicating liquors on April 3d, 1865. As already stated, the allegation as to time is a material one, and the government must prove the offence to have been committed on that day. Exceptions sustained. STATE V. JOHNSON. Supreme Court of Texas. 1869. [Reported 32 Texas, 96.] Appeal from Smith. Tried below before the Hon. Samuel L. Earle. The appellee was indicted for the theft of $160 in coin and $60 in currenc}', the property of B. H. Denson. The indictment was quashed on his motion, and the district attorney appealed on behalf of the State. J^. B. Turner^ Attorney-General, for the State, conceded the in- sufficiency of the indictment. Lindsay, J. The motion to quash the indictment in this case was properly sustained. There is no allegation in it, of either the time or of the place of the commission of the offence. The first is necessary, that it may appear from the charge it is not barred b^' the statute of limitations. The other is indispensable, that the court ma}' know whether it has jurisdiction of the cause. For these defects it was rightfully quashed. The judgment is affirmed. Affirmed. SECT. III.] STATE V. DODGE. 49 STATE V. BEATON. Supreme Judicial Court of Maine. 1887. [Reported 79 Maine, 314.] On exceptions to the ruling of the court in overruling the defendant's deninrrer to the complaint. An appeal from the decision of a trial justice on a complaint and ■warrant for fishing for and catching lobsters in violation of law. Boswell S. Partridge, county attorney, for the State. Hilton and Iliistoyi, for the defendant cited : State v. Baker, 34 IVfaine, 52 ; Moody v. Hinkley, 34 Maine, 200 ; State v. Hanson, 39 Maine, 337. Walton, J. Neither a complaint nor an indictment for a criminal offence is sufficient in law, unless it states the day, as well as the month and yeai', on which the supposed offence was committed. In this par- ticular, the complaint in this case is fatally defective. It avers that " on sundry and divers days and times between the twenty-third day of Sep- tember, A. D. 1885, and the thirtieth day of September, A. D. 1885," the defendant did the acts complained of. But it does not state any particular day on which any one of the acts named was committed. Such an averment of time is not sufficient. State v. Baker, 34 Maine, 52 ; Stat« u. Hanson, 39 Maine, 337, and authorities there cited. Exceptions sustained. Complaint quashed. STATE V. DODGE. Supreme Judicial Court of Maine. 1889. [Reported 81 Maine, 391.] Haskell, J.* " Neither a complaint nor an indictment for a criminal offence is sufficient in law, unless it states the da}', as well as the month and year on which the supposed offence was committed." State ??. Beaton, 79 Maine, 314. An act, prohibited by statute on certain particular days onl}', must be charged as having been committed on one of those particular days ; for the time laid is a material element in the offence, and, unless laid on a da}' within the statute, no offence would be charged. In the case at bar, both time and place are material elements to constitute the stat- ute offence. State v. TurnbuU, 78 Maine, 392. The statute prohibits the maintaining of closed weirs in certain inland waters on Saturdays and Sundaj's between April 1st and July 15th. ^ The opinion only is given ; it sufficiently states the case. 4 50 REGINA V. MANSFIELD. [CHAP. III. R. S., c. 40, § 43. The indictment charges the maintaining of the weir on June 1st, Tuesday', not close time, and on divers other days and times between that day and July 15th. All this may have been law- fully done. Saturday and Sunday- are not pointed out as among the " divers other days and times." The defendants are presumed to have regarded law, not to have violated it. True, the indictment avers that during Saturday and Sunday, June 12 and 13, the defendants were bound to carry and keep on shore the netting which closes that part of the weir where fish are usually taken, and that they did not do it. But if the}' did not maintain the weir on those days they had no need to do it. It is said that the last clause in the indictment sufficiently charges the offence. But the trouble with that clause is, that it assumes what is nowhere alleged, that the defend- ants during some Saturday- or Sunda}' maintained the weir. It is best for the proper administration of justice, that reasonable exactness and precision of statement be required from those officers of the law selected on account of their professional skill in this behalf. ^xcejHions sustained. SECTION III. {continued). (c) Description. REGINA V. MANSFIELD. Nisi Prius. 1841. [Reported Car. ^ Marsh. 140.] The prisoner was indicted for receiving " 25 lbs. weight of tin," knowing the same to have been stolen. The indictment had been removed by certiorari, and came on to be tried at Nisi Prius. There were two other indictments against the same prisoner, the one for steal- ing iron, and the other for receiving brass, knowing it to have been stolen. It appeared that the tin in question consisted of two pieces, which a witness called "lumps of tin;" but on cross-examination he admitted that they were called in the trade " ingots," but added that that term was applied as well to the pieces of tin as to the mould in which they were cast, and was applied to the shape. The tin in question had been cast into the pieces for the purpose of being again melted up for use in the prosecutor's manufactory, and in the middle of each was an inden- tation for the purpose of breaking them in two, when wanted to be melted up again.^ 1 I'art of the case, not relatiDg to the question of pleading, is omitted. SECT. HI.] REGINA V. MANSFIELD. 51 Upon the close of the case for the prosecution, Ludlow^ Serjt., for the prisoner, submitted that the tin was inisdescribed. Instead of being laid as so many pounds' weight of tin, it ought to have been described as two ingots. Wherever an article has obtained a name in the trade which is applicable to it, it must be described by that name. From the case of Hex v. Stott, 2 P]a. P. C. 752, it would seem that it was erro- neous to charge the prisoner with sLeaUng so many pounds' weight of iron, where it appeared that the articles stolen were actually manu- fiictured. It would be bad to describe a piece of cloth as so many pounds of wool. The object is to enable the prisoner to plead autrefois acquit. Talfourd, Serjt., and Greaves. Rex v. Stott is quite different from the present case ; there the goods were actually made up into articles, which had specific names ; here the article was still tin, and only put in the shape in which it was, for the purpose of being afterwards manu- factured ; it is in the course of manufacture, not manufactured. Al- though it would be bad to describe cloth as so many pounds of wool, still an end of a bale of cloth may well be described as so many yards of cloth ; so a leg of mutton may be described as so many pounds' weight of mutton. As to the objection that the part}' could not plead axitrefois acquit, it is the same question : for if the description is suffi- cient here, it would be sufficient if autrefois acquit were pleaded. It is idem per idem. Coleridge, J. It seems to me that the description is sufficient to answer all the purposes which are required by law. First, it is the subject of larceny equally, whether it be an ingot or so many pounds' weight of tin. Secondl}', as to the facility of pleading autrefois acquit, the prisoner stands in the same situation, whether it be one or the other, because there must be some parol evidence in all cases to shew what it was that he was tried for before, and it would be as eas}' to prove one as the other. The last question is, whether it is described with suffi- cient certainty, in order that the jury may be satisfied that it is the thing described. If this had been some article that, in ordinary par- lance, had been called by a particular name of its own, it would have been a wrong description to have called it by the name of the material of which it was composed, as if a piece of cloth were called so man}' pounds of wool, because it has ceased to be wool, and nobody could understand that you were speaking of cloth. It would be wrong to say so many ounces of gold, if a man stole so man}' sovereigns ; you would there mislead by calling it gold. If it were a rod of iron, it would be sufficient to call it so many pounds' weight of iron. The case went to the jury, who returned a verdict of — Not guilty. 52 STATE V. NOBLE, [CHAP. IIL STATE V. NOBLE. Supreme Judicial Court of Maine. 1839. [Reported 15 Maine, 476.] Exceptions from the Court of Common Pleas, Smith, J. presiding. Noble was indicted for fraudulently and wilfully taking from the Kennebec River and converting to his own use certain logs. He was found guilty on the first count only, thus describing the log: "One pine log marked H X W, of the value of three dollars, of the goods and chattels of J. D. Brown, Charles Mclntire, and John Welch, and not the property of said Noble." The evidence applied entirely to a pine log marked '' W X H X with a girdle,''^ or circle cut round it. Brown testified that one of their logs, partly sawed into blocks, with the mark last mentioned was seen by him near Noble's house, " but that the log described in the first count of the indictment was not of their mark, and that he should not claim or know it as their property." Other objec- tions were made, besides that arising from variation in the description in the indictment and the proof, which need not be stated, nor the facts on which they were founded. The Judge on this point instructed the jury that the mark by which the log was described in the first count might be rejected as surplusage, and if they found that the log which was seen near Noble's house was removed from the river and sawed b^' him, with the intention fraudulently and wilfull}' to convert it to his own use, and that the same log was the property of said Brown, Mc- lntire, and Welch, then they would find Noble guilty on the first count. Noble excepted to this instruction.^ Weston, C. J. It ma}' be regarded as a general rule, both in crim- inal prosecutions and in civil actions, that an unnecessary averment may be rejected, where enough remains to show that an offence has been committed, or that a cause of action exists. In Ricketts v. Solway, 2 Barn. «fe Aid. 3G0, Abbott, C. J., says, " There is one exception how- ever to tliis rule, which is, where the allegation contains matter of de- scription. Then if the proof given be diflJerent from the statement, the variance is fatal." As an illustration of this exception, Starkie puts the case of a man charged with stealing a black horse. The allegation of color IS unnecessary, yet as it is descriptive of that which is the subject matter of the charge, it cannot be rejected as surplusage, and the man convicted of stealing a white horse. The color is not essential to the oflTence of larcen}', but it is made material to fix the identity of that which the accused is charged with stealing. 3 Stark. 1531. In the case before us the subject matter is a pine log, marked in a particular manner described. The marks determine the identity; and are therefore matter purely of descri{)tion. It would not be easy to * Arguments of counsel are omitted. SECT. III.] HASKINS V. THE PEOPLE. 53 adduce a stronger case of this character. It might have been sufficient to have stated that the defendant took a log merely, in the words of the statute. But under the charge of taking a pine log, we are quite clear that the defendant could not be convicti.-d of taking an oak or a birch log. The ollcnce would be the same ; but the charge to which the party wa.s called to answer, and which it was incumbent on him to meet, is for taking a log of an entirely different description. The kind of timber, and the artificial marks b}- which it was distinguished, are descriptive parts of the subject matter of the charge, which cannot be disregarded, although they may have been unnecessarily introduced. The log proved to have been taken was a diflerent one from that chnrged m the indictment ; and the defendant could be legally called upon to answer onl}- for taking the log there described. In our judg- ment, therefore, the jurj- were erroneously instructed that the marks might be rejected as surplusage ; and the exceptions are accordingly sustained. Wells, for Noble, argued orall}-. JZ W. Fame, County Attorney, afterwards argued in writing. RASKINS V. THE PEOPLE. Court of Appeals of New York. 1857. [Reported 16 iV. Y. 344.] Writ of error to review a judgment of the Supreme Court, affirming, on error to that court, a judgment of the Oyer and Terminer of Onondaga County. The prisoner was indicted, with four other persons, forgi'and larceny, the property alleged to have been stolen being money and bank notes, the property of David J. Shaw. It was described in the indictment as " two promissory notes for the payment of money, commonly called bank notes, of the Stonington Bank, current money of the State of New York, each of the value of fifty dollars ; bank bills of banks to the jurors unknown, and of a number and denomination to the jurors un- known, of the value of six hundred dollars; silver coin, current money of the State of New York, of a denomination to the jurors unknown, of the value of fifty dollars ; gold coin, current money of the State of New York, of a denomination to the jurors unknown, of the value of fifty dollars." The plaintiflT in error was tried separately in the Oyer and Terminer, in June, 1857. Shaw, the owner of the money alleged to have been stolen, resided at Summer Hill, Cayuga county. His iron safe, which ■was kept in a wing in his house, remote from the apartment in which he slept, was forced open during the night of the 27th of October, 1855, 54 COMMONWEALTH V STONE. [CHAP. III. and tlie contents, about $600 in money and some papers, were taken awa}-. Shaw swore that there were among the mone}- at least two fifty- doUiir bills of the Stonington Bank : that the residue of the money was in current bank bills, and gold and some silver coins. Upon the examination of Shaw he was asked by the prosecution to state the amount and kind of bills and of gold and silver coin. The prisoner's counsel objected to the inquiry on account of the generality of the description in the indictment. The objection was overruled and the prisoner's counsel excepted. Tlie witness described the different kinds of money as well as he was able.^ Dexio, C. J. The indictment was sufficient. "When the substance of the offence is set out, the jurors may omit a matter of description which they cannot ascertain. The People v. Taylor, 3 Denio, 91, and cases cited. If this were not so there would often be a failure of justice. In the case of the stealing of a considerable parcel of bank notes or a quantity of coin, it woukl frequently, and perhaps generally, happen that tlie owner would not be able to specify the different kinds of notes or the various species of coin. The description of them as bank notes, and as gold or silver coin, together with a statement of the ownership, with an averment that a more particular description cannot be given, sufficiently identifies the offence to guard the prisoner against the danger of another prosecution for the same crime. But this indictment would be sufficient without any aid from this rule. Two of the notes which the defendant stole, which were of an amount sufficient to consti- tute grand larceny, were described with particularity ; and if it should be granted that the other bills and the coin were not sufficiently de- scribed, still they could be spoken of in the testimony among the cir- cumstances attending the offence, though the conviction could only be had as to the property of which there was a sufficient description. The exception upon this point was not well taken. COMMONWEALTH v. STONE. Supreme Judicial Coukt of Massachusetts. 1890. \Reported 152 Afass 498.] Indictment alleging that the defendant, at a hearing in the Probate Court holden at Worcester in the county of Worcester in this Common- wealth, procured " Laura A. Fairbanks of Worcester in said county of Worcester " to commit perjury. At the trial in the Superior Court, before Aldrich, J., one Laura A. Fairbanks, who was admitted to be the person described in the indictment as of Worcester in this Com- monwealth, testified, without contradiction, that at the time she testi- i Part of the ca.se, not relating to the question of pleading, is omitted. SECT. III.] COMMONWEALTH V. STONE. 55 fied in the Probate Court her residence was in Brookline in the State of New Hampshire, and has been there since. The judge decHned to rule, as requested b3' the defendant, that " there is a variance between the evidence and the allegations of the indictment in this, that the indictr ment alleges perjury b}' Laura A. Fairbanks of Worcester, in the county of Worcester in the Commonweallh of Massachusetts, and the evidence tends to prove perjury only by Laura A. Fairbanks, of Brook- line, New Hampshire." The jury returned a verdict of guilty ; and the defendant alleged exceptions. TV. /S. B. Hopkins cD F. B. Smithy for the defendant. A. J. Watermcm^ Attorney-General, for the Commonwealth. Devens, J. The gist of the charge in the indictment is, that the de- fendant procured Laura A. Fairbanks to commit perjury in the trial therein described. The Laura A. Fairbanks who testified in the Superior Court, it was admitted, was the same person who had testified in the Probate Court where the perjurj- was alleged to have been com- mitted, nor did it appear whether there was any person of the same name who was a resident of Worcester. The indictment described the Laura A, Fairbanks whom the defendant was charged with suborning as " of Worcester in said county of AVorcester " in this Commonwealth. This was an allegation that she was a resident of Worcester, and the uncontradicted evidence was that the person who had testified in the Probate Court, and also in the Superior Court, was at the time and since a resident of New Hampshire. It has been held that where a person necessaril}' mentioned in an in- dictment is erroneously described as George E. Allen instead of George Allen, or Nathan S. Hoard instead of Nathan Hoard, or the Boston and Worcester Railroad Company instead of the Boston and Worcester Railroad Corporation, the variance is fatal, unless it shall be shown that the person so named is known b}' the one name as well as the other, as the correct description of such person is necessary to idcntifj' the oflTence. Commonwealth v. Shearman, 11 Cush. 546. Common- wealth V. Pope, 12 Cush. 272. Commonwealth v. McAvoy, 16 Gray, 235. Where a person or thing necessar}- to be mentioned in an indict- ment is described with unnecessary particularit}', the circumstances of the description are to be proved, as they are made essential to its identity. Thus, in an indictment for stealing a horse, its color need not be mentioned ; but if it is stated, it is made descriptive of the animal, and a variance in the proof of its color is fatal. 1 Greenl. Ev. § 65. 3 Stark. Ev. (4th Am. ed.) 1530. Commonwealth v. Wellington, 7 Allen, 299. State v. Noble, 15 Maine, 476. Rex v. Craven, Russ. & Ry. 14. Where circumstances are not descriptive of the crime, a discrepancy between them as alleged and as proved is not important, but in the case at bar the description of the person whom the defendant was cliargcd with suborning was essential to this identity. While it was not neces- 56 CASTRO V. THE QUEEN. [CHAP. III. sary to have described this person by her residence, when this allega- tion was introduced it was to be proved, as it was this person whom the defendant was charged with suborning. In an action for malicious prosecution of the plaintiff upon a charge of felony, before Baron Waterpark of Waterfork, a magistrate of the kingdom of Ireland, it was held that proof of a prosecution before Baron Waterpark of Waterpark was a fatal variance. ^V alters v. Mace, 2 B. & Aid. 756. If, therefore, Fairbanks was not a resident of Worcester, but of New Hampshire, the defendant was entitled to a ruling that there was a variance between the allegation of the indictment and the proof. The Pub. Sts. c. 213, § IG, provide that certain defects of form, as by reason of the omission or misstatement of the degree, occupation, &c., of the defendant, or of his place of residence, shall not vitiate the indictment, but it has made no such provision in regard to others neces- sarily mentioned therein. In general, it may be said that a misnomer, or other misdescription of a defendant, has always been deemed of less importance than that of one necessarily mentioned in the description of the offence, as the defendant may plead in abatement if he deems the matter of sufficient importance. The Pub. Sts. c. 205, §§ 5, 6, al^o, which prescribe or rather modify the common law form of the indict- ment for perjury and subornation of perjury, do not suggest that there is to be any further latitude in the description of the person whose testi- mony has been alleged to be suborned than that which has heretofore been permitted. ^xc€ptio7is sustained. SECTION IV. Counts. CASTRO, alias ORTON, alias TICHBORNE v. THE QUEEN. House of Lords. 1881. [Reported 6 App. Cas. 229.] This was an appeal against a decision of the Court of Appeal, which had affirmed a judgment of the Queen's Bench Division. Law Rep. 9 Q. B. 350 ; 5 Q. B. D. 490. On the 8th of April, 1872, the grand jury at the Central Criminal Court found a true bill against Thomas Castro, alias Arthur Orton, alias Sir R. C. D. Tichborne, Bart., for perjury. The indictment con- tained two counts. The first count charged that on the 10th of Ma}', 1871, at Westminster, before Sir W. Bovill, Lord Chief Justice of the Common Pleas, an issue, duly joined in an action of ejectment, came on to be tried, in which the appellant was the claimant, and Franklin Lushington and others were defendants, that the appellant appeared as SECT. IV.] CASTRO V. THE QUEEN. 57 a witness for himself and was duly sworn, and gave answers iu several matters (whieli were particularly set forth), and that the appellant on bis oath falsely answered in these matters, and so committed the olfence of perjury against the peace of our lady the Queen, her crown and dignity. The second count charged that, on the 7th of April, 18G8, a suit had been instituted in Chancery, in which the appellant was the plaintilf, and the Hon. Teresa Tichbornc, widow, and others were the defendants, praying that in case it might be deemed requisite for him to take proceedings at law for the recovery of the Tichborne estates, the defendants might be restrained by injunction from setting up certain outstanding terms, &c., therein mentioned, and that on the said 7th of April, 1SG8, the defendant made an affidavit in support of his motion in the said suit, and therein made certain false statements (which were fully set forth in the count), and did thereby commit perjury against the peace, &c., as before. The appellant pleaded not guilty. The indictment was removed into the Queen's Bench. The trial, which began on the 23d of April, 1873, and terminated on the 28th of February, 1874, took place before Lord Chief Justice Cockburn. The verdict was in the following form : "The jurors so empannelled, »S:c., on their oath say that the said Thomas Castro, otherwise called, &c., is guilty of the premises on him above charged in and by both counts of the indictment aforesaid above speci- fied, iu the manner and form aforesaid, as by the indictment aforesaid is above supposed against him." The judgment that followed was, " That the said Thomas Castro, otherwise, «S:c., for the offence charged in and by the first count of the said indictment, be kept in penal servi- tude for the term of seven years now next ensuing. And that for and in respect of the offence charged in and by the second count of the said indictment, he, the said Thomas Castro, otherwise, &c., be kept in penal servitude for the farther term of seven years to commence immediately upon the expiration of his said term of penal servitude for his offence in the first count of the said indictment." On the 13th of December, 1879, Sir John Holker, Iler Majesty's then Attorney -General, granted his fiat for a writ of error, which was after- wards issued, and the case was argued in the Court of Appeal, when judgment was given for the Crown. 5 Q. B. D. 490. This appeal was then brought. 3fr. Benjamin, Q. C, and Mr. Atherley Jones {Mi', ITeddencick and Mr. Spratt were with them), for the appellant, renewed the argu- ments used in the court below, and in addition to the cases there cited, mentioned and commented on Reg. v. Roberts, Carth. 226 ; 1 Show. 389 ; Comb. 193 ; 4 Mod. 100 ; Reg. v. Rhodes, 2 Ld. Raym. 886 ; and Rex V. Ellis. 6 B. & Cr. 145. The Attornej-'Gcneral {Sir H. James), the Solicitor-General {Sir Farrar Uerschell), Mr. Poland and Mr. A. L. Smith, appeared for the Crown, but were not called on. 58 CASTHO V. THE QUEEN. [CHAP. IlL Lord Blackburn.^ M}- Lords, notwitlistand'ing the vory consider, able time which has been occupied in the argument, I have never been able from the beginning to the end to entertain the least doubt that in this case the judgment ought to be affirmed. I must say at once I totalh' disagree with what has been repeatedly' asserted by both the learned counsel at the bar. I totally disagree that the pleadings at common law in a criminal case and a civil case were in the slightest degree different. I am speaking of course of the time before the Judicature Acts passed which swept them all away. IMany enactments had from time to time been passed, relieving the strictness of pleadings in civil cases, which did not relieve them in criminal cases ; but the rules of pleading at common law were exactly the same in each case. The course taken with regard to an indictment was this : The Queen having sent her commission to the grand jury, or any other com- mission to a proper tribunal, the tribunals so authorized presented all the offences that came to their knowledge ; if it was brought sufficiently to their knowledge that a man had committed ten murders, fifty burg- laries, and a score of larcenies, they would find, not one finding as to them all, but they would find in separate counts that he had committed each of those charged offences ; and if there were many other persons (as generally there are) it would also be found that those other persons had committed the offences proved against them also, and of this pre- sentment one record was made up. Upon that, process could be issued against a man so charged, to bring him upon his trial before a petty jury, to try whether he was guilty of those offences so charged or not. Now, at common law there was no objection whatever, in point of law, to bringing a man who was charged with several offences, if those charges were all felonies, or were all misdemeanors, before one petty jury,°and making him answer for the whole at one time. The chal- lenges and the incidents of trial are not the same in felony and in mis- demeanor, and therefore felony and misdemeanor could not be tried together ; but any number of felonies and any number of misdemeanors might.'^ The contrary was asserted by the learned counsel, but, though 1 Tho concurring opinions of the Lord Chancellor and Lord Watson, and part of Lord Blackburn's opinion, are omitted. ••2 It was a principle of the English law, and the rule has been adopted in some of our States, that there can he no conviction for a misdemeanor upon an indictment for a felony, even where the allegations of the indictment include such misdemeanor. The reasonVor the rule was, that persons charged with misdemeanors had certain advan- tages at their trials which were not allowed to those arraigned for felony, and it was deemed unjust to suffer the too heavy allegation to take from them these privileges. But the practice of withholding any substantial privilege from a person indicted for felony, which is allowed to one indicted for misdemeanor, does not obtain in this country, and therefore, in many of the States it is the practice to permit convictions for misdemeanor on indictments for felony, where the latter includes the former. 1 Bishop on Crim. Law (.5th ed.) sees. 804, 805. ... In the late case of State v. Stewart, et nl, 59 Vt. 273, it is said : " Although authorities can be found that lay down the rule that felonies and misdemeanors, or different felonies, can not lie joined in the same indictment, still the rule in this and most of the States is otherwise. It is always and SECT. IV.] CASTRO V. THE QUEEN. 59 repeatt'dl}' cliallengcd to do so, lie did not cite any authority in support of his contention. There was no legal objection to doing this ; it was frequentl}' not fair to do it, because it might embarrass a man in the trial if he was accused of several things at once, and frequently the mere fact of accusing liini of several tilings was supposed to tend to increase the probability of his being found guilty, as it amounted to d. The jury had been sworn and charged to inquire into the guilt of the prisoner. /Sinion, for the prosecutor, had opened the case, when 3Ioiik, for the prisoner, having come into court during the opening of the learned counsel for the prosecution, informed his lordship that the prisoner was not prepared with his defence ; upon which Eklk, J., discharged the jury from giving a verdict, observing that, with the consent of both parties, there was power to do so ; and such 70 COMMONWEALTH V. GREEN. [CHAP. IV. consent being then given, the trial was accordingl}' postponed to the following day. His lordship added that Mr. Baron Parke held the same opinion. COMMONWEALTH y. ALDERMAN. Supreme Judicial Court of Massachusetts. 1808. [Reported 4 Mass. 477.] The defendant being arraigned on an indictment for an assault and batter\-, and being enquired of by the clerk whether he was guilt}- or not guilt}-, said that he was guilty, but added that he had himself in- formed a justice of the peace for the county of his offence, by whom he had been sentenced to pay a fine, &c. The Court directed the clerk to enter the plea of guilty alone, observ- ing that it had heretofore been solemnly determined that a conviction of a breach of the peace before a magistrate, on the confession or infor- mation of the offender himself was no bar to an indictment by the grand jury for the same offence.* COMMONWEALTH v. GREEN. Supreme Judicial Court of Massachusetts. 1822. [Reported 17 Mass. 515.] Parker, C. J.^ The prisoner, having been convicted by the verdict of a jury of the crime of murder at the last term of tlie court, moved for a new trial ; because, as alleged in his motion, one Sylvester Stod- dard, who had been sworn as a witness on the part of government, and who had testified to the jury, had been convicted of the crime of larceny, in a court having jurisdiction of the offence within the State of New York; whereby, as is alleged, he was rendered infamous, and for that reason his testimony could not be received in a court of justice in this commonwealth. A copy of the record of that conviction has been pro- duced in support of the motion ; and sufficient evidence has been given to satisfy the court, for the purpose of sustaining this motion, that the Sylvester Stoddard, who was sworn and examined on the trial of the prisoner, was the subject of that conviction. It appeared also that judgment was rendered upon that conviction, and was executed upon the convict, within the public prison of the State of New York. It has been argued by the attorney and solicitor-general that by law 1 "A like decision was made in Low's case, about a. d. 1783. In neither case was there any notice to the party injured." 6 Dane Abr. 732. — Ed. 2 Part of the opinion only is given. SECT. I.] COMMONWEALTH V. GREEN. 71 a new trial cannot be granted of a capital felony ; and it appears by the English text-books, and by several decisions cited in snpi)ort of the position, that in cases of felony, a new trial is not usually allowed by the courts of that country. But whatever reasons may exist in tliat country for this practice, we are unable to discern any suincient ground for adopting it here. That a prisoner, who has been tried for a felony, and acquitted, should not be subjected to a second trial for the same offence, seems consis- tent with the humane principles of the common law, in relation to those whose lives have been once put in jeopardy. But the same humane principles would appear to require that after a conviction, a prisoner should be indulged with another opportunity to save his life, if any- thing had occurred upon the trial which rendered doubtful the justice or legality of his conviction. 2iemo bis debet vexari 2)ro una et eudem causa is a maxim of justice, as well as of humanity ; and was estab- lished for the protection of the subject against the oppressions of gov- ernment. But it does not seem a legitimate consequence of this maxim that one who has been illegally convicted should be prevented from hav- ing a second inquiry into his offence ; that he may be acquitted, if the law and tlie evidence will justify an acquittal. It is true that, in England, the utmost caution is used on capital trials in favor of life ; and if an irregularity materially affecting the trial occurs to the injury of the accused, the court usually represents such matter to the crown, and a pardon is generally granted. But it is the right of every subject of that country, and of every citizen of this, to have a fair and legal trial before his peers, the jury ; and it is hardly consistent with that right, that it should be left to the will or discretion of the judge whether a representation of an actual irregularity shall be made to the pardoning power ; or to the discretion of the latter, whether that power shall be exercised in favor of a person unlawfully convicted. Where the error appears of record, in either country, the court will arrest the judgment after a verdict of guilty ; and the party may be airain indicted and tried for the same offence. If the error does not appear of record, but arises from inadvertency of the judge, in reject- ing or admitting evidence, or from misbehavior of the jury, or other cause which would be good ground for a new trial in civil actions or misdemeanors, justice and consistency of principle would seem to de- mand that the person convicted should, upon his own motion, have another trial ; instead of being obliged to rely upon the disposition of the court to recommend a pardon, or of the executive power to grant it. It is not enough, that the life of the accused will generally l>e safe in the hands of such highly responsible public agents. The right of the subject to be tried by his peers, according to the forms, as well as principles, of law, is the only certain security that " at all times and under all circumstances " that protection which the constitution extends to all will be effectually enjoyed. 72 COM M0^: WEALTH V. LOUD. [CHAP. IV. Nor is it for tiie public safety and interest tliat new trials should be refused in such cases. For it must be obvious that in most cases of irregularity which would be a good cause for another trial if in the power of the court to grant it, a pardon, upon the representation of the court, would be thought to follow of course ; and thus, in many cases, pubUc justice might be prevented on account of defect in form, or some irregularity not affecting the merits of the case, which mischief might be avoided by another trial. For these reasons we think there is a power in this court to grant a new trial on the motion of one convicted of capital offence, sufficient cause being shown therefor ; notwithstanding the English courts are supposed not to exercise such authority ; and if this opinion needs sup- port, the case of John Fries, who, after conviction of treason, was tried a second time, and the case in South Carolina, cited at the bar from Bay's reports, are sufficient for this purpose. In the case of the United States V. Fries, Mr. Rawle, the district attorney, admitted the power of the court to grant a new trial, and argued only against the propriety of exercising the power in that case. Judge Iredell expressly admitted the power ; and Judge Peters, who was against a new trial, although he yielded to the Circuit Judge, did not deny the authority of the court to grant it. In a late case also, in New York, The People v. Goodwin, which was a case of felon}', it was decided that the cause might be taken from the jury, and a new trial ordered. COMMONWEALTH v. LOUD. Supreme Judicial Court of Massachusetts. 1841. [Reported 3 Met. 328.] The defendant was tried in the Court of Common Pleas, before Warren, J., on an indictment found at April term, 1841, charging him with feloniously stealing, &c., certain lumber. After the testimon}' against him had been introduced, and the judge had instructed the jury that the testimony, if believed by them, proved a larceny, the defendant proposed to prove a prior conviction of the same offence, as a bar to this indictment ; and offered, for that pui'pose, a record of certain pro- ceedings before a justice of the peace in and for this county. Ou inspecting that record, it appeared that L. II. Loud, in Januar}', 1841, presented a complaint to said Justice, in which he alleged that on the 10th of August, 1840, certain lumber (admitted to be the same that was described in the indictment) was feloniously^ taken, stolen, and car- ried away, and that the complainant had probal)le cause to suspect, and did suspect, that the defendant did feloniously take, steal and carry away the same ; that the said justice thereupon issued a warrant against SECT. I.] COMMONWEALTH V. LOUD. 73 the defendant, on which the defendant was carried before the justice and arraigned ; that the defendant pleaded that he was not guilty, and that after a full hearing the justice found him guilty, and imposed on him a fine of ten dollars with costs of prosecution. It was proved or admitted that the defendant paid the said fine and costs. The judge ruled that said proceedings did not constitute a bar to this prosecution, and the jury found the defendant guilty. To this ruling the defendant excepted. Ilallett & Jvingsburij, for the defendant. Aiistm, Attornc3--General, for the Commonwealth. Putnam, J. This case comes before us on exceptions to the ruling of the Court of Common Pleas, and we decide it on the last which ap- pears to be made, namely, that the defendant offered to prove the record and proceedings of a prior conviction for the same offence, before a justice of the peace, as a bar, but that the court ruled that the same did not constitute a bar to this prosecution. And the attorney-general admits that this case is to be taken and considered by the court as if that plea had been formally made with proper averments ; that the larcen}' of which the defendant was convicted was of the same pro- perty for the stealing of which he has been again indicted and con- victed ; and that the defendant submitted to the former judgment, and performed the sentence. But it is contended for the Commonwealth, that the supposed former conviction was not only erroneous, but was merelj' void. In the case of Commonwealth v. Phillips, 16 Pick. 211, it was held that a conviction, on a complaint in similar form to that which was used in the case at bar, was erroneous ; and the judgment was arrested. The defendant excepted to that judgment, as he well might. But in the case at bar, the defendant waived any exception to the judg- ment, complaint, proceedings, or sentence ; and he has performed the sentence. The Commonwealth now desire to have those proceedings held for nothing, so that, by an indictment in technical and legal form, the de- fendant may be again tried and punished for the same offence of which he has been informally convicted. We cannot think that those proceed- ings before the magistrate were merely void. On the contrary, it is reasonable to believe that the complainant intended to prosecute for a larceny. The defendant understood it so, and so did the magistrate. Now the judgment that the defendant w^as guilty, although ui)on pro- ceedings which were erroneous, is good until the same be reversed. This rule of criminal law is well settled. It was the right and privi- lege of the defendant to bring a writ of error, and reverse that judg- ment ; which writ would have been sustained by the case before cited of Commonwealth -v. Phillips ; but he might well waive the error and submit to and perform the judgment and sentence, without danger of being subjected to another conviction and punishment for the same 74 BRENNAN V. THE PEOPLE. [CHAP. IV, offence. Vaux's case, 4 Co. 45 ; 2 Hale P. C. 251 ; 2 Hawk. c. 36, § 10, et seq. ; 1 Stark. Crim. PI. (2d ed.) 329, 330. The evidence which was offered, we think, constituted a good defence to the indictment. The bill of exceptions is sustained. Therefore the verdict should be set aside, and the defendant should go thereof dis- charged, without day.^ BRENNAN v. THE PEOPLE. Supreme Court of Illinois. 1854. [Reported 15 Illinois, 511.] The facts of this case are stated in the opinion of the court. This cause was tried at Ma}' term, 1854, of the Kane Circuit Court, J. G. Wilson, presiding. Hoyne^ Plato^ & Farnsicorth, for plaintiffs in error. Wallace & Blackicell, for the people. Treat, C. J.'' An indictment for the murder of Albert Story was found against Kern Brennan, James Tewey, Michael Tewej", Martin Ryan, and eight other persons, at the November term, 1853, of the La Salle Circuit Court. The defendants were arraigned during the same term, and pleaded not guilty to the indictment. The prisoners were then put upon their trial. The jury found Kern Brennan, James Tewey, and Michael Tewey guilty of the murder of Story. They also found Martin Ryan guilty of manslaughter, and fixed the period of his im- prisonment in the penitentiary at eight years. The record then recites : "Thereupon come the defendants, and move for a new trial herein; and the court being advised, sustains the motion, and grants a new trial." The same defendants were again put upon their trial for the murder of Story, at the May term, 1854. The jury found the four prisoners guilty of murder, and sentence of death was passed upon them. Was the prisoner, Ryan, properly put upon his trial a second time for the murder of Story? An indictment for murder embraces the charge of manslaughter. The lesser is included in the greater accusa- tion. On such an indictment, tiie jury ma}' find the prisoner guilty of manslaughter. And such a finding amounts to an acquittal of the charge of murder. The finding of the inferior is necessarily a discharge of the superior offence. Ryan was regularly put upon his trial on the indictment, and was found guilty of manslaughter. In contemplation of law, the jury rendered two verdicts as to him ; one acquitting him of the murder of Story ; the other convicting him of the manslaughter of 1 Bnt see People v. Barrett, 1 Johns. 66. ' Only so much of tlie case as involves the question of double jeopardy is given. SECT. I.] BRENNAN V. THE PEOPLE. 75 Story. He was thus legally tried for the offence of murder and ac- quitted. It is perfectly clear that he could not again be put in jeopardy on the same charge, unless that acquittal was set aside at his instance. A verdict either of acquittal or conviction is a bar to a subsequent prosecution for the same offence, although no judgment has been en- tered u[)on it. Mount v. The State, 14 Ohio, 295 ; The State v. Nor- vell, 2 Yerger, 24 ; Hunt v. The State, 25 Miss. 378. It does not appear from the record that Ryan has ever waived the benefit of the verdict of acquittal. It is true that he united with the other prisoners in asking for a new trial, but that application as to him must be re- garded as extending only to the charge upon which he was convicted. He had no occasion for another trial, except as to the charge of man- slaughter. Being legally acquitted of the charge of murder, he surely did not desire that to be again investigated. It is not to be presumed that he would voluntarily place himself iu peril upon a charge, on which he liad already been tried and acquitted. Even if the court, upon his motion, could open the whole case, the record does not show that such a power was either invoked or exercised. The application for a new trial did not necessarily relate to the charge upon which he was ac- quitted. It naturall}- referred to the charge on which he was convicted. Nor did the court, in terms, set aside the entire finding of the jury. It simply granted the prisoners a new trial. The order was no broader than the application. There were two distinct findings as to Ryan, and, therefore, there was not the least necessity' for disturbing the one acquitting him of murder. The one might be set aside, and the other be allowed to stand. The verdict was not an entire thing, which should wholly stand or fall. This view gives full effect to the order of the court. There was still a charge upon which R3'an could be again tried. This view of the question is sustained b}' adjudged cases. The case of Campbell v. The State, 9 Yerger, 333, is strongly in point. The prisoner was tried upon an indictment containing three counts. He was acquitted on the first and third counts, and convicted on the second. He entered a motion for a new trial, and the court, in sus- taining it, set aside the entire finding of the jury. On the second trial, he objected to being tried on the counts upon which he had been ac- quitted ; but the court ordered him to be tried on the whole indictment. On this trial, he was acquitted on the first and second counts, and con- victed on the third. On error, it was held that he was entitled to judgment of acquittal upon the first and third counts, because as to them he was legally discharged on the first trial ; and that he was entitled to the same judgment on the second count, because as to that he was acquitted ui)on the second trial. The court remarked: "It is not necessar}' to determine how far a part}' could be held, even to an express waiver of the benefit of a verdict of acquittal. It is enough, that in this case he has not done so. He moved for a new trial. We are not to suppose his application was more extensive than his necessi- ties. As he had been acquitted upon two counts, he could have no 7G SIMMONS V. UNITED STATES. [cilAP. IV. motive to ask for another trial, except upon the one on which he was fuiiud guilty ; and we are not to understand his application as going further. But the record shows that the judge, in granting a new trial, set aside the verdict. This was error ; it improperl}- revived the pro- ceedings upon those counts upon which he was acquitted. But although the}- were iuiproperl}' revived, it was error to try the defendant a second time upon them. Having been once tried upon all the counts and acquitted of some of them, to try him again upon the same counts would be putting him in jeopardy a second time for the same charge." The same doctrine is recognized in the cases of Slaughter v. The State, G Humph. 410 ; Morris v. The State, 8 S. <& M. 762 ; and Hunt v. The State, 25 Miss. 378. In the opinion of the court, R3'an was improperly tried a second time for the murder of Story. He had previously been tried for that offence, and his innocence legally established. The verdict of acquittal re- mained in full force ; and he could not again be put in jeopardy on the same charge, without the violation of an express provision of the constitution. The judgment as to Ryan must be reversed, and the cause will be remanded. He may still be put upon his trial on the charge of man- slaughter. As respects the other prisoners, the judgment must be affirmed. Judgment affirmed} SIMMONS V. UNITED STATES. SuPRE3iE Court of the United States. 1891. [Reported 142 U. S. 148.] Gray, J.** The general rule of law upon the power of the court to discharge the jury in a criminal case before verdict, was laid down by this court more than sixty years ago, in a case presenting the question whether a man charged with a capital crime was entitled to be dis- charged because the jur}', being unable to agree, had been discharged, without his consent, from giving any verdict upon the indictment. The court, speaking by Mr. Justice Story, said : " We are of opinion that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his de- fence. We think that, in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject ; and it is impossible to define all the 1 See State v. Belden, 33 Wis. 120. Contra, State v. Behimer, 20 Ohio St. 572. 2 Part of the opinion only is given ; it states the case. SECT. I.] SIMMONS V. UNITED STATES. 77 circumstances which would render it proper to interfere. To be sure, the power ouglit to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes ; and, in capital cases especiall}', courts should be extremely careful how they interfere with an}' of the chances of life in favor of the prisoner. But, after all, the}- have the right to order the discharge ; and the securit}' whicli the l)ublic have for the faithful, sound and conscientious exercise of this discretion rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of oflice." United States v. Perez, D Wheat. 579. A recent decision of the Court of Queen's Bench, made upon a full review of the English authorities, and atlirmed in the Exchequer Cham- ber, is to the same effect. Winsor v. The Queen, L. R. 1 Q. B. 289, 390 ; 8. c. 6 B. & S. 143, and 7 B. & S. 490. There can be no condition of things in which the necessit}' for the exercise of this power is more manifest, in order to prevent the defeat of the ends of public justice, than when it is made to appear to the court that, either by reason of facts existing when the jurors were sworn, but not then disclosed or known to the court, or b}' reason of outside influences brought to bear on the jur}' pending the trial, the jurors or an}' of them are subject to such bias or prejudice as not to stand impartial between the government and the accused. As was well said b}' Mr. Justice Curtis in a case very like that now before us, " It is an entire mistake to confound this discretionary authority of the court, to protect one part of the tribunal from corruption or prejudice, with the right of challenge allowed to a part}'. And it is, at least, equally a mistake to suppose that, in a court of justice, either party can have a vested right to a corrupt or prejudiced juror, who is not fit to sit in judgment in the case." United States v. Morris, 1 Curtis C. C. 23, 37. Pending the first trial of the present case, there was brought to the notice of the counsel on both sides, and of the court, evidence on oath tending to show that one of the jurors had sworn falsely on his voir dire that he had no acquaintance with the defendant ; and it was undisputed that a letter, since written and published in the newspapers by the defendant's counsel, commenting upon that evidence, had been read by that juror and by others of the jury. It needs no argument to prove ' that the judge, upon receiving such information, was fully justified in concluding that such a publication, under the peculiar circumstances attending it, made it impossible for that jury, in considering the case, to act with the independence and freedom on the part of each juror requisite to a fair trial of tlie issue between the parties. The judge having come to that conclusion, it was clearly within his authority to order the jury to be discharged, and to put the defendant on trial by another jury ; and the defendant was not thereby twice put in jeopardy, within the meaning of the Fifth Amendment to the Constitution of the United States. 78 vandercomb's case. Fchap. iv SECTION n. Identity of Offences. VANDERCOMB'S CASE. Crown Case Reserved. 1796. {Reported 2 Leach (4th erf.) 708.] Mr. Justice Buller, in June Session, 1796, after stating the plead- ings, delivered the opinion of the Judges upon this case.^ This is a demurrer to a special plea of autrefois acquit in bar of an indictment for a burglary with intent to commit a felon}'. The question raised b}' this demurrer has been argued before all the Judges of England. On that argument it was contended on behalf of the prisoners, that as the dwelling-house in which, and the time when, the burglary is charged to have been committed are precisel}' the same both in the indictment for the burglary and stealing the goods, on which the prisoners were ac- quitted ; and in the indictment for the burglar}' with intent to steal the goods, which is now depending, the offence charged in both is in con- templation of law the same offence, and that of course the acquittal on the former indictment is a bar to all further proceeding on the latter. To support this proposition two cases in Kelyng's Reports were relied on. It is quite clear that at the time the felony was committed there was onl}^ one act done, namel}', the breaking the dwelling-house. But this fact alone will not decide this case ; for burglary is of two sorts : first, breaking and entering a dwelling-house in the night time, and stealing goods therein ; secondly, breaking and entering a dwelling- house in the night time, with intent to commit a felony, although the meditated felony be not in fact committed. The circumstance of breaking and entering the house is common and essential to both the species of this offence ; but it does not of itself constitute the crime in either of them ; for it is necessary to the completion of burglar}' that there should not only be a breaking and entering, but the breaking and entering must be accompanied with a felony actually committed or intended to be committed ; and these two offences are so distinct in their nature, that evidence of one of them will not support an indict- ment for the other. In the present case, therefore, evidence of the breaking and entering with intent to steal, was rightly held not to be sufficient to support the indictment, charging the prisoner with having broke and entered the house, and stolen the goods stated in the first indictment ; and if crimes are so distinct that evidence of the one will not support the other, it is as inconsistent with reason as it is repug- ^ The opinion only is given ; it suflSciently states the case. SECT. II.] REX V. PLANT. 79 nant to the rules of law to say that they are so far the same that an ac(juittal of the one shall be a bar to a prosecution for the other.' These cases establish the principle that unless the first indictment were such as the prisoner might have been convicted upon by proof of the facts contained in the second indictment, an acquittal on the first indictment can be no bar to the second. Now, to apply the principle of these cases to the present case: The Grst indictment was for burg- lariously breaking and entering the house of Miss Neville and stealing the goods mentioned ; but it appeared that the prisoner broke and entered the house with intent to steal, for in fact no larceny was com- mitted, and therefore they could not be convicted on that indictment ; but they have not been tried for burglariously breaking and entering Miss Neville's house with intent to steal, which is the charge in the present indictment, and therefore their lives have never been in jeopardy for this offence. For this reason the Judges are all of oi)inion that the ])lea is bad ; that there must be judgment for the prosecutor upon the demurrer ; and that the prisoners must take their trials on the present indictment. REX V. PLANT. Chester Assizes. 1836. [Reported 7 C. i' P. 575.] Murder. — The prisoners were tried for the murder of Edward Plant, a child of the female prisoner, b}- poisoning him. In some of the counts of the indictment both prisoners were charged as joint prin- cipals in the actual murder ; and in others Louisa Plant was charged with the actual murder, the other prisoner being charged as present, aiding and abetting. It appeared that the two prisoners co-habited together, and that both went towards a druggist's shop, when he gave something into her hand, and she went into the shop and bought the poison ; and, on com- ing out, gave something to the male prisoner. It further appeared that the female prisoner, about a fortnight after this, took the deceased up stairs and gave him the poison, the male prisoner being in the back- yard of the house at the time. Upon this indictment the female prisoner was convicted, and the male prisoner acquitted, on the ground that he was not present with the other prisoner at the time of the murder, and that he was on this evi- dence an accessory before the fact. * Hia Lordship then examined the following authorities : Turner's case, Keiyng, 30 ; Jones and Bever's case, Keiyng, 52 ; 2 Hawk. P. C. c. 35, sect. 3 ; Foster C. I* 361; Rex v. I'edley, 1 Leach (4th ed.), 242. 80 RECxINA V. CALVI. [CHAP. IV. The prisoners were again indicted ; the female prisoner as a princi- pal in the murder, and the male prisoner as an accessory before the fact. To this indictment the prisoner Birchenough pleaded his acquittal on the former indictment : to this plea there was a demurrer. Cottingham^ for the prisoner Birchenough, submitted, that a person who had been tried as a principal in a case of felony, and acquitted, could not be tried as an accessory before the fact to the same felony, and cited 1 Hale P. C. 626, and 2 Hale P. C. 244. Lord Denman, C. J., held that the plea of former acquittal was no bar to the present indictment, and that the prisoner Birchenough must take his trial ; but his Lordship reserved the point for the consideration of the Judges. The jury on this indictment found both the prisoners guilty. REGINA V. CALVI. Central Criminal Court. 1857. [Reported 10 Cox C. C. 481 n.] Antonio Calvi was indicted for the wilful murder of Robert Hender- son Robertson. A plea of autrefois acquit was pleaded, to which the Crown demurred.* Pollock, C. B. — We are of opinion that this is not a good plea. The prisoner is now indicted for murder, and murder may be committed without an}- intent to kill. If a man intends to maim and causes death, and it can be made out most distinctly that he did not mean to kill, j'et if he does acts and uses means for the purpose of accomplishing that limited object, and the}' are calculated to produce death and death ensues, by the law of England that is murder, although the man did not mean to kill. On the former occasion the prisoner was charged with wounding with intent to kill. The jury found that he did not intend to kill, and there the intention was of the essence of the crime ; that is not so in the present indictment; it is not necessar}' here to prove an intention to kill, it is only necessary to prove an intention to inflict an injury that might be dangerous to life, and that it resulted in death ; that is sufficient to sustain the present charge. Tr}- this by the very test presented to us. It is said that it is no bar to the second indictment that a party has been acquitted on the first unless the facts proved on the second indictment might have produced a conviction on the first. But a party may be convicted upon an indict- ment for murder by evidence that would have no tendency to prove that there was any intent to kill, nay, by evidence that might clearly ^ Arguments of counsel are omitted. SECT. 11.] KEGINA V. CALYl. 81 show he meant to stop short of death, and even took some means to prevent death, but if that illegal act of his produces death, that js murder. Two authorities have been cited with reference to an acquittal or a conviction in a police court : one of them was a case be- fore Mr. Justice Coltman, which turned entirely upon the particular statute (9 Geo. 4, c 91, s. 28) ; and as to the case in 5 Law Chronicle, it is evident that that proceeded upon some statute applicable to Scot- land, or if it did not, I entirely dissent from the doctrine there laid down. The only suggestion that raised for a moment a doubt in my mind was to the effect that an acquittal of an assault with intent to kill was an acquittal both of the assault and of the intent ; but I think that is not so. The acquittal of the whole offence is not an acquittal of every part of it, it is only an acquittal of the whole. Therefore the result of such an acquittal would only be that the acts were not done with intent to kill, and although it was urged that under a recent Act of Parliament it was competent to the jury on the previous occasion to convict of unlawfully wounding, I am not sure if the whole record had been before us that that would have presented any sort of answer. But the record is not before us ; all we have is that the jury acquitted the party of the wounding with intent to kill ; that is the only thing we have to deal with. It appears to me, therefore, with reference to all the authorities that have been laid before us, that the two offences are not the same, that the plea cannot be supported, and that the prisoner must answer over. I am authorized to state that Mr. Justice Crompton, and Mr. Baron AVatson, before whom the case came at the last Sessions, have looked into the matter, and concur in the view now taken. Martin, B., said he was of the same opinion. After alluding to the peculiar form of the plea which omitted to aver the identity of the crime now charged with that of which the prisoner had been acquitted, and which omission in his opinion was fatal to the plea, he referred to that portion of the argument founded upon the maxim that no man could be tried twice for one and the same crime. That maxim pre- sented a true criterion by which to test this question. Is the crime here one and the same? Now the offence for which the prisoner has been tried was one of intent, and was therefore complete the moment the stab was given, whereas the offence for which he was now indicted could only be consummated by the death of the part}'. To the mind of a lawyer this must be deemed conclusive against the plea. WiLLES, J. — In order to support this plea it must be shown that the former acquittal was an acquittal of all that state of facts which might constitute the party a murderer. Now on comparing the two indict- ments it was clear that the jury had not so acquitted the prisoner ; all that was then disposed of was that he did not wound with intent to kill. It could not be assumed that the jury negatived the wounding ; there- fore, if the wounding, coupled with circumstances not sliowing an intention to kill, might constitute murder, the prisoner ouglit now to be tried for that offence, and that this might be the case was clearly shown 6 82 REGINA V. MOKRIS. [CHAP. IV. by the fact that persons inflicting wounds whilst engaged in the com- mission of burglary or robbery without any intention to kill would be guilty of murder where death ensued. In my opinion, the same matter was not again in discussion. The demurrer must be allowed, and judg- ment given for the Crown. The prisoner was then given in charge both upon the indictment and inquisition for the wilful murder of Robert Henderson Robertson. The jury found the prisoner guilty of manslaughter. REGINA V. MORRIS. Crown Case Reserved. 1867. [Repoi-ted 10 Cox C. C. 480.] Case reserved for the opinion of this court by Mr. Baron Pigott : — Thomas Morris was tried before me at the Stafford Spring Assizes, upon an indictment for the manslaughter of Timothy Lymer, by inflict- ing bodily injuries on him on the 25th June. It was proved, in evidence, that the prisoner had been summoned before the magistrates at the instance of the said Timothy Lymer, for the assaults which caused the death, and was convicted and sentenced to imprisonment with hard labor. He underwent that punishment. Timothy Lymer died on the 1st of September from the injuries resultino- from the above-mentioned assaults. It was contended under sect. 45 of the 24 & 25 Vict. c. 100, that the conviction for the assaults afforded a defence to the present indictment for manslaughter. See R. V. Elrington, 9 Cox Crim. Cas. 86. There was a substantial question raised by the evidence, whether the manslaughter was the result of injuries inflicted by the prisoner Morris or the prisoner Gibbons, joined in the present indictment, and whether the}' were acting in concert. I thought it desirable to let the prisoner Morris have the benefit of either of the defences, and for that purpose to let the questions of fact go to the jury upon the plea of not guilty, and to reserve the question of law under the aforesaid sect. 45, for the opinion of this court. The prisoner Gibbons was acquitted, and the prisoner Morris was convicted. If the court should be of opinion that a conviction for the assault at the instance of the injured person, under sect. 45, affords a defence in law to an indictment for manslaughter resulting from that assault, then a plea of not guilty to be entered ; otherwise the prisoner Morris to be called up for judgment at the next assizes. G. Pigott. G. Browne, for the prisoner. — The conviction cannot be sustained. The prisoner having been convicted for the assault upon Lymer, and SECT. II.] KEGINA V. MOKKIS. 83 undergone the imprisonment to which he was sentenced for it, was thereby released from all further proceedings in respect thereof, though unfurlunately the assault has resulted in the death of Lymer. The 24 & 25 Vict c. 100, s. 45, enacts that, "■ If any person against whom any such complaint as in either of the last three preceding sections men- tioned shall have been preferred by or on the behalf of the part}- aggrieved shall have obtained such certificate, or having been convicted, shall have paid the whole amount adjudged to be paid, or shall have sutfered the imprisonment, or imprisonment with hard labor, awarded, in every such case he shall be released from all further or other pro- ceedings, civil or criminal, for the same cause," This enactment is similar to one in the repealed statute (9 Geo. 4, c. 31, s. 27), upon which, in Keg. v. Walker, 2 Moo. & Rob. 44G, it was held that a con- viction for the assault before justices was a bar to an indictment for feloniously stabbing in respect of the same matter. And so again in Reg. V. Elrington, 9 Cox Crim. Cas. 86, it was held that a certificate of justices of the dismissal of a complaint for an assault might be pleaded in bar to an indictment founded on the same facts, for doing grievous bodily harm, and occasioning actual bodily harm. In Reg. r. Stanton, 5 Cox Crim. Cas. 324, Erie, C. J., expressed a similar opinion. He also referred to 1 Hawk. P. C, bk. 1, c. 13, s. 4. [Mautin, B., referred to the case of Reg. v. Salvi, 46 Central Criminal Court Sessions Paper, 884.] No counsel appeared for the prosecution. Cur. adv. vult. Kelly, C. B. — In this case I have the misfortune to differ with my learned brethren, who are of opinion that the conviction ought to be affirmed. The prisoner was charged before the magistrates with an assault under the 24 & 25 Vict. c. 100, at the instance of the party aggrieved, and now deceased, Timothy Lymer ; he was convicted and sentenced to imprisonment with hard labor, and has undergone that sentence. The assault, the unlawful act, with which he was charged, is the same assault and one and the same act as that which caused the death of Lymer, and of which he has been convicted under the present indictment. I think, therefore, that the case comes within the precise words of sect. 45 of the 24 & 25 Vict. c. 100, which provides that in such a case " he shall be released from all further or other proceedings, civil or criminal, for the same cause." It is true that the offence is now charged in other language ; that which before the magistrates was described as an assault, is now described as manslaughter ; but it is one and the same act, and the cause of the prosecution before the magistrates, and the cause of this prosecution, are one and the same cause. The case, therefore, comes within the letter as well as the spirit of the Act of Parliament, and I think that to sustain the convic- tion would he directl}' to violate the maxim or principle of the law nemo debet bis vexari (here we might say puniri) pro eddcin causa. Cases may, indeed, be suggested in which there might be a failure of 84 EEGINA V. MORRIS. [CHAP. IV. justice, as where an assault should have been treated lightly by a magistrate, and upon conviction a light sentence passed, and yet from the subsequent death of the party assaulted the offence might amount to murder. But such a case must be rare and exceptional, and I think we ought to presume that the magistrates will in all cases under this or any other Act of Parliament do their duty. And as where the charge is made at the instance of the party aggrieved, it may also be presumed that the whole of the evidence would be fully brought before the magistrates, and, upon conviction, an adequate punishment inflicted accordingly, I do not think that it was the inten- tion of the Legislature, or is consistent with natural justice, that the accident of the subsequent death of the party should subject the accused to a repetition of the trial and punishment. Salvi's case is clearly dis- tinguishable. There the prisoner was indicted for the murder of one Robertson, and pleaded a plea of autrefois acquit, the acquittal having been on an indictment for wounding with intent to kill. It was clear that this acquittal might have been pronounced upon the ground of the jury having negatived the intent to kill, and yet that the prisoner might well be guilty of the murder without an intent to kill the individual murdered, as if he had shot at another man, but unintentionially killed Robertson. The plea, therefore, of autrefois acquit was in that case properly overruled. Here, however, the prisoner has been tried, con- victed, and punished for the very same offence in all its parts, though under another name, as that for which he is now indicted, and again convicted, and it seems to me that to allow this conviction to stand is to punish a man twice for the same cause, in violation of the before- mentioned maxim and of the express language of the Act of Parlia- ment. I think, therefore, that the conviction ought to be quashed. Martin, B. — I am of opinion that the conviction ought to be sus- tained. The facts are : Thomas Morris was convicted of an assault on Timothy Lymer, and committed to prison under the 24 & 25 Vict. c. 100, s. 42. He has undergone that punishment, and Timothy Lymer, the man assaulted, has since died in consequence of that assault. Kow, this indictment is for the manslaughter of that man ; and the question is, whether the sufl"ering of the imprisonment for the assault is an answer to that indictment, and that depends on the meaning of the words " for the same cause " in the statute. I agree with the Lord Chief Baron that the case of Reg. v. Salvi is not expressly in point. Salvi had been acquitted of an assault with intent to murder, but con- victed of an assault with intent to do grievous bodily harm, and the prosecutor having subsequently died from the assault, he was indicted for murder ; and it was held that he might be properly so indicted, for that murder might be committed without any intent to kill, as, for instance, if a man, intending only to maim, caused death, that is murder. I think that decision was correct. I should be sorry to draw a distinc- tion between the words " for the same cause " in the plea of autrefois acquit, on which that case was adjudicated, and the same words in the SECT. II.] REGINA V. MOliKIS. 85 Stat. 24 & 25 Vict, c 100, s. 45. It would be a very serious thing if tiiere were any distinction. Tiie statute gives a release from all further or other proceedings, civil or criminal ; and if a dilll-rent construction were adopted, it would follow that if an action were brought under Lord Caiupbell's Act in respect of the death of the person assaulted, the conviction and punishment for the mere assault would be a bar to any claim for compensation. I apprehend that that cannot be so ; and that the cause on which the justices adjudicated was not the same as that for which the prisoner has been convicted under this indictment. A new offence, in my opinion, arose when the man died. I therefore think that this conviction was right. Byles, J. — I am of opinion that the prior conviction for the assault under the 24 & 25 Vict, c 100, s. 45, affords uo defence to the subse- quent indictment for manslaughter, the death of the deceased having occurred after the conviction, but being a consequence of the assault. The form and intention of the common law pleas of autrefois convict and autrefois acquit show that they apply only where there has been a former judicial decision on the same accusation in substance, and where the question in dispute has been already decided. There has, in the present case, been no judicial decision on the same accusation, and the whole question now in dispute could not have been decided, for at the time of the hearing before the magistrates whether the assault would amount to culpable homicide or not depended on the then future contingency whether it would cause death. The case of Reg. v. Salvi, if not precisely in point, is nevertheless a strong authority for this view of the law. But reliance is placed on the words of the statute 24 & 26 Vict. c. 100, s. 45, " for the same cause." It is to be observed that that statute does not sa}' for the same act, but " for the same cause." The word " cause " may undoubtedly mean " act," but it is ambiguous, and it may also, and perhaps with greater propriety, be held to mean '' cause for the accusation." The cause for the present indictment comprehends more than the cause in the former summons before the magistrates, for it comprehends the death of the party assaulted. It is therefore, at least in one sense, not the same cause. But if these obser- vations on the meaning of the word " cause," as used in the statute, should appear to savour too much of refinement, and to be used in support of a forced construction, it must be remembered that it is a sound rule to construe a statute in conformity with the common law rather than against it, except where or so far as the statute is plainly intended to alter the course of the common law. An additional reason in this case for following the common law is the mischief which would result from a different construction. My brother Martin has already illustrated the mischief in civil cases by a reference to Lord Campbell's Act, and in criminal cases the mischiefs might be much greater. A murderer, for example, by suffering or obtaining a prc^vious conviction for an assault, might escape the due punishment of his crime. Keating, J., and Shee, J., concurred. Conviction affirmed. 86 WEMYSS V. HOPKINS. [CHAP. IV. WEMYSS V. HOPKINS. Queen's Bexch. 1875. [Reported L. R. 10 Q. B. 378.] Case stated by justices of Cardiganshire under 20 & 21 Vict. c. 43. At the pettj" sessions at Aberystwith, on the 2Gth of June, 1872, a complaint was preferred b}' the superintendent of poUce against the appellant, under 5 & 6 Wni. 4, c. 50, s. 78, for that the appellant, on the loth of June, 1872, being the driver of a certain carriage on a certain highway, called Penpache Road, did then and there, by negli- gence or wilful misbehavior, to wit, b}- striking a certain horse ridden b}' the now respondent, cause certain hurt and damage to the now respondent, passing on the highway, bj' causing severe bruises and concussion of the hip-joint. The appellant was convicted and fined £2. At the petty sessions at Aberystwith, on the 7th of August, 1872, a complaint was preferred by the respondent against the appellant, under 24 & 25 Vict. c. 100, s. 42, for that the appellant did, on the 15th of June, 1872, unlawfully assault, strike, and otherwise abuse the respondent. The appellant was convicted and fined £1. On the hearing of the last complaint, the justices found as a fact that the appellant did, on the 15th of June, 1872, unlawfully and wilfullv strike and push against the horse upon which the respondent was riding, and also against the respondent herself, and caused her to fall from the horse to the ground, whereby she sustained a concussion of the hip-joint. It was contended on behalf of the appellant that, as he had been con- victed of the complaint preferred against him on the 26th of June, he could not be convicted again for what was the same offence. The question for the court was whether the appellant, having been convicted on the 26th of June, 1872, under 3 & 4 Wm. 4, c. 50, upon the complaint of the superintendent of police, could again be convicted on the 7th of August, 1872, under 24 & 25 Vict. c. 100, s. 42, upon the complaint of the respondent.^ P)LACKnuRN, J. I think the fact that the appellant had been con- victed by justices under one Act of Parliament for what amounted to an assault is a bar to a conviction under another Act of Parliament for tlie same assault. The defence does not arise on a plea of autrefois convict, but on the well-establi.';hed rule at common law that where a person has been convicted and punished for an offence by a court of competent jurisdiction, transit in remjudicatam; that is, the conviction shall be a bar to all further proceedings for the same offence, and he 1 Argument of coun.=el ii' omitted. SECT. II.] WEMYSS V. HOPKINS. 87 shall not be punished again for the same matter ; otherwise there might be two (lilFerent punishments for the same offence. The only point raised is whether a defence in the nature of a plea of autrefois convict would extend to a conviction before two justices whose jurisdiction is created by statute. I think the fact that tiie jurisdiction of the justices is created by statute makes no dilference. Where the conviction is by a court of competent jurisdiction, it matters not whether the conviction is by a summary proceeding before justices or by trial before a jury. It is necessary in the present case to have it proved, just as in the case of a defence upon the plea of autrefois convict, that on a former occa- sion the appellant was charged with the same assault, although not in the same words, yet in terms the same, and that he was then convicted and punished. That is the substantial averment in a plea of autrefois convict. Reg. v. p:irington, 1 B. & 8. 688 ; 31 L. J. (M. C.) 14, and the other cases cited do not apply, for the provisions of § 28 of 9 Geo. 4, c. 31, which have been re-enacted in 24 & 25 Vict, c. 100, s. 45, go further than the common law, and release a person who has been con- victed and paid the fine ; or who, being acquitted, has obtained a cer- tificate freeing him from further proceedings, civil or criminal, for the same cause. In this case we must rely upon the common law. It seems that the same identical matter was brought before a competent tribunal and the appellant was convicted and punished for it. I do not know whether serving the punishment makes any difference ; but he was convicted and sentenced for it, and therefore he cannot be tried again for the same thing before another tribunal ; and the justices who con- victed the appellant a second time made a mistake, and the conviction must be quashed. Lush, J. I am also of opinion that the second conviction should be quashed upon the ground that it violated a fundamental principle of law, that no person shall be prosecuted twice for the same offence. The act charged against the appellant on the first occasion was an assault upon the respondent while she was riding a horse on the high- way, and it therefore became an offence for which the appellant might be punished under either of two statutes. The appellant was prosecuted for the assault, and convicted under one of the statutes, S & A Wm. 4, c. 50, s. 78, and fined, and he therefore cannot be afterwards convicted again for the same act under the other statute. Field, J. I am of the same opinion. The case seems to fall within the principle enunciated in the text-books, particularly in Paley on Convictions, 5th ed. p. 145, and Broom, Legal Maxims, 3d ed. p. 312 ; and I think the circumstance that this was a conviction under a juris- diction created by statute does not make any difference in principle. A person cannot be twice punished for the same cause. Judgment for the appellant} J See Ilankins v. People, 106 111. 628; cf. State v. Thornton, 37 Mo. 360. 88 STATE V. DAMON. [CHAP. 17, STATE V. INGLES. SuTERiOR Court of North Carolina. 1797. {Reported 2 Haywood, 4.] Indictment for a riot with others, and for beating and imprisoning Edward D. Barry. Tlie defendant pleaded that he had been heretofore indicted in the County Court of Edgcombe for an assault and battery on the said Barry, and thereon had been convicted and fined, which indictment and conviction had been grounded on the same facts that this indictment was preferred for. Per Curiam. After argument b}' Baker for the State, and White for the defendant, the truth of this plea is admitted by the demurrer. The State cannot divide an offence consisting of several trespasses into as many indictments as there are acts of trespass that would separately support an indictment, and afterwards indict for the offence compounded of them all; as, for instance, just [first?] to indict for an assault, then for a battery, then for imprisonment, then for a riot, then for a mayhem, &c. But upon an indictment for an^ '»f these offences the court will enquire into the concomitant facts, and receive information thereof, b}' way of aggravating the fine or punishment, and will propor- tion the same to the nature of the offence as enhanced by all these circumstances; and no indictment will afterwards lie for any of these separate facts done at the same time. This plea is a good one, and must be allowed. The plea was allowed and the defendant discharged. STATE V. DAMON. Supreme Court of Judicature of Vermont. 1803. [Reported 2 Tyler, 387.] CuRiA.^ It appears that the defendant wounded two persons, in the same affray, at the same instant of time, and with the same stroke. On a regular complaint made, he has been convicted before a court of com- petent jurisdiction, for assaulting, beating, and wounding Frederick Miller, one of those persons. He stands here indicted for assaulting, beating, and wounding Elias Doty, the other of those persons ; and the defendant pleads in bar the former conviction, which he alleges to have been 'jr the same offence. The only question is whether the defendant has been already legally convicted of the offence charged in the indict- ^ The opinion only is given ; it sufficiently states the case. SECT. II.] STATE V. LEWIS. 89 mcnt. Of lliis there can be no doubt ; for it is apparent on the record that the assault and battery charged in the indictment, and that of which he was convicted by Mr. Justice Jiandall, were at the same place and in the same affray, and the wounds made by the same instru- ment and by the same stroke. This is not a question between either of the persons injured by the assault and battery and their assailant ; redress has been, or may be (U)tained by them by private actions ; but it is a question between the government and its subject, and the court are clearly of opinion that the indictment cannot be sustained. The indictment charges the defendant with having disturbed the public peace by assaulting and wounding one of its citizens. For this crime he shows that he has been legally convicted by a court of competent jurisdiction. He cannot therefore be again held to answer in this court for the same offence.^ Prisoner discharfjed. STATE V. LEWIS. Supreme Court of North Carolina. 1822. [Reported 2 Hawks, 98.] At September term, 1821, of Pitt Superior Court, two bills of indict- ment against the prisoner were found by the grand jur^- ; the one for burglary and larceny, the otlier for a robbery. The larceny in the one bill, and the robbery in the other, were for the same goods and chattels, and there was but one taking. At the same term the prisoner was found guilty of the larceny, and not guilty of the burglary. On this conviction the attorney-getieral did not pray any judgment, nor was any pronounced ; and, at the time of the prisoner's arraignment, no motion was made ])y his counsel that the prosecuting officer should elect on which indictment he would try the prisoner. At March term, 1822, the prisoner was brought to the bar, and the attorney-general directed a 7iol. pros, to be entered on the indictment which had been tried at the preceding term, but the court (Norvtood, J., presiding) refused to permit the nol.pros. The attorney-general then moved to arraign the prisoner on the indictment for robbery ; this also was 1 The question here is : Can a person, during the same evening, at a ball, commit a separate assault and battery upon each of two individuals f The evidence tends to sIidw that, as matter of fact simply, it was done in this case. But the a])pel]ant claims that how many soever of assaults and batteries he may have committed during the l)eriiid of excitement at the ball, they all amounted in law to but one offence, and tliat therefore the first fine inflicted for that offence, viz., that by Justice Brown, for the assault and battery on Frank Kelly, was a bar to all subsequent prosecutions for assault and battery committed during the period of excitement before mentioned. Wo cannot concur in this view. We think ai)pellant might be prosecuted for each sepsr rate assault and battery. — Pkiikins, J , in Greenwood r. State, 64 lud. 250. 90 ^ PEOPLE V. McGOWAN. [CHAP. 17. refused by the court until the first indictment should be disposed of, and on the refusal of the attornej'-general to pra}- judgment on the first indictment, the court quashed the indictment for robbery. On motion of prisoner's counsel, his clergy >vas allowed him on the conviction for larceny, and, on the further refusal of the attorney -general to pray judg- ment, the prisoner was ordered to be discharged ; whereupon, in behalf of the State, the prosecuting officer appealed to this court. Hall, J. It is admitted in this case that both indictments are for the same felonious taking of the same goods. The defendant is found guilty of a grand larceny on that indictment which charges a burglary and steahng. The other indictment is for a robbery ; a robbery is a larcen}', but of a more aggravated kind. The first is a simple larcen\'. The other is a compound or mixed larceny, because it includes in it the aggravation of a felonious taking from the person. Now, suppose the defendant should be tried and found guilt}' on the second indictment? It must certainh' follow that he had been tried twice for the feloniously taking of the same goods. It is true, if the first conviction is a bar to a trial on the second indictment, the prisoner would go untried as to that which constitutes the difference between simple larceny and mixed and compound larcen}', viz., a taking from the person. In such case he would be convicted of a felonious taking, but not of a felonious taking from the person. Whereas, should he be tried and convicted on both indictments, it might be said he had been con- victed twice of a felonious taking, and once of a felonious taking from the person, which I think would be at points with the principle "that no one should be twice put in peril for the same crime." This principle has such deep root in the criminal law, and is cherished bj^ so many judicial decisions, that it is not deemed necessary to refer to any of them. I therefore think the conviction on the first indictment for burglary and larceny a good plea to a trial on the second indictment for robbery. I also think that the record of these proceedings, and the admissions of the attorne^'-general were sufficient to authorize the judge below to discharge the prisoner. And in this opinion the rest of the court concurred. PEOPLE V. McGOWAN. Supreme Court of Judicature of New York. 1837. [Reported 17 Wend. 38&.] Error from the Alban}- 03'er and Terminer. The defendant was indicted at the Alban}' general sessions in June, 1837, for grand larcen}', in stealing one watch of the value of $110, one watch of the value of SECT. II.] PEOPLE V. McGOW.\N. 91 $65, one watch of the vahio of 845, one gold watch of the vahie of SI 1 0, one gold watch of the value of SOo, and one silver watch of the value of $45, the property of one Alexander M'llarg. The prisoner pleaded that at the All)aiiy general sessions held in March, 1837, he was in- dicted for rol)l)ery, being charged with entering a .shop, putting one James De Forrest in bodily fear, and violently taking and feloniously stealing one gold watch of the value of Si 10, one silver watch of the value of $65, and one other silver watch of the value of $45, the prop- erty of De Forrest ; and also with entering the shop, putting De Forrest in bodily fear, and violently taking and feloniously stealing one gold watch of the value of SllO, one silver watch of the value of SG5, and one other silver watch of the value of S45, the property of Alexander M'Harg; that he was arraigned and pleaded not guilty to the said in- dictment ; that the issue thus joined was tried at the Albany Oyer and Terminer, in April, 1837, and that he was duly acquitted by the verdict of a jury. The prisoner then averred his identity and the identity of the offences charged in the two indictments, and prayed to be dis- missed. The district attorney put in a replication, denying the identity of the offences, and upon the issue thus joined the prisoner was tried. The record of acquittal set forth in the plea was produced, and the counsel for the prisoner insisted that the prisoner was entitled to a verdict in his favor ; but the presiding judge charged the jury that to entitle him to a verdict it was necessary that the evidence to support the last indictment would have been sufficient to support the first indict- ment, and that as the proof to support a charge of larceny was not sufficient to sustain a charge of robbery, the offences charged in the two indictments were not the same, and consequently the acquittal on the first indictment was no bar to a conviction on the second, and that it was their duty to find the prisoner guilt}'. The jury found accordingly. The prisoner having excepted to the charge of the judge, sued out a writ of error. M. P. Bates, for the prisoner. S. Beardsley, Attorney- General, for the people. By the Courts Cowen, J. The first indictment, though for a rob- bery, involved the question of simple larceny, of which the prisoner, under that indictment, might have been convicted. So far therefore as the nature of the ofl'ence is concerned, the plea was valid ; the prisoner had, within the issue, been tried and acquitted of the larceny. The rule ' laid down by the Court of Sessions applies ; for the same proof would sustain either indictment to the extent necessary for the purposes of the plea. In this respect no proof was necessary on the part of the prisoner. The replication admitted the former indictment and acquittal, and took issue only upon the identity of the offences. In such case it is well settled that where the former indictment might have been sustained by showing the offence charged in the second, a prima facie case is made out for the prisoner. It then lies with the people to show, by evidence 92 PEOPLE V. McGOWAN. [CHAP. IV. aliunde, that the offences are substantially different in point of fact, or to give some other answer. In the case before us, it is said for the people that the two offences differ in respect to the identity of property- ; the former indictment speaking of six gold and silver watches, three of which belonged to De Forrest, and three to M'Harg ; whereas, now it is charged that all the six, viz., three watches, and three gold and silver watches, belonged to the latter ; and that the prisoner admits bj' his plea that he stole these six which belong to M'Harg. We cannot but see, however, that the difference is mere matter of form ; and that proof might have been received at the last trial of the same facts which would have been sufficient to sustain the indictment upon the first. The admission in the plea is not of every formal allegation which the counsel for the people may choose to insert in a second indictment. It admits the substance, which is grand larcen}' of some watch belonging to M'Harg, and that is just such an offence as might have been shown upon the first trial. There is no such substantial conflict in the indictments as to preclude the common averment that the offences are one and the same, and not other or different. The replication thus admitting a former trial and acquittal upon an indictment sustainable by the same proof which would be receivable under the second, the prisoner was, as his counsel insisted, prima facie entitled to a verdict. It la}' with the counsel for the people to prove their case, and then to show by further testimony that it was not the case before presented, nor which might have been insisted upon at the trial for the robbery. At all events, the prisoner was entitled to go farther on his part, and show that, in truth, the former trial was concerning a robber}', or a larceny of M'Harg's watch. This would have exhibited an offence covered by the last indictment, and precluded all farther inquiry con- cerning it, until the people should reply b}' con trad ictor}- proof, or by setting up, on new proof, a reall}' distinct and untried offence. But the ruling of the court below cut the prisoner off from all farther proof. The whole case was thrown upon a substantial difference between the offences involved in the two indictments, appearing on their face. The great object in respect to that class of pleas in bar to which this belongs is to see, in the first place, whether the former and the present declaration or indictment are of sufficient capacity' to let in the same cause of action or offence under each. If so, the former trial is, prima facie^ alwa3's a bar. The parties should, however, be allowed free scope for inquir}' as to what was, in truth, the substantial matter before litigated. If that were the same, and the case was tried upon its merits, the decision becomes conclusive, especially in a criminal proceeding. The verdict at the general sessions must be set aside, and a new trial had in that court. SECT. II.] COMMONWEALTH V. CLAIR. 93 COMMONWEALTH v. CLAIR. Supreme Judicial Court of Massachusetts. 1863. [Reported 7 Allen, 525.] Indictment for embezzling sixteen Melton cloth overcoats, the prop- erty' of David M. Hodgdon. At the trial in the Superior Court, before Ames, J., the defendant pleaded in bar a previous acquittal upon the same charge ; and it was admitted, on the part of the Commonwealth, that the defendant had been duly tried and acquitted on an indictment charging him with embezzling a quantity of Melton cloth, lasting, velvet, flannel, wadding, and other materials used in making overcoats, the property of said Hodgdon, which had been delivered to the defendant to be made into overcoats ; and that the present indictment was for the same crime intended to be covered by the first indictment. Tiie principal facts which appeared in both cases were, that Hodgdon delivered the materials to the defendant as aforesaid, and that several overcoats were made up and returned, but the work proved unsatisfactory, and they were redelivered for completion to the defendant, who subsequently did the acts relied upon as proof of the embezzlement. The judge overruled the plea in bar, and the defendant alleged exceptions. J^. W. /Sawyer, for the defendant. Foster, Attorney-General, for the Commonwealth. BiGELOw, C. J. The obvious and decisive answer to the defendant's plea in bar of autrefois acquit is, that the first indictment charges a different offence from that set out in the indictment on which the defendant is now held to answer. The principle of law is well set- tled that in order to support a plea of autrefois acquit the offences charged in the two indictments must be identical. The test of this identity is to ascertain whether the defendant might have been con- victed on the first indictment by proof of the facts alleged in the second. The question is not whether the same facts are offered in proof to sus- tain the second indictment as were given in evidence on the trial of tlie first ; but whether the facts are so combined and charged in the two indictments as to constitute the same offence. It is not sufficient to say, in support of a plea of autrefois acquit, that the transaction or facts on which the two indictments are based are the same. It is necessary to go further, and to ascertain and determine whether they are so alleged in the two indictments as to constitute not only the same offence in degree or kind, but also that proof of the same facts offered to sustain the second indictment would liave well supported the first. The King V. Vandcrcomb, 2 Leach (4th ed.), 708; Commonwealth v. Rohy, 12 Pick. 496, 500; Commonwealth v. Wade, 17 Pick. 400. The last case 94 COilMO^' WEALTH V. CLAIR. [CHAP. IV. affords an apt illustration of the practical application of the rule. The deiendant was indicted for burning a dwelling-house by setting fire to the barn of A. and B. The evidence showed that it was the barn of A. and C. This variance in the description of the offence was held to be fatal, and the defendant was acquitted. He was subsequently indicted for burning the same house by setting fire to the barn of A. and C. On a plea ot autrefois acquit it was held that the previous acquittal on the first indictment was no bar. The facts offered in support of the two indictments were the same, but different offences were charged in them. The averment of property in the barn was material, and this fact being alleged differently in the two indictments, the}' were not for the same offence either in form or substance. So in the case at bar. The defendant was first indicted for embezzling cloth, velvet, flannel, and other materials of which overcoats were made. This indictment would not have been supported if it appeared that, at the time when the alleged embezzlement was committed by the defendant, these articles no longer existed separately, but had been used and converted into gar- ments properly called and known as overcoats. There would have been in such case a material variance in the description of the articles embez- zled ; the evidence would not have corresponded with the allegation in the indictment of embezzling cloth and other materials, and the defend- ant would have been rightly acquitted on that ground. It is common learning that in indictments for larceny, embezzlement, and kindred offences, the description of the property which forms the subject of the offence must be proved as laid. A person indicted for stealing shoes cannot be convicted b}' proof that he had stolen boots ; nor is an indict- ment for stealing a sheep, which by legal implication avers that the animal was alive when stolen, supported by evidence that it was in fact dead when feloniouslj' taken. If an article has obtained in common parlance a particular name, it is erroneous to describe it by the name of the material of which it is composed. Archb. Crim. PI. (5th Am. ed.) 48 ; Roscoe's Crim. Ev. (5th ed.) 203 ; Rex v. Edwards, Russ. «& Ry. 497 ; Rex v. Halloway, 1 C. & P. 128 ; Regina v. Mansfield, Car. & M. 140. In the second indictment the defendant is charged with embezzling overcoats. This is a different offence from that charged in the first indictment. Nor would the evidence which would be suflScient to sup- port it have warranted a conviction on the charge of embezzling the materials of which the coats were made. He has therefore been acquitted of a different offence from that now charged against him. Such acquittal is no bar to the present indictment. Exceptions overruled. SECT. I.] CROUTHEK'S CASE. 95 / / CHAPTER V. THE CRIMINAL ACT. SECTION I. Completed Acts. 2 Hawkins, Pleas of the Crown, Ch. 25, Sect. 4. There can be no doubt but that all capital crimes whatsoever, and also all kinds of inferior crimes of a public nature, as misprisions, and all other conteu)pts, all disturbances of the peace, all oppressions, and all other misdemeanors whatsoever of a public evil example against the common law may be indicted ; but no injuries of a private nature, unless they some way concern the king. Also it seems to be a good general ground, that wherever a statute prohibits a matter of public grievance to the liberties and security of a subject, or commands a matter of public convenience, as the repairing of the common streets of a town, an offender against such statute is punishable, not only at the suit of tiie party aggrieved, but also by way of indictment for his contempt of the statute, unless such method of proceeding do manifestly appear to be excluded by it. CROUTHER'S CASE. Queen's Bencu. 1598. [Reported Croke EUz. 654.] Crouther was indicted, for that a burglary was committed in the night by persons unknown, and J. S. gave notice thereof unto him. being then constable, and required him to make hue and cry, and he refused, etc. Exception was taken to the matter of the indictment, because it hath been adjudged that an hundred shall not be charged with a robbery committed in the night, because the}' are not bound to give attendance ; no more ought a constable to do it in the night. But all the Court held the indictment to be good, notwithstanding ; for it is not like to the case of an hundred ; because it is the constable's duty, upon notice given unto him, presently to pursue.^ And it was said 1 See People v. Coon, 15 Wend. 277; State v. Haywood, 3 Jones, 399. —Ed. 96 ANONYMOUS. [CHAP. V. that in ever}' case where a statute prohibits an3'thing, and doth not limit a penalty-, the part}' offending therein may be indicted, as for a contempt against the statute.^ Another exception was taken, because he did not shew the place of the notice ; and that was held to be material. Whereupon the party was discharged. TAYLOR'S CASE. King's Bench. 1676. [Reported 1 Ventris, 293.] An information exhibited against him in the crown office, for utter- ing of divers blasphemous expressions, horrible to hear ; viz., That Jesus Christ was a bastard, a whoremaster ; Religion was a cheat ; and that he neither feared God, the Devil, or man. Being upon his trial, he acknowledged the speaking of the words, except the word bastard ; and for the rest, he pretended to mean them in another sense than they ordinarily bear; viz., whoremaster, i. e., that Christ was master of the whore of Babylon, and such kind of evasions for the rest. But all the words being proved by several wit- nesses, he was found guilty. And Hale said. That such kind of wicked, blasphemous words were not onl}' an offence to God and religion, but a crime against the laws, State and government, and therefore punishable in this court (for to saj' religion is a cheat, is to dissolve all those obligations whereby the civil societies are preferred) ; and that Christianity is parcel of the laws of England, and therefore to reproach the Christian religion is to speak in subversion of the law. Wherefore they gave judgment upon him ; viz.. To stand in the pillory in three several places, and to pa}" one thousand marks fine, and to find sureties for his good behavior during life.^ ANONYMOUS. King's Bench. 1688. [Reported Comberbach, 46.] A MAN was indicted for words spoken of a justice of peace [a buffle- headed fellow], and an exception was taken that the words were not indictable. 1 See State v. Parker, 91 N. C. 650. — Ed. 2 Ace. People v. Ruggles, 8 Johns, 290. — Ed. SECT. I.] REX V. WHEATLY. - 97 But jyer Curiam, Because it appears they were spoken of him in the execution of his office, the indictment is good. And per [Wright] C. J., All actions for slandering a justice in his office, may be turned into indictments. REX V. WHEATLY. King's Bench. 17G1. [Reported 2 Burrow, 1125.1] Defendant was indicted, for that he, being a common brewer, and intending to deceive and defraud one Richard Webb, delivered to him sixteen gallons, and no more, of amber beer, for and as eighteen gal- lons, which wanted two gallons of the due measure contracted to be delivered ; and received 15s for the same; to the evil example, &c., and against the peace, &c. After conviction before Lord Mansfield, \ / A ^^ C. J., at Guildhall, Morton moved in arrest of judgment. Vw'aM^ ^ Mr. Morton and Mr. Yates, who were of counsel for the defendant, (^•^-v*^ *^^ objected that the fact charged was nothing more than a mere breach of . u-*-,-vX^ J a civil contract, not an indictable offence. To prove this, they cited lii^i.^.^ Rex V. Combrun, p. 1751, 24 G. 2 B. R., which was exactly and punc- tuall}' the same case as the present, only mutatis mutandis. And Rex V. Driffield, Tr. 1754, 27, 28 G. 2 B. R. S. P. An indictment for a cheat, in selling coals as and for two bushels, whereas it was a peck short of that measure ; there the indictment was quashed on motion. Rex V. Hannah Heath : An indictment for selling and delivering seventeen gallons, three quarts, and one-half pint of geneva (and the like of brandy) as and for a greater quantit}-, was quashed on motion. In 1 Salk. 151., Nehuffs Case, P. 4 Am. B. R., a certiorari was granted to remove the indictment from the Old Bailey ; because it was not a matter criminal : it was " borrowing £600 and promising to send a pledge of fine cloth and gold dust, and sending only some coarse cloth, and no gold dust." In Tremaine, title Indictments for Cheats, all of them either lay a conspiracy or show something amounting to a false token. A mere civil wrong will not support an indictment. And here is no cnminal charge. It is not alleged " that he used false measures." The prosecutor should ha^e examined and seen that it was the right and just quantit}-. Mr. Norton, pro rege, offered the following reasons why the judg- ment should not be arrested. The defendant has been convicted of the fact. He may bring a writ of error, if the indictment is erroneous. 1 s. c. 1 William Blackstone, 273. The statement of the case is taken from the latter report. 7 9» REX V. WHEATLY. [CHAP. V. This is an indictable offence ; 't is a cheat, a public fraud in the course of his trade, — he is stated to be a brewer. There is a distinction between private frauds and frauds in the course of trade. The same fact may be a ground for a private action, and for an indictment too. None' of the cited cases were after verdict. It might here (for aught that appears to the contrary) have been proved " that he sold this less quantity by false measure;" and everything shall be presumed in favor of a verdict. And here is a false pretence, at the least ; and it appeared upon the trial to be a very foul case. The counsel for the defendant, in reply, said, that nothing can be intended or presumed in a criminal case but secundum alleyata et probata; it might happen without his own personal knowledge. And they denied any distinction between this being done privately and its being done in the course of trade. Lord Manskield. The question is, Whether the fact here alleged be an indictable crime or not. The fact alleged is : — [Then his Lordship stated the charge, verbatim.'] The argument that has been urged by the prosecutor's counsel, from the present case's coming before the court after a verdict, and the cases cited being only of quashing upon motion, before any verdict really turns the other way ; because the Court may use a discretion, " whether it be ^i right to quash upon motion or put the defendant to demur ; " but after verdict they are obliged to arrest the judgment if they see the charge to be insufficient. And in a criminal charge there is no latitude of inten- tion, to include anything more than is charged ; the charge must be exphcit enough to support itself. Here the fact is allowed, but the consequence is denied : the objec- tion is, that the fact is not an offence indictable, though acknowledged to be true as charged. And that the fact here charged should not be considered as an indic- table offence, but left to a civil remedy by an action, is reasonable and right in the nature of the thing ; because it is only an inconvenience and injury to a private person, arising from that private person's own neghgence and carelessness in not measuring the liquor, upon receiving X it, to see whether it held out the just measure or not. The offence that is indictable must be such a one as affects the pub- lic. As if a man uses false weights and measures, and sells by them to all or to many of his customers, or uses them in the general course of his dealing ; so, if a man defrauds another, under false tokens. For these are deceptions that common care and prudence are not sufficient to guard against. So, if there be a conspiracy to cheat ; for ordinary care and caution is no guard against this. Tliose cases are much more than mere private injuries : they are public offences. But here, it is a mere private imposition or deception. No false weights or measures are used, no false tokens given, no con- s[)iracy ; only an imposition upon the person he was dealing with, in delivering him a less quantity instead of a greater, which the other SECT. L] rex V. WHEATLY. 99 carelessly accepted. ' T is only a non-performance of his contract, for which non-performance he may bring his action. The selling an unsound horse, as and for a sound one, is not indic- table ; the buyer should be more upon his guard. The several cases cited are alone sufficient to prove that the offence here charged is not an indictable offence. But bL'.sides these, my brother Denison informs me of another case, that has not been mentioned at the bar. It was M. 6 G. 1. B. R. Rex v. Wilders, a brewer. He was Indicted for a cheat in sending in to Mr. Hicks, an ale-house keeper, so many vessels of ale marked as containing such a measure, and writing a letter to Mr. Hicks, assuring him that they did contain that measure, when in fact they did not contain such measure, but so much less, «fec. This indictment was quashed on argument, upon a motion, which is a stronger case than the present. Therefore the law is clearly established and settled ; and I think on right grounds ; but on whatever grounds it might have been originally established, yet it ought to be adhered to, after it is established and settled. Therefore (though I may be sorry for it in the present case, as circumstanced) the judgment must be arrested. Mr. Just. Denison concurred with his Lordship. This is nothing more than an action upon the case turned into an indictment. 'T is a private breach of contract. And if this were to be allowed of, it would alter the course of the law, by making the injured l)erson a witness upon the indictment, which he could not be (for him- self) in an action. Here are no false weights, nor false measures, nor any false token at all, nor any conspiracy. In the case of the Queen i?. Maccarty et al., 6 Mod. 301, 2 Ld. Raym. 1179, there were false tokens, or what was considered as such. In the case of the Queen u. Jones, 1 Salk. 379, 2 Ld. Raym. 1013, 6 Mod. 105, the defendant had i-eceived £20, pretending to be sent by one who did not send him. Et per Cur. : " It is not indictable, unless he came with false tokens. We are not to indict one man for making a fool of another ; let him bring his action." If there be false tokens, or a conspirac}', it is another case. The Queen v. Maccarty was a conspiracy, as well as false tokens. Rex v. AVilders was a much stronger case than this, and was well considered. That was an imposition in the course of his trade, and the man hatl marked the vessels as containing more gallons than they did really contain, and had written a letter to Mr. Hicks, attesting that tht-y did so. But the present case is no more than a mere breach of contract : he has not delivered the quantity which he undertook to deliver. The Court use a discretion in quashing indictments on motion, but they are obliged to arrest judgment when the matter is not indictable. Anil this matter is not indictable, therefore the judgment ought to be arrested. 100 BEX V. WHEATLY. [CHAP. V. Mr. Just. Foster. "We are obliged to follow settled and established rules already fixed b}' former determinations in cases of the same kind. The case of Rex v. Wilders was a strong ease, — too strong, perhaps, for there were false tokens ; the vessels were marked as containing a greater quantity than they really did. Mr. Just. WiLMOT concurred. This matter has been fully settled and established, and upon a reasonable foot. The true distinction that ought to be attended to in all cases of this kind, and which will solve them all, is this, — That in such impositions or deceits, where common prudence may guard persons against the suffering from them, the offence is not indictable, but the party is left to his civil remedy for the redress of the injury- that has been done him ; but where false weights and measures are used, or false tokens produced, or such methods taken to cheat and deceive as people cannot, by any ordinary care or prudence, be guarded against, there it is an offence indictable. In the case of Rex v. Pinkney, P. 6 G. 2 B. R., upon an indictment " for selling a sack of corn (at Rippon market) which he falsely affirmed to contain a Winchester bushel, uM reveru et infacto plurimum deficiebat, <£rc.," the indictment was quashed upon motion. In the case now before us, the prosecutor might have measured the liquor before he accepted it, and it was his own indolence and negligence if he did not. Therefore common prudence might have guarded him against suffering any inconvenience by the defendant's offering him less than he had contracted for. This was the case of Rex v. Pinkney ; and it was there said, That if a shop-keeper who deals in cloth pretends to sell ten yards of cloth, but instead of ten yards bought of him, delivers only six, j-et the buyer cannot indict him for delivering only six ; because he might have measured it, and seen whether it held out as it ought to do, or not. In this case of Rex v. Pinkney, and also in the case of Rex v. Combrun, a case of Rex v. Nicholson, at the sittings before Lord Raymond after Michaelmas term, 4 G. 2, was mentioned ; which was an indictment for selling six chaldron of coals, which ought to contain thirty-six bushels each, and delivering six bushels short. Lord Ray- mond was so clear in it that he ordered the defendant to be acquitted. Per Cur. unanimousl}', The, judgment must he arrested} I See Rex v. Osbom, 3 Burr. 1697; Com. v. Warren, 6 Mass. 72. — Ed. SECT. L] rex V. DELAVAJi. 101 REX V. DELAVAL. King's Bench. 1763. [Reported 3 Burrow, 1434.] Lord Mansfield now delivered the opiniou of the court.^ This is a motion fof an inlbrniation against the defendants for a conspiracy to put this young girl (an apprentice to one of 'them) into the hands of a gentleman of rank and fortune, for the purpose of prostitution ; contrary to decency and morality, and without the knowl- edge or approbation of her father, who prosecutes them for it, and has now cleared himself of all imputation, and appears to be an innocent and an injured man. A female infant, then about fifteen, was bound apprentice by her father to the defendant Bates, a music-master ; the girl appearing to have natural talents for music. The father became bound to the master in the penalty of £200 for his daughter's performance of the covenants contained in the indenture. She became eminent for vocal music ; and thereby gained a great profit to Bates, her master. During her apprenticeship, being then about seventeen, she is debauched by Sir Francis Delaval, whilst she resided in the house of Bates' father ; as Bates himself was a single man and no housekeeper. In April last, Bates, her master, indirectly assigns her to Sir Francis, as much as it was in his power to assign her over ; and this is done, plainly and manifestly, for bad purposes. Bates at the same time releases the penalty to the father, but without the father's application or even privity, and receives the £200 from Sir Francis, by the hands of his tailor, who is employed to pay it to Bates, and also enters into a bond to Bates to secure to him the profits arising from the girl's singing this summer at Marybone. And then she is indentured to Sir Francis Delaval to learn music of him ; and she covenants with him, both in the usual covenants of indentures of apprenticeship, and likewise in several others (as " not to quit even his apartments"), etc. These articles between the parties are signed by all but the father, and a bond is drawn from him, in the penalty of £200 for his daughter's per- formance of these covenants (which he never executed). And the girl goes and lives and still does live with Sir Francis, notoriously, as a kept mistress. Thus she has been played over, by Bates, into his hands, for this purpose. No man can avoid seeing all this ; let him wink ever so much. I remember a cause in the court of chancery, wherein it appeared that a man had formerly assigned his wife over to another man, and Lord Hardwicke directed a prosecution for that transaction, as being 1 Part of the opinion only is given. 102 REX V. BLAKE. [CHAP. V. notoriously and grossl.y against public decency and good manners. And so is the present case. It is true that many offences of the incontinent kind fall properly under the jurisdiction of the ecclesiastical court, and are appropri- ated to it. But if you except those appropriated cases, this court is the aistos morum of the people, and has the superintendency of offences contra bo?ws mores ; and upon this ground both Sir Charles Sedley and Curl, who had been guilty of offences against good manners, were prosecuted here. However, besides this, there is, in the present case, a conspiracy and confederacy amongst the defendants, which are clearly and indis- putably within the proper jurisdiction of this court. And in the conspiracy they were all three concerned. Therefore let the rule he absolute against all three. REX V. BLAKE. King's Bench. 1765. [Reported 3 Burrow, 1731.] Mr. Dunning showed cause why an indictment should not be quashed. He called it an indictment for a forcible entry ; and argued '' that an indictment for a forcible entry may be maintained at common law." He cited a case in Triu. 1753, 26, 27, G. 2. B. R. Rex v. Brown and Others; and Rex v. Bathurst, Tr. 1755, 28 G. 2. S. P. But, N. B. This indictment at present in question was only for {viet armis) breaking and entering a close (not a dwelling-house) and unlawfully and unjustly expelling the prosecutors, and keeping them out of possession. Mr. Popham, on behalf of the defendants, objected " that this was an indictment for a mere trespass, for a civil injury ; not a public, but a private one ; a mere entry into his close, and keeping him out of it." The " force and arms " is applied only to the entry, not to the expel- ling or keeping out of possession ; they are only charged to be unlaw- fulfy and unjustl}'. This is no other force tlian the law implies. No actual breach of the peace is stated ; or any riot ; or unlawful assembly. And he cited the cases of Rex /'. Gask, Rex r. Hide, and Rex v. Hide and Another (which, together with a note upon them, may be seen in the text and margin of page 1768). Rex V. Bathurst is the only case where the objection has not been held fatal ; and that was because it was a forcible entry into a dwelling- house. SECT. I.] REX V. LYNN. 103 Rex V. Jopson et al.Tr. 24, 25 G. 2 B. R. was an unlawful assembly of a great number of people. (V. ante 3 Burr. 1702, in the margin.) Mr. Justice Wilmot. No doubt, an indictment will lie at common law for a forcible entr}', though they are generally brought on the acts of parliament. On the acts of parliament, it is necessary to state the nature of the estate, because there must be restitution ; but they may be brought at common law. Here the words " force and arms" are not applied to the whole ; but if they were applied to the whole, yet it ought to be such an actual force as implies a breach of the peace, and makes an indictable offence. And this I take to be the rule, " Tliat it ought to appear upon the face of the indictment to be an indictable offence." Here indeed are sixteen defendants. But the number of the defend- ants makes no difference, in itself; no riot, or unlawful assembly, or anything of that kind is charged. It ought to amount to an actual breach of the peace indictable, in order to support an indictment. For, otherwise, it is only a matter of civil complaint. And this ought to appear upon the face of the indictment. Mr. Justice Yates concurred. Here is no force or violence shown upon the face of the indictment, to make it appear to be an actual force indictable ; nor is any riot charged, or any unlawful assembly. Therefore the mere number makes no difference. Mr. Justice Aston concurred; the true rule is, "That it ought to appear upon the face of the indictment to be an indictable offence." Per Cue. unanimous!}'. Rule made absolute to quash this indictment.^ REX V. LYNN. King's Bench. 1789. [Reported Leach {4th ed.), 497.] Lynn had been convicted of a misdemeanor on an indictment which charged that lie, on such a day, had entered a certain burying-ground, and taken from a coffin buried in the earth a dead body for the purpose of dissection. In Michaelmas Term, 1789, it was moved in the Court of King's Bench in arrest of the judgment, that this was an offence of ecclesiastical cognizance, and not indictable in any court of criminal jurisdiction at the common law. But by the Court, the office is cognizable in a 1 Mc. Rex V. Storr., 3 Burr. 1698 ; Kilpatrick v. People, 5 Denio, 277 ; Com. r. Edwards, 1 Ashm. 46. See State r. Bmroughs, 7 N. J. L. 426 ; Com. v. Powell, 8 Leigh, 719. Compare Com. v. Taylor, 5 Binn. 277 ; Hendersoa v. Com. 8 Gratt 708. — Ed. 104 REX V. BURNETT. [CHAP. V. criminal court, as highly indecent, and contra bonos mores; and the circumstance of its being for the purposes of dissection does not make it a less indictable offence. The defendant, on the probability of his having committed this crime merely from ignorance, was only fined five marks. REX V. BURNETT. King's Bench. 1815. [Reported 4 Maule and Selwyv, 272.] The defendant, an apothecary, was indicted by that addition at the Middlesex Sessions that he, on, etc., in the fifty-fourth year, etc., and on divers other days between that day and the 29th of July, with force and arms at, etc., unlawfully and injuriously did inoculate one A. S. an infant of seven months, one W. M. an infant of one year, and divers other infants of tender years, whose names are unknown, with a certain contagious and dangerous disease called the small pox, by means of which the said A. S., W.M., and the said other infants on the said day and on the other days, etc., at, etc, became and were dangerously ill of the said contagious disease ; and the defendant, well knowing the premises, after he had so inoculated them, and while they were so dangerously ill of the said contagious disease on, etc., at, etc., did unlawfully and injuriously cause the said A. 8., W. M., and the said other infants, to be carried into and along a certain public street and highway, called, etc., in and along which divers subjects were then passing, and near to divers dwelling-houses, etc., to the great danger of infecting with the said contagious disease all the subjects who were on those days and times in and near the said street and highway, dwelling-houses, etc., who had not had the disease, and ad commune nocumentum^ etc. The indictment being removed into this court, the defendant pleaded not guilty, and was found guilt}'. And now it was moved by W. Owen, in arrest of judgment, that this was not any offence. And he said that this indictment differed materially from that in Rex v. Vantandillo, 4 M. & S. 73 ; for by this indictment it appears that the defendant is by profession a person qualified to inoc- ulate with tliis disease, provided it be lawful for any person to inoculate with it. Therefore unless the court determine that the inoculating with the small pox has now become of itself unlawful, there is nothing in this indictment to show it unlawful ; for as to its being alleged that he caused them to be carried along the street, that is no more than this, that he directed the patients to attend him for advice instead of visiting them, or that he prescribed what he might deem essential to SECT. I.] BEATTY V. GILLBANKS. 105 tlifir recovery, air aiul exercise. And in Rex v. Sutton, which was an iiidictiiient for keeping an inocuUiting liouse, and therefore niucii more liliely to spread infection than what has been done here, the court said that the defendant ujight demur. Lortl EM.KNuuuoriiii, C. J. The indictment lays it to be unlawfully and injuriously, and to make that out, it nuist he shown that what was done was in the manner of doing it incautious, and likely to alfect the health of others. The words unlawfully and injuriously preclude all legal cause of excuse. And though inoculation for the small pox may be practised lawfully and innocently, yet it must be under such guards as not to endanger the public health by communicating this infectious disease. Dampier, J. The charge amounts to this, that the defendant, after inoculating the children, unlawfully exposed them, while infected with the disease, in the public street to the danger of the public health. Lk Blanc, J. in passing sentence observed that the introduction of vaccination did not render the practise of inoculation for the small pox unlawful, but that in all times it was unlawful, and an indictable offence, to expose persons infected with contagious disorders, and therefore liable to communicate them to the public, in a public place of resort.^ Tlie defendant was senteticed to six months' imprisojiment. BEATTY V. GILLBANKS. Queen's Bench Division. 1882. [Reported 15 Cox, C. G. 138.] Field, J.'' I am of opinion that this order cannot be supported, and must therefore be discharged. The appellants, it appears, together with a large number of other people, belong to a body of persons called the Salvation Army, who are associated together for a purpose which cannot be said to be otherwise than lawful and laudable, or at all events cannot be called unlawful, their object and intention being to induce a class of persons who have little or no knowledge of religion and no taste or disposition for religious exercises or for going to places of worship, to join them in their processions, and so to get them together to attend and take part in their religious exercises, in the hope that they may be reclaimed and drawn away from vicious and irreligious habits and courses of life, and that a kind of revival in the matter of religion ^ See Reg. v. Henson, Dears. 24; Reg. v. Lister, Dears. & B. 209 (but see People I'. Sands, 1 Johns. 78) ; U. S. v. Hart, 1 Pet. C. C. 390. — Ed. 2 The opinion of Field, J., only is printed. Cavb, J., delivered a concurring opinion. 1C6 BEATTY V. GILLBANKS. [CIIAP. V. may be brought about amongst those who were previously dead to any such influences. That undoubtedly is the object of the Salvation Army and of the appellants, and no other object or intention has been o? can be imputed to them ; and, as has been said by their learned coun- sel, and doubtless with perfect truth, so far are they from dcsiriug to carry out that object by means of an}' force or violence, their principles are directly and entirely opposed to any conduct of that kind, or to the exercise or employment of anything like physical force ; and, indeed, it appears that on the occasion in question they used no personal force or violence, but, on the contrary, when arrested by the police, they submitted quietly without the exhibition of any resistance either on their own parts or on that of any other member of their body. Such being their lawful object and intention, and having no desire or inten- tion of using force or violence of any kind, it appeared that on this 26th day of March they assembled, as they had previously done on other occasions, in considerable numbers at their hall, and proceeded to march thence in procession through the streets of the town of Weston- super-Mare. Now that, in itself, was certainly not an unlawful thing to do, nor can such an assembly be said to be an unlawful one. Numer- ous instances might be mentioned of large bodies of persons assembling in much larger numbers, and marching, accompanied by banners and bands of music, througli the public streets, and no one has ever doubted that such processions were perfectly lawful. Now the appellants com- plain that, for having so assembled as I have before stated, they have been adjudged guilty of the offence of holding an unlawful assembly, and have in consequence been ordered to find sureties to keep the peace, in the absence of any evidence of their having broken it. It was of course necessary that the justices should find that some unlawful act had been committed by the appellants in order to justify the magis- trates in binding them over. The offence charged against them is " unlawfully and tumultuously assembling with others to the disturb- ance of the public peace, and against the peace of the Queen ; " and of course, before they can be convicted upon the charge, clear proof must be adduced that the specific offence charged has been committed. Now, was that charge sustained? There is no doubt that the appellants did assemble together with other persons in great numbers, but that alone is insufficient. The assembly must be a " tumultuous assembly" and " against the peace," in order to render it an unlawful one. But there was nothing, so far as the appellants were concerned, to show that their conduct was in the least degree " tumultuous" or " against the peace." All that they did was to assemble together to walk through the town ; and it is admitted by the learned counsel for the respondent, that as regards the appellants themselves, there was no disturbance of the peace, and that their conduct was quiet and peaceable. But then it is argued that, as in fact their line of conduct was the same as had on previous similar occasions led to tumultuous and riotous proceed- ings with stone-throwing and fighting, causing a disturbance of the SECT. I.] BEATTY V. GILLBANKS. 107 public peace and terror to the inhahitf\nts of the town, and as on the present occasion like results would in all probal)ility be produced, therefore the appellants, being well aware of the likeliliood of such results again occurring, were guilty of the offence charged against them. Now, without doubt, as a general rule*it must be taken that every person intends what are the natural and necessary consequences of his own acts ; and if in the present case it had been their intention, or if it had been the natural and necessary consequence of their acts, to produce the disturbance of the peace which occurred, then the appel- lants would have been responsible for it, and the magistrates would have been riglit in binding them over to keep the peace. But tlie evi- dence as set forth in the case shows that, so far from that being the case, the acts and conduct of the appellants caused nothing of the kind, but on the contrary, that the disturbance that did take place was caused entirely by the unlawful and unjustifiable interference of the Skeleton Army, a body of persons opposed to the religious views of the appellants and the Salvation Army, and that but for the opposition and molestation offered to the Salvationists by these other persons, no disturbance of any kind would have taken place. The appellants were guilty of no offence in their passing through the streets, and why should other persons interfere with or molest them? What right had they to do so? If they were doing anything unlawful, it was for the magis- trates and police, the appointed guardians of law and order, to inter- pose. The law relating to unlawful assemblies, as laid down in the books and the cases, affords no support to the view of the matter for which the learned counsel for the respondent was obliged to contend, viz., that persons acting lawfully are to be held responsible and pun- ished merely because other persons are thereby induced to act unlaw- fully and create a disturbance. In 1 Russell on Crimes (4th edit. p. 387), an unlawful assembly is defined as follows : "An unlawful assem- bly, according to the common opinion, is a disturbance of the peace by persons barel}' assembling together with the intention to do a thing which, if it were executed, would make them rioters, but neither actually executing it nor making a motion towards the execution of it." It is clear that, according to this definition of the offence, the appellant* were not guilty ; for it is not pretended that they had, but, on the con- trary, it is admitted that they had not, any intention to create a riot, or to commit any riotous or otiier unlawful act. Many examples of what are unlawful assemblies are given in Hawkins' Pleas of the Crown, book 1, cap. 28, ss. 9 and 10, in all of which the necessary circum- stances of terror are present in the assembly itself, either as regards the object for which it is gatliered together, or in the manner of its assembling and proceeding to carry out that object. The present case, however, differs from the cases there stated ; for here the only terror that existed was caused by the unlawful resistance wilfully and design- edly offered to the proceedings of the Salvation Army by an unlawfid organization outside and distinct from them, called the Skeleton Array. 108 RESPUBLICA V. TEISCHER. [CHAP. V It was suggested jy the respondent's counsel that if these Salvation processions were allowed, similar opposition would be oflfered to them in future, and that similar disturbances would ensue. But I cannot believe that that will be so. I hope, and I cannot but think, that when the Skeleton Army, and all other persons who are opposed to the pro- ceedings of the Salvation Army, come to learn, as they surely will learn, that they have no possible right to interfere with or in any way to obstruct the Salvation Army in their lawful and peaceable pro- cessions, they will abstain from opposing or disturbing them. It is usual, happily, in this country for people to respect and obey the law when once declared and understood, and I hope and have no doubt that it will be so in the present case. But if it should not be so, there is no doubt that the magistrates and police, both at Weston-super- Mare and everywhere else, will understand their duty and not fail to do it efficiently, or hesitate, should the necessity arise, to deal with the Skeleton Army and other disturbers of the public peace as they did in the present instance with the appellants ; for no one can doubt that the authorities are only anxious to do their duty and to prevent a disturbance of the public peace. The present decision of the justices, however, amounts to this, that a man may be punished for acting law- fully if he knows that his so doing may induce another man to act unlawfully, — a proposition without any authority whatever to support it. Under these circumstances, the questions put to us by the justices must be negatively answered, and the order appealed against be dis- charged. RESPUBLICA V. TEISCHER. Supreme Court of Pennsylvania. 1788. [Reported 1 Dallas, 335.] The defendant had been convicted in the county of Berks upon an indictment for maliciously, wilfully, and wickedly killing a horse ; and upon a motion in arrest of judgment, it came on to be argued whether the offence, so laid, was indictable. Sergeant, in support of the motion, contended that this was an in- jury of a private nature, amounting to nothing more than a trespass ; and that to bring the case within the general rule of indictments for the protection of society, it was essential that the injury should be stated to have been perpetrated secretly as well as maliciously, — which last he said was a word of mere form, and capable of an indefinite application to every kind of mischief. To show the leading distinction between trespasses for which there is a private remedy and crimes for which there is a public prosecution, he cited Hawk. PI. Cr. 210, lib. 2, c. 22, s. 4 ; and he contended that the principle of several SECT. I.] RESPUBLICA V. TEISCIIER. 109 cases, in which it was determined an indictment would not lie, applied to the case before the court. 2 Stra. 793 ; 1 Stra. G79. The Attorney-General observed, in reply, that though he had not been able to discover any instance of an indictment at common law for killing an animal, or, indeed, for any other species of malicious mischief, yet that the reason of this was probably the early interfer- ence of the statute law to punish offences of such enormity ; for that in all the precedents, as well ancient as modern, he had found the charge laid contra formam statnti, except in the case of an information for killing a dog, — upon which, however, he did not mean to rely. 10 Mod. 337. He said that the law proceeded upon principle, and not merely upon precedent. In the case of Wade, for embezzling the public money, no precedent was produced ; and one Henry Shallcross was lately con- demned in Montgomery County for maliciously burning a barn (not having hay or corn in it) , though there was certainly no statute for punishing an offence of that description in Pennsylvania. The prin- ciple, therefore, is that every act of a public evil example and against good morals is an offence indictable by the common law ; and this l)rinciple affects the killing of a horse, as much, at least, as the burn- . ing of an empty barn. But he contended that there were many private wrongs which were punishable by public prosecution ; and that with respect to these a distinction had been accurately established in 2 Burr. 1129, where it is said that " in such impositions or deceits where common prudence may guard persons against the suffering from them, the offence is not indictable, but the party is left to his civil remedy for the redress of the injury that has been done him ; but where false weights and meas- ures are used, or false tokens produced, or such methods taken to cheat and deceive as people cannot by any ordinary care or prudence be guarded against, there it is an offence indictable." — Accordingly, in Crown Circ. Comp. 231 ; 1 Stra. 595 ; S. C. Crown Circ. Comp. 24, are cases of private wrongs, and yet punished by indictment ; be- cause, as it is said in Burrow, common pnidence could not have guarded the [)ersons against the injury and inconveniency which they respectively sustained. The same reason must have prevailed in an indictment at Lancaster (the draft of which remains in the precedent ' book of the successive attorneys-general of this State) for poisoning bread, and giving it to some chickens ; and it applies in full force to the case before the court. Independent, however, of these authorities and principles, the jury have found the killing to be something more than a trespass ; and that it was done maliciously forms the gist of the indictment ; which must be proved by the prosecutor, and might have been controverted and denied by the defendant. Being therefore charged, and found by the verdict, it was more than form ; it was matter of substance. The opinion of the court was delivered, on the 15th of July, by the Chief Justice. no COMMONWEALTH V. ECKERT. [CHAP. V, ISI'Kean, C. J. The defendant was indicted for " maliciously, wil- fully, and wickedly killing a horse ; " and being convicted by the jury, it has been urged, in arrest of judgment, that this offence was not of an indictable nature. It is true that on the examination of the cases we have not fouud the line accurately drawn ; but it seems to be agreed that whatever amounts to a public wrong may be made the subject of an indictment. The poisoning of chickens, cheating with false dice, fraudulently tear- ing a promissory note, and many other offences of a similar description, have heretofore been indicted in Pennsylvania; and 12 Mod. 337, furnishes the case of an indictment for killing a dog, — an animal of far less value than a horse. Breaking windows by throwing stones at them, though a sufficient number of persons were not engaged to ren- der it a riot, and the embezzlement of public moneys, have, likewise, in this State been deemed public wrongs, for which the private sufferer was not alone entitled to redress ; and unless, indeed, an indictment would lie, tliere are some very heinous offences which might be perpe- trated with absolute impunity ; since the rules of evidence, in a civil suit, exclude the testimony of the party injured, though the nature of the transaction generally makes it impossible to produce any other proof. For these reasons, therefore, and for many others which it is un- necessary to recapitulate, as we entertain no doubt upon the subject, ■we think, the indictment will lie. Let judgment be entered for the Commonwealth.^ COMMONWEALTH v. ECKERT. Court of Quarter Sessions, Pennsylvania, 1812. [Reported 2 Browne, 249.] The defendant was indicted for a misdemeanor, in cutting and deadening a black-walnut tree, on the common, or public ground, adjoining the village of Hanover, the property of which was vested in certain trustees, for the use of the inhabitants of said town, by deed from the original owner of the land.^ For the Commonwealth, it was contended that it was a maxim in the law, that there was no injury without a remedy, 3 Bac. Ab. 92 ; and this being a public loss and injury, nothing but an indictment would lie : it is the malicious intent that constitutes the crime. 1 See U. S. V. Jackson, 4 Cr. C. C. 483 ; Anon., 7 Dane Abr, 261. For instances of acts held criminal because they tended to disturb or alarm the pub- lic, see Com. v. Oaks, 113 Mass. 8 ; State v. Huntley, 3 Ired. 418 ; Com. v. Cassidy, 6 Pbila. 82 ; State v. Williams, 2 Overt. 108. — Ed. '■^ The repoit ul' this case has been condensed. — Ed. SECT. I.] COMMONWEALTH V. SILSBEE. Ill Every act of a, puljlic evil example and against good morals is in- dictable at common law. 1 Dall. 335. Bowie, for the defendant. It is a rule in morality, as well as in charity, to apply an innocent motive, rather than a malicious one, to have actuated the defendant. A crime or misdemt-anor indictable, must be a violation of some known public law. 4 lil. Com. .0 ; 1 Hawk. 1*. C. 3GG, 7, sect. 1. Act of Assembly against taking olT or breaking knockers on doors, spouts, &c., breaking down or destroying signs, &c. Read Dig. 7, Act of 1772. These were offences not indictable at connnon law; and therefore the necessity of the statute. A number of cases of a private nature are not indictable. 2 Hawk. P. C. 301. Such as breaking closes, &c. 3 Burr. 1G98. Cases that apply to indi- viduals or to a parish are not indictable, and there is no difference in this case from that of six, eight, or ten tenants in common of a prop- erty ; and one of the number cutting a tree, an indictment could not be supportoil against him that did the act. Peii Cukiam, Franklin, President, to the jury : — The defendant is charged with a misdemeanor, in cutting and dead- ening a black-walnut tree, standing on public ground adjoining the town of Hanover, which ground appears to be vested by deed in cer- tain trustees, for the use and benefit of all the inhabitants of said town. This tree was kept and appropriated, by the people of that place, for shade and ornament. The doctrine on subjects of this kind is well laid down by the late Chief Justice McKean. 1 Dall. 335. Whatever amounts to a public wrong, as killing a horse, poisoning chickens, and the like, is the sub- ject of an indictment for a misdemeanor. Malice forms the guilt of the indictment. Any evil design, proceed- ing from a depraved or wicked heart. If you should consider the tree was useful for public convenience, ornament, and shade (which we think has been fully proved), you may convict the defendant; if not, acquit him.^ V) Condonation. 4 Bl. Com. 133. Theft bote is where the party robbed not only knows tlie felon, but also takes his goods again, or other amends upon agreement not to prosecute. This is frequently called comijounding of felony ; and formerly was held to make a man an accessory ; but it is now punished only with fine and imprisonment. This perversion of justice, in the old Gothic constitutions, was liable to the most severe and infamous punishment. And the Salic law "-latroni eum similem hahiiit, qui fertum celare vellet, et occulte sine Judice compositionem ejus admittere." By statute 25 Geo. 11. c. 36, even to advertise a re- ward for the return of things stolen, with no questions asked, or words to the same purport, subjects the advertiser and the printer to a forfeit- ure of £50 each.^ 1 Hawk. P. C. ch. 7, sect. 7. But the bare taking of one's own goods again which have been stolen is no offence at all unless some favor be shown to the thief. COMMONWEALTH v. SLATTERY. Supreme Judicial Court of Massachusetts. 1888. [Reported 147 il/ass. 423.] Indictment for rape on Bridget Donovan.'^ At the trial in the Supe- rior Court, before Dunhar, J., the defendant asked the judge to instruct the jury " that, if said Donovan at any time after the act excused or forgave the defendant, then she ratified the act, and he cannot be con- victed in the case." The judge refused so to instruct, but instructed the jury that evidence of her acts and conversation with the defendant, both before and after the commission of the alleged offence, was a proper subject for their consideration in determining the guilt or innocence of the defendant at the time of its commission. The defendant alleged exceptions. W. Allen, J. The court rightly refused to give the instructions requested. The injured party could not condone the crime by excusing or forgiving the criminal. 1 See Reg. v. Burgess, 15 Cox C. C. 779. 2 Only so much of the case as involves the question of condonation is printed. 152 mcdaniel's case. [chap, v SECTION in. (continued). (c) Acquiescence for Detection. McDANIEL'S CASE. Crown Case Reserved. 1755. [Reported Foster C. L. 121.] At the Old Bailej' session in December, 1755, Justice Foster pro- nounced the judgment of the court in the case between the King and Macdaniel and others, to the effect following : — The indictment chargeth, that at the general gaol-delivery holden at Maidstone in the county of Kent, on the 13th of August in the twenty- eighth year of the King, Peter Kelly and John Ellis were b}' due course of law convicted of a felony and robber}' committed by them in the King's highwa\' in the parish of Saint Paul Deptford in the count}' of Kent, upon the person of James Salmon one of the prisoners at the bar, and that the prisoners Stephen Macdaniel, John Berr}', James Eagen, and James Salmon, before the said robber}', did in the parish of Saint Andrew Holbourn in this city, feloniously and maliciously comfort, aid, assist, abet, counsel, hire, and command the said Peter Kelly and John Ellis to commit the said felony and robbery. On this indictment the prisoners have been tried, and the jur}' have found a special verdict to this effect. > That Kelly and Ellis were by due course of law convicted of the said felony and robber}'. That before the robbery all the prisoners and one Thomas Blee, in order to procure to themselves the rewards given by act of Parliament for apprehending robbers on the highway, did maliciously and feloni- ously meet at the Bell Inn in Holbourn in this city ; and did then and there agree that the said Thomas Blee should procure two persons to commit a robbery on the highway in the parish of Saint Paul Deptford, upon the person of the prisoner Salmon. That for that purpose they did all maliciously and feloniously con- trive and agree that the said Blee should inform the persons so to be procured that he would assist them in stealing linen in the parish of Saint Paul Deptford. That in pursuance of this agreement, and with the privity of all the prisoners, the said Blee did engage and procure the said Ellis and Kelly to go with him to Deptford in order to steal linen ; but did not at any time before the robbery inform them or either of them of the intended robbery. That in consequence of the said agreement at the Bell, and with the privity of all the prisoners, the said Ellis and Kelly went with the said Blee to Deptford. [SECT. III. McDANIEL'S CASE. 153 That the said Blee, Ellis, and Kelly being there, and the prisoner Salmon being likewise there waiting in the highway in pursuance of the said agreement, the said Blee, Ellis, and Kelly feloniousl}* assaulted him, and took from bis person the money and goods mentioned in the indictment. 'rhey farther find that none of the prisoners had anj- conversation with the said Ellis and Kelly or either of them previous to the robbery ; but they find, that before the robbery the prisoners Macdaniel, Eagen, and Berry saw the said Ellis and Kellj', and approved of them as per- sons proper for the purpose of robbing the said Salmon. But whether the prisoners are guilty in manner as charged in the indictment, they pray the advice of the court. This special verdict hath been argued before all the judges of England. 1 It is express!}' found that Salmon was party to the original agree- ment at the Bell ; that he consented to part with his money and goods under color and pretence of a robbery ; and that for that purpose, and in pursuance of this consent and agreement, he went to Deptford, and waited there till this colorable robber}' was efl["ected. This being the state of the case with regard to Salmon, the judges are of opinion that in consideration of law no robl)ery was committed on him. His property was not taken from him against his will. I come now to the case which I promised at the beginning to consider and to distinguish from the present case. One Norden, having been informed that one of the early stage coaches had been frequently robbed near the town bv a single highwayman, resolved to use his endeavors to apprehend the robber. For this purpose he put a little money and a pistol into his pocket, and attended the coach in a post-chaise, till the highwayman came up to the compan}' in the coach and to him, and pre- senting a weapon demanded their money. Norden gave him the little money he had about him, and then jumped out of the chaise with his pistol in his hand ; and with the assistance of some others took the highwayman. The robber was indicted about a j'ear ago in this court for a robbery on Norden, and convicted. And very properly, in my opinion, was he convicted. But that case difFereth widely from the present. Tn that case Norden set out with a laudable intention to use his endeavors for apprehending the highwayman, in case he should that morning come to rob the coach, which at that time was totally uncertain ; and it was equally uncertain whether he would come alone or not. In the case now under considera- tion there was a most detestal)le conspiracy between Salmon and the rest of the prisoners, that his property should be taken from him under the pretence and show of a robber}" ; and time, place, and every other circumstance were known to Salmon beforehand, and agreed to by him. * Part of the case is omitted. 154 EGGINGTOX'S CASE. CHAP. V.] In Norden's case there was no concert, no sort of connection between him and the highwayman ; nothing to remove or lessen the difficult}' or danger Norden might be exposed to in the adventure. In the present case there was a combination between Salmon and one at least of the supposed robbers. I mean Blee. And though Salmon might not know the persons of ElUs and Kelly ; yet he well knew that they were brought to the place b}' his friend Blee, and were wholly under his direction. So widely do these cases differ ! To conclude, all the prisoners have been guilty of a most wicked and detestable conspirac}' to render a very salutary law subservient to their vile, corrupt views. But great as their offence is, it doth not amount to felony. And therefore the judgment of the court is that they be all discharged of this indictment.^ EGGINGTON'S CASE. Crown Case Reserved. 1801. [Reported 2 East, Pleas of the Crown, 666.] It appeared that the prisoners, intending to rob Mr. Boulton's manu- factory at Soho, had applied to one Phillips his servant, who was em- ployed there as a watchman, to assist them in the robber}'. Phillips assented to the proposal of the prisoners in the first instance ; but immediately afterwards gave information to Mr. Boulton, the principal proprietor, and in whom the property of the goods taken (together with other persons his partners) was laid ; telling him what was in- tended, and the manner and time the prisoners were to come ; that they were to go into the counting-house, and that he was to open the door into the front yard for them. In return, Mr. Boulton told him to carry on the business ; that he (Boulton) would bear him harmless ; and Mr. Boulton also consented to his opening tlie door leading to the front yard, and to his being with the prisoners the whole time. In con- sequence of this information, Mr. Boulton removed from the counting- house everything but 150 guineas and some silver ingots, which he marked to furnish evidence against the prisoners ; and lay in wait to take them, when they should have accomplished their purpose. On the 23d of December, about one o'clock in the morning, the prisoners came, and Phillips opened the door into the front yard, through which they went along the front of the building, and round into another yard behind it, called the middle yard, and from thence they and Phillips went through a door which was left open, up a staircase in the centre building leading to the counting-house and rooms where the plated busi- ness was carried on ; this door the prisoners bolted, and then broke open 1 See State v. Anoue, 2 N. & McC. 27; Alexander v. State, 12 Tex. 541. — Ed. [sect. III. eggington's case. 155 the counting-house which was locked, and the desks, which were also locked ; and took from thence the ingots of silver and guineas. Tliey then went to the story above into a room, where the plated business was carried on, and broke the door open and took from thence a quan- tity of silver, and returned downstairs ; when one of them unbolted the door at the bottom of the stairs which had been bolted on their going in, and went into the middle yard; where all (except one who escaped) were taken by the persons placed to watch them. On this case two points were made for the prisoners : First, that no felony was proved, as the whole was done with the knowledge and assent of Mr. Boulton, and that the acts of Phillips were his acts. Secondly, that if the facts proved amounted to a felony, it was but a simple larceny, as the building broke into was not the dwelling-house of any of the per- sons whose house it was charged to be ; and that there was no break- ing, the door being left open. After conviction, the case was argued before all the judges in the Exchequer Chamber ; and, for the reasons before stated, all the judges agreed that the prisoners were not guilty of tlie burglary.^ But with respect to the larceny the majority thought there was no assent in Boulton; that his object being to detect the prisoners, he only gave them a greater facility to commit the larceny than they other- wise might have had ; and that this could no more be considered as an assent, than if a man, knowing of the intent of thieves to break into his house, were not to secure it with the usual number of bolts. That there was no distinguishing between the degrees of facility a thief might have given to him. That it could only be considered as an apparent assent. That Boulton never meant that the prisoners should take away his property. And the circumstance of the design originating with the prisoners, and Boulton's taking no step to facilitate or induce the offence until after it had been thought of and resolved on by them, formed with some of the judges a very considerable ingredient in the case ; and dif- fered it much from what it might have been if Boulton had employed his servant to suggest it originally to the prisoners. Lawrence, J., doubted whether it could be said to be done invito domino, where the owner had directed his servant to carry on the business, to open the door, and meant that the prisoners should be encouraged by the presence of that servant ; and that by his assistance they should take the goods, so as to make a complete felony ; though he did not mean that they should carry them away. Finally, the prisoners were recom- mended to mercy on condition of being transported for seven years, the punishment they would have been liable to for the larceny. The decision in the above case is consonant to the rule laid down in the civil law under similar circumstances.'* 1 See State v. Hayes, 105 Mo. 76, 16 s. w. 514. — Ed. a Vide Just. Inst. lib. 4, tit. 1, s. 8. 156 ^ KEX V. MAKTIN. [CHAP. V. REX V. MARTIN. Crown Case Reserved. 1811. [Reported Russell Sf Ryan, 196.] The defendant was tried before Mr. Baron Wood, at the Lent assizes, for Northamptonshire, in the year 1811, upon an indictment for a misdemeanor in unlawfulU' aiding and assisting Antoine Mallet, a prisoner at war detained within certain limits at Northampton, to escape and go at large out of the said limits, and conducting him and bringing him to Preston Turnpike Gate, at Northampton, with intent to enable and assist him to escape and go at large out of this kingdom to parts beyond the seas. The case appeared to be this. The defendant lived at Wantage, in Berkshire ; she came to Newport Pagnell, and there hired a post-chaise to take her to Northampton, and back. The post-boy drove her to Northampton, where she got out, and the post-boy went to his usual inn, with orders to return to the place where he set her down, after he had baited and rested his horses. The post-boy in about an hour returned, took the defendant up again in Northampton, and proceeded towards Newport, and when they had just got without the town (and within the limits allowed to the prisoners of war, being one mile from the extremity of the town), she called to the post-boy to stop and take up a friend of hers that was walking along the road. The post-boy stopped, and Mallet got in, and they pro- ceeded together to Preston Turnpike Gate (which is without the afore- said limits), in the road to Newport, when they were both stopped and apprehended by the commissary, or agent for French prisoners and his assistant who had watched them. It appeared in evidence that there was no real escape on the part of Mallet, but that he was employed by the agent for French prisoners, under tlie direction of the Transport Board to detect the defendant, who was supposed to have been instrumental in the escape of many French prisoners from Northampton, and that all the acts done b3' Mallet, the contract for the money to be paid to the defendant, and the place to which tliey were to go, before they would be stopped, were previously concerted between the agent for the prisoners and Mallet, and Mallet had no intention to go away or escape. It was objected to by the counsel for the defendant that the commis- sary, having given license to Mallet to go to the place he did go to, had enlarged the limits of his parole to that place, and therefore Mallet could not be said to have escaped, nor could the defendant be said to have assisted him in escaping out of the limits of his parole. The learned judge proceeded in the trial, and the defendant was convicted, but he respited the judgment and reserved the point for the consideration of the judges. SECT. III.J HEX V. STRATTON. 157 In Trinity term, 15tli June, 1811, all the jiulges met (except Law- rence, J.), when they lield the conviction wrong, inasmuch, as the prisoner never escaped, or intended to escape.^ SECTION III. (continued). (J) CONTRIBUTOKY CrIMK. REX V. STRATTON. Nisi Pmus. 1809. [Reported 1 Campbell, 549.] Indictment for a conspirac}' to deprive one Thompson of the office of secretary to the Philanthropic Annuity Society, and to prosecute him, without any reasonable or prol)able cause, for obtaining money upon false pretences. It appeared that this society is an unincorpor- ated compau}', with transferable shares ; that there was a violent dis- pute among the subscribers as to the choice of secretary ; that one party, headed b}' the defendants, cashiered the prosecutor ; that he still went on collecting subscriptions, and tliat thej- indicted him for obtaining money upon false pretences, of which he was acquitted. Lord Ellenborough. This society was certainly illegal. There- fore, to deprive an individual of an office in it, cannot be treated as an injury. When the prosecutor was secretary to the society, instead of having an interest which the law would protect, he was guilty of a crime. In Dodd's case, all the judges of this court were agreed upon the illegalit}- of these associations ; and I understand there has since been a nonsuit in the Common Pleas upon the same ground. Nor can I say that the prosecutor was indicted without reasonable or i)robable cause. I thought he was not guilt}' of the offence imputed to him ; be- cause it did not appear that he acted with a fraudulent purpose. But he did obtain the money upon a false pretence. He pretended that there was then a real, legal society, to which he was secretary ; whereas no such society existed. The defendants must all be acquitted.- » See State v. Douglass, 44 Kas. 618; conf. Reg. v. Williams, 1 C. & K. 195. — En. 3 See Rex v. Beacall, 1 C & P. 454 ; Reg. v. Hunt, 8 C. & P. 642 ; Com. v- Smith, 129 Mass. 104. — Kd. 158 KEGINA V. HUDSON. [CHAP. V. REGINA V. Central Criminal Court. 1845. [Reported 1 Cox C. C. 250.] The defendant was indicted for uttering counterfeit coin. Evidence ■was adduced to sliow that he had given a counterfeit sovereign to a girl with whom he had had intercourse. £odkin^m opening the case for the prosecution, referred to R. v. Page, 8 C. & P. 122, in which Lord Abinger ruled that the giving a piece of counterfeit money away in charity was not an uttering within the 2 Wm. IV. c. 34, § 7, although the person giving knew it to be coun- terfeit, as there must be some intention to defraud. The learned counsel contended that the present case was clearly distinguishable, even supposing that to be the law, and he apprehended that the ques- tion for the jury would be, whether the coin had been passed with a knowledge of its being counterfeit and with the intention of putting it into circulation. Lord Denman, C. J. (in summing up). As to the law of this case, my learned brother (Coltman, J.) and myself are clearly of opinion that if the defendant gave the coin to the woman under the circum- stances stated, knowing it to be counterfeit, he is guilty of the offence charged. We do not consider the decision of Lord Abinger to be in point ; that was a case of charity ; at the same time we have great doubts as to the correctness of that ruling, and if a similar case were to arise we should reserve the point. ^ REGINA V. HUDSON. Crown Case Reserved. 1860. [Reported 8 Cox C. C. 305] Case reserved for the opinion of this court, by J. B. Maule, Esq., barrister-at-law, sitting as Deputy for the Recorder of York. At the Epiphany Sessions, 1860, held for the city of York, the pris- oners were jointly indicted and tried before me upon an indictment, the two first counts of which charged them with an offence under the 8 & 9 Vict. c. 109. Third count. The prisoners were charged with a conspiracy to cheat in the following form : — " That they unlawfully and fraudulently did combine, confederate, and conspire together with divers other persons to the jurors unknown, 1 Contra, People v. "VVilsoii, 6 Johns. 320. — Ed. SECT. III.] REGINA V. HUDSON. 159 by clivers unlawful and fraiuliilcnt devices and contrivances, and bj- divers false pretences, unlawfully to obtain from the said A. Rhodes the sum of £2 10s. of the money of the said A. Rhodes, and unlaw- fully to cheat and defraud the said A. Rhodes of the same, against the peace, etc."^ The evidence disclosed that the three prisoners were in a public house together with the prosecutor, Abraham Rhodes, and that in concert with the other two prisoners, the prisoner John Dewhirst placed a peu- case on the table in the room where they were assembled and left the room to get writing-paper. Whilst he was absent the other two pris- oners, Samuel Hudson and John Smitli, were the only persons left drinking with the prosecutor ; and Hudson then took up the pen-case and took out the pen from it, placing a pin in the place of it, and put tlie pen that he had taken out under the bottom of the prosecutor's drinkiug-glass ; and Hudson then proposed to the prosecutor to bet the prisoner Dewhirst when he returned that there was no pen in the pen- case. The prosecutor was induced by Hudson and Smith to stake 50s. in a bet with Dewhirst upon his returning into the room, that there was no pen in the pen-case ; which money the prosecutor placed on the table, and Hudson snatched up to hold. The pen-case was then turned up into the prosecutor's hand, and another pen with the pin fell into bis hand, and then the prisoners took his money. Upon this evidence it was objected, on behalf of the prisoners, that no offence within the meaning of the 8 & 9 Vict. e. 109, was proved by it, and that the facts proved in evidence did not amount to the offence charged in the third count. I thought the objection well founded as to the offence under the 8 & 9 Vict. c. 109, but held that the facts in evidence amounted to the offence charged in the third count, and directed the jury to return a separate verdict on each count, a case having been asked for b}' the prisoners' counsel, for the consideration of the Court for Crown Cases Reserved. The jury returned a verdict of guilty on each of the three counts. The prisoners were sentenced to eight months' imprisonment, and committed to prison for want of sufficient sureties. If the court for the consideration of Crown Cases Reser^'cd shall be of opinion that the above facts in evidence constituted in law any one of the offences charged in the indictment, and was evidence to go to the jury in support thereof, the verdict is to stand for such of the counts in which the offence is laid to which the evidence applies. Price, for the prisoners. As to the third count, to sustain that the evidence should have shown such a false pretence as i^r se would con- stitute the ordinary misdemeanor of false pretences. Pollock, C. B. "Why so? This is a count for conspiracy to cheat Price. Yes, by false pretences. 1 Only so much of the case as relates to tliis covint is given. — Ed. 160 COMMONWEALTH V. MORRILL. [CHAP. V. Chan'kell, B. If the count had said merely to conspire, and had omitted the words " by false pretences," it would have been good. Blackburn, J. Here the prisoners cheated the prosecutor into the belief that he was going to cheat, when in fact he was to be cheated. Price. This is a mere private deceit, not concerning the public, which the criminal law does not regard, but is a deceit against which common prudence might be guarded. There is no evidence of anj' indictable combination to cheat and defraud. Channell, B. If two persons conspire to puff up the qualities of a horse and thereby secure an exorbitant price for it, that is a criminal offence. Price. That affects the public. At the trial the present case was likened to that of Rex v. Barnard, 7 C. & P. 784, where a person at Oxford, who was not a member of the universit}', went for the purpose of fraud, wearing a commoner's gown and cap, and obtained goods. This was held a sufficient false pretence. The present case, however, was nothing more than a bet on a question of fact, which the prosecu- tor might have satisfied himself of by looking at the pencil-case. It is more like an ordinary conjuring-trick. Besides, here the prosecutor himself intended to cheat one of the prisoners b^' the bet. No counsel appeared for the prosecution. Pollock, C. B. We are all of opinion that the conviction on the third count is good and ought to be supported. The count is in the usual form, and it is not necessary that the words "false pretences" stated in it should be understood in the technical sense contended for by Mr. Price. There is abundant evidence of a conspiracy by the pris- oners to cheat the prosecutor, and though one of the ingredients in the case is that the prosecutor himself intended to cheat one of the prisoners, that does not prevent the prisoners from liability to be prosecuted upon this indictment. Conviction affirmed. COMMONWEALTH y. MORRILL. Supreme Judicial Court of Massachusetts. 185L [Reported 8 Gushing, 57L] This was an indictment which alleged that the defendants, Samuel G. Morrill and John M. Hodgdon, on the 17th of September, 1850, at Newburyport, " devising and intending one James Lynch by false pre- tences to cheat and defraud of his goods, did then and there unlawfull3% knowingly, and designedly falsely pretend and represent to said Lynch that a certain watch which said Morrill then and there had, and which said Morrill and Hodgdon then and there proposed and offered to ex- change with said Lynch for two other watches belonging to said Lynch, was a gold watch of eighteen carats fine and was of great value, to wit, of the value of eighty dollars ; and the said Lynch, then and there be- SECT. Hi.] COMMONWEALTH V. MORRILL. 161 lieving Uic said false pretences and representations so made as afore- said by said Morrill and llodgdon, and being deceived thereby, was induced by reason of tiie false pretences and representations so made as aforesaid to deliver, and did then and there deliver, to the said Mor- rill the two watches aforesaid, bcldnging t(j said Lynch, and of the value of twenty dollars, aiul the said Morrill and llodgdon did then and there receive and ol)tain the two said watches, the property of said Lynch, as aforesaid, in exchange for the said watch, so represented as a gold watch as aforesaid, b}' means of the false pretences and representa- tions aforesaid, and with intent to cheat and defraud the said Lynch of his said two watches, as aforesaid ; whereas in truth and in fact said watch so represented by said Morrill and llodgdon as a gold w'atch, eighteen carats fine, and of the value of eighty dollars, was not then and there a gold watch, and was not then and there eighteen carats fine, and was then and there of trifling value," etc. At the trial in the Court of Common Pleas, before Hoar, J., it ap- peared in evidence that Lynch represented his watches, one of which was of silver and the other of yellow metal, as worth fifty dollars ; and on the testimony of the only witness for the Commonwealth who was a judge of the value of watches, tliey were worth not exceeding fifteen dollars. Lynch testified tliat his silver watch cost him fifteen dollars ; that he received the other in exchange for two, which cost him respec- tively seven dollars and thirteen dollars ; and that he believed it to be worth thirty dollars. The defendant requested the presichng judge to instruct the jury that if Lynch's watches were not worth fifty dollars, or sonie considerable part of that sum, but were of merely trifling value, this indictment could not be maintained. Hut the judge instructed the jnr}' that if they supposed that each of the parties was endeavoring to defraud the other, and Lynch knew that his watches were of little value, the jury should not convict the defendants merely because they had the best of the bar- gam ; but that if the defendants made the false representations charged in the indictment, with the intent to defraud, knowing them to be false, and they were such as would mislead and deceive a man of ordinary prudence, and Lynch, by reason of the representations, and trusting in them, parted with his property and was defrauded, it was not necessary to show that he was defrauded to the extent charged in the indictment, provided he in good faith parted with property which he believed to be valuable, and was defrauded to any substantial amount, for example, to the amount of five dollars ; and that the defendants might be con- victed, although, from the mistake of Lynch in over-estimating his property, he might not have been cheated to so great an extent as he at the time supposed. The jury found the defendants guilty, who thereupon moved in arrest of judgment, on the ground that the indictment was insulticient : and this motion l)eing overruled, they alleged exceptions to the order of the court, overruling the same, and also lo the instructions aforesaid. 11 162 McCORD v. PEOPLE. [CHAP. V. W. C. EncJicott, for the defendant. Clifford, Attorney -General, for the Commonwealth. Dewey, J.^ The exceptions taken to the instructions of the presid- ing judge cannot be sustained. If it were true that the part}- from whom the defendants obtained goods by false pretences also made false pretences as to his goods which he exchanged with the defend- ants, that would be no justification for the defendants, when put on trial upon an indictment charging them with obtaining goods by false pretences, knowing!}- and designedl}- in violation of a statute of this Commonwealth. Whether the alleged misrepresentation of Lynch, being a mere representation as to the value or worth of a certain watch and an opinion rather than a statement of a fact, would be such false pretence as would render him amenable to punishment under this statute, might be questionable ; but supposing that to be otherwise, and it should appear that Lynch had also violated the statute, that would not justify the defendants. If the other part}' has also subjected him- self to a prosecution for a like offence, he also may be punished. This would be much better than that both should escape punishment because each deserved it equally.^ McCORD V. PEOPLE. Court of Appeals of New York. 1871. [Reported 46 New York, 470.] Error to the General Term of the Supreme Court in the first depart- ment to review judgment, affirming judgment of the Court of General Sessions in and for the County of New York, convicting the plaintiflT in error upon an indictment for false pretences. The plaintiff in error, Henry McCord, was tried and convicted in the Court of General Sessions of the Peace, in and for the County of New York, at the June term, 1870, upon an indictment charging in sub- stance that with intent to cheat and defraud one Charles C. Miller, he falsely and fraudulentl}' represented, — " That he, the said Henry McCord, was an oflBcer attached to the bureau of Captain John Young's department of detectives, and that he had a warrant issued by Justice Hogan, one of the police justices of the city of New York, at the complaint of one Henry Brinker, charging the said Charles C. INIiller with a criminal offence and for his arrest ; and that the said Henry Brinker had promised him, the said Henry McCord, S200 for the arrest of him, the said Charles C. Miller." ^ Part of the opinion, referring to a question of pleading, is omitted. '^ Ace. In re Cummins, 16 Col. 451 ; 27 Pac. 887. And see Com. v. Henry, 22 Pa. 253. — Ed. SECT. III.] REX V. REW. 103 And that said Miller, believing such false representations, was in- duced to and did deliver to IMcCord a gold watch and a diamond ring.* Per Cukiam. If the prosecutor parted with his property upon the representations set forth in the indictment, it must have been for some unlawful purpose, a purpose not warranted by law. There was no legitimate purpose to bo attained by delivering the goods to the accused ui)on the statements made and alleged as an inducement to the act. AVhat action by the plaintiff in error was promised or expected in return for the property given is not disclosed. But whatever it was, it was necessarily inconsistent with his duties as an ofllcer having a crimi- nal warrant for the arrest of the prosecutor, whicli was the character he assumed. The false representation of the accused was that he was an officer and had a criminal warrant for the prosecutor. There was no pretence of any agency for or connection with any person or of any authority to do any act save such as his duty as such pretended officer demanded. The prosecutor parted with his property as an inducement to a sup- posed officer to violate the law and his duties ; and if in attempting to do this he has been defrauded, the law will not punish his confederate, although such confederate may have been instrumental in inducing the commission of the offence. Neither the law or public policy designs the protection of rogues in their dealings with each other, or to insure fair dealing and truthfulness as between each other in their dishonest practices. The design of the law is to protect those who, for some honest purpose, are induced upon false and fraudulent representations to give credit or part with their property to another, and not to protect those who for unworthy or illegal purposes part with their goods. Peo- ple V. Williams, 4 Hill, 9 ; Same v. Stetson, 4 Barb. 151. The judgment of the Supreme Court and of the Sessions must be reversed and judgment for the defendant.^ SECTION III. (contimied.) {«) Contributory Negligence. REX V. REW. Newgate Sessions. 1662. [Reported Kehjng, 26.] Edward Rew was indicted for killing Nathaniel Rew, his brother, and upon the evidence it was resolved that if one gives wounds to 1 Arguments of counsel and the dissenting opinion of Peckham, J,, are omitted. » Ace. State v. Crowley, 41 Wis, 271. — Ed, 164 KEGINA V. HOLLAND. [CHAP. V. another, who neglects the cure of them, or is disorderly, and doth not keep the rule which a person wounded should do ; yet if he die it is murder or manslaughter, according as tlie case is in the person who gave the wounds, because if the wounds had not been, the man had not died ; and therefore neglect or disorder in the person who received the wounds shall not excuse the person who gave them. REGINA V. HOLLAND. Liverpool Assizes. 1841. [Reported 2 Moody ^ Robinson, 351.] Indictment for murder. The prisoner was charged with inflicting divers mortal blows and wounds upon one Thomas Garland, and (among others) a cut upon one of his fingers. It ai)peared by the evidence that the deceased had been waylaid and assaulted by the prisoner, and that, among other wounds, he was severely cut across one of his fingers by an iron instrument. On being brought to the infirmary, the surgeon urged him to submit to the ampu- tation of the finger, telling him, unless it were amputated, he considered that his life would be in great hazard. The deceased refused to allow the finger to be amputated. It was thereupon dressed by the surgeon, and the deceased attended at the infirmary from day to day to have his wounds dressed ; at the end of a fortnight, however, lock-jaw came on, induced by the wound on the finger ; the finger was then amputated, but too late, and the lock-jaw ultimately caused death. The surgeon deposed that if the finger had been amputated in the first instance, he thought it most probable that the life of the deceased would have been preserved. For the prisoner, it was contended that the cause of death was not the wound inflicted by the prisoner, but the obstinate refusal of the deceased to submit to proper surgical treatment, by which the fatal result would, according to the evidence, have been prevented. Maule, J., however, was clearly of opinion that this was no defence, and told the jury that if the prisoner wilfully, and without any justifi- able cause, inflicted the wound on the party, which wound was ulti- matel}' the cause of death, the prisoner was guilty of murder ; tliat for this purpose it made no difference whether the wound was in its own nature instantly mortal, or whether it became the cause of death by reason of the deceased not having adopted tlie best mode of treatment ; the real question is whether in the end the wound inflicted by the pris- oner was the cause of death. Guilty } 1 Ace. Com. V. Hackett, 2 All. 136. —Ed. SECT. III.] REGINA V. KEW. 165 REG IN A V. DA LLC WAY. Staffoud Assizes. 1847. [Reported 2 Cox C. C. 273.] TiiK prisoner was iiuUcted for the luunshuightcr of one Henry Clarke, by reason of his negligence us driver of a cart. It appeared tliat the prisoner was standing up in a spring-cart, and having the conduct of it along a public thoroughfare. The cart was drawn by one horse. The reins were not in the hands of the n » . prisoner, but loose on tlic liorsc's back. While the cart was so pro- J L ceeding down the slope of a hill, the horse trotting at the time, the \ , , deceased child, who was about three years of age, ran across the road before the horse, at the distance of a few yards, and one of the wheels of ^ the cart knocking it down and passing over it caused its death. It -j did not appear that the prisoner saw the child in the road before the accident. Spooner, for the prosecution, submitted that the prisoner, in conse- quence of his negligence in not using reins, was responsible for the death of the child ; but Erle, J., in summing up to the jur}', directed them that a party neglecting ordinary caution, and, by reason of that neglect, causing the death of another, is guilty of manslaughter ; that if the prisoner had reins, and by using the reins could have saved the child, he was guilty of manslaughter ; but that if they thought he could not have saved the child by pulling the reins, or otherwise by their assistance, they must acquit him. The jury acquitted the prisoner. REGINA V. KEW. Suffolk Assizes. 1872. [Reported 12 Cox C. C. 355.] The prisoners were indicted for manslaughter. It appeared that on the 2d of June the prisoner, Jackson, who was in the enn^loy of Mr. Harris, a farmer, was instructed to take his master's horse and cart and drive the prisoner Kew to the Bungay railway station. Being late for the train, Jackson was driving at a furious rate, at full gallop, and ran over a child going to school and killed it. It was about two o'clock in the afternoon, and there were four or five little children from five to seven years of age going to school unattended by any adult. Metcalfe and Simms Reeve, for the prisoners, contended that there was contributory negligence on behalf of the child running on the road, c 166 KEX V. RICHARDSON. [CHAP. V and that Kew was not liable for the acts of another man's servant, he having no control over the horse and not having selected either the horse or the driver. Byles, J., after reading the evidence, said : Here the mother lets her child go out in the care of another child only seven years of age, and the prisoner Kew is in the vehicle of another man, driven by another man's servant, so not onl}' was Jackson not his servant but he did not even select him. It has been contended if there was contributory negli- gence on the children's part, then the defendants are not liable. No j^^^ doubt contributory negligence would be an answer to a civil action. yy But who is the plaintiff here? The Queen, as representing the nation ; and if they were all negligent together I think their negligence would be no defence, even if they had been adults. If the^' were of opinion s^^- that the prisoners were driving at a dangerous pace in a culpably negli- gent manner, then they are guilt}'. It was true that Kew was not actually driving, but still a word from him might have prevented the accident. If necessary he would reserve the question of contributory negligence as a defence for the Court of Criminal Appeal. The jurj' acquitted both prisoners.^ SECTION IV. Contrihuting Acts. REX V. RICHARDSON. Old Bailey. 1785. [Reported Leach (Ath ed.) 387.] At the Old Bailey, in .June Session 1785, Daniel Richardson and Samuel Greenow were indicted before Mr. Justice Buller for a high- way robbery on John Billings. It appeared in evidence that the two prisoners accosted the prose- cutor as he was walking along the street, by asking him in a peremp- tory manner what mone}' he had in his pocket ; that upon his replying that he had only two-pence half-penny one of the prisoners immedi- atel}' said to the other, " If he really has no more do not take that," and turned as if with an intention to go away ; but the other prisoner stopped the prosecutor, and robbed hiiu of the two-pence half-penn}', which was all the monej' he had about him. But the prosecutor could not ascertain which of them it was that had used this expression, nor which of them had taken the half-pence from his pocket. » Ace. Reg. V. Longbottom, 3 Cox C. C. 439 ; Belk v. People, 125 111. 584 ; Crura V. State, 64 Miss. 1, 1 So. 1. But see Reg. v. Birchall, 4 F. & F. 10S7. — Ed. ' SECT. IV.] REGINA V. SWINDALL. 167 The Coukt. The point of law goes to the acquittal of both the prisoners ; for if two jnen a.ssault another with intent to rob him, and one of them, before any demand of money, or offer to take it be made, repent of what he is doing, and desist from the prosecution of such intent, he cannot be involved in the guilt of his companion who after- wards takes the money ; for he chaugcether it was done when, as some of the witnesses said, Wagstatfe kicked him, then it was their duty to sav Wagstatfe was guilty. There was evidence that the blow that injured the jaw injured the trachea. That injur}' to the jaw caused resorting to the hospital ; competent mwlical men decided to perform an operation ; that rendered chloroform uecessaiy ; and if under chloro- form the man died, the rule of law was that the death could be traced back to the man b}' whom tlie injury was done. For it would never do to have a serious injur}' by one man on another, and have the issue raised that death was due to want of skill on the part of the medical men. People who inflicted injuries must deal with the law. If the jury thought there was a melee, and that the injury was not clearly brought home to Wagstaffe, they were at liberty to say the Crown had not brought home to him the death of the man. If they were satisfied Davis had nothing to do with the injury, and he thought there could be uo doubt about that, and if they believed it was brought home to Wagstatfe, it would be their duty to acquit Davis and say Wagstatfe was guilty. The jury acquitted the prisoners. Not guilty. 174 REX V. SHEPPARD. [CHAP. VL CHAPTER Yl. THE CRIMINAL INTENT. SECTION I. Intent distinguished from motive. REX V. SHEPPARD. Crown Case Reserved. 1810. [Reported Russell <^' Ryan, 1 69.] The prisoner was tried before Mr. Justice Heath, at the Old Bailey September sessions, in the year 1809, on an indictment consisting of four counts. The first count charged the prisoner with forging a receipt for £19 16s. 6(7., purposing to be signed by W. S. West, for certain stock therein mentioned, with intent to defraud the governors and company of the Bank of England. The second count was for uttering the same knowing it to be forged, with the like intent. The third and fourth counts varied from the first and second in charging the intent to have been to defraud Richard Mordey. It appeared in evidence at the trial that Richard Mordey gave £20 to his brother, Thomas Mordey, in the month of January, 1809, to buy stock in the five per cent Navy. In February following Thomas Mordey gave the £20 to the prisoner for the purchase of the said stock, on the prisoner's delivering to him the receipt stated in the indictment. The prisoner being examined at the bank, confessed that the receipt was a forgery, that there was no such person as W. S. West, whose signature appeared subscribed to the receipt, and that he, being pressed for money, forged that name, but had no intention of defraud- ing Richard Mordey. Richard Mordey and Thomas Mordey swore they believed that the prisoner had no such intent. On examining the bank books, no transaction corresponding with this could be found. The learned judge told the jury that the prisoner was entitled to an acquittal on the first and second counts, because the receipt in ques- tion could not operate in fraud of the governor and company of the bank. SECT. I.] REGINA V. SHARPE. 175 That as to the third aiul fourth counts, although the I^Ionleys swore that they did not believe the forgery to have been committed with an intent to defraud Richard Mordey ; yet, as it was the neces- sary elTect and consequence of tlie forgery, if tlie prisoner could not repay tlie money, it was suilicient evidence of the intent for them to convict the prisoner. The jury acquitted the prisoner on the first and second counts, and found him guilty on the third and fourth counts ; and the learned judge reserved this case for the oi)inion of the judges, to determine whether this direction to the jury was right and proper. In Easter term, 31st of May, 1810, all the judges were present, and they were all of opinion that the conviction was right, that the imme- diate effect of the act was the defrauding of Richard Mordey of his money. REGINA V. SHARPE. Crown Case Reserved. 1857. [Reported 7 Cox C. C. 214.] The defendant was tried at Hertford, before Erie, J., who reserved the following case : — The indictment in the first count charged that the defendant, a certain burial-ground belonging to a certain meeting-house of a con- gregation of Protestants dissenting from 4;he Church of England, unlawfully did break and enter, and a certain grave there, in which the bod}' of one Louisa Sharpe, had before then been interred, with force and arms, unlawfully, wilfully, and indecently did dig open, and the said body of the said Louisa Sharpe out of the said grave, unlawfully, wilfully, and indecently did take and carry away. And there were other counts, varying the charge, which may be resorted to if necessary. The evidence was, that^the defendant's family had belonged to a congregation of dissenters at Hitchin, and his mother, with some other of his relations, had been buried in one grave in the burying-ground of that congregation there, with the con- sent of those who were interested. That the father of the defendant had recently died. That the defendant prevailed on the wife of the person to whom the key of the burying-ground was intrusted to allow him to cause the grave above mentioned to be opened, under the jire- text that he wished to bury his father in the same grave, and, in order thereto, to examine whether the size of the grave would admit his father's codin. That he caused the coffins of his stepmother and two children to be taken out, and so came to the coffin of his mother, which was under them, and was much decomposed, and that he caused the remains of this coUlo, with the corpse therein, to be placed 176 REGINA V. SHARPE. [CHAP. YI. iu a shell and carried to a cart near the buryiug-ground, and driven therein some miles away towards a churchyard, where he intended to bury his father's corpse with the remains of his mother. These acts were done without the knowledge or consent of the con- gregation to whom the burying-ground belonged, or of the trustees having the legal estate therein. The person having the keys of the ground was induced to admit the defendant into the ground and to the grave by reason of the pretext that the defendant intended to bury his father there, and the jury found that this was only a pretext, and that his real intention from the beginning was to remove his mother's corpse. But the defendant acted throughout without intentional disrespect to any one, being actuated by motives of affection to his mother and of religious duty. I directed the jury to convict if they believed these facts to be true, and reserved for the decision of this court the ques- tion whether the conviction could be sustained. Accordingly, a ver- dict of guilty was entered, and the defendant was discharged on his recognizance to appear if called on. This case came on for argument on Saturday, November 15, before Pollock, C. B., Erie, J., Willes, J., Bramwell, B., and Watson, B. The defendant in person argued that the conviction was wrong. He considered that the grave was the private property of his family ; and there had been no indecorum or improper motive in his proceed- ings. He alluded to the circumstance that the bodies of many illus- trious persons had, at various times, been removed from one place of interment to another. No counsel appeared for the Crown. Cur. adv. vult. Erle, J., now delivered the judgment of the court. We are of opinion that the conviction ought to be affirmed. The defendant was wrongfully in the burial-ground, and wrongfully opened the grave, and took out several corpses and carried away one. We say he did this wrongfully, that is to say, by trespass ; for the license which he obtained to enter and open from the person who had the care of the place was not given or intended for the purpose to which he applied it, and was, as to that purpose, no license at all. The evidence for the prosecution proved the misdemeanor, unless there was a defence. We have considered the grounds relied on in that behalf, and although we all feel sensible of the estimable motives on which the defendant acted, namely, filial affection and religious duty, still, neither author- ity nor principle would justify the position that the wrongful removal of a corpse was no misdemeanor if the motive for the act deserved approbation. A purpose of anatomical science would fall within that category. Neither does our law recognize the right of any one child to the corpse of its parent, as claimed by the defendant. Our law recognizes no property in a corpse, and the protection of the grave at common law, as contradistinguished from ecclesiastical protection to consecrated ground, depends on this form of indictment, and there SECT. I.] STATE V. PRESNELL. 177 is no authority for sayiug that relationship can justify tlie taking of a corpse from the grave where it had been hiid. We have been uuwill- iu<'^ to allirm the conviction on account of our respect for the motives of the defendant ; but we have felt it our duty to do so rather than lay down a rule which might lessen tlio only protection the law affords in respect of the burials of dissenters. 'J'iie result is, the conviction will stand, and, as the judge states, the sentence should be a nominal fine of one shilling. Conviction ujjinned.^ RESPUBLICA V. CALDWELL. Court op Oyer axd Terminkk, Puiladelpiiia. 1785. [Reported 1 Dallas, 150.] This was an indictment for a nuisance, in erecting a wharf on the public property. The defendant olfcred witnesses to prove that the erection of the wharf has been beneficial to the public, and, therefore, not to be regarded as a nuisance. But M'Kean, Chief Justice, delivered the opinion of the court, that the evidence was inadmissible, for two reasons : Jirst, because it would only amount to matter of opinion, whereas it is on facts the court must proccetl ; and the necessary facts are already in proof ; secondlt/, because it would be no justification ; for, on the same principle that the defend- ant might carry his wharf twelve feet, he could justify extending it farther ; or any other man might excuse a similar intrusion. Suppose, for instance, a street were sixt}' feet wide, twelve feet might be taken olf it, without doing any material injury to the public property, or cre- ating any great obstruction to passengers ; yet, surely this will not justify any man's actually building upon, and assuming the propert}- of the twelve feet that could be thus spared. STATE y. PRESNELL. Supreme Court of North Carolina. 1851. [Reported 12 Iredell, 103.] Appeal from the Superior Court of Law of Randolph County, at the Spring Term, 1851, his Honor Judge Baily presiding. This is an indictment for selling spirituous liquor to a slave, contrary to the statute. On not guilty pleaded, the defendant was convicted and fined a small sum ; and he appealed.^ 1 .See Rtx v. Ogdeii, 6 C. & T. 631. — Ed. * Part of the case is oniittcd. 12 178 STATE V. PRESXELL. [CHAP. VI. The counsel for the defendant insisted to the jiny, that the defendant had reason to believe, and did believe, that Nelson was buying the liquor for his master ; and he furthermore moved the court to instruct the jury that, if they found the defendant believed the slave had been sent by his master to purchase the spirits for him, he ought not to be convicted, although it turned out that he was mistaken in that belief and the slave had no authorit}' from his master to buy for him. But the court advised the jury that the defendant acted at his peril in selling the spirits to the slave, and therefore, although he might have believed that the negro was acting as the agent of his master, they ought to find the defendant guilty, if, in point of fact, he had not any authority from his master to make the purchase for him. — Verdict and judgment for the state and appeal by the defendant. Attorney- General, for the state. Mend€7ihall and 3Iorehead, for the defendant. RuFFiN, C. J. The court is of opinion that there was no error in the instruction given. The sale of spirituous liquor to a slave is appar- ently illegal, and it is incumbent upon one who does the act to justify it b}' showing that it was done under such circumstances as render it lawful. He must show, not merely that he thought that such circum- stances existed, but that they actually existed. It was said that when one believes he is not doing an unlawful thing, there is not the guiltj' mind necessary' to constitute a crime. But that is not correct. When the act is unlawful and volnntar3', the quo aninio is inferred necessarilj^ from the act. If a piece be brought to a printer for publication, which is injurious to the character of another, and the author make such rep- resentations and adduce such proofs in support of the charges as induce the printer to believe that the}' are all true, and may, therefore, be law- fully published, yet the publication will be criminal or not, as it ma}' happen that the charges may be true or false in ix)int of fact. For, by making the publication in derogation of another, the printer holds out and undertakes that the charges are true. Therefore he must maintain their actual truth. It is plain that his belief of their truth does not, then, denote that innocence of intention in making the publication, which can prevent it from being a crime, if the}' prove not to be true ; and there is, therefore, in that case, the guilty mind spoken of So, if one trade with a slave upon the faith of an order or permit in writing in the name of the owner, he must take care to see that it is genuine. For, if it be not genuine, but a forgery, then the authority required by law for dealing with a slave is wanting, and the party would be guilty under the act. Upon that })oint, every person must necessarily take the risk of judging for himself. It must be the same in this case ; for the act, being against the policy and the letter of the law, can only be made innocent by showing facts which in law justify it, and not by showing merely the probability or the party's mistaken belief of the existence of those facts. Those circumstances might well affect the degree of pun- ishment, and seem to have had their effect in reducing the fine here to SECT. L] REYNOLDS V. UNITED STATES. 179. almost a nominal one. But they could not prevent the act from being a violation of the la^Y, for which the party was liable to conviction. Feu Cukiam, Judyment ajfirmed. REYNOLDS v. UNITED STATES. SUPKEME COUKT OF THE UNITED StATES. 1878. [Reported 98 ifnited States, 145.] EuROR to the Supreme Court of the Territory of Utah. This is an indictn)ent Ibund in the District Court for the third judicial district of the Territory of Utah, charging George Reynolds with bigamy in violation of sect. 5352 of the Revised Statutes.^ Mr. Chief Justice Waite delivered the opinion of the court. In our opinion, the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as pre- scribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control. This being so, the only question which remains is, whether those who make polyg- amy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seri- ously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in etfect to permit every citizen to become a law unto himself. Government could exist onl}' in name under such circumstances. A criminal intent is generally an element of crime, but every man is presumed to intend the necessary and legitimate consequences of what he knowingly docs. Here the accused knew he had been once married, and that his first wife was living. He also knew that his second mar- 1 Part only of the case, relating to the questiou of intent, is here given. 180 UNITED STATES V. HARMON. [CHAP. VI. riage was forbidden by law. When, therefore, he married the second time, he is presumed to have intended to break the law. And the breaking of the law is the crime. Ever}' act necessar}' to constitute the crime was knowingly done, and the crime was therefore knowingly- committed. Ignorance of a fact may sometimes be taken as evidence of a want of criminal intent, but not ignorance of the law. The only defence of the accused in this case is his belief that the law ought not to have been enacted. It matters not that his behef was a part of his professed religion ; it was still belief, and belief onlj'.^ UNITED STATES v. HARMON. United States Di&trict Court, Dist. of Kansas, 1891. [Reported 45 Federal Reporter, 414.] Philips, J.^ Reduced to its actual essence, the ultimate position of defendant is this : That although the language employed in the given article may be obscene, as heretofore defined, yet as it was a necessary vehicle to convey to the popular mind the aggravation of the abuses in sexual commerce inveighed against, and the object of the publisher being to correct the evil and thereby alleviate human condition, the author should be deemed a public benefactor, rather than a malefactor. In short, the proposition is that a man can do no public wrong who believes that what he does is for the ultimate public good. The under- lying vice of all this character of argument is that it leaves out of view the existence of the social compact, and the idea of government b}- law. If the end sought justifies the means, and there were no arbiter but the individual conscience of the actor to determine the fact whether the means are justifiable, homicide, infanticide, pillage, and incontinence might run riot ; and it is not extravagant to predict that the success of such philosophy would remit us to that barbaric condition where " No common weal the human tribe allied, Bound by no law, by no fixed morals tied, Each snatched the booty which his fortune brought, And wise in instinct each his welfare sought." Guiteau stoutl}' maintained to the end his sanity, and that he felt he had a patriotic mission to fulfil in taking off President Garfield, to the salvation of a political party. The Hindu mother cast her babe to the 1 Jcc. state V. White, 64 N. H. 48, 5 Atl. 828. — Ed, 2 Part of the opinion only is given. The case was an imlictment for depositing an obscene publication in the United States post-office in violation of the provisions of section 3893 of the Kevised Statutes of the United States. The defendant attempted to justify his act on the ground that he was actuated solel}' by the desire to improve sexual habits, and thus benefit the human race. — Ed. SECT. II.] DOBBS'S CASE. 181 advouring Ganges to appease the gods. But civilized societ}' says both are murderers. The Mormon contends that his religion teaches polyg- amy ; and there is a school of so-called " modern thinkers" who would abolish monogamy, and erect on the ruins the flagrant doctrine of promiscuity, under the disguise of the atlinities. All these claim liberty of conscience and thought as the basis of their dogmas, and the jn'o bono publico as the strength of their claim to indulgence. The law against adultery itself would lie dormant if the libertine could get the courts to declare and the jin-}' in obedience thereto to say that if he invaded the sanctuary of conjugal life under the belief that the improve- ment of the human race demanded it he was not amenable to the statute. Society is organized on the theory, born of the necessities of human well-being, that each member yields up something of his natural privi- leges, predilections, and indulgences for the good of the composite community ; and he consents to all the motto implies, salus 2^opidi suprema est lex; and, as no government can exist without law, the law- making power, within the limits of constitutional authority, must be recognized as the body to prescribe what is right and prohibit what is wrong. It is the very incarnation of the spirit of anarchy for a citizen to proclaim that like the heathen he is a law unto himself The respon- sibility for this statute rests upon Congress. The duty of the courts is imperative to enforce it while it stands.^ SECTION II. Specific Intent. DOBBS'S CASE. BucKiNOHAM Assizes. 1770. [Reported 2 East, P. C. 513.] JosKPii DoBBS was indicted for burglary in breaking and entering the stable of James Bayley, part of his dwelling-house, in the night, with a felonious intent to kill and destroy a gelding of one A. B., there being. It appeared that the gelding was to have run for forty guineas, and that the prisoner cut the sinews of his fore-leg to prevent his run- ning, in consequence of which he died. Parker, C. B., ordered him to be acquitted ; for his intention was not to commit the felony, by killing and destroying the horse, but a trespass only to prevent his running ; and therefore no burglary. But the prisoner was again indicted for killing the horse, and capitally convicted. 1 Ace. Reg. V. Hickliu. L. R. 3 Q. B. 360. — Ed. 182 KEX V. KELLY. [CHAP. VL REX V. BOYCE. Crown Case Reserved. 1824. [Reported 1 Moody, 29.] The prisoner was tried before Thomas Denman, Esq., Common Serjeant at the Old Bailc}' Sessions, June, 1824, upon an indictment for feloniously cutting and maiming John Fishburn, with intent to murder, maim, and disable.^ There was no count which charged an intent to prevent his lawful apprehension. The facts were these : The prisoner had, in the night time, broken into a shop in Fleet Market, and was there discovered by the prosecutor, who was a watch- man, at a quarter before five in the morning of the 11th of April, 1820. On the prosecutor entering the shop for the purpose of apprehending him, the prisoner struck him witli his fist, which blow the prosecutor returned. The prisoner then said, "I will serve you out — I will do for 3'ou ; " and, taking up a crow-bar, struck the prosecutor with it two severe blows, one on the head, the other on the arm ; he then ran awa}', ordering the prosecutor to sit on a block in the shop, and threatening that it would be worse for him if he moved. The crow-bar was a sharp instrument, and the prosecutor was cut and maimed by the blows so given with it b}- the prisoner. The prisoner was found guilt}'; and, on an answer to a question from the Common Serjeant, the jur}- said, "We find that he was there with intent to commit a robber}', and that he cut and maimed the watchman with intent to disable him till he could effect his own escape." ' The Common Serjeant reserved the above case for the consideration of the judges. In Trinity Term, 1824, all the judges (except Graham, B. and Garrow, B.) met, and considered this case, and held the conviction wrong, for, by the finding of the jury, the prisoner intended only to produce a temporary disability till he could escape, not a permanent one.* REX V. KELLY. MoNAGHAN Assizes, Ireland. 1832. [Reported 1 Crawford Sc Dix, 186.] Indictment for maliciouslv killing a horse. The evidence was that the prisoner had fired at the prosecutor, and killed his horse. 1 See 43 Geo. TIL c. 58, § 1. * Ace. Rex V. Duffin, Russ. & Ry. 365. — Ed. SECT. II.] COMMONWEALTH V. IIKRSEY. 183 BusnE, C. J. Under this Act ^ tlic olTencc must be proved to havft been done maliciously, and malice implies intention, ilere the proof negatives the intention of killing the horse. The prisoner must there- fore be acquitted.- COMMONWEALTH v. HERSEY. Supreme Judicial Coukt of Massachusetts. 1861. [Reported 2 Allen, 173.] BiGEKow, C. J. The motion in arrest oC judgment in the present case is founded on the omission to aver that the defendant, in adminis- tering poison to the deceased, did it with an intent to kill and murder. No direct authority or adjudication has been cited by the counsel for the prisoner in support of the position that such an averment is neces- sary or es.sential to the validit}' of the indictment. They do, however, rely on forms or precedents, which are found in text books of approved authority and in reported cases, in which the allegation that the poison was administered with intent to kill is distinctly set forth. Wharton's Precedents (2d ed.), 125-138; Archb. Crim. PI. (5th Amer. ed.), 4.32; 2 Cox C. C, Appendix III.; Davis's Precedents, 182-18G. But, on the other hand, it is certainly true that there are precedents entitled to equal respect with those cited by the prisoner's counsel, in which no such averment is made, as a separate and substantive allegation essential to the description of the crime, and distinct from the general prefatory clause, in which a general intent to kill is stated without any averment of time and place. 2 Stark. Crim. PI. 12. 15, 18; 1 East P. C. c. 5, § IIG; 3 Chit. Crim. Law, 773, 779 ; The King v. Clark, 1 Brod. & Bing. 473 ; Regina y. Alison. 8 C & P. 418. So far there- fore as the question now raised depends on authority, it may fairlj' be said to be an open one. It would be giving too much force to mere precedents of forms, which often contain unnecessary and supertbious averments, to hold that a particular allegation is essential to the validity of an indictment, because it has sometimes, or even generally, been adopted by text writers or b\- cautious pleaders. We are then to determine the question as one depending on the general rules of criminal pleading applicable to the description of similar otfences. There can be no doubt that, in every case, to render a party responsible for a felony, a vicious will or wicked intent must concur with a wrongful act. But it does not follow that, because a man can- not commit a felony unless he has an evil or malicious mind or will, it is nccessar}' to aver the guilty intent as a substantive part of the crime i 9 Geo. IV. c. 56, § 17. 2 Ace. Com. V. Walden, 3 Cush. 558. — Ed. 184 C05IM0XWEALTH V. IIERSEY. [CHAP. YI. in giving a technical description of it in the indictment. On the contrary, as the law presumes that every man intends the natural and necessary consequences of his acts, it is sufficient to aver in apt and technical words that a defendant committed a criminal act, without alleging the specific intent with which it was done. In such case, the act necessaril}- includes the intent. Thus, in charging the crime of burglary it is not necessary to aver that the breaking and entering a house was done with an intent to steal. It is suflftcieut to charge the breaking and entering and an actual theft b}- the defendant. The reason is that the fact of stealing is the strongest possible evidence of the intent, and the allegation of the theft is equivalent to an averment of that intent. Commonwealth v. Hope, 22 Pick. 1, 5 ; 2 East P. C. c. 15, § 24. So in an indictment for murder by blows or stabs with a deadly weapon, it is never necessar}- to allege that they were inflicted with an intent to kill or murder. The law infers the intent from proof that the acts were committed, and that death ensued. The averment, therefore, of the criminal act comprehends the evil or wicked intention with which it was committed. The true distinction seems to be this : when by the common law or by the provision of a statute a, particular intention is essential to an oflTence, or a criminal act is attempted but not accomplished, and the evil intent only can be punished, it is neces- sary to allege the intent with distinctness and precision, and to support the allegation b}' proof. On the other hand, if the oflfence does not rest merel}' in tendency, or in an attempt to do a certain act with a wicked purpose, but consists in doing an unlawful or criminal act, the evil intention will be presumed and need not be alleged, or, if alleged, it is a mere formal averment, which need not be proved. In such case, the intent is nothing more than the result which the law draws from the act, and requires no proof beyond that which the act itself supplies. 1 Stark. Crim. PI. 165 ; 1 Chit. Crim. Law, 233 ; The King v. Philipps, 6 East. 474 ; 1 Hale P. C. 455 ; Commonwealth v. Merrill, 14 Gray, 415. To illustrate the application of the rule, take the case of an indictment for an assault with an intent to commit a rape. The act not being consummated, the gist of the offence consists in the intent with which the assault was committed. It must therefore be distinctly alleged and proved. But in an indictment for the crime of rape, no such averment is necessary. It is sufficient to allege the assault, and that the defend- ant had carnal knowledge of a woman bv force and against her will. The averment of the act includes the intent, and proof of the commis- sion of the offence draws with it the necessary inference of the criminal intent. The same is true of indictments for assault with intent to kill, and murder. In the former, the intent must be alleged and proved. In the latter, it is only neccssarj' to allege and prove the act. The application of this principle to the case at bar is decisive of the ques- tion raised by the present motion. There is nothing in the nature of the crime of murder by poison to distinguish it from homicide by other unlawful means or instruments so as to render it necessary that it should SECT. III.] NEGLIGENCE. 185 be set out with fuller averments concerning the intention with which the criminal act was committed. If a person administers to another that which lie knows to be a deadly poison, and death ensues there- from, the averment of these facts in technical form necessarily involves and includes the intent to take life. It is the natural and necessary consequence of the act done, from which the law infers that the party knew and contemplated the result which followed, and that it was committed with the guilt}' intention' to take life. It was urged by the counsel for the prisoner, as an argument in support of the insullicicncy of the indictment, that every fact stated in the indictment miglit have been done by the defendant, and yet he might have committed no offence ; that is, that a person might admin- ister to another that which he knew to be a deadly poison, from which death ensued, innocently and without any intent to do bodily harm. In a certain sense this is true. A physician, for example, might in the exercise of due care and skill give to his patient a medicine of a poison- ous nature, in the honest belief that it would cure or mitigate disease, but wiiich from unforeseen and unexpected causes actually causes death. And the same is true of many other cases of homicide produced b}- other means than poison. Take the case of a murder alleged to have been committed by stabs or cuts with a knife. Such wounds may be inflicted innocently and for a lawful purpose. A surgeon in perform- ing a delicate and difficult operation, by a slight deflection of the knife, which the most cautious skill could not prevent, might inflict a wound which destroys life. But it has never ])een deemed necessary, because certain acts which cause death ma}' be done without any wicked or criminal intent, to aver in indictments for homicide, that the person charged acted with an intent to take life. The corrupt and wicked purpose with which a homicidal act is done is sufflcicntl}' expressed by the averment that it was committed wilfully and with malice afore- thought ; and this allegation may be always disproved by showing that the act happened per infortunium^ or was otherwise excusable or justifiable. Motion in arrest of judgment overruled. SECTION III. Negligence. (a) Negligent Acts of Commission. Foster, Crown Law. 2G2. It is not sufficient that the act upon which death ensucth be lawful or innocent, it must be done in a proper manner and with due caution to prevent mischief Parents, masters, and other 186 NEGLIGENCE. [CHAP. VL persons having antborit}- in for o domestico, ma}' give reasonable correc- tion to those under their care ; and if death ensueth without their fault, it will be no more than accidental death. But if the correction exceedeth the bounds of due moderation, either in the measure of it or in the instru- ment made use of for that purpose, it will be either murder or manslaughter according to the circumstances of the case. If with a cudgel or other thing not likely to kill, though improper for the purpose of correction, manslaughter. If with a dangerous weapon likel}- to kill or maim, due regard being always had to the age and strength of the part}', murder. This rule touching due caution ought to be well considered by all persons following their lawful occupations, especially such from whence danger may probabl}- arise. "Workmen throw stones, rubbish, or other things from an house in the ordinary course of their business, by which a person underneath hap- peneth to be killed. If thej' look out and give timely warning beforehand to those below, it will be accidental death. If without such caution, it will amount to manslaughter at least. It was a lawful act, but done in an improper manner. I need not state more cases by way of illustration under this head ; these are sufficient. But I cannot pass over one reported by Kel^'ng (Kel. 41), because I think it an extremely hard case, and of very exten- sive influence. A man found a pistol in the street, which he had reason to believe was not loaded, having tried it with the rammer ; he carried it home and showed it to his wife ; and she standing before him he pulled up the cock, and touched the trigger. The pistol went off and killed the woman. This was ruled manslaughter. It appeareth that the learned editor ^ was not satisfied with the judg- ment. It is one of the points he in the preface to the report recom- mendeth to farther consideration. Admitting that the judgment was strictl}' legal, it was, to say no better of it, siiinmum Jus. • • • • • • • The law in these cases doth not require the utmost caution that can be used ; it is sufficient that a reasonable precaution, what is usual and ordinary in the like cases, be taken. In the case just mentioned of workmen throwing rubbish from buildings, the ordinary caution of look- ing out and giving warning by outcrv from above will excuse, though doubtless a better and more effectual warning might have been given. But this excuseth, because it is what is usuall}- given, and hath been found by long experience, in the ordinary course of things, to answer the end. Tlie man in the case under consideration examined the pistol in the common way ; perhaps the rammer, which he had not tried before, was too short and deceived him. But having used the ordinary caution, found to have been effectual in the like cases, he ought to have been excused. » Chief Justice Holt. SECT." III.] REGINA V. CIIAMRERLAIN. 187 I have been the longer upon this case, because accidents of this lamentable kind may be the lot of the wisest and the best of mankind, and most commonly fall among the nearest friends and relations ; and in such a case the forfeiture of goods, rigorously exacted, would be heaping adliction upon tlie head of the alilicted, and galling an heart already wounded past cure. It would even aggravate the loss of a l)rolher, a parent, a child, or wife, if such a loss under such circum- stances is capable of aggravation. I once upon the circuit tried a man for the death of his wife by the like accident. Upon a Sunday morning the man and his wife went a mile or two from home with some neighbors to take a dinner at the house of their common friend. He carried his gun with him, hoping to meet with some diversion by the way ; but before he went to dinner he discharged it, and set it up in a private place in his friend's house. After dinner he went to church, and in tlie evening returned Iiorac with his wife and neighbors, bringing his gun with him, which was carried into the room where his wife was, she having brought it part of the way. He taking it up touched the trigger, and the gun went otf and killed his wife, whom he dearly loved. It came out in evidence that, while the man was at church, a person belonging to the family privately took the gun, charged it and went after some game ; but before the service at church was ended returned it loaded to the place whence he took it, and where the defendant, who was ignorant of all that had passed, found it, to all appearance as he left it. I did not inquire whether the poor man had examined the gun before he carried it home ; but being of opinion upon the whole evidence, that he had reasonable grounds to believe that it was not loaded, I directed the jur}', that if they were of the same opinion they should acquit him. And he was acquitted. REGINA V. CHAMBERLAIN. Hektfohd Assizks. 1867. [Reported 10 Cox C. C. 486.] Indictment for manslaughter. o The prisoner had resided for many years in Hertford, carrying on the business of a herbalist, and he was also what was called a " quack doc- tor." The deceased woman had for some years a tumor on her slioulder, and in March, 1800, she consulted the prisoner, who gave her first a mercurial ointment, to which no olijection was taken. After this, how- ever, it was said he gave her a different ointment, which was arsenical, and this it was suggested had caused her death by being absorbed into the system. The case for the prosecution was that she became worse after she used this ointment, that is to say, in August, ISGG ; that she X88 KEOINA V. CHAMBERLAIN. fCHAP. Yl- suffered from arsenical symptoms ; and that her death, which happened in September, was owing to this cause. It was not disputed that she died with the sj'mptoms of arsenic, nor tliat there was arsenic in the ointment she used ; the real question in the case was whether there was "culpable negligence" on the part of the prisoner in giving it without due precautions. That being the question in the case, it turned a good deal upon the medical evidence as to the use of arsenic in ointments. As to this Dr. Ta3-lor admitted that it was used upon the Continent, and that it had been used in this country' until within the last thirty- years, when he said it was discovered that it was absorbed into the sys- tem, and it was discontinued in this country, though it still was used upon the Continent. The foreign practitioners, he said, were a little more given to a bold system in cases apparentl}' hopeless, and a little more disposed to what he called " heroic" treatment — that is to sa}', treatment in which the medical practitioner for the sake of the patient runs some risk — than our English practitioners, who, he intimated, were rather more cautious in such cases. Another point on which the case turned was as to the prisoner not having warned the deceased of the necessar}- effect of the arsenic when absorbed into the system. It did not appear that he had given any particular directions beyond tell- ing her to "rub some of the ointment in ;" and the woman, naturally thinking that the more she rubbed the better, had rubbed and rubbed until she had absorbed so much of the poison that she died ; and the prisoner had sold her another box without, as it appeared, making any observation as to the effect of the first. Parry, Seijt., for the prisoner, contended that it was a case of a mere blunder or error, and not a case of negligence so culpable as to be criminal. Blackburn, J., to the jury. If the prisoner by culpable negligence had caused the death of the deceased woman, he was guilty of man- slaughter ; but the mere fact that death had occurred through mistake or misfortune would not be enough, or no medical man would be safe- There must, however, be competent knowledge and care in dealing with a dangerous drug, and if the man either was ignorant of the nature of the drug he used or was guilt}- of gross want of care in its use, there would be criminal culpability. In the one case there would be culpable rashness in using so dangerous a drug in ignorance of its operation ; in the other case there would be culpable want of care or culpable care- lessness in the use of the drug ; and in either case that would be culpa- ble and criminal negligence, which would justify a conviction, supposing the jury were satisfied that the death arose from the arsenic. The first question was, whether the death was caused by the arsenic administered by the prisoner ; upon which, however, he thought the evidence very strong. The real question would be w^hether there was culpable negli- gence, which resolved itself into the two questions he had explained. He could not define the nature of " culpable negligence" otherwise than as he had described it. It was a question for the jury, for it was a SECT. III.] REGINA V. SALMON. 189 question of degree. It was a question of more or less, and it could not be defined. All the direction he could givu thcni was tliat if the prisoner administered the arsenic williout knowing or tiiiving tlie pains to (ind out what its ellect would be, or if knowing this, he gave it to the patient to be used without giving her adequate directions as to its use, there would in either view of the case be culpable negligence, and the prisoner ouglit to be convicted; but if otherwise, there would not be such negligence, and the prisoner ouglit to be acquitted. The most serious part of the case was in the apparent absence of caution or directions to the woman as to the use of the arsenical ointment, the effect of which, as was well known, was that it would be absorbed into the S3'stem so as to cause death. It was said that foreign doctors used it, but if so it miglit be presumed that the}' watched its use with care. It appeared to him that a medical man who should administer sueli a drug or allow a patient to apply it without taking any care to observe its effects or guard against them, would be gravely wanting in due care. Whether under the cir- cumstances it amounted to culpable negligence was, he repeated, for the jury. JV^ot guilty.^ REGINA y. SALMON. Ckown Case Resekved. 1880. [Reported 14 Cox C. C. 494.] Case reserved for the opinion of this court by Lord Coleridge, C. J., at the Summer Assizes at \yells, 1880. The three prisoners were tried for the manslaughter of William Wells, a little boy often years old. The prisoners -went into a field, and each fired a shot from a rifle at a target. One of the shots killed tlie deceased, who was at the time in a tree in his father's garden, distant about four hundred yards from the spot where the shot was fired. The rifle was sighted for nine hundred and fift}- yards, and would probably be deadly at a mile. It did not appear which one of the prisoners fired the fatal shot.2 No counsel appeared to argue on behalf of the prisoners. Norris for the prosecution. The prisoner who fired the fatal shot was clearly guilty of manslaughter, but the evidence of his identity not being clear, the rule that all persons engaged in a common enterprise are jointly liable will apply. All the prisoners went into the field for a common purpose, rifle practice ; and it was their duty to take all proper precautions to prevent any danger to other persons. The plan attached to the case shows that they fired across three highways, and 1 Ace. Rof;. V. Jlacleod, V2 Cox C. C. 534; State v. Hardister, 38 Ark. 605; Cora. V. Pierce, 138 Mass. 165. — En. * This statement of the case is condensed from the report of Lord Coleridge. — En, 190 EEX V. FRIEND. [CHAP. VL that they were firing too near to the neighboring gardens, in one of which the deceased boy was. Loud Coleridge, C J. I am of opinion that the conviction was right and ought to be affirmed. If a person does a thing which in itself is dangerous, and without taking proper precautions to prevent danger arising, and if he so does it and kills a person, it is a criminal act as against that person. That would make it clearly manslaughter as regards the prisoner whose shot killed the bo}-. It follows as the result of the culpable negligence of this one, that each of the prisoners is answerable for the acts of the others, they all being engaged in one common pursuit. Field, J. I am of the same opinion. At first I thought it was ne- cessar}' to show some duty on the part of the prisoners as regards the boy, but I am now satisfied that there was a duty on the part of the prisoners towards the public generally not to use an instrument likely to cause death without taking due and proper precautions to prevent injury to the public. Looking at the character of the spot where the firing took place, there was sufficient evidence that all three prisoners were guilty of culpable negligence under the circumstances. LoPES, J., concurred. Stephen, J. I am of opinion that all three prisoners were guilty of manslaughter. The culpable omission of a duty which tends to preserve life is homicide ; and it is the duty of ever}' one to take proper precau- tions in doing an act which may be dangerous to life. In this case the firing of the rifle was a dangerous act, and all three prisoners were jointly responsible for not taking proper precautions to prevent the danger. "VVatkin Williams, J., concurred. Conviction affirmed. SECTION III. (continued.) (b) Negligent Acts of Omission. REX V. FRIEND. Crown Case Reserved. 1802. [Reported Russell Sf Ryan, 20.] The prisoners were tried before Mr. Justice Le Blanc at the Exeter summer assizes in the year 1801, on an indictment for a misdemeanor, which charged that they did take and receive one Sarah Quill into the dwelling-house of the prisoner, John Friend, as an apprentice of the said John Friend, to be by him treated, maintained, and supported as an apprentice of him the said John Friend, and did, for a long time, SECT. III.] REX V. FRIEND. lOl have and keep her in the said house as such apprentice as aforesaid ; and that during the said i.ime thi-y so liad and kept her in the said house as such apprentice, the said prisoners, and each of them, did, with force and arms, unhiwfully and injuriously, and without the con- sent of the said Sarali Quill, and against her will, neglect and refuse to find and provide for and to give and administer to her, being so had and kept as such apprentice as aforesaid, sudicient meat, drink, victuals, wearing apparel, bedding, and other necessaries proper and requisite for the sustenance, support, maintenance, clothing, covering, and resting the body of the said Sarah (^uill ; by means whereof slie became emaciated and almost starved to death, and the constitution and frame of her body greatly hurt and impaired, &c. It was proved that Sarah C^uill, a girl of thirteen or fourteen years of age, went to live with Friend as an apprentice, and continued with him about a year.* It was objected, on behalf of the prisoners, that the evidence was not sufficient to prove the relation of master and apprentice, so as to create the legal obligation on the master to pro- vide for the apprentice suHicient meat, clothing, &c., a breach of which would subject him to a criminal prosecution. The learned judge permitted the prosecution to proceed, as the indictment was in other respects fully supported by the evidence. The jury found John Friend guilty, but acquitted Anne, his wife. The learned judge thought it best to pass sentence of imprisonment on the prisoner ; that in case the judges should be of opinion that the above evidence did not support the indictment, a pardon might be obtained. At a meeting of all the judges at Lord Kenyon's chambers on the first day of Michaelmas term, 1801, this case was ordered to stand over for further consideration to the first day of the next Hilary term ; on that day it was further adjourned ; and after Hilary term, viz. on the 25th of February, 1802, was considered at a meeting of all the judges (except Lord Kenyon and Mr. Justice Rooke). The gen- eral opinion was, that it was an indictable offence, as a misdemeanor, to refuse or neglect to provide sufhcient food, bedding, &c., to any infant of tender years unable to provide for and take care of itself (whether such infant were child, apprentice, or servant), whom a man was obliged by duty or contract to provide for, so as thereby to injure its health ; l)ut that, in the present case, the indictment was defective in not stating the child to be of tender years and unable to provide for itself. However, as in the present case, the objection was taken to the evidence not supporting the indictment, rather than to the indictment itself ; and there being some difference of opinion, all tho judges thouglit it right that the final decision sliould l^e adjourned, and that the prisoner should suffer the whole of his imprisonment. Mr. Justice Chambre thought that it was not in any manner an indictable offence, being founded wholly on contract. 1 The statement of facts has been abridgeil. — En. 192 EEGINA V. SMITH. [CHAP. VI. REGINA V. LOWE. "Worcestershire Assizes. 1850. [Reported 3 Carrington Sf Kirwan, 123.] Manslaughter. — The prisoner was indicted for the manslaughter of Thomas Tibbitts. It appeared that he was an engineer, and that his duty was to man- age a steam-engine employed for the purpose of drawing up miners from a coal pit ; and when the skip containing the men arrived on a level with the pit's mouth, his duty was to stop the revolution of the windlass, so that the men might get out. He was the only man so employed on the premises. On the day in question he deserted his post, leaving the engine in charge of an ignorant boy, who, before the prisoner went away, declared himself to the prisoner to be utterly incompetent to manage such a steam-engine as the one intrusted to him. The prisoner neglected this warning, and threatened the boy, in case he refused to do as he was ordered. The boy superintended the raising of two skips from the pit with success, but on the arrival at the pit's mouth of a third, containing four men, he was unable to stop the engine, and the skip being drawn over the pulley, the deceased, who was one of the men, was thrown down into the shaft of the pit and killed on the spot. It appeared that the engine could not be stopped " in consequence of the slipper being too low," an error which it was proved that any competent engineer could have rectified, but which the boy in charge of the engine could not. Huddleston., for the prisoner, contended that a mere omission or neglect of duty could not render a man guilty of manslaughter, and he cited the cases of Rex v. Green, 7 C. & P. 156, and Rex v. Allen, 7 C. & P. 153. Lord Campbell, C. J. I am clearly of opinion that a man may, by a neglect of duty, render himself liable to be convicted of man- slaughter, or even of murder.^ Verdict, Guilty. REGINA V. SMITH. Carlisle Assizes. 1869. [Reported 11 Cox C. C. 210.]. Thomas Smith was indicted for the manslaughter of Richard Gibson, at Dearham, on the 8th of February, 1869, under the following circum- stances : — 1 Ace. Reg. V. Hughes, 7 Cox C. C. 301. — Ed. SECT. III.] REGINA V. NICIIOLLS. 193 Tlie prisoner was employed by a Mr. Harrison, an extensive colliery proi)riL'tor near Dearhaiii, and who was also the owner of a tramway which cro.s.sed the Maryport and Carlisle turnpike road. It was the prisoner's duty to give warning to any persons when any trucks might cross the said road. The tramway was in existence Ijefore the road, and in the act by which the road was made there was no clause impos- ing on Mr. Harrison the duly of placing a watchman wliere the tramway crossed the road. On the 8th of February, 18G9, the deceased was crossing the tramway, having received no warning that any trucks were about to cross the road. As he was crossing, however, he was knocked down l)y some trucks and was killed. On inquiry it appeared that the prisoner was absent from his post at that time, although he had strict orders never to be absent. Campbell Foster, for the prisoner, contended that, it being an act of omission such omission ought to have been stated in the indictment. The learned judge [Lusii, J.] held that under the words " did feloniously kill and slay " it was unnecessary to state in the indict- ment that it was an act of omission on the part of the prisoner which caused the death of the deceased. Campbell Foster then contended that the facts of the case disclosed no duty between the prisoner and the public. In this the learned judge concurred, saying that, there being no clause in the act compelling Mr. Harrison to place a watchman where the tramway crossed the road, the prisoner was merely the private ser- vant of Mr. Harrison , and that consequently his negligence did not constitute such a breach of duty as to make him guilty of manslaughter. Prisoner discharged. KEGINA V. NICHOLLS. Stafford Assizes. 1875. ^ [Reported 13 Cox C. C. T.'j.] Prisoner was indicted for the manslaughter of Charles Xicholls. A. Young prosecuted. The pri-soner was the grandmother of the deceased, an infant of tender years, said to have died from the neglect of the prisoner to supply It with proper nourishment. She was a poor woman, and in order to earn her livelihood was out the greater part of the day. The deceased was the child of the prisoner's daughter. The daughter was dead, and therefore the prisoner took charge of the child, and while away from home left it to the sole care of a boy of nine years. The cause of death was emaciation, probably resulting from want of food 13 194 REGINA V. NICHOLLS. [CHAP. VI. The facts will be found more particnlarl}- stated in the summing up of the learned judge. At the close of the case for the prosecution, Brett, J., asked what was the neglect charged. A. Young. Leaving the child in the sole custody of so j'oung a boy during many hours of the da}'. Brett, J., to the jur}'. This woman is charged with manslaughter under somewhat peculiar circumstances. She was the grandmother of the deceased infant, and not bound by law to take care of it. She might have sent the child to the workhouse, but did not do so. If a grown up person chooses to undertake the charge of a human creature, helpless either from infanc}', simplicit}', lunacj', or other infirmit}', he is bound to execute that charge without, at all events, vncked negligence ; and if a person who has chosen to take charge of a helpless creature lets it die by wicked negligence, that person is guilt}- of manslaughter. Mere negligence will not do ; there must be wicked negligence, that is, negligence so great that you must be of opinion that the prisoner had a wicked mind, in the sense that she was reckless and careless whether the creature died or not. We must judge of all these things according to the state and condition of the persons concerned. Here was an old woman left in a difficult position. The child was probably illegitimate. Its mother, who was the prisoner's daughter, had died, and would not probably have suckled it for some days before her death. The child was small and weakly. It might, perhaps, have lived. "What, however, was the prisoner to do? It is said that she had, thi'ough her own mis- conduct, fallen into bad circumstances ; that she was addicted to drink, and that her furniture had been seized. She was out all day collecting rags and bones. What ought she to have done with respect to the child ? The prosecution say that she ought to have sent it to the parish authorities. Perhaps she ought. But she, like others, might be full of prejudice, and dislike to send it there. So her omission to send it is not sufficient ; for, as I have pointed out, there must be wicked negli- gence on her part. Then she must go out to work. She could not find any one else, for she had no means, so she got a son of nine years old to look to the infant. She may have been very careless, but the ques- tion is, was she wickedly careless? She was in fault, for she ought not to have been away so many hours at a time ; and no doubt you will think that it was that that caused the death of the child. The boy was careless, but it appears that tlie old woman certainly did have food in the house. Suppose she told the boy to feed the baby, and left food wherewith to feed it ? Still she would be careless, for she ought to have returned home to see that he did so. It is very right that this case should be inquired into, and that the neighbors should look into it, but nevertheless it is right that we should consider the circumstances of the prisoner in order to determine whether she has been guilty of such carelessness as I have defined. Verdict, Not guilty. SECT. III.] REGINA V. DOWNES. 195 REGINA V. DOWNES. Crown Cask Rksekvkd. 1875. [Reported 13 Cox C.C. Ill] Case reserved for the opinion of this court by Blackburn, J.' 1. The prisoner was indicted at the Central Criminal Court for the manslaughter of Charles Downcs. 2. It appeared on the trial before me by the evidence that Charles Uownes was an infant who, at the time of his death, was a little more than two years old. The child had been ill, and wasting away for eight or nine months before its death. The prisoner, who resided at Woolwich, was the father of the deceased, and had during the whole of this time the custody of the child. 3. The prisoner was one of a sect who call themselves " The Peculiar People." 4. During the whole period of the child's illness he did not procure any skilled advice as to the treatment of the child, but left it to the charge of women who belonged to his sect, and called in at inter- vals George Hurry, an engine driver, who prayed over the child and anointed it with oil. 5. The reason of this course of conduct was explained by George Hurry, who was called as a witness. 6. He stated that the l^eculiar People never called in medical advice or gave medicines in case of sickness. They had religious objections to doing so. They calle. Straight, for the prosecution. The 31 & 32 Vict. c. 122, s. 37, makes it an olTence for a parent wilfully to neglect to provide adequate food, clothing, medical aid, or lodging for a child under fourteen years SECT. III.] BEGIN A V. POWNES. 107 of age in his custody wherein- the health of the child is, or has been, or is likely to be sevioiisly injured. [Mki.i.ok, J. The words of the sec- tion "wilfully neglect" mean intentionally or puri)Osely omit to call in medical aid. Loud Coi.ekiuoe, C. J. In Keg. v. Wagstatle, 10 Cox C. C. 530, an indictment for manslaughter against parents of the same religious sect as the prisoner in this case for neglecting to provide medical aid for the child, who died in consequence of such neglect, Willes, J., upon similar facts, seems to have been of opinion that the indictment could not be sustained, but that was before the 31 & 32 Vict. c. 122, s. 37, passed. And in the case of Reg. ;■. Hines,^ before Pigott, B., that statute was not brought to his attention.] Coleridge, C. J. I think that this conviction should be allirmed. For my own part, but for the statute 31 & 32 Vict. c. 122, s. 37, 1 should have much doubt about this case, and should have desired it to be further argued and considered. Perhaps it is enough to say that the oi»inions of Willes, J., and Pigott, B., are deserving of grave consideration. The statute 31 & 32 Vict. c. 122, s. 37, however, is a strong argument in favor of the conviction. By that enactment it is made an otfence pun- 1 Keg. V. Hines was aa iiulictment against Hines for unlawfully emlaugering the life of his child, aged two years, by omitting to provide proper and sufficient medicine. At the opening of the case, Baron Pigott e.xiiressed a very strong opinion tliat it could not be sustained. Mr. Poland referred to Russell ou Crimes, p. 80, to the case of Keg. r. Smith, 8 C. & P., and to Reg. i;. Hurry, Central Criminal Court Reports, vol. 76, p. 63. After hearing the evidence in the case, and Mr. Poland in support of it, Pigott, B., said, " I am of opinion that there is no case to go to the jury of any crime ; I think it is one of those ca.ses in which a parent, instead of being guilty of anything like culpable negligence, has done everything that he believed to be necessary for the good of his child. That he may be one of those persons who have very perverted views and very superstitious views, and may be altogether mistaking that doctrine of Scripture from which he has taken his course of proceeding in this case, may be perfectly true ; but that there is anything in the nature of a duty neglected, that is, a duty which he believed or knew to be such, in this instance, I am clearly of opinion the evidence does not show. On the coTitrary, he believed his duty to be in the direction in which he acted, and he carried out that duty to the utmost of his ability. He may altogether have mistaken what his duty was ; still I believe it was an honest mistake. It may be an ignorant mistake, in all proliability it is the result of ignorance and superstition, but certainly there is not a truce of anything like an intentional omission of duty or a culpable omission of duty within the meaning of that expression as used in the criuiinal law. I am clearly of opinion that it is not a case for an indictment, nor a case for a judge to deal with in a Criminal Court. If the Legislature (as they have done in dealing with the case of the prevention of small pox), are minded to pass a law ou the subject, that is a different matter, and it would be quite right then that persona should be compelled to conform to it, although they themselves may jiersonally object to it, because it is the law of the society in which they live, and they are iMjund by that law if society chooses to enact it. But 1 am clearly of opinion that no judge sitting in a Criminal Court, without any direction or enactment of the Legislature, would be justi- fied in saying that a parent who exercised his best judgment, though a perverted one, in dealing with his child by nursing and care instead of calling in a doctor to apply blisters, leaches, and calomel, was guilty of criminal negligence. I may say that I had an opportunity before coming into court, knowing that this case was coming on, of speaking of it to Mr. Justice Quain, and the learned Recorder, and they quite concm in the view I have propounded and upon which I am acting." 198 REGINA V. INSTAN. [CHAP. VI. isbable summarily if any parent wilfully neglects to provide (i7iter alia) medical aid for his child being in bis custody under the age of fourteen years, whereby the health of such child shall have been or shall be likely to be seriousl}' injured. That enactment I understand to mean that if an}' parent intentionally, i. e., with the knowledge that medical aid is to be obtained, and with a deliberate intention abstains from pro- viding it, he is guilty of an offence. Under that enactment upon these facts the prisoner would clearly have been guilty of the offence created by it. If the death of a person results from the culpable omission of a breach of dut}' created by the law, the death so caused is the subject of manslaughter. In this case there was a dut}- imposed by the statute on the prisoner to provide medical aid for his infant child, and there was the deliberate intention not to obe}' the law ; whether proceeding from a good or bad motive is not material. The necessary ingredient to constitute the crime of manslaughter existed, therefore, in this case ; and for that reason this conviction ought to be affirmed. Bramwell, B. I am of the same opinion. The 31 & 32 Vict. c. 122, s. 37, has imposed a positive and absolute duty on parents, whatever their conscientious or superstitious opinions ma}- be, to provide medical aid for their infant children in their custod}'. The facts show that the prisoner thought it was irreligious to call in medical aid, but that is no excuse for not obeying the law. Mellor and Grove, JJ., and Pollock, B., concurred. Cojiviction affirmed. REGINA V. INSTAN. Crown Case Reserved. 1893. \Reported [1893] 1 Q. B. 450.] Case stated by Day, J. Kate Instan was tried before me at the last assizes for the county of Worcester upon a charge of feloniously killing one Ann Hunt. The prisoner, who is between thirty and forty years of age and unmarried, had no occupation and no means of her own of living. She was a niece of the deceased. At the time of the committal of the alleged offence, ^nd for some time previous thereto, she had been living with and had been main- tained by the deceased. Deceased was a woman of some seventy- three 3'ears of age, and until a few weeks before her death was healthy and able to take care of herself. She was possessed of a small life income, and had in the house in which she lived some little furniture, and a few other articles of trifling value. The two women lived to- gether in a house taken by the deceased ; no one lived with them or in an}' way attended to them. SECT. III.] REGINA V. INSTAN. 199 The deceased shortly before her death sufTered from gangrene in the leg, which rendered her during the last ten days of her life qirile unal)le to attend to herself or to move about or to do anything to pro- cure assistance. No one but the prisoner had previous to the death any knowledge of the condition in which her aunt thus was. The prisoner (;ontinued to live in the house at the cost of the deceased, and took in the food sui)i>lied by the tradespeople; bul does nut appear to have given any to the deceased, and she certainly did not "\ve or procure any medical or nursing attendance to or for her, or give notice to any neighbor of her condition or wants, although she had abundant opportunity and occasion to do so. The body of the deceased was on August 2, while the prisoner was still living in the house, found much decomposed, partially dressed in her day clothes, and lying partly on the ground and partly prone upon the bed. The death probably occurred from four to seven days before August 3, the date of the post-mortem examination of the body. The cause of death was exhaustion caused by the gangrene, but substan- tially accelerated by neglect, want of food, of nursing, and of medical attendance during several days previous to the death. All these wants could and would have been supplied if any notice of the condition of the deceased had been given by the prisoner to any of the neighbors, of whom there were several living in adjoining houses, or to the rela- tions of the deceased, who lived within a few miles. It was proved that the prisoner, while the deceased must have been just about dying, had conversations with neighbors about the deceased, but did not avail herself of the opportunities thus afforded of disclosing the con- dition in which she then was. At the close of the case it was objected on behalf of the prisoner that there was no evidence of any legal duty such as would bind the prisoner to give or to procure any food, or nursing, or attendance to or for tiie deceased, or to give any notice to any one that such was required. I thought it better not to stop the case, but to leave it to the jury to say whether, having regard to the circumstances under which the prisoner lived with the deceased, and continued to occupy the house, and to take the food provided at the expense of the de- ceased, while the deceased was, as she knew, unable to communicate with any other person and thus to procure necessaries for herself, the prisoner did or did not impliedly un(lertake with the deceased either to wait upon and attend to her herself, or to communicate to persons out^ side the house the knowledge of her helpless condition ; and I told them that if they came to the conclusion that she did so undertake, and that the death of the deceased was substantially accelerated by her failure to carry out such undertaking, they might find the prisoner guilty of manslaughter, but that otherwise they should acquit her. The jury found the prisoner guilty. li the facts above stated do not atTord evidence of the existence of .iny such undertaking or duty, then the conviction is to be quashed ; if otherwise, it is to stand. 200 REGIXA V. INSTAN. [CHAP. VI. Vachell, for the prisoner. There was no legal duty imposed upon the prisoner to provide food or attendance for the deceased during the last ten days of her Ufe ; there was certainly no such duty before that time, for the deceased was the head of the household and able to help herself. Such a duty as is here sought to be enforced can only arise bv virtue of a statute or a contract, or at common law. It must be conceded that there was no statutory duty, neither was there any duty at common law ; there is no authority for the existence of an}' such common law duty in the case of a person of full age ; in such a case the duty can only arise in respect of an undertaking, express or im- plied. In Rex V. Friend it was held to be an indictable otfence to refuse or neglect to provide sufficient food, bedding, &c., to an infant of tender years, unable to provide for and take care of itself, whom a man was obliged by duty or contract to provide for ; but the decision was in terms confined to such cases, and the indictment was held to be defective in not stating the child to be of tender years and unable to provide for itself. In Reg. v. Shepherd it was held that there was no duty upon a woman to procure a midwife for her daughter, a o-irl of eighteen, and that she could not be convicted of manslaughter for omitting to do so. In his judgment, Erie, C J., says: "Here the girl was beyond the age of childhood, and was entirely emancipated." In the case of a person of full age such a duty may indeed arise out of an express or implied undertaking: Reg. v. Marriott, where a man was convicted of the manslaughter of an elderly and infirm woman, whom he had taken home to live in his house, promising to make her happy and comfortable. In summing up in that case, Pat- teson, J., said : " The cases which have happened of this description have been generally cases of children and servants, where the duty was apparent. This is not such a case ; but it will be for you to say whether, from the way in which the prisoner treated her, he had not by way of contract, in some vvay or other, taken upon him the per- formance of that duty which she, from age and infirmity, was inca- paV)le of doing." In the present case there was no evidence of any contract or undertaking by the prisoner to take care of her aunt, though no doubt she was under a moral obligation to do so. [HawtvIns, J. Why should not a contract be implied from such cir- cumstances as those in this case ? Suppose two people agreed to live together for their mutual benefit, would not the mere fact of their living together be evidence from which an undertaking might be implied?] [Cavk, J. When the prisoner took in food paid for with the de- ceased's mone}-, she had no right to apply it all for her own use. Did she not then undertake a duty towards the deceased ?] Not by way of contract so as to raise a legal duty ; it was nothing more than a duty of imperfect obligation. Lord Coleridge, C. J. We are all of opinion that this conviction must be affirmed. It would not be correct to say that every moral obligation involves a legal duty ; but every legal duty is founded on a SECT. IV.] ANONYMOUS. 20U moral obligutiou. A legal common law duty is nothing else than the enforcing by law of that which is a moral oijligatiou without legal enforcement. There can be no question in this case that it was the clear duty of the prisoner to impart to the deceased so much as was necessary to sustain life of the food which she from time to time took in, and which was paid for by the deceased's own money for the [)ur- pose of the maintenance of herself and the prisoner; it was only through the instrumentality of the prisoner that the deceased could get the food. There was, therefore, a common law duty imposed upon the prisoner which she did not discharge. Nor can there be any question that the failure of the prisoner to dis- charge her legal duty at least accelerated the death of the deceased, if it did not actually cause it. There is no case directly in point ; but it ■would be a slur upon and a discredit to the administration of justice in this country if there were any doubt as to the legal principle, or as to the present case being within it. The prisoner was under a moral obligation to the deceased from which arose a legal duty towards her ; that legal duty the prisoner has wilfully and deliberately left unper- formed, with the consequence that there has been an acceleration of the death of the deceased owing to the non-performance of that legal duty. It is unnecessary to say more than that upon the evidence this conviction was most properly arrived at. Hawkins, Cavl, Day, and Collins, JJ., concurred. Co7ivictlon affirmed. SECTION IV. Constructive Intent. (a) General Intent. ANONYMOUS. Reporters' Note. 1498. [Reported Year-Book, 13 Hen. VII. 14, pi. 5.] Jlusf^ey said that a question had been put to him, which was this: A clerk of a church being in a chamber struck another with the kcvs of the church ; which with the force of the blow tlew out of his hand and through a window, and put out the e3'e of a woman. The question was, whether it should be called maihera or not. And it seems that it was, because he had a bad intent at the beginning ; but it should be well considered in assessing the damages. 202 KEGINA V. BRUCK [CHAP. VL REX y. BLACKHAM. Crown Case Reserved. 1787. [Reported 2 East, Pleas of the Crown, 711.] Blackham assaulted a woman with intent to commit a rape, and she without any demand from him offered him money, which the prisoner took and put into his pocket, but continued to treat her with violence to effect his original purpose till he was interrupted by the approach of another person. This was holden to be robbery by a considerable majority of the judges ; for the woman, from violence and terror occa- sioned by the prisoner's behavior, and to redeem her chastity, offered the mone}', which it was clear she would not have given voluntaril}' ; and the prisoner, b}' taking it, derived that advantage to himself from his felonious conduct ; though his original intent were to commit a rape. REGINA V. BRUCE. Central Criminal Court. 1847. [Reported 2 Cox C. C. 262.] The prisoner was indicted for manslaughter, under the circumstances detailed b}' one of the witnesses. He said the prisoner came into his master's shop, and pulled him bj' the hair off a cask where he was sit- ting, and shoved him to the door, and from the door back to the counter. That the prisoner then put his arm round his neck and spun him round, and they came together out of the shop ; the prisoner kept " hold of the witness when the}' were outside, and kept spinning him round ; the latter broke awa^' from him, and, in consequence and at the moment of his so doing, he (the prisoner) reeled out into the road and knocked against a woman who was passing and knocked her down. The prisoner was very drunk, and staggered as he walked." The woman so knocked down died shortly' afterwards of the injuries she had received, and it was for having caused her death that the pris- oner was indicted. Mr. Justice Erle inquired of the witness (a young lad) whether he resisted the prisoner during the transaction. The lad answered that he did not : he thought the prisoner was only playing with him, and was sure that it was intended as a joke throughout. Erle, J. (to the jurj-). I think, upon this evidence, 3'ou must acquit the prisoner. Where the death of one person is caused by the act of another, while the latter is in pursuit of an}- unlawful object, the person so killing is guilty of manslaughter, although he had no intention what- ever of injuring him who was the victim of his conduct. Here, however, SECT. IV.] REGINA V. FRANKLIN. 203 . there was nothing unlawful in what the prisoner did to this hid, and which led to the death of the woman. Had his treatnient of the boy been against the will of the latter, the prisoner would have been C(nn- luitting an assault — an unlawful act — which would have rendered him amenable to the law for any consequences resulting from it ; but as every tiling that was done was witii the witness's consent, there was no assault, and consequently no illegality. It is, iu the eye of the law, au accident, and nothing more. REGINA V. FRANKLIN. Sussex Assizes. 1883. [Reported 15 Cox C.C. 16.3.] Charles Harris Franklin was indicted before Field, J., at Lewes, for the manslaughter of Craven Patrick Trenchard. The facts were as follows : On the morning of the 25th day of July, 1882, the deceased was bath- ing in the sea from the West Pier, at Brighton, and swimming in the deep water around it. The prisoner took up a good sized box from the refreshment stall on the pier and wantonly threw it into the sea. Unfortunatel}' the box struck the deceased, C. P. Trenchard, who was at that moment swimming underneath, and so caused his death. Gore, for the prosecution, urged that it would, apart from the ques- tion of negligence, be sullicient to constitute the olfence of manslaughter, that the act done by the prisoner was an unlawful act, which the facts clearly showed it to be, and cited the case of Rex v. Fenton, 1 Lewin's Cr. Cas. 179. This case is referred to in 1 Russell on Crimes, 638 : " U death ensues in cousequence of a wrongful act, which the party who commits it can neither justify nor excuse, it is manslaughter. An indict- ment charged that there was a scaffolding iu a certain coal mine, and that the prisoners, by throwing large stones down the mine, broke the scaflblding, and that in consequence of the scalTolding being so broken a corf in which the deceased was descending the mine struck against a beam on which the scaffolding had been supported, and by such striking the corf was overturned and the deceased precipitated into the mine and killed. Tindal, C. J., said : If death ensues as the consequence of a wrongful act, which the party who cojninits it can neither justify nor excuse, it is not accidental death, but manslaughter. If the wrongful act was done under circumstances which show an intent to kill or do any serious injury in the particular case, or any general malice, tlie offence becomes that of murder. In the present instance the act was one of mere wantonness and sport, but still the act was wrongful, it was a trespass. The only question, therefore, is, whether the death of the 204 COMMONWEALTH V. ADAMS. [CHAP. VI. part}' is to be fairly and reasonabh' considered as a consequence of such wrongful act. If it followed from such wrongful act, as an effect from a cause, the offence is manslaughter ; if it is altogether unconnected with it, it is accidental death." Field, J. This is a question of great importance, for if I must follow the ruling of the very learned judge in Reg. v. Fenton {nhi supra) it will be necessary to go into the question whether the prisoner was guilty of negligence. I will consult my brother Mathew upon the point. Field, J., after a short interval, returned into court and said : I am of opinion that the case must go to the jury upon the broad ground of negligence, and not upon the narrow ground proposed by the learned counsel, because it seems to me — and I may say that in this view ray brother Mathew agrees — that the mere fact of a civil wrong committed by one person against another ought not to be used as an incident which is a necessary step in a criminal case. I have a great abhorrence of constructive crime. "We do not think the case cited by the counsel for the prosecution is binding upon us in the facts of this case, and, there- fore, the civil wrong against the refreshment-stall keeper is immaterial to this charge of manslaughter. I do not think that the facts of this case bring it clearly within the principle laid down bj-Tindal, C. J., in Reg. V. Fenton. If I thought this case was in principle like that case I would, if requested, state a case for the opinion of the Court of Crimi- nal Appeal. But I do not think so. It was not disputed that the prisoner threw the box over the pier, that the box fell upon the bo}', and the death of the boj- was caused by the box falling upon him. Gill, for the prisoner, relied upon the point that there was not proved such negligence as was criminal negligence on the part of the prisoner. Field, J., in summing up the case to the jury, went carefully through the evidence, pointing out how the facts as admitted and proved affected the prisoner upon the legal question as he had explained it to them. The jury returned a verdict of guilty of manslaughter. Guilty. The prisoner was sentenced to two mouths' imprisonment. COMMONWEALTH v. ADAMS. Supreme Judicial Court of Massachusetts. 1873. [Reported 1 14 Massachusetts, 323.] Complaint for assault and battery. At the trial in the Superior Court, before Bacon, J., it appeared that the defendant was driving in a sleigh down Beacon Street, and was approaching the intersection of Charles Street, when a team occupied the crossing. The defendant endeavored to pass the team while driving SECT. IV.] COMMONWEALTH V. ADAMS. 205 at a rate prohibited by an ordinance of the city of Boston. In so doing, he ran against and knocked down a boy who was crossnig Beacon Street. No special intent on tlie part of the dcl'endant to injure the boy was shown. The defendant had pleaded guilty to a coniplauit for fast driv- in<», in violation of the city ordinance. The Comuiouwealth asked f: 208 CONSTRUCTIVE SPECIFIC INTENT. [CHAP. VI. 105 Mass. 1G2. After all these changes in the statutes, the point decided in JBowen's case was ruled in the same way by Chief Justice Bigelow and Justices Dewe}', Metcalf, and Chapman, m a case which has not been reported. Commonwealth v. Pratt, Berkshire, 1862. Since it has been provided by statute that '"any crime punishable b}^ death or imprisonment in the state prison is a felon}', and no other crime shall be so considered," it may well be that suicide is not techni- cally a felony in this Commonwealth. Gen. Sts. c. 168, s. 1 ; St. 1852, c. 37, s. 1. But being unlawful and criminal as malum in se, any attempt to commit it is likewise unlawful and criminal. Every one has the same right and duty to interpose to save a life from being so unlaw- fully' and criminally taken that he would have to defeat an attempt unlawfully to take the life of a third person. Fairfax, J., in 22 E. IV. 45, pi. 10 ; Marler v. Ayliffe, Cro. Jac. 134 ; 2 Rol. Ab. 559 ; 1 Hawk, c. 60, s. 23. And it is not disputed that any person who, in doing or attempting to do an act which is unlawful and criminal, kills another, though not intending his death, is guilty of criminal homicide, and, at the least, of manslaughter. The only doubt that we have entertained in this case is, whether the act of the defendant, in attempting to kill herself, was not so malicious, in the legal sense, as to make the killing of another person, in the attempt to carry out her purpose, murder, and whether the instructions given to the jur^' were not therefore too favorable to the defendant. Exceptions overruled. SECTION IV. {continued.) (h) Constrictive Specific Intent. 1 Hale P. C. 569. [Arson] must be a wilful and malicious burning, otherwise it is not felony, but only a trespass ; and therefore if A. shoot unlawfull}' in a hand-gun, suppose it to be at the cattle or poul- try of B. and the fire thereof sets another's house on fire, this is not felony, for though the act he was doing were unlawful, yet he had no intention to burn the house thereb}', against the opinion of Dolt. Cap. /V 105 p. 270. But if A. have a malicious intent to burn the house of B., and in setting fire to it burns the house of B. and C. or the house of B. escapes by some accident, and the fire takes in the house of C. and burneth it, though A. did not intend to burn the house of C, yet in law it shall be said the malicious and wilful burning of the house of C. and he may be indicted for the malicious and wilful burning of the house of C. Co. P. C. p. 67. SECT. IV.] gore's cask 209 GORE'S CASE. Ckown Case Resekved. 1611. [I{eported9 Coke, 81 \ the agencj' of another. The criminal intent essential to the commission of a public offence must exist when the act complained of is done ; it cannot be imputed to a party from a subsequent independent transaction. There are cases, it is true, where a series of acts are necessarj" to constitute an offence, one act being auxiliary to another in carrying out the crimi- nal design. But the present is not a case of that kind. Here an act which may have no relation to proceedings in bankruptcy becomes criminal, according as such proceedings ma}' or maj* not be subscquentl3' taken, either b}" the part}- or by another. There is no doubt of the competency of Congress to provide, by suita- ble penalties, for the enforcement of all legislation necessary or proper to the execution of powers with which it is intrusted. And as it is authorized "to establish uniform laws on the subject of bankruptcies throughout the United States," it may embrace within its legislation whatever may be deemed important to a complete and effective bank- rupt system. The object of such a s^-stem is to secure a ratable distribution of the bankrupt's estate among his creditors when he is unable to discharge his obligations in full, and at the same time to relieve the honest debtor from legal proceedings for his debts, upon a surrender of his property. The distribution of the property is the prin- cipal object to be attained. The discharge of the debtor is merely inci- dental, and is granted only where his conduct has been free from fraud in the creation of his indebtedness or the disposition of his property. To legislate for the prevention of frauds in either of these particulars, when committed in contemplation of bankruptcy, would seem to be within the competency of Congress. Any act committed with a view of evading the legislation of Congress passed in the execution of any of its powers, or of fraudulently securing the benefit of such legislation, may properly be made an offence against the United States. But an act committed within a State, whether for a good or a bad purpose, or whether with an honest or a criminal intent, cannot be made an offence against the United States, unless it Lave some relation to the execution of a power of Congress, or to some matter within the jurisdiction of the United States. An act not having any such relation is one in respect to which the state can alone legislate. The act described in the ninth subdivision of s. 5132 of the Revised Statutes is one which concerns only the state in which it is committed ; it does not concern the United States. It is quite possible that the framers of the statute intended it to apply only to acts committed in contemplation of bankruptc}' ; but it does not say so, and we cannot supply qualifications which the legislature has failed to express. Our answer to the question certified must be in the negative ; and it will be so returned to the Circuit Court, SECT, v.] STATE V. ASIIER. 229 STATE V. ASIIER. Supreme Coukt ok Arkansas. 1887. [^Reported 50 Arkamas, 427.] At the May term, 1887, of the Phillips Circuit Court, api)ellees were indicted for a violation of section 164.") of Mansfield's Digest, — i. e., obtaining money under false pretences ; Asher as principal and Fitz- patrick as accessory. It is charged in the indictment that on the 17th April, 1885, Asher applied to one J. P. Moore to purchase six mules ; that he represented himself as being the absolute owner of the east half of lot 2.')1, in the city of Helena; that it was free from incumbrance ; that he could give a first lien on same ; that he produced a deed of con- veyance from L. A. Fitzpatrlck, reciting the full payment of the pur- chase-money, and offered to secure the payment of the purchase-money of the mules by creating a first lien on said lot; that Moore sold him the mules on a credit to expire Nov. 1, 1885, and took a deed of trust on the lot to secure the purchase-money of the mules ; that the deed of trust was executed by Asher on the 17th, and was filed for record on the 18th, day of April. 18H5 ; that the sale of the mules was made ou the faith of the security afforded by a first lieu on the east half of said lot. It is further charged that at the time Asher made these representa- tions he had already executed to said Fitzpatrlck a deed of trust upon said east half of said lot, to secure the purchase-money of same, which was more than the value of the lot ; that said lot was not free from incumbrance ; and that Asher falsely made the representation that he could give a first lien on said half-lot to deprive Moore of his property ; that Fitzpatrick's deed of trust was filed for record on the 17th day of April, 1885. Fitzpatrlck is indicted jointly with him as accessory. At the November term, 1887, of the court, the defendant demurred to the indictment; the demurrer was sustained, and the State appeals. CoCKKiLL, C. J. (after stating the facts as above set forth). To con- stitute an offence within the meaning of section 1G45, Mansfield's Digest, something of value must be obtained by means of a false pretence with the intent to defraud. To obtain goods with the intent to defraud is not enough. It must be accomplished bv a false pretence. By the terms of the statute the pretence must be false. And the doc- trine undoubtedly is, that if it is not false, though believed to be so by the person employing it, it is insufllcient. 2 Pish. Cr. Law. s. 417. The false pretence charged in this case is Asher's representation that the mortgage, upon the security of which he got the mules from Moore, was the first lien on the land. If the representation is true, there is no foundation for this prosecution, however reprehetisil)le Asher's motive may have been, because the false pretence would not be established. Now, construing all the allegations of the indictment together, is it shown 230 STATE V. ASHER, [CHAP. VI. that the representation was false ? It is charged that Asher had previ- ously executed a mortgage to his co-defendant, Fitzpatrick, for the full value of the land and that it was the prior lien ; but it is also charged that Fitzpatrick counselled Asher to make the representation that the land was free from incumbrance and aided him in obtainino- the mules from Moore on the faith of it. The demurrer admits that these allcga- tions are true. Being true, the legal conclusion is that Fitzpatrick waived the priority of his lien and is estopped from asserting it against Moore. Scott v. Orbison, 21 Ark. 202 ; Gill v. Hardin, 48 Ark. 412 ; Shields v. Smith, 37 Id. 47. Asher's representation that Moore's mortgage was the prior lien was therefore true. Moore got just what he bargained for, according to the allegations of the indictment, and he has not, therefore, been injured in any way. The statutory offence has not been committed. Morgan V. State, 42 Ark. 131. It is not, as counsel for the State argues, an attempt to have an offence condoned b}- repairing the injur}- done in its commission. There has been no criminal offence. !Moore might have been injured by the transaction if Fitzpatrick's mortgage-note had been negotiated according to the law merchant and assigned to an innocent holder for value before maturitv. But there is no allegation of the existence of either of these facts, and there is no presumption that that state of facts exists. People v. Stone, 11 Wheat. 182-190. Affirm. SECT. L] M'NAGHTEN'S CASE. 231 CHAPTER YII. IKTENT AS AFFECTED BY CIRCUMSTANCES. SECTION I. Insanity, (a) Test ok Insa.nitv. m'naghtp:n's case. Answer of tue Judges to the House of Lords. 1843. [Reported 10 Clark 4- Finnelly, 200.] The prisoner bad been indicted for the murder of Edward Drum- moud.^ The prisoner pleaded " Not guilty." Evidence having been given of the fact of the shooting of Mr. Druuiniond, and of his death in consequence thereof, witnesses were called on the part of the pris- oner to prove that he was not, at the time of committing the act, in a sound state of mind. Lord Chief Justice Tindal (in his charge). The question to be determined is, whether at the time the act in question was committed, the prisoner had or had not the use of his understanding, so as to know that he was doing a wrong or wicked act. If the jurors should be of opinion that tiie prisoner was not sensible, at the time he com- mitted it, that he was violating the laws both of God and man, then he would be entitled to a verdict in his favor : but if, on the contrary, they were of opinion that when he committed the act lie was in a sound state of mind, then their verdict must be against him. Verdict^ Not yuilti/, on the ground of insanity. This verdict, and the question of the nature and extent of the un- soundness of mind which would excuse the commission of a felony of this sort having been made the subject of debate in the House of Lords, it was determined to take the opinion of the judges on th.- law governing such cases. Accordingly the judges attinded tli'- House of Lords; when (no argument having l>eeu had) questions of law were propounded to them. Lord Chief Justice Tindal. My Lords, her Majesty's Judges (with the exception of Mr. Justice Maule, who has stated liis ojun- ion to your Lordships), in answering the questions proposed to thorn by your Lordships' House, think it riglit, in the first place, to slaU' J The statement of facts in this case hiu been uluidged. 232 m'naghten's case. [chap. vii. that they have forborne entering into any particular discussion upon these questions, from the extreme and almost insuperable difficulty of applying those answers to cases in which the facts are not brought judicially before them. The facts of each particular case must of necessity present themselves with endless variety, and with every shade of difference in each case ; and as it is their duty to declare the law upon each particular case, on facts proved before them, and after hearing argument of counsel thereon, they deem it at once impracti- cable, and at the same time dangerous to the administration of justice, if it were practicable, to attempt to make minute applications of the principles involved in the answers given by them to your Lordships' questions. They have therefore confined their answers to the statement of that which they hold to be the law upon the abstract questions proposed by your Lordships ; and as they deem it unnecessary, in this par- ticular case, to deliver their opinions seriatim, and as all concur in the same opinion, they desire me to express such their unanimous opinion to your Lordships. The first question proposed by your Lordships is this : " What is the law respecting alleged crimes committed by persons aflSicted with insane delusion in respect of one or more particular subjects or per- sons ; as, for instance, where at the time of the commission of the alleged crime the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delu- sion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit?" In answer to which question, assuming that your Lordships' in- quiries are confined to those persons who labor under such partial delusions only, and are not in other respects insane, we are of opinion that, notwithstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law ; by which expression we understand your Lordships to mean the law of the land. Your Lordships are pleased to inquire of us, secondly : " What are the proper questions to be submitted to the jury, where a person al- leged to be afflicted with insane delusion respecting one or more particular subjects or persons is charged with the commission of a crime (murder, for example), and insanity is set up as a defence?" And, thirdly: "In what terms ought the question to be left to the jury as to the prisoner's state of mind at the time when the act was committed?" And as these two questions appear to us to be more conveniently answered together, we have to submit our opinion to be, that the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason SECT. I.] M'XAGHTEN'S CASE. 233 to be responsible for his crimes, until tlie contrary be proved to their satisfaction ; and that to establish a defence on the ground of in- sanity, it must be clearly proved that, at the time of the committing of the act, the party accusetl was laboring under such a defect of reason, from disease of the mind, as not to know the nature and (juality of the act he was doing ; or, if he did know it, that he did not know he was doing what was wrong.' Tiie mode of putting the latter part of tlie question to the jury on these occasions has gener- ally been, whether the accused at the time of doing the act, knew the differonce between right and wrong : wliich mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate, when put generally and in tlie abstract, as when put with reference to the party's knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land, it migiit tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction , whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary' to the law of the land, he is punishable ; and the usual course therefore has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong ; and this course we think is correct, accompanied with such observa- tions and explanations as the circumstances of each particular case may require. The fourth question which your Lordships have proposed to us is this: '"If a person under an insane delusion as to existing facts commits an offence in consequence thereof, is he thereby excused?" To which question the answer must of course depend on the nature of the delusion ; but making the same assumption as we did before, namely, that he lal>ors under such partial delusions only, and is not in other respects insane, we think he must be considered in the same 1 " I tliink that any one would fall witliiu the description in question who was deprived by disease affecting the mind of the power of passing a rational judgment on the moral character of the act which he iiit-iiiiL to do. Siipjwse, for instance, that by reason of disease of the brain a man's mind is tilled with delusions which, if tnie, would not justify or excuse his projwsed act, but which in themselves are so wild and •wtonishing as to make it imjKJssible for hinj to rea.son alK)ut them cnlmly, or to reasou calmly on matters connected with them. Su|>|>ose, too, that the succession of insane thoughts of one kind and another is so rapid as to confuse him ; and finally, suppose that his will is weakened by his dis«'a.se, that he is une^jual to the effort of calm sustained thought upon any subject, and especially ujwu subjects connects with his delusion ; can he be said to know or have a capacity of knowing that the act which he proj)oses to do is wrong ' I should sav he could not." 2 Stephen Hist. Crim. Uw, 164. — Ed. 234 KEGINA V. HAYNES. [CHAP. VIL situation as to respousibilit}' as if the facts with respect to which the dehision exists were real. For example, if under the influence of his dehision he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self- defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.^ REGINA V. HAYNES. Winchester Assizes. 1859. [Reported 1 Foster ^- Finlayson, 666.] The prisoner, a soldier, was charged with the murder of Mary MacGowan, at the camp at Aldershott. The deceased was an "unfortunate woman" with whom the prisoner had been intimate, and was on the most friendly terms up to the moment of the commission of the offence. No motive was assigned for the perpetration of the act ; and general evidence was given that the prisoner, while in Canada, having seduced a young woman under a promise of marriage, which he had been unable to fulfil by reason of his regiment having been ordered home, his mind had been much affected by the circumstance.^ Bramwell, B.,to the jury. As to the defence of insanity set up for the prisoner, I will read you what the law is as stated by the judges in answer to questions put to them by the House of Lords. {Having done so.) It has been urged for the prisoner that you should acquit him on the ground that, it being impossible to assign any motive for the perpetration of the offence, he must have been acting under what is called a powerful and irresistible influence or homicidal tendency. But I must remark as to that that the circumstance of an act being apparently motiveless is not a ground from which you can safely infer ^ The answer to the fifth question is omitted. Maule, J. delivered a separate opinion, which he prefaced by stating that he felt great difficulty in answering the questions : first, because they did not ap])ear to arise out of a particular case, which might explain or limit the generality of their terms ; secondly, because he had heard no argument on the subject of the questions ; and thirdly, from a fear that the an- swers might embarrass the administration of justice, when they should be cited in criminal trials. In reply to the first question he said that " to render a person irre- sponsible for Clime on account of unsoundness of mind, the unsoundness should he. such as renders him incapable of knowing right from wrong." In reply to the second and third questions, he said that the matters referred to in them were entirely within the discretion of the judge trying the case. To the fourth question he gave the same answer as to the first. — Ed. * Part of the case, relating to another point, is omitted. SECT. I.] COMMONWEALTH V. KOGERS. 235 the existence of sucli an influence. ^Motives exist unknown and innu- merable which mi^ht prompt the act. A morbid and restless (but resistible) thirst for blood would itself be a motive urging to such a deed for its own relief ; but if an influence be so powerful as to be termed irresistible, so much the more reason is there why we sliould not withdraw any of the safeguards tending to counteract it. There are tliree powerful restraints existing, all tending to the assistance of the person who is suffering under such an influence, — the restraint of religion, the restraint of conscience, and the restraint of law. liut if the influence itself be held a legal excuse, rendering the crime dispun- ishable, you at once withdraw a jnost i)Owerful restraint, — that for- bidding and punishing its perpetration. We must therefore return to the simple question you have to determine, — did the prisoner know the nature of the act he was doing ; and did he know that he waf doing what was wrong? Guilty. Sentence, death. The prisoner was reprieved. -aX? ^ \* v^ COMMONWEALTH v. ROGERS. Supreme Judicial Court ok Massachusetts. 1844. [Reported 7 Metcalf, 500.] The defendant was indicted for the murder of Charles Lincoln, Junior, warden of the state prison, on the loth of June, 1843.' The evidence was full and uncontradicted that the defendant, at the time alleged in the indictment, was a prisoner in the state prison, and then and there killed the warden of the prison by stabbing him in the neck with a knife. The sole ground on which the defendant's counsel placed liis defence was that he was insane when he committed the homicide ; and most of the evidence, on both sides, related to this single point. The superintendents of several insane hospitals were witnesses in the case, and their testimony tended strongly to prove that the defendant, at the time of the homicide, was laboring under that species of insanity which is hereinafter commented on by the chief justice in the charge of the court to the jury. The opinion of the court on the law of the case was given in the following charge to the jury by Shaw, C. J. In order to constitute a crime, a person must have intelligence and capacity enough to have a criminal intent and pur- pose ; and if his reason and mental powers are either so deficient tiiat lie has no will, no conscience or controlling mental power, or if, through the overwhelming violence of mental disease his intellectual 1 Part of the ca.se, not involving a fjncstion (if in'^anify, is oinittc«L ( 236 COMMONWEALTH V. ROGERS. [CHAP. VII. power is for the time obliterated, be is not^a^res ^onsible moral agent , and is not punishable for criminal acts. But these are extremes easily distinguished, and not to be mistaken. The difficulty lies between these extremes, in the cases of partial insan- ity, where the mind may be clouded and weakened, but not incapable of remembering, reasoning, and judging, or so perverted by insane delusion as to act under false impressions and influences. In these eases, the rule of law, as we understand it, is this : A man is not to be excused from responsibility, if he has capacity and reason sufficient to enable him to distinguish between right and wrong as to the par- ticular act he is then doing, — a knowledge and consciousness that the act he is doing is wrong and criminal, and will subject him to punish- ment. In order to be responsible, he must have sufficient power of memory to recollect the relation in which he stands to others, and in which others stand to him ; that the act he is doing is contrary to the plain dictates of justice and right, injurious to others, and a violation of the dictates of duty. On the contrary, although he may be laboring under partial insanity, if he still understands the nature and character of his act, and its con- sequences ; if he has a knowledge that it is wrong and criminal, and a mental power sufficient to apply that knowledge to his own case, and to know that, if he does the act he will do wrong and receive pun- ishment, — such partial insanity is not sufficient to exempt him from responsibility for criminal acts. If, then, it is proved, to the satisfaction of the jury, that the mind of the accused was in a diseased and unsound state, the question will be whether the disease existed to so high a degree that for the time being it overwhelmed the reason, conscience, and judgment, and whether the prisoner, in committing the homicide, acted from an irresistible and uncontrollable impulse. If so, then the act was not the act of a voluntary agent, but the involuntary act of the body, without the concurrence of a mind directing it. The character of the mental disease relied upon to excuse the accused in this case is partial insanity, consisting of melancholy, accompanied by delusion. The conduct may be in many respects regular, the mind acute, and the conduct apparently governed by rules of propriety, and at the same time there may be insane delusion by which the mind is perverted. The most common of these cases is that of monomania^ when the mind broods over one idea and cannot be reasoned out of it. This may operate as an excuse for a criminal act in one of two modes : 1. Either the delusion is such that the person under its influence has a real and firm belief of some fact, not true in itself, but which, if it were true, would excuse his act, — as where the belief is that the party killed had an immediate design upon his life, and under that belief the insane man kills in supposed self-defence. A common instance is where he fully believes that the act he is doing is done by the immedi- ate command of God, and he acts under the delusive but sincere belief L^ ^ y js' a K\ y^ r^ \ SECT. I.] COMMONWEALTU V. ROGERS. 237 that what he is doing is by the command of a superior power which supersedes all huniau laws, and tlie laws of nature. 2. Or this state of delusion indicates to an experienced person that the mind is in a diseased state ; that the known tendency of that diseased state of the mind is to break out into sudden paroxysms of violence, venting itself in homicide or other violent acts towanls friend or foe indiscriminately; so that, ultliough there were no previous indications of violence, yet the subsequent act, connecting itself with the previous symptoms and indications, will enable an experienced person to say that the outbreak was of such a character that for the time being it must have overborne memory and reason ; that the act was the result of the disease and not of a mind capable of choosing ; in short, that it was the result of uncontrollable impulse, and not of a person acted upon by motives, and governed by the will. The questions, then, in the present case, will be these : 1. "Was there such a delusion and hallucination? 2. Did the accused act under a false but sincere belief that the warden had a design to shut him up, and, under that pretext, destroy his life ; and did he take this means to prevent it? 3. Are the facts of such a character, taken in connec- tion with the opinions of the professional witnesses, as to induce the jury to believe that the accused had been laboring for several days under monomania, attended with delusion ; and did this indicate such a diseased state of the mind that the act of killing the warden was to be considered as an outbreak or paroxysm of disease, which for the time being overwhelmed and superseded reason and judgment, so that the accused was not an accountable agent? If such was the case, the accused is entitled to an acquittal ; other- wise, as the evidence proves beyond all doubt the fact of killing, without provocation, by the use of a deadly weapon, and attended with circumstances of violence, cruelty, and barbarity, he must undoubtedly be convicted of wilful murder. The ordinary presumption is that a person is of sound mind until the contrary appears ; and in order to shield one from criminal respon- sibility, the presumption must be rebutted by proof of the contrary, satisfactory to the jury. Such proof may arise, either out of the evi- dence offered by the prosecutor to establish the case against the accused, or from distinct evidence, offered on his part ; in either case, it must be sufFicient to establish the fact of insanity ; otherwise, the presump- tion will stand. The jury, after being in consultation several hours, came into court, and asked instructions upon these two questions: " Must the jury be satisfied, beyond a doubt, of the insanity of the prisoner, to entitle him to an acquittal? And what degree of insanity will amount to a justification of the offence?" In answer to the first of these questions, the chief justice repeated bis former remarks on the same point, and added that if the prepou- 233 STATE V. RICHARDS. [CHAP. VIL derance of the evidence was in favor of the insanity of the prisoner, the jury would be authorized to find him insane. In answer to the second question, the chief justice added nothing to the instructions which he had previously given. The jury afterwards returned a verdict of " Not guilty, by reason of insanity." ^ STATE V, RICHARDS. Superior Court, Connecticut. 1873. [Reported 39 Connecticut, 591.] Information for burning a barn ; brought to the Superior Court for Windham County and tried to the jury, at its August term, 1873, on the plea of not guilty, before Seymour, J. The defence was that the prisoner had not sufficient mental capacity to be criminally responsible for the act. The charge of the judge, which sufficiently states the facts of the case, was as follows : — Seymour, J. The evidence seems ample to warrant j'ou in finding that the burning complained of was caused by the prisoner. Your attention has been turned mainlj' to the question whether the act was done with the felonious intent charged, and this question depends mainl}' upon another, whether the accused has sufficient mental capa- city to warrant us in imputing to him a felonious intent. That he is considerably below par in intellect is apparent to us alL This is indicated by his countenance and general appearance. The same thing is indicated b}' his extraordinary' conduct at the fire. As the flames were bursting out he was seen on all fours crawl- ing back from under the burning barn, with no clothing upon him except his shirt and trousers. The day was excessivel}' cold. He remained some half-hour, thus scantily clothed, gazing stupidly at the blaze, until ordered into the house. All this took place in broad day- light, in plain view of Mr. Gallup's house. But it is undoubtedly" true, as the attorney for the state contends, that mere inferiorit}' of intellect is no answer to the prosecution. We are, therefore, called upon in this case to decide an interesting and difficult question, to wit, whether the accused has sufficient mind to be held responsible as a criminal. * **To punish a homicide, committed by the insane victim of such delusion, and under its resistless influence, would be punishing for what every other man in the same condition would ever do, in defiance of all penal consequences ; and, therefore, such ])anishment would be useless and inconsistent with the preventive aim of all criminal jurisprudence."— Robert.son, J., in Smith v. Com., 1 Duv. 224. " Whether passim, or insanity was the ruling force and controlling agency which led to the homicide, — in other words, whether the defendant's act was the insane act of an unsound mind, or the outburst of violent, reckless, and uncontrolled passion, in a mind not diseased, — is the practical question which the jury should be told to deter- mine." — DIHlO^', C. J., in State v, Felter, 25 Iowa, 67. — Ed. SECT. I.] STATE V. RICHARDS, 239 lie is not a mere idiot, nor does he appear to be a lunatic. He suffers from want of mind ratlier than from derangement or delusion, and the fjuestion is whether the want of mind is sucli as to entitle him to acquittal on the ground of what in law is termed dementia. This inquiry is attended with inherent dilliculties. Our knowledge of our own minds is imperfect ; our knowledge of the precise mental condition of another is necessarily still more imperfect. We as triers are obliged to rely upon the evidence furnished us by witnesses whose means of knowledge are limited, and who find great dilliculty in com- municating to us, on a subject of this nature, what they do know. Our principal eml)arrassment arises, however, from the want of a definite measure of mental capacity. Eminent judges and learned commentators have attempted to furnish rules and tests for the guid- ance of triers in cases of this kind, but upon examination these rules and tests turn out to be imperfect and unsatisfactory. It was formerly thought that the jury might properly convict if the accused had any sense of right and wrong, or if he was aware that punishment would follow the commission of an offence. But children of very tender years have some sense of right and wrong, and fully understand that punishment will follow transgression. Such children are subjected b}* their parents to discipline, and are by gentle punishments restrained from wrong-doing ; but our sense of humanity would be greatly shocked at the thought of subjecting chil- dren to the penalties of statute law because some sense of right and wrong and fear of punishment had been developed in them. So, again, it is often said in the books that a person is to be deemed responsible for crime if he understands the consequences and effects of the act laid to his charge. This is undoubtedly and obviously true if he has such understanding and appreciation of consequences as per- tain to other men. But if he has less of it than is common to men in general, how much less must it be to escape responsibility? 1 think the accused had some knowledge of the consequences of his acts. He probabl}* knew that by igniting a match and throwing it into a hay-mow a fire would be kindled and that the barn would tiiereby be consumed. He perhaps also had some appreciation of the loss and destruction of property which would ensue. Hut I am not willing to say that some knowledge of consequences, however faint and imperfect, is suflicient to warrant you in convic^ ing the prisoner. I can give you no precise rule, but I think it / clear that if the prisoner's perception of consequences and eflfects Lwas only such as is common to children of tender years he ought to be acquitted. And this leads me to refer to the rule adopted by an eminent Eng- lish judge. Lord Hale. He reasoned that, inasmuch as children under fourteen years of age are prima facie incapable of crime, im- beciles ought not to be held responsible criminally unless of capacity equal to that of ordinary children of that age. 240 STATE V. RICHARDS. [CHAP. VIL If this test be adopted, the prisoner will upon the testimony be en- titled to an acquittal. The principal witnesses for the prosecution say that he is inferior in intellect to children of ten years of age, and sev- eral very intelligent witnesses for the defence testify that they are acquainted with many children of six years who are his superiors in mental capacity. I am inclined to recommend Lord Hale's rule to your adoption, not however without qualifications which I think it important to observe. And first, this test, like all others which I know of, is imperfect. Probably no two of us have the same idea of the capacity of children of fourteen years of age ; and then there is this further difficulty, that there can be no accurate comparison in detail between the healthy and properly balanced, though immature, mind of a child, and the un- healthy, abnormal, and shrivelled intellect of an imbecile. The com- parison therefore is only of the general result in their respective appreciation of right and wrong and of consequences and effects. This further consideration ought also to be borne in mind: that though in modern times persons under fourteen are seldom subjected to the penalties of the criminal code, yet in law children between seven and fourteen may be subjects of punishment if they are shown to be of sufficient capacity to commit crimes. In applying Lord Hale's rule therefore, the child to be taken as the standard ought not to be one who has had superior advantages of education, but should rather be one in humble life, with only ordinary training. And after all, gentlemen, you see that I can furnish j'ou with no definite measure of mental capacity to apply to the prisoner. The whole matter must be submitted to your sound judgment. You will say whether the prisoner has such knowledge of riglit and wrong, and such appreciation of the consequence and effects of his acts, as to be a proper subject of punishment. Opinions on this subject have been expressed by most of the witnesses who have testified. These opinions depend for their value mainly upon the facts with which they are connected. You have the advantage of being able to compare with each other all the facts which have been brought to your notice bear- ing upon the prisoner's mental condition. You will look carefully at all" these facts. The history of the prisoner's life is somewhat signifi- cant. From early childhood it has been spent in almhonses, sub- jected to constant constraint. In the most ordinary acts of his life he has been governed by the superior will of others to whose care he has been committed. He has, it appears, been seldom left to the free guidance of his own judgment. When so left, he seems to have acted without forecast, under the pressure of immediate wants and impulses. If you acquit the prisoner on the ground of want of mental capacity you will so say in your verdict, in order that the prisoner may in that event have the benefit under our statute of a home where he will be SECT. I.] FLANAGAN V. PEOPLE. 241 kindly cared for, but kept under such restraints as to prevent his doing injury to the persons or property of others. The jury acquitted the i)risoner, stating in their verdict that the acquittal was on the ground of want of mental capacity.* FLANAGAN v. PEOPLE Court of Appeals of New York. 1873. [Reported 52 New York, 467.] Andrevts, J. The judge, among other things, charged the jury that, "to estabhsh a defence on the ground of insanity, it must be clearly proven that, at the time of committing the act (the subject of the in- dictment), the party accused was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing ; and, if he did know it, that he did not know he was doing wrong ; " and to this part of the charge the prisoner, by his counsel, excepted. The part of the charge excepted to was in the language employed by TiNDAL, C. J., in McNaghten's Case, 10 Clarke & Fin. 210, in the response of the English judges to the questions put to them by the House of Lords as to what instructions should be given to the jury, on a trial of a prisoner charged with crime, when the insane delusion of the prisoner, at the time of the commission of the alleged act, was interposed as a defence. All the judges, except one, concurred in the opinion of Tindal, C. J., and the case is of the highest authority ; and the rule declared in it has been adhered to by the P^nglish courts. Maule, J., gave a separate opinion, in which he declared that, to render a person irresix)nsible for crime on account of unsoundness of mind, the unsoundness should, according to the law, as it has long been understood and held, be such as to render him incapable of knowing right from wrong. In the case of The People v. Bodine, 4 Denio, 9, the language of Tindal, C. J., in the McNaghten Case, was quoted and approved ; and Beardsley, J., said : " Where insanity is interposed as a defence to an ioclictraent for an alleged crime, the inquiry is always brought down to the single question of a capacity to distinguish between right and wrong at the time the act was done." The rule was reaffirmed in the case of Willis v. The People, 32 N. Y., 717, and it must be regarded as the settled law of this State, that the test of responsibilit}' for criminal acts, where unsoundness of mind is interposed as a defence, is the capacity' of the defendant to distinguish 1 See Wartena v. State, 105 Ind. 445, 5 N. E. 20. — Ed. 16 ^ 242 PAUSONS V. STATE. [CHAP. VIL between right and wrong at the time of and with respect to the act which is the subject of the inquiiy. We are asked in this case to introduce a new element into the rule of criminal responsibility in cases of alleged insanit}-, and to hold that the power of choosing right from wrong is as essential to legal respon- sibilit}' as the capacit}' of distinguishing between them ; and that the absence of the former is consistent with the presence of the latter. The argument proceeds upon the theory that there is a form of insanity in which the faculties are so disordered and deranged that a man, though he perceives the moral quality of his acts, is unable to control them, and is urged by some mysterious pressure to the com- mission of acts, the consequences of which he anticipates but cannot avoid. Whatever medical or scientific authority there may be for this view, it has not been accepted b}- courts of law. The vagueness and uncertainty of the inquiry which would be opened, and the manifest danger of introducing the limitation claimed into the rule of responsibility in cases of crime, may well cause courts to pause before assenting to it. Indulgence in evil passions weakens the restraining power of the will and conscience ; and the rule suggested would be the cover for the commission of crime and its justification. The doctrine that a criminal act ma}' be excused upon the notion of an irresistible impulse to com- mit it, where the offender has the ability to discover his legal and moral duty in respect to it, has no place in the law. Rolfe, B., in Rogers v. AUunt, where, on the trial of an indictment for poisoning, the defend- ant was alleged to have acted under some moral influence which he could not resist, said : " Ever}' crime was committed under an influence of such a description ; and the object of the law was to compel people to control these influences." Judgment affirmed. PARSONS V. STATE. Supreme Court of Alabama. 1886. [Reported 81 Ala. 577.] SoMERviLLE, J.^ In this case the defendants have been convicted of the murder of Bennett Parsons, b}^ shooting him with a gun, one of the defendants being the wife and the other the daughter of the deceased. The defence set up in the trial was the plea of insanit}', the evidence tending to show that the daughter was an idiot, and the mother and wife a lunatic, subject to insane delusions, and that the killing on her part was the offspring and product of those delusions. ^ Part only of the opinion is given. The dissenting opinion of Stone, C. J., is omitted. SECT. I.] PARSONS V. STATE. 243 The rulings of the court raise some questions of no less diniculty than of interest, fur, as observed by a disliiiguished American judge, "of all niedieo-legal qufstious, tho.->e connecleil wiLli insanity are the most dillleult and perplexing." (Per Dillon, C. J., in State /'. Felter, 25 Iowa, G7.) It has become of late a matter of comment among intel- lijxent men, ineludiu'' the nu^st advanceil thinkers in tlie medical and legal profi'ssions, tliat tlie deliverances of tlie law courts <^n this branch of our jurisprudence have not heretofore been at all satisfactory, either in the soundness of their theories, or in their practical ap[)lication. The earliest English decisions, striving to establish rules and tests on the subject, including alike the legal rules of criminal ami civil resimn- sibility, and the supposed tests of the existence of the disease of insanity itself, are now admitted to have been deploraldy erroneous, and, to say nothing of their vacillating character, have long since been al)andoned. The views of the ablest of the old text writers and sages of the law were equally confused and uncertain in the treatment of these subjects, and they are now entirely exploded. Time was in the history of our laws that the veriest lunatic was debarred from pleading his provitlen- tial artlictiou as a defence to his contracts. It was said, in justification of so absurd a rule, that no one could be permitted to stultify himself b}' pleading his own disability. So great a jurist as Lord Coke, in his attempted classification of madmen, laid down the legal rule of criminal responsibility to be that one should " wholly have lost his memory and understanding;" as to which Mr. Erskine, when defending Iladfield for shooting the king, in the year 1800, justly obserAcd : "No such madman ever existed in the world." After this great and historical case, the existence of delusion promised for a while to become the sole test of insanity, and acting under the duress of such delusion was recognized in effect as the legal rule of responsibility. Lord Kcnyon, after ordering a verdict of acquittal in that case, declared with em|>ha- 81S that there was " no doubt on earth " the law was correctly stated in the argument of counsel. But, as it was soon discovered that insanity often existed without delusions, as well as delusions without insanity, this view was also abandoned. Lord Hale had before declared that the rule of responsibility was measured by the mental capacity {wssessed by a child fourteen years of age ; and Mr. Justice Trac}', and otiier judges, had ventured to decide that, to l>e non-punishable for alleged acts of crime, "a man must be totally deprived of his understanding and memory, so as not to know what he was doing, no more than an infant, a brute, or a wild beast." (Arnold's Case, 16 How. St. Ti. 764.) All these rules have neccssaril}' Iwen discarded in moility shall be adlicrod to based on theories of physicians promulgated a hundred years ago, which refuse to recognize any evi- dence of insanity except the single test of mental capacity to dis- tinguish right and wrong, or whether the courts will recognize as a possible fact, if capable of proof by clear and satisfactory testimony, the doctrine, now alleged by those of the medical profession who have made insanity a special subject of investigation, that the old test is wrong, and that there is no single test by which the existence of the disease, to that degree which exempts from punishment, can in every 246 PARSONS V. STATE. [CHAP, VII. case be infallibl}- detected. The inquiry must not be undnl}- obstructed bv the doctrine of stare decisis., for the life of the common law system and the hope of its permanency consist largely in its power of adap- tation to new scientific discoveries, and the requirements of an ever advancing civilization. There is inherent in it the vital principle of juridical evolution, which preserves itself by a constant struggle for approximation to the highest practical wisdom. It is not like the laws of the Medes and Persians, which couhl not he changed. In establish- ing any new rule, we should strive, however, to have proper regard for two opposite aspects of the subject, lest, in the words of Lord Hale, "on one side there be a kind of inhumanity towards the defects of human nature ; or, on the other, too great indulgence to great crimes." It is everywhere admitted, and as to this there can be no doubt, that an idiot, lunatic, or other person of diseased mind, who is afflicted to such extent as not to know whether he is doing right or wrong, is not punishable for any act which he maj' do while in that state. Can the courts justly say, however, that the only test or rule of responsibility in criminal cases is the power to distinguish right from wrong, whether in the abstract, or as applied to the particular case ? Or may there not be insane persons of a diseased brain, who, while capable of perceiving the difference between right and wrong, are, as matter of fact, so far under the duress of such disease as to destroj- the po7cer to choose between right and wrong? Will the courts assume as a fact, not to be rebutted by any amount of evidence, or any new dis- coveries of medical science, that there is, and can be, no such state of the mind as that described b}' a writer on psychological medicine, as one " in which the reason has lost its empire over the passions, and the actions bv which the}- are manifested, to such a degree that the indi- vidual can neither repress the former, nor abstain from the latter " ? Dean's Med. Jur. 497. Much confusion can be avoided in the discussion of this subject by separating the duty of the jury from that of the court in the trial of a case of this character. The province of the jury is to determine facts, that of the court to state the law. The rule in McNaghten's Case arro- gates to the court, in legal effect, the right to assert, as matter of law, Ihe following propositions : — 1. That there is but a single test of the existence of that degree of insanit}-, such as confers irresponsibilitv for crime. 2. That there does not exist any case of such insanity in which that single test — the capacity to distinguish right from wrong — does not appear. .3. That all other evidences of alleged insanity, supposed by physicians and experts to indicate a destruction of the freedom of the human will and the irresistible duress of one's actions, do not destroy his mental capacity to entertain a criminal intent. The whole difficulty, as justly said by the Supreme Judicial Court of New Hampshire, is that "courts have undertaken to declare that to SECT. I.] PARSONS V. STATE. 247 be law which is matter of fact." "If" observes the sfimc court, " tlic tests of insanity arc matters of law, the practice of allowing experts to testify what they arc should be discontinued ; if they are matters of fiict, the judge should no longer testify witiiout being sworn as a witness, and showing himself to be qualified to testify as an expert." State V. Tike, VJ N. II. 3'jy. We first consider what is the proper legal rule of responsibility in criminal cases. No one can deny that there must be two constituent elements of legal responsibility in the commission of every crime, and no rule can be just and reasonable whicli fails to recognize either of them : (1) capacity of intellectual discrimination ; and (2) freedom of will. Mr. Wharton, after recognizing this fundamental and oljvious principle, obser%es : " If there be either incapacit}' to distinguish between right and wrong as to the particular act, or delusion as to the act, or inability to refrain from doing the act, there is no responsil)ility." 1 Whar. Cr. Law (Dth cd.), § 33. Says Mr. Bishop, in discussing this subject: "There can- not be, and there is not, in any locality, or age, a law punishing men for what they cannot avoid." 1 Bish. Cr. Law (7th ed.), § 383*. If, therefore, it be true, as matter of fact, that the disease of insanity can, in its action on the human bruin through a shattered nervous organiz,ation, or in any other mode, so affect the mind as to subvert the freedom of the will, and thereby destroy the power of the victim to choose between the right and wrong, altliough he perceive it, — by which we mean the power of volition to adhere in action to tlie right and abstain from the wrong, — is such a one criminally resi)onsil)le for an act done under the inthience of such controlling disease? We clearly think not ; and such we believe to be the just, reasonable, and humane rule towanls which all the modern authorities in this country, legislation in England, and the laws of other civilized countries of the world, are gradnall}', but surely tending, as we shall further on attempt more fully to show. We next consider the question as to the^>ro/>aWti existence of such a disease, and the test of its presence in a given case. It will not do for the courts to dogmatically deny the possible exist- ence of such a disease, or its pathological and psychical effects, because this is a m.atter of evidence, not of law, or judicial cognizance. Its existence, and etTect on the mind and conduct of the patient, is a ques- tion of fact to be proved, just as much as the possible existence of cholera or yellow fever formerl}' was before these diseases became the subjects of common knowledge, or the effects of delirium from fever, or intoxication from opium and alcoholic stimulants would be. The courts could, with just as much propriety years ago, have denied the existence of the Copernican system of the universe, the efficacy of steam antl electricity as a motive jx)wer, or the possibility of communication in a few moments between the continents of P'urope and America by the magnetic telegraph, or that of the instantaneous transmission of tli« human voice from one e etlueed, the feeling of right and wrong may be proved to CKist." " With regard to this test," says Dr. Russell Reynolds, in his work on "The Scientific Value of the Legal Tests of Lisanity," p. 34 (London, 1872), "I may say, and most emphatically, that it is utterly untrustworthy, because untrue to the obvious facts of Nature." Li the learned treatise of Drs. Bucknill and Tuke on " Psychological Medicine," p. 269 (4th ed. London, 1879), the legal tests of respon- sibility are discussed, and the adherence of the courts to the right and wrong test is deplored as unfortunate, the true principle being stated to be " whether, in consequence of congenital defect or acquired disease, the potcer of self-control is absent altogether, or is so far wanting as to render the individual irresponsible." It is observed by the authors : " As has again and again been shown, the unconsciousness of right and wrong is one thing, and the powerlessness through cerebral defect or disease to do right is another. To confound them in an asylum would have the effect of transferring a considerable number of the inmates thence to the treadmill or the gallows." Dr. Peter Bryce, Superintendent of the Alabama Insane Hospital for more than a quarter-century past, alluding to the moral and disciplinary treatment to which the insane inmates are subjected, observes : " They are dealt with in this institution, as far as it is practicable to do so, as rational beings ; and it seldom happens that we meet with an insane person who cannot be made to discern, to some feeble extent, his duties to himself and others, and his true relations to society." Sixteenth Annual Rep. Ala. Insane Hosp. (1876), p. 22; Biennial Rep. (1886), pp. 12-18. Other distinguished writers on the medical jurisprudence of insanity have expressed like views, with comparative unanimity. And nowhere do we find the rule more emphatically condemned than by those who have the practical care and treatment of the insane in the various lunatic asylums of every civilized country. A notable instance is founil in the following resolution unanimously passed at the annual meeting of the British Association of medical ollicers of Asylums and IlospiUils for the insane, held in London, July 14, 1864, where there were present fifty-four medical officers : — " Resolved, That so much of the legal test of the mental condition of an alleged criminal lunatic as renders him a responsilile agent, because be knows the difference between rigrht and wronij. is inconsistent with 250 PARSONS V. STATE. [CHAP. VII. the fact, well known to everj' member of this meeting, that the power of distinguishing between right and wrong exists very frequently in those who are undoubtedly insane, and is often associated with dan- gerous and uncontrollable delusions." Judicial Aspects of Insanity (Ordronaux, 1877), 423-424. These testimonials as to a scientific fact are recognized by intelligent men in the affairs of every-day business, and are constantly acted on by juries. They cannot be silently ignored by judges. Whether estab- lished or not, there is certainly respectable evidence tending to establish it, and this is all the courts can require. Nor are the modern law writers silent in their disapproval of the alleged test under discussion. It meets with the criticism or condem- nation of the most respectable and advanced in thought among them, the tendency being to incorporate in the legal rule of responsibility "not only the knov)ledge of good and evil, but the -power to choose the one, and refrain from the other." Browne's Med. Jur. of Insanity, §§ 12, et seq., § 18 ; Ray's Med. Jur. §§ 16-19 ; Whart. & Stilles' Med. Jur. § 59; 1 Whart. Cr. Law (9th ed.), §§ 33, 43, 45; 1 Bish. Cr. Law (7th ed.), § 386 et seq.; Judicial Aspects of Insanity (Ordronaux), 419 ; 1 Green. Ev. § 372 ; 1 Steph. Hist. Cr. Law, § 168 ; Amer. Law Rev. vol. iv. (1869-70), 236 et seq. The following practicable suggestion is made in the able treatise of Balfour Browne above alluded to; "In a case of alleged insanity, then," he says, " if the individual suffering from enfeeblcment of intel- lect, delusion, or any other form of mental aberration, was looked upon as, to the extent of this delusion, under the influence of duress (the dire duress of disease), and in so far incapacitated to choose the good and eschew the evil, in so far, it seems to us," he continues, " would the requirements of the law be fulfilled ; and in that way it would afford an opening, by the evidence of experts, for the proof of the amount of self-duress in each individual case and thus alone can the criterion of law and the criterion of the inductice scierice of medical psychology be made to coincide:' Med. Jur. of Ins. (Browne), § 18. This, in our judgment, is the practical solution of the difficulty before us, as it preserves to the courts and the juries, respectively, a harmo- nious field for the full assertion of their time-honored functions. So great, it may be added, are the embarrassments growing out of the old rule, as expounded by the judges in the House of English Lords, that, in March, 1874, a bill was brought before the House of Commons, supposed to have been drafted by the learned counsel for the Queen, Mr. Fitzjames Stephen, which introduced into the old rule the new element of an absence of the power of self-control, produced by diseases affecting the mind ; and this proposed alteration of the law was cordially recommended by the late Chief Justice Cockburn, his only objection being that the principle was proposed to be limited to the case of homi- cide. 1 Whart. Cr. Law (9th ed.), § 45, p. ^Q, note 1 ; Browne's Med. Jur. of Insan. § 10, note 1. SECT. I.] PARSONS V. STATE. 251 There are many well considorcd cases which support these views.' The law of Scotland is in accord with the English law on this subject, as might well be expected. The Criminal Code of Oerinany, however, contains the following provision, which is said to have been the formu- lated result of a very able discussion both by thi' physicians and lawyers of that cotuitry : "There is no criniiiial act wlien the actor at tli(! time of the offence is in a state of unconsciousness, or morbid disturl)- ance of the mind, through which the free determination of his tnill is excluded." Encyc. Brit. (0th ed.), vol. ix. p. 112 ; citing Crim. Code of Germany (^< r)l,"R. G. B.). The Code of France provides : " There can be no crime or offence if the accused was in a state of madness at the time of the act." For some time the French tribunals were inclined to interpret this law in such a manner as to follow in su])stance the law of F^ngland. But that construction has been abandoned, and the modern view of the medical profession is now adopted in that country. It is no satisfactory objection to say that the rule above announced by us is of difficult application. The rule in McNaghten's Case, supra, is equally obnoxious to a like criticism. The difficulty does not lie in the rule, but is inherent in the sul)jeet of insanity itself. The practical trouble is for the courts to determine in what particular cases the part\- on trial is to be transferred from the catesjorv of sane to that of insane criminals, — where, in other words, the border line of punishability is adjudged to be passed. But, as has been said in reference to an everj-- day fact of Natin-e, no one can say where twilight ends or begins, but there is ample distinction nevertheless between dai/ and night. We think we can safely rely in this matter upon the intelligence of our juries, guided by the testimonv of men who have practically made a stud}- of the disease of insanit}', and enlightened b}- a conscientious desire, on the one hand, to enforce the criminal laws of the land, and on the other, not to deal harshly with an\' unfortunate victim of a diseased mind, acting without the light of reason, or the power of volition. It is almost needless to add that where one does not act under the duress of a diseased mind, or insane delusion, but from motives of anger, revenge, or other passion, he cannot claim to be shielded from piniishment for crime on tlie ground of insanity. Insanity proper is more or less a mental derangement, coexisting often, it is true, with a disturbance of the emotions, affections, and other moral powers. A mf^re moral, or emotional insanity, so-called, unconnected with disease of the mind, or irrcsistil)le impulse resulting from mere moral obliquity, or wicked propensities and habits, is not recognized as a defence to crime in our courts. 1 Whar. Cr. Law (9th ed.), § 46 ; Boswell v. State, 63 Ala. 307, 35 Amer. Rep. 20 ; Ford v. State, 71 Ala. 385. The charges refused by the court raise the question as to how far * The consideration of certain authorities on the subject is omitted. 252 PARsoys V. state. [chap. vii. one acting under the influence of an insane delusion is to be exempted from criminal accountability. The evidence tended to show that one of the defendants, Mrs. Nancy J. Parsons, acted under the influence of an insane delusion that the deceased, whom she assisted in killing, possessed supernatural power to afflict her with disease, and to take her life by some "supernatural trick;" that by means of such power the deceased had caused defendant to be in bad health for a long time, and that she acted under the belief that she was in great danger of the loss of her life from the conduct of deceased operating by means of such supernatural power. The rule in McNaghten's Case, as decided by the English judges, and supposed to have been adopted by the court, is that the defence of insane delusion can be allowed to prevail in a criminal case only when the imaginary state of facts would, if real, justify or excuse the act ; or, in the language of the English judges themselves, the defendant " must be considered in the same situation as to responsibility, as if the facts with respect to which the delusion exists were real." Boswell's case, 63 Ala. 307. It is apparent, from what we have said, that this rule cannot be correct as applied to all cases of this nature, even limiting it, as done by the English judges, to cases where one "labors under partial delusion, and is not in other respects insane." McNaghten's Case, 10 CI. & F. 200 ; s. c. 2 Lawson's Cr. Def. 150. It holds a par- tially insane person as responsible as if he were entirely sane, and it ignores the possibility of crime being committed under the duress of an insane delusion, operating upon a human mind, the integrity of which is destrojed or impaired by disease, except, perhaps, in cases where the imaginary state of facts, if real, would excuse or justify the act done under their influence. Fields' Med. Leg. Guide, 101-104 ; Guy & F. on Forensic Med. 220. If the rule declared by the English judges be correct, it necessarily follows that the only possible instance of excusable homicide in cases of delusional insanity would be where the delusion, if real, would have been such as to create, in the mind of a reasonable man, a just apprehension of imminent peril to life or limb. The personal fear, or timid cowardice of the insane man, although created by disease acting through a prostrated nervous organization, would not excuse undue precipitation of action on his part. Nothing would justify assailing his supposed adversary except an overt act, or demonstration on the part of the latter, such as, if the imaginary facts were real, would under like circumstances have justified a man perfectly sane in shooting or killing. If he dare fail to reason on the supposed facts embodied in the delusion, as perfectly as a sane man could do on a like state of realities, he receives no mercy at the hands of the law. It exacts of him the last pound of flesh. It would follow also, under this rule, that the partially insane man, afflicted with delusions, would no more be excusable than a sane man would be, if, perchance. It was by his fault the difficulty was provoked, whether by word or deed ; or, if, in fine, he may have been so negligent as not to have declined combat, SECT. I.] PARSONS V. STATE, 253 when he could do so safel}- without increasing his peril of life or limb. If this has been the law heretofore, it is time it should be so no longer. It is not onlj' opposed to the known facts of modern medical science, but it is a hard and unjust rule to be applied to the unfortunate and providential victims of disease. It seems to be little less than inhu- mane, and its strict enforcement would prol)ably transfer a large per- centage of the inmates of our Insane Hospital from that institution to hard labor in the mines or the penitentiary. Its fallacy consists in the assumption that no other phase of delusion proceeding from a diseased brain can so destroy the volition of an insane person as to render him powerless to do what he knows to be right, or to avoid doing what he may know to be wrong. This inquiry, as we have said, and here repeat, is a question of fact for the determination of the jury in each particular case. It is not a matter of law to be decided by the courts. We think it suOicicnt if the insane delusion — by which we mean the delusion proceeding from a diseased mhid — sincerely exists at the time of committing the alleged crime, and the defendant believing it to be real, is so influenced by it as either to render him incapable of perceiv- ing the true nature and quality of the act done, by reason of the depra- vation of the reasoning faculty, or so subverts his will as to destroy his free agency by rendering him powerless to resist by reason of the duress of the disease. In such a case, in other words, there must exist either one of two conditions: (1) such mental defect as to render the defend- ant unable to distinguish between right and wrong in relation to the particular act ; (2) the overmastering of defendant's will in consequence of the insane delusion under the influence of which he acts, produced by disease of the mind or brain. Rex v. Hadfield, 37 How. 8t. Tr. 1282 ; s. c, 2 Lawson's Cr. Def. 201 ; Roberts y. Stote, 3 Ga. 310 ; Com. V. Rogers, 7 Met. 500; State v. Windsor, 5 Harr. 512; Buswell on Insan. §§ 434, 440 ; Amer. Law Review, vol. iv. (1869-70) pp. 236-252. In conclusion of this branch of the subject, that we may not be mis- understood, we think it follows very clearly from what we have said that the inquiries to be submitted to the jury, then, in every criminal trial where the defence of insanit}' is interposed, are these : — 1. Was the defendant at the time of the commission of the alleged crime, as matter of fact, afflicted with a disease oftlie mind, so as to be either idiotic, or otherwise insane? 2. If such be the case, did he know right from wrong as applied to the particular act in question? If he did not have such knowledge, he is not legally responsiitle. 3. If he did have such knowledge, he mav nevertheless not be legallv responsible if the two following conditions concur: (1) If, by reason of the duress of such mental disease, he had so far lost the power to choose between the right and wrong, and to avoid doing the act in question, as that his free agency was at the time destroyed. (2) And if, at the same time, the alleged crime w.as so coniu'ot«'(l with such mont-il disease, in the relation of cause and elfect. as to have been the product of it solely. 25-4 PAKSONS V. STATK [CHAP. VII. The rule announced in Boswell's Case, 63 Ala. 308, supra, as stated in the fourth head note, Is in conflict with the foregoing conclusions, niid to that extent is declared incorrect, and is not supported by the > opinion in that case, otherwise than by dictum. J We adhere, however, to the rule declared by this court in Boswell's case, supra, and followed in Ford's Case, 71 Ala. 385, holding that when insanity is set up as a defence in a criminal case, it must be established to the satisfaction of the jury b}' a preponderance of the evidence ; and a reasonable doubt of the defendant's sanit}-, raised by tx all the evidence, does not authorize an acquittal. T The judgment is reversed, and the cause remanded. In the mean- ^1 while the prisoners will be held in custody until discharged b}' due process of law. Stone, C. J., dissents in part Note on the Test of Insanity. The test of insanity laid down by the judges iu McNaghten's Case, supra (usually known as "the knowledge of right and wrong ," test"), prevails in many jurisdictions, and "irresistible impulse" is held not to be f such insanity as will excuse from crime. U. S. v. Shults, 6 McLean, 121 ; U. S. i?. t\ /^oung, 25 F. R. 710 ; People v. Hoin, 62 Cal. 120; U. S. j;. Guitean, 10 F. K. 161 ^ ' (D. C.) ; Brinkley v. State, 58 Ga. 296 ;' State v. Mowry, 37 Kas. 369, 15 Pac. 282; ^ / State u. Scott, 41 Minn. 365 (but see State v. Shippey, 10 Minn. 223; State v. Erb, \ ^ / 74 Mo. 199 ; Flanagan v. People, 52 N. Y. 467 {sicpra) ; State v. Brandon, 8 Jones, 463 ; State V. Murray, 11 Or. 413, 5 Pac. 55 ; Leache v. State, 22 Tex. App. 279, 3 S. W. 539 (semble). See Andersen v. State, 43 Conn. 514. Other jurisdictions, starting with the same "right and wrong" test, hold the view that the test is satisfied and the defendant excused if he acted because of an irresistible impulse, and not as a free agent. Cora. v. Rogers, 7 Met. 500 (supra) ; Bovard i;. State, 30 Miss. 600 ; Brown v. Com., 78 Pa. 122. Still other jurisdictions discard altogether the "right and wrong" test, and hold > , that irresistible impulse is an excuse, though the knowledge of right and wrong existed. ;^ \ State V. Windsor, 5 Harr. 512 ; Dacey v. People, 116 111. 555 ; Plake v. State, 121 Ind. 433 ; State v. Felter, 25 Iowa, 67 ; Smith v. Com., 1 Duv. 224 ; Blackburn v. State, 23 Ohio St. 146; Dejamette v. Com., 75 Va. 867. The doctrine of the Alabama and New Hampshire courts, that there is no legal test of insanity, is stated in the case of Parsons v. State, 81 Ala. 577 (supra), follow- ing the opinion of Doe, J., in State v. Pike, 49 N. H. 399. See also People v. Finley, 38 Mich. 482. SECT. 1.J PEOPLE V. GARBUTT. 255 SECTION I. {continued), (b) Peoof of Insanity. PEOPLE V. GAKBUTT. Supreme Coukt ov Michigan. 1868. [Reported 17 Michiyun, 9.] CooLET, C. J.' The defendant's counsel requested the court to charge the jury that sanity is a necessary element in the conimissiou of crime, and must be proved by the prosecution as a part of their case whenever the defence is insanity. Also, that where the defence makes proof of Insanity, partial or otherwise, whenever it shall be made to appear from the evidence that prior to or at the time of the offence charged, the prisoner was not of sound mind, but was afilicted with Insanity, and such attiictiou was the eflicient cause of the act, he ought to be acquitted by the jury. These requests were refused. It is not to be denied that the law applicable to cases of homicide, where insanity is set up as a defence, is left in a great deal of confu- sion upon the authorities ; but this, we conceive, springs mainly from the fact that courts have sometimes treated the defence of insanity as if it were in the nature of a special plea, by which the defendant con- fessed the act charged, and undertook to "avoid the consequences by showing a substantive defence, wliich he was bound to make out by clear proof. The burden of proof is held by such authorities to shift from the prosecution to the defendant when the alleged insanity comes in question ; and wliile the defendant is to be acquitted unless the act of killing is established beyond reasonable doubt, yet when that fact is once made out, he is to be found guilty of the criminal intent, unless by his evidence he establishes with the like clearness, or at least by a preponderance of testimony, that he was incapable of criminal intent at the time the act Avas done. Regina v. Taylor, 4 Cox C. C. 155 ; Regina v. Stokes, 3 C. & K. 188 ; State v. Brinyea, 5 Ala. 244; State v. Spencer, 1 Zab. 202; State v. Stark, 1 Strob. 479. These cases overlook or disregard an important and necessary ingre- dient in the crime of murder ; and they strip the defendant of tliat presumption of innocence which the humanity of the law casts over him, and which attends him from tlie initiation of the proceedings until the verdict is rendered. Thus, in Regina r. Taylor, supra, it is said : "In cases of insanity there is one cardinal rule never to be departed from, — viz., that the burden of proving innocence rests on the party accused." And in State r. Spencer, snjrrn, the rule is laid down thus: "Where it is admitted or clearly proved that the prisoner com- * Only so much of the opinion is given as relates to the proof of insanity. 256 PEOPLE V. GAKBUTT. [CHAP. VIL mitted the act, but it is insisted that he was insane, and the evidence leaves the question of insanity in doubt, the jury ought to find against him. The proof of insanity at the time of committing the act ought to be as clear and satisfactory, in order to acquit a prisoner ou the ground of insanity, as proof of committing the act ought to be in order to find a sane man guilty." These cases are not ambiguous, and, if sound, they more than justify the Recorder in his charge in the case before us. The defendant was on trial for murder. Murder is said to be committed when a person of sound mind and discretion unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied. 3 Coke Inst. 47 ; 4 Bl. Com. 195 ; 2 Chit. Cr. L. 724. These are the ingredients of the offence : the unlawful killing, by a person of sound mind, and with malice ; or, to state them more concisely, the killing with criminal intent, — for there can be no criminal intent when the mental condition of the party accused is such that he is incapable of forming one. These, then, are the facts that are to be established by the prosecu- tion in every case where murder is alleged. The killing alone does not in any case completely prove the offence, unless it was accom- panied with such circumstances that malice in law or in fact is fairly to be implied. The prosecution takes upon itself the burden of estab- lishing not only the killing, but also the malicious intent in every case. There is no such thing in the law as as^eparation of the ingredients of the offence, so as to leave a part to be established by the prosecution, while as to the rest the defendant takes upon himself the burden of proving a negative. The idea that the burden of proof shifts in these cases is unphilosophical, and at war with fundamental principles of criminal law. The presumption of innocence is a shield to the defend- ant throughout the proceedings, until the verdict of the jury establishes the fact that beyond a reasonable doubt he not only committed the act, but tliat he did so with malicious intent. It does not follow, however, that the prosecution at the outset must give direct proof of an actual malicious intent on the part of the de- fendant, or enter upon the question of sanity before the defendant lias controverted it. The most conclusive proof of malice will usually spring from the circumstances attending the killing, and the prosecu- tion could not well be required in such cases to go further than to put those circumstances in evidence. And on the subject of sanity, that condition being the normal state of humanity, the prosecution are at liberty to rest upon the presumption that the accused was sane, until that presumption is overcome by the defendant's evidence. The pre- sumption establishes, prima facie, this portion of the case on the part of the government. It ^stands in the place of the testimony of wit- nesses, liable to be overcome in the same way. Nevertheless it is a part of the case for the government ; the fact which it supports must necessarily be established before any conviction can be had ; and when SECT. I.] PEOPLE V. GAKBUTT. 257 the jury come to consider the wliole case upon the evidence delivered to them, they must do so upon the biisis that on each and every por- tion of it they are to be reasonably satisfied before they are at liberty to find the defendant guilty. This question of the burden of proof as to criminal intent was con- sidered by tiiis court in the case of IMalier r. The reoi)le, 10 Mich. 212 ; and a rule was there laid down which is entirely satisfactory to us, and which we have no disposition to qualify in any manner. Applying that rule to the present case, we think that the Recorder did not eiT in refusing to charge that proof of sanity must be given by the prosecu- tion as a part of their case. They are at liberty to rest upon the presumption of sanity until proof of the contrary condition is given by the defence. Hut when any evidence is given which tends to over- throw that presumption, the jury are to examine, weigh, and pass upon it with the understanding that although the initiative in presenting the evidence is taken by the defence, the burden of proof upon this part of the case, as well as upon the other, is upon the prosecution to establish the conditions of guilt. Upon this point the case of People V. McCann, 16 N. Y. 58, is clear and satisfactory, and the cases of Commonwealth v. Kimball, 24 Pick. 373 ; Commonwealth v. Dana, 2 Met. 3-40 ; State v. ]Marler, 2 Ala. 43 ; Commonwealth v. McKie, I Gray, 61 ; Commonwealth v. Rogers, 7 Met. 500, and Hopps v- People, 31 111. 385, may be referred to in further illustration of the principle. See also Doty v. State, 7 Blackf. 427. The recent case of Walter v. People, 32 N. Y. 147, does not overrule the case of People v. McCann, but, so far as it goes, is entirely in harmony with the views here expressed. Note on Burden of Proof of Insanity. —In most jurisdictions the bunlcn is upon the accused to prove his insanity by a preponderance of evidence. U. S. v. Ridge- way, 31 F. R. 144; Parsons v. State, 81 Ala. 577, 2 So. 854 {supra); Casat v. State, •20 Ark. 511; Guiteau's Case, 10 F. R. 1^1 (D. C); People v. Walter, 1 Idaho, 386; State V. Felter, 32 la. 49; Smith v. Com. 1 Duv. 224; State v. Coleman, 27 La. Ann. 691; State v. Lawrence, 57 Me, 574 (infra); Com. v. Eddy, 7 Gray, 583; Bonfanti v. State, 2 Minn. 123; State v. Huting, 21 Mo. 464; State v. Spencer, 21 N. J. (1 Zab.) 190; State v. Potts, 100 N. C. 457; Clark v. State, 12 Ohio, 495 n.; Ortwein v. Com. 76 Pa. 414; State v. Bundy, 24 S. C. 439; Dove v. State, 3 Heisk. 348; Massengale v. State, 24 Tex. App. 181, 6 S. W. 35; Boswell v. Com. 20 Gratt. 860; State v. Strauder, II W. Va. 745, 823. In some jurisdictions, however, the burden is upon the government to prove the sanity of the accused, like all other facts in issue, beyond a reasonable doubt ; though the burden of producing evidence of insanity in the first instance is upon the accused. State V. Reidell (Del.), 14 Atl. 550; Dacey v. People, 116 111. 555, 571; Plake v. State, 121 Ind. 433; State v. Nixon, 32 Kas. 205; People v. Garbutt, 17 Mich. 9 (aupm); Wright V. People, 4 Neb. 407; State v. Bartlett, 43 N. H. 224; People v. McCann, 16 N. Y. 58 (sembic, per Brown, J. ; but see Wagner v. People, 4 Abb. App. 509). In Oregon, by statute, the accused must prove insanity beyond a reasonable doubt State V. Murray, 11 Or. 413. IT 253 STATE V. LAWRENCE. [CHAP. VII- STATE V. LAWRENCE. Supreme Judicial Court of Maine. 1870. [Reported 57 Maine, 574.] Danforth, J.^ The question as to the burden of proof in criminal cases, where insanity is set up as a defence, is one of much difficulty, though until recently the authorities seem to have been uniform in imposing it upon the defendant. Quite lately doubts have been sug- gested, and, in a few instances, judicial tribunals, entitled to the highest respect, have come to a conclusion the reverse of the former decisions. As a matter of principle, the question lies in a very narrow compass. The difficulty is in the starting-point, in detennining the premises. These being once settled, the conclusion is evident. Those who main- tain that the burden is upon the prosecutor, contend that sanity is an elemental part of the crime, and is a necessary part of its definition, and as such the jury must have the same satisfaction of its truth as of any other part. It is undoubtedly true that there can be no guilt except as the result of the action of a sound mind, there can be no crime except there be a criminal ; nevertheless, there is a palpable dis- tinction between these two. One cannot exist without the other ; still they are two, and not one and the same. The person doing the act is not the act itself. He may or may not be responsible for the act, but in no sense can he be the act. So, too, whether he committed the act is one question, and whether he is responsible for that act is another and entirely different question. Now it should not be forgotten that we start with the legal presumption that all men are sane and respon- sible for all their acts, — in other words, that no man is insane and irresponsible, — precisely as we do with the proposition that no man has legal authority for doing that which otherwise would be a crime or a trespass. Hence the statute defines murder to be "the unlawful kill- ing of a human being, with malice aforethought, either express or implied." Here are all the elements necessary to constitute the crime, assuming a responsible agent ; not one word as to what is, or is not, required to make him responsible. And so of all other statute defini- tions, — whoever shall do the certain acts set out, shall be guilty. Here, as everywhere in the law, sanity is assumed and treated as an essential attribute of humanity. The indictment follows the statute, setting out all the acts deemed essential to the crime, but omitting all reference to the capacity of the accused. Of all that is set out in the indictment he is presumed innocent, and that must be proved and nothing else. When that is proved he is convicted, unless he interposes some defence other than a sane denial of the allegations against him. A simple plea of not guilty, puts in issue the allegations and only the allegations in the indictment ; and as to them the prosecution has the affirmative. 1 Part only of the opinion is given. SECT. I.] STATE V. LAWUENCE. \2o9 Hut if tlie accused would put in issue any other allegation, any ques- tion us to his capacity or respouKihility, he must do it by an atlirinative stftteiueut. If he puts in the plea of insanity, he assumes the afllrmative ; he changes the issue. And it is immaterial whether it is in writing, or merely verbal ; in either case it just as effectually raised a new issue. Jt is true it may be resorted to in connection with the plea of not guilty, but it is not and cannot be a part of it. The plea of insanity is, and of necessity must be, a plea of confession and avoidance. It does not deny a single allegation in the indictment, but simply says, grant all these allegations to be true, that all these acts have been done, and still guilt does not follow, because the doer of them is not responsible therefor. It does not meet any question propounded by the indictment, but raises one outside of it. It is not a mere denial, but a positive allegation. It is, however, said in the argument that the plea of insan- ity does deny the allegation of malice, because the insane is not cai)able of such a state of the mind. If the term malice is used in the common meaning of that word, it is not necessary now to discuss the question as to how far those who are insane may or may not indulge it, though it may well be doubted whether, in many instances, a person may not be so unsound in mind as to be irresponsible, and yet be actuated by malice as implying hatred. But however this may be, he may have malice in the legal and technical sense, or he may be so wilful and deliberate in his action, that the law, in the absence of proof of insan- ity, will conclusively infer malice. When insanity is found, it does not show that the act was any less wilful, or deliberate, or intentional even ; but it does show an excuse, an irresponsibility for what would otherwise have been criminal. So here, as in other respects, the plea of insanity does not deny, but avoids ; confesses this element as well as the others, but excuses. It would seem, then, that the question of insanity can never be raised, unless by the prisoner ; and by him only in an affirmative allegation, such as carries with it the burden of proof. Every man is presumed to be innocent. This presumption stands till every reasonable doubt is removed. The law presumes every man sane. Why should not this presumption stand till removed by at least a preponderance of evidence? Does it not, and must it not necessarily still stand, though we may have some doubts of its truth? That which exists is not destroyed simply because it may be enveloped in a thin cloud. However we may theorize, it will still exist until demolislied. If this presumption is to be overthrown by a doubt, as well might it be abolished at once, and leave the question of sanity, like that of malice, to be proved by the government or implied from the circum- stances of each case. Hut this presum|)tion cannot be abolished. It is inherent in human nature, and will exist as long as rationality is an attribute of man, and existing, it should have some meaning, some force ; enough, at least, to enable it to withstand something more than a reasonable doubt. In Commonwealth v. Mackie, 1 Gray, Gl, is very clearly stated the 260 STATE V. LAWRENCE. [cHAP. VII. limits of the burden of proof in criminal cases as resting upon the government, where the issue is raised by a simple denial of the allega- tions in the indictment. It is there held that "where the defendant sets up no separate independent fact in answer to a criminal charge, but confines his defence to the original transaction charged as criminal, with its accompanying circumstances, the burden of proof does not change, but remains upon the government to satisfy the jury that the act was unjustifiable and unlawful." It is further said in the opinion, " There may be eases when a defendant relies on some distinct, substantive ground of defence to a criminal charge, not necessarily connected with the transactions on which the indictment is founded (such as insanity, for instance), in which the burden of proof is shifted upon the defendant." In the more recent case of Commonwealth v. Eddy, 7 Gray, 583, where the question as to the effect of the plea of insanity' came directlj' before the court, it was held that the burden of proof was upon the defendant, and that he must satisfy the jury of his insanity by a pre- ponderance of evidence. In accordance with this authority are many others entitled to great respect. United States v. Holmes, 1 Clifford, 117; Wharton's Am. Crim. Law, § 16, 7, 11, and cases cited; 2 Greenl. on Ev. § 373, and notes. But in this matter we are not left to the principles of the common law alone. Our statute law, by implication at least, leads to the same conclusion. By the R. S., 1859, c. 137, § 2, it is provided that " when the grand jury omits to find an indictment against any person arrested by legal process to answer for any offence by reason of insanity, they shall certify that fact to the court ; and when a traverse jury, for the same reason, acquits any person indicted, they shall state that fact to the court when they return their verdict." And, in either case, he is to be restrained in prison or the insane hospital till restored to his right mind, or delivered according to law. It can hardly be supposed that the legislature expected or intended that the jury should return as a fact the insanity of the prisoner when they have only a reasonable doubt of his sanity, or that he should be detained in custody till restored to his right mind, when there is not sufficient proof to make even a prima facie case that he is otherwise than sane. Our conclu- sion is, that upon this point as well as upon the others, the ruling was suflBciently favorable to the prisoner. Exceptions overruled. SECT. ILJ REGINA V. DOODY. 261 SECTION II. Intoxication. PEARSON'S CASE. Caklisle Assizes. 1835. [Reported 2 Lewin, 144.] The prisoner was iuilictecl for the murder of liis wite. It was proved that iu a fit of druukenuess he had beaten her in a cruel mauDcr with a rake-shank, and that she died of the wounds and bruises which she received. His only defence was that he was drunk. Park, J. VoUintary drunkenness is no excuse for crime. If a party be made drunk by stratagem or the fraud of another he is not responsible. So drunkenness may be taken into consideration to explain the probability of a party's intention in the case of violence committed on sudden provocation. REGINA V. DOODY. Stafford Assizes. 1854. [Reported 6 Cox C. C. 463.] The prisoner was indicted for unlawfully attempting to commit suicide at Wolverhampton, on the 5th of March, 1854. It api)eared that the prisoner was at the George Inn, Wolverhamp- ton, on the night of the 5th March, and about ten o'clock went to the water-closet. He was soon afterwards found there, suspended to a beam by a scarf tied round his neck. He was cut down, and anima- tion restored. On being taken into custody and charged with the offence, he stated that he had led a bad course of life, and liad no money or friends. He now said in his defence that he had been drinking for nine days before, and did not know what he was doing. There was some evidence to show that, although he was partially intoxicated, he was quite capable of taking care of himself. WiciHTMAN, J., told the jury that the offence charged constituted, beyond all doubt, a misdemeanor at common law. The question for them to consider was whether the prisoner had a mind capable of con- templating the act charged, and whether he did, in fact, intend to take away his life. The prisoner alleged in his defence that he was drunk ftl the time, which must be taken to mean that he had no deliberate 262 REGINA V. DAVIS. [CHAP. VII. intention to destroy his life ; for the mere fact of drunkenness in this, as in other cases, is not of itself an excuse for the crime, but it is a material fact in order to arrive at the conclusion whether or no the prisoner really intended to destroy his life. Verdict, Guilty. Sentence, three months' imprisonment. REGINA V. GAMLEN. Bristol Assizes. 1858. [Reported 1 Foster and Finlason, 90.] Assault. The charge arose out of an affray at a fair, and there seemed some ground for supposing that the prisoner acted under apprehension of an assault upon himself. All concerned were drunk. Ckowder, J. Drunkenness is no excuse for crime ; but in consid- ering whether the prisoner apprehended an assault on himself, you may take into account the state in which he was. Not guilty.'^ REGINA V. DAVIS. Newcastle Assizes. 1881. [Reported 14 Cox C. C. 563.] William Davis, thirty-eight, laborer, was charged with feloniously wounding his sister-in-law, Jane Davis, at Newcastle, on the 14th day of January, with intent to murder her. On the 14th day of January, 1881, the prisoner (who had been pre- viously drinking heavily, but was then sober) made an attack upon his sister-in-law, Mrs. Davis, threw her down, and attempted to cut her throat with a knife. Ordinarily he was a very mild, quiet, peace- able, well-behaved man, and on friendly terms with her. At the police station he said : " The man in the moon told me to do it. I will have to commit murder, as I must be hanged." He was examined by two medical men, who found him suffering from delirium tremens, result- ing from over-indulgence in drink. According to their evidence he would know what he was doing, but his actions would not be under his control. In their judgment neither fear of punishment nor legal nor moral considerations would have deterred him ; nothing short of actual physical restraint would have prevented him acting as he did. He was disordered in his senses, and would not be able to distinguish 1 Ace. Marshall's Case, 1 Lewin C. C. 76. But see Com. v. Hawkins, 3 Gray, 463. — Edl SECT. 11.] REGIKA r. DAVIS. 203 between moral right aiul wrong at the time he committed the act. Under proper care and treatmeut he recovered in a week, and was then perfectly sensible. For the defence it was submitted that he was of unbound mind at the time of the commission of the act, and was not rcsponsihlc for his actions. Stki'HEV, .T.. to the jury. The prisoner at the bar is charged with having feloniously wounded his sister-in-law, .lane Davis, on the 14th day of January last, with intent to murder her. You will have to consider whither he was in surh a st^ite of mind as to be tiioroughly rcsponsihle for his actions ; and with regard U) that I must explain to you what is the kind or degree of insanity which relieves a man from responsibility. Nolwdy must suppose — and I hope no one will be led for one moment to suppose — that drunkenness is any kind of excuse for crime. If tliis man haorted in 2 Russell on Crimes 8, Rex v. Grindley, where that doctrine was laid down. Parke, .1., in summing up, said: "Highly as I respect that late excellent judge. I ditlVr with him. and my brother Littledale [the associate] agrees with me. He once acted ou that 266 PEOPLE V. ROGERS. [CHAP. VII. case, but afterwards retracted his opinion, and there is no doubt that that case is not law. I think that there would be no safet}' for human life if it were considered as law." The prisoner was convicted and executed. 7 Carr. & Payne, 145. It would be easy to multiply citations of modern cases upon this doctrine ; but it is unneccssaiy, as the}' all agree upon the main proposition, namely, that mental alienation, produced by drinking intoxicating liquors, furnishes no im- munity for crime. Rex v. Meakin, 7 Carr. & Payne, 297, and Rex V. Thomas, 7 id. 817, may be mentioned; and in this country, The United States v. Drew, 5 Mason C. C. R. 28, and The United States V. McGlue, 1 Curtis C. C. R. 1, will be found to maintain the principle upon the authority of Judge Storj' and Judge Curtis, of the Supreme Court of the United States. These last two cases are interesting, not only for stating the general principle, but for confirming the distinction laid down so long ago by Sir Matthew Hale, that where mental disease, or as he terms it a "fixed frenzy," is shown to be the result of drunkenness, it is entitled to the same consideration as insanity arising from any other cause. The first of them was a case of delirium tremens, and Judge Stor}- directed an acquittal on that account. In the other the evidence left it doubtful whether the furious madness exhibited by the prisoner was the result of present intoxication, or of delirium supervening upon long habits of indulgence. This state of the evidence led Judge Curtis to state the rule and the exception with great force and clearness. In this state the cases of The People v. Hammell and The People v. Robinson, reported in the second volume of Judge Parker's Reports (pp. 223, 235), show the consistency with which the doctrine has been adhered to in our criminal courts and in the Supreme Court. The opinion in the last case contains a reference to several authorities to the same eflect in the other states of the Union. Where a principle in law is found to be well established by a series of authentic precedents, and especially where, as in this case, there is no conflict of authority, it is unnecessary for the judges to vindicate its wisdom or policy. It will, moreover, occur to every mind that such a principle is absolutel}' essential to the protection of life and property. In the forum of conscience there is no doubt con- siderable difference between a murder deliberately planned and exe- cuted by a person of unclouded intellect, and the reckless taking of life by one infuriated b}' intoxication ; but human laws are based upon considerations of polic}', and look rather to the maintenance of per- sonal security* and social order than to an accurate discrimination as to the moral qualities of individual conduct. But there is, in truth, no injustice in holding a person responsible for his acts committed in a state of voluntary intoxication. It is a dut}' which every one owes to his fellow-men and to society, to say nothing of more solemn obli- gations, to preserve, so far as it lies in his own power, the inestimable gift of reason. If it is perverted or destroyed by fixed disease, though brought on by his own vices, the law holds him not accountable. But SECT. I.] PEOPLE V. ROGERS. 207 if by a voluntary act he totnporarily casts ofT the restraints of reason and conscience, no wrong is done liiin if he is consiing with a fork, with intent to murder, and it was shown that the prisoner was the worse for li(pior. Alder- son, Haron, instructed the jury that, with regard to the intention, drunkenness might be adverted to according to the nature of the in- etrument used. "If," he said, "a man uses a stick, you would not Infer a malicious intent so strongly against him, if drinik when he jnade an intemperate use of it, as 3-00 would if he had used a different kind of weapon ; but where a dangerous instrument is used, which, if used, must produce grievous bodily harm, drunkenness can have no effect u[)on the consideration of tlie malicious intent of the party." In Rex V. Thomas (for maliciously stabbing), the person stai)bed liad struck the prisoner twice with his fist, when the latter, being drunk, stabbed him, and the jury were charged that drunkenness might be taken into consideration in cases where what the law deems suflicient provocation has been given, because the question in such cases is, whether the fatal act is to be attributed to the passion of anger excited b}- the previous provocation ; and that passion, it was said, is more easily excitable in a person when in a state of intoxication than wlieu he is sober. So, it was added, where the question is whether words have been uttered with a deliberate purpose, or are merely low and idle expressions, the drunkenness of the person uttering them is proper to be considered. But if there is really a previous determination to resent a slight atfrout in a barbjirous manner, the state of drunkenness in which the prisoner was, ought not to be regarded, for it would fur- nish no excuse. It must generally happen, in homicides committed b}- drunken men. that the condition of the [irisoner would explain or give character to some of his l:uigiiage, or some part of his conduct ; and tlierefore I am of opinion that it would never be correct to exclude the proof altogether. That it wouUl sometimes be right to advise the jury tiiat it ought to have no influence upon the case, is, I think, clear from the foregoing authorities. In a case of lengthened premeditation, of lying in wait, or where the deatii was by poisoning, or in the c:»se of wanton killing without any provocation, such an instruction wo'.ild } lainly be proper. 268 PEOPLE V. ROGERS. [CHAP. VII. Harris, J. No rule is more familiar than that intoxication is never an excuse for crime. There is no judge who has been engaged in the administration of criminal law, who has not had occasion to assert it. Even where intent is a necessary ingredient in the crime charged, so long as the offender is capable of conceiving a design, he will be pre- sumed, in the absence of proof to the contrary, to have intended the natural consequences of his own act. Thus, if a man, without provo- cation, shoot another or cleave him down with an axe, no degree of intoxication, short of that which shows that he was at the time utterly incapable of acting from motive, will shield him from conviction. This was, in substance, the doctrine which the jury received from the court in this case. The defendant had struck a blow with a deadly weapon, which had resulted in immediate death. To this act the law, without further proof, imputed guilty design. If the perpetrator would escape the consequences of an act thus committed, it was incumbent on him to show, either that he was incapable of entertaining such a purpose, or that the act was committed under provocation. In respect to the latter, there was nothing said by the court, nor any request to charge. Had it been contended that the blow was struck in the heat of passion, it might then have been proper to instruct the jury that, in determin- ing this question, the intoxication of the defendant might well be con- sidered. No such ground appears to have been taken by the counsel for the defence. There was, indeed, some testimony tending to show that the defendant had been struck before he committed the act for which he was tried. But the weight of the testimony is clearly against this theory of the case. It was no doubt judicious, therefore, for the defendant's counsel to refrain from asking the court to charge that the intoxication of the defendant might be considered by the jury in determining whether the blow was struck in the heat of passion, or with premeditated design. Had such a request been made, I think it would have been the duty of the court so to charge ; though from the state of the testimony, it is not likely that the result would have been favorable to the defendant. In the ease now before us, there was no attempt to show that the act of killing was committed under the impulse of sudden passion. All that the court was requested to do was to instruct the jury that if they were satisfied that, by reason of intoxication, there was no intention or motive to commit the crime of murder, they should convict the defend- ant of manslaughter only. In refusing so to charge, there was no error. If, by this request, the counsel for the defendant meant, as the request seems to have been interpreted by the Supreme Court, that the jury should be instructed to take into consideration the intoxica- tion of the defendant in determining the intent with which the homi- cide was committed, the proposition is not law. It has never yet been held that the crime of murder can be reduced to manslaughter by showing that the perpetrator was drunk, when the same offence, if committed by a sober man, would be murder. If, on the other hand, SECT. II.] CHOICE V. STATE. 2G9 it was intended that the court should instruct the jury that if, by reason of intoxication, the defendant was so far deprived of his senses as to be incapable of entertain ni See accord Flanigan v. People, 86 N. Y. 554. — Ed. 2 Part of the opinion only is given. SECT. II.] PEOPLE V. WALKER. 271 poison, or lying in wait, or in coininiUing or attoinptinf; to commit any of the crimes cnumcnitccl in the .statnte, he conhl only 1h; convicted of the higher offence hy showing that it was a wilful, deliberate, an ; Roberts v. The People, I'J Mich. 401 ; Pigman V. The State, 14 Ohio, 555 ; State v. Garvey, 11 Minn. 154 ; Ilaile v. The State, 11 Humph. 154 ; Shannahau v. The Commouwealth, 8 Bush (Ky.), 463 ; Ray's Med. Jur. 5th ed. 566.^ PEOPLE V. WALKER. ScpuEMK Court of Michig.^n, 1878. [Reported .18 Michigan, 156 ] CooLET, J.' The defendant was convicted in the court below for the larceny of a sum of money from one Martin. All the evidence in tiie case tended to show that if the defendant took the money wrong- fully, it was while he was under the iutlueuce of liquor, and some of it indicated that he was very drinik. The circuit judge was requested to charge the jury, that, " even if the jury should believe that defendant was intoxicated to such an extent as to make hiin unconscious of what he was doing at the time of the commission of the alleged offence, it is no excuse for him, and they shoidd not take it into consideration. A man who voluntarily puts himself in condition to have no control of his actions must be held to intend the consequences." This charge was given in reliance upon the general principle that drunkenness is no excuse for crime. » Arc. Ilopt t>. People, 104 U. S. 631; C.irtwriRht v. State, 8 Lea, 37t^; F'crrell r. State, 43 Tex. 503; State p. RoJ.inson, 20 W. Va. 713. The same principle woiiM seem to apply wliere it is desired to show that by renson of intoxication an intent to kill was absolutely lacking, and so to reduce the degrvc of a homicide to manslaughter. Reg. v. Doherty, 16 Coi C. C. 306. — En. ' Part of the opinion only is given. 272 ANONYMOUS. [cnAP. vir. AVhile it is true that drunkenness cannot excuse crime, it is equally true that when a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist. In larceny the crime does not consist in the wrongful taking of the prop- erty, for that might be a mere trespass ; but it consists in the wrongful taking with felonious intent; and if the defendant, for any reason whatever, indulged no such intent, the crime cannot have been com- mitted. This was fully explained by Mr. Justice Christiancy in Roberts V. People, 19 Mich. 401, and is familiar law. See also Nichols v. State, 8 Ohio St. 435 ; Regina v. Moore, 3 C. & K. 319. The circuit court should be advised to set aside the verdict and grant a new trial. The other justices concurred.^ SECTION III. Coercion. ANONYMOUS. Assizes. 1352. [Reported Liber Assisarnm, 137 pi. 40.] A WOMAN was arraigned for that she had feloniously stolen two shillings' worth of bread. She said that she did it by command of him who was at that time her husband. And the justices out of pity would not accept her confession, but took a jury ; by which it was found that she did it by coercion of her husband, in spite of herself. Where- fore she was acquitted. And it was said that by command of a husband, without other coercion, there shall be no sort of felony, etc.^ 1 See to the same effect the following cases: People v. Blake, 65 Cal. 275 (forgery); State V. Bell, 29 la. 316 (burglary); Roberts v. People, 19 Mich. 401 (assault with intent to kill); Pigman v. State, 14 Ohio, 555 (passing counterfeit money). --Ed. 2 When a wife commits a crime in her husband's presence, the presumption is that she acted by his coercion; and if so, she is excused. Reg. v. Price, 8 C. & P. 19; Com. V. Eagan, 103 Mass. 71; State y. Williams, 65 N. C. 398. This presumption may, however, be rebutted by proof that the wife did not act by the husband's coercion. U. S. V. Terry, 42 F. R. 317; Seller v. People, 77 N. Y. 411; Uhl v. Com., 6 Gratt. 706; Miller v. State, 25 Wis. 384. The land of a wife who left the country with her hus- band was held not liable to confiscation under the "Absentee Act " in Martin v. Com., 1 Mass. 387. — Ed. SECT. IIlJ M'GKOWTU Eli's CASE. 273 ANONYMOUS. CAMUKiDciE Assizes. 1GG4. [lie ported Ktli/ng, 31.] It was proix)uuded to all Uie judges: If :i man and his wife go both together to comuiit a burglary, and lx)tli of them break a house in the uight, and enter and steal goods, what offence this was in the wife ; and agreed by all, that it was no felony in the wife, for the wife being together with the husband in the act, the law supiioseth the wife doth it by coercion of the husband. And so it is iu all larce- nies ; but as to murder, if husband and wife both join in it, they are both equally guilty. Vid. 2 K. III. ; F. Corone, 100 ; 27 Ass. pi. 40 ; F. C'orone, Vyj \ Toulton de Pace, 12(), b ; and the case of the P^arl of Somerset and his lady, both cniually found guilty of the murder of Sir Thomas Overbury, by jwisoning him iu the Tower of Loudou [2 How. St. Tr. 951, 3 Co. Inst. 49]. M'GROWTHER'S CASE. Surrey Special Assizes.^ 1746. [Reported Foster C. L. 13.] In the case of Alexander M'Growther, there was full evidence touching his having been in the rebellion, and his acting as a lieu- tenant in a regiment iu the rebel army called the Duke of Perth's regi- ment. The defence he relied on was that he was forced in. And to that purpose he called several witnesses, who in general swore that on the 28th of August the person called Duke of Perth, and the Lord Strathallan, with alwut twenty Highlanders, came to the town where the prisoner lived ; that on the same day three several sum- monses were sent out b}' the Duke, requiring his tenants to meet him, and to conduct him over a moor in the ncighlx)rhood, called Luiny Moor ; that upon the third summons the prisoner, who is a tenant to the Duke, with about twelve of the tenants, appeared ; that then the Duke proiKjsed to them that Ihey should take arms and follow him into the rebellion ; that the prisoner and the rest refused to go ; where- upon they were told that tiiey should be forced, and cords were brought by the Duke's party in order to bind them ; and that then the prisoner and ten more went off, surrounded by the Duke's party. These witnesses swore that the Duke of Perth threatened to burn the » Coram I.ee, 0. J., Willes, C. J., "Wright and Foster, JJ., Reynolds and Clive, BB Reported bIbo 18 How. St. Tr. 391. — En. 18 274 REGINA V. DYKES. [CHAP. YII. houses and to drive off the cattle of such of bis tenants as should i-efuse to follow him. They all spake very extravagantly of the power lords in Scotland exercise over their tenants, and of the obedience (even to the joining in rebellion) which they expect from them. Lord Chief Justice Lee, in summing up, observed to the jury that there is not, nor ever was, any tenure which obligeth tenants to follow their lords into rebellion. And as to the matter of force, he said that the fear of having houses burnt or goods spoiled, supposing that to have been the case of the prisoner, is no excuse in the eye of the law for joining and marching with rebels. The only force that doth excuse is a force upon the person, and pres- ent fear of death ; and this force and fear must continue all the time the party remains with the rebels. It is incumbent on every man, who makes force his defence, to shew an actual force, and that he quitted the service as soon as he could ; agreeably to the rule laid down in Oldcastle's Case, that they joined ^^ro timore mortis^ et recessenmt quam cito 2)otuerunt. He then observed that the only force the prisoner pretends to was on the 28th of August ; and that he continued with the rebels and bore a commission in their army till the surrender of Carlisle, which was on or about the 30th of December. The jury without going from the bar found him guilty. But he was not executed. N. B. All the judges that were in town were present, and concurred in the points of law. REGINA V. DYKES. Maidstone Assizes. 1885. [Reported 15 Cox C C 771.] In this case the two prisoners, who were husband and wife, were charged with highway robbery with violence. The facts as proved in evidence clearly disclosed the felony charged in the indictment, but as regards the female prisoner there was some evidence to show that in what she had done, and in the violence which she had used against the prosecutor, she was acting under the compul- sion of her husband, and in fear of violence from him. H. F. Dickens, for the prosecution. G. L. Denman, for the defence, submitted, on the authority of Reg. V. Torpey, 12 Cox C. C. 45, that there was no case to go to the jury as against the wife. And upon the learned judge ruling that it wn?. for the jury to find whether upon the facts the wife had acted under SECT. III.] COMMON \VL.U.iU V. DALEY. 275 the coerciou of iier husbuml or not, mUlresBed the jury for the defence ; iiiul, while admitting that the uiule prisoner must be convicted, urged that the wife had really acted under the coercion of the husband. The learned judge [Stki'Iien, J.], in summing u[), left the following (juestions to the jury : — 1. Were tlie prisoners Individually guilty or nut guilty? This (juea- tion to be answered as if they were unmarrieil. 2. If both are found guilty, then as a matter of fact did the wife act under the compulsion of her husband ? The jury found l>oth prisoners guilty, but also found that the wife had acted under the compulsion of the husbanil. rpon this finding counsel for the defence claimed a verdict of not guilty in favor of the wife, quoting the case already cited, and also licg. V. Woodward, 8 C. & P. ')G1. After consideration the learned judge directed an acquittal to be entered for the wife, who was discharged.* COMMONWEALTH v. DALEY. Supreme Judicial Court of Massachusetts. 1888. [Reported 148 Massachusetts, 11.] C. Allen, J." When a niarried woman is indicted for a crime, and it is contended in defence that she ought to be acquitted because she acted under the coercion of her husliand, the (luestion of fact to be determined is whether she really and in truth acted under such coercion, or whether she acted of her own free will and independently of any coercion or control by him. To aid in determining this question of fact, the law holds that there is a presumption of such coercion from his presence at the time of the commission of the crime ; this presump- tion, however, is not conclusive, and it may be rebutted. And in order to raise this presumption it is also established that the husband's pres- ence need not be at the very spot, or in the same room, but it is sullicient if he was near enough for her to be under his immediate control or influence. No exact rule applicable to all cascf can be laid down as to what degree of proximity will constitute such presence, because this may vary with the varying circumstances of particular cases. And where » See Rt'X t-. Bunconil>e, 1 Cox C. C. 183; Pinpk v. Wriglit, 38 Mich. 744. "A wife may be indicted together with her husband, and condemned to the piIlor>- with him for keeping a bawily-limisp; for this is an offence as to the govomnifnt of tlie hou.se, in wliich the wife ha.s a princijinl share; and also such an offence tut may gener- ally be presumed to be managed by the intrigues of her sex." 1 Hawk. P. C. ch. I, 8. 12. See Reg. v. Williams. 10 Mod. 63; SUte i-. Buntz, 11 Mo. 27- — Ed. ' Part of llie opinion only is given. 276 EEGINA V. SMITH. [CHAP. YII. the wife did not act in the direct presence of her husband or under his eye, it must usually be left to the jury to determine incidentally whether his presence was sufficiently immediate or direct to raise the presump- tion. But the ultimate question, after all, is whether she acted under his coercion or control, or of her own free will indepeudeutly of any coercion or control b}' him ; and this is to be determined in view of the presumption arising from his presence, and of the testimony or circumstances tending to rebut it, if any such exist. Commonwealth V. Burk, 11 Gray, 437; Commonwealth v. Gannon, 97 Mass. 547; Commonwealth v. Welch, 97 Mass. 593 ; Commonwealth v. Eagan, 103 Mass. 71 ; Commonwealth v. Munsey, 112 Mass. 287 ; Common- wealth V. Gormley, 133 Mass. 580 ; Commonwealth v. Flaherty, 140 Mass. 454 ; Commonwealth v. Hill, 145 Mass. 305, 307.^ SECTION IV. Infancy : Incorporation. 1 Hawk. P. C. eh. 1, s. 14. Neither a son nor a servant are excused the commission of any crime, whether capital or not capital, by the command or coercion of the father or master.^ REGINA V. SMITH. Somerset Assizes. 1845. [Reported 1 Cox C. C. 260.] Indictment for maliciously setting fire to a hayrick. It appeared that the prisoner was a boy of the age of ten years. There was no evidence of any malicious intention. f^RLE, J. (to the jury). Where a child is under the age of seven years, the law presumes him to be incapable of committing a crime ; after the age of fourteen, he is presumed to be responsible for his actions as entirely as if he were forty ; but between the ages of seven and four- teen, no presumption of law arises at all, and that which is termed a malicious intent, — a guilty knowledge that he was doing wrong, — must be proved by the evidence, and cannot be presumed from the 1 Where a crime is committed by a wife in the absence of her husband there is no presumption of coercion, though coercion in fact may be shown. Com. v. Tryon, 99 Mass. 442; State v. Collins, 1 McCord, 355; State v. Potter, 42 Vt. 495. — Ed. 2 See Com. v. Mead, 10 All. 398; State v. Learnard, 41 Vt. 585. — Ed. SECT. IV.] COMMONWEALTH V. NEW BEDFORD BRIDGE. 277 mere commission of the act. You are to dotormine from a review of the evitleiice whether it is sutisfactorily i)rovo(l tliat at the time he liretl the rick (if you should be of oi)iuiou he did fire it) be had a guilty kuowledge that he was committing a crime. Not (juUtij} COMMONWEALTH v. PROPRIETORS OF NEW BEDFORD BRIDGE. Supreme Judicial Court of Massachusetts. 1854. [Reported 2 Gray, 339.] IxDiCTMENT for a nuisance, occasioned by the erection and mainten- ance of a bridge in and across the Acushnet, a navigable river, flowing between the city of New Bedford and the town of Fairhavcn, and thereby filling up and obstructing the navigation of the river. Tiie indictment was found at June term, 1852, of the Court of Common Pleas. At the trial in that court, before Byington, J., the defendants admitted that they had erected and maintained a bridge across the Acushnet River ; that the bridge was so far an obstruction to the navi- gation of the river, that its erection and maintenance could only be justified under an act of the legislature ; and that, without such justifi- cation, they would be subject to a prosecution of some kind. But they contended that they were not liable to indictment. The defendants gave in evidence their act of incorporation (St 1796, C. 19), under which they acted in maintaining their bridge.^ The presiding judge, "being of opinion that the several questions of law are so important or doubtful as to require the opinion of the Supreme Judicial Court," directed a verdict of guilty, and reported the case, with the consent of the defendants, for the consideration of this court. BiGELOw, J. The indictment in the present case is for a nuisance. The defendants contend that it cannot be maintained against them, on the ground that a corporation, although lial>le to indictment for non- feasance, or au omission to perform a legal duty or obligation, ai"e not 1 See ncc. Rox v. Owen, 4 C. & P. 236; Angelo v. People, 96 111. 209; State v. Fow- ler, 52 la. 103; Statu v. Adams, 76 Mo. 355; State v. Doherty, 2 Overton, 80. Criminal capacity in a cliiKi between seven and fourteen may be proved by evidence, or may be inferred from tlie circumstances of the act. 4 Bl. Com. 23; Godfrey v. State, 81 Ala. 323; State v. Toney, 15 S. C. 409. As to proof of criminal capacity, see Willet v. fom., 13 Bu.sh, 230; Carr v. State, 24 Tex. A pp. 562. As to the conclusive presumption that a boy under fourteen cannot be guilty of rape, except as principal in the second degree, .see Rex v. Eldersliaw, 3 C & P. 396; Com. n. Green, 2 Pick. 380 (•niprn); Law v. Com., 75 Va. 886. — En. " Part of the case btw been omitted. 578 COMMONWEALTH V. NEW BEDFORD BRIDGE. [CHAP. VII amenable in this form of prosecution for a misfeasance, or the doing of any act unlawful in itself and injurious to the rights of others. There are dicta in some of the early cases which sanction this broad doctrine, and it has been thence copied into text writers, and adopted to its full extent in a few modern decisions. But if it ever had any foundation, it had its origin at a time when corporations were few in number, and limited in their powers, and in the purposes for which tliey were created. Experience has shown the necessity of essentially modifying it ; and the tendency of the more recent cases in courts of the highest authority has been to extend the application of all legal remedies to corporations, and assimilate them, as far as possible, in their legal duties and responsibilities, to individuals. To a certain extent, the rule contended for is founded in good sense and sound principle. Corporations cannot be indicted for oflfeuces which derive their crimi- nalit}' from evil intention, or which consist in a violation of those social duties which appertain to men and subjects. They cannot be guilty of treason or felony, of perjury or offences against the person. But beyond this, there is no good reason for their exemption from the con- sequences of unlawful and wrongful acts committed by their agents in pursuance of authority derived from them. Such a rule would, in man}' cases, preclude all adequate remedy, and render reparation for an injury, committed by a corporation, impossible ; because it would leave the only means of redress to be sought against irresponsible ser- vants, instead of against those who truly committed the wrongful act by commanding it to be done. There is no principle of law which would thus furnisli immunity to a corporation. If they commit a tres- pass on private property, or obstruct a way to the special injury and damage of an individual, no one can doubt their liability therefor. In like manner, and for the same reason, if they do similar acts to the inconvenience and annoyance of the public, they are responsible in the form and mode appropriate to the prosecution and punishment of such offences. Angell & Ames on Corp. ss. 394-396 ; Maund v. Mon- mouthshire Canal, 4 M. & G. 452, and 5 Scott N. R. 457 ; The Queen V. Birmingham & Gloucester Railway, 3 Q. B. 223 ; The Queen v. Great North of England Railway, 9 Q. B. 315, and 2 Cox C. C. 70; Eastern Counties Railway v. Broom, 6 Ex. 314; The State v. Morris & Essex Railroad, 23 N. J. (3 Zab.) 360. If, therefore, the defend- ants have been guilty of a nuisance, by obstructing unlawfully a navi- gable stream, an indictment may well be maintained against them. It may be added that the distinction between a non-feasance and a mis- feasance is often one more of form than of substance. There are cases where it would be difficult to say whether the offence consisted in the doing of an unlawful act, or in the doing of a lawful act in an improper manner. In the case at bar, it would be no great refinement to say that the defendants are indicted for not constructing their draws in a suitable manner, and thereby obstructing navigation, which would be a non-feasance, and not for unlawfully placing obstructions in the SECT, v.] LEVETT's CASE. 279 river, which would be a misfeasance. Tlie difficulty in diKtin^uishing the character of these olTeiices strongly illustrates the absurdity of tlie doctrine that a corporation are indictable for a uou-feasance, but not for a misfeasauce. See t) Q. B. 325.* SECTION V. Ignorance or Mistake. 1 Hale P. C. 42. Ignorance of the municipal law of the kingdom, or of the penalty tlioreby inflicted upon offenders, doth not excuse any that is of the age of discretion and compos mentis from the penalty of the breach of it ; because every person of the age of discretion and compos mentis is bound to know the law, and presumed so to do ; Ignorantia eorui/i giue fjuis scire tenctur nan excitsat. But in some cases ignorantia facti doth excuse, for such an igno- rance many times makes the act itself morally involuntary ; and in- deed many of the cases of misfortune and casualty mentioned in the former chapter are instances that fall in with this of ignorance : I shall add but one or two more. It is known in war that it is the greatest offence for a soldier to kill, or so much as to assault his general ; suppose, then, the inferior olBcer sets his watch, or sentinels, and the general, to try the vigilance or courage of his sentinels, comes upon them in the night in the posture of an enemy (as some commanders have too rashly done), the sentinel strikes, or shoots him, taking him to be an enemy ; his ignorance of the person excuseth his offence." LEVETT'S CASE. Newgate Sessions. 1G38. [Reported Croke Cc.r. 538.] Jones said that it was resolved by the Chief Justice Rramptov, him- self, and the Recorder of I^ondon, at the last sessions at Newgate, in the case of one William Levett, who was indicted of the homicide of a woman called Frances Freeman, where it was found by special ver- dict that the said Levett and his wife being in the night in bed and ' As to the criminal liability of members of a corporation who t&ke part in its crimi* nal acta, see Reg. v. Ry., 9 Q. B. 315, 327; People v. England, 27 Hun, 139. — En. • Here follows a statement of Levett's Case, in/ra. — Ed. 280 REX V. BAILEY. [CHAP. VII. asleep, one Martha Stapleton, their servant, having procured the said Frances Freeman to help her about house-business, about twelve of the clock at night going to the doors to let out the said Frances Free- man, conceived she heard thieves at the doors offering to break them open ; whereupon she, in fear, ran to her master and mistress, and informed them she was in doubt that thieves were breaking open the house-door. Upon that he arose suddenly and fetched a drawn rapier. And the said Martha Stapleton, lest her master and mistress should see the said Frances Freeman, hid her in the buttery. And the said Levett and Helen his wife coming down, he with his sword searched the entry for the thieves ; and she, the said Helen, espying in the buttery the said Frances Freeman, whom she knew not, conceiving she had been a thief, crying to her husband in great fear, said to him, "Here they be that would undo us." Thereupon the said William Levett, not knowing the said Frances to be there in the buttery, has- tily entered therein with his drawn rapier, and being in the dark and thrusting with his rapier before him, thrust the said Frances under the left breast, giving to her a mortal wound, whereof she instantly died ; and whether it were manslaughter, they prayed the discretion of the court. And it was resolved that it was not ; for he did it igno- rantly without intention of hurt to the said Frances ; and it was there so resolved.* REX V. BAILEY. Crown Case Reserved. 1800. [Reported Russell ^- Ryan, 1.] The prisoner was tried before Lord Eldon, at the Admiralty Ses- sions, December, 1799, on an indictment for wilfully and maliciously shooting at Henry Truscott.* It was insisted that the prisoner could not be found guilty of the offence with which he was charged, because the Act of the 39 Geo. III. c. 37, upon which (together with the statute relating to maliciously shooting, 9 Geo. I. c. 22, " Black Act ") the prisoner was indicted at this Admiralty Sessions, and which act of the 39 Geo. III. is entitled " An act for amending certain defects in the law respecting oflfences committed on the high seas," only received the royal assent on the 10th of May, 1799, and the fact charged in the indictment happened on the 27th of June, in the same 3'ear, when the prisoner could not know that any such act existed (his ship, the " Langley," being at that time upon the coast of Africa.) Lord Eldon told the jury that he was of opinion that he was, in 1 See Regina v. Lynch, 1 Cox C. C. 361 ; McGehee v. State, 62 Miss. 772. — Ed. * Part of the case is omitted. SECT, v.] REX V. ILVLL. 281 strict law, guilty within the stjitutes, taken together, if the fticts laid were proved, though lie could not then know that the act of the '.V.) Geo. III. c. 37 had passed ; and that his ignorance of that fact conld in no otherwise affect the case than that it might he the means of recom- mending him to a merciful consideration elsewhere should he be found guilty. On the first day of Hilary terni, 1800, all the Judges (except Mr. Justice Hii.i.eu) met at Loud Kenyon's chambers, and were of opini«m that it would be proper to apply for a pardon, on the ground that the fact having been committed so short a time after the Act 39 Geo. III. c. 37 was passed, that the prisoner could not have known of it.^ REX V. HALL. Gloucester Assizes. 1828. [Reported 3 Carrington ^- Payne, 409.) Inmctment for robbing .John Green, a gamekeeper of Lord Ducie, of three hare wires and a pheasant. It appeared that the prisoner had set three wires in a field belonging to Lord Ducie, in one of which this pheasant was caught, and that Green, the gamekeeper, seeing this, took up the wires and pheasant and put them into his pocket ; and it further appeared that the prisoner soon after this came up and said, " Have you got njy wires? " The gamekeeper replied that he had and a pheasant that was caught in one of them. The prisoner then asked the gamekeeper to give the pheasant and wires up to him, which the gamekeeper refused ; whereupon the prisoner lifted up a large stick and threatened to beat the gamekeeper's brains out if he did not giva them up. The gamekeeper, fearing violence, did so. Maclean, for the prosecution, contended that by law the prisoner could have no property in either the wires or the pheasant, and as the gamekeeper had seized them for the use of the lord of the manor, under the statute 5 Anne c. 14, s. 4, it was a robbery to take them from him by violence. Valgiian, B. I shall leave it to the jury to say whether the prisoner acted on an impression that the wires and pheasant were his property; for however he might be liable to penalties for having them in his possession, yet if the jury think that he took them under a honaJi<)th elements of intention may co-exist with respect to the same deed. There are many things prohi- bited by no statute — fornication or seduction for instance — which nevertheless no one would hesitate to call wrong ; and the intt-ntion to do an act wrong in this sense at the least must as a gnieral rule exlht before the act done can be considered a crime. Knowingly and inten- lioually to break a statute must, I think, from the judicial point of view, always be morally wrong in the absence of special circumstances applicable to the particular instance and excusing the breach of the law, as, for instance, if a municipal regulation be broken to save life or to put out a fire. But to make it morally right some such special matter of excuse must exist, inasmuch as the administration of jus- tice and, indeed, the foundations of civil society rest upon the prin- ciple that obedience to the law, whether it be a law approved of or disapproved of by the individual, is the first duty of a citizen. Although prima facia and as a general rule there must be a mind at fault before there can be a crime, it is not an inriexible rule, and a statute may relate to such a subject-matter and may be so framed as to make an act criminal whether there has been any intention to break the law or otherwise to do wrong or not. There is a large IkxIv of municipal law in the present day, which is so conceived. Hy-laws are constantly made regulating the width of thoroughfares, the height of buildings, the thickness of walls, and a variety of other matters neces- sary for the general welfare, health, or convenience, and such by-laws are enforced by the sanction of penalties, and the breach of them con- stitutes an offence and is a criminal matter. In such cases it would, generally speaking, be no answer to proceedings for infringement of the by-law that the person committing it had bona fide made an acci- dental miscalculation or an erroneous measurement. The Acts are properly construed as imposing the penalty when the act is done, no matter how innocently, and in such a case the substance of the en- actment is that a man shall take care that the statutory direction is obeyed, and that if he fails to do so he does it at his peril. Whether an enactment is to be construed in this sense or wiih the qualification ordinarily imported into the construction of criminal stat- utes, that there must be a guilty mind, must, I think, depend up(m the subject-matter of the enactment, and the various circumstances that may make the one construction or the other reasonable or unrea- sonable. There is no difference, for instance, in the kind of language used by Acts of rarliament which made the unauthorized possession of Government stores a crime, and the language used in by-laws which 288 KEGINA. V. TOLSON. [CHAP. VIII. say that if a man builds a house or a wall so as to encroach upon a space protected by the by-law from building he shall be liable to a penalty. Yet in Reg. v. Sleep, L. & C 44 ; 30 L. J. M. C. 170, it was held that a person in possession of Government stores with the broad arrow could not be convicted when there was not sufficient evi- dence to show that he knew they were so marked, while the mere infringement of a building by-law would entail liability to the penalty. There is no difference between the language by which it is said that a man shall sweep the snow from the pavement in front of his house before a given hour in the morning, and if he fail to do so, shall pay a penalty, and that by which it is said that a man sending vitriol by railway shall mark the nature of the goods on the package on pain of forfeiting a sum of money ; and yet I suppose that in the first case the penalty would attacli if the thing were not done, while in the other case it has been held in Heme v. Garton, 2 E. & E. 66, that where the sender had made reasonable inquiry and was tricked into the belief that the goods were of an innocent character, he could not be con- victed, although he had in fact sent the vitriol not properly marked. There is no difference between the language by which it is enacted that "whosoever shall unlawfully and wilfully kill any pigeon under such circumstances as shall not amount to a larceny at common law " shall be liable to a penalty, and the language by which it is enacted that " if any person shall commit any trespass by entering any land in the daytime in pursuit of game " he shall be liable to a penalty ; and yet in the first case it has been held that his state of mind is material: Taylor v. Newman, 4 B. & S. 89 ; in the second that it is immaterial : Watkins v. Major, L. R. 10 C. P. 662. So, again, there is no differ- ence in language between the enactments I have referred to in which the absence of a guilty mind was held to be a defence, and that of the statute which says that " any person who shall receive two or more lunatics " into any unlicensed house shall be guilty of a misdemeanor, under which the contrary has been held : Reg. v. Bishop, 5 Q. B. D. 259. A statute provided that any clerk to justices who should, under color and pretence of anything done by the justice or the clerk, receive a fee greater than that provided for by a certain table, should for every such offence forfeit £20. It was held that where a clerk to justices bona fide and reasonably but erroneously believed that there were two sureties bound in a recognizance besides the principal, and accordingly took a fee as for three recognizances when he was only entitled to charge for two, no action would lie for the penalty. " Actus" says Lord Campbell, " non facit reum, nisi mens sit rea. Here the defendant very reasonably believing that there were two sureties bound, beside the principal, has not, by making a charge in pursuance of his belief, incurred the forfeiture. The language of the statute is 'for every such offence.' If, therefore, the table allowed him to charge for three recognizances where there are a principal and two sureties, he has not committed an offence under the act." Bowman v. Blyth, 7 E. & B. 26, 43. SECT. I.] i;k(;ina v. tolson. 289 If identical langiia^'c may thus l)e legitimately coustruetl in two opposite senses, and Is sonietunes held to imply that there Is and some- times that there is not an offence when the guilty mind Is absent, it is ol)vious that assistance must be sought idiunde, and that all circum- stances must Ite taken into consideraticju which tend to show that the one construction or the otiier is reasonable, and among such circum- stances it is injpossible to discard the consequences. This is a con- sideration entitled to little weight if the words be Incapable of more than one construction ; but I have, I thinlv, abun have transgressed morally, as well as tiiiiuli'iilionally doni,' scjuiethiug iirohiliitcd hy law. I am well aware that tlie mi.schiL-fs which may result from bigamous marriages, however innocently contracted, are great; but I canu(»l thinlc that the appropriate way of i)n'venting them is to expose to the danger of a cruel injustice persons whose only error may be that of acting upon the same evidence as has a[)peared perfectly satisfactory to a Court of Probate, a trilninal empliatically dillicult to satisfy ui such matters, and certain only to act upon what a[)[)ears to be the most cogent eviilence of death. It is, as il seems to me, undesirable lu the highest degree without necessity to uudtiply instances in which peoi)le shall be liable to conviction u[)on very grave charges, when the cir- cumstances are such that no judge in the kingdom would think of pronouncing more than a nominal sentence. It is said, however, in respect of the offence now under discussion, that the proviso in 24 & 25 Vict. c. 100, s. 57, that " nothing in the sec- tion shall extend to any person marrying a second time whose husband or wife shall have been continually absent from such person for seven years last past, and shall not have been known by such person to be living within that time," points out the sole excuse of which the Act allows. I cannot see what necessity there is for drawing any such inference. It seems to me that it merely specifies one particular case, and indicates what in that case shall be sullicient to exempt the p'arty, without any further inquiry, from criminal liability ; and I think it is an argument of considerable weight in this connection, that under y & 10 "Wm. III. c. n, s. 2, where a similar contention was founded upon the specification of one particular circumstance under which the possession of Government stores should be justified, successive judges and courts have refused to accede to the reasoning, and have treated it, to use the words of Lord Kenyon, as a matter that " could not bear a ques- tion," that the defendant might show in other ways that his posses- sion was without fraud or misbehavior on his part. Rex >'. liauks, 1 Ksp. 114, 147. Upon the point in question there are conflicting decisions.^ There is nothing, therefore, in the state of the authorities directly bearing upon the question to prevent one from deciding it upon the grounds of principle. It is suggesteil. however, that the important decision of the court of fifteen judges in Heg. r. Prince, L. R. 2 C. C. l')4, is an authority in favor of a conviction in this case. I do not think so. In Reg. V. Prince the prisoner was indicted under 24 & 25 Vict. c. 100, * The learned Jvulge here examined the following conflicting decisions: Reg. >• Turner, 9 Cox C. C. 145; Reg. v. Horton, 11 Cox C. C. 670; Reg. v. Gibbons. 12 Cox C. C. 237; Reg. r. Bennett, 14 Co.t C. C. 45; Reg. v. Moor.', 13 Cox C. C. 544. — Ed. 292 REGIXA V. TOLSON. [CHAP. YIII. s. 55, for "unlawfully taking an unmarried girl, then being under the age of sixteen years, out of the possession and against the will of her father." The jury found that the prisoner bona fide believed upon reasonable grounds that she was eighteen. The court (dissentiente Brett, J.,) upheld the conviction. Two judgments were delivered by a majority of the court, in each of which several judges concurred, whilst three of them, Denman, J., Pollock, B., and Quaiu, J., concurred in both. The first of the two, being the judgment of nine judges, upheld the conviction upon the ground that, looking to the sul)ject- matter of the enactment, to the group of sections amongst which it is found, and to the history of legislation on the subject, the intention of the legislature was that if a man took an unmarried girl under six- teen out of the possession of her father against his will, he must take his chance of whether any belief he might have about her age was right or wrong, and if he made a mistake upon this point so much the worse for him, — he must bear tlie consequences. The second of the two judgments, being that of seven judges, gives a number of other reasons for arriving at the same conclusion, some of them founded upon the policy of the legislature as illustrated by other asso- ciated sections of the same Act. This judgment contains an emphatic recognition of the doctrine of the " guilty mind," as an element, in gen- eral, of a criminal act, and supports the conviction upon the ground that the defendant, who believed the girl to be eighteen and not six- teen, even then, in taking her out of the possession of the father against his will was doing an act wrong in itself. "This opinion," says the judgment, " gives full scope to the doctrine of the mens rea." ^ The case of Reg. v. Prince, therefore, is a direct and cogent author- ity for saying that the intention of the legislature cannot be decided upon simple prohibitory words, without reference to other considera- tions. The considerations relied upon in that case are wanting in the present case, whilst, as it seems to me, those which point to the appli- cation of the principle underlying a vast area of criminal enactment, that there can be no crime without a tainted mind, preponderate greatly over any that point to its exclusion. 1 "To my mind, it is contrary to the whole estabUshed law of England (unless the legislation on the subject has clearly enacted it), to say that a person can be guilty of a criTue in England without a wrongful intent, — without an attempt to do that which the law ha.s forbidden. I am aware that in a particular case, and under a particular criminal statute, fifteen judges to one held that a person whom the jury found to have no intent to do what was forbidden, and whom the jury found to have been deceived, aid to have understood the facts to be such that he might with irapunitj' have done a ( (-rtain thing, was by the terms of that Act of Parliament guilty of a crime, and could be imprisoned. I say still, as I said then, that I cannot subscribe to the propriety of that decision. I bow to it, but I cannot subscribe to it; but the majority of the judges forming the court so held because they said that the enactment was absolutely clear." Brett, M. R., in Attorney General v. Bradlaugh, 14 Q. B. D. 667, 689. " Actus 71011 facit reum, nisi mens sit rca is the foundation of all criminal justice." CocKBURN, C J., in Reg. v. Sleep, 8 Cox C. 0. 472, 477. — Ed. SECT. 1.] KFAIIXA V. TOLSON. 293 In my opinion, therefore, this conviction ou<^ht to be quashed.' Stei'Iikn, J. I lun of oi»ini()n that the conviction siioukl he quashed. INIy view of the subject is based upon a paiticuhir application of tiie doctrine usually, thoujj;h I think not hap[)ily, described by the i)hrase " turn I'st reus, nisi tntiifi sit na." Though this phrase is in common use, I think it most unfortunate, and not only likely to mislcail, but actually misleading, on the following grounds: It naturally suggests th.it, apart from all particular definitions of crimes, such a thing e.\ista as a mens rea, or " guilty mind," which is always expressly or by implication involved in every definition. This is obviously not the case, for the mental elements of difTerent crimes dilTer widely. Mens rea means, in the case of murder, malice aforethought ; in the case of theft, an intention to steal ; in the case of rape, an intention to have forcible connection with a woman without her consent; and in the case of receiving stolen goods, knowledge that the goods were stolen. In some cases it denotes mere inattention. For instance, in the case of man- elaughter by negligence, it may mean forgetting to notice a signal. It appears confusing to call so many dissimilar states of mind by one name. It seems contradictory indeed to describe a mere absence of mind as a"'/»c//.s />'(»," or " guilty mind." The expression, again, is likely to and often does mislead. To an unlegal mind it suggests that by the law of England no act is a crime which Is done from laudable motives ; in other words, that immorality is essential to crime. It will, 1 think, be found that much of the discussion of the law of libel iu Shipley's Case, 4 Doug. 73 ; 21 St. Tr. H47, i)rpceeds upon a more or less distinct belief to this effect. It is a topic frequently insisted upon in reference to political offences, and it was urged hi a recent notorious case of abduction, in which it was contended that motives said to be laudable were an excuse for the abduction of a child from its parents. Like most legal Latin maxims, the maxim on mens red appears to me to be too short and antithetical to be of much practical value. It is, indeed, more like the title of a treatise than a practical rule. I have tried to ascertain its origin, but have not succeeded in doing so. It is not one of the '■'■rey nice juris'' in the digests. The earliest case of its use which I have found is in the " Leges Ilonrici Primi," v. 2S, in which it is said: "6'(' '^in's per coactionem abj}(rare cogatur quod per viuUos annos qniete teniierlt non in jiirante set cogente perjnrium erit. Remn non facit nisi mens rea." In Hroom's Maxims the earliest authority cited for its use is 3d Institute, ch. i. fol. 10. In this place it is contained in a marginal note, which says that when it was found that some of Sir John Oldcastle's adherents took part in an insurrocticm ^^pro thnore mortis et quod recesserunt quam cito potuernnt" the judges held that this was to be adjudged no treason, because it was for fear of death. Coke adds: '-'■Et actus non facit reum nisi mens sit rea." ' Coiicarring cpinions of C.wk ami Hawkins, J J., and Lord CoLF.uinoR, C. .1., arc omitted. C11AKLK.S, Day, A. I.. S.MITII, and Gkantiiam, JJ., concurred. Tart of tbe opiuion of Siki'hf.s, J., is omitted. — Ed. 294 EEGINA V. TOLSON. [CHAP. VIIL This is only Coke's own remark, and not part of the judgment. Now Coke's scraps of Latin in this and the following chapters are some- times contradictory. Notwithstanding the passage just quoted, he says in the margin of his remarks on opinions delivered in Parliament by Thyrning and otliers in the 21 R. 2 : ''Jlelius est omnia mala pati (juam vialo consent i re" (22-23),v,-h.lch. would show that Sir J. Oldcas- tle's associates had a mens rea, or guilty mind, though they were threatened with death, and thus contradicts the passage first quoted. It is singular that in each of these instances the maxim should be used in connection with the law relating to coercion. The principle involved appears to me, when fully considered, to amount to no more than this : The full definition of every crime con- tains, expressly or by implication, a proposition as to a state of mind. Therefore, if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed ; or, again, if a crime is fully defined, nothing amounts to that crime which does not satisfy that definition. Crimes are in the present day much more accurately defined by statute or otherwise than they formerly were. The mental element of most crimes is marked by one of the words "maliciously," "fraudulently," "negligently," or "knowingly," but it is the general — I might, I think, say, the inva- riable — - practice of the legislature to leave unexpressed some of the mental elements of crime. In all cases whatever, competent age, sanity, and some degree of freedom from some kinds of coercion are assumed to be essential to criminality, but I do not believe they are ever introduced into any statute by which any particular crime is defined. The meanings of the words "malice," "negligence," and "fraud," in relation to particular crimes has been ascertained by numerous cases. Malice means one thing in relation to murder, another in relation to the Malicious Mischief Act, and a third in relation to libel, and so of fraud and negligence. With regard to knowledge of fact, the law, perhaps, is not quite so clear, but it may, I think, be maintained that in every case knowledge of fact is to some extent an element of criminality as much as compe- tent age and sanity. To take an extreme illustration, can any one doubt that a man who, though he might be perfectly sane, committed what would otherwise be a crime in a state of somnambulism, would be entitled to be acquitted? And why is this? Simply because he would not know what he was doing. A multitude of illustrations of the same sort might be given. I will mention one or two glaring ones. Levet's Case, 1 Hale, 474, decides that a man who, making a thrust with a sword at a place where, upon reasonable grounds, he supposed a burglar to be, killed a person who was not a burglar, was held not to be a felon, though he might be (it was not decided that he was) guilty of killing per infortunium, or possibly, se defendendo, which then involved certain forfeitures. In other words, he was in the same SECT. I.] REGIXA V. TOI.SOX. 295 situation as far as re^ardecl the homicide as if he had kiUod a l)urgljir. In the decision of the judges in McNHj2;htens Case, 10 CI. & F. 2U0, it is stated tluit if, under un insnni' delusion, on*- man killed another, and if the delusion was such that it would, if true, justify or excuse the killint^, the homicide would l»e justified or excused. This could hardly be if the same were not law as to a sane mistake. A hunu Jlle claim of ri;^ht excuses larceny, and many of the offences against the Malicious .Misi-liief Act. Apart, in Vict. c. 100. Much was said to ns in argument on the old statute, i .lac. I. c. 11. I cannot see what this has to do with the matter. Of course, it would be competent to the legislature to define a crime in such a way as to make the existence of any state of mind immaterial. The question is solely whether it has actually done so in this case. In the first place I will observe upon the absolute character of the section. It appears to me to resemble most of the enactments con- tained in the Consolidation Acts of 181)1, in passing over the general mental elements of crime which are presupposed in every case. Age, 296 KEGIXA V. TOLSON. [cHAP. YIII. sanity, and more or less freedom from compulsion, are always pre- sumed, and I think it would be impossible to quote any statute which in any case specifies these elements of criminality in the definition of any crime. It will be found that either by using the words "wilfully and maliciously," or by specifying some special intent as an element of particular crimes, knowledge of fact is implicitly made part of the statutory definition of most modern definitions of crimes ; but there are some cases in which this cannot be said. Such are : s. 55, on which Reg. I'. Prince, L. R. 2 C. C. 154, was decided ; s. 56, which punishes the stealing of "any child under the age of fourteen years ;" s. 49, as to procuring the defilement of any " woman or girl under the age of twenty-one," — in each of which the same question might arise as in Reg. V. Prince, L. R. 2 C. C. 154 ; to these I may add some of the pro- visions of the Criminal Law Amendment Act of 1885. Reasonable belief that a girl is sixteen or upAvards is a defence to the charge of an offence under ss. 5, 6, and 7, but this is not provided for as to an offence against s. 4, which is meant to protect girls under thirteen. It seems to me that as to the construction of all these sections the case of Reg. v. Prince is a direct authority. It was the case of a man who abducted a girl under sixteen, believing on good grounds that she was above that age. Lord Esher, then Brett, J., was against the conviction. His judgment establishes at much length, and, as it appears to me, unanswerably, the principle above explained, which he states as follows : "That a mistake of facts on reasonable grounds, to the extent that, if the facts were as believed, the acts of the prisoner would make him guilty of no offence at all, is an excuse, and that such an excuse is implied in every criminal charge and every criminal enactment in England." Lord Blackburn, with whom nine other judges agreed, and Lord Bramwell. with whom seven others agreed, do not appear to me to have dissented from this principle, speaking generally ; but they held that it did not apply fully to each part of every section to which I have referred. Some of the prohibited acts they thought the legislature intended to be done at the peril of the person who did them, but not all. The judgment delivered by Lord Blackburn proceeds upon the prin- ciple that the intention of the legislature in s. 55 was "to punish the abduction unless the girl was of such an age as to make her consent an excuse." Lord Bramwell's judgment proceeds upon this principle : "The legis- lature has enacted that if any one does this wrong act he does it at the risk of her turning out to be under sixteen. This opinion gives full scope to the doctrine of the mens rea. If the taker believed he had her father's consent, though wrongly, he would have no me)is rea; so if he did not know she was in any one's possession nor in the care or charge of any one. In those cases he would not know he was doing the act forbidden by the statute." (SECT. I.] REGINA V. TOLSON. 297 All the ju'lgos, tlicrofore, in Reg. v. Prince agreed on the generivl principle, though they :ill, excei)t Lord Esher, considered that the object of tlie U'gishitiire being to prevent a scandalous and wicked invasion of parental rights (whether it was to be regarded as illegal apart from the statuti.' or not) it was to be sui)pObed tiiat they intended that tlie wrong-doer should act at his i)eril. As another illustration of the same principle, I may refer to Keg. v. Bishop, .'< (^ 1>. 1). 'io'.i. Tlie defendant in that case was tried before me for receiving more than two lunatics into a house not duly licensed, upon an indictment on 8 and 'J Vict. c. lUO, s. 44. It was [iroved that tlie defendant did receive more than two persons, wliom the jury found to be lunatics, into her house, believing honestly, and on reasonable grounds, that they were not lunatics. I held that this was immaterial, having regard to the scope of the Act, and the ol)ject for which it was apparently passed, and this court upheld that ruling.' The application of this to the present case appears to me to be as follows : The general principle is clearly in favor of the prisoner, but how does the intention of the legislature appear to have been against her? It could not be the object of parliament to treat the marriage of widows as an act to be if possible prevented as presumal)ly immoral. The conduct of the woman convicted was not in the smallest degree immoral ; it was perfectly natural and legitimate. Assuming the facts to be as she supposed, the infliction of more than a nominal punishment on her would have been a scandal. Why, then, should the legislature be held to have wished to subject her to punishment at all? If such a punishment is legal, the following among many other eases might occur : A number of men in a mine are killed, and their bodies are disfigured and mutilated, by an explosion. One of the sur- vivors secretly absconds, and it is supposed that one of the disfigured bodies is his. His wife sees his supposed remains buried ; she marries again. I cannot believe tliat it can have been the intention of the legis- lature to make such a woman a criminal ; the contracting of an invalid marriage is quite misfortune enough. It appears to me that every argument which showed, in the opinion of the judges in Reg. v. Prince, L. R. 2 C. C. l.')4, that the legislature meant seducers and abductors to act at their peril, shows that the legislature did not mean to hamper what is not only intended, but naturally and reasonably supposed bv the parties to be a valid and honorable marriage, with a liability to seven 3'ears' penal servitude. It is argued that the proviso that a re-marriage af1;er seven years' separation shall not be punishable operates as a tacit exclusion of all other exceptions to the penal part of the section. It appears to me that it only supplies a rule of evidence which is useful in many cases * "I am not awnre of any other way in which it is pos.'sible to drtorniiiio wlirther the word ' knowingly ' is or is not to be iniplietl in the definition of a crime in which it is not expressed." 2 Stephen Hist. Cr. L. 117. 298 KEGINA V. TOLSON. [CHAP. VIIL in the absence of explicit proof of deatli. But it seems Id me to show, not that belief in the death of one married person excuses the marriage of the other onl}' after seven yeaiV separation, but that mere separation for that period has the effect which reasonable belief of death caused b^' other evidence would have at any time. It would to my mind be monstrous to say that seven years' separation should have a greater effect in excusing a bigamous marriage than positive evidence of death, sullicient for the purpose of recovering a policy of assurance or obtain- ing probate of a will, would have, as in the case I have put, or in others which might be even stronger. Maxisty, J. I am of opinion that the conviction should be affirmed. The question is whether if a married woman marries another man during the life of her former husband, and within seven years of his leaving her, she is guilty of felon}', the jury having found as a fact that she had reason to believe, and did honestly believe, that her former husband was dead. The 57th section of the 24 & 25 Vict. c. 100 is as express and as free from ambiguit}' as words can make it. The statute says : " Who- soever being married shall marry any other person during the life of the former husband or wife . . . shall be guilty of felon}-, and being convicted shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding seven years, and not less than three j-ears, or to be imprisoned for any term not exceeding two years, with or without hard labor." The statute does not even say if the accused shall feloniously or unlawfully or knowingly commit the act he or she shall be guilt}- of felony, but the enactment is couched in the clearest language that could be used to prohibit the act, and to make it a felony if the act is committed. If any doubt could be entertained on the point, it seems to me the proviso which follows the enactment ought to remove it. The proviso is, that "Nothing in the 57th section of the Act shall extend to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time." Such being the plain language of the Act, it is, in my opinion, the imperative duty of the court to give effect to it, and to leave it to the legislature to alter the law if it thinks it ought to be altered. Probably if the law was altered some provision would be made in favor of children of the second marriage. If the second marriage is to be deemed to be legal for one purpose, surely it ought to be deemed legal as to the children who are the offspring of it. If it be within the province of the court to consider the reasons which induced the legis- lature to pass the Act as it is, it seems to me one principal reason is on the surface, namely, the consequence of a married person marrying acain in the lifetime of his or her former wife or husband, in which case it might, and in many cases would be, that several children of the SECT. I.] REGINA V. TOLSON. 299 second mjirriage would he born, and all would he hastards. The pro- viso is evidently founiled upon the jissuniptiou that after the lapse of seven years, and the Ibruier hushand or wife not being heard of, it may reasonably be inferred tliat lie or she is dead, and thus the mischief of a second marriage in the Hfetime of the former husband or wife is to a great extent, if not altogetlier, avoided. It is to be borne in mind that bigamy never was a crime at common law. It has been the subject of several Acts of I'arliament, ami is now governed by 24 & 2'» Vict. c. 100, s. .07. No doubt in construing a statute the intention of tiic legislature is what tiic court has to ascertani ; but the intention must l>e collected from the language used ; and where that language is plain and explicit, and free from all ambiguity, as it is in the present case, I have always understood that it is the imperative duty of judges to give effect to it. The cases of insanity, etc., on which reliance is placed stand on a totally dillerent principle, namely, that of an absence of tnens. Igno- rance of the law is no excuse for the violation of it ; and if a person choose to run the risk of committing a felony, he or she must take the consequences if it turn out that a felony has been committed. Great stress is laid by those who hold that the conviction should be quashed upon the circumstance that the crime of bigamy is by the statute declared to be a felony, and punishable with penal servitude or miprisonment, with or without hard labor, for any term not exceed- ing two years. If the crime had been declared to be a misdemeanor punishable with fine or imprisonment, surely the construction of the statute would have been, or ought to have been, the same. It may well be that the legislature declared it to be a felony to deter marrieil persons from running the risk of committing the crime of bigamy, and in order that a severe punishment might be inflicted in cases where there were no mitigating circumstances. Xo doubt circumstances niav and do alfect the sentence, even to the extent of the punishment Iteing nominal, as it was in the present case ; but that is a very different thing from disregarding and contravening the plain words of the Act of Parliament. The case is put by some of my learned brothers of a married man leaving his wife and going into a foreign country intending to settle there, and, it may be, afterwards to send for his wife and children, and the ship in which he goes is lost in a storm, with, as is supposed, all on board ; and after the lapse of say a year, and no tidings received of any one having been saved, the luiderwnters [)ay the insurance on the ship, and the supposed widow gets probate of lier husltauil's will, and mar- ries and has children, and after tiio lapse of several years the hu.sband appears, it may be a few days before seven years have expireserved tliat notwithstanding the word " unlawfully " appears in this sectitjn it was considered necc-ssar^' to add the proviso, without which it would have been no ilcfence that the accused had reasonable cause to believe, and did believe, that the girl was of or above the age of si-vteen. Those who \u)U\ that the con- viction in the |)resent case should be (plashed really import itjto the .')7lh section of the 21 roperty of L. Lar- kin, or of any other person ; and such is not the legal inference, in a state whose constitution declares that all are born free and equal, and that there shall be neither slavery nor iiivoluntarv servitude within its limits, except as a punishment for the commission of crimes. On the contrary, the presumption is in favor of freedom. The scieitter, or knowledge of the plaintiff in error, of this material fact was an ingredi- ent necessary to constitute his guilt. This knowledge should have been averred in the indictment, and proved on the trial ; for without such knowledge the act charged as a crime was innocent in its character. We know of no case where positive action is hehl criminal, unless the intention accompanies the act, either exprcssl}' or necessarily inferred from the act itself. '■'•Ljnorantia farti doth excuse, for such an igno- rance, many times, makes the act itself morallv involuntarv." 1 Hale's V. C. 42. ' It is true that the statute upon which the indictment is fomnled omits the scienter, and the indictment covers all the facts enumerated in that statute. Rut this is not sufficient ; it cannot be assumed that an act which, independent of positive enactment, involves ny » See Bradley v. People, 8 Col. 599. — En • Tlie opiniou only is given ; it sufficiently states tLe case 304 COMMONWEALTH V. MASII. [CHAP. VIII. moral wrong, nay, an act that in many cases would be highly praise- worthy, should be made grievously criminal, when performed in total unconsciousness of the facts that infect it with crime. This court has determined differently. In the case of Anderson against the State, 7 Ohio Rep. part 1, 255, tlie plaintiff in error was indicted for uttering and publishing forged certificate of deposit, without averring his knowl- edge of such forgery. The statute under which the indictment was found does not, in express terms, make this knowledge a constituent of the crime. Nevertheless, the court held that the criminality could not exist without the knowledge, and that an indictment that did not aver it was defective. That case runs upon all fours with this, and the further investigation of the principles upon which it is based confirms the court in the conviction that it is correct. This judgment must be reversed for this cause, and it thus becomes unnecessary to decide upon the other points, so laboriously argued for the plaintiff in error, and of a character too important in their bearing upon the whole country, to be adjudicated upon without necessity.^ COMMONWEALTH v. MASH. Supreme Judicial Court of Massachusetts. 1844. [Reported 7 Metcalf, 472.] The defendant was indicted, on the Rev. Sts. c. 130, s. 2, for marry- ing a second husband while her former husband w^as living. At the trial in the Municipal Court, at August term. 1843, there was evidence tending to prove that tlie defendant was married to Peter Mash on the 7th of December, 1834, and that she afterwards cohabited with him until about the 10th of November, 1838, when he left home in the morning, saying he should return to breakfast, and was not after- wards heard from by tlie defendant till about the middle of May, 1842, when he returned; that on the 10th of April, 1842, she was married, in Boston, by a clergyman of competent authority to solemnize mar- riages in this Commonwealth, to William M. Barrett, with whom she cohabited in Boston until she heard that said Peter Mash was still liv- ing, when she immediately withdrew from said Barrett, and had no intercourse with him afterwards ; that she was of uniformly good char- acter and virtuous conduct, and that she honestly believed, at the time of said second marriage, that said Peter Mash was dead ; that during his absence, as aforesaid, she made many inquiries, and was unable to obtain any information concerning him, or to ascertain whether he was or was not alive. 1 See U. S. V. Beaty, Hcmpst. 489 ; Lee v. Lacey, 1 Cranch C. C. 263 ; conf. State V. B. & S. Steam Co. 13 Md. 181. — Ed. SECT. I.] COMMONWEALTH V. MASH. 305 The counsel for the defendant moved the court to instruct the jury that if they believed all the facts which the aforesaid evidence tended to prove, she was entitled to an acquittal. Jiut the court refused so to instruct the jin-y, and instructed them tluit the defendant's ignorance tliat her said husl)and, I'oter Mash, was alive, and her honest belief that he was dead, consliluLed no lugal defence. Tlie jury found the defendant guilty, and she filed exceptions to the instruction of the court. JIdllett, for the defendant. S. D. Parker, for the Commonwealth. Shaw, C. J. The court are of opinion that the instruction to the jury was right. The rule of law was certainly strongly expressed by the judge, no doubt in consequence of the terms in which tlie motion of the defendant's counsel was expressed. The rule, as thus laid down, in effect was, that a woman whose husban 1 See r. S. V. Anthony, 11 Blatch. 200; U. S. v. Taintor, 11 Blatch. 374; U. S. v. Adams, 2 Dak. 305. — Ed. SECT. l1 REGINA V. LESLEY. 311 CHAPTER IX. JUSTIFICATION. SECTION I. Public Authority/. Foster, C. L. 267. The execution of malefactors under sentence of death for capital crimes hath been considered by former writers as a species of homicidejbunded in necessit}-. I think it hath with propri- ety enough been so considered ; for the ends of government cannot be answered without it. . . . Where persons having authority to arrest or imprison, using the proper means for that purpose, are resisted in so doing, and the party making resistance is killed in the struggle, this homicide is justifiable. . . . Where a felony is committed, and the felon fleeth from justice, and a dangerous wound is given, it is the duty of every man to use his best endeavors for preventing an escape ; and if in the pursuit the party fleeing is killed, where he cannot be othericise overtaken, this will be deemed justifiable homicide ; for the pursuit was not barely warrantable, it is what the lawrequireth and will punish the wilful neglect of. REGINA V. LESLEY. Crown Case Reserved. 1860. [Reijorted Bell, 220 ; 8 Cox C. C. 269.] Erle, C. J.^ In this case the question is whether a conviction for false imprisonment can be sustained upon the following facts. The prosecutor and others, being in Chili, and subjects of that state, were banished b}- the government from Chili to P^ngland. 1 The opinion only is given. In addition to the facts therein stated, the following may be useful : — It appeared by the evidence for the prosecution that the prisoners requested the defendant to take them to Poiu, which was near, offering to pay him what the Govern- ment of Chili paid him, but that the defendant refused, on the ground that his contract required him to carry the prisoners to Liverpool. They made no other request to be imt ashore. The vessel touched at the Azores, and the defendant made holes in the boats to prevent the escape of the prisoners. Watson, B., who tried the case, directed a verdict of guilty, and reported the casi to the Court for Crown Cases Reserved. — Ed. 812 EEGINA V. LESLEY. [CHAP. VZ. The defendant, being master of an English merchant vessel lying in the territorial waters of Chili, near Valparaiso, contracted with that government to take tlie prosecutor and his companions from Valparaiso to Liverpool, and the}- were accordingly brought on board the defen- dant's vessel by the officers of the government and carried to Liverpool by the defendant under his contract. Then, can the conviction be sustained for that which was done within the Chilian waters? We answer no. We assume that in Chili the act of the government towards its sub- jects was lawful ; and although an P^nglish ship in some respects carries with her the laws of her country in the territorial waters of a foreign state, yet in other respects she is subject to the laws of that state as to acts done to the subjects thereof. We assume that the government could justify all that it did within its own territory, and we think it follows that the defendant can justify all that he did there as agent for the government and under its author- ity. In Dobree v. Napier, 2 Bing. N. C. 781, the defendant, on behalf of the Queen of Portugal, seized the plaintiffs vessel for violating a blockade of a Portuguese port in time of war. The plaintiff brought trespass ; and judgment was for the defendant, because the Queen of Portugal, in her own territory, had a right to seize the vessel and to employ whom she would to make the seizure ; and therefore the defend- ant, though an Englishman seizing an English vessel, could justify the act under the employment of the Queen. We think that the acts of the defendant in Chili become lawful on the same principle, and therefore no ground for the conviction. The further question remains. Can the conviction be sustained for that which was done out of the Chilian territory? And we think it can. It is clear that an English ship on the high sea, out of any foreign territor}', is subject to the laws of England ; and persons, whether for- eign or English, on board such ship, are as much amenable to English law as the}' would be on English soil. In Regina v. Sattler, 1 D. & B. C. C. 525, this principle was acted on, so as to make the prisoner, a for- eigner, responsible for murder on board an English ship at sea. The same principle has been laid down by foreign writers on international law, among which it is enough to cite Ortolan, " Sur la Diplomatic de la Mer," liv. 2. cap. 13. The Merchant Shipping Act, 17 & 18 Vict. c. 104. s. 267, makes the master and seamen of a British ship responsible for all offences against property or person committed on the sea out of her Majestj-'s dominions as if thev had been committed within the jurisdiction of the Admiralty of England. Such being the law, if the act of the defendant amounted to a false imprisonment he was liable to be convicted. Now, as the contract of the defendant was to receive the prosecutor and the others as prisoners on board his ship, and to take them, without their consent, over the sea to England, although he was justified in first receiving them in Chili, SECT. I.] STATE V. MAYOR AND ALDERMEN OF KNOXVILLE. dl'^ yet that jiistificiition ceased wlicn he passed the line of Chilian juris- diction, and after that it was a wrong which was intentionally planned and executed in pursuance of the contract, amounting in law to a false imprisonment. It may be that transportation to England is lawful by the law of Chili, and tiiat a Chilian ship might so lawfully transport Chilian sub- jects ; l)ut for an English ship liie laws of Chili, out of the state, are powerless, and the lawfulness of the acts must be tried by ?>nglish law. For these reasons, to the extent above mentioned, the conviction is atlirmed. Conviction confirmed accordingly.^ STATE V. MAYOR AND ALDER^IEN OF KNOXVILLE. Supreme Court of Tennessee. 1883. [Reported 12 Lea, 146.] Freeman, J., delivered the opinion of the court.^ It appears from this record that in the latter part of the year 1882, and first of 1883, the small-pox, as an epidemic, prevailed to a con- siderable extent. The city of Knoxville, as well as the count}', thought it their duty, through their authorized agencies, to take active measures to relieve as well as prevent the spread of the disease both in the city and the surrounding country. To this end a small-pox hospital was established at the fair-grounds, about two miles from the city, with suita- ble buildings for receiving infected patients, and two ph3'sicians, Drs. Hurlgins and Shaw, employed, the one by the city, the other by the county, to attend patients suffering with the disease. Among the pre- cautionary measures taken to prevent the spread of the plague, the clothing, beds, and bedsteads used by persons who had the disease, and either recovered or died, were directed to be burnt, no doubt under the direction of the attending ph3'sicians. This, we take it, was done regu- larly and frequently for some months, as often as occasion required. The fair-ground's property consisted of between sixty and sixty-five acres of land, the building being within this property, and the infected articles burnt on these grounds, probably in pits dug for the purpose. The burning seems to have been some four hundred yards from the nearest houses, but there appear to have been numerous dwellings occupied about that distance, and farther off, but still liable, more or less to be affected bv the smoke and the scent from the burning cloth- ing, etc. That this at times was more or less offensive, is probable, if 1 For the extent to which the cominand of a military or naval superior officer will justify a criminal act, see Reg. v. Thomas, 1 Russ. Crimes, 731 ; Reg. v. Hutchinson, 9 Coi C. C. 555; U. S. v. Clark, 31 F. R. 710, w/m. — Ed. ■* Part of the opinion is omitted. 314 STATE V. MAYOR AND ALDERMEN OF KNOXVILLE. [CHAP. IX. not certain. For a nuisance, the result of this burning and the unpleas- ant effects of the smoke thus generated and disseminated, the defendants are indicted. The jur}- have found the defendants guilt}-, and on the facts, that is of the existence of the smoke, and of its rendering the occupation of the houses of persons living hard b}' uncomfortable, and the air less pure temporarily than otherwise would have been the case from the nature of their location, there is no ground on which this court could reverse the finding of facts for want of testimon}- to sustain it. The question is, whether this finding was under a correct statement of the law by the court below, and whether there was a sufficient jxisti- fication and autliority for what was done ; whether his Honor gave defendants the benefit of the rules of law tending to show such justifi- cation and authorit}- for their acts, which are not of themselves denied or serioush' controverted. The proof very definitely tended to show that burning the -articles mentioned was the best means known of preventing the spread of infec- tion, if not the onl}' certain means of doing so, that it was the uniform practice in hospitals where such diseases were being treated, and recog- nized as the accredited mode recommended and endorsed bj' the best lights of the medical profession. If this be so, then the simple question is, whether parties using such means so accredited, in good faith, shall be held criminally liable if they should produce temporary' inconvenience to other parties near by ; for this is the substance of the request refused by his Honor. The loss to the individuals was onl\- a temporar}- one, b}- having the air for a time impregnated with smoke, offensive though it was ; yet if this was done in order to, and did reasonabl}- tend to, prevent the spread of a loathsome and dangerous disease, b}* which the lives of from twenty -five to fift}* per cent of persons attacked are liable to die, as one pln'sician swears in this case, then it is too clear to doubt that the interest of the life of many cannot be permitted to be perilled that others ma}'' enjoy the air untainted by smoke from clothing infected b}' the disease being burned at a reasonablj' safe distance from their dwellings. If 3'ou ma}' rightfull}' destroy the house in which a man dwells in order to prevent the spread of a fire or the ravages of a pestilence, it follows you may much more destroy for a time the salubrit}' of the air, provided it shall tend reasonably to the result demanded by the public interest. We do not deem it necessary to enlarge on such a proposition. The rule applicable to such a case is that, if the act was done by public authority or sanction, and in good faith, and was done for the public safety and to prevent the spread of the disease, and such means used as are usuall}' resorted to and approved by medical science in such cases, and was done with reasonable care and regard for the safety of others, then the parties were justified in what they did, and the parties inconvenienced could not complain, nor could the state enforce a crimi- nal liability for results of temporary inconvenience or unpleasantness SECT. II.] REGINA V. GRIFFIN. 315 that accrue from tlie use of sucli proper and accredited means for the safety of the couiinunily against the spread of disease. The theory of his Honor is tlie opposite of this, and is erroneous. Let the judgment be reversed and the case remanded for a new trial. SECTION II. Domestic Authority. Foster, C. L. 2G2. Parents, masters, and other persons, having autliorit}' in foro domestico, may give reasonable correction to those under their care ; and if death ensueth without their fault, it will be no more than accidental death. But if the correction exceedeth the bounds of due moderation, eitlier in the measure of it or in the instrument made use of for that purpose, it will be either murder or manslaughter according to the circumstances of the case.-' REGINA V. GRIFFIN. Liverpool Assizes. 1869. [Reported 1 1 Cox C. C. 402.] The prisoner, David Griffin, was indicted for the manslaughter of Ann Grillin, at Liverpool, on the 7th of November, 1869. Tlie deceased, wlio was the daugliter of the prisoner, was two years and six months old, and her death took place under the following circumstances. On the 7th of November the prisoner's wife had occasion to leave the house, the deceased, with her brother and sister, being at that time in bed, in a room adjoining that in which the prisoner was sitting. During the absence of liis wife, the prisoner heard tlie deceased crying, and went into the room where the deceased was, and took her out of bed into another room. As he was doing this she committed some childish fault ; this made the prisoner angry ; and, after having placed her in the other room, he got a strap one inch wide and eighteen inches long and, having turned up her clothes, gave her from six to twelve severe strokes over the lower part of the back and right tliigb. Deceased did not cry much at the time, but appeared very frightened ; > See Reg. v. Hopley, 2 F. & F. 202; Com. v. RaTidall, 4 Grny, 36. As to the right of a liusband to beat or restrain his wife, see Reg. v. Jackson (1891), 1 Q. B. 671 ; Com. V. McAfee, 108 Mass. 458 ; People v. Winters, 2 Park. C. R. 10. — Ed. 316 KKX V. COMPTON. [CHAP. IX she never recovered from the effects, and died on the following Wednesday, November 10. Medicalevidence was given to the effect that the deceased had been a healthy child and well nourished, and that the cause of death was congestion, accelerated by a shock to the nervous system, produced by the severe beating which the prisoner liad given it, the marks of which were clearly seen at the 2^ost mortem examination on the day following her death. Jlau-thorne, for the prisoner, contended that there was no case to go to the jury, for the prisoner had, as a father, a perfect right to cor- rect his child. Tidswell, for the prosecution, contended that, although a father might correct his child, the law did not permit him to use a weapon improper for the purpose of correction. He cited Reg. v. Hopley (2 F. & F. 201.) Martin, B. (after having consulted with Willes, J., who concurred in his opinion). The law as to correction has reference only to a child capable of appreciating correction, and not to an infant two years and a half old. Although a slight slap may be lawfully given to an infant by her mother, more violent treatment of an infant so young by her father would not be justifiable ; and the only question for the jury to decide is, whetlier the child's death was accelerated or caused by the blows inflicted by the prisoner. Guilty. SECTION III. Prevention of Felony. EEX V. COMPTON. Assizes. 1347. [Reported Liber Assisarum, 97, pi. 55.] H. DE CoMPTON was indicted, «&;c., that he feloniously killed H. Vescy at C. on a certain day in the fourteenth year of the present King, and also for that he received one R., who was outlawed for felony, know- ing, &c., for which he was now arraigned. H. said that said H. V. died in the ninth year of the present King ; and that said H. V. and another were indicted in the ninth year of the present King, before Sir T. de Rokeby, Sheriff of York, of divers felo- nies, when the sheriff assigned the said J. [H. ?] de C. by his commission (which he exhibited to the court) to arrest and take the said H. and the other thieves ; and the said H. de C. with others came to the said place, and there found the said H. and the other thieves, and showed them their warrant, which they had to arrest them, and ordered them SECT. III.] REGINA V. DADRON. 317 to surrender; and they would not surrender, but defended themselves, and killed and wounded divers persons, and in this fight H. was killed. And we do not think that our Lord the King ought to impeach us of his death. Tiioiu', C. J. All shall be found out by the jury. (And he told them all that he had said.) Wherefore we ask you whether II. V. died in the ninth year of the present king and not in the fourteenth, as the indictment is, and if there was no other H. V. whom he killed in the fourteenth year, and also if he might have taken him without killing him, so that he killed him of his own malice, &c., and if you And that, speak of his lauds and goods. The jury said that II. had gone (as he said) , and that there was no other H. V. than that one, &c., and that he could not have taken him in another way. Tiioup. Tlioy have acquitted you of this charge, and we acquit you. And I say well to you that when a man kills another by his warrant he may well avow the fact, and we will freely acquit him without wait- ing for the King's pardon by his chancellor in this case. And in many other cases a man may kill another without impeachment, as if thieves come to rob a man, or to commit burglary in his house, he may safely kill them, if he cannot take them. And note, how it was with a gaoler who came to the gaol with a hatchet in his hand, and just then tbe prisoners had broken their irons, and were all ready to have killed him, and they wounded him sorely, but with the hatchet in his hand he killed two, and then escaped, &c. And it was adjudged in tliis case by all the counsel that he would not have done well otherwise, &c. Likewise he said that ever}' person might take thieves in the act of larceny, and felons in the act of felony, and if they would not sur- render peaceabh', but stood on their defence, or fled, in such case he might kill them without blame, &c. REGINA V. DADSON. Crown Case Reserved. 1850. [Reported 4 Cox C. C. 358.] The prisoner was tried and convicted before Erle, J., at the last Maidstone Assizes, but the learned judge, entertaining some doubt as to the propriet}' of the conviction, reserved the following case : — George Dadson was indicted for shooting at William Waters, with intent to do him grievous bodil}' harm. It appeared that be, being a constable, was emplo3'ed to guard a copse, from which wood had been stolenf and for this purpose carried a loaded gun. From this copse he saw the prosecutor come out, carrying wood, which he was stealing, and called to him to stop. The prosecutor ran away, and the prisoner, 318 ■ KEGINA V. MURPHY. fCHAP. IX. I. having no other means of bringing him to justice, fired, and wounded him in the leg. These were the facts on which the prisoner acted. It was alleged in addition that Waters was actuall}' committing a felon}-, he having been before convicted repeatedly- of stealing wood, but these convictions were unknown to the prisoner, nor was there an}' reason for supposing that he knew the difference between the rules of law relating to felony and those relating to less offences. I told the jury that shooting with intent to wound amounted to the felony charged, unless from other facts there was a justification ; and that neither the belief of the prisoner that it was his duty to fire if he could not other- wise apprehend the prosecutor, nor the alleged felon}', it being unknown to him, constituted such justification. Upon this the prisoner was con- victed of felon}-, and let out on his recognizances to come up for judgment, if required. I have to request the opinion of the judges whether this conviction was right. [This case stood for argument on Wednesday, November 20, but no counsel were instructed. For the legal distinction adverted to in the case with regard to the apprehension of felons and misdemeanants only, see 1 Hale, 481 • 4 BL Com. 179 ; Fost. 271 ; R. v. Smith, 1 Russ. on Cr. 546.] Cur. adv. vult. Pollock, C. B., delivered the judgment of the court. (After stating / the facts as above.) We are all of opinion that the conviction is right. The prosecutor not having committed a felony known to the prisoner at the time when he fired, the latter was not justified in firing at the prosecutor ; and having no justifiable cause, he was guilty of shooting at the prosecutor with intent to do him grievous bodily harm, and the conviction is right. Conviction affirmed. REGINA V. MURPHY. Meath Assizes. 1839. {Reported 1 Crawford ^ Dix, 20.] The prisoner was indicted under the statute 7 Will. IV. & 1 Vict. c. 85, for that a certain gun then and there loaded with gunpowder and divers leaden shot, which said gun he the said P. M., in both his hands, then and there had and held, at and against one Christopher Hand, then and there feloniously, unlawfully, and maliciously did shoot, with intent in so doing thereby then and there the said C. H. to disfigure, to disable, and to do some grievous bodily harm. It appeared that on the day in question the prisoner, who was a game-keeper and woodranger of Lord Dunsany, and armed with a fowling-piece, detected the prosecutor in the act of carrying away from his employer's lands a bundle of sticks, consisting of branches severed from the gi'owing timber by a recent storm ; that the prosecutor being SECT. III.] UNITED STATES V. CL.VRK, 319 apparently about to pass over a ditch and hedge upon the same lands, the prisoner cried out to him, "Have you no other way of going l)ut breaking the hedge?" that the prosecutor made no reply, but instantly dropped the wood and U'ai)ed the ditch ; that the prisoner thereupon said, ''If you don't stop I '11 fire ; " that the prosecutor still going on, the prisoner discharged his piece and wounded the prosecutor in the head, back, and arms. When the prosecutor felt himself wounded he said to the prisoner, who had come up with him, "I did not think you would have done it ;" to which the latter replied, "I would do that and worse to you." ir. Gorman^ for the prisoner, submitted that, under the circum- stances, he (the prisoner) was entitled to an acquittal ; that he, being the woodranger of the owner of the soil, had an equal right to defend the i)ropcrty thereon ; and that, having detected the prisoner in the act of committing a felon}-, l)y carrying off the dissevered timber, he had made use of the only means in his power for the purpose of arresting the felon. Tickell, Q. C, for the Crown. The prosecutor was a mere trespasser. DoHEiiTY, C. J. He was something more than a trespasser ; there is no doubt that the prosecutor, in carrying away the branches, previously dissevered from the trees, was committing a felony, and the prisoner was clearly entitled to arrest him ; but in discharging his gun at the prosecutor, and perilling his life, the prisoner has very much exceeded liis lawful powers, and I cannot allow it to go abroad that it is lawful to fire upon a person committing trespa and larcenv, for that would be punishing, perhaps with death, offences for which the law has pro- vided milder penalties. It appears, moreover, that the expressions addressed by the prisoner to the prosecutor had reference rather to the acta of trespass than the felony. Verdict, G-uilty.^ UNITED STATES v. CLARK. U. S. Circuit Court, E. Dist. Michigan. 1887. {Reported 31 Federal Reporter, 710.] Brown, J. In view of the fact that this was a homicide committed by one soldier, in the performance of his alleged dut3% upon another soldier, within a military reservation of the United States, I had at first sonie doubt whether a civil court could take cognizance of the case at all ; but, as crimes of this nature have repeatedly been made the subject of inquiry by civil tribunals, I have come to the conclusion that I ought not to decline to hear this complaint. Indeed, it is difficult to see how I could refuse to do so without abdicating that supremacy of the civil 1 See ace. Storey v. State, 71 Ala. 329. — Ed. 320 UNITED STATES V. CLARK. [CHAP. IX. power which is a fundamental principle of the Anglo-Saxor; polit3% While there is no statute expressl}- conferring such jurisdiction, there is a clear recognition of it in tiie fiftj^-ninth article of war, which pro- vides that " when au}- officer or soldier is accused of a capital crime, or of an}' offence against the person or propert}- of any citizen of any of the United States, which is punishable by the laws of the land, the commanding officer, and the officers of the regiment, troop, battery, company, or detachment to which the person so accused belongs, are required (except in time of war), upon application duly made hy or in behalf of the party injured, to use their utmost endeavors to deliver him over to the civil magistrate, and to aid the officers of justice in apprehending him and securing him, in order to bring him to trial." This article makes no exception of crimes committed by one soldier upon another, nor of cases where there is concurrent jurisdiction in the military courts. Ty tier, in his work upon Military Law, sa3's : "The martial or military law, as contained in the mutiny act and articles of war, does in no respect supersede or interfere with the civil or munici- pal laws of the realm. . . . Soldiers are, equally with all other classes of citizens, bound to the same strict observance of the laws of the countr}', and the fulfilment of all their social duties, and are alike amenable to the ordinary' civil and criminal courts of the country for all offences against those laws, and breaches of those duties." In the case of U. S. v. Cornell, 2 Mason, 61, 91, Mr. Justice Story took cognizance of a murder committed by one soldier upon another in Fort Adams, Newport harbor. The case was vigorously contested, and the point was made that the State courts had jurisdiction of the offence, but there was no claim that there was nof jurisdiction in some civil tribunal. A like case was that of a murder committed in Fort Pulaski, at the mouth of the Savannah River, and tried in 1872 before Mr. Justice Woods and Judge Erskine. U. S. v. Carr, 1 Woods, 480. No question was raised as to the jurisdiction. The subject of the civil responsibility of the army was very carefully considered by Attorne}''- General Gushing, in Steiner's Case, 6 Ops. Atty.-Gen. 413, and the conclusion reached that an act criminal both by military and general law is subject to be tried either by a military or civil court, and that a conviction or acquittal by the civil authorities of the offence against the general law does not discharge from responsibility for the military offence involved in the same facts. The converse of this proposition is equally true. The character of the act involved in this case presents a more seri- ous question. The material facts are undisputed. There is no doubt that the deceased was killed b\' the prisoner under the performance of a supposed obhgation to prevent his escape by any means in his power. There is no evidence that the prisoner fired before the necessity for his doing so had become apparent. Stone was called upon several times to halt, with a hail by the quartermaster sergeant that there was " a load after him." Duff, his nearest pursuer, was not SECT. III.] UNITED STATES V. CLARK. 321 gaining upon him, nnd in another half-minute he would have scaled the two fences between him and the highway, and would probably have been lost in the houses that lie on the other side of the street. A court of inquiry, called for the purpose of fully investigating the circum- stances, was of the opinion that if Clark had not performed iiis duty as eJficiently as he did, by firing on deceased, he certainly would have effected his escape ; and found that no further action was necessary in the case. The prisoner and the deceased had always been good friends, and it is at least doubtful whether Clark recognized him at the time of firing the fatal siiot. The prisoner has heretofore borne a most excellent reputation, was never court-martialled nor punished, and was pronounced by all the witnesses who testified upon the subject to be au exceptionally good soldier. There is not the slightest reason to suppose that he was not acting in obedience to what he believed to be his duty in the premises. There was some conllicting testimony as to whether he was standing or kneeling at the time he fired, but I am not able to see its raaterialit}'. If he was authorized to shoot at all, he was at liberty to take such position as would insure the most accurate aim, whether his object was to hit the deceased in the leg or in the body. Clark says that he aimed low, for the purpose of merel}' disabling him, but, owing to a sudden descent in the ground, the shot took etfect in the back instead of the leg. For the purpose of this examination, however, I am bound to presume that he intended to kill, as a man is always presumed to intend the natural and probable consequences of his acts. The case, then, reduces itself to the naked legal proposition whether the prisoner is excused in law in killing tlie deceased. The general rule is well settled, by elementary writers upon criminal law, that an officer having custody of a person charged with felon}' may take his life, if it becomes absolutel}'- necessary to do so to prevent his escape ; but he may not do this if he be charged simply with a misde- meanor ; the theory of the law being that it is better that a misdemean- ant escape than that human life be taken. I doubt, however, whether this law would be strictly applicable at the present day. Suppose, for example, a person were arrested for petit larceny, which is a felony at the common law, might an officer under any circumstances be justified in killing him? I think not. The punishment is altogether too dispro- portioned to the magnitude of the oflTence. Perhaps, under the statute of this state, 2 How. St. § 9430, wherein a felony is " construed to mean an offence for which the offender, on conviction, shall be liable by law to be punished by death, or by imprisonment in the state prison," the principle might still be applied. If this statute were applicable to this case, it would operate as a justification, since Stone had been convicted and sentenced to hard labor in a military prison. Under the recent case orUx parte Wilson, 114 U. S. 417, 5 Sup. Ct. Rep. 935, it was adjudged by the Supreme Court, upon full consideration, that a crime punishable by imprisonment for a term of years at hard labor was aq ''infamous crime," within the meaning of the Constitution. 21 3^2 UNITED STATES V. CLARK. [CHAP. IX. Manifestly, however, the case must be determined by different con- siderations. Stone had been court-martialled for a military offence, in which there is no distinction between felonies and misdemeanors. His crime was one wholly unknown to the common law, and the technical definitions of that law are manifestly inappropriate to cases which are not contemplated in the discussion of common-law writers upon the sub- ject. We are bound to take a broader view, and to measure the rights and liabilities of the prisoner by the exigencies of the military service, and the circumstances of the particular case. It would be extremely unwise for the civil courts to lay down general principles of law which would tend to impair the efficiency of the military arm, or which would seem to justify or condone conduct prejudicial to good order and mili- tary discipline. An army is a necessity — perhaps I ought to say an unfortunate necessity — under every system of government, and no civilized state in modern times has been able to dispense with one. To insure efficiency, an army must be, to a certain extent, a despotism. Each officer, from the general to the corporal, is invested with an arbi- trarv power over those beneath him, and the soldier who enlists in the army waives, in some particulars, his rights as a civilian, surrenders his personal liberty during the term of his enlistment, and consents to come and go at the will of his superior officers. He agrees to become amenable to the military courts, to be disciplined for offences unknown to the civil law, to relinquish his right of trial by jur}-, and to receive punishments which, to the civilian, seem out of all proportion to the magnitude of the offence. The articles of war, which he takes an oath, upon his enlistment, to observe, are in fact a military code of Draconic severit}*, and authorize harsh punishments for offences which seem to be of a trivial nature. Thus, by the articles of war, all the following crimes are punishable b}' death, or such other punishment as a court-martial may direct : strik- ing a superior officer ; drawing or lifting up a weapon, or offering any violence against him ; or disobeN'ing any lawful command. , Article 21. Exciting or joining in any mutiny or sedition. Article 22. Failing to use his utmost endeavors to suppress such mutin}' or sedition, or failing to give information thereof to his commanding officer. Article 23. A sentinel sleeping npon his post or leaving it before he is relieved. Article 39. Occasioning false alarms in camp or quarters. Article 41. Misbehaving himself before the enemy, running away, or shamefull}' abandoning any post which he is commanded to defend ; speaking words inducing others to do the like ; casting awa}^ his arms or ammu- nition, or quitting his post or colors to plunder or pillage. Article 42. Compelling the commander of any post to surrender it to the enemy, or to abandon it. Article 43. Making known the watchword to any person not entitled to receive it, or giving the watchword different from that which he has received. Article 44. Relieving the enemy with mone}', victuals, or ammunition, or harboring or protecting an enemy. Article 45. Holding correspondence or giving intelligence to an enemy. SECT. III.] UNITED STATES V. CLARK. 323 Article 46. Deserting in time of war. Article 47. Advising or per- suading another to desert in time of war. Article 51. Doing violence to any person bringing provisions or other necessaries to camp or quarters of troops in foreign parts. Article 56. Forcing a safeguard in a foreign territory or during a rebellion. Article 57. Some of these articles are applicable only to a state of war, but some of them treat of offences which may equally well be committed in time of peace. Besides these, there are a number of minor olfences punishable as a court-martial may direct, and a general and very sweeping article (No. 62) providing that all crimes not capital, and all disorders and neglects to the prejudice of good order and military discipline, shall be justiciable b}' a court-martial, and punishable at the discretion of the court. Now, while the punishment in iStone's case seems to the civilian quite disproportionate to the character of his offence, as charged in the specifications, which was no more nor less than the utterance of a malicious falsehood, when gauged by the penalties attached by Congress to the several offences contained in the articles of war, it does not seem so excessive ; at any rate, it was the lawful judgment of a court having jurisdiction of his case, and it was his duty to abide by it, or pursue his remedy in the method provided by law. In seeking to escape, the deceased was undoubtedly guilty of other conduct prejudicial to good order and military discipline, and was liable to such further punishment as a court-martial might inflict. In suffering him to escape, the prisoner became amenable to article 69, and, failing to use his utmost endeavor to prevent it, was himself subject to such punishment as a court-martial might direct. Did he exceed his authority in using bis musket ? I have made the above citations from the military code to show that the common-law distinction between felonies and misdemeanors is of no possible service in gauging the duty of a military guard with respect to a soldier in the act of escaping. His position is more nearly analogous to that of an armed sentinel stationed upon the walls of a penitentiary to prevent tlie escape of convicts. The penitentiary — and for this purpose we may use the house of correction in Detroit as an example — may contain convicted murderers, felons of every grade, as well as others charged with vagrancy or simple breaches of the peace, and criminals of all descriptions between the two. If the guard sees one of those prisoners scaling the wall, and there be no other means of arresting bim, may he not fire upon him without stopping to inquire whether he is a felon or a misdemeanant ? If he prove to be a felon, he will be fully justified ; if he prove to be a misdemeanant, is he therefore guilty of murder? There are undoubtedly cases where a person who has no mal- ice in fact may be charged with malice in law, and held guilty of murder through a misapprehension of the law. Thus, if a sheriff charged with the execution of a malefactor by hanging should carry out the sentence by shooting or beheading ; or, commanded to hang upon a certain day, should hang upon another day ; or if an unauthorized person should execute the sentence, — it would probably be murder at common law. 324 UNITED STATES V. CLARK. [CHAP. IX. But these cases are an exception to the general rule, that actual malice must exist to justify a conviction for murder. While human Ufe is sacred, and the man who takes it is held strictly accountable for his act, a reputable citizen, who certainly does not lose his character as such by enlisting in the army, ought not to be branded as a murderer upon a mere technicality, unless such technicality be so clear as to admit of no reasonable doubt. Thus, if a sentinel stationed at the gate of a fort should wantonly shoot down a civilian endeavoring to enter in the daytime, or an officer should recklessly slay a soldier for some mis- conduct or breach of discipline, no supposed obligation upon his part to do this would excuse so gross an outrage. In this connection it is urged by the defence that the finding of the court of inquiry acquitting the prisoner of all blame is a complete bar to this prosecution. I do not so regard it. If the civil courts have jurisdiction of murder, notwithstanding the concurrent jurisdiction b}' court-martial of military offences, it follows logically that the proceed- ings in one cannot be pleaded as a bar to proceedings in the other ; and if the finding of such court should conflict with the well-recognized principles of the civil law, I should be compelled to disregard it. State V. Rankin, 4 Cold. 145, At the same time I think that weight should be given, and in a case of this kind great weight, to the finding, as an expression of the opinion of the military court of the magnitude of Stone's offence, and of the necessity of using a musket to prevent his escape. I am the more impressed with this view from the difficulty of applying common law principles to a case of this description. There is a singular and almost total absence of authority upon the subject of the power of a military guard in time of peace. But considering the nature of military government, and the necessity of maintaining good order and discipline in a camp, I should be loth to say that life might not be taken in suppressing conduct prejudicial to such discipline. In charging the jury in U. S. v. Carr, 1 Woods, 484, Mr. Justice Woods instructed them to " inquire whether, at the moment he fired his piece at the deceased, with his surroundings at that time, he had rea- sonable ground to believe, and did believe, that the kilUng or serious wounding of the deceased was necessary to the suppression of a mutiny then and there existing, or of a disorder which threatened speedily to ripen into a mutiny. If he had reasonable ground so to believe, and did so believe, then the killing was not unlawful, . . . But it must be understood that the law will not require an officer charged with the order and discipline of a camp or fort to weigh with scrupulous nicety the amount of force necessary to suppress disorder. The exercise of a reasonable discretion is all that is required." So, in the case of McCail v. McDoweU, 1 Abb, (U. 8.) 212, 218, it is said that ' ' except in a plain case of excess of authority, where at first blush it is apparent and palpable to the commonest understanding that the order is illegal, I cannot but think that the law should excuse the military subordinate when acting in obedience to the order of his com- SECT. III.] UNITED STATES V. CLARK. 325 mander. Otherwise he is placed in the dangerous dilemma of being liable in damages to third persons for obedience to an order, or to the loss of his commission and disgrace for disobedience thereto. . . . The first duty of a soldier is obedience, and without this there can be neither discipline nor efficienc}' in the army. If every subordinate officer and soldier were at liberty to question the legality of the orders of the com- mander, and obey them or not as he may consider them valid or invalid, the camp would be turned into a debating school, where the precious moment for action would be wasted in wordy conflicts between the advocates of conflicting opinions." It is true this was a civil case for false imprisonment, and these observations were made with reference to a question of malice, which was material as bearing upon the plaintiflTs right to punitory damages, as it is also a necessary ingredient in the definition of murder. The question of the civil rcsponsibilit}' of a naval oflficer (and his criminal responsibility seems to be the same) was considered by the Supreme Court in Wilkes v. Dinsman, 7 How. 89, which was an action of trespass against Commodore Wilkes for causing the plaintiff to be whipped and imprisoned for disobedience of orders, near the Sandwich Islands. In discussing the responsibility of the commanding oflScer of a vessel of war, Mr. Justice Woodbury observed : "In respect to those compulsor}' duties, whether in re-enlisting or detaining on board, or in punishing or imprisoning on shore, while arduously endeavoring to per- form them in such a manner as might advance the science and com- merce and glory of his country, rather than his own personal designs, a public oflficer, invested with certain discretionary powers, never has been, and never should be, made answerable for any injury-, when acting within the scope of his authority, and not influenced by malice, corruption, or cruelty. . . . The officer, being intrusted with a dis- cretion for public purposes, is not to be punished for the exercise of it, unless it is first proved against him, either that he exercised the power confided to him in cases without his jurisdiction, or in a manner not confided to him, as, with malice, cruelty, or wilful oppression, or, in the words of Lord Mansfield, that he exercised it as if ' the heart is wrong.' In short, it is not enough to show that he committed an error in judgment, but it must have been a malicious and wilful error." The same principle was applied in the criminal case of Riggs v. State, 3 Cold. 85. Riggs was a private soldier who had been convicted of murder in killing a man while acting under the orders of his su|>erior officer. The court held that an order illegal in itself, and not justifiable by the rules and usages of war, so that a man of ordinary sense and un- derstanding would know, when he heard it read or given, that the order was illegal, would afford the private no protection for a crime under euch order ; but that an order given b}' an officer to his private which does not expressly and clearly show on its face, or the body thereof, its own illegality, the soldier would be bound to obey, and such order would be a protection to him. 326 SELF-DEFENCE. [CHAP. IX. I have no doubt the same principle would apply to the acts of a subordinate officer, performed in compliance with his supposed duty as a soldier ; and unless the act were manifestly bej'ond the scope of his authority, or, in the words used in the above case, were such that a man of ordinary' sense and understanding would know that it was illegal, that it would be a protection to him, if he acted in good faith and without mahce. As there is no reason in this case to suppose that Clark was not doing what he conceived to be his duty, and the act was not so clearly illegal that a reasonable man might not suppose it to be legal, — indeed, I incline to the opinion that it was legal, — and as there was an entire absence of malice, I think he ought to be discharged. But, even if this case were decided upon common-law principles, the result would not be different. By the statutes of the State in which the homicide was committed, a felony is defined to be any crime punishable by imprisonment in the State's prison. Stone had been convicted of a military offence, and sentenced to hard labor in the militar}- prison for two years, and, so far as the analogies of the common law are applicable at all, he must be considered, in a case of this kind, as having been convicted of a felony. It maj' be said that it is a question for a jur}', in each case, whether the prisoner was justified by the circumstances in making use of his musket, and if this were a jury trial I should submit that question to them ; but as I am bound to find as a matter of fact that there is reasona- ble cause to believe the defendant guilty, not merely of a homicide, but ot Si felonious homicide, and as I would, acting in another capacity, set aside a conviction, if a verdict of guilty were rendered, I shall assume the responsibility of directing his discharge. SECTION IV. Self-defence. Foster, C. L. 273. Self-defence naturally falleth under the head of homicide founded in necessity, and may be considered in two different views. It is either that sort of homicide se et sua defendendo, which is perfectly innocent and justifiable, or that which is in some measure blameable and barel}' excusable. The want of attending to this dis- tinction hath, I believe, thrown some darkness and confusion upon this part of the law. The writers on the Crown Law, who, I think, have not treated the subject of self-defence with due precision, do not in terms make the distinction I am aiming at, 3'et all agree that there are cases in which a man may, without retreating, oppose force to force, even to the death. This I call justifiable self-defence, they justifiable homicide. They likewise agree that there are cases in which the defendant can* SliCT. IV.] SELF-DKFEN'CE. 327 not avail himself of the idea of self-defence without showing that he retreuteil as fur as he could with safety, and then, merely for ihe prea- crvation of his own life, killed the assailant. This 1 call selfdefeuce culpable, but through the benignity of the law excusable. In the case of justifiable self-defence the injured party may repel force by force in defence of his person, habitation, or projierty, against one who manifestly intendeth and endeavoreth l»y violence or surprise to commit a known felony upon either. In these cases he is not obligele opportunity, to endeavor to remove him witliout having recourse to the last extremity. But the making an attack upon a dwelling, and especially at night, the law regards as equivalent to an assault on a man's person ; for a man's house is his castle ; and, therefore, in the eye of the law, it is equivalent to an assault; but no words or singing are equivalent to an assault; nor will they authorize an assault in return, «S:c. . . . There are cases where a person in heat of blood kills another, that the law does not deem it murder, but lowers the offence to manshuighter; as, where a party coming up by way of making an attack, and without there being any previous apprehension of danger, the party attacked, instead of having recourse to a more reasonable and less violent mode of averting it, having an opportunity so to do,^ fires on the impulse of the moment. In the present case, if you are of opinion that the prisoner was really attacked, and that the party were on the point of breaking in, or likely to do so, and execute the threats of the day before, he, perhaps, was justified in firing as he did. If you are of opinion that he intended to fire over and frighten, then the case is one of manslaughter and not of self-defence." The sense in which one's house is his castle, and he may defend him- self within it, is shown by what is said in 1 Hale P. C. 486, that ''in case he is assaulted in his own house, he need not flee as far as he can, as in other cases of se defendeiido, for he hath the protection of his "■/ house to excuse him from flying, as that would be to give up the pro- ^^ tection of his hou.se to his adversary by flight." Now, set over against that what is said in 1 Russell, 602, and the true distinction between the house as property, on the one hand, and as castle for protection on the other, is very palpable, viz. : "If A., in defence of his house, kill B., a trespasser, who endeavors to make an entry upon it, it is, at least, com- mon manslaughter, unless, indeed, there were danger of life ; " p. 663. " But where the trespass is barely against the property of another, the law does not admit the force of the provocation as sufficient to warrant the owner in making use of a deadly or dangerous weapon ; more par- ticularly if such violence is used after the party has desisted from the trespass." In Carroll v. State, 23 Ala. 36, it is said: "The owner may resist the entry into his house, but he has no right to kill, unless it be rendered necessary in order to prevent a felonious destruction of his property, or to defend himself against loss of life, or great bodily harm." Cited 2 Bishop Crim. Law, § 707, 5th ed. That case impresses us dif- ferently from what it does the learned author, as indicated by his remark prefacing the citation. As developing and illustrating the prevailing idea of the law as to what will justify homicide se et sua defendendo, it is not without inter- 352 STATE r. PATTERSON. [CHAP. IX. est upon the point now under consideration, to advert to what is said upon the general subject. In McNall}-, 562^ it is said: "Tiie injured party may repel force by force in defence of his person, habitation, or property-, against one who manifestly intendeth and endeavoreth by violence or surprise to commit a known felonj' upon either. In these cases he is not obliged to retreat, but may pursue his adversary until he findeth himself out of danger ; and if in such conflict he happeneth to kill, such killing is justifiable." Wharton incorporates this into his work as text. The same is found in the older books. 1 Hale P. C. 485, 486 ; also in Foster's Crown Law, 273 ; 1 Russell, G67 ; and in other books, ad lib. But to apprehend this in its true scope and application, it is important to have in mind what is said in 1 Russell, 668: "The rule clearly extends only to cases of felon}' ; for, if one come to beat another, or take his goods merely as a trespasser, though the owner may justify the beating of him so far as to make him desist, 3'et if he kill him, it is manslaughter. . . . No assault, however violent, will jus- tify killing the assailant under a plea of necessity, unless there be a manifestation of felonious intent." See Archb. Crim. Law, 221, cited 9 C. & P. 24. This covers the cases of statutory justification of homicide, both under our own, and under the English statutes, and, in principle, and in rea- son, it is in keeping with the common law as to se defejidendo, in defining the scope of which in this respect, it is well laid down that, " before a person can avail himself of the defence that he used a weapon in defence of his life, it must appear that that defence was necessary to protect his own life, or to protect himself from such serious bodily harm as would give him reasonable apprehension that his life was in immediate danger." 1 Russell, 661. The law of the subject, as given in the books thus cited and referred to, seems to have been adequately apprehended by the court, and, so far as we can judge from what is shown bj" the record before us, it was not administered erroneousl}' or improperly in the trial, as against the respondent. If it were to be assumed that the defence might legitimate!}- claim that there was an assault on the house, with the intent either of taking the life of the respondent or doing to him great bodily harm, the respondent would be justified in using a deadly weapon, if it should be necessary in order to prevent the perpeti-ation of such crime, or if, under the existing circumstances attending the emergenc}', the respond- ent had reason to believe, and was warranted in believing, and, in fact, did believe, that it was necessary in order to prevent the commission of such crime. In case the purpose of the assailant was to take life, or inflict great bodily harm, and the object of his attack (if there was such attack) upon the house was to get access to the inmate occupj'ing the same, for such purpose, the same means might lawfull}' be used to prevent him from breaking in as might be used to prevent him from making the harmful assault upon the person, in case the parties were SECT. VI.] COMMONWEALTH V. DONAHUE. 353 met face to face in an}- other place. In either case the point of justi- fication is that such use of fatal means was necessary in order to the rightful, elTectual protection of the respondent, or his family, from the threatened or impending peril. We have been led to this discussion and exposition of the law as to the defence of the dwelling-house, on account of the somewhat frag- mentary and disjointed condition in which it is done up in the books and cases of criminal law, and for the purpose of rendering as explicit as we are able the views of this court on that subject, as it has been brought into question and debate in the case in hand. In this exposi- tion, and in the views embodied in this opinion, all the members of the court concur. The other subjects involved in grounds and points of defence, as shown by the bill of exceptions, and upon which the court gave instruc- tions to the jury, do not seem to require discussion. The verdict is set aside, and new trial granted. COMMONWEALTH v. DONAHUE. ScPKEME Judicial Court of Massachusetts. 1889. [Reported 148 Afassachusetts, .'>29.] Holmes, J. This is an indictment for robber}', on which the defend- ant has been found guilty of an assault. The evidence for the Com- monwealth was, that the defendant had bought clothes, amounting to twenty-one dollars and fift^'-five cents, of one Mitchelman, who called at the defendant's house, b}' appointment, for his pay ; that some dis- cussion arose about the bill, and that the defendant went upstairs, brought down the clothes, placed them on a chair, and put twenty dollars on a table, and told Mitchelman that he could have the money or the clothes ; that Mitchelman took the mone}' and put it in his pocket, and told the defendant he owed him one dollar and fifty-five cents, whereupon the defendant demanded his money back, and on ^Mitchelman refusing, attacked him, threw him on the floor, and choked Iiim until Mitchelman gave him a pocketbook containing twenty-nine dollars. The defendant's counsel denied the receiving of the pocket- book, and said that he could show that the assault was justifiable, under the circumstances of the case, as the defendant believed that he had a right to recover his own money bj' force if necessaiy. The liresiding justice stated that he should be obliged to rule that the defendant would not be justified in assaulting Mitchelman to get his own money, and that he should rule as follows : " If the jur}- are satis- fied that the defendant choked and otherwise assaulted Mitchelman, they would be warranted in finding the defendant guilty, although the sole motive of the defendant was by this violence to get from Mitche^ 23 354 COMMONWEALTH V. DONAHUE. [CHAP. IX. man b}' force money which the defendant honestl}' believed to be hia on'n." Upon this the defendant saved his exceptions, and declined to introduce evidence ; the jury were instructed as stated, and found the defendant guilty. On the evidence for the Commonwealth, it appeared, or at the lowest the jury might have found, that the defendant offered the twenty dollars to Mitchelraan only on condition that Mitchelman should accept that sum as full payment of his disputed bill, and that Mitchelman took the money, and at the same moment, or just afterwards, as part of the same transaction, repudiated the condition. If this was the case, — since Mitchelman, of course, whatever tlie sum due him, had no right to that particular money except on the conditions on which it was offered (Commonwealth v. Stebbins, 8 Gray, 492), — he took the money wrongfully from the possession of the defendant, or the jury might have found that he did, whether the true view be that the defendant did not give up possession, or that it was obtained from him by Mitchel- man's fraud. Commonwealth v. Devlin, 141 Mass. 423, 431 ; Chisser's Case, T. Raym. 275, 276 ; Regina v. Thompson, Leigh & Cave, 225 ; Regina v. Stanley, 12 Cox C. C. 269 ; Regina v. Rod way, 9 C. & P. 784 ; Rex v. Williams, 6 C. & P. 390 ; 2 East P. C. c. 16, ss. 110, 113. See Regina v. Cohen, 2 Den. C. C. 249, and cases infra. The defend- ant made a demand, if that was necessary, which we do not imply, before using force. Green v. Goddard, 2 Salk. 641 ; Polkinhorn v. Wright, 8 Q. B. (N. S.) 197; Commonwealth v. Clark, 2 Met. 23, 25, and cases infra. It is settled bj' ancient and modern anthorit}- that, under such cir- cumstances, a man may defend or regain his momentarily interrupted possession by the use of reasonable force, short of wounding or the employment of a dangerous weapon. Commonwealth v. Lynn, 123 Mass. 218; Commonwealth v. Kennard, 8 Pick. 133; Anderson v. State, 6 Baxter, 608; State v. Elliot, 11 N. H. 540, 545; Rex v. Milton, Mood. & Malk. 107 ; Y. B. 9 Edw. IV. 28, pi. 42 ; 19 Hen. VL 31, pi. 59 ; 21 Hen. VL 27, pi. 9. See Seaman v. Cuppledick, Owen, 150 ; Taylor v. Markham, Cro. Jac. 224 ; s. c. Yelv. 157, and 1 Brownl. 215 ; Shingleton v. Smith, Lutw. 1481, 1483 ; 2 Inst. 316 ; Finch, Law, 203 ; 2 Hawk. P. C c. 60, s. 23 ; 3 Bl. Com. 121. To this extent the right to protect one's possession has been regarded as an extension of the right to protect one's person, with which it is generallv mentioned. Baldwin v. Hayden, 6 Conn. 453 ; Y. B. 19 Hen. VL 31, pL 59 ; Rogers V. Spence, 13 M. & W. 571, 581 ; 2 Hawk. P. C. c. 60, s. 23 ; 3 Bl. Com. 120, 131. We need not consider whether this explanation is quite adequate. There are weighty decisions which go further than those above cited, and which hardly can stand on the right of self-defence, but involve other considerations of policy. It has been held that, even where a considerable time had elapsed between the wrongful taking of the defendant's property and the assault, the defendant liad a right to SECT. VI.] COMMONWEALTH V. DONAHUE. 355 regain possession by reasonable force, after demand upon the third person in possession, in like manner as he might have protected it without civil liability. Whatever tlie true rule may be, probably there is no difference in this respect between the civil and the criminal law. Blades V. Higgs, 10 C. B. (N. S.) 713 ; 12 C. B. (N. S.) 501 ; 13 C. B. (N. S.) 844; and 11 II. L. Cas. 621 ; Commonwealth v. McCue, 16 Orav, 226, 227. The principle has been extended to a case where the defendant had yielded possession to the person assaulted, through the fraud of the latter. Hodgeden v. Hubbard, 18 Vt. 504. See Johnson f. Perry, 56 Vt. 706. On the other hand, a distinction has been taken between the right to maintain possession and the right to regain it from another who is peaceably established in it, although the possession of the latter is wrongful. Bobb v. Bosworth, Litt. Sel. Cas. 81. See Barnes v. Martin, 15 Wis. 240 ; Andre v. Johnson, 6 Blackf. 375 ; Davis V. Whitridge, 2 Strobh. 232 ; 3 Bl. Com. 4. It is unnecessary to decide whether, in this case, if Mitchelman had taken the money with a fraudulent intent, but had not repudiated the condition until afterwards, the defendant would have had any other remedy than to hold him to his bargain if he could, even if he knew that Mitchelman still had the identical money upon his person. If the force used by the defendant was excessive, the jury would have been warranted in finding him guilty. Whether it was excessive or not was a question for them ; the judge could not rule that it was not, as matter of law. Commonwealth v. Clark, 2 Met. 23. Therefore the instruction given to them, taken only literally, was correct. But the preliminary statement went further, and was erroneous ; and coup- ling tliat statement with the defendant's offer of proof, and his course after the rulings, we think it fair to assume that the instruction was not understood to be limited, or, indeed, to be directed to the case of excessive force, which, so far as appears, had not been mentioned, but that it was intended and understood to mean that any assault to regain his own money would warrant finding the defendant guilty. Therefore the exceptions must be sustained. It will be seen that our decision is irrespective of the defendant's belief as to what he had a right to do. If the charge of robbery had been persisted in, and the difficulties which we have stated could have been got over, we might have had to consider cases like Regina v. Boden, 1 C. & K. 395, 897 ; Regina v. Hemmings, 4 F. & F. 50 ; State V. Hollyway, 41 Iowa, 200. Compare Commonwealth v. Steb- bins, 8 Gray, 492 ; Commonwealth v. McDuffy, 126 Mass. 4G7. There is no question here of the effect of a reasonable but mistaken belief with regard to the facts. State v. Nash, 88 N. C. 618. The facts were as the defendant believed them to be. deceptions sustai?ied. 356 EEGINA V. B AMBER. [CHAP. IX, SECTION VII. I\fecess{ti/, Bacon, Maxims, reg. 5. If a man steal viands to satisfy his present hunger, this is no felony nor larceny. So if divers be in danger of drowning by the casting away of some boat or bark, and one of them get to some plank, or on the boat side to keep himself above water, and another to save his life thrust him from it, whereb}- he is drowned, this is neither se defendendo nor by misadventure, but justifiable. So if divers felons be in a gaol, and the gaol by casualt}- is set on fire, whereb}' the prisoners get forth, this is no escape, nor breaking of prison. So upon the statute that every merchant that setteth his merchandise on land without satisfying the customer or agreeing for it (which agreement is construed to be in certainty), shall forfeit his merchandise ; and it is so that by tempest a great quantit}' of the merchandise is cast overboard, whereby the merchant agrees with the customer by estimation, which falleth out short of the truth ; yet the over quantity is not forfeited, b}" reason of the necessity ; where note that necessit}' dispenseth with the direct letter of a statute law. REGINA V. BAMBER. Queen's Bench. 1843. [Reported 5 Queen's Bench, 279.] Lord Denman, C. J.^ I think the defendant below is entitled to judgment. Both the road which the defendant is charged with liability to repair and the land over which it passes are washed away by the sea. To restore the road, as he is required to do, he must create a part of the earth anew. I do not rel}' much upon the argument that the ancient line of highway has been removed. But here all the mate- rials of which a road could be made have been swept awa}' b}' the act of God. Under those circumstances can the defendant be liable for not repairing the road? We want an authority for such a proposition, and none has been found. * The opinion only is given ; it sufficiently states the case. SECT. VII.] REGLN'A V. DUDLEY. 357 /I M REGINA V. DUDLEY. Queen's Bench Division. 1884. {Reported 15 Cox C. C. 624, 14 Q. B. D. 273.] Lord Colekiuge, C. J.^ The two prisoners, Thomas Dudley and Edwin Stephens, were indicted for the murder of Richard Parker on the high seas on the 2otli day of July in the present year. Tliey were tried before my brotlier Iluddleston at Exeter on the Gth day of November, and under the direction of my learned brother, the jury returned a special verdict, the legal etfect of which has been argued before us, and on which we are now to pronounce judgment. The special verdict is as follows. [TAe learned judge read the special verdict.] From these facts, stated with the cold precision of a special verdict, it appears sufficiently that the prisoners were subject to ter- rible temptation and to sutferings which might break down the bodily power of the strongest man and try the conscience of the best. Other details yet more harrowing, facts still more loathsome and appalling, were presented to the jury, and are to be found recorded in my learned brother's notes; but nevertheless this is clear, — that the prisoners put to death a weak and unoffending boy upon the chance of preserv- ing their own lives by feeding upon his flesh and blood after he was killed, and with a certainty of depriving him of any possible chance of survival. The verdict finds in terms that " if the men had not fed upon the body of the boy, they would probably not have survived," and that " the boy, being in a much weaker condition, was likely to have died before them." They might possibly have been picked up next day by a passing ship ; they might possibly not have been picked up at all ; in either case it is obvious that the killing of the boy would have been an unnecessary and profitless act. It is found by the ver- dict that the boy was incapable of resistance, and, in fact, made none ; and it is not even suggested that his death was due to any violence on bis part attempted against, or even so much as feared b}', them who killed him. Under these circumstances the jury say they are ignorant ■whether those who killed him were guilty of murder, and have referred it to this court to say what is the legal consequence which follows from the facts which they have found. There remains to be consid- ered the real question in the case, -whether killing, under the circum- stances set forth in the verdict, be or be not murder. The contention that it could be anything else was to the minds of us all both new and strange ; and we stopped the Attorney-General in his negative argu- ment that we might hear what could be said in support of a proposi- tion which appeared to us to be at once dangerous, immoral, and opposed to all legal principle and analogy. All, no doubt, that can 1 Part of the opinion only is given. 358 EEGINA V. DUDLEY. [CHAP. IX. be said has been urged before us, and we are now to consider and determine what it amounts to. First, it is said that it follows, from various definitions of murder in books of authority — which definitions imply, if they do not state, the doctrine — that, in order to save your own life you may lawfully take awa}' the life of another, when that other is neither attempting nor threatening yours, nor is guilty of any illegal act whatever towards 3'ou or any one else. But if these defini- tions be looked at, they will not be found to sustain the contention. The earliest in point of date is the passage cited to us from Bracton, who wrote in the reign of Henry III. It was at one time the fashion to discredit Bracton, as Mr. Reeves tells us, because he was supposed to mingle too much of the canonist and civilian with the common lawyer. There is now no such feeling ; but the passage upon homi- cide, on which reliance is placed, is a remarkable example of the kind of writing which may explain it. Sin and crime are spoken of as apparently equally illegal ; and the crime of murder, it is expressly' declared, may be committed lingua vel facto ; so that a man like Hero, " done to death by slanderous tongues," would, it seems, in the opinion of Bracton, be a person in respect of whom might be grounded a legal indictment for murder. But in the very passage as to necessity on which reliance has been placed, it is clear that Bracton is speaking of necessity in the ordinar}- sense, — the repelling b}- violence, vio- lence justified so far as it was necessar}' for the object, any illegal violence used towards one's self. If, says Bracton (Lib. iii. Art. De Corona, cap. 4, fol. 120), the necessity be evitabilis et evadere posset absque occisione, tunc erit reus homicidii, — words which show clearl}' that he is thinking of physical danger, from which escape may be pos- sible, and that inevitabilis necessitas, of which he speaks as justifying homicide, is a necessity of the same nature. It is, if possible, 3'et cleai'er that the doctrine contended for receives no support from the great authority of Lord Hale. It is plain that in his view the necessity which justifies homicide is that only which has always been, and is now, considered a justification. "In all these cases of homicide by necessity," says he, '• as in pursuit of a felon, in killing him that assaults to rob, or comes to burn or break a house, or the like, which are in themselves no felony" (1 Hale P. C. 491). Again, he says that the necessity which justifies homicide is of two kinds : " (1) That necessity which is of a private nature ; (2) That necessity which re- lates to the pubUc justice and safety. The former is that necessity which oblige th a man to his own defence and safeguard ; and this takes in these inquiries : (1) What may be done for the safeguard of a man's own life," — and then follow three other heads not necessary to pursue. Then Lord Hale proceeds: "(1) As touching the first of these, namely, homicide in defence of a man's own life, which is usually styled se defendendo " (1 Hale P. C. 478). It is not possible to use words more clear to show that Lord Hale regarded the private neces- sity which justified, and alone justified, the taking the life of another SECT. VII.] KEGINA. V. DUDLEY. 359 for the safeguard of one's own to be what is commonly called self- defence, lint if this could be even doubtful upon Lord Hale's words, Lord Hale liimself has made it clear ; for in the chapter in which he deals with the exemption created by compulsion or necessity, he thus expresses himself: " If a man be desperately assaulted and in peril of death and cannot otherwise escape, unless to satisfy his assailant's fury he will kill an innocent person then present, the feav and actual force will not acquit him of the crime and punishment of murder if he commit the fact, for he ought rather to die himself than to kill an innocent ; but if he cannot otherwise save his own Ufe, the law permits him in his own defence to kill the assailant, for, by the violence of the assault and the offence committed upon him by the assailant himself, the law of nature and necessity hath made him his ov^n protector cum dehito modemmine Inculpatce tutelce (1 Hale P. C. 51). But, further still : Lord Hale in the following chapter deals with the position as- serted by the casuists and sanctioned, as he says, by Grotius and Puf- fendorf, that in a case of extreme necessity, either of hanger or cloth- ing, '^ theft is no theft, or at least not punishable as theft; and some even of our own lawyers have asserted the same ; " " but," says Lord Hale, "I take it that here in England that rule, at least by the laws of England, is false ; and therefore if a person, being under necessity for want of victuals or clothes, shall upon that account clandestinely and anhno furandi steal another man's goods, it is a felony and a crime by the laws of England punishable with death " (1 Hale P. C 54). If therefore Lord Flale is clear, as he is, that extreme necessity of hunger does not justify larceny, what would he have said to the doctrine that it justified murder? It is satisfactory to find that an- other great authority, second probably only to Lord Hale, speaks with the same unhesitating clearness on this matter. Sir Michael Foster, in the third chapter of his "Discourse on Homicide," deals with the sub- ject of Homicide Founded in Necessity ; and the whole chapter im- plies, and is insensible unless it does imply, that in the view of Sir Michael Foster, necessity and self-defence (which in section 1 he defines as "opposing force to force even to the death") are con- vertible terms. There is no hint, no trace of the doctrine now con- tended for ; the whole reasoning of the chapter is entireh' inconsistent with it. In East (1 East P. C. 271), the whole chapter on Homicide by Ne- cessity is taken up with an elaborate discussion of the limits within which necessit}' — in Sir Michael Foster's sense (given above) — of self-defence is a justification of or excuse for homicide. There is a short section at the end (p. 294) very generally and very doubtfully expressed, in which the onh* instance discussed is the well-known one of two shipwrecked men on a plank able to sustain only one of them ; and the conclusion is left by Sir Edward East entirely undetermined. What is true of Sir Edward East is true also of Mr. Serjeant Haw- kins. The whole of his chapter on Justifiable Homicide assumes that 360 REGINA V. DUDLEY. [CHAP. IX. the only justifiable homicide of a private nature is in defence against force of a man's person, house, or goods. In the 26th section we find again the case of the two shipwrecked men and the single plank, with this significant expression from a careful writer : "■ It is said to be jus- tifiable." So, too, Dalton, c. 150, clearly considers necessity and self-defence, in Sir Michael Foster's sense of that expression, to be convertible terms, — though he prints without comment Lord Bacon's instance of the two men on one plank as a quotation from Lord Bacon, adding nothing whatever to it of his own ; and there is a remarkable passage at page 339, in which he says that even in the case of a mur- derous assault upon a man, yet before he ma}- take the life of the man who assaults him, even in self-defence, cuncta 2^fius teutanda. The passage in Staundforde, on which almost the whole of the dicta we have been considering are built, when it comes to be examined, does not warrant the conclusion which has been derived from it. The necessit}^ to justify homicide must be, he says, inevitable ; and the example which he gives to illustrate his meaning is the ver}' same which has just been cited from Dalton, showing that the necessit}' he was speaking of was a physical necessity and the self-defence a defence against physical violence. Russell merely* repeats the language of the old text-books and adds no new authority nor any fresh considerations. Is there, then, an}' authority for the proposition which has been pre- sented to us? Decided cases there are none. The case of the seven English sailors referred to by the commentator on Grotius and by Piiffendoif has been discovered by a gentleman of the Bar — who communicated with my brother Huddleston — to conve}' the authority, if it conveys so much, of a single judge of the island of St. Kitts, when that island was possessed partlv b}' France and partly hy this country-, somewhere about the 3'ear 164L It is mentioned in a medical treatise published at Amsterdam, and is altogether, as authorit}' in an English court, as unsatisfactory as possible. The American case cited by m}' brother Stephen in his digest from Wharton on Homicide, page 237, in which it was decided, correctly, indeed, that sailors had no right to throw passengers overboard to save themselves, but on the somewhat strange ground that the proper mode of determining who was to be sacrificed was to vote upon the subject b}' ballot, can hardly, as my brother Stephen says, be an authority satisfactory to a court in this countrj'.^ The observations of Lord Mansfield in the 1 "The case does not become 'orted 5 Carrimjion Sp Pnyne, 133.] Indictment on the stat. 7 & 8 Geo. 4, c. 30, s. 4, for destroying a threshing machine, the property of a person named Austin. There were other counts for damaging it with intent to destroy it, and for damaging it with intent to render it useless. It appeared that, about ten o'clock in the night of the 22d of November, 1830, a mob came to the farm of Mr. Austin, and broke his threshing machine to pieces. It was proved that the prisoner was with 368 UNITED STATES V. JONES. [CHAP. IX. this mob, and that he gave the threshing machine a blow with a sledge- hammer. Mr. Justice Patteson allowed the witnesses for the prosecution to be asked, in cross-examination, whether many persons had not been com- pelled to join this mob against their will, and whether the mob did not compel each person to give one blow to each threshing machine that they broke. For the defence "William Davis was called. He was the gamekeeper of Mrs. Bainbridge, in whose service the prisoner was an under-keeper. He stated that, being on the watch at Mrs. Bainbridge's preserves, the mob laid hold of himself and the prisoner, and compelled both to go with them for the purpose of breaking threshing machines. Mr. Justice Patteson allowed the witness to state that, before the prisoner and himself had gone man}' yards with the mob, they agreed to run away from the mob the first opportunity. The witness stated that he ran away from the mob in about ten minutes, and that the prisoner joined him in about a quarter of an hour after that time, and that they then returned to their watching at the preserves. Verdict, Not guilty.^ UNITED STATES y. JONES. U. S. Circuit Court, Dist. Pennsylvania. 1813. [Reported 3 Washington, C. C. 209.] The prisoner was indicted for feloniously and piraticall}' entering a certain Portuguese brig (by name), and assaulting the captain, &c. It appeared in evidence, on the part of the prosecution, that the defendant was the first lieutenant of a privateer schooner, called the " Revenge," William Butler master, duly commissioned by the President of the United States, on the 12th of October, 1812. The points of law raised by the counsel for the prisoner were five. The prisoner was an inferior officer, and was bound to obey the orders of Captain Butler ; of course, he cannot be punished for having done so.^ ^ "With regard to the argument you have heard, that these prisoners were induced to join Thom, and to continue with him from a fear of personal violence to themselves, I am bound to tell you, that where parties for such a reason are induced to join a mischievous man, it is not their fear of violence to themselves which can excuse their conduct to others. You probably, gentlemen, never saw two men tried at a criminal bar for an offence which they had jointly committed, where one of them had not been to a certain extent in fear of the other, and had not been influenced by that fear in the conduct he pursued ; yet that circumstance has never been received by the law as an excuse for his crime, and the law is, that no man, from a fear of consequences to him.self, has a right to make himself a party to committing mischief on mankind." Lord Denman, C. J., in Reg. v. Tyler, 8 C. & P. 616. — Ed. * Only so much of the case as involves this point is given. SECT. IX.] REGINA V. UEED. 3G9 ■ Washington, Justice, charged the jury. The only remaining ques- tion of law which has been raised in this cause is, that the prisoner ought to be presumed to have acted under the orders of his superior ofHcer, which it was liis (Uity to obey. This doctrine, equally alarming and unfounded, underwent an examination and was decided by this court in the case of General Bright. It is repugnant to reason, and to the positive law of the land. No military or civil officer can com- mand an inferior to violate the laws of his country ; nor will such a command excuse, much less justify, the act. Can it be for a moment pretended that the general of an army, or the commander of a ship of war, can order one of his men to commit murder or felony? Certainly not. In relation to the navy, let it be remarked, that the fourteenth section of the law for the better government of that part of the public force, which enjoins on inferior officers or privates the duty of obe- dience to their superior, cautiously speaks of the latoful orders of that superior. Disobedience of an unlawful order must not, of course, be punish- able ; and a court-martial would, in such a case, be bound to acquit the person tried upon a charge of disobedience. We do not mean to go further than to say, that the participation of the inferior officer in an act which he knows, or ought to know, to be illegal, will not be excused by the order of his superior.^ SECTION IX. Custoyn. REGINA V. REED. Sussex Assizes. 1871. [Reported 12 Cox C. C. 1] The indictment stated that the defendants did unlawfully and inde- centlj' expose their bodies and persons naked and uncovered in pres- ence of divers of her Majest5''s subjects, to their great scandal, and to the manifest corruption of their morals ; and, second count, that the defendants on a certain public and common highway, in the parish of Appledown, unlawfulh' and indecentl}" did expose their bodies and persons naked and uncovered in the presence of divers subjects then and there being, and within siglit and view of divers others passing and repassing in the highway, to the common nuisance of the subjects of the Queen. The defendants pleaded not guilty. 1 Ac4:. Rex v. Tliomas, 1 Russ. Crimes, 731 ; U. S. v. Carr, 1 "Woods, 480 ; Com. v. Blodgett, 12 Met 56. — Ed. 24 370 KEGINA V. KEED. [C'flAJ'. IX. Hawkins, Q. C, and Grantham, for the prosecution. Willoughby and A. L. Smith, for the defendants. Hawkins, in opening the case, cited Rex v. Crowden, 2 Camp. N. P. C. 89, where a defendant was convicted of indecenc}' in bathing at Brighton in view of houses recently erected. Although in the pres- ent case it was not alleged that the bathing was within view of the houses, it was urged that, as it was on a public pathway, it was the same case in point of principle. It appeared that the bathing took place in the sea, at a spot about two miles from Chichester, and half a mile from the nearest dwelling- house, at the mouth of the Levant, a stream flowing from Chichester, and where the water was deeper than elsewhere on that part of the coast. The bathing-place was on a public footwa}' from Chichester, on a bank or sea-wall along the beach. The side of the bank next to the sea, as it was a sea-wall, was not accessible as a place for dressing and un- dressing, and so the bathers dressed and undressed on the land side of the path. Hence they passed naked to and from the sea across the path ; and it was proved that as many as eighteen or twenty women passed along the footpath in the course of a day, and that sometimes the}' had to turn back in order to avoid the bathers. The bathing took place, not merely in the morning and evening, but in the afternoon, at the time women were walking along the path. Moreover, as the bank was five or six feet high, the bathers, when on the path, were seen at some distance. It was proved that bathing went on at the time women were passing, and that sometimes they had to turn back. The pathway was, it was stated, one of the most pleasant walks round Chichester, and a good deal frequented by ladies, especiall}' in that season of the 3'ear when bathing went on ; and the prosecutor, Mr. Stanford, whose house was within half a mile of the bathing-place, stated that the bathers could be seen from some of the windows of his house and from his garden. But it did not appear that complaints had been made until the prosecutor purchased the house about two years ago, and it also appeared that there was another house nearer than his, and that the inhabitants did not complain, the nearest house being above a quarter of a mile from the bathing-place. Further, it appeared that for more than half a centnrj- bathing had taken place there without any complaint, and that there had not been on the part of an}' of the defendants an}' exposure beyond what was necessarily incident to bathing. Nevertheless, it appeared that the pathway from which the bathing took place was one of the most pleasant walks in the neighborhood of Chichester, and that it was practically closed to females during the bathing season, which was, of course, the finest portion of the year. CocKBURN, C. J. If the place where the bathing went on was a place wliere persons could not bathe without indecent exposure, it was a place where bathing ought not to go on. Undoubtedly, if it was a place where people rarely passed, and where there was no necessity for SECT. IX.] KLGINA V. liEED. 371 passing at all, it would be a inatcriul elcmcut in the case. But the mere fact that bathing could not go on in the place without exposure was not enough to excuse the exposure, and was rather a reason why ihe bathing ought not to go on. Upon these facts it was (juite impos- sible that the defendants could resist a conviction upon this indictment. I'here was, it appeared, a public footway frequented in line weather by the inhabitants of Chichester, and which must be taken to be an ancient and accustomed footway. It was impossible to set up a customary rigljt to bathe close to the path in such a way as to violate public (.lecency, and thus to be inconsistent with the use of the footway by any of the Queen's subjects, especially of the female sex. No one could suppose that respectable women could frequent the footpath where men were in tlie habit of bathing, and were constantly seen in a state of nudity. It was clear, tlierefore, that the usage so to bathe, however long it might have existed, could not be upheld, and that tliose persons who thus exposed themselves upon or near to a public footway were liable to be indicted for indecency. There must, if the prosecution was pressed, be a verdict of guilty upon this indictment, unless the facts as thus shown in evidence could be altered. It was not suggested for the defence that the facts could be altered. J/uickins^ for the prosecution, stated that it was not desired to press the prosecution, if protection for the future could be secured, and there- u\K)n it was agreed between the parties that bathing henceforth should take place from a shed to be erected for the purpose, and ou this condition the jury were discharged.^ ^ j4cc Com. V. Perry, 139 Mass. 198. " "When I wa-s servant to Sir James Hales, one of the Justices of the Common Pleas, one of his servants was robbed at Gads Hill, within the Hundred of Gravesend in Kent, and he sued the men of the Hundred upon this statute [Statute of Winchester, 13 Ed. I.] ; and it seemed hard to the inhabitants there that tliey should answer for the robberies done at Gads Hill, because robberies are there so frequent that if they should answer for all of them that they should be utterly undone. And Harris, Sergeant, was of counsel with the inhabitants of Gravesend, and pleaded for them, that time out of mind, &c., felons had used to rob at Gads Hill, and so prescribed, and afterwards by award they were charged." — Manwood, J., 2 LeoD. 12 (19 Eliz.). — Ed. 372 COMMONWEALTH V. HADLEY. [CHAP. X. CHAPTEK X. PARTIES IN CRIME. SECTION I. Agency. COMMONWEALTH v. HADLEY. Supreme Judicial Court of Massachusetts. 1846. [Reported 11 Metcalf, 66.] Shaw, C. J. The present case, which comes before the Court upon exceptions, presents a question of great importance affecting the admin- istration of the license laws of this Commonwealth. The defendant was indicted upon the ss. 1 & 2 of c. 47 of the Revised Statutes, and by a general verdict was convicted on both. Exceptions were taken to the directions of the judge before whom the indictment was tried in the municipal court. It appears by the bill of exceptions that evidence was introduced in support of the indictment tending to show sales of spirituous liquors to be used in a certain shop, which sales were effected therein by the defendant. On this proof the public prosecutor relied to prove the sale by the defendant, as charged in the indictment. The bill of exceptions then states that '■'■ the defe ndant offered evi- dence to show that_the_premises in which the sales were effected were not leased to him ; that he was not the proprietor nor owner thereof; that he was merel}' a hired a^nt, having no interest in the profits, and acting in the presence and under the control of his employer; and he contended that to support the indictment the government must show that the spirituous liquor was to be used in his house or other building, and that if the defendant was a mere bartender or hired agent he was not liable under the statute." The judge declined so to direct the jur}-, but directed them *' that such evidence coufd not be a sufficient defence under the statute, and that if the jury believed that sales were effected Ity the defendant in the manner before stated, in the house of another as a hired agent or bartender, he was liable under the statute." / The court are of opinion that these directions were right. The evi- dence first oflfered on the part of the prosecutor constituted a primd facie case to support the indictment. The Rev. Sts., c. 47, provide, In s. 1, that no person shall presume to be a common seller of wine, brand}', etc., unless first licensed as an innholder or common victualler. Section 2 provides, that if any person shall sell any spirituous liquor, to SECT. I.] COMMONWEALTH V. IIADLEY, 373 be used in or about his house or other buildings, without being duly licensed, he shall forfeit, etc. Any person incurs the penalty of the first section who habitually sells to persons indiscriminately, although he does not profess to be, or appear to exercise the vocation of, an innholder or common victualler. Commonwealth v. Pearson, 3 Met. 44y. Any person incurs the penalty of the second section by selling any quantity, in a i)articular instance, to be used in his house. Com- monwealth V. Thurlow, 24 Pick. 374. When, therefore, it was shown that the defendant was making sales of the prohibited article, in a shop adapted for the purpose, to be used on the premises, he was thereby doing acts implying that he claimed and had possession and control- of tlie article sold, and also that he had such actual and uncontrolled possession, occupation, or use of tlie shop and place of sale and con- sumption, as were necessary and sufficient to accomplish the act which the law expressly prohibits. Unless, therefore, something further were shown by way of justification or excuse the defendant must be con- victed. The true question, therefore, is, whether the evidence offered by the defendant, if it had been admitted, showing that the premises were not his own, but that he acted as the agent and under the authority of another person, without showing that such person was licensed, would constitute such excuse or justification. Then we are brought to the question of construction — if, indeed, there be room for construction — of those words of the statute, "any person who shall sell." It appears to us that one who offers an article for sale, either upon the application of the purchaser or otherwise, and who, when the offer is accepted, delivers the article in pursuance of the offer, does "■ sell" or make a sale, according to the ordinary sense and meaning of that term. It would seem strange and contradictory to maintain that one who sells goods on commission, or as the factor, agent, or salesman of another, does not sell them. The argument assumes that a sale must be construed to be a contract by which the owner of property alienates it and transfers his title to another. But this is a very limited view of the subject. It is not less a sale, and even a valid sale, when made by the authority of the owner. So the naked possession of property, however obtained, is some evidence of title. The holder may make a sale de facto, which can only be defeated by one having a higher title, and which may be ratified b}' the assent of the owner. The statute prohibits all sales by unlicensed persons, as well sales de facto as sales by an owner, and therefore the case is within the words of the statute. But it is equally within the spirit of the statute. In construing an act of the legislature, as in construing every other instrument, we are to look at the entire act, and every provision and clause in it, in order to ascertain the meaning and intent. And although the same latitude of construction is not allowed in criminal prosecutions as in civil suits, still the subject-matter is not to be overlooked. The language of the statute is to be so construed, when it reasonably can be, as to promote 374 COMMONWEALTH V. HADLEY. [CHAP. X. rather than defeat the obvious purposes of the legislature. Now, in reading this statute, it is impossible not to perceive that the plain and governing purpose of the statute is to restrain and prevent the dis- orders, breaches of the peace, riot, pauperism, and crime, which would arise from the too free use and too easy mode of obtaining intoxicating liquor in small quantities, and to accomplish this bv prohibiting the indiscriminate sale of it by disorderly, unsuitable, and unlicensed per- sons. The contemplated mischiefs arising from the actual sales would not be less, although the conduct of the seller should also be unlawful in other respects ; as when he has obtained the property by finding, and converted it to his own use, or taken it tortiously by an act of trespass, or actually stolen it. Would a shop opened by an unlicensed person for the indiscriminate sale of spirituous liquors be less a nui- sance because it is also a receptacle of stolen goods, or because the liquor actually sold in it has been stolen ? I shall not be understood to inti- mate that stealing or receiving stolen goods, or goods obtained unlaw- fully, would be punishable under this statute as a substantive offence, but only that the actual sale of intoxicating liquor is not the less within the mischiefs, and the express prohibition of the statute, because the subject of the sale has come unlawfully to the possession of the seller. The construction contended for b}- the defendant, b}' which the actual seller should exempt himself from the penalt}' of the law, by showing that he sold for the use and benefit, and b}' the authorit}', of another person, would let in all the mischiefs intended to be prevented by the statute. A person residing out of the State, and beyond the jurisdiction of its laws, b}' taking the lease of shops, and employing selling agents and barkeepers, might wholly defeat the salutary objects of the law. It is then urged, secondly, as an excuse for the defendant, that he offered to show that he was a hired agent, having no interest in the profits, and acting in the presence of and under the control of his employer. As to his being an agent, the considerations alread}' stated apph- to it. As to his acting in the presence of his employer, we think that circumstance would make no difference if the defendant was the ostensible actor in the sale ; because one who sells for another, although in his presence, does yet sell, and the law fixes the penalty upon hiin who does the act. We are to understand in the present case that the sale was actual!}' made b}- the defendant, otherwise he would not have i been convicted by the jur}-. If the employer should expressly or tacitly I command, direct, or instigate him to do it, both might be liable ; for it is a general rule of law, in cases of tort, that when two or more are guilt}', as actors or participators, of one and the same oflTence, each is severalh' liable to the penalt}-, and either ma}' be severall}' prosecuted for it. But the command of the master will afford no justification or excuse to the serv^ant making the sale, because it is an unlawful com- mand, which he is not bound to obey, and for the doing of which he 8ECT. I.] COMMONWEALTH V. HA1>LI;Y. 375 can have no intlcmnity from tljc employer. These points arc familiar, anil are well stated in the authorities citeil in the argument Thus it is stated iti 1 I>1. Com. I'i'J, I'M), " if the servant commit a trespass l>y the comni:uul or encournj^ement of his master, the master shall be guilty of it, though the servant is nut tliereh}' excused, f(;r he is only to obey his master in matters that are honest and lawful.'' iSo in 2 Dane Ab. 31G, "the command of a superior to an inferior to commit a tort ex- cuses the latter in no case but that of a wife. Such inferior, as servant, is bound to i)erform only the lawful commands of his superior ; and the inferior person nmst know, too, when he cioes an injur}- ; and if he has to pay for it, be has no remedy against his master, except be deceives bim."' Perkins v. Smith, Sayer, 40, and I Wils. 328. Taken in connection with the established maxim that ignorance of the law excuses no one from the penalties of its violation, it seems to follow as a necessary consequence that a salesman or barkeeper cannot excuse himself by showing that he did the act by the order or in the presence of his employer. Whether if the owner, being on the spot, should direct a wife, apprentice, or servant to draw or pour out the liquor, or to deliver it, or even to receive payment for it, the subordi- nate woulil be liable, is a (piestion which we are not called upon to decide, and which must depend much on the circumstances of particular cases. It might give rise to a question of fact whether the act done by the subordinate would amount to an actual sale. At all events, the principal, being actively and ostensibly engaged in the transaction, would be unquestionably amenable to the law ; and this consideration would render the question of the liability of the subordinate of less practical importance to the due execution of the law. But where one acts as an agent under a general authority to sell for account of another, we arc of opinion that sales of liquor made by him are equally opposed to the letter and spirit of the law as if he were selling his own property, on his own account, and for his own profit. It is urged, thirdly, as an argument against this view of the law, that if correct, ever}' barkeeper and salesman must himself be licensed, or he would subject himself to the penalties of the law, which could not have been contemplated by the legislature. But we think this is not a sound conclusion from the premises. An innkeeper or retailer has a Imc/ul authority under his license to sell spirituous liquors, under cer- tain restrictions, at a place designated. One may do lawful acts by an agent, and the maxim ose of carrying on therein the manufacture of forged bank notes. The first operation was the purchasing of proper pai)er, and the cutting of it into pieces of proper size : after which it was taken to the prisoner Batkin. a copper-plate printer, whose work- shop was in a ditTerent part of Bimiingbara, to be by him printed, and he accordingly struck oflT in blank all the printed part of the notes, » See iearni'l judge here called the attention of the court to 2 East P. C. c. 19, s. 52. — Ed. ■•' Arc. Rpx f. Kirkwood, 1 Moody, 3iH. — Ed. ' Part of thu caau, nut involving the question of principal and accessory, is omitted. ^ 384 COMMONWEALTH V. KNAPP. [CHAP. X. mortal blows with his own hand ; but it is contended on the part of the government that he was present^ aiding and abetting the perpe- trator, at the time when the crime was committed. We are therefore to consider what facts are necessary to be proved to constitute him, who is aiding and abetting, to be a principal in the murder ; or, in other words, what, in the sense of the law, is meant bj being present^ aiding and abetting. It is laid down in Foster's Crown Law, 349, 350, Discourse 3, § 4, that " when the law requireth the presence of the accomplice at the perpetration of the fact, in order to render him a principal, it doth not require a strict, actual, immediate presence, such a presence as would make him an eye or ear witness of what passeth. Several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each taketh the part assigned him ; some to commit the fact, others to watch at proper distances and stations to prevent a surprise, or to favor, if need be, the escape of those who are more immediately engaged. They are all, provided the fact be committed, in the eye of the law present at it ; for it was made a common cause with them ; each man operated in his station at one and the same instant towards the common end ; and the part each man took tended to give counte- nance, encouragement, and protection to the whole gang, and to in- sure the success of their common enterprise." In § 5, — " In order to ' render a person an accomplice and a principal in felon}', he must be aiding and abetting at the fact, or ready to afford assistance if neces- sary." So, in 1 Hawkins's P. C. c 82, s. 7 (7th ed.) being presetit in Judgment of the law is equivalent to being actually present, for, says Hawkins, " the hope of their immediate assistance encourages and emboldens the murderer to commit the fact, which otherwise perhaps he would not have dared to do, and makes them guilty in the same degree [as principals] as if they had actually stood b}^ with their swords drawn, ready to second the villany." These principles have been fully recognized by the very learned and distinguished chief jus- tice of the Supreme Court of the United States, in 4 Cranch, 492. The person charged as principal in the second degree must be present; and he must be aiding and abetting the murder. But if the abettor, at the time of the commission of the crime, were assenting to tlie murder, and in a situation where he might render some aid to the perpetrator, ready to give it if necessary, according to an ap- pointment or agreement with him for that purpose, he would, in the judgment of the law, be present and aiding in the commission of the , crime. It must therefore be proved that the abettor was in a situation, I in which he might render his assistance, in some manner, to the com- ■ mission of the offence. It must be proved that he was in such a situ- ation, b}' agreement with the perpetrator of the crime, or with his previous knowledge, consenting to the crime, and for the purpose of rendering aid and encouragement in the commission of it. It must SECT. IV.] COMMONWEALTH V. KNAPP. 385 also be proved that he wiis actually aidinp; iukI abetting the perpe- trator at the time of the murder. Hut if the al)ettor were consenting \ to tlie murder, and in a situation in which he might render (ini/ aid, by arrangement with the perpetrator, for the purpose of aiding and assisting him in the murder, then it wouUl follow as a necessary legal inference, that he was actually aiding and abetting at the commission of the crime. For the presence of the abettor under such circum- stances must encourage and embolden the perpetrator to do the deed, by giving him hopes of immediate assistance ; and this would in law be considered as actually aiding and abetting him, although no fur- ther assistance should be given. For it is clear that if a person is present aiding and consenting to a murder or other felony, that alone is sufficient to charge him as a principal in the crime. And we have seen that the presence by construction or judgment of the law is in this respect equivalent to actual presence. We do not, however, assent to the position which has been taken by the counsel for the government, that if it should l^e proved that the prisoner conspired with others to procure the murder to be committed, it follows, as a legal presumption, that the prisoner aided in the actual perpetration of the crime unless he can show the contrar}- to the jury. The fact of the conspiracy being proved against the prisoner is to be weighed as evidence in the case, having a tendency to prove that the prisoner aided, but it is not m itself to be taken as a legal presump- tion of his having aided unless disproved by him. It is a question of evidence for the consideration of the jury. If, however, the jury should be of opinion that the prisoner was one of the conspirators, and in a situation in which he might have given some aid to the perpetrator at the time of the murder, then it would follow, as a legal presumption, that he was there to carry into effect the concerted crime ; and it would be for the prisoner to rebut the pre- sumption, by showing to the jury that he was there for another pur- pose unconnected with the conspiracy. "We are all of opinion that these are the principles of the law applicable to the case upon trial.^ » Ace. Rex V. Owen, 1 Moody, 96; Rex v. Dyson, Riiss. & Ry. 523 ; Thomas v. SUte, 43 Ark. 149 ; Doan v. State, 26 Ind. 495 ; State v. Douglass, 34 La. Ann. 523; State V. Jones, 83 N. C. 605. See Amos v. State, 83 Ala. 1. Conf. People v. Wood- ward, 45 Cal. 293; State v. Hildretli, 9 Ired. 440. "If three thieves come to a man's house, and one forces and enters the house, and the other two stand outside in the meantime, they shall all three be taken and con- victed of this, whatever judgment you may think will be passed on the two." — Spig- ONEL, J., in Y. B. 30 & 31 Ed. I. p. 108. — Ed. 16 386 BREESE V. STATK [CHAP. X BREESE V. STATE. Supreme Court of Ohio. 1861. [Reported 12 Ohio State, 146.] Peck, J.^ Did the court err in that portion of its charge to the jury which is stated in the bill of exceptions ? The charge, which is copied into the statement of the case, and which, on account of its length, I do not propose to repeat here, was, substantially, that if the jury should find, beyond a reasonable doubt, from the testimon}-, that the defendant had agreed with others to commit the burglary, on the night on which it was done, and that, as a part of said agreement, and to facilitate the breaking and entry and lessen the chances of detection, it was agreed that the defendant should on that night pro- cure or decoy the owner, Whetstone, away from the store in which he usually slept, to a party, about a mile distant, and detain him there while the other confederates were to break and enter said store and remove the goods, and that both parties did, in fact, perform their respective parts of said agreement, that then the defendant was con- structivel}' present at the breaking and entrj' b}- his confederates, and might be convicted as principal therein if all the other material allega- gations were proved beyond a reasonable doubt. We are free to sa}' that this charge, if there was evidence tending to prove it, is unexceptionable. " Any participation in a general felonious plan, provided such par- ticipation be concerted, and there be a constructive ])resence, is enough to make a man principal in the second degree." Wharton's C. L. 113, and the case cited by Wharton to establish the rule shows what is meant by a " constructive presence." " If several act in concert to steal a man's goods, and he is induced by fraud to trust one of them, in the presence of the others, with the pos- session of such goods, and another of them entices him awa}', that the man who has the goods may carry them off, all are guilty of the felony." Rex v. Standley and others, Russ. and Ry. C. C. 305. The defendant was, by the agreement, not only to procure Whet- stone to go to the party ** to give his confederates greater security from detection while in the act of breaking into the store," but the jury were required to find, as a part of the supposed case, that the defendant " kept him there while his confederates were engaged in breaking said store, and in concealing the fruits of said crime in pur- suance of said previous confederacy." The charge would therefore seem to fall within the well-known rule stated in Archbold C. L. 10, " that persons are said to be present, who are engaged in the same design with the one who actuall}- com- * Part of the opinion only is given- SECT, v.] ACCESSORIES. 387 raits the offence, although not actually present at the commission of it, yet are at such convi'uient distance as to be able to come to th»i assistance of their associates if re(iuired, or to watch to prevent sur- prise or the like." Bishop, in section 4 GO, vol. i. of his Treatise upon Criminal Law, says: "■ If the will of such other one contributed to the act, the test to determine whether the law deems him a princiijal rather tlian an acces- sory is, whellier he was so near, or otherwise so situated, as to make his personal help, if required, to any degree available." The part assigned by the agreement to the defendant — a constant supervision over Whetstone while the burglary was effected — formed an essential part of the plan of the burglary agreed upon, as much so as the rending of the shutter, or the forcing of the door. And the defendant, in the case supposed, was constructively present at the burglary, if Jones who, in the case from Russ. and Ry. supra, enticed McLaughlin away, was constructively present at the subsequent aspor- tation of McLaughlin's money by his confederates, Standley and Webster. So, in Hess v. The State, 5 Ohio 12, it is said : " And in general, if several unite in one common design, to do some unlawful act, and each takes the part assigned him, though all are not actually present, yet all are present in the eye of the law ; " citing Foster, 450, 353 ; 1 Hale's P C. 439 ; 2 Starkie's Ev. 7.» SECTION V. Accessories. 2 Hawkins P. C. c. 29, s. 16. It seems to be agreed that those who by hire, command, counsel, or conspiracy, and it seems to be generally holden that those who by showing an express liking, approbation, or assent to another's felonious design of committing a felony, abet and encourage him to commit it, but are so far absent when he actually commits it that he could not be encouraged by the hopes of any imme- diate help or assistance from them, are all of them accessories before the fact, both to the felony intended and to all other felonies which shall happen in and by tlie execution of it, if they do not expressly retract and countermand their encouragement before it is actually committed. 2 Hawkins P. C. c. 29, ss. 26, 27, 34, 35. As to what kind of receipt of a felon will make the receiver an accessory after the fact, it seems agreed that generally any assistance whatever given to one 1 See Sute v. Poynier, 36 La. Ann. 572 , State v. Hamilton, 13 NaT. 386. — Ed. \ 388 REGINA V. CLAYTON, [CHAP. X. known to be a felon, in order to hinder his being apprehended or tried or suffering the punishment to which he is condemned, is a sufficient receipt for this purpose, — as where one assists him with a horse to ride away with, or with money or victuals to support him in his escape ; or where one harbors and conceals in his house a felon under pursuit, b}' reason whereof the pursuers cannot find him ; and much more, where one harbors in his house, and openly protects such a felon, by reason whereof the pursuers dare not take him.^ Also I take it to be settled at this day that whoever rescues a felon from an arrest for the felony, or voluntarily suffers him to escape, is an accessory to the felony. It seems agreed that the law hath such a regard to that duty, love, and tenderness which a wife owes to her husband as not to make her an accessory to felony by any receipt whatsoever given to her husband. Yet if she be any way guilty of procuring her husband to commit it, it seems to make her an accessory before the fact in the same manner as if she had been sole. Also, it seems agreed that no other relation beside that of a wife to her husband will exempt the receiver of a felon from being an accessor}' to the felony. From whence it follows that if a master receive a servant, or a servant a master, or a brother a brother, or even a husband a wife, they are accessories in the same manner as if they had been mere strangers to one another. It seems to be clearly agreed that a man shall never be construed an accessory to a felony, in respect of the receipt of an offender, who at the time of the receipt was not a felon, but afterwards becomes such by matter subsequent, — as where one receives another who has wounded a person dangerously, that happens to die after such receipt.'' REGINA V. CLAYTON. Shropshire Assizes. 1843. [Reported 1 Carrington ^ Kinvan, 128.] Misdemeanor. — The prisoners were indicted for a misdemeanor in having attempted to set fire to a certain malt-house, and were jointly charged by the indictment with so attempting. It appeared by the evidence that the prisoner Mary Mooney had gone to bed an hour and a half before the fire was discovered, and there was every reason to suppose that she was not present at the time when the fire was lighted 5 and the evidence, which was entirely circum- stantial, tended to show that the prisoner Clayton lighted the fire only a few minutes before It was discovered. Declarations of the prisoner 1 See Tully v. Com., 11 Bush, 154; Wren's Case, 26 Gratt. 952. —Ed. a See Harrel v. State, 39 Miss. 702. — Ed. SECT. V.J COMMONWEALTH V. PHILLIPS. 389 Mary Mooney were proved which tended to show that she knew before- hand that the fire was to take place. J. G. PhUlimore, for the prisoners, submitted that there was no case against the prisoner Mary Mooney on this indictment. Greaves. All who take part in a misdemeanor are principals, and whatever will make a person an accessory before the fact in a felony makes him principal in a misdemeanor. Williams, J. (in summing up). In misdemeanors and in treason, all who take part in the crime are principals ; and in this case it is not necessary to prove that the prisoner Mary Mooney was present at the time when the prisoner Clayton attempted to set fire to the malt-house ; and if you are satisfied that she counselled and encouraged Clayton to set fire to the malt-house, she may be convicted upon this indictment.^ Vei'dict^ Not guilty. REG IN A V. BROWN. Bristol Assizes. 1878. [Reported 14 Cox C. C. 144.] Frederick Brown was indicted for murder, his wife being also indicted as an accessory before the fact. It was proved that the blow, which proved fatal, was struck within a few feet of where the wife was standing. Lord Coleridge, C. J., directed the acquittal of the female prisoner, pointing out that she should have been indicted as a principal if any- thing. An accessory before the fact must be absent at the time when the crime is committed, and the act must be done in consequence of some counsel or procurement of his. COMMONWEALTH v. PHILLIPS. Supreme Judicial Court of Massachusetts. 1820. [Reported 16 Massachusetts, 423.] Indictment at the last March term in this county, charging one Thomas Daniels as principal, and the defendant as accessory before the fact, in burglary. The death of Daniels was alleged in the indict- ment, and the question was whether the prisoner Phillips could lawfully be put upon his trial.^ ' Ace. Lasington's Case, Cro. Eliz. 750 (petty larceny); Booth's Case, Moore, 666 (forgery at common law); Rex v. Jackson, 1 Lev. 124 (perjury); U. S. v. Gooding, 12 Wheat. 460 (fitting out vessel for slave trade); Sanders y. State, 18 Ark. 198 (obstruct- ing highway) ; Stevens v. People, 67 III. 587 (keeping gaming-house). — Ed. * Arguments of counsel are omitted. 390 STARIN V. PEOPLE. [CHAP. X. Parker, C. J., stated that the justices had carefullj examined the books upon the subject, and were unanimously of opinion that b}* the common law an accessory cannot be put on his trial, but by his own consent, uutil the conviction of the principal. The reason of this rule is very plain. If there is no principal there can be no accessory, and the law presumes no one guilty until conviction. Statutes have made a difference as to some lesser species of offences, but do not touch the principle in capital cases. Our only doubt arose from the peculiar cir- cumstance in this case, that the person charged as principal Is dead, and can never be tried. If he were alive and on trial, it is possible he might establish his innocence, strong as the evidence has appeared in support of his guilt. In such case the prisoner could not be found guilty, for he could not have been accessory to the commission of the crime as charged. The trial might have been stopped at the com- mencement of it had our minds been then free from all doubt. But as the prisoner has been put on his trial, he has a right to a verdict. The jury accordingly, under the direction of the court, immediately returned a verdict of acquittal, and the prisoner was discharged of this indictment.' STARIN V. PEOPLE. Court of Appeals of New York. 1871. [Reported 45 New York, 333. | Church, C. J.'^ The plaintiff in error was indicted as accessory before the fact to the crime of burglary in the first degree, committed by four principals named in the indictment. At the Montgomery Oyer and Terminer, held on the 13th day of May, 1867, the prisoner hav- ing been arraigned and plead not guilty to the indictment, the district attorney moved the trial of the prisoner, who, by his counsel, objected to proceeding with the trial until after the conviction of all the princi- pals named in the indictment. The district attorney then admitted that but one of the principals had been convicted, that one other was then in jail, and the other two had not been arrested. The objection was then overruled, and the decision excepted to. Several other objections were raised and decided, but one of which it is necessary to notice, and as to that the record is as follows : The prisoner, by his counsel, then objected to being tried as accessory to any other principal than the one who was convicted ; the court over- ruled the objection, and the prisoner's counsel then and there duly excepted. ' See ace. U. S. v. Crane, 4 McLean, 317; Simmons o. State, 4 Ga. 465; "White* bead v. State, 4 Humph. 278 : State t>. Pybass, 4 Humph. 442. See Hatchett v. Com., /5 Va. 925; Ogden v. State, 12 Wis. 532. — Ed. ' Part of the opinion only is given. SECT. V.J STAIilN V. PEOPLE. 391 The jury were then impannelled, and the trial proceeded. If this exception is available to the prisoner, it is fatal to the conviction and judgment. An accessory may be tried jointly with the principal, but the jury must first agree upon the guilt of the princii)al, while an acquittal of the principal necessarily acquits the accessory. Wharton's Crim. Law, § 138. If the accessory is not tried with the principal, he cannot be tried until the principal has been tried and convicted. People v. Bacon, 1 Park R., 24G. Formerly, if a man was indicted as accessory in the same crime to two or more persons, he could not have been arraigned until all the principals were convicted and attainted. Hale'a Pleas of the Crown, 623, chap. 47. And in order to try an accessory, when only one of several principals had been convicted, it was necessary to indict and arraign him as accessory to that one only. Id. But the modern decisions have somewhat modified this rule, and the weight of authority now is that an accessory may be tried and convicted when one only of several principals named in the indictment has been convicted. 1 Russell on Crimes, 38; Bishop's Crim. Law, § 611; Commonwealth v. Knapp, 10 Pick. 477. But it is well settled that in such a case the accessory must be tried and convicted as accessory to the convicted principal only, in the same manner as though the convicted principal only was named in the indictment The authorities are uniform on this subject, and I have been unable to find any decision against this position. Strops v. Com., 7 Serg. & R. 491 ; 3 Greenl. Ev. § 52 ; People v. Bacon, 1 Park. 246 ; 1 Bishop's Crim. Law, 468. This necessarily results from the rule that the guilt of the principal can only be shown by a judicial trial and conviction, and even then it is not conclusive against the accessory, 10 Pick, siqyra. The as- sociation of unconvicted principals with a convicted principal in the indictment does not authorize the trial of an accessory to any but the one convicted, any more than it would if those not convicted had not been named. The decision of the court, therefore, overruling the objection of the prisoner to being tried as accessory to any but the convicted principal, was clearly erroneous. Mass. Pub. Stats, ch. 210, Sects. 4, 7. Whoever counsels, hires, or otherwise procures a felony to be committed, may be indicted and con- victed as an accessory before the fact, either with the principal felon or after his conviction ; or may be indicted and convicted of a substantive felony, whether the principal felon has or has not been convicted, or is or is not amenable to justice. Whoever becomes an accessory to a felony after the fact may be indicted, convicted, and punished, whether the principal felon has or has not been previously convicted, or is or is not amenable to justice. Penal Code of New York, §§ 29, 32. A person concerned in the commission of a crime, whether he directly commits the act constituting 392 RULOFF V. PEOPLE. [CHAJ. X. the offence, or aids and abets in its commission, and whether present or absent ; and a person who directl\- or indirectly counsels, commands, induces, or procures another to commit a crime, is a principal. An accessory to a felony may be indicted, tried, and convicted, . . . whether the principal felon has or has not been previously convicted, or is or is not amenable to justice, and although the principal has been pardoned or otherwise discharged after conviction. SECTION VI. Acts done in pursuance of a common design, ASHTON'S CASE. King's Bench. 1698. [Reported 12 Modern, 256.] Holt, C. J. Two, three, or more are doing an unlawful act, as abusing the passers-by in a street or highway, if one of them kill a passer-by, it is murder in all ; and whatever mischief one does, they are all guilty of it ; and it is lawful for any person to attack and suppress them, and command the king's peace ; and such attempt to suppress is not a sufficient provocation to make killing manslaughter, or son assault demes7ie a good plea in trespass against them.^ RULOFF V. PEOPLE. Court of Appeals of New York. 1871. [Reported 45 New York, 213.] Allen, J.^ The jury have, by their verdict, found that the homicide was committed either by the accused in person or by some one acting in concert with him in the commission of a felony, and in the prosecu- tion and furtherance of a common purpose and design. It must be assumed, from the finding of the jury, that the prisoner was one of the three persons who burglariously entered the store on the night of the homicide ; that Merrick was killed by one of the burglars, in pursuance of the common intent of all ; and that the accused either fired the shot which caused the death, or was present, aiding and abet- ting his confederates in the commission of the act. The presumption from the evidence, assuming that the witnesses and their statements i See Reg. v. Jackson, 7 Cox C. C. 357 ; Reg. v. Salmon, 14 Cox C. C. 494. supra. — Ed. 2 Part of the opinion only is given. SECT. VI.] RULOFF V. PEOPLE. 393 are credible, as the jury seem to have believed, is, that the accused, in person, committed the homicide ; and it is not improbable tlmt, had the jury been left to [)ronounce upon his guilt or innocence upon that theory alone, without the complications resulting from the submission of the questions touching his responsibility for the acts of any other by whom the deed might have been perpetrated, the result would have been the same. There were but three persons, other than the deceased and his fellow-clerk, present. One of these was disabled and lying upon the floor seriously wounded, and the other was in the grasp of Merrick, the deceased, and was also wounded and injured. The third came up the stairs and fired the pistol which caused the death, and he alone of the three was uninjured and unwounded. The accused, when arrested a day or two after the occurrence, bore no mark of injury upon his person, and could not have been one of the two so badly injured in the encounter with the clerks. It follows that he was either not present, and has, therefore, been wrongfully convicted, or his hand dis- charged the pistol which caused the death of Merrick. But the jury may have taken other views of the evidence under the charge, so that the questions made upon the trial and presented by the writ of error, upon the rules governing the liability of one to answer criminally for the acts of others, cannot be passed by without consideration. If the homicide was committed by one of several persons, in the prosecution of an unlawful purpose or common design, in which the combining parties had united, and for the effecting whereof they had assembled, all were liable to answer criminally for the act, and, if the homicide was murder, all were guilty of murder, assuming that it was within the common purpose. All present at the time of committing an offence are principals, although only one acts, if they are confeder- ates, and engaged in a common design, of which the offence is a part. 1 Russ. on Crimes, 27, 29. The several persons concerned in this offence were assembled for the commission of a felony, and were engaged in the actual perpetration of the offence; and the homicide was committed upon one who was opposing them in the act, and in rescuing and aiding the confederates to escape. To this conclusion the jury must have come. If there was a general resolution against all opposers, and to resist to the utmost all attempts to detain or hold in custody any of the parties, all the persons present when the homicide was committed were equally guilty with him who fired the fatal shot 1 Russ. on Crimes, 29, 30. This general resolution of the confederates need not be proved by direct evidence. It may be inferred from circumstances ; by the number, aims, and behavior of the parties at or before the scene of action. Id. ; Fost. 353, 354 ; 2 Hawk. P. C. ch. 29, s. 8 ; Tyler's Case, 8 C. & P., 616. There was enough in this case to authorize the sub- mission of the question to the jury. An express resolution against all opposers can very seldom be proved by direct evidence •, but here every circumstance tended strongly to prove it. 394 STATE V. ALLEN. [CHAP X. Some of the confederates, and perhaps all, were armed ; they actually did resist all opposition with such weapons as they could successfully use. When one was detained, being overcome by the opposition, the others returned at the call of their comrade, and the only one in condition to do so, deliberately shot Merrick, who was preventing the escape of one of the confederates, and was cautioned by that confeder- ate, when about to shoot, not to shoot him. The jury were authorized to infer that this act was within the general purpose of the confederates. They may have desisted from their larcenous attempts, and yet the full purpose of the combination not have been carried out so long as one of the party was detained and held a prisoner.^ STATE V. ALLEN. SuPREsrE Court of Errors of Connecticut. 1879. [Reported 47 Connecticut, 121 ) Beardslet, J.^ The court charged the jury as follows: "If the jury shall find that Hamlin and Allen, at some time previous to the homicide, made up their minds in concert to break the State prison and escape therefrom at all hazard, and knowing that the enterprise would be a dangerous one and expose them to be killed by the armed night-watchman of the prison should they be discovered in making the attempt, wilfully, deliberately, and premeditatedly determined to arm themselves with deadly weapons, and kill whatever watchman should oppose them in their attempt; and if the jury should further find that in pursuance of such design they armed themselves with loaded revol- vers to carry their original purpose into execution, and while engaged in efforts to escape from the prison were discovered by the watchman Shipman (the deceased), and in the scuffle which ensued he was wilfully killed by Hamlin or Allen while they were acting in concert and in pursuance of their original purpose so to do in just such an emergency as they now found themselves in, — then Hamlin and Allen are both guilty of murder in the first degree. And in the opinion of the court Allen would be guilty of murder in the first degree if, in the state of things just described, he in fact abandoned, just before the fatal shot was fired by Hamlin, all further attempt to escape from the prison, and the infliction of further violence upon the person of Shipman, without informing Hamlin by word or deed that he had so done, and Hamlin, ignorant of the fact, shortly after fired the fatal shot, in pursuance of and in accordance with the purpose of the parties down to the time of the abandonment." J Ace. State v. Barrett, 40 Minn. 77 ; State v. Davis, 87 N. C. 514 ; State r. Johnson, 7 Or. 210. — Ed. • Part of the opinion only is given. SECT. VI.] STATE V. ALLEN. 395 We do not think that the objeetion made by the defence to this part of the charge is well founded. Under such circumstances Allen's so- called abandonment would be but an operation of the mind, — a secret change of purpose. Doing nothing by word or deed to inform his co- conspirator of such change of purpose, the reasonable inference would be that he did not intend to inform him of it, and thus he would be intentionally encouraging and stimulating him to the commission of the homicide by his supposed co-operation with him. Such intent not to inform Hamlin of his change of purpose would, under the circumstances, be decisive of his guilt. But the charge proceeds: "In other words, if during the fatal en- counter with deadly weapons, in the state of things just described, Allen suddenly abandoned Hamlin, abandoned the enterprise and went to his cell, without saying a word to Hamlin to the eflect that he had abandoned the enterprise, and Hamlin, supposing thai he was still acting with him and that he had gone to his cell for an instrument to carry on the encounter, fired the fatal shot, his abandonment under such circumstances would be of no importance. A man cannot abandon another under such circumstances and escape the consequences of the aid he has rendered up to the time of the abandonment." A majority of the court think that the jury may have been misled by this part of the charge, and that therefore, especially in view of the grave issues involved in the case, a new trial should be granted. If Allen did in fact before the homicide withdraw from the conspir- acy, abandon the attempt to escape, and with the knowledge of Hamlin leave and go to his cell, Hamlin's misconstruction of his purpose in leaving did not necessarily make his conduct of no importance. Until the fatal shot there was the loctts penitentiCB. To avail himself of it Allen must indeed have informed Hamlin of his change of pur- pose, but such information might be by words or acts ; and if with the intention of notifying Hamlin of his withdrawal from the conspiracy he did acts which should have been effectual for that purpose, but which did not produce upon the mind of Hamlin the effect which he intended, and which they naturally should have produced, such acts were proper for the jury to consider in determining the relation of Allen to the crime which was afterwards committed. Allen's act of leaving and going to his cell, if he did so, had some significance in connection with the question of intention and notice, and was therefore proper for the consideration of the jury. How much weight was to be given to it would depend upon circumstances, such as the situation of the parties and the opportunity for verbal or other notice, A new trial Is advised. 396 STATE V. LUCAS. " [CUM X. STATE V. LUCAS. Supreme Court of Iowa. 1880 [Reported 55 Iowa, 321.) Day, J. — R. G. Edwards, on behalf of the State, testified in sub- stance that he was night watchman for Hemming way & Barclay's mill, at Lansing; that on the night of August 24, 1879, the defendant and Wood assaulted and knocked him down, tied his hands and feet and carried him into the mill, and that while the defendant went after a sledge to open the safe in the mill, "Wood took three dollars in silver from his pocket. The evidence shows that the safe was blown open on the same night. The defendant, on his own behalf, testified that he had nothing to do with robbing Edwards, and was not at the mill at all ; that he rowed Wood and Harris in a skiff, from La Crosse to Lansing, and lauded near the mill about nine o'olock on the night of the robbery ; that Wood and Harris went up town and left him to watch the boat; that afterward they came down to the boat in a hurry and directed him to row over to Wisconsin ; that on the way he saw them dividing some silver money ; that when they reached the Wis- consin shore they sunk the boat ; that on the way to La Crosse Wood told him all that happened, and gave him two revolvers to carry. The court instructed the jury as follows : " If you believe from all the evidence that the defendant did not leave the boat after the arrival at Lansing ; yet if you also believe that he had knowledge of the intent of his associates to commit crime, either of robbery of the man Edwards, or of robbing the safe in Barclay and Hemmingway's mill, or any other crime, and rowed them ashore for such purpose, and waited in the boat for them during their absence in committing the crime, then you will find the defendant guilty." The doctrine of this instruction is that if the defendant knew of the intent of his associates to rob the safe in Barclay & Hemmingway's mill, and rowed them ashore for that purpose and awaited their return he is guilty of the robbery of Edwards. This doctrine is not correct. It is true the accessory is liable for all that ensues upon the execution of the unlawful act contemplated; as, if A commanded B to beat C, and he beats him so that he dies, A Is accessory to the murder. So if A commanded B to burn the house of C, and in doing so the house of D is also burnt, A is accessory to the burning of D's house. So, in this case, if Lucas had knowledge of the intention to rob the safe, and aided and abetted his associates in the commission of that offence, and if, in furthering that purpose, a fatal assault had been made upon Edwards, the defendant would have been accessory to the murder. But. if the accessory order or advise one crime, and the principal intentionally commit another; as, for instance, to burn a house, and instead of that he commit a larceny ; or, to commit a crime against A, SECT. VI."] STATE V. LUCAS. 397 and instead of so doing he intentionally commit the same crime against B, the accessory will not be answerable. See 1 Wharton's Criminal Law, section 134, and authorities cited. It follows that the defendant cannot be convicted of a robbery of Edwards, from the mere fact that he abetted his associates in the robbery of JJiirclay & Ilemmingway's safe. If the intention of Lucas was to abet, and share in the proceeds of, any robbery that his associates might commit, a different rule would apply. But this is not the thought of the instruction under consideration. Our view of the law governing this case is sufliciently indicated by the foregoing, without noticing consecutively the other errors assigned and argued. Meversed.^ I > See Lamb v. People, 96 111. 73 ; Teople v. Knapp, 26 Mich. 112 ; Mercersmith v. State, 8 Tex. App. 211; Watts v. State, 5 W. Va. 532. — Ed. 398 UNITED STATES V. DAVIS. [CHAP. XL CHAPTER XL JURISDICTION OVER OFFENCES. SECTION I. Locality of Offences. UNITED STATES v. DAVIS. U. S. Circuit Court, District of Massachusetts. 1837. [Reported 2 Sumner, 482.] Indictment for manslaughter. It appeared that the defendant, master of an American whale ship, shot and killed a man on the deck of another vessel which lay alongside ', both vessels lay at the time in a harbor of one of the Society Islands.* Story, J. We are of opinion that, under the circumstances estab- lished in evidence, there is no jurisdiction in this cause. What we found ourselves upon in this case is, that the offence, if any, was committed, not on board of the American ship " Rose," but on board of a foreign schooner belonging to inhabitants of the So- ciety Islands, and, of course, under the territorial government of the king of the Society Islands, with which kingdom we have trade and friendly intercourse, and which our government may be presumed (since we have a consul there) to recognize as entitled to the rights and sovereignty of an independent nation, and of course entitled to try offences committed within its territorial jurisdiction. I say the offence was committed on board of the schooner ; for although the gun was fired from the ship " Rose," the shot took effect and the death hap- pened on board of the schooner ; and the act was, in contemplation of law, done where the shot took effect. So the law was settled in the case of Rex v. Coombs, 1 Leach Cr. Cas. 432, where a person on the high seas was killed by a shot fired by a person on shore, and the offence was held to be committed on the high seas, and to be within the Admi- ralty jurisdiction. Of offences committed on the high seas on board of foreign vessels (not being a piratical vessel), but belonging to persons under the acknowledged government of a foreign country, this court has no jurisdiction under tlie Act of 1790, ch. 36, § 12. That was the 1 This short statement of facts has been substituted for that contained in the report. SECT. 1.] STATE V. WYCKOFF. 399 doctrine of the Supreme Court iu United States v. Palmer, 3 Wheat. R. GIO, and United States v. Klintock, 5 Wheat. It. 144, and United States V. Holmes, 5 Wheat. R. 412 ; applied, it is true, to another class of cases, but in its scope embracing the present. We lay no stress on the fact that the deceased was a foreigner. Our judgment would be the same if lie had been an American citizen. We decide the case wholly ou the ground tliat the schooner was a foreign vessel belonging to foreigners, and at the time under the acknowledged jurisdiction of M toreiiin government. We think that under such circumstances the jurisdiction over the offence belonged to the foreign government, and not to the courts of the United States under the Act of Congress. The jury immediately returned a verdict of not guilty.^ STATE V. WYCKOFF. Supreme Court of New Jersey. 1864. [Reported 2 Vroorn, 65.] Beaslet, C. J. The defendant was convicted before the Court of Oyer and Terminer, on an indictment containing two counts, the first of which charges him with the larceny of certain goods of a value ex- ceeding twenty dollars, and the other with receiving goods knowing them to be stolen. It appeared that the defendant was in New York at the time of the theft, and while in that state he made an arrangement with one Kelly to come into this state and steal the articles in question and to bring and deliver them to him in New York. This arrangement was carried into effect, — the articles being stolen by Kelly and delivered to the defendant in New York. The defendant was not in this state at any time, from the inception to the conclusion of the transaction. The Court of Oyer and Terminer have asked the advisory opinion of this court upon two points : — First. Whether proof of the above stated facts will support the indictment. Second. Has the defendant committed any offence indictable by the laws of this state? In regard to the first point, the circumstances proved on the trial established the fact that Kelly was guilty of the crime of grand larceny in this state. Kelly therefore committed a felony, and consequently, as the defendant was not present, either actually or constructively, at the commission of the offence, he could not be a principal therein, but was an accessory before the fact. Kelly did the act, and the defend- 1 Ace. Rex V. Coombes, Leach (4th ed.) 388 ; State v. Lake (R. I.) 17 AtL 552. — Ed. 400 STATE V. WYCKOFF. [CHAP. XI. ant's will contributed to it ; but it was committed while he was too far from the act to constitute him a principal. The distinction in felonies between the principal and accessories before and after the fact is cer- tainly technical, and has been sometimes regarded as untenable ; but it is too firmly established to be exploded by judicial authority. It has always been regarded, in its essential features, as a part of the criminal law of this state, and its existence is recognized both in our statutes and in a number of the reported decisions. State v. Cooper, 1 Green, 373 ; Johnson v. State, 2 Dutcher, 324 ; Cook y. State, 4 Zab. 845. The first count, therefore, charging the defendant as a principal in the larceny, is not sustained by the evidence. The crime of the acces- sory, being dissimilar from that of the principal in its fundamental characteristics, must be distinctly charged in the pleadings. It has never been supposed that a count containing a statement of facts evincive of the fault of the party accused as a principal in a felony, was sufficient to warrant the conviction of such party as an accessory. 1 Chit. Crim. Law, 271, 2 id. 4 ; AVharton's Prec. of Indict. 97 ; State V. Seran, 4 Dutcher, 519. In the case of Rex v. Plant, 7 C. & P. 575, it was expressly held that one indicted as principal in a felony could not be convicted of being an accessory before the fact. See also Whart. C. L. 115. Neither will the second count of the indictment sustain the convic- tion. The evidence shows that the stolen goods were received by the defendant, with guilty knowledge, in the state of New York. But this was no offence against the laws of this State. The defendant therefore cannot be legally sentenced upon the conviction founded on the present indictment. The remaining question is, has the defendant committed any offence indictable by the laws of this State ? His act was to incite and procure his agent or accomplice to enter this state and commit the felony. If the defendant had been in this state at the time of such procurement and incitement, he would have been guilty as an accessory before the fact ; but what he did was done out of the state. Did he thereby become amenable to our criminal jurisdiction? As the defendant did not act within this state in his own person, the point to be decided is, did he do such act in this state by construction or in contemplation of law ? It is undoubtedly true that personal presence within the jurisdiction in which the crime is committed, is not in all cases requisite to confer cognizance over the person of the offender, in the tribunals of the gov- ernment whose laws are violated. In some cases the maxim applies, Crimen trahit personam. Thus, where a person being within one jurisdiction, maliciously fires a shot which kills a man in another juris- diction, it is murder in the latter jurisdiction, the illegal act being there consummated. So, in the case of The United States v. Davis, 4 Sumner, SECT. I.] STATE V. WYCKOFF. 401 485, the defendant was accnsed of shooting from an American ship and killing a man on lx)ard a foreign schooner. Chief Justice Story said: "The act was, in conteiiiphitioii of law, done where the shot took effect. He would be liable to be punished by the foreign govern- ment." The same principle was recognized by tiiis court in the case of The State v. Carter, 3 Dutcher, 4'jy. So, when a crime is com- mitted by an innocent living agent, the projector of such crime being absent from the country whose laws are infringi^d. Such was the case of The People o. Adams, 3 Denio, 190. In tliis latter case the facts were tliese : The defendant was indicted in the city of New York for obtaining money from a firm of commission merchants in that city by the exhibition of fictitious receipts. The defendant pleaded that he had never been in the State of New York ; that the receipts were drawn and signed in Ohio, and that the offence was committed by their being presented to the firm in New York by innocent agents em- ployed by the defendant in Ohio. It was held that such plea was bad and disclosed no defence. A number of authorities maintaining the same view will be found collected in the oi)inion of the judge who delivered the decision of the court in the case last cited. The rule, therefore, appears to be firmly established, and upon very satisfactory grounds, that where the crime is committed by a person absent from the country in which the act is done, through the means of a merely material agency or by a sentient agent who is innocent, in such cases the offender is punishable where the act is done. The law implies a constructive presence from the necessity of the case ; otherwise the anomaly would exist of a crime, but no responsible criminal. But the more difficult question remains to be considered, which is, — in case of a felony committed here by a responsible agent, who is therefore the principal felon, and punishable by our laws, — can the procurer, who is an accessory before the fact, and whose acts of pro- curement have been done in a foreign jurisdiction, be indicted and punished for such procurement in this state? The general rule of the law has always been that a crime is to be tried in the place in which the criminal act has been committed. It is not sufficient that part of such act shall have been done in such place, but it is the completed act alone whicli gives jurisdiction. So far has this strictness been pushed that it has been uniformly held that if a felony was committed in one county, the accessory having incited the prin- cipal in another county, such accessory could not be indicted in either. This technicality, which, when applied to the several counties of the same kingdom or state, appears to have little to recommend it, was nevertheless so firmly established that it required the statute of 2 and 3 Ed. VI. c. 24, ^ to abolish it, and this statute has been re-enacted in 1 " Where any murder or felony hereafter shall be committed and done in one county, and another person or mo shall be acce.ssory or accessories in any manner of wise to any such murder or felony in any other county, that then an iudictmeut found 26 402 STATE V. WYCKOFF. [CHAP. XI. this State. Nix. Dig. 199 (Rev. p. 282, § 78). And so in like manner tlie same rigor existed in eases in which death ensued out of the king- dom from a felonious stroke inflicted within it, it being decided that neither the principal nor accessory was, under such circumstances, in- dictable. This imperfection in the criminal system was removed by the statute of 2 Geo. II. c. 21, and which has been substantially copied in the third section of the act of this State before referred to iu Nix. Dig. 200 (Rev. p. 282, § 78). For the rules of law which were thus modified by statute, see 3 lust. 48 ; Lacye's Case, 1 Leo. 270 ; 2 Rep. 93. If, then, the accessory by the common law was answerable only in the county in which he enticed the principal, and that, too, when the criminal act was consummated in the same county, it would seem to follow necessarily, iu the absence of all statutory provision, that he is wholly dispunishable when the enticement to the commission of the offence has taken place out of the state in which the felony has been perpetrated. Under such a condition of affairs it is not easy to see how the accessory has brought himself within the reach of the laws of the offended state. His offence consists in the enticement to commit the crime ; and that enticement, and all parts of it, took place in a foreign jurisdiction. As the instrumentality employed was a conscious guilty agent, with free will to act or to refrain from acting, there is no room for the doctrine of a constructive presence in the procurer. Ap- plying to the facts of this case the general and recognized principles of law, it would seem to be clear that the offence of which the defend- ant has been guilty is not such as the laws of this state can take cog- nizance of. We must be satisfied to redress the wrong which has been done to one of our citizens, and to vindicate the dignity of our laws by the punishment of the wrong-doer who came within our territorial limits. As for the defendant, who has never been, either in fact or by legal intendment, within our jurisdiction, he can be only punished by the authority of the State of New York, to whose sovereignty alone he was subject at the time he perpetrated the crime in question. The principal involved in this case has not often been the subject of judicial consideration, nor has it received much attention from the text- writers. But in the few cases to be found in the reports upon the point a view similar to the above has been expressed. The case of The State V Moore, 6 Foster, 448, was, in all its features, identical with that now before this court, and the result was a discharge of the pris- oner, on the ground that the crime of the accessory had not been committed within the jurisdiction of New Hampshire. The case Ex parte Smith, 6 Law Reporter, 57, was to the same or taken ao:ainst such accessory and accessories upon the circumstance of such matter before the justices of the peace, or other justices or commissioners to eiKjuire of felonies iu the county where such offences of accessory or accessories in any manner of wise shall be committed or done, shall be as good and effectual in the law as if the said principal offence had been committed or done within the same county where the same indictmeut against such accessory shall be found." 2 & 3 Ed. 6, c. 24, § 4. — Ed. SECT. I.] STATfc: V. GESSEKT. 40 Q effect. The same priuciple was agaiu cousiclered, though in a some- what different aspect, in the case of The State r. Knight, 1 Taylor's liep. (N. C.) 65, and the opinion intimated by the court entirely ac- corded with those expressed in the two cases first above cited. These are the only judicial examinations of the matter now in hand which I have mot with in the course of my research. Upon authority, then, as well as upon principle, I think the present indictment cannot be sustained, and that the defendant has not com- mitted any offence which is indictable by force of the laws of this State. Let the Court of Oyer and Terminer be advised accordingly.^ STATE V. GESSERT. Supreme Coukt of Minnesota. 1875. [Reported 21 Minnesota, 3^9.] Berry, J. The indictment in this case was found by a grand jury of Washington County, and charges the defendant with committing the crime of murder, by feloniously, &c., inflicting upon David Savazyo, on Aug. 28, 1874, in said county, a stab and wound, of which, upon the same day, Savazyo died in the county of Pierce, and State of Wis- consin. The question in the case is whether the indictment charges the commission of an offence in the county of Washington, It is for his acts that defendant is responsible. They constitute his offence. The place where they are committed must be the place where his offence is committed, and therefore the place where he should be indicted and tried. In this instance the acts with which defendant is charged, to wit, the stabbing and wounding, were committed in Wasliington County. The death which ensued in Pierce County, though it went to characterize the acts committed in Washington County, was not an act of defendant committed in Wisconsin, but the consequence of his acts committed in Washington County, against the peace and dignity of the State of Minnesota. We are therefore of opinion that the indictment charges the commission of the crime of murder in Washington County, and, upon the questions certified to this court by the court below, that the demurrer to the indictment should be overruled Riley v. State, 9 Humph. 646; Com. v. Parker, 2 Pick. 550, 559; 1 East, P. C. c. 5, § 128 ; Rex v. IJurdett, 4 13. & Aid. 95, 173 ; Grosvenor v. Inhabitants, &c., 12 East, 244 ; People r. Gill, 6 Cal. 637 ; State v. Carter, 3 Dutch. 499 ; 1 Hale P. C. c 33 ; 1 Bish. Or. Law, § 83 ; 1 Bish. Cr. Proc. § 67 ; 2 Wharton Cr. Law, § 1052.' » Ace. State v. Chapin, 17 Ark. 561 ; State v. Moore, 26 N. H, 448. But see State V. Grady, 34 Conn. 118 ; State v. Ayers, 8 Baxter, 96. — Ed. 2 Ace. Green v. State, 66 Ala. 40; U. S. v. Guiteau, 1 Mack. 498. See also the 404 LINDSEY V. STATE. [CHAP. XI. LINDSEY V. STATE. Supreme Court of Ohio. 1882. \ Reported 38 Ohio State, 507.] The plaintiff in error, and one John T. Morris, were jointly indicted in Jefferson County. The charge is that they did unlawfully and feloniousl}' utter and publish in said county, as true and genuine, a certain false, forged, and counterfeit deed of real estate, purporting to be executed and aclinowledged by Maurice F. Thornton and wife, be- fore Herman E. Shuster, a notary public of the State of Missouri, and to convey certain lands in that State to James Turubull, of Jefferson County, Ohio. The plaintiff in error had a separate trial, and was convicted and sentenced. The evidence tended to show that the deed was a forgery, executed in St. Louis by the notary public by the procurement of Liudsey, who then and thereafter, until forcibly brought to Ohio, was never in this State ; that this deed was delivered by Liudsey or bis agent to his co- defendant Morris (who is awaiting his trial), and by him was sent by mail toT. & D. Hall, real estate agents in Steubenville, through whom it was uttered and published by a sale of the land to Turnbull. T. & D. Hall were the innocent agents in the transaction, and received and accounted for the purchase-money, less commissions.' Johnson, J. Two questions are presented on the foregoing state- ment : — First. Had the court jurisdiction over the plaintiff in error? and, Second. Were the conveyances of other lands admissible for the purpose of showing guilty knowledge ? '^ First. As to the jurisdiction of the court; Is the crime charged an extra-territorial crime? Was it committed by the accused in Missouri, or in Ohio ? Jf he were indicted for the forgery of this deed, he could not be punished in Ohio, as it is conceded that all his acts that constitute that crime were committed in Missouri. When he procured the notary in St. Louis to forge the signatures, and the acknowledgment of the grantors, with the criminal intent, the crime of forgery was consum- mated in the State of Missouri. But this is not the charge in the case at bar. It is for knowingly uttering and publishing as true and genu- ine a false and forged deed. It is wholly immaterial where the forgery was committed. following cases for decisions upon the locality of crime: Allison v. Com., 83 Ky.254 (receiving stolen goods) ; People v. Arnold, 46 Mich. 268 (conspiracy) ; Lovelace v. State, 12 Lea, 721 (embezzlement). —Ed. ^ Part of the evidence and the arguments of counsel are omitted. ' That portion of the opinion which relates to the second question is omitted. SFXT. l] LINDSEY V. STATE. 405 The question therefore is, was this deed uttered and pul)lished in Jefferson County, Ohio, and was Liudsey guilty of this crime? That this forged deed was uttered and published in Ohio by T. & D. Hull, who supposed it was genuine, is clear from the evidence. Now, it is assumed that the jury had evidence to warrant them in finding that T. & I). Hall did so utter and publish this deed by the procurement of Lindsey. The crime was therefore completed or consummated in Ohio, through the instrumentality of an innocent agent. It is wholly immaterial whether his co-defendant Morris was his confederate or his dupe, as in either case the acts of INIorris by correspondence mailed in St. I.ouis to T. & D. Hall were simply the means used to consummate a crime in Ohio. The crime had its inception in Missouri, but it was com- mitted in Ohio by innocent agents. If a letter containing a forged instrument is mailed at one place to be sent to another, the venue must be laid where the letter is received. 3 Greenl. § 112. The crime of uttering and publishing is not complete until the paper comes to the hands of some one other than the accused, and if it be sent by mail for the purpose of being there used, the crime is not consummated until it is received by the person to whom it is to be delivered. It is a fundamental principle that a person is responsible criminally for acts committed by his procurement as well as for those done in person. The inherent power of the state to punish the utter- in» and publication of forged instruments within its territorial limits, without regard to the place where the forgery was committed, or pur- pose was formed, is essential to tlie protection of her people. It is now a generally accepted principle that one who in one county or state employs an innocent agent in another to commit a crime, is liable In the latter county or state. Robbins v. The State, 8 Ohio St. 131 ; Norris r. The State, 25 Ohio St. 217; 1 Whart. Crim. Law (7th ed.), §§ 210, 278; see also Commonwealth v. Macloon, 101 Mass. 1 ; Com- monwealth V Smith, 11 Allen (Mass.), 243 ; Commonwealth r. Bland- ing, 3 Pick. 304 ; Rex v. Johnson, 7 East, 65 ; Wh. Con. of L. §§ 877- 921; People v. Adams, 3 Denio, 190, affirmed 1 N. Y. 173; United States v. Davis, 2 Sunin. 482 : State v. Wyckoff, 2 Vroom (N. J.) 68 ; Commonwealth v. Gillespie, 7 Serg, & R. 469 ; Stillraan v. White Rock Co., 3 Woodb. & M. 538 ; Rex v. Garrett, 6 Cox C. C. 260 ; Rex v. Jones, 4 Cox C. C. 198; State v. Grady, 34 Com. 118.^ Pub. Stats, ch. 210, § 5. [An accessory] may be indicted, tried, and punished in the same court and county where the principal felon might be indicted and tried, although the offence of counselling, hiring, or procuring the commission of such felony was committed on the high seas, or on land either within or without the limits of this state.^ > Ace. Reg. V. Taylor, 4 F. & F. 511 ; People v. Adams, 3 Den. 190 ; 1 N. Y. 173. See Reg. r. Finkelstein, 16 Cox C. C. 107. — Ed. " See Com. i. Pettes, 114 Mass. 307. — Ed. 406 STATE V. KNIGHT. [CHAP. XI. Penal Code of New York, § 32. An accessory to a felony may be indicted, tried, and convicted, either in the county where he be- came an accessory, or in the county where the principal felony was committed. SECTION II. Statutory/ Jurisdiction. STATE V. KNIGHT. Superior Court of North Carolina. 1799. [Reported 2 Haywood, 109.] He was indicted of passing counterfeit bills of credit, of the likeness of the genuine bills of credit of this state, in Virginia. The indictment was drawn upon the Act of 1784, c. 25, § 4 : " And whereas there is reason to apprehend that wicked and ill-disposed persons resident in tlie neighboring states make a practice of counterfeiting the current bills of credit of this state, and b}^ themselves or emissaries utter or vend the same with an intention to defraud the citizens of this state : Be it therefore enacted that all such persons shall be subject to the same mode of trial, and on conviction liable to the same pains and penalties, as if the offence had been committed within the limits of this state, and be prosecuted in the Superior Court of any district within this state." And he was convicted. Per curiam. This state cannot declare that an act done in Virginia b}' a citizen of Virginia shall be criminal and punishable in this state. Our penal laws can only extend to the limits of this State, except as to our own citizens. But granting tliat our Legislature could enact laws for the punishment of offences committed in Virginia, still tliis clause only extends by implication to acts done in Virginia •, and no penal law can be construed by implication, nor otherwise than by the express letter. He was discharged.' 1 Ace. People v. Merrill, 2 Park. 590. Contra, Hanks v. State, 13 Tex. App. 289. — Ed. SECT. II.] STATE V. CARTER. 407. STATE V. CARTER. Supreme Court of New Jersey. 1859. [Reported 3 Dutcher, 499.] Vredenburgh, J. The indictment charges that the defendant, on the 2(»th of December, 1.S58, in the city of New York, gave one Brush- ingh.am several mortal bruises, of which, until the 31st of December, 1H.08, as well in New York as in Hudson County, in this state, he lan- guished, and of which, in said Hudson County, he then died. To this indictment the defendant pleaded that the court had not jurisdiction of the cause. The defendant, we must assume, was a citizen of the State of New York. Nothing was done by the defendant in this state. "NVhenlhe blow was given, both parties were out of its jurisdiction, and within the jurisdiction of the State of New York. The only fact con- nected with the oflfence alleged to have taken place within our juris- diction is, that after the injury, the deceased came into, and died in this state. This is not the case where a man stands on the New York 1 side of the line, and shooting across tlie border, kills one in New Jer- sey. When that is so, the blow is in fact struck in New Jersey. It is nhe defendant's act in this state. The passage of the ball, after it crosses the boundary, and its actual striking, is the continuous act of the defendant. In all cases the criminal act is the impinging of the weapon, whatever it may be, on the person of the party injured, and that must necessarily be where the impingement happens. And whether the sword, the ball, or any other missile, passes over a boundary in the act of striking, is a matter of no consequence. The act is where it strikes, as much where the party who strikes stands out of the state, as where he stands in it. Here no act is done in this state by the defendant. He sent no mis- sile, or letter, or message, that operated as an act within this state. The coming of the party injured into this state afterwards was his own voluntary act, and in no way the act of the defendant. If the defend- ant is liable here at all, it must be solely because the deceased came and died here after he was injured. Can that, in the nature of things, make the defendant guilty of murder or manslaughter here? If it can, then for a year after an injury is inflicted, murder, as to its jurisdic- tion, is ambulatory at the option of the party injured, and becomes punishable as such wherever he may see fit to die. It may be man- slaughter, in its various degrees, in one place, murder, in its various degrees, in another. Its punishment may be fine in one country, im- prisonment, whipping, beheading, strangling, quartering, hanging, or torture in another, and all for no act done by the defendant in any of these jurisdictions, but only because the party injured found it coo venient to travel. 408 STATE V. CARTER. [CHAP. XI. This is not like the case of stolen goods, carried from one state to another, or of leaving the state for any purpose whatever, like that for fighting a duel, or of sending a letter or messenger, or message, for any purpose, into another state ; for in all these cases the cogni- zance is taken for an act done within the jurisdiction. If the acts charged in this indictment be criminal in New Jersey, it must be either by force of some statute or upon general principles. There is no statute, unless it be the act to be found in Nix. Dig. 184, 5. 3. But this evidently relates to murder only, and not to man- slaugliter. But I cannot make myself believe that the legislature, in that act, intended to embrace cases where the injury was inflicted within a for- eign jurisdiction without any act done by the defendant witliiu our own. iSuch an enactment, upon general principles, would necessarily be void; it would give the courts of this state jurisdietion over all the subjects of all the governments of the earth, with power to try and punish them, if they could by force or fraud get possession of their persons in all cases where personal injuries are followed by death. An act, to be criminal, must be alleged to be an offence against the sovereignty' of the government. This is of the ver}- essence of crime punishable by human law. How can an act done in one jurisdiction be an offence against the sovereignty of another? All the cases turn upon the question where the act was done. The person who does it may, when he does it, be withm or without the jurisdiction, as by shooting or sending a letter across the border ; but the act is not the less done within the jurisdiction because the person who does it stands without. This case is not at all like those where the defendant is tried in England for a crime committed in one of the dependencies of the British empire. There the act is done, and the crime is in fact com- mitted against the sovereignty of the British crown, and only tl;e place of trial is changed. If our government takes jurisdiction of this case, it must be not by virtue of any statute, but because it assumes general power to punish acts mala in se wherever perpetrated in the world. The fact of the party injured can give no additional jurisdiction. Such crimes may be committed on the high seas, in lands where there are. or where there are not regular governments established. When done upon the high seas, they may be either upon our vessels or upon vessels belonging to other governments. When done upon our vessels, in whatever solitary corner of the ocean, from the necess- ity of the case, and by universal acceptance, the vessel and all it con- tains is still within our jurisdiction, and when the vessel comes to port the criminal is still tried for ayi act dofie within our jurisdiction. But we have never treated acts done upon the vessels of other governments as within our jurisdiction, nor has such ever been done by any civilized government. When an act malum hi se is done in solitudes, upon land where there SECT. II.] COMMONWEALTH V. MACLOON. 409 has not yet been formerly extended any supreme human power, it may be that any regular government may feel, as it were, a divine commis- sion to try and punish. It may, as in cases of crime committed in the solitudes of the ocean, upon and by vessels belonging to no govern- ment, pro Iiac vice arrogate to itself the prerogative of omnipotence, and hang the pirate of the land as well as of the water. P'urther than this it could not have been intended that our statute should ai)ply. l>iit here the act was done in the State of New York, a regularly organ- ized and acknowledged supreme government. The act was a crime ai^aiust their sovereignty. That was supreme within its territorial limits and in its very nature, and in fact is exclusive. There cannot be two sovereignties supreme over the same place at the same time over the same subject-matter. The existence of theirs is exclusive of ours. We may exercise acts of sovereignty over the wastes of ocean or of land, but we must necessarily stop at the boundary of another. The allegation of an act done in another sovereignty, to be a violation of our own, is simply alleging an impossibility, and all laws to punish such acts are necessarily void. It is said that if we do not take jurisdiction, the defendant will go unpunished, inasmuch as, the party injured not dying in New York, he could not be guilty of murder there. But New York may provide by law for such cases, and if she does not, it is their fault, and not ours. The act done is against their sovereignty, and if she does not choose to avenge it, it is not for us to step in and do it for them. I think that the Oyer and Terminer should be advised that no crim« against this state is charged in the indictment.^ COMMONWEALTH v. MACLOON. Supreme Judicial Court of Massachusetts. 1869. [Reporleil 101 Massachusetts, l.| Grat, J.* The defendants, the one a citizen of Maine, and the other a British subject, have been convicted in the Superior Court in Suffolk of manslaughter of a man who died within the county in consequence of injuries inflicted by them upon him in a British mer- chant ship on the high seas. The principal question in the case is that of jurisdiction, which touches the sovereign power of the Commonwealth to bring to justice the murderers of those who die within its borders. This question has been ably and tlioroughly argued, and has received the consideration which its importance demands. » Ace. State v. Kelly, 76 Me. 331. — Ed. " Part of the opinion only is given. 410 COMMONWEALTH V. MAGLOON. [CHAP. XL The statute on which the defendants were indicted, after prescribing the punishment for murder and manslaughter, provides that '' if a mor- tal wound is given, or other violence or injury inflicted, or poison is administered, on the high seas, or on land, either within or without the limits of this state, by means whereof death ensues in any county thereof, such offence may be prosecuted and punished in the county where the death happens." Gen. Sts. c. 171, § 19. This statute is founded upon the general power of the legislature, except so far as restrained by the constitutions of the Commonwealth and of the United States, to declare smy wilful or negligent act which causes an injury to person or property within its territory to be a crime, and to provide for the punishment of the offender upon being apprehended within its jurisdiction. Whenever any act, which, if committed wholly within one jurisdiction would be criminal, is committed partlj' in and partly out of that juris- diction, the question is whether so much of the act as operates in the county or state in which the offender is indicted and tried has been de- clared to be punishable by the law of that jurisdiction. A good illustration of this is afforded by the cases of bringing stolen goods from one jurisdiction to another. It has been held from the earliest times that if a thief steals goods in one county, and brings them into another, he may be indicted in either county, because his unlawful carr^'ing in the second is deemed a continuance of the unlaw- ful taking, and so all the essential elements of larceny exist in the second ; but if he takes the goods by force, although this is robbery in the county in which he first takes them, it is but larceny in any county into which he afterwards carries them, because no violence to the per- son has been used in the latter. 1 Hale P. C. 507, 508, 536 ; 2 Hale P. C. 163 ; 4 Bl. Com. 305. If he steals goods on the high seas or in a foreign countr}', and brings them into this state, it is not a common law larcen}-, because there has been no taking against the law which is invoked to punish him. Butler's Case, 13 Co. 53; s. c. 3 Inst. 113; Commonwealth ?;. Uprichard, 3 Gra^', 434, Yet if the legislature see fit to provide that the bringing into the state of goods taken without right from the owner in a foreign country, shall be punished here as larceny, it is within their constitutional authority to do so. People v. Burke, U Wend. 129 ; State y. Seay, 3 Stew. 123 ; Hemmaker v. State, 12 Missouri, 453. By a series of decisions, beginning while the states of this Union were colonies of Great Britain, it has been held that a bringing into Massachusetts of goods stolen in another colony or state subject to the same national sovereignty might be indicted here as a larcen}' at common law. Commonwealth v. Andrews, 2 Mass. 14, and cases cited ; Commonwealth v. Holder, 9 Gray, 7. And in other states, in which the common law has been held not to reach such a case, a statute declaring such bringing to be larceny in the state into which the goods are brought has been acknowledged to be valid and binding upon the courts. Simmons v. Commonwealth, 5 Binn. 619 ; Simpson v. State, 4 Humph. 461 ; Beal v. State, 15 Ind. 378. KECT. II.] COMNfONWEALTH V. MACLOON. 411 The general principle, that a man who docs a oriminal act In one county or state may be held liable for its continuous operation in another, has been affirmed in various otlier cases. Thus a man wlio " erects a nuisance in a river or stream in one county or state is lial)le, criminally as well as civilly, in any count}- or state in which it injures the land of another, Bulwer's Case, 7 Co. 2 b, 3 b ; 2 Hawk. c. 25, § 37 ; Com. Dig. Action, N. 3, 11 ; Abbott, C. J., in The King v. Bur- dett, 4 B. & Aid. 175, 176 ; Thompson v. Crocker, 9 Pick. 59 ; Stillman V. White Rock Manufacturing Co. 3 Woodb. iford, having had the notes of the special verdict three days before, delivered their opinion as then advised, but they said they would not be bound by it: that this was no murder, but only man- slaugliter ; and lliey said that if a man be unduly arrested or restrained of his liberty by three men, although he be quiet himself, and do not en- deavor any rescue, yet tliis is a provocation to all other men of Eng- land, not only his friends but strangers also, for common humanity sake, as my Lord Bridgman said, to endeavor his rescue ; and if in such endeavor of rescue they kill any one, this is no murder, but only man- slaughter ; and my brother Browne seemed to rely on a case in Coke 12 Rep. p. 87, where divers men were playing at bowls, and two of them fell out and quarrelled, one with another, and a third man who had no quarrel, iu revenge of his friend struck the other with a bowl, of which blow he died ; this was held to be only manslaughter. But myself, Brother Twisden, Brother Windham, and Brother Morton, were of another opinion ; and we held it to be a murder, because there was (as we thought) no provocation at all. And if one man assault another without provocation, and kill liira, this is murder ; the law in that case implying malice. And we find it was resolved b}' all the judges in the Lord Morly's case that no words, be they what they will, were such a provocation in law as. if upon them one kills another, would diminish or lessen the offence from being murder to be but man- slaughter. As if one calleth another son of a whore, and giveth him tiie lie, and upon those words the other kill him that gave tlie words ; this, notwithstanding those words, is murder; and we thought those woids were apter to provoke a man to kill another than tlie bare see- ing a man to be undul}' pressed when the party pressed willingly renders himself. But we held that such a provocation as must take off the kill- ing of a man from murder to be but manslaughter, must be some open violence, or actual striving with, or striking one another ; and that answers tlie case cited by my brother Browne. For there it must be intended that the two men that fell out were actually fighting together; for if there passed only words betwixt these two, and upon them, a third person struck one of them with a bowl, and killed him, we held that to be murder. And to this my Lord Bridgman and the other judges agreed, and we thought the case in question to be much the stronger, because the part}" himself who was impressed was quiet, and made no resistance, and they who meddled were no friends of his, or 476 huggett's case. [chap, xii, acquaintance, but were strangers, and did not so much as desire them -which had him in custody to let him go, but presentl}' without more ado. drew their swords at them, and ran at them. And we thought it to be of dangerous consequence to give an}' encouragement to private men to take upon themselves to be the assertors of other men's liberties, and to become patrons to rescue them from wrong ; especiall}- in a na- tion where good laws are for the punishment of all such injuries, and one great end of law is to right men by peaceable means, and to dis- countenance all endeavors to right themselves, much less other men by force. Secondly, we four were of opinion that if A. assault B. without any provocation, and draw his sword at him, and run at him ; and then B. to defend himself draw his sword, and they fight together. If A. kill B. it is murder, and B. drawing his sword to defend himself shall not lessen the offence of A. from being murder to be manslaughter only ; and to this the other judges did (as I take it) agree, for it were unreasonable that if one man draw upon another, and run at him with- out an}' provocation that the other man should stand still, and not defend himself, and it is also unreasonable that his endeavor to defend himself should lessen the offence of him who set upon him without prov- ocation. But we four held that if two men be quarrelling, and actually iBght- ing together, and another man runneth in to aid one of them and kill the other, this is but manslaughter, because there was an actual fighting and striving with violence. So we held, if such people who are called spirits take up a youth, or other person to carry him away, and thereupon there is a tumult raised, and several persons run in, and there is a man killed in the fray, this is but manslaughter ; for there is an open affray, and actual force, which is a sudden provocation, and so that death which ensueth is but man- slaughter. But where people are at peace, there, if another man upon suspicion that an injury is done to one of them, will assault and kill him whom he thinketh did the injury, this is murder, so that we hold nothing but an open affray or striving can be a provocation to any per- son to meddle with an injury done to another, if in that meddling he kill a man, to diminish or lessen the offence from murder to man- slaughter. Memorandum : After this difference I granted a certiorari to remove the cause into the King's Bench, to be argued there, and to receive a final and legal determination ; and although all the judges of the court were clearly of opinion that it was murder, yet it being in case of life, we did not think it prudent to give him judgment of death, but admitted him to his clergy ; and after he read, and was burnt in the hand, we ordered him to lie in prison eleven months without bail, and after- wards until he found sureties to be of the good behavior during his life.^ 1 See on this point the correspondence between Seymour, Q. C, and others and Blackburuj J., printed in note IX. to Stephen's Digest of Cr Law. — Ed. SECT. VU.] EEX V. THOMPSON. 477 REGINA V. STEDMAN. Old Bailey. 1704. [Rtported Foster Cr. L. 292.] There being an affray in the street, one Stedman, a footsoldier, ran hastily towards the combatants. A woman seeing him run in tliat manner cried out, " You will not murder the man, will you? " Stedman replied, "What is that to you, you bitch?" The woman thereupon gave him a box on the ear, and Stedman struck her on the breast with the pommel of his sword. The woman then fled, and Stedman pursu- ing her stabbed her in the back. IMt was at first of opinion, that this was murder, a single box on the ear from a woman not being a suffi- cient provocation to kill in this manner, after he had given her a blow in return for the box on the ear ; and it was proposed to have the matter found specially : but it afterwards appearing in the progress of the trial, that the woman struck the soldier in the face with an iron patten, and drew a great deal of blood, it was holden clearly to be no more than manslaughter. ~ The smart of the man's wound, and the effusion of blood might pos- sibly keep his indignation boiling to the moment of the fact. FRAY'S CASE. Old Bailey, coram Gould, J. 1785. [Reported 1 East P. C. 236.] "Where one, having had his pocket picked, seized the offender, and being encouraged b}- a concourse of people, threw him into an adjoin- ing pond by way of avenging the theft by ducking him, but without any apparent intention of taking away his life, and the pickpocket was drowned, this was ruled to be manslaughter only. REX V. THOMPSON. Crown Case Reserved. 1825. [Reported I Moody C. C. 80.] The prisoner was tried before Mr. Baron Garrow at the Winter Assizes at Maidstone, in the year 1825, upon an indictment which charged him, first, with maliciously stabbing and cutting Richard 478 BEX V. THOMPSON. [CHAP. XIL Southerden, with inteut to murder ; secondly, with intent to disable him ; and thirdly, with intent to do him some grievous bodily harm. On the trial it appeared that the prisoner, who was a journeyman shoemaker, on the 18th of November, 1824, applied to his master for some money, who refused to give it to him till he finished his work ; on his subsequently urging for money and his master refusing him, he became abusive, upon which his master threatened to send for a con- stable. The prisoner refused to finish his work, and said he would go upstairs and pack up his tools, and said no constable should stop him ; he came downstairs with his tools, and drew from the sleeve of his coat a naked knife, and said he would do for the first bloody constable that oflfered to stop him ; that he was ready to die, and would have a life before he lost his own ; and then making a twisting or flourishing motion with the knife, put it up his sleeve again, and left the shop. The master then applied to Southerden, the constable, to take the prisoner into custody ; he made no charge, but said " he suspected he had tools of his, and was leaving his work undone ; " the constable said he would take him if the master would give him charge of him ; they then followed the prisoner to the 3'ard of the Bull's Head Inn ; the pris- oner was in a public privy there as if he had occasion there. The privy had no door to it. The master said, "That is the man; I give you in charge of him." The constable then said to the prisoner, " My good fellow, your master gives me charge of you ; you must go with me." The prisoner, without saying anything, px-esented a knife to the con- stable and stabbed him under the left breast ; he attempted to make a second, third, and fourth blow, which the constable parried off with his staff. The constable then aimed a blow at his head ; the prisoner then ran away with the knife and was afterwards secured. The surgeon described the wound as being two inches and a half in length and one quarter of an inch deep, and inflicted with a sharp instrument like the knife produced. The knife appeared to have struck against one of the ribs and glanced off. Had the point of the knife insinuated itself between the ribs and entered the cavity of the chest, death would have inevitably been the consequence ; if it had struck two Inches lower death would have ensued ; but the wound, as it happened, was not considered dangerous. The jury found the prisoner guilt}', and sentence of death was passed upon him ; but the learned judge respited the execution and submitted the case for the consideration of the judges. In Hilary term, 1825, all the judges (except Best, L. C. J,, and Alexander, L. C. B., who were absent) met and considered this case. The majority of the judges, viz., Abbott, L. C. J., Graham, B., Bayle}-, J., Park, J., Garrow, B., HuUock, B., Littledale, J., and Gaselee, J., held that as the actual arrest would have been illegal, the attempt to make it when the prisoner was in such a situation that he could not get away, and when the waiting to give notice might have enabled the constable to complete the arrest, was such a provocation as, if death SECT. VII.] KEGINA V. WELSH. 479 had ensued, would have made the case manslaughter only, and that tlierefuie the cuiivictiou wua wrong, lloliuyd, J., auU liuirough, J., thought otherwise. REGINA V. WELSH. Centk^u. Ckiminal Court. 1869. [Reported II Cox C. V. 336.] The prisoner was indicted for that he feloniously and with malice aforethought did kill and sla}' one Abraham, Pater for the prosecution. Bibton for the prisoner. The prisoner hud claimed a debt from the deceased, and had sum- moned him to a police court where the claim was dismissed. The prisoner went from the police office to a public-house, distant about a mile, whither in a short time the deceased also came. " You have got the better of me this time," said tlie prisoner to him. " Yes," answered the deceased, pleasantly; "I thought I should." "But," said the prisoner, " I '11 have another summons out against you about it." " I am ready," replied the deceased, " to pay what any indifferent person may say is due." " Not 3'ou," said the prisoner ; " you don't mean to pay anything." The deceased approached him and offered to drink with him. The prisoner refused, saying, " I will not drink with such a man as you." The deceased came near him. The prisoner said, " Don't come near me," and advanced towards him. The deceased retreated several paces. The prisoner came near him. The deceased held out his hand again, until it was within a few inches of the pris- oner's face, apparently to ward him off, and saying at the same time, " Words as you like, but keep your hands off." The deceased struck no blow. The prisoner closed with him, and forced him down on a seat, and a few moments afterwards was seen almost upon him, in the act of stabbing him in the abdomen with a clasp knife. The blow was mortal, and the man died. Kibton, for the prisoner, strove in cross-examination to elicit that there was some blow or push b}- the deceased. The principal witnesses, in answer to the learned judge, said that they saw no blow or even push by the deceased ; but that, on the con- trary, it was the prisoner who shoved or pushed the deceased down. Jiihton^ in addressing the jury for the defence, submitted that the question was not whether the provocation was or was not slight (as he admitted it was), but whether or not in point of fact the prisoner was under the influence of ungovernable passion at the time he struck the blow. Keatikg, J., however, said he should tell the jury that the question 480 EEGINA V. WELSH. [CHAP. XIL was, not merely whether there was passion, but whether there was reasonable provocation. Eibtoii cited Foster's Crown Law, 295, to show that the law made allowances for human passion, and he urged that upon the evidence there was clearly an assault upon the person by the deceased in holding his hand so near the prisoner's face, and that the probability was that there was a blow, as the witnesses heard the prisoner say "Keep off," and did not see precisely what had happened in the brief interval between that expression and the fatal blow. Keating, J., in summing up the case to the jury, said : The pris- oner is indicted for that he killed the deceased feloniously and with malice aforethought, that is to say intentionally, without such provo- cation as would have excused, or such cause as might have justified, the act. Malice aforethought means intention to kill. Whenever one person kills another intentionally, he does it with malice aforethought. In point of law, the intention signifies the malice. It is for him to show that it was not so by showing sufficient provocation, which only reduces the crime to manslaughter, because it tends to negative the malice. But when that provocation does not appear, the malice afore- thought implied in the intention remains. By the law of England, therefore, all intentional homicide \s prima facie murder. It rests with the party charged with and proved to have committed it to show, either by evidence adduced for the purpose, or upon the facts as they appear, that the homicide took place under such circumstances as to reduce the crime from murder to manslaughter. Homicide, which would be prima facie murder, may be committed under such circumstances of provoca- tion as to make it manslaughter, and show that it was not committed with malice aforethought. The question, therefore, is — first, whether there is evidence of any such provocation as could reduce the crime from murder to manslaughter ; and, if there be any such evidence, then it is for the jury whether it was such that they can attribute the act to the violence of passion naturally arising therefrom, and likely to be aroused thereby in the breast of a reasonable man. The law, therefore, is not, as was represented by the prisoner's counsel, that, if a man commits the crime under the influence of passion, it is mere man- slaughter. The law is that there must exist such an amount of provo- cation as would be excited by the circumstances in the mind of a reasonable man, and so as to lead the jury to ascribe the act to the influence of that passion. When the law says that it allows for the infirmity of human nature, it does not say that if a man, without suffi- cient provocation, gives way to angry passion, and does not use his reason to control it — the law does not sa}' that an act of homicide, intentionally committed under the influence of that passion, is excused or reduced to manslaughter. The law contemplates the case of a reasonable man, and requires that the provocation shall be such as that such a man might naturally be induced, in the anger of the moment, to commit the act. Now, I am bound to say that I am unable SECT. VII.] REGINA V. ROTIIWELL. 481 to discover in the evidence in tliis case an}' provocation which would suffice, or approach to such as would sullice, to reduce the crime to manslaughter. It has been laid down that mere words or gestures will not be sufficient to reduce the offence, and at all events the law is clear that the provocation must be serious. I have already said that I can discover no proof of such provocation in the evidence. If you can discover it, you can give effect to it ; but you are bound not to do so unless satisfied that it was serious. It is urged that there was an assault, and that it is probable there was a blow. That Is for you to consider. What I am bound to tell you is that in law it is necessary that there should have been serious provocation in order to reduce the crime to manslaughter, as, for instance, a blow, and a severe blow, — something which might naturally cause an ordinary and reasonably minded man to lose his self-control and commit such an act. I endeavored to elicit whether there was anything like a blow by the deceased, but failed to do so. It does not appear that there was any- thing beyond putting out his hand, which came near the prisoner's face. There is no evidence of his doing anything else ; that is the evidence. Upon the evidence it is for you to ascertain whether, taking the law as I have laid it down, you can discover evidence of such a serious provo- cation as would reduce the crime to manslaughter. Guilty f sentetice, Death. REGINA V. ROTHWELL. Manchester Assizes. 1871. [Reported 12 Cox C. C. 145.] Christopher Rothwell was indicted for the wilful murder of his wife, at Oldham, on the 2d of October. Cottingham for the prosecution. Torr for the defence.^ Blackburn, J., in summing up, said : A person who inflicted a dangerous wound, that is to sa}', a wound of such a nature as he must know to be dangerous, and death ensues, is guilty of murder ; but there may be such heat of blood and provocation as to reduce the crime to manslaughter. A blow is such a provocation as will reduce the crime of murder to that of manslaughter. Where, however, there are no blows, there must be a provocation equal to blows ; it must be at least as great as blows. For instance, a man who discovers his wife in adultery, and thereupon kills the adulterer, is only guilty of man- slaughter. As a general rule of law, no provocation of words will reduce the crime of murder to that of manslaughter, but under special 1 The evidence is omitted. 81 432 MAHER V. PEOPLE. [CHAP. XU. circumstances there may be such a provocation of words as will have that effect ; for instance, if a husband suddenly hearing from his wife that she had committed adultery, and he having had no idea of such a thing before, were thereupon to kill his wife, it might be manslaughter. Now, in this case, words spoken b}' the deceased just previous to the blows inflicted by the prisoner were these: "Aye; but I'll take no more for thee, for I will have no more children of thee. I have done it once, and I'll do it again." Now, what you will have to con- sider is, would these words, which were spoken just previous to the blows, amount to such a provocation as would in an ordinar}' man, not in a man of violent or passionate disposition, provoke him in such a way as to justify him in striking her as the prisoner did. Guilty of manslaughter ; ten years penal servitude. MAHER y. PEOPLE. Supreme Court of Michigan. 1862. [Reported 10 Michigan, 212.] Christiancy, J.^ To give the homicide the legal character of murder, all the authorities agree that it must have been perpetrated with malice prepense or aforethought. This malice is just as essential an ingredient of the offence as the act which causes the death ; without the concurrence of both, the crime cannot exist ; and, as every man is presumed innocent of the offence with which he is charged till he is proved to be guilty, this presumption must apply equally to both ingredients of the offence, — to the malice as well as to the killing. Hence, though the principle seems to have been sometimes overlooked, the burden of proof, as to each, rests equally upon the prosecution, though the one may admit and require more direct proof than the other ; malice, in most cases, not being susceptible of direct proof, but to be established bj' infer- ences more or less strong, to be drawn from the facts and circumstances connected with the killing, and which indicate the disposition or state of mind with which it was done. It is for the court to define the lesfal import of the term "malice aforethought," or, in other words, that state or disposition of mind which constitutes it ; but the question whether it existed or not, in the particular instance, would, upon principle, seem to be as clearly a question of fact for the jury as any other fact in the cause, and that they must give such weight to the various facts and circumstances accompanying the act, or in any way bearing upon the question, as in their judgment they deserve : and that the court have no right to withdraw the question from the jury by assuming to draw ^ Part of the opinion only is given. SECT. VII.] MAKER V. rEOPLE. 483 the proper inferences from the whole or any part of the facts proved, as presumption of law. If courts could do this, juries might he required to find tlie fact of malice where tiiey were satisfied from the whole evidence it did not exist. I do not here speak of those cases in which the death is caused in the attempt to commit some other offence, or in illegal resistance to public officers, or other classes of cases which niav rest upon peculiar grounds of pul)lic policy, and which may or may not form an exception ; but of ordinary cases, such as this would have been had death ensued. It is not necessary here to enumerate all the elements which enter into the legal definition of malice aforethought. It is sufficient to say that, within the principle of all the recognized definitions, the homicide must, in all ordinary cases, have been com- mitted with some degree of coolness and deliberation, or, at least, under circumstances in which ordinary men, or the average of men recognized as peaceable citizens, would not be liable to have their reason clouded or obscured by passion ; and the act must be prompted by, or the circumstances indicate that it sprung from, a wicked, depraved, or malignant mind, — a mind which even in its habitual con- dition and when excited by no provocation which would be liable to give undue control to passion in ordinary men, is cruel, wanton, or malignant, reckless of human life, or regardless of social dut}-. But if the act of killing, though intentional, be committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement by which the control of reason was disturbed, rather than of any wickedness of heart or cruelty or reck- lessness of disposition, — then the law, out of indulgence to the frailty of human nature, or rather, in recognition of the laws upon which human nature is constituted, very properly regards the offence as of a less heinous character than murder, and gives it the designation of manslaughter. To what extent the passions must be aroused and the dominion of reason disturbed to reduce the offence from murder to manslaughter, the cases are b}' no means agreed ; and any rule which should embrace all the cases that have been decided in reference to this point, would come very near obliterating, if it did not entirely obliterate, all dis- tinction between murder and manslaughter in such cases. "We must therefore endeavor to discover the principle upon which the question is to be determined. It will not do to hold that reason should be entirely dethroned, or overpowered by passion so as to destroy intelli- gent volition. State v. Hill, 1 Dev. & Bat. 491 ; Haile v. State, 1 Swan, 248; Young 17. State, 11 Humph. 200. Such a degree of mental dis- turbance would be equivalent to utter insanity, and if the result of adequate provocation, would render the perpetrator morally innocent. But the law regards manslaughter as a high grade of offence, — as a felony. On principle, therefore, the extent to which the passions are 484 MAHER V. PEOPLK [CHAP. XIL required to be aroused and reason obscured must be considerably short of Ibis, and never beyond tbat degree within which ordinary men have the power, and are' therefore morally as well as legally bound, to restrain their passions. It is only on the idea of a violation of this clear duty, that the act can be held criminal. There are many cases to be found in the books in which this consideration, plain as it would seem to be in principle, appears to have been in a great measure over- looked, and a course of reasoning adopted which could only be justified on the supposition that the question was between murder and excusable homicide. Tlie principle involved in the question, and which I think clearly deducible from the majority of well considered cases, would seem to suggest, as the true general rule, that reason should, at the time of the ac^ be disturbed or obscured by passion to an extent which might render ordinary men, of fair average disposition, liable to act rashly or without due deliberation or reflection, and from passion, rather thaa judgment. To the question what shall be considered in law a reasonable or adequate provocation for such a state of mind, so as to give to a homicide committed under its influence the character of manslaughter, on principle, the answer, as a general rule, must be, anything the natural tendency of which would be to produce such a state of mind in ordinary men, and which the jury are satisfied did produce it in the case before them, — not such a provocation as must, by the laws of the human mind, produce such an effect with the certainty that physical effects follow from physical causes ; for then the individual could hardly be held morally accountable. Nor, on the other hand, must the pro- vocation in every case be held sufficient or reasonable because such a state of excitement has followed from it ; for then, by habitual and long continued indulgence of evil passions, a bad man might acquire a claim to mitigation which would not be available to better men, and on account of that very wickedness of heart which, in itself, constitutes an aggravation both in morals and in law. In determining whether the provocation is suflScient or reasonable, ordinary human nature, or the average of men recognized as men of fair average mind and disposition, should be taken as the standard, — unless, indeed, the person whose guilt is in question be shown to have some peculiar weakness of mind or infirmity of temper, not arising from wickedness of heart or cruelty of disposition. It is doubtless, in one sense, the province of the court to define what, in law, will constitute a reasonable or adequate provocation, but not, I think, in ordinary' cases, to determine whether the provocation proved in the particular case is sufficient or reasonable. This is essentially a question of fact, and to be decided with reference to the peculiar facts of each particular case. As a general rule, the court, after informing the jury to what extent the passions must be aroused and reason obscured to render the homicide manslaughter, should inform them SECT. VII.] MAKER V. PEOPLE. 48 that the provocation must be one the tendency of which would be to produce such a degree of excitement and disturl)ance in the minds of ordinary men ; and if the}' should find sucli provocation from the facts proved, and should further find that it did produce that effect in the particular instance, and that the homicide was the result of such prov- ocation, it would give it the character of manslaughter. Besides the consideration that the question is essentially one of fact, jurors, from the mode of their selection, coming from the various classes and occu- pations of society, and conversant with the practical affairs of life, are, in m}' opinion, much better qualified to judge of the sufficiency and tendency of a given provocation, and much more likely to fix, with some degree of accuracy, the standard of what constitutes the average of ordinary human nature, than the judge whose habits and course of life give him much less experience of the workings of passion in the actual conflicts of life. The judge, it is true, must, to some extent, assume to decide upon the sufficiency of the alleged provocation when the question arises upon the admission of testimony ; and when it is so clear as to admit of no reasonable doubt, upon any theory, that the alleged provocation could not have had any tendency to produce such state of mind in ordinary men, he may properly exclude the evidence ; but, if the alleged provocation be such as to admit of any reasonable doubt whether it might not have had such tendency, it is much safer, I think, and more in accordance with principle, to let the evidence go to the jury under the proper instructions. As already intimated, the question of the reasonableness or adequacy of the provocation must depend upon the facts of each particular case. That can, with no propriety, be called a rule (or a question) of law which must vary with, and depend upon the almost infinite variety of facts presented by the various cases as they arise. See Stark, on Ev., Amer. ed. 1860, pp. 67G to 680. The law cannot with justice assume, by the light of past decisions, to catalogue all the various facts and combinations of facts which shall be held to constitute reasonable or adequate provoca- tion. Scarcely two past cases can be found which are identical in all their circumstances ; and there is no reason to hope for greater uni- formity in future. Provocations will be given without reference to any previous model, and the passions they excite will not consult the precedents. The same principles which govern as to the extent to which the passions must be excited and reason disturbed apply with equal force to the time during which its continuance may be recognized as a ground for mitigating the homicide to the degree of manslaughter, or. in other words, to the question of cooling time. This, like the provocation itself, must depend upon the nature of man and the laws of the human mind, as well as upon the nature and circumstances of the provocation, the extent to which the passions have been aroused, and the fact whether the injury inflicted by the provocation is more or less per- 486 MAKER V. PEOPLE. fCHAP. XII. manent or irreparable. The passion excited b}' a blow received in a siuldeu quarrel, though perhaps equally violent for the moment, would be likely much sooner to subside than if aroused by a rape committed upon a sister or a daughter, or the discovery of an adulterous inter- course with a wife ; and no two cases of the latter kind would be likely to be identical in all their circumstances of provocation. No precise time, therefore, in hours or minutes, can be laid down by the court, as a rule of law, within which the passions must be held to have subsided and reason to have resumed its control, without setting at defiance the laws of man's nature, and ignoring the very principle on which prov- ocation and passion are allowed to be shown at all, in mitigation of the offence. The question is one of reasonable time, depending upon all the circumstances of the particular case ; and where the law has not defined, and cannot without gross injustice define the precise time •which shall be deemed reasonable, as it has with respect to notice of the dishonor of commei'cial paper. In such case, where the law has defined what shall be reasonable time, the question of such reasonable time, the facts being found by the jury, is one of law for the court ; but in all other cases it is a question of fact for the jury ; and the court cannot take it from the jury b}' assuming to decide it as a question of law, without confounding the respective provinces of the court and jury. Stark. Ev., ed. of 18G0, pp. 768, 769, 774, 775. In Eex v. Howard, 6 C. & P., 157, and Rex v. Lynch, 5 C. «&; P. 324, this question of reasonable cooling time was expressly held to be a question of fact for the jury. And see Whart. Cr. L., 4th ed., §990 and cases cited. I am aware there are man}' cases in which it has been held a question of law ; but I can see no principle on which such a rule can rest. The court should, I think, define to the jury the principles upon which the question is to be decided, and leave them to determine whether the time was reasonable under all the circumstances of the particular case. I do not mean to say that the time may not be so great as to enable the court to determine that it is suflficient for the passion to have cooled, or so to instruct the jury, without error ; but the case should be very clear. And in cases of applications for a new trial, depending upon the discretion of the court, the question may ver}' properly be considered by the court. It remains only to appl}' these principles to the present case. The proposed evidence, in connection with what had already been given, would have tended strongly to show the commission of adultery by Hunt with the prisoner's wife, within half an hour before the assault; that the prisoner saw them going to the woods together, under circum- stances calculated strongly to impress upon his mind the belief of the adulterous purpose ; that he followed after them to the woods ; that Hunt and the prisoner's wife were, not long after, seen coming from the woods, and that the prisoner followed them, and went in hot pursuit after Hunt to the saloon, and was informed by a friend on the way that they had committed adultery the da}' before in the woods. I can SECT. VII.] MAHER V. PEOPLE. 487 not resist the conviction that this would have been sufficient evidence of provocation to go to the juiy, and from whicli, when taken in con- nection with the excitement and "great perspiration" exhibited on entering the saloon, the hasty manner in which he approached and fired the pistol at Hunt, it would have been competent for the jury to find that the act was committed in consequence of the passion excited by the provocation, and in a state of mind which, within the principle alread}- explained, would have given to the homicide, had death ensued, the character of manslaughter only. In holding otherwise the court below was doubtless guided by those cases in which courts have arbi- trarily assumed to take tlie question from the jury, and to decide upon the facts or some particular fact of the case, whether a sufficient provocation had been shown, and what was a reasonable time for cooling. 488 ANONYMOUS. [CHAP. XIH CHAPTER Xin. LARCENY. SECTION I. What Property/ is the Subject of Larceny. Bracton De Legibus, 150 b. Larceny is, according to the law, the fraudulent taking of the property of another, with intent to steal, against the will of the owner.^ ANONYMOUS. Assizes. 1338. [Eepvrted Year Book, 11 ^ 12 Ed. III., 640.] A FORESTER was indictcd " that he feloniousl}' cut down and carried awa}' trees." The justices would not arraign him, for the felling of tx-ees which are so annexed to the soil cannot be called a felony, even if a stranger had done it. Besides, here perhaps he himself had the keeping of them. But because it was possible that the trees were first of all felled by the lord and then carried away by the forester, they questioned the inquest, who said that he was the forester when he felled and car- ried them away. Scharshulle [J.], to the inquest: Did the forester conceal the trees from the lord? The Inquest. We do not know. Aldeburgh [J.]. Certainly we do not think it important whether he concealed them or not ; but we adjudge that it is no felony, because he was the keeper ; and a tree is part of the freehold.* 1 Furtum est secundum leges contractatio rei aliense fraudulenta, cum animo furandi, invito illo domino cuius res ilia fuerit. « 12 Lib. Ass., 32, S. C. SECT. I. J REX V. WODY. 489 REX V. WODY. Exchequer Cuajmber. 1470. {Reported Year Book, 10 Ed. IV., 14, pi. 9, 10.] One William Wotly was indicted for that be feloniously took and carried away six boxes, with charters and muniments concerning the inheritance of John Culpepper and Nicholas C, etc., contained in the boxes. Suhjard. It seems that it is not felony, for the sealed boxes shall be called of the same nature as the charters contained in them,' while the charters are concerning the inheritance, so that these tilings touch the inheritance of the realty', etc. Nele. Every felony ought to be a loss of twelve pence ; but in detinue of charters, or of sealed boxes with charters contained in them, those in the Chancery do not say " ad valentiam,'' etc., for they cannot be valued, and so it cannot be felony. Collow. A man may recover damages in detinue if the charters are burned. All the justices of the one bench and of the other were assembled in the Exchequer Chamber. Choke, J. It seems that it is not felony for two reasons : first, they are so far real that it cannot be felony. For they are not chattels real, but are real in themselves ; for if a man be attainted of felony, the king shall not have his charters concerning his land, for they are real, but he shall have his wardship, or term, for they are chattels real. Quod fuit concessum per omnes jiisticios . Yelverton, J., said, that if a man has a franchise to have catalla felonum, etc., still he shall not have the charters concerning the land of felons, etc. Moyle, J. The lord shall have the charters with the land, etc. And it was held that if a man gives omnia bona et catalla sua, the charters do not pass, therefore they are released, etc. Choke, J. The second reason is because they cannot be valued, etc. ; for in detinue for charters one does not say ad valeniiam, etc., ut supra, etc. Littleton, J. The reason why those in the Chancery do not say ad valentiam in the writs ut supra is only the precedent, etc. ; but yet they are of value, for in detinue of charters, if the charters are lost or burned, he shall recover in damages, having regard to the loss that he has by the loss of the charters ; this, therefore, proves tliat they are of value. And though the terms ad vaUyitiam and ad dampnnm are different, yet they are of the same effect. {Quod fuit negatum, etc.) 1 Upon this argument being urged in Reg. v. Powell, 5 Cox C. C 397, Ai.dkr.sox, B., said : " I .suppose, then, that if a lion was stole in a cage, it would be said that the cage was y*erce naturve." — Ed. 490. ANONYMOUS. [CHAP. Xm. And on an indictment for burglary, sc. for breaking a house, one should not sav quod f regit donmni ad valeyitiam^ etc. ; and, sir, so at common law wilful burning of a house was felony, and 3'et one should not say ad valentiam, etc. Billing, C. J. Those are felonies of a different nature from rob- bery, etc. Littleton, J. Because charters concerning the inheritance are of greater value than other things, therefore it is reason that as great punishment should be inflicted for the taking of them as of other things, etc. And, sir, in trespass quare jndlos espervarios cejnt, one should state the price, but in trespass qiiare 2}a^citm /regit et damas, etc., one should not state the price, etc., for it is not the use in the Chancery. Bingham, J. In jour case quare pullos espervarios in nido, etc., the plaintiff should state the price, for the property in them is in him ; for the nests are the plaintiff's, and so are those which are in the nests, and besides cannot % out of your possession, etc. Nedham, J. Felony is only of such thing as the countrj' may have notice of the value of; but here as to charters within the boxes they cannot have notice, etc., of the value of them ; wherefore, etc. Yelverton, J. Felon}- cannot be of any goods except personal chattels ; for a man cannot take my ward feloniously, for it is a chattel real ; and it was held that a deer which is domesticated may be stolen, and so when it is dead. And so of fishes taken in a pond, etc. And then it was advised b}' them all that this is not felony, wherefore in the King's Bench the defendant was discharged, etc. ANONYMOUS. Opinion of the Justices. 1528. [Reported Year Book, 19 Henry VIII., 2, pi. 11.] A question was propounded to all the Justices by the Chancellor. If a man feloniously steals peacocks which are tame and domesticated, whether it is felon}- or not. And b}' Fitzherbert and Inglefield [JJ.] it was said that it is not felony, because they are fercB naturce like doves in a dove-cote ; and if the young of such doves are stolen, it is not felon}'. The same law of herons taken out of the nest, or of swans taken, or of a buck, or hind, which are domesticated, or of hares taken out of a garden which is surrounded with a wall, etc. The same law of a mastiff, hound, or spaniel, or of a goshawk which is reclaimed ; for they are properly things of pleasure rather than of profit. And so the peacock is a bird more for pleasure than for profit, for often they intentionally destroy all the young except one. SECT. I.] REX V. SEARING. 491 And it was also agreed that apples taken out of the orchard which were growing on the trees ut the time of taiiing, or trees growing upon the [soil?] at tlie time of taking, or grass cut and carried away, is not felou}-, and even where they are taken witli felonious intent, because these things at the time of taking are parcel of the franktenement ; but if my trees are cut down by me, or my grass growing on my land is by me cut and severed, and afterward another with felonious intent steals it, that is felony. FiTZJAMEs [C. J.] and the other justices said that peacocks are commonly of the same nature as hens or capons, geese or ducks, and the owner has property in them, and they have animum revertendi, and they are not fowls of warren, like pheasant, partridge, conies, or animals of that sort, for the taking of these with felonious intent is not felon}-. And in the end it was agreed by all the justices, that this taking of peacocks was felony for the cause aforesaid, Quod Nota. REX V. SEARING. Crown Case Reserved. 1818. [Reported Russell ^ Ryan, 350.] The prisoner was tried before Mr. Baron Wood at the Lent Assizes for Hertfordshire in the year 1818 for larceny in stealing " five live tame ferrets confined in a certain hutch," of the price of fifteen shil- lings, the property of Daniel Flower, The jury found the prisoner guilty ; but on the authority of 2 East, P. C. 614, where it is said that ferrets (among other things) are con- sidered of so base a nature that no larceny can be committed of them, the learned judge respited the judgment until the opinion of the judges could be taken thereon. It appeared in evidence that ferrets are valuable animals, and those in question were sold by the prisoner for nine shillings. In Easter term, 1818, the judges met and considered this case ; they were of opinion that ferrets (though tame and salable) could not be the subject of larceny and that judgment ought to be arrested. ^ yV>U- e>^ /^ ■/ 492 REGINA V. CHEAFOR. [CHAP. Xm. REGINA V. CHEAFOR. Crown Case Reserved. 1851. [Reported 5 Cox C. C. 367.] At the Quarter Sessions for the county of Nottingham, held at East Retford, on the 7th of Jul}-, 1851, the prisoner was indicted for felon- iously stealing four tame pigeons, the property of John Mansell. The pigeons, at the time they were taken by the prisoner, were in the prose- cutor's dove-cote, over a stable on his premises, being an ordinary dove-cote, and having holes at the top for the ingress and the egress of the pigeons, and having a door in the floor, which was kept locked. The prisoner entered the dove-cote at twelve o'clock at night, breaking open the door and taking away the pigeons. The prisonei-'s counsel contended that the pigeons being at libert}' at any time to go in and out of the dove-cote, and therefore not reclaimed and in a state of con- finement, were not the subjects of larcen}'. The chairman directed the jury that, in his opinion, the view contended for by the prisoner's counsel was correct, and that the pigeons were not properly the subjects of larceny. The jury found the prisoner guilty of larceny ; but judgment was postponed to ask the opinion of this court whether the learned chairman's direction to the jury was right, and whether the prisoner, under the facts stated, was properly convicted. The case was not argued by counsel. Lord Campbell, C. J., delivered the judgment of the court. After reading the case, his Lordship said that they thought the direction of the chairman was clearly wrong. Pigeons must, from the nature of them, have free egress to the open air : and the question therefore was, whether there could be a larceny of tame pigeons. If not, neither could there be larcen}' of chickens, ducks, or any poultry. Whether they were tame or not was a question for the jur3^ Luke's case (Rose. Cr. Ev. 577) is said by Mr. Greaves ^ to have been determined on the ground that the pigeons were reclaimed, not that they were shut up in boxes. It had been mistakenly supposed that Baron Parke had decided that pigeons were not the subjects of larceny unless strictly confined ; there is no question that they are, even though they are allowed the liberty of going to enjoy the air when they please. Conviction affirmed. 1 The passage referred to ia in 2 Russ. on Crimes, p. 83, as follows : " Where pigeons were shut up in their boxes every night, and stolen out of such boxes during the night, Parke, B., held it to be larceny." Upon which, in Mr. Greaves' edition, there is the following note : " Luke's case, Rose. Cr. Evid. 577, and, ex relatione, Mr. Granger. The case was determined on the ground that the pigeons were reclaimed ; and not on the ground that they were shut up in their boxes at the time they were taken." — Rep. SECT. L^ EEGINA V. WATTS. 493 REGINA V. WATTS. Crown Case Reskrved. 1854. [Reported 6 Cox C. C. 304.] The prisoner, William Mote Watts, was indicted at the Quarter Sessions for the North Riding of Yorkshire, on the 2d of June, 18.03, for stealing on the 3d day of May, 1853, a pieee of paper, the property' of tlie prosecutor, Francis Patteson, and was convicted. Tiie piece of paper found to have been stolen had written upon it when taken by the prisoner, as alleged in the indictment, an agreement between the prose- cutor and the prisoner, signed by each of them. The agreement could not be produced, but secondar}' evidence of it was received, from wiiich it appeared that the prisoner contracted thereby to build two cottages for the prosecutor, for a sum specified, according to certain plans and specifications, and the latter agreed to pay two instalments, being part of the price agreed on, at certain stages of the works, and the remain- der on completion ; and it was stipulated that any alterations that might take place during the progress of the building should not affect the contract, but should be decided upon by the employer and em- plo3'ed, previous to such alterations taking place. Under this instru- ment the work was commenced and continued. At the time when it was stolen by the prisoner, as alleged, the work was going on under it; nevertheless it was proved at the trial that when the agreement was stolen the prisoner had been paid all the money which he was entitled to under it, although there was money owing to him for extras and alter- ations. The agreement was unstamped. The counsel for the prisoner objected at the close of the case for the prosecution, that from the evidence it was clear that at the time the piece of paper referred to in the indictment was taken b}' the prisoner, it was, in realit}', a subsisting and valid agreement, and therefore not the subject of larcen}' (as a piece of paper onlj-) at common law. The question for the opinion of the court is, whether, under the circumstances above stated, the prisoner could be lawfully convicted of feloniously stealing a piece of paper, as charged in the indictment. No judgment was passed on the prisoner, and he was discharged on recognizance of bail to appear and receive judgment when required. This case was before the court on the 12th November, 1853, and was sent back to be restated, and an alteration was made in it to the effect that the agreement was one which required a stamp.* Lord Campbell. C. J. I am of opinion that this con%nction is wrong. I think that the prisoner could not, under the circumstances stated, be indicted for stealing a piece of paper. If the agreement had been stamped, it seems to be allowed, notwithstanding the ingenious 1 The arguments are omitted. 49-i REGINA V. WATTS. [CHAP. XIII. argument of Mr. Price, that an indictment for stealing a piece of paper could not be supported ; because then it would be what is commonly called a chose in action, and by the common law larcen}- cannot be committed of a chose in action. Strictly- speaking, the instrument of course is not a chose in action, but evidence of it, and the reason of the common-law rule seems to be that stealing the evidence of the right does not interfere with the right itself ; jus non in tab nils ,' the evidence may be taken but the right still remains. At all events, whatever be the reason of the rule, the common law is clear that for a chose in action larceny cannot be supported ; and the legislature has repeatedly recognized that rule hy making special provision with regard to instru- ments which are choses in action, and of which but for those enact- ments larceny could not be committed. As to this not being a chose in action, because all that was due had been paid upon it, it appears that the agreement is still executor}*, and might be used b}' either side to prove their rights. Then comes the objection as to its not being stamped ; but though it is not stamped, I am of opinion that it is an agreement. There is a very clear distinction between instruments which without a stamp are wholl}' void, and those which may be rendered available at any moment by having a stamp impressed upon them. There are many cases in which an unstamped agreement is considered evidence of a right. "When the question arises at Nisi Prius, as soon as it appears that the agreement was reduced into writing, parole evidence is excluded, because the written instrument is the proper and only evidence; and Bradley v. Bardsley (14 M. «& W. 873) is strong to show that the court considers an unstamped agreement evidence of a right. To an action on an agreement a plea that it was not stamped is clearl}' bad, for the agreement maj- be stamped even pending the trial, and may then be given in evidence, as the stamping reflects back to the period of the making of the instrument. I agree that we must look at the state of the instrument at the time of the larceu}' committed; but it then had a potentialit}' of being rendered available, and it was evidence of an agreement ; it was therefore evidence of a chose iu action, and not the subject of larceny. Parke, B. I am of opinion that the conviction is right. There is no doubt that at common law larcen}' cannot be committed of any instrument which is the evidence of a chose in action ; but I think that when this instrument was stolen it was not evidence of a chose in action. Being unstamped, it was not available either in law or in equity, and by the operation of the Stamp Act could not be used for the purpose of showing a right. It was a piece of paper, and I differ from Lord Campbell in thinking that the potentiality of converting a chattel into evidence of a chose of action is sufficient to prevent it from being the subject of larcen}-. Like the parchment on which a deed is written, and which is nothing but a piece of parchment until the instrument is perfected, this in its imperfect state was no evidence of an agreement, but was a piece of paper only. Where a plaintiff is SECT. I.] REGINA V. WATTS. 495 prevented from giving parole evidence of a written agreement, it is because lie had the power of giving better evidence of it by getting the instrument stamped, and if he does not get it stamped, it is his own fault. If the instrument is lost and he cannot get it stamped, then still parole evidence of it is inadmissible. In the present case there- fore, I think that that which was stolen was merely a piece of paper capable of being converted, but not yet actually converted into a valid agreement, or the evidence of an agreement, and it is solely as evi- dence of an agreement that the common law would prevent it from being the subject of larceny. Alderson, IJ. I agree with Lord Campbell that this was an agree- ment at the time it was stolen. If the writing onlv becomes an aerty ; on the contrary, they were gathered and planted expressly for the benefit of the owner. If an abandonment is to be presumed, it will be a legal intendment directly against the truth of the case. The casting of property into the sea, with the intention of re- claiming it, is not an abandonment. " He," says Domat, " who finds a thing that is abandoned, that is, of which he who was master of it, quits and relinquishes the possession and property, not being willing to keep it any longer, becomes master of it." Domat's Civ. L., part 1, b. 3, title 7, §§ 2, 9 (Am. ed. 1850, § 2154) ; 2 Bla. Com. 9, 402. It was held by the Chief Justice, in the case of Shepard and Lay ton V. Leverson, that the mere act of throwing the 03'sters into a public river, where all the inhabitants have a common right of fishery, was of itself an abandonment in law, on the ground that, where the subject is put without the power of the owner, where it is thrown into the com- mon stock, from which it cannot be distinguished, there can be no question of intent. It was held analogous to the case of a deer taken in a forest, and turned loose again. But it was admitted that where the act relied on as an abandonment is in itself equivocal, and where the identical property ma}' be known and resumed at pleasure, then the intention may be made a question. Now this case finds that the oysters in question could readily be identified ; that no oysters grew naturally where they were planted, and that the spot where they were planted was designated. The subject of the property, having itself no power of locomotion, and being planted where no other oysters naturally grew, it was not (as in the case of the deer in a forest) put without the power of the owner, nor thrown into the common stock, from which it could not be distinguished. In Fleet u. Hegeman, 14 Wend. 42, it was held by the Supreme Court of New Yoi-k that oysters planted b}-^ an individual in a bed clearly designated in a bay or arm of the sea, which is a common fishery, are the propert}' of him who planted them, and that, for taking them away by another, trespass lies. This case was approved in Decker V. Fisher, 4 Barb. 592, and its authority recognized in the more recent case of Brinckerhoff v. Starkins, 11 Barb. 248 ; Angell on Tide Waters, 139. These authorities clearly sustain the instruction given to the jury in the present case. SECT. I.] COMMONWEALTH V. SHAW. 501 COMMONWEALTH v. SIIAW. Supreme Judicial Court of Massachusetts. 18C2. [Reported 4 Allen, 308.] Indictment for larceny of several hundred " cubic feet of illuminat- ing gas, each cubic foot being of the value of three mills, of the propert}', goods, and chattels of the Boston Gas Light Company." At the trial in the Superior Court, before Wilkinson, J., it appeared that the defendant occupied a house in Ashland Street in the city of Boston, and that a service pipe of the Boston Gas Light Company led from their main pipe in that street to within a short distance of a gas meter owned by them and placed under the front steps outside of the wall of the house, but upon the premises occupied by her, and the de- fendant made the usual connection from the service pipe with the inside supply pipe by short pieces of lead pipe belonging to her, through which the company had supplied her with gas ; but, upon non-payment of the gas rates, the company removed the meter and shut off the gas by closing a stopcock in the service pipe, upon the premises occupied by her, and gave her notice thereof; after which she, without the consent or knowledge of the company, and to avoid paying for the gas, made a connection by means of lead pipe between the service pipe and the pipe inside of the house, and turned the cock in the service pipe, and received and consumed gas belonging to the companj'. There was no question that the company was legally incorporated. The defendant requested the court to instruct the jury that no con- viction could be had under this evidence ; but the judge instructed the jury that, if they were satisfied that the defendant took the gas with a felonious intent, she was guilty of larceny. The jury returned a verdict of guilty, and the defendant alleged exceptions to this ruling, as well as to an order of the judge overruling a motion in arrest of judgment on the ground that the indictment was insufficient in law. e/i JF'. Pickering, for the defendant. G. P. Sanger (district attorney), for the Commonwealth. BiGELOw, C. J. We cannot doubt that the instructions given to the jury in this case were right. There is nothing in the nature of gas used for illuminating purposes which renders it incapable of being feloniously taken and carried away. It is a valuable article of merchandise, bought and sold like other personal propert}', susceptible of being severed from a mass or larger quantit}', and of being transported from place to place. In the present case it appears that it was the property of the Boston Gas Light Company ; that it was in their possession by being confined in conduits and tubes, which belonged to them, and that the defendant severed a portion of that which was in a pipe of the company by taking it into her house and there consuming it. All this, being proved to have been done by her secretly, and with an intent to deprive the com- 502 MULLALY V. PEOPLE. [CHAP. XIII. pany of their property, and to appropriate it to her own use, clearly constituted the crime of larceny. It was suggested by the counsel for the defendant that, if she was guilty of any offence, it was not larceny, but embezzlement, inasmuch as it appeared that the gas was intrusted to her possession by the com- pany, and that at the time of the alleged felonious taking she was the bailee thereof But the facts proved entirely negative the existence oi any such relation between her and the company. The gas was not in her possession. On the contrary, the pipe had been severed from the meter by closing a stopcock in the service pipe, which belonged to the company, for the very purpose of preventing her obtaining possession of it. The fact that the end of the pipe was on the premises occupied by her is wholly immaterial. It was not placed there to be in her cus- tody or control, and she had no possession of it or its contents. The facts proved at the trial are similar to those which were shown to exist in the case of Regina v. White, 6 Cox C. C. 213, in which a conviction of the defendant for the larceny of gas was affirmed by the court of criminal appeal. That case, however, was not so strong against the defendant as the present one, because it there appeared that the owners of the gas had not caused it to be shut off from the premises of the defendant, to prevent him from making use of it. As it is admitted that the acts charged on the defendant were com- mitted prior to the time when St. 1861, c. 168, took effect, its provisions can in no way affect the present case.^ Exce2)tions overruled. MULLALY V. PEOPLE. Court of Appeals of New York. 1881. [Reported 86 New York, 365.] Error to the General Term of the Supreme Court, in the first judi- cial department, entered upon an order made May 20, 1881, which affirmed a judgment of the Court of General Sessions in and for the county of New York, entered upon a verdict convicting the plaintiff in error of the crime of petit larceny in stealing a dog.'^ Earl, J. The prisoner was convicted of stealing a dog of less value than $25. His counsel contended at the trial and has argued before us that stealing a dog is not larceny, and whether it is or not is the sole question for our present determination. The learned opinion pronounced at the general term leaves but little to be written now. At common law the crime of larcenj- could not be committed by feloniously taking and carrying away a dog. Wharton's 1 See Ferens v. O'Brien, 11 Q. B. D. 21 (larceny of water). — Ed. 2 Arguments of counsel are omitted. SKCT. I.] MULLALY V. PEOPLE. 503 Cr. Law (4th ed.), § 1755; 4 Black. Com. 235; 1 Hale's Pleas of the Crown, 510; Coke's Third Inst. 109. And yet dogs were so far re- garded as property that an action of trover could be brought for their conversion, and they would pass as assets to the executor or adminis- trator of a deceased owner. Bacon's Abr., Trover, D. ; 1 Wras on Ex'rs (6th Am. ed.), 775. The reason generally assigned by common-law writers for this rule as to stealing dogs is the baseness of their nature, and the fact that they were kept for the mere whim and pleasure of their owners. When we call to Tr,;,i(] the small spaniel that saved the life of William of Orange, and tnus probably changed the current of modern history (2 Motley's Dutch Republic, 398), and the faithful St. Bernards, which after a storm has swept over the crests and sides of the Alps start out in search of lost travellers, the claim that the nature of a dog is essentially base, and that he should be left a prey to every vagabond who chooses to steal him, will not now receive ready assent. In nearly every household in the land can be found chattels kept for the mere whim and pleasure of the owner, a source of solace after serious labor, exercising a refining and elevating influence, and yet they are as much under the protection of the law as chattels purely useful and absolutely essential. This common-law rule was extremely technical, and can scarcely be said to have had a sound basis to rest on. While it was not larceny to steal a dog, it was larceny to steal the skin of a dead dog, and to steal many animals of less account than dogs. Lord Coke, in his Institutes, cited above, said: "Of some things that he fercB natzirce, being re- claimed, felony may be committed in respect of their noble and generous nature and courage, serving ob vitce solatium of princes and of noble and generous persons to make them fitter for great employments, as all kinds of falcons and other hawks, if the party that steals them know they be reclaimed." In the reign of William I. it was made grand larceny to steal a chattel valued at twelve pence or upwards, and grand larceny was pun- ishable by death, and one reason hinted at by Lord Coke for holding that it was not larceny to steal dogs was that it was not fit that " a per° son should die for them ; " and yet those ancient law-givers thought it not unfit that a person should die for stealing a tame hawk or falcon. The artificial reasoning upon which these rules were based is wholly inapplicable to modern society. Tempora mutantur et leges miitan- tur in illis. Large amounts of money are now invested in dogs, and they are largely the subjects of trade and traffic. In many ways they are put to useful service, and so far as pertains to their ownership as personal property, they possess all the attributes of other personal property. If the common-law rule referred to ever prevailed in this State, we have no doubt it has been changed by legislation. It is provided in 2 R, S. 690, § 1, tlrat every person who shall be convicted of stealing 504 MULLALY V. PEOPLE. [CHAP. XIIL "the personal property" of another, of the value of $25 or under, shall be adjudged guilty of petit larceny ; and then, on page 703, § 33, ''personal property," as used in that chapter, is defined to mean " goods, chattels, effects, evidences of rights of action," and certain written instruments. This definition of personal property is certainly comprehensive enough to include dogs. We think it was intended to be taken literally, and that the law-makers meant to make it the crime of larceny to steal any chattel which had value and was recognized by the law as property. In a note to § 33 (3 R. S. 837), the revisers say that " this broad and comprehensive definition is given to prevent the enumeration of each particular instrument or article that may be the subject of larceny, robbery, embezzlement, or obtaining property under false pretences. The ancient idea that rights in action were not subjects of larceny has been gradually yielding to the extension of commerce, the increase of business, and the necessities of mankind, until at last we have begun to believe that anything which can be stolen, and which is of value to the owner, should be protected by the law." At the same time a system for the taxation of dogs was enacted (1 R. S. 704), and it can scarcely be supposed that the legislature meant to regard dogs as property for the purpose of taxation and yet leave them without protection against thieves. The definition of personal property found in the statute is not to be referred to the common law, but to the common understanding of the time when the statute was enacted. In view, therefore, of all the circumstances to which we have alluded, and for all the reasons stated, we are of opinion that the law-makers intended, by the legislation contained in the Revised Statutes, to change the common-law rule as to stealing dogs, if it was before recognized as having force in this State ; and to this eflTect are the only judicial de- cisions upon this subject which have been rendered in this State, so far as they have come to our knowledge. People v. Malone}', 1 Park. Cr. 593 ; People v. Campbell, 4 id. 386 ; see, also. People ex rel. Longwell v. McMaster, 10 Abb. (N. S.) 132. Our attention has been called by the counsel for the prisoner to cer- tain decisions in other States, which tend to sustain his contention. Findlay v. Bear, 8 Serg. & Rawle, 671 ; State of Ohio v. Lymus, 26 Ohio St. 400 ; State v. Holder, 81 N. C. 527 ; Ward v. State, 48 Ala. 161. But so far as those cases announce views in conflict with those above expressed, we are not disposed to follow them. We conclude, therefore, that the conviction was right, and should be affirmed. All concur, except Folger, C. J., dissenting, holding that the com- mon law does not recognize a dog as the subject of larceny, and that the Revised Statutes, in its definition of the subjects of larceny, do not include that animal. Judgment affirmed.^ 1 Ace. Haywood v. State, 41 Ark. 479. See Hurley v. State, 30 Tex. App. 333. — Ed. SECT. II.] REX V. WALSH. 505 SECTION II. Possession. (a) The Act of Assuhino Possession. REX V. WALSH. Crown Case Reserved. 1824. [Reported 1 Moodi/ C. C. 14.] The prisoner was tried before Thomas Denman, Esquire, Common Serjeant, at the Old Bailey Sessions, January*, 1824, on an indictment for stealing a leathern bag containing small parcels, the property of William Ray, the guard to the Exeter mail. At tlie trial it appeared that the bag was placed in the front boot, and the prisoner, sitting on the box, took hold of the upper end of the bag, and lifted it up from the bottom of the boot on which it rested. He handed the upper part of the bag to a person who stood beside the wheel on the pavement, and both had hold of it together, endeavor- ing to pull it out of the boot, with a common intent to steal it. Before they were able to obtain complete possession of the bag, and while they were so engaged in trying to draw it out, they were interrupted by the guard and dropped the bag. The prisoner was found guilty, but the facts above stated were spe- cially found by the jury, in answer to questions put to them by the Common Serjeant. The Common Serjeant entertaining some doubts whether the prisoner could be truly said to have " stolen, taken, and carried away " the bag, he respited the judgment, in order that the opinion of the judges might be taken on the case. In Easter term, 1824, the judges met and considered this case. They held the conviction right, being of opinion that there was a complete asportation of the bag.^ 1 Ace. Rex V. Lapier, 2 East P. C. 557 ; Harrison v. People, 50 N. Y. 518 ; State v. Jones, 65 N. C. 395 ; State v. Craige, 89 N. C. 475 ; Eckels v. State, 20 Ohio St 508 ; State V. Chambers, 22 W. Va. 779. — Ed. Xj, . 506 KEGINA V. WHITE. [CHAP. XIII. REGINA V. WHITE. Crown Case Reserved. 1853. [Reported 6 Cox C. C. 213 ; Dearsley C. C. 203.] The prisoner was indicted at the last Quarter Sessions for Berwick- upon-Tweed for stealing 5000 cubic feet of carburetted hydrogen gas of the goods, chattels, and property of Robert Oswald and others. Mr. Oswald was a partner in the Berwick Gas Company, and the prisoner, a householder in Berwick, had contracted with the company- lor the suppl}' of his house with gas to be paid for bj- meter. The meter, which was hired by the prisoner of the company, was connected with an entrance pipe, through which it received the gas from the company's main in the street, and an exit pipe through which the gas was con- veyed to the burners. The prisoner had the control of the stopcock at the meter, by which the gas was admitted into it through the entrance pipe, and he only paid the company and had onl}' to pay them for such quantity of gas as appeared b}' the index of the meter to have passed through it. The entrance and exit pipes were the propert3' of tlie prisoner. The prisoner, to avoid paying for the full quantity of gas consumed, and without the consent or knowledge of the company, had caused to be inserted a connecting pipe with a stopcock upon it into the entrance and exit pipes and extending between them ; and the entrance pipe being charged with the gas of the compan}', he shut the stop-cock at the meter so that gas could not pass into it, and opened the stop-cock in the connecting pipe, when a portion of the gas as- cended through the connecting pipe into the exit pipe and from thence to the burners and was consumed there, and the gas continued so to ascend and be consumed until b}' shutting the stop-cock in the con- necting pipe the suppl}' was cut off. This operation was proved to have taken place at the time specified by the prosecutor. It was con- tended for the prisoner that the entrance pipe into which the gas passed from the main being the property' of the prisoner, he was in lawful possession of the gas by the consent of the company as soon as it had been let into his entrance pipe out of their main, and that his diverting the gas in its course to the meter was not an act of larcen}'. I told the jury that if they were of opinion on the evidence that the entrance pipe was used b^' the corapan^^ for the conveyance of the gas b}' the permission of the prisoner, but that he had not by his contract any interest in the gas or right of control over it until it passed through the meter, his property in the pipe was no answer to the charge ; that there was nothing in the nature of gas to prevent its being the subject of larceny ; and that the stopcock on the connecting pipe being opened b}' the prisoner, and a portion of the gas being propelled through it by the necessary action of the atmosphere and consumed at the burners, there was a sufficient severance of that portion from the volume of gas SECT. II.] REGINA V. WHITE. 507 in the entrance pipe to constitute an asportavit by the prisoner ; and tliat if the gas was so abstracted with a fraudulent intent he was guilty of larcen}'. The jury answered the questions put to them in the aflir- mative and found the prisoner guilty ; 1 postponed judgment, taking recognizance of bail according to the statute for the appearance of the prisoner at the next Sessions to receive judgment if this court should be of opinion that he was rightly convicted. Ballantine for the prisoner. The prisoner was not guilty of larceny. He received the gas with the full consent of the company, and tlie evidence only shows that he did not account with the company accord- ing to his contract. The prisoner was guilty of fraud in evading the accounting by the meter, but his conduct was not felonious. Loud Cami'ukll, C. J. He took the gas from the company against their will instead of receiving it properly and accounting for it. Ballantine. The Gas Works Clauses Act, 10 Vict. c. 15, § 18, pro- vides a specific penalty for this very offence, which would hardly have been done if it had been regarded as a larcen}-. Maule, J. That clause may be intended to provide against frauds of a different kind, such as damaging the machinery or altering the in- dex of the meter, which would not be larceny. Lord Campbell, C. J. Is not this a taking invito domino ? Ballantine. The delivery of the gas is voluntary and the possession was not obtained by fraud. Maule, J. The taking was by turning the gas into a new channel without the leave of the company and that was done with intent to defraud. Ballantine. There was no trespass. Maule, J. If this gas when taken was in the lawful possession of the prisoner and he was only guilty of a breach of contract in not accounting, you must say the same of the surreptitious introduction of new burners. Ballantine. An evasion of the meter and an interference with it stand on the same ground. The meter is only the voucher of an ac- count, and if there is a delivery according to contract on the one hand and only a fraudulent dealing with a voucher on the other, there is no larceny. Loud Campbell, C. J. I think that the conviction ought to be affirmed and that the direction of the learned recorder was most accu- rate. Gas is not less a subject of larceny than wine or oil ; but is there here a felonious asportation ? No- one who looks at the facts can doubt it. The gas no doubt is supplied to a vessel which is the property of the prisoner, but the gas was still in the possession of tiie company. Then, being in the possession of the company and their property, it is taken away animo furandi by the prisoner. If the property remains in the company until it has passed the meter, — which is found, — to take it before it has passed the meter constitutes an asportation. If the asportation was with a fraudulent intent — and this the jury also 508 COMMONWEALTH V. BARRY. [CHAP. XIII. have found — it was larceny. As to the Act of Parliament the legis- lature has for convenience sake added a specific penalt}', but that can- not reduce the offence to a lower degree. My brother Maule has, however, given a probable explanation of that provision. Pabke, B., Maule, J., Talfourd, J., and Maijtin, B., concurred. Conviction affirmed. COMMONWEALTH v. BARRY. Supreme Judicial Court of Massachusetts. 1878. [^Reported 125 Massachusetts, 5^0.] Indictment for larceny of a trunk and its contents. At the trial in the Superior Court, before Dewe}', J., it was proved that one Kerr, a travelling salesman from New York, had caused the trunk in question to be checked at the Union Station in Worcester, for Hartford, Connecticut, at about half-past four in the afternoon of May 11, and had himself taken a train leaving at that time; but, as there was not time to load the trunk, it was retained in the baggage room at Worcester until the departure of the express train leaving Worcester for Hartford at half-past ten at night, when it was put upon the cars, and arrived at New York early on the morning of May 12, with a New York check upon it; that one Briggs arrived in New York on the same train, and with a check corresponding with the check on the trunk, obtained the trunk and took it to a hotel ; that the trunk was subsequently sent by him to Baltimore, where it was afterwards found by its owner, rifled of its contents ; and that Briggs was convicted in New York of the larceny of the trunk and its contents, and was sentenced to the state prison. There was also evidence tending to show that Briggs, in company with the defendant, was at the Union Station in Worcester on the afternoon and evening of May 11 ; that Briggs caused a valise to be checked for New York, which was placed by the baggage master on the trunk in question ; that the defendant, according to a preconcerted plan between him and Briggs, got over the counter at the window of the baggage room where baggage is checked, without permission, and asked the baggage master to permit him to place a package in the valise, showing a check for the same; that he was permitted to do this, and, while he was at the valise and trunk, Briggs called the attention of the baggage master to the window by a question, and the defendant changed the checks on the valise and trunk, and at once left the baggage room through a regular exit. This was all the evi- dence as to what the defendant did to the trunk at the station. The defendant requested the judge to give the following instructions : " 1. On the whole evidence, the jury would not be warranted in finding SECT. II.] COM.\IONWEALTH V. BARRY. 509 the defendant guilty. 2. If the jury find that all that the defendant did was, according to a preconcerted plan with some person, to change the checks on tlie trunk and valise, and liiat Ihe asportation of the trunk and its contents was done by some other person, they cannot convict of larceny. 3. There is no evidence in the case to warrant the jury in finding that the defendant did anything more than to change the checks on the trunk and valise, having previously arranged with some otlier person so to do. 4. If the jury find tliat the defendant arranged with Brlggs that the former should change the checks on the trunk and valise, and he did so change the checks, and if, in pursuance of the plan, Briggs accompanied the trunk on the same train to New York and there received the trunk from the railroad company and rifled it of its contents, and there is no evidence which satisfies the jury that the defendant was present with Briggs in New York, and with him re- ceived the trunk, they cannot convict." The judge refused to give these instructions ; but instructed the jury that it was necessary and was suflflcient, in order to convict the de- fendant, that they should be satisfied beyond a reasonable douljt " that the defendant, at the railroad station in Worcester, fraudulently and feloniously took the trunk into his temporary possession and con- trol, and while so having it fraudulently, with the intent to continue to have said trunk under his control, and appropriate it to his own use or the use of himself and confederate, fraudulently and feloniously took off the Hartford check from the same, which the railroad company had placed on it, the owner having a corresponding check, and placed thereon a check of the company for New York, whereof he held a corresponding check which would entitle him to have the trunk transported to New York, and to receive the trunk in New York of the company ou its arrival there, and the trunk was carried to New York as the trunk of the defendant, or of which he was entitled to the possession and control, and, by reason of the changed check there- on, the trunk with its contents were, on its arrival at New York, delivered to the defendant or to some person for him." The jury returned a verdict of guilty ; and the defendant alleged exceptions. W. S. B. Hopkins^ for the defendant. C. R. Train^ Attorney General, for the Commonwealth. LoKD, J. We do not understand that the presiding justice intended, by the language used, to instruct the jury that the temporary pos- session referred to in the instructions was, in itself, an asportation. It does not appear that the question whether there was an asportation at or before the changing of the checks was raised at the trial, or that the attention of the court was called to that subject. An asportation at that precise time was unimportant. The real question was, whether the defendant then, feloniously and with intent to steal, set in motion an innocent agency, by which the trunk and contents were to l)e removed from the possession of the true owner, and put into the 510 COMMONWEALTH V. BAKRY. [CHAP. XIIL defendant's possession, and by means of such agency effected the purpose ; and the teniporaiy possession and control, to which the court referred, must be understood to mean such possession and con- trol as enabled the defendant to execute the device by which, through such innocent instrumentality, he should become possessed of the property. There was evidence tending to show that the defendant and Briggs were acting in pursuance of a common purpose, and that the acts of each were the acts of both ; and, inasmuch aa no question was raised upon this subject, it is taken to be true that what one did was the act of both, and that the subsequent actual possession of the trunk by Briggs was the possession of the defendant. It will be seen, therefore, that, by the instructions of the presiding judge, the jur^- were author- ized to find the defendant guilty of larcen}-, if, in the mode stated, he or his confederate in action obtained possession of the trunk and its contents. This, as we understand, has been the law from the earliest period : *' There is no occasion that the carrying away be by the hand of the party accused, for if he procured an innocent agent to take the property," by means of which he became possessed of it, " he will himself be a principal offender." 3 Chit. Crim. Law, 925. It is held to be a larceny " if a person, intending to steal my horse, take out a replevin, and thereby have the horse delivered to liim by the sheriff ; or if one intending to rifle my goods get possession from the sheriff, b}' virtue of a judgment obtained without any the least color or title, upon false affidavits, &c. ; in which cases, the making use of legal pro- cess is so far from extenuating that it highly aggravates the offence, b}' the abuse put on the law in making it serve the purposes of op- pression and injustice." 1 Hawk. c. 33, § 12. 1 Hale P. C. 507. Chissers' case, T. Raym. 275. AVilkins' case, cited in 1 Hawk. c. 33, § 22 ; s. c. 1 Leach (4th ed.) 520. It will thus be seen that an aspor- tation may be effected by means of innocent human agenc}', as well as by mechanical agency, or by the offender's own hand. The case has been argued as if it was intended b}- the presiding justice to rule that the jury must find that, at the instant of the exchange of the checks, there was such an actual manual change in the possession as of itself to be an asportation. We do not so understand the instruction. An asportation at that time was unimportant. The real question was, whether the defendant at that time feloniously and with intent to steal, set in motion an innocent agency, by which the trunk and contents were to be removed from the possession of the true owner, and put into the defendant's possession, and whether such purpose was actually accomplished. If, before the trunk had been started, the scheme had been detected, the offence of the defendant would have been an attempt to commit larceny, and doing an act towards the commission of it, but failing in the perpetration ; but, as soon as the asportation was complete, for however short a distance, SECT. II.] EDMONDS V. STATE. 511 the offence of larceny was committed, such asportation having been caused by him, by fraudulent means, and through an innocent agent, unconscious of what, in fact, he was doing. As soon as tlie trunk was placed on board the cars, checiied, with the corresponding check in the possession of the defendant or his confederate, the trunk and its contents were in the possession and control of the defendant or his con- federate, and it is immaterial of which. Nor is the time wiien the actual manual possession came into the hands of the parties imimrtant, tliey having all the time the constructive possession and the real con- trol of it. The instructions prayed for by tlie defendant's counsel were properly refused, because they wholly omitted all reference to the purpose and intent of the defendant in what he did, and all reference to the fact that the defendant was an accomplice of Briggs, or that the actual sub- sequent possession by Briggs was, or might be, the possession of the defendant. The request to instruct the jury that, upon the whole evi- dence, they would not be warranted in finding the defendant guilty, was also properly refused. Exceptions overruled. EDMONDS V. STATE. Supreme Court op Alabama. 1881. {Reported 70 Alabama, 8.] SoMERViLLE, J, The indictment in this case charges the defendant with the larceny of a hog, which, under the statute, is made a felony, without reference to the value of the animal stolen. Code, 1876, § 4358. The only evidence in the case, showing any caption, or asportation of the animal, was the testimony of an accomplice, one Wadworth, wlio made the following statement : "That shortly after dark, on the 18th of Febru- ary last, witness met defendant near the horse-lot, on the plantation of one Ilges ; that the two went together to witness' house, where the latter procured an axe, and they then returned to the lot. Witness then got some corn, and after giving defendant the axe, by dropping some of the corn on the ground tolled the hog to the distance of about twenty yards ; that the defendant then struck the hog with the axe, and the hog squealed, whereupon immediately both witness and defen- dant ran away, leaving the hog where it was." Upon this state of facts, the court charged the jury that if they believed the evidence, it was sufficient to show such a taking and carrying away of tlie property, if done feloniously, as was necessary to make out the offence of larceny. We think the court erred in giving this charge, thougli the question presented is not free from some degree of doubt and diflioiilty. The usual definition of larceny is, " the felonious taking and carrying away I 512 EDMONDS V. STATE. [cHAP. XIII. of the personal goods of another." 4 Black, Com. 229. It is defined in Roscoe's Criminal Evidence, as " the wrongful taking possession of the goods of another, with intent to deprive the owner of his propert}- in them." Rose. Cr. Ev. 622. It is a well settled rule, liable to some few ex- ceptions, perhaps, that every larceny necessarily involves a trespass, and that there can be no trespass, unless there is an actual or constructive taking of possession ; and this possession must be entire and absolute. Roscoe's Cr. Ev. 623-24 ; 3 Greenl. Ev. § 154. There must not only be such a caption as to constitute possession of, or dominion over the property', for an appreciable moment of time, but also an asportation, or carrying awaj-, which may be accomplished b^' any removal of the property* or goods from their original status, such as would constitute a complete severance from the possession of the owner. 1 Greenl. Ev. § 154; Roscoe's Cr. Ev. p. 625. It has been frequentlv held that to chase and shoot an animal, with felonious intent, without removing it after being shot, would not be such a caption and asportation as to con- summate the offence of larceny. Wolf ■?;. The State, 41 Ala. 412 ; The State V, Seagler, 1 Rich. (S. C.) 30 ; 2 Bish. Cr. Law, § 797. So it has been decided that the mere upsetting of a barrel of turpentine, though done with felonious intent, does not complete the offence, for the same reason. The State v. Jones, 65 N. C. 395. The books are full of cases presenting similar illustrations. On the contrary, it is equally well settled that where a person takes an animal into an inclosure, with intent to steal it, and is apprehended before he can get it out, he is guilty of larceny. 3 Inst. 109. In Wis- dom's case, 8 Port. 507, 519, it was said, arguendo, by Mr. Justice Goldthwaite, " If one entice a horse, hog, or other animal, by placing food in such a situation as to operate on the volition of the animal, and he assumes the dominion over it, and has it once under his control, the deed is complete ; but, if we suppose him detected before he has the animal under his control, yet after he has operated on its volition, the offence would not be consummated." This principle is, no doubt, a correct one ; but the true difficulty lies in its proper application. It is clear, for example, if one should thus entice an animal from the possession, actual or constructive, of the owner, and toll it into his own inclosure, closing a gate behind him, the custody or dominion acquired over the animal might be regarded as so complete as to consti- tute larceny. 2 Bish. Cr. Law, § 806. It is equally manifest that, if one should, in like manner, entice an animal, even for a considerable distance, and it should, from indocility, or other reason, follow him so far off as not to come virtuallj- into his custody, the crime would be incomplete. The controlling principle, in such cases, would seem to be that the possession of the owner must be so far changed as that the dominion of the trespasser shall be complete. His proximity to the intended booty must be such as to enable him to assert this dominion, by taking actual control or custody by manucaption, if he so wills. If he SECT. II.] THOMPSON V. STATE. 513 abandon the enterprise, however, before being placed in this attitude, he is not guilt}' of the offence of larceny, though he may be convicted of an attempt to commit it. "Wolfs case, 41 Ala. 412. It would seem there can be no asportation, within the legal acceptation of the word, without a previousl}' acquired dominion. The facts of this case, taken alone, do not constitute larceny. It is not a reasonable inference from them that there was such a complete caption and asportation as to consummate the offence.^ The jiidgmeyit of the Circuit Court is reversed, and the cause is remanded. THOMPSON V. STATE. Supreme Court of Alabama. [Reported 94 Alabama, 535.] Walker, J. The witness for the State testified that he held out his open hand with two silver dollars therein, showing the money to the defendant ; that the defendant struck witness' hand, and the money was either knocked out of his hand or was taken b}' the defendant, he could not tell positively which. It was after twelve o'clock at night, and the witness did not see the money, either in defendant's possession or on the ground. The court charged the jury : " If the jury find from the evidence that the defendant, with a felonious intent, grabbed for the money, but did not get it, but only knocked it from the owner's hand with a felonious intent, this would be a sufficient carrying away of the money, although defendant never got possession at any time of said money." This charge was erroneous. To constitute larceny, there must be a felonious taking and carrying away of personal property. There must be such a caption that the accused acquires dominion over the property, followed by such an asportation or carrying awa}' as to supersede the possession of the owner for an appreciable period of time. Though the owner's possession is disturbed, 3'et the offence is not complete if the accused fails to acquire such dominion over the propert}' as to enable him to take actual custody or control. Frazier V. The State, 85 Ala. 17 ; Groom v. The State, 71 Ala. 14 ; Edmunds V. The State, 70 Ala. 8 ; Wolf v. The State, 41 Ala. 412. It is not enough that the monev was knocked out of the owner's hand, if it ftU to the ground and the defendant never got possession of it. The defen- dant was not guilty of larceny if he did not get the money under his control. If the attempt merel}- caused the mone}' to fall from the owner's hand to the ground, and the defendant ran oflf without getting 1 Aec. Hardeman v. State, 12 Tex. App. 207. See Croom i-. State, 71 Ala ll, Lundy v. State, 60 Ga. 143 ; State v. Alexander, 74 N. C. 232 — Ed. 38 514 ANONYMOUS. [CHAP. XIII. it, the larceny was not consummated, as the dominion of the trespasser was not complete. Charge No. 1 was a proper statement of the law as applicable to the evidence above referred to, and it should have been given.' Meversed and remanded. SECTION II. {continued). (6) Distinction between Possession and Costodt. Littleton, Tenures, Sect. 71. If I lend to one m}' sheep to tathe his land, or my oxen to plow the land, and he killeth my cattle, I may well have an action of trespass against him, notwithstanding the lending. Coke, First Institute, ad loc. And the reason is, that when the bailee, having but a bare use of them, taketh upon him as an owner to kill them, he loseth the benefit of the use of them. Or in these cases he may have an action of trespass sur le case for this conversion, at his election. ANONYMOUS. Assizes. 1353. [Reported Liber Assisariim, 137, pi. 39.] One a. was arraigned with the muinor, sc. a coverlet and two sheets ; and he put himself on his clergy. And it was found by the inquest that he was a guest at the house of a man of note, and was lodged within these bedclothes ; and it was found that he got up before day, and took these bedclothes out of the chamber, and carried them into the hall, and went off to the stable to find his horse ; and his host summoned his household against him. And it was asked of the inquest whether he carried the bedclothes into the hall with intent to have stolen them ; and they said yes. Wherefore he was adjudged a felon, and was delivered to the ordinary, because he was a clerk, etc.^ 1 Ace. Rex V. Farrel, 2 East P. C. 557 ; Com. v. Luckis, 99 Mass. 431. See People V. Meyer, 75 Cal. 383. — Ed. 2 After reporting this case, Staunforde (Pleas of the Crown, 26) adds : " And yet the thing stolen seems never to have been out of the owner's possession, for it had not passed out of the house ; so qucere what the law would be in such a case at this day. For no wonder it was allowed for law at this time, sc, regnante Edwardo tertio, quia tunc temporis voluntas reputabatur pro facto, ^-c." See ace. State f. Wilson, Coxe (N. J.), 439. — Ed. SECT. II. J REX V. CniSSERS. 515 ANONYMOUS. Old Bailey. 1664. [Reported Kelijng, 35.] A SILK throster had men come to work in liis own house, and deliv- ered silli to one of them to work, and the workmen stole away part of it. It was agreed by Hyde, Chief Justice, myself and Brother Wylde being there, that this was felony, notwithstanding the delivery of i"t to the party, for it was delivered to him only to work, and so the entire property remained only in the owner, like the case of a butler who hath plate delivered to him ; or a shepherd, who hath sheep delivered, and they steal any of them, that is felony at the common law. Vid. 13 Eliz. 4, 10 ; 3 H. VII., 12 ; 21 H. VII., 14 ; Accord Poulton de Pace, 126.1 REX V. CHISSERS. Exchequer. 1678. [Reported T. Raymond, 275.] Upon a special verdict the jury find that, on the day and at the place in the indictment mentioned, Abraham Chissers came to the shop of Anne Charteris, spinster, in the said indictment likewise named, and asked for to see two cravats in the indictment mentioned, which she shewed to him, and delivered them into his hands, and thereupon he asked the price of them, to which she answered 75. ; whereupon the said Abraham Chissers offered her 35., and immediately run out of the said shop, and took away the said goods openly in her sight ; but whether this be felony or not is the question. And if it shall be ad- judged felony, we find him guilt}-, and that the goods were of the value of 75., and that he had no goods or chattels, etc. ; but if it be not adjudged felony, we find him not guilty, nor that he fled for the same. And I am [of] opinion that this act of Chissers is felony ; for that, 1. he shall be said to have taken these goods, /e^^eo ainmo ; for the act subsequent, namely, his running away with them, explains his intent precedent ; as the suing a replevin to get the horse of another man. to which he hath no title, is felony, because in frmtdem legis, Co. 3 Inst. 108. So if an officer cometh to a man, and telleth him that he is out- lawed, when the officer knoweth the contrary to be true, and by color thereof, takes his goods, it is felony : Dalton's Office of Sherififs, cap. 1 See ace. U. S. v. Clew, 4 Wash. C. C. 700 ; Marcus v. State, 26 Ind. 101 ; Gill r. Bright, 6 T. B. Mon. 130 j State v. Jarvis, 63 N. C. 556; State v. Self, I Baj, 242. —Ed. 516 REGINA V. SLOWLY. [CHAP. XIII. 121, fol. 489. And the case of one Far, in which I mj'self was a coun- sel, was thus : Far, knowing one Mrs. Steneer, living in St. Martin's Lane, in Middlesex, to have considerable quantity of goods in her house, procured an affidavit to be filed in the Common Pleas of the due deliver^' of a declaration, in an action of ejectione firmce, in which he was lessor, though he had no title, and thereupon got judgment, and took out an habere facias j^ossessionem for the house, directed to the sheriff of Middlesex, and procured him to make a warrant to a bailiff to execute the writ, who with Far came to the house, turned Mrs. Steneer out of possession thereof, and seized upon the goods, of a great value, and converted them to his own use, and upon complaint made b}' Mrs. Steneer to Sir Robert H3de, then Lord Chief Justice of B. R., Far was apprehended by his warrant, and indicted at Justice Hall in the Old Bailey, and found guilty, and hanged ; for that he used the color of an action of ejectment and the process thereupon to execute his feloni- ous intent, in fraudem legis. 2. Although these goods were delivered to Chissers by the owner, yet they were not out of her possession by such deliver}-, till the property should be altered by the perfection of the contract, which was but in- choated and never perfected between the parties ; and when Chissers run away with the goods, it was as if he had taken them up, lying in the shop, and run away with them. Vide Hill. 21 H. VII. 14 pi. 21.^ REGINA V. SLOWLY. Crown Case Reserved. 1873. [Reported 12 Cox C. C. 269.] Case reserved for the opinion of this court by Mr. Justice Byles. The prisoners, at the last Winter Assizes for the county of Sussex, at Lewes, were jointly indicted for stealing onions. The prosecutor, having a cart loaded with onions, met the prisoners, who agreed to bu}' all the onions at a certain price, namely, £3 16^. for ready monej^, the prisoners saying, "You shall have 3'our mone}' directly the onions are unloaded." The onions were accordingly unloaded by the prosecutor and the prisoners together, at a place indicated b}- the prisoners. The prosecutor then asked for his mone}-. The prisoners thereupon asked for a bill, and the prosecutor made out a bill accordingl}'. One of the prisoners said the}- must have a receipt from the prosecutor, and in the presence of the other made a cross upon the bill, put a one penny postage stamp on it, and then said the}- had a receipt, and refused to restore the onions or pay the price. J See Bassett i-. Spofford, 45 N. Y. 387. —Ed. SECT. II.] REGINA V. SLOWLY. 517 The next morning the prisoners offered the onions for sale at Hastings. The jury convicted both the prisoners of larceny, and said they found that the prisoners never intended to piiy for the onions, and that the fraud was meditated by both the prisoners from the beginning. The prisoners' counsel insisting that under these circumstances there was no larceny, I reserved the point for the decision of the Court of Criminal Appeal. (Signed) J. Baknard Bvles. Willouffhbi/, for the prisoners. The prisoners were not properly convicted of larceny, for the prosecutor gave credit to the prisoners for the «£3 16s., and delivered the onions to them on such credit. [Kelly, C. B. What credit was given? The case is like Reg. v. McGrath (39 L. J. 7, M. C. ; 1 1 Cox C. C. 347).] This is a ditferent case. There the money was obtained against the will of the owner. Here the onions were unloaded by the prosecutor. Moreover, it was proved, though not stated in the case, that the prosecutor called on the prisoners in the evening for the money. The learned counsel then cited 2 East P. C. 669 (edit. a.d. 1805), and the cases of Rex v. Harvey and Reg. v. Nicholson, there cited. Also Rex V. Oliver, 2 Leach, 1072 ; R. v. Adams, 2 Rus. on Crimes, 209 ; Tooke v. Hollingsworth, 5 T. R. 231 (Buller, J.) ; Reg. v. Small, 8 C. (fe P. 46 ; Reg. v. Stewart, 1 Cox C. C. 174 ; Reg. v. McKale, 37 L. J. 97, M. C. ; 11 Cox C. C. 32. Focock, for the prosecution, was not called upon to argue. Kelly, C. B. I am of opinion that the conviction should be affirmed. If in this case it had been intended by the prosecutor to give credit for the price of the onions, even for a single hour, it would not have been larceny ; but it is clear that no credit was given or ever intended to be given. Any idea of that is negatived by the statement in the case that the prisoners agreed to buy for ready money. In all such sales the delivery of the thing sold, or of the money, the price of the thing sold, must take place before the other ; i. e., the seller delivers the thing with one hand while he receives the money with the other. No matter which takes place first, the transaction is not complete until both have taken place. If the seller delivers first before the money is paid, and the buyer fraudulently runs off with the article, or if. on the other hand, the buyer pays first, and the seller fraudulently runs off with the money without delivering the thing sold, it is equally larceny. Mellor, J. I am of the same opinion. The prisoners obtained possession of the onions by a trick, and never intended to pay for them, as the jury found. From the very first they meditated the fraud to get possession of them, which puts an end to any question of its being larceny or not. PiGOTT, B. The facts are that the prosecutor never intended to 518 COMMONWEALTH V. O'MALLEY. [cHAP. XIIL part with the possession of the onions except for ready money. He did part with the possession to the prisoners, who obtained the posses- sion by fraud. The prisoners then brought in aid force to keep pos- session, and refused to restore the onions or pay the price. Therefore the possession was obtained against the will of the prosecutor. Denman, J., and Pollock, B., concurred.^ Conviction affirmed. COMMONWEALTH v. O'MALLEY. Supreme Judicial Court of Massachusetts. 1867. [Reported 97 Massachusetts, 584.] Hoar, J.'^ We are of opinion that there was no evidence to sustain the indictment for embezzlement, and that the conviction was wrong. The defendant had been previously acquitted of larceny upon proof of the same facts ; and it is therefore of great importance to him, if the offence committed, if an}', was larcenj-, that it should be so charged. To constitute the crime of embezzlement, the property which the defendant is accused of fraudulently and feloniously converting to his own use, must be shown to have been entrusted to him, so that it was in his possession, and not in the possession of the owner. But the facts reported in the bill of exceptions do not show that the possession of the owner of the monej' was ever divested. She allowed the de- fendant to take it for the purpose of counting it in her presence, and taking from it a dollar, which she consented to lend him. The money is alleored to have consisted of two ten-dollar bills, three five-dollar bills, a two-dollar bill, and a one-dollar bill, amounting in all to thirt}'- eight dollars. The one dollar he had a right to retain, but the rest of the money he was only authorized to count in her presence and hand back to her. He had it in his hands, but not in his possession, any more than he would have had possession of a chair on which she might have invited him to sit. The distinction pointed out in the instructions of the court between his getting it into his hands with a felonious intent, or forming the intent after he had taken it, was therefore unimportant. The true distinction, upon principle and authority, is that stated by the cases upon the defendant's brief, that if the owner puts his property into the hands of another, to use it or do some act in relation to it, in his presence, he does not part with the possession, and the conversion of it, animo furat^di, is larceny. Thus in The People v. Call, 1 Denio, 120, the defendant took a promissory note to endorse a payment of interest upon it, in the presence of the owner of the note, and then carried it off; and it was held that he was rightly convicted of larceny, 1 See Reg. v. Bramley, 8 Cox C C. 468. —Ed. '■^ The opinion only is given ; it sufficiently states the case. SECT. II.J (^ HILDEBRAND V. PEOPLE. \ 519 altliougU he might have first formed the intention of appropriating it after it was put in his hands. So where a shopman placed some cloth- ing in the hands of a customer, but did not consent that he sliould take it awa}' from the shop till he should have made a bargain with the owner, who was in another part of the shop, his carrying it off was held to he larceny. Commonwealth v. Wilde, 5 Gray, 83. See also Regina V. Thompson, 9 Cox Crim. Cas. 244 ; Regina u. Jan.son, 4 Cox Crim. Cas. 82. In all such cases the temporary custody for the owner's pur- l)oses, and in his presence, is only the charge or custody of an agent or servant ; gives no right of control against the owner ; and the owner's possession is unchanged. Exceptions sustamed.^ HILDEBRAND v. PEOPLE. Court op Appeals of New York. 1874. [Reported 56 New York, 394.] Church, C. J.^ The prosecutor handed the prisoner, who was a bar- tender in a saloon, a fifty-dollar bill (greenback) to take ten cents out of it in payment for a glass of soda. The prisoner put down a few coppers upon the counter, and when asked for the change, he took the prosecutor by the neck, and shoved him out doors, and kept the rnone}'. The question is presented on behalf of the prisoner whether larceny can be predicated upon these facts. There was no trick, device, or fraud in inducing the prosecutor to deliver the bill ; but we must assume that the jury found, and the evidence was sufficient to justify it, that the prisoner intended, at the time he took the bill, feloniously to convert it to his own use. It is urged that this is not sufficient to convict, because the prosecutor voluntarily parted with the possession not only, but with the property, and did not expect a return of the same property. This presents the point of the case. When the possession and property are delivered voluntaril}', without fraud or artifice to induce it, the animxis furaridi will not make it larceny, because in such a case there can be no tres- pass, and there can be no larcen}' without trespass. 43 N. Y. 61. But in this case I do not think the prosecutor should be deemed to have parted either with the possession of, or propertv in, the bill. It was an incomplete transaction, to be consummated in the presence and under the personal control of the prosecutor. There was no trust or confidence reposed in the prisoner, and none intended to be. The de- 1 Ace. Reg. V. Thompson, 9 Cox C. C. 244; People r. Johnson, 91 Cal. 265; Teople V. Call, 1 Denio, 120. — Ed. 2 The opinion only is given ; it sufficiently states the case. 520 HILDEBRAND V. PEOPLE. [CHAP. XIII livery of the bill and the giving change were to be simultaneous acts, and until the latter was paid the delivery was not complete. The prosecutor laid his bill upon the counter, and impliedly told the pris- oner that he could have it upon delivering to ^ him $49.90. Until this was done neither possession nor property passed ; and in the mean time the bill remained in legal contemplation under the control and in the possession of the prosecutor. Tliis view is not without authoiit^-. The case of Reg. v. McKale, 11 Cox C. C. 32, is instructive. The prosecutrix put down two shillings upon the counter, expecting to receive small change for it from the prisoner. There being several pieces on the counter, the prosecutrix took up a shilling of the pris- oner's money, and a shilling of her own, which she did not discover until she was putting them in the drawer. A confederate just then attracted her attention, and the prisoner passed out with the two shil- lings. It was held, upon full consideration, that the conviction for stealing the two shillings was right. Kelly, C. B., said : " The ques- tion is, did she part with the money she placed on the counter? I say, certainly- not, for she expected to receive two shillings of the prisoner's money in lieu of it. . . . Placing the monej' on the counter was only one step in the transaction. The act of the prisoner in taking up the money does not affect the question whether the prosecutrix parted with the property in it. The property is not parted with until the whole transaction is complete, and the conditions have been fulfilled on which the property' is to be parted with. ... I am of the opinion that the property in the two-shilling piece was not out of the prosecutrix for a moment." In Reg. V. Slowly, 12 Cox C. C. 269, the prosecutor sold onions to the prisoners, who agreed to pay ready money for them. The onions were unloaded at a place indicated by the prisoners, and the prosecutor signed a receipt at the request of the prisoners, when the}" refused to restore the onions or pay the price. A conviction for larcen}- was held right, the jury having found the original intention felonious. This was upon the ground that the delivery and payment were to be simulta- neous acts, that the propert}" did not pass until payment, and that no credit or trust was intended. See also id., 248, 257 ; 2 Russ. on Cr., 22. The counsel for the prisoner relies upon the case of Reg. v. Thomas, 9 C. & P. 741. There the prosecutor permitted the prisoner to take a sovereign to go out to get it changed. The court held that the prisoner could not be convicted of larceny, because he had divested himself of the entire possession of the sovereign and never expected to have it back. This was a nisi p7'ius decision, and is not as authoritative for that reason ; but the distinction between that case and this is the one first suggested. Thei'e all control, power, and possession was parted with, and the prisoner was intrusted with the mone}', and was not ex- pected to return it. Here, as we have seen, the prosecutor retained the control and legally the possession and property'. The line of dis- SECT. U.] COMMONWEALTH V. LANNAN. 521 tinction is a narrow one, but it is substantial and sufficiently well dellned. The judgment must be allirmed. All concur. Judjuient affirmed} COMMONWEALTH v. LANNAN. Supreme Judicial Coukt of Massachusetts. 1891. [Reported 153 Massachusetts, 29>1.^ Holmes, J. The defendant is indicted for the larcen}' of promissory notes, the property of one Teeling, and has been found guilty. The case is before us on exceptions to the refusal of the court below to rule that the evidence was insufficient to support the indictment, and also to the instructions given to the jur}'. The evidence tended to prove the following facts. The defendant was an attorney' employed by Teeling to ascertain the price of certain land. The price mentioned to him was one hundred and twenty-five dollars. He told Teeling that the lowest price was three hundred and twentj'-five dollars, three hundred dollars to go to the owners of the land, fifteen to Bent, the agent, with whom the defendant communicated, and ten dollars to the defendant. Teeling assented to the terms, and gave Bent directions as to the deed. When the deed was read}-, Teeling, Bent, and the defendant met. The defendant approved the deed, and said to Teeling, " Pa}- over the money." Teeling counted out three hundred and twenty-five dollars on the table in front of the defendant, who counted it, took it from the table, and requested Bent to go into the next room. He then gave Bent one hundred and twenty-five dollars of the money, returned to Teeling, gave him a receipt for ten dollars and kept the rest of the money. The court instructed the jury " that upon the evidence the}' might find the defendant guilty of larceny if they were satisfied that he had obtained the money of said Teeling by false premeditated trick or device ; that although Teeling might have given the manual custody of the money to the defendant, nevertheless the legal possession would remain in Teeling under such circumstances, and the larceny would l)e complete when the defendant, after thus getting possession of Teeling's money and inducing him to count out one hundred and ninety dollars more than was needed, appropriated it to his own use." When the defendant took up the money from the table it had not yet passed under the dominion of Bent, who represented the opposite party. The defendant did not receive it as representing the opposite party ; he purported to be acting in the interest of Teeling. The jury would 1 Ace. Reg. V. Johnson, 5 Cox C. C. 372 ; Levy v. State, 79 Ala. 259 ; State r. Fenn, 41 Conn. 590 ; Huber v. State, 57 Ind. 341 ; State v. Anderson, 25 Minn. 66. See State 1-. Watson, 41 N. 11. 5.33. — Ed. 522 COMMONWEALTH V. L ANNAN. [CHAP. XIII. have been warranted in finding that Teeling impliedl}' authorized the defendant to take up the money from the table, but the}- only could have found that he allowed him to do so for the purpose of immediately transferring the identical bills, or all but ten dollars of them, to Bent under Teeling's eyes. Subject to a single consideration, to be men- tioned later, there is no doubt that in thus receiving the money for a moment the defendant purported at most to act as Teeling's servant, or hand, under his immediate direction and control. Therefore not only the title to the money, but the possession of it, remained in Teel- ino- while the money was in the defendant's custody. Commonwealth V. O'Malley, 97 Mass. 584. If the defendant had misappropriated the whole sum, or if he misappropriated all that was left after paying Bent, the offence would be larcen3% Commonwealth «». Berr}', 99 Mass. 428; Regina v. Cooke, L. R, 1 C. C. 295; s. c. 12 Cox C. C. 10; Regina v. Thompson, Leigh & Cave, 225, 230; 2 East P. C. c. 16, §§ 110, 115. See further Commonwealth v. Donahue, 148 Mass. 529, 530, and cases cited. The instructions made the defendant's liabilit}' conditional upon his having obtained the money from Teeling by a premeditated trick or device. If he did so, and appropriated all that was left after paying Bent, he was guilt}' of larceny*, irrespective of the question whether Teeling retained possession, according to the dicta in Commonwealth v. Barr}-, 124 Mass. 325, 327, under the generally accepted doctrine that if a party fraudulently' obtains possession of goods from the owner with intent at the time to convert them to his own use, and the owner does not part with the title, the offence is larcen}'. Even if the possession had passed to the defendant, there can be no question that the title remained in Teeling until the money should be handed to Bent. See note to Regina v. Thompson, Leigh & Cave, 225, 230. In this case, however, by the terms of his agreement with Teeling, the defendant had the right to retain ten dollars out of the moneys in his hands, and it ma}' be argued that it is impossible to particularize the bills which were stolen, seeing that the defendant appropriated bills to the amount of one hundred and ninety-five dollars all at once, with- out distinguishing between the ten he had a right to select and the one hundred and eight^'-five to which he had no right. This argument appears to have troubled some of the English judges in one case, although the}' avoided resting their decision on that ground. Regina V. Thompson, Leigh & Cave, 233, 236, 238. If the argument be sound, it might cause a failure of justice by the merest technicalit}'. For it easily might happen that there was no false pretence in the case, and that a man who had appropriated a large fund, some small part of which he had a right to take, would escape unless he could be held guilty of larceny. We think the answer to the argument is this. All the bills belonged to Teeling until the defendant exercised his right to appropriate ten dollars of them to his claim. He could make an appro- priation onl}' b}' selecting specific bills to that amount. He had no SECT. II.] reporter's NOTE. 523 property in the whole mass while undivided. If he appropriated the bills as a whole, he stole the whole, and the faet that he might have taken ten dollars does not helj) him, because he did not take any ten dollars by that title, or in the only way in which he had a right to take it. The later English cases seem to admit that a man may be liable for tlie larceny of a .sovereign given him in payment of a debt for a less amount in expectation of receiving change, as well as in cases like Commonwealth v. Berry, ubi supra, where there is nothing due the defendant; Rcgina v. Gumble, L. R. 2 C. C. 1 ; s. c. 12 Co.x C. C. 248 ; Regina v. Bird, 12 Cox C. C. 257, 2G0. See further Ilildebrand V. People, oG N. Y. 394. Although the point is immaterial to the second ground of liability which we have mentioned, we may add that we are not disposed to think that the fact that the defendant may have been expected to select ten dollars for himself during the moment that the bills were in his hands was sufficient to convert his custody into possession. That rigiit on his part was merely incidental to a different governing object, and it would be importing into a very simple transaction a complexity which does not belong there to interpret it as meaning that the defen- dant held the bills on his own behalf with a lien upon them until he could withdraw his pay. It is not argued that the averment as to promissory notes is not sustained. Commonwealth v. Jenks, 138 Mass. 484, 488. Exceptions oven-uled. REPORTER'S NOTE. Common Pleas. 1487. [Reported Year Book 3 Hen. VII., 12, pi. 9.] Hdssey put a question. If a shepherd steals the sheep which are in his charge, or a butler the pieces which are in his charge, or servants other things which are in their charge, whether it shall be called felony. And it seemed to him that it would. And he cited a case which was. that a butler had stolen certain stuff which was in his charge, and was hanged for it. Haugii [J.] cited the case of Adam Goldsmith of London, who had stolen certain stuff which was in his charge, and was hanged for it. Brian [C. J.] — It cannot be felony, because he could not take vi <€' armis, because he had charge of it. And the justices were of the same opinion, and so no discussion, etc. R. see M. 1.3 E. 4 f 3, P. 13 E. 4 f. 9, T. 22 E. 3 Coroh 256, what shall be called felony of goods. 524 eepokter's note. [chaj*. xnL REPORTER'S NOTE. King's Bench. 1506. [Reported Year Book 21 Hen.VII., U,pl. 21.] In the King's Bench Cutler, Serjeant, and -Pigot, apprentice, were at the bar ; and Pigot put this question to Cutler : If I deliver a bag of money to my servant to keep, and he flees and goes away from me with the bag, is it felony ? Cutler said yes ; for so long as he is in ray house, or with me, whatever I have delivered to him is adjudged in my possession. As my butler who has mj' plate in charge, if he flees with it, it is felon}' ; the same law if he who keeps my horse goes away with it ; and the case is, that they are at all times in m}' possession. But if I deliver a horse to my servant to ride on a journey, and he flees with it, it is not felony, for he comes lawfully by the horse by delivery. And so it is, if I give him a bag to carr}- to London, or to pay to some one, or to bu}' something, and he flees with it, it is not felony ; for it is out of my possession, and he comes lawfully b}' it. Pigot. — It ma}' well be, for the master in all these cases has a good action against him, sc. detinue, or action of account. REPORTER'S NOTE. CoMMOX Pleas. 1533. [Reported Dyer, 5 a.] YoRKE puts this question upon the statute 21 H. VIII. [c. 7.], which is " that if any master or mistress deliver any goods to his servant to keep, who withdraws himself, and goes away with the goods to the intent to steal them, or if he embezzle the goods of his master, or convert them to his own use, if the goods be worth forty shillings, it shall be felony." ^ And a man delivers a bond to his servant to receive £20 of the obligor, and the servant receives them, and after that goes away, or converts them to his own use, whether this be within the mean- ing of the statute or not ? And by the better opinion it is not, for he did not deliver to him any goods ; for a bond is not a thing in value, but a chose in action. And Englefielde, J., said that if a man deliver to his apprentice wares or merchandises to sell at a market or fair, and he 1 The preamble to this act concludes, " which misbehavior so done was doubtful in the common law whether it were felony or not, and by reason thereof the foresaid servants have been in great boldness to commit such or like offences." By Sect. 2 it is provided that the act shall not apply to an apprentice, or to a servant under the age of eighteen. — Ed. SECT. U.] B.VZELEY's CASE. 525 sell them, and receive money for them, and go away, that is not within the statute ; for lie had not it by the dehvery of liis master, nor goes off with the things delivered to him. Qiuere. For the money was not delivered to the servant by the hands of his master, but of the obligor. But if one of my servants deliver to another of my servants my goods, and he go off witli them, that is felony ; for it shall be said my delivery. And FiTZUEKUKUT, J., said that in the case of a bond, by gift of omiiiu bona et catalla, bonds pass.'^ \ VjV V BAZELEY'S CASE. Crown Case Reserved. 1799 [RefXirted Leach, 4th ed. 835.] At the old Baile}' in Februar}' Session, 1799, Joseph Bazeley was tried before John Silvester, Esq., Common Serjeant of the city of Lon- don, for feloniously stealing on the 18th January preceding, a bank-note of the value of one hundred pounds, the property of Peter Ivsdaile, Sir Benjamin Hammett, William Esdaile, and John Hammett. The following facts appeared in evidence : The prisoner, Joseph Bazeley, was the principal teller at the house of Messrs. Esdaile's and Hammett's, bankers, in Lombard Street, at the salary of £100 a year, and his duty was to receive and pay money, notes, and bills, at the counter. The manner of conducting the business of this banking- house is as follows : There arc four tellers, each of whom has a separate money book, a separate raone3'-d rawer, and a separate bag. The prisoner being the chief teller, the total of the receipts and payments of all the other mone3'-books were every evening copied into his, and the total balance, or rest, as it is technically called, struck in his book and the balances of the other money-books paid, by the other tellers, over to him. When any moneys, whether in cash or notes, are brought by customers to the counter to be paid in, the teller who receives it counts it over, then enters the bank-notes or drafts, and afterwards the cash, under the customer's name, in his book; and then, after casting up the total, it is entered in the customer's book. The monc}' is then put into the teller's bag, and the bank-notes or other papers, if any, put into a box which stands on a desk behind the counter, direct!}' before another clerk, who is called the cash book-keeper, who makes an entr}' of it in the received cash-book in the name of the person who has paid it in, and which he finds written by the receiving teller on the back of the bill or note so placed in the drawer. The prisoner was treasurer to an association called "The Ding Dong Mining Company ;" and in the course of the year had many bills drawn on him by the com- 1 But see, contra, on this List point, Cal^-e's case, 8 Co. 33. — Eu. 526 bazeley's case. [chap, xiil pany, and many bills drawn on other persons remitted to him by the company. In the month of January, 1799, the prisoner had accepted bills on account of the company, to the amount of £112 4s. Id. and had in his possession a bill of £166 75. Sd. belonging to the company, but which was not due until the 9lh Februar\'. One of the bills, amount- ing to £100, which the prisoner had accepted became due on the 18th Januar}'. Mr. William Gilbert, a grocer in the Surry-road, Black- friars, kept his cash at the banking-house of the prosecutors, and on the 18th January, 1799, he sent his servant, George Cock, to pay in £137. This sum consisted of £l'22 in bank-notes, and the rest in cash. One of these bank-notes was the note which the prisoner was indicted for stealing. The prisoner received this mouej' from George Cock, and after entering the £137 in Mr. Gilbert's bank-book, entered the £15 cash in his own monej'-book, and put over the £22 in bank-notes into the drawer behind him, keeping back the £100 bank-note, which he put into his pocket, and afterwards paid to a banker's clerk the same day at a clearing-house in Lombard Street, in discharge of the £100 bill which he had accepted on account of the Ding Dong Mining Company. To make the sum in Mr. Gilbert's bank-book, and the sum in the book of the banking-house agree, it appeared that a unit had been added to the entry of £37 to the credit of Mr. Gilbert, in the book of the bank- ing-house, but it did not appear by an}' direct proof that this alteration had been made by the prisoner ; it appeared, however, that he had made a confession, but the confession having been obtained under a promise of favor, it was not given in evidence. Co7ist and Jackson^ the prisoner's counsel, submitted to the court that to constitute a larcen}', it was necessary, in point of law, that the property should be taken from the possession of the prosecutor, but that it was clear from the evidence in this case that the bank-note charged to have been stolen never was either in the actual or the constructive possession of Esdaile and Hammett, and that even if it had been in their possession, yet that from the manner in which it had been secreted by the prisoner, it amounted onl}' to a breach of trust. The court left the facts of the case to the consideration of the jury, and on their finding the prisoner guilty, the case was reserved for the opinion of the twelve judges on a question whether, under the circum- stances above stated, the taking of the bank-note was in law a felonious taking, or only a fraudulent breach of trust. The case was accordingly argued before nine of the judges in the Exchequer Chamber, on Saturday, 27th April, 1799, by Const for the prisoner, and by Fielding for the Crown. Const, for the prisoner, after remarking that the prosecutor never had actual possession of the bank-note, and defining the several offences of larceny, fraud, and breach of trust, viz., that larceny is the taking of valuable property" from the possession of another without his consent and against his will ; secondly, that fraud consists in obtaining valua- ble property from the possession of another with his consent and will, SECT. II.] BAZELEY'S CASE. 527 b}' means of some artful device, against the subtilty of which common prudence and caution are not suflicient safeguards; and, tbirdl}-, that breach of trust is the abuse or misusing of that property which tlie owner lias, without any fraudulent sedueenicnt, and with his own free will and consent, put, or permitted to be put, eitlier for particular or general purposes, into the possession of the trustee, — proceeded to argue the case upon the following points : — First, That the prosecutors cannot, in contemplation of law, be said to have had a constructive possession of this bank-note, at the time llie prisoner is charged with having tortiously converted it to his own use. Secondly, That, supposing the prosecutors to have had the possession of this note, the prisoner, under the circumstances of this case, cannot be said to have tortiou.sl}' taken it from that possession with a felonious intention to steal it. Thirdly, That the relative situation of the prosecutors and the pris- oner makes this transaction merel}- a l)reach of trust ; and, Fourthly, That this is not one of those breaches of trust which the Legislature has declared to be felony. The first point, viz., that the prosecutor cannot, in contempla- tion of law, be said to have had a constructive possession of this bank-note at the time the prisoner is charged with having tortiousl}' converted it to his own use. To constitute the crime of larceny, the property' must be taken from the possession of the owner ; this possession must be either actual or constructive. It is clear that the prosecutors had not, upon the present occasion, the actual possession of the bank-note, and therefore the inquiry must be, whether they had the constructive possession of it ; or, in other words, whether the pos- session of the sei'vant was, under the circumstances of this case, the possession of the master. Property in possession is said by Sir William Blackstone to subsist only where a man hath both the right to, and also the occupation of, the property. The prosecutors in the present case had only a right or title to possess the note, and not the absolute or even qualified possession of it. It was never in their custody or under their control. There is no difference whatever as to the question of possession between real and personal property ; and if, after the death of an ancestor, and before the entry of his heir upon the descend- ing estate, or if, after the death of a particular tenant, and before the entry of the remainder-man, or reversioner, a stranger should take pos- sesion of the vacant land, the heir in the one case, and the remainder- man or reversioner in the other, would be like the prosecutor in the present case, only entitled to, but not possessed of, the estate ; and each of them must recover possession of it by the respective remedies which the law has in such cases made and provided. Suppose the pris- oner had not parted with the note, but had merely kept it in his own custody, and refused on any pretence whatever to deliver it over to his employers, they could only have recovered it by means of an action of 528 bazeley's case. [cHAr. xiit. trover or detinue, the first of which presupposes the person against whom it is brought to have obtained possession of the property b}' lawful means, as by delivery or finding ; and the second, that the right of property only, and not the possession of it, either really or con- structively, is in the person bringing it. The prisoner received this note by the permission and consent of the prosecutors, while it was passing from the possession of Mr. Gilbert to the possession of Messrs, Esdaile's and Hammett's ; and not having reached its destined goal, but having been thus intercepted in its transitory state, it is clear that it never came to the possession of the prosecutors. It was delivered into the possession of the prisoner, upon an implied confidence on the part of the prosecutors that he would deliver it over into their possession, but which, from the pressure of temporary circumstances, he neglected to do. At the time, therefore, of the supposed conversion of this note, it was in the legal possession of the prisoner. To divest the prisoner of this pos- session, it certainly was not necessary that he should have delivered this note into the hands of the prosecutors, or of any other of their servants personally ; for if he had deposited it in the drawer kept for the recep- tion of this species of property, it would have been a delivery of it into the possession of his masters ; but he made no such deposit, and instead of determining in any way his own possession of it, he con- veyed it immediately from the hand of Mr. Gilbert's clerk into his own pocket. Authorities are not wanting to support this position. In the Year-book, 7 Hen. 6 fol. 43, it is said, " If a man deliver goods to another to keep, or lend goods to another, the deliverer or lender may commit felony of them himself, for he hath but Jus proj^rietatis ; the Jus possessionis being with the bailee ; " and permitting one man to receive goods to the use of another, who never had any possession of them, is a stronger case. So long ago as the year 1687, the following case was solemnly determined in the Court of King's Bench on a special verdict : The prisoner had been a servant, or journeyman, to one John Fuller, and was employed to sell goods and receive monej'- for his master's use ; in the course of his trade he sold a large parcel of goods ; received one hundred and sixty guineas for them from the purchaser ; deposited ten of them in a private place in the chamber where he slept ; and, on his being discharged from his service, took away with him the remaining one hundred and fifty guineas ; but he had not put any of the money into his master's till, or in any way given it into his possess- sion. Before this embezzlement was discovered he suddenly decamped from his master's service, leaving his trunk, containing some of his clothes and the ten guineas so secreted behind him ; but he afterwards, in the night-time, broke open his master's house, and took away with him the ten guineas which he had hid privately in his bed-chamber ; and this was held to be no burglary, because the taking of the money was no felony : for although it was the master's money in right, it was the servant's money in possession, and the first original act no felony. This case was cited by Sir B. Shower, in his argument in the case of SECT. II.] BAZELEY'S CASK 529 Rex V. Mcers, and is said to be reported by Gouldsborough, 18G ; but I have been favored with a manuscript report of it, extracted from a collection of cases in the possession of the late j\Ir. Reynolds, Clerk of the Arraigns, at the Old Bailey, under the title of Rex v. Dingley, by which it appears that the special verdict was found at the Easter Session, 1(587, and argued in the King's Beucii in Hilary Term, 3 Jac. II., and in which it is said to have been determined that this offence was not burglary, but trespass only. The law of this case has been recently confirmed by the case of the King v. Bull. The prisoner, Thomas Bull, was tried at the Old Bailey, January Session, 17'J7, before Mr. Justice Heath, on an indictment charging him with having stolen, on the 7th of the same month, a half-crown and three shillings, the property of William Tilt, who was a confectioner, in Cheapside, ■with whom the prisoner lived as a journeyman ; and Mr. Tilt having had, for some time before, strong suspicion that the prisoner had robbed him, adopted the following method for the purpose of detecting him : On the 7th January, the day laid in the indictment, he left only four six- pences in the till ; and taking two half-crowns, thirteen shillings, and two sixpences, went to the house of Mr. Garner, a watchmaker, who marked the two half-crowns, several of the shillings, and the sixpences, with a tool used in his line of business, that impressed a figure some- thing like a half-moon. Mr. Tilt, having got the money thus marked, went with it to the house of a Mrs. Hill ; and giving a half-crown an-l three of the shillings to Ann Wilson, one of her servants, and five of the shillings and the other sixpence to Mary Bushman, another of her servants, desired them to proceed to his house, and purchase some of his goods of the prisoner, whom he had left in care of the shop. The two women went accordingly to Mr. Tilt's shop, where Ann Wilson purchased confectionary of the prisoner to the amount of five shillings and three-pence, gave him the half-crown and three shillings, and re- ceived three-pence in change ; and Marj' Bushman purchased of him articles to the amount of four shillings and sixpence, for which she paid him out of the monej's she had so received, and returned the other shilling to her mistress, Mar}' Hill : but neither of these women observed whether the prisoner put either the whole or an}- part of the money into the till or into his pocket. While the women, however, were purchasing these things Mr. Tilt and Mr. Garner were waiting, with a constable, at a convenient distance, on the outside of the shop-door : and when they observed the women come out, they went immediately into the shop, where, on examining the prisoner's pockets, they found among tlie silver coin, amounting to fifty-three shillings, which he had in his waist- coat pocket, the marked half-crowns, and three of the marked shillings, which had been given to Wilson and Bushman ; only seven shillings and sixpence were found in the till ; and it appeared that ^frs. Tilt had taken one shilling in the shop and put it into the till dnrinc: her hus- band's absence ; so that the two shillings which had been lt>ft therein in the morning, the one shilling which Mrs. Tilt had put into it, the 34 530 bazeley's case. [chap. xiii. four shillings and sixpence laid out by Mary Bushman, and the five shillings and sixpence marked mone^' which was found iu the prisoner's pocket, made up the sum which ought to have been put into tlie till. The prisoner upon this evidence was found guilty, and received sentence of transportation ; but a case was reserved for the opinion of the twelve judges, "Whether, as Mr. Tilt had divested himself of this money by giving it to Mary Hill, who had given it to her servants in the manner and for the purpose aboA'e described, and as it did not appear that the prisoner had on receiving it from them, put it into the till, or done an}'- thing with it that could be construed a restoring of it to the possession of his master, the converting of it to his own use by putting it into his pocket could amount to the crime of larceu}', it being essential to the commission of that offence that the goods should be taken from the pos- session of the owner; and, although no opinion was ever publicly delivered upon this case, the prisoner was discharged. After these de- terminations, it cannot be contended that the possession of the servant is the possession of the master ; for, independentlj' of these authorities, the rule that the possession of the servant is the possession of the master cannot be extended to a case in which the property never was in the master's possession, however it ma}- be so construed in cases where the identical thing stolen is delivered by the master, or where the question is between the master and a third person. "' If,"" says Sir Mat- thew Hale, ''I deliver m}- sei'vant a bond to receive mone}-, or deliver goods to him to sell, and he receives the money upon the bond or goods and go away with it, this is not felony ; for though the bond or goods were delivered to him b}' the master, yet the nione}' was not delivered to him b}' the master." But he admits, that " if taken awa}' from the servant by a trespasser, the master may have a general action of trespass ; " which shows that the law, in a criminal case, will not, under such circumstances, consider the master to have a constructive possession of the property. Such a possession arises by mere impli- cation of law ; and it is an established rule that no man's life shall be endangered by any intendment or implication whatsoever.^ The judges, it is said, were of opinion upon the authority of Rex r. TVaite, that this bank-note never was in the legal custody or pos- session of the prosecutors, Messrs. Esdaile and Hammett ; but no opinion was ever publicly delivered ; and the prisoner was included in the Secretary of State's letter as a proper object for a pardon.^ 1 The argument for the prisoner upon the other points, and that for the Crown are omitted. 2 On consultntion among the judges, some doubt was at first entertained ; but at last all asseml)led agreed that it was not felony, inasmuch as the note was never iu the possession of the bankers, distinct from the possession of the prisoner : though it would have been otherwise if the prisoner had deposited it in the drawer, and had afterwards taken it. ( Vide Chipchase's case, Leach, 699.) And they thought that this was not to be differed from the cases of Rex v. Waite, Leach, 28, and Rex v. Bull, Leach, 841, which turned on this consideration, that the thing was not taken by tlie prisoner out of the pos.sessiou of the owner ; and here it was delivered into the possession of the SECT. II.] REX V. BASS. 531 REX V. BASS. Crown Case Reservkd. 1782. [liejtorttd Leach, 4/A ed., 2 J 1 .] At the Old Bailey, in May Session, 1782, William Bass was convicted of stealing a quantity of goods, the property of John Gatfee. The prisoner was servant and porter in the general employ of tlie prosecutor, a gauze weaver in Bishopsgate Street. On the day laid in the indictment he was sent with a package of goods from his master's house, with directions to deliver them to a customer at a particuhir place. In his way he met two men, who invited him into a public house to drink with them, and then persuaded him to open the package and sell the goods to a person whom one of the men brought in, which he accordingly did, by taking them out of the package and i)utting them into the man's bag ; and he received eight guineas of the produce to his own use.^ It was referred to the consideration of the twelve judges, whether from the above facts, the prisoner was guilty of a felonious taking. Mr. Baron Hotham, in December Session, 1782, delivered it as the unanimous opinion of all the judges, that the conviction was proper ; for the prisoner standing in the relation of a servant, the possession of the goods must be considered as remaining in the master until and at the time of the unlawful conversion of them b}- the prisoner. The master was to receive the money for them from the customer, and he could at any time have countermanded the delivery of them. The prisoner, therefore, by breaking open tlie package, tortiously took them from the possession of the owner, and having by the sale converted them animo furundl to his own use, the taking is felonious. Many cases of this kind have occurred, and all of them have been determined to be felony. prisoner. That although to many purposes the note was in the actual possession of tlie masters, yet it was also iu the actual possession of the servant, an