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 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 il) H o/Z£ Wood /^//.Is. 
 
 JLj» 
 
 ATTORNEY AT LAW
 
 A SELECTION OF CASES 
 
 AND OTHER AUTHORITIES UPON 
 
 CRIMINAL LAW 
 
 BY 
 
 JOSEPH HENRY BEALE 
 
 KOYALL PROFESSOB OF LAW IN HARVARD UNIVBBSITT 
 
 THIRD EDITION 
 
 CAMBRIDGE 
 HARVARD UNIVERSITY PRESS
 
 f.-r 
 
 Copyright, 1915, 
 By Joseph Henry Be ale 

 
 PREFACE 
 
 TO THE THIRD EDITION. 
 
 A REARRANGEMENT of coursGS ill the Harvard Law School has 
 taken out of the course on Criminal Law and' included in a new 
 course the topics of Causation, Justification, and Excuse. The 
 chapters in which these topics were considered have therefore been 
 removed from this book. This third edition is identical with the 
 second, except that the chapters mentioned, viz.. Chapters Y, VHI, 
 and IX, and part of Chapter III of the old edition, have been 
 removed ; but this change has made necessary an entire renum- 
 bering of the pages in this edition. 
 
 Joseph Henry Beale. 
 
 Cambridge, January 1, 1915.
 
 TABLE OF CONTENTS. 
 
 Pages. 
 
 Chapter I. Introductory. 
 
 Section I. Common Law and Statute 1 
 
 Section II. Nature of Crime 22 
 
 Chapter II. The Offence 
 
 Section I. Felonies 33 
 
 Section II. Misdemeanors 39 
 
 Section III. PubUc Torts 81 
 
 Section IV. Incomplete Offences 102 
 
 Section V. A Specific Intent as Part of an Offence 133 
 
 Section VI. Jurisdiction over an Offence 152 
 
 Chapter III. The Offence: Modifying Circumstances. 
 
 Section I. Participation of a Public Officer 177 
 
 Section II. Acquiescence of the Injured Party 182 
 
 Section III. Consent of the Injured Party 192 
 
 Section IV. Fault of the Injured Party 216 
 
 Section V. Negligence of the Injured Party 226 
 
 Section VI. Condonation 228 
 
 Chapter IV. Culpability. 
 
 Section I. What Crimes Require a Guilty Mind 236 
 
 Section II. The wens rea: Intent 274 
 
 Section III. The mens rea: Negligence 302 
 
 Section IV. Concurrence of Offence and Guilty Mind 320 
 
 Chapter V. Culpability: Modifying Circumstances. 
 
 Section I. Insanity 326 
 
 Section II. Intoxication 350 
 
 Section III. Coercion 361 
 
 Section IV. Infancy: Incorporation 365 
 
 Section V. Ignorance or Mistake 368 
 
 Section VI. Impossibility 378 
 
 Section VII. Custom 382 
 
 Chapter VI. Parties in Crime. 
 
 Section I. Who are Parties 389 
 
 Section II. Innocent Agents 409 
 
 Section III. Joint Principals 412
 
 Vi TABLE OF CONTENTS. 
 
 Pages. 
 
 Chapter VI. Parties in Crime (Continued). 
 
 Section IV. Principals in the Second Degree 415 
 
 Section V. Accessories 420 
 
 Section VI. Acts done in Pursuance of a Common Design .... 425 
 
 Chapter VII. Crimes against the Person. 
 
 Section I. General Principles 442 
 
 Section II. Assault and Battery 444 
 
 Section III. Rape 449 
 
 Section IV. Murder 453 
 
 Section V. Degrees of Murder 467 
 
 Section VI. Manslaughter 469 
 
 Chapter VIII. Larceny. 
 
 Section I. What Property is the Subject of Larceny 484 
 
 Section II. Possession. 
 
 (a) The Act of Assuming Possession 504 
 
 (6) Distinction between Possession and Custody 519 
 
 (c) Possession in case of Finding 554 
 
 (d) Tortious Possession 589 
 
 Section III. Taking after Delivery. 
 
 (a) Larceny by Bailee 623 
 
 (b) Larceny by Breaking Bulk, etc 630 
 
 Section IV. Taking with Consent. 
 
 (a) What constitutes Consent 640 
 
 (b) Larceny by Trick 647 
 
 (c) Delivery by Mistake 656 
 
 Section V. Transfer of Title 672 
 
 Section VI. Animus Furandi 693 
 
 Section VII. Aggravated Larceny. 
 
 (a) Robbery and Larceny from the Person 731 
 
 (6) Larceny from a Building 733 
 
 Chapter IX. Embezzlement 738 
 
 Chapter X. Obtaining Property by False Pretences. 
 
 Section I. The Question of Title 750 
 
 Section II. Property 753 
 
 Section III. The Pretence 757 
 
 Chapter XI. Receiving Stolen Property. 
 
 Section I. The Receiving 794 
 
 ■ Section II. Stolen Property 801 
 
 Section III. Guilty Knowledge 813 
 
 Chapter XII. Crimes against the Dwelling-House. 
 
 Section I. Burglary 816 
 
 Section II. Arson 833 
 
 Chapter XIII. Forgery 837
 
 TABLE OF CONTENTS. 
 
 Vll 
 
 Pages. 
 Chapter XIV. Criminal Conspiracy. 
 
 Section I. Under Ancient Statutes 852 
 
 Section II. Conspiracy in General 855 
 
 Section III. Conspiracy and other Offences against Trade .... 865 
 
 Chapter XV. The Indictment. 
 
 Section I. General Requisites of an Indictment 891 
 
 Section II. Statement of the Crime 921 
 
 Section III. Particular Allegations 926 
 
 Section IV. Counts 941 
 
 Section V. Statutory SimpUfications of Criminal Pleading . . . 951 
 
 Chapter XVI. Former Conviction or Acquittal. 
 
 Section I. Double Jeopardy 965 
 
 Appendix 1007
 
 TABLE OF CASES. 
 
 Adams v. S. 
 
 C.v. 
 
 R. V. (22 Q. B. D. 66) 
 
 R. V. (R. & R. 225) 
 
 R. V. (1 F. & F. 86) 
 Alderman, C. v. 
 Aldrich v. P. 
 Allen, S. V. 
 Anon. (Comb. 46) 
 
 (1 Cox, 250) 
 
 (Dyer, 99 a) 
 
 (Fost. 439) 
 
 (Kel. 31) 
 
 (Kel. 35) 
 
 (2 Leon. 12) 
 
 (3 Mod. 97) 
 
 (8 Mod. 165) 
 
 (12 Mod. 342) 
 
 (Moore, 660) 
 
 (R. & R. 489) 
 
 (Y. B. 2 & 3 Ed. XL 120) 
 
 (Y. B. 1 Ed. in. 16) 
 
 (Y. B. 11 & 12 Edw. IIL 640) 484 
 
 (Lib. Assis. 137) 
 
 (Lib. Assis. 137) 
 
 (Y. B. 7 Hen. IV. 43) 
 
 (Y. B. 4 Hen. VII. 5) 
 
 (Y. B. 11 Hen. VII. 1) 
 
 (Y. B. 13 Hen. VII. 10) 
 
 (Y. B. 13 Hen. VII. 14) 
 
 (Y. B. 19 Hen. VIII. 2) 
 Armstrong, R. v. 
 Articles of Inquest 
 Asher, S. v. 
 Ashton's Case 
 Ashwell, R. V. 
 Atcheson v. Everitt 
 Atkinson, R. v. 
 
 B. 
 
 Bailey, R. v. 
 Baker v. S. 
 Baldwin, C. v. 
 
 S.v. 
 
 
 
 Pages. 
 
 Pages. 
 
 Ball, U. S. V. 
 
 972 
 
 698 
 
 Bamber, R. v. 
 
 378 
 
 291 
 
 Bancroft v. Mitchell 
 
 25 
 
 72 
 
 Bank of New South Wales 
 
 V. 
 
 752 
 
 Piper 
 
 262 
 
 813 
 
 Banks, R. v. 
 
 624 
 
 968 
 
 Bankus v. S. 
 
 384 
 
 516 
 
 Bannen, R. v. 
 
 410 
 
 427 
 
 Barker v. P. 
 
 10 
 
 53 
 
 Barnard, R. v. 
 
 759 
 
 217 
 
 Barnes, K. v. 
 
 742 
 
 817 
 
 Barrow, R. v. 
 
 20? 
 
 372 
 
 Barry, C. v. 
 
 50V 
 
 362 
 
 Bass, R. V. 
 
 53h 
 
 520 
 
 Bazeley's Case 
 
 5SU 
 
 382 
 
 Bean, C. v. 
 
 924 
 
 53 
 
 Beaton, S. v. 
 
 934 
 
 389 
 
 Beecham, R. v. 
 
 71(? 
 
 99 
 
 Berry, C. v. 
 
 746 
 
 818 
 
 Bingley, R. v. 
 
 412 
 
 926 
 
 Birney v. S. 
 
 267 
 
 76 
 
 Black, S. V. 
 
 755 
 
 52 
 
 Blackham, R. v. 
 
 289 
 
 0) 484 
 
 Blake, R. v. 
 
 64 
 
 361 
 
 Botkin, P. V. 
 
 175 
 
 519 
 
 Boyce, R. v. 
 
 134 
 
 607 
 
 Boynton, C. v. 
 
 270 
 
 6QB 
 
 Bradford, R. v. 
 
 23 
 
 833 
 
 Bradlaugh, R. v. 
 
 87 
 
 415 
 
 Bradshaw, R. v. 
 
 212 
 
 288 
 
 Branworth, R. v. 
 
 93 
 
 486 
 
 Breese v. S. 
 
 419 
 
 154 
 
 Brennan v. P. 
 
 978 
 
 866 
 
 Brig William Gray, The 
 
 378 
 
 324 
 
 Brocheshevet v. Maren 
 
 38 
 
 425 
 
 Brooks, C. V. 
 
 380 
 
 673 
 
 Brown, R. v. (3 Salk. 189) 
 
 22 
 
 24 
 
 R. V. (14 Cox, 144) 
 
 422 
 
 674 
 
 S.v. 
 
 892, 961 
 
 
 Bruce, R. v. 
 
 289 
 
 
 Bryan, R. v. 
 
 761 
 
 
 Buckmaster, R. v. 
 
 677 
 
 369 
 
 Bunce, R. v. 
 
 650 
 
 94 
 
 Burke, C. v. 
 
 449 
 
 846 
 
 Burnett, R. v. 
 
 100 
 
 27 
 
 Button. R. V. 
 
 791
 
 TABLE OF CASES. 
 
 Pages. 
 
 c. 
 
 Cabbage, R. v. 701 
 
 Callaghan, C. v. 46 
 
 Calvi, R. V. 989 
 
 Campbell, S. v. 909 
 
 Carr, R. v. 810 
 
 Carrier's Case 630 
 
 Carter, S. v. 164 
 
 Carver, S. v. 61 
 
 Case, R. v. 192 
 
 Castro V. Queen 941 
 
 Chamberlain, R. v. 304 
 
 Cheafor, R. v. 488 
 
 Chicago, M. & S. P. Ry., S. v. 272 
 
 Chisholm v. Donlton 255 
 
 Chissers, R. v. 520 
 
 Choice V. S. 358 
 
 Claasen v. U. S. 950 
 
 Clair, C. v. 1004 
 
 Clarence, R. v. 196 
 
 Clayton, R. v. 421 
 
 Closs, R. V. 837 
 
 Collberg, C. v. 214 
 
 Collins, R. V. 103 
 
 Colvin V. S. 848 
 
 Coney, R. v. 393 
 
 Cook, R. V. 39 
 
 Coombs, S. V. 605 
 
 Cross, R. V. 98 
 
 Crouther's Case 45 
 
 Cruikshank, U. S. v. 903 
 
 Crump V. C. 882 
 
 R. V. 704 
 
 Cullum, R. t;. 739 
 
 D. 
 
 Daley, C. ;;. 364 
 
 Damon, S. v. 1000 
 
 Damon's Case 893 
 
 Davies, R. v. 821 
 
 Davis, R. V. (14 Cox, 563) 351 
 
 (5 Cox, 237) 928 
 
 U. S. V. 152 
 
 Deane, R. v. 967 
 
 Delaval, R. v. 92 
 
 Dickinson, R. v. 703 
 
 Dobbs's Case 133 
 
 Dodge, S. V. 935 
 
 Dolan, R. v. 801 
 
 Donaldson, S. v. 877 
 
 Doody, R. V. 350 
 
 Drew, C. v. 776 
 
 Dykes, R. v. 363 
 
 E. 
 
 Eckert, C. v. 81 
 
 Edmonds v. S. 510 
 
 Edwards, R. v. (13 Cox, 384) 641 
 
 R. ?;. (8 Mod. 320) 855 
 
 Egan, R. v. 319 
 
 Eggington's Case 
 Elder, P. v. 
 Esop, R. V. 
 
 F. 
 
 Fabian v. Godfrey 
 Faulkner, R. v. 
 Fidling, R. v. 
 Finlayson, R. v. 
 Fitchburg R. R., C. v. 
 Flanagan v. P. 
 Fleener v. S. 
 Flowers, R. v. 
 Foley, R. v. 
 Foster, C. v. 
 Francis, K. v. 
 Franklin, R. v. 
 Fray's Case 
 
 G. 
 
 Gamlen, R. v. 
 Gardner, P. v. 
 
 R. V. 
 Gessert, S. v. 
 Gibney, C. v. 
 Glover v. C. 
 Goodenow, S. v. 
 Goodhall, R. v. 
 Gore's Case 
 Goss, R. V. 
 Gray, R. v. 
 Green, C. v. 
 Grey's Case 
 Grimm v. U. S. 
 
 H. 
 
 Hadley v. S. 
 
 C.v. 
 Halfin V. S. 
 Hall, R. V. (3 C. & P. 409) 
 
 • R. V. (3 Cox, 245) 
 Hall's Case 
 Hands, R. v. 
 Hannon, R. v. 
 Harkins, C. v. 
 Harmon, U. S. v. 
 Harrington, C. v. 
 Hartnett, C. v. 
 Haskins v. P. 
 Hathaway, R. v. 
 Hawkins, R. v. 
 Haynes, R. v. 
 Hays, C. v. 
 Headge, R. v. 
 Hehir, R. v. 
 Hendry v. S. 
 Henry, C. v. 
 Hersey, C. v. 
 Hildebrand v. P. 
 
 Pages. 
 184 
 439 
 371 
 
 37 
 144 
 819 
 572 
 948 
 336 
 229 
 581 
 593 
 747 
 731 
 290 
 473 
 
 351 
 610 
 
 705 
 153 
 65 
 118 
 376 
 757 
 140 
 769 
 820 
 105, 968 
 455 
 178 
 
 465 
 398 
 
 19 
 370 
 715 
 
 98 
 643 
 
 76 
 784 
 287 
 906 
 733 
 938 
 
 73 
 430 
 329 
 743 
 738 
 584 
 387 
 850 
 898 
 524
 
 TABLE OF CASES. 
 
 XI 
 
 Him V. S. 
 Holder, C. v. 
 Holland, R. v. 
 Hollo way, R. v . 
 Holmes's Case 
 Holt, S. V. 
 Hormed v. Hacon 
 Horton, S. v. 
 Hudson, R. V. 
 
 U. S. V. 
 Huggett's Case 
 Hugh, R. V. (Abbr. Plac. 19) 
 
 R. V. (Y. B. 30 & 31 Ed. I 
 Hunt, C. V. 
 
 Hurley, S. v. 
 Hurst, P. V. 
 
 Ingles, S. V. 
 Isaac's Case 
 Ivens, R. v. 
 Ives, S. V. 
 
 I. 
 
 Pages. 
 
 901 
 610 
 
 226 
 
 711 
 
 833 
 
 60 
 
 34 
 
 293 
 
 218 
 
 8 
 
 470 
 
 38 
 
 529) 34 
 
 870 
 
 515 
 
 130 
 
 748 
 
 999 
 
 835 
 
 43 
 
 811 
 
 J. 
 
 Jackson v. C. 155 
 
 S. V. 40 
 
 Jaffe, P. V. 112 
 
 James, C. v. 637 
 
 R. V. 927 
 
 Jennison, R. v. 774 
 
 Johnson v. S. 314 
 
 S. V. 359, 934 
 
 Johnson's Case 821 
 Jones, R. v. (2 Ld. Raym. 1013) 23 
 
 R. V. \2 Str. 1146) 43 
 
 Journeyman-Tailors, R. v. 869 
 
 K. 
 
 Kanavan's Case 89 
 
 Keefer, P. v. 431 
 
 Keenan, S. v. 31 
 
 Kelley, C. v. 958 
 
 Kelly, R. v. 134 
 Kennedy, C. v. (170 Mass. 18) 119 
 
 C. V. (160 Mass. 312) 229 
 
 Kennel v. Church 33 
 
 Kew, R. V. 227 
 
 Kilham, R. v. 750 
 
 King V. P. 95 
 
 C. V. 84 
 
 Knapp, C. V. 416 
 
 Knight, R. v. 151 
 
 Kostenbauder, C. v. 406 
 
 Lafferty, Ohio v. ' 1 
 
 Lannan, C. v. 526 
 
 Lamer, R. v. 789 
 
 Lascelles v. S. 
 Latimer, R. v. 
 Lavender, R. v. 
 Ledgerwood v. S. 
 Ledginham, R. v. 
 Lee Kong, P. v. 
 Leigh's Case 
 Leighton, v. P. 
 Le Mott's Case 
 Leonard, C. v. 
 Lester, C. v. 
 Levett's Case 
 Lewis, In re 
 
 S.v. 
 Libby, S. v. 
 Lindsey v. S. 
 Linkhaw, S. v. 
 Little, R. V. 
 Lombard's Case 
 Loud, C. V. 
 Lovell, R. V. 
 Lowrey, C. v. 
 Lucas, S. V. 
 Lynn, R. v. 
 Lyons, R. v. 
 
 M. 
 
 McCarty, S. v. 
 McCord V. P. 
 McDaniel's Case 
 McDonald, C. v. 
 McGowan, P. v. 
 M'Growther's Case 
 M'Naghten's Case 
 Mace, S. v. 
 Macloon, C. v. 
 Madox, R. V. 
 Maher v. P. 
 Malin, Resp. v. 
 Manney's Case 
 Mansfield, R. v. 
 Marshall, C. v. 
 Martin, R. v. (R. & R. 196) 
 
 R. V. (2 Moo. 123) 
 Mash, C. V. 
 Mason v. P. 
 Maud, R. V. 
 Memorandum (Kel. 52) 
 Merry v. Green 
 Meyer, P. v. 
 Middleton, R. v 
 Miller, R. v. 
 Mills, P. V. 
 
 R. V. 
 Mink, C. V. 
 Mitchell V. S. 
 Mitchum v. S. 
 Moore, P. v. 
 
 R. V. 
 
 S.v. 
 Morfit, R. V. 
 
 Pages. 
 
 850 
 148 
 539 
 
 13 
 922 
 108 
 624 
 468 
 819 
 814 
 737 
 368 
 232 
 1001 
 929 
 162 
 
 87 
 671 
 867 
 970 
 641 
 414 
 429 
 
 88 
 820 
 
 909 
 222 
 182 
 107 
 1002 
 362 
 326 
 907 
 166 
 633 
 478 
 111 
 
 52 
 936 
 
 18 
 177 
 211 
 268 
 824 
 
 75 
 409 
 555 
 513 
 656 
 795 
 180 
 7.59 
 300 
 6 
 645 
 446 
 672 
 321 
 702
 
 xu 
 
 TABLE OF CASES. 
 
 
 Pages. 
 
 
 R. 
 
 
 Morly's Case 
 
 469 
 
 
 
 Pages. 
 
 Morrill, C. v. 
 
 220 
 
 Ragg, R. V. 
 
 
 769 
 
 Morris, R. v. 
 
 991 
 
 Randolph, C. v. 
 
 
 127 
 
 Morris Run Coal Co. v. Barclay 
 
 
 Raven, R. v. 
 
 
 623 
 
 Coal Co. 
 
 888 
 
 Ray, C. V. 
 
 
 844 
 
 Morrison, R. v. 
 
 501 
 
 Reed, R. v. (12 Cox, 1) 
 
 382 
 
 Morse v. S. 
 
 320 
 
 R. V. (6 Cox, 
 
 284) 
 
 543 
 
 F.v. 
 
 721 
 
 Renshaw, R. v. 
 
 
 444 
 
 Mucklow, R. V. 
 
 554 
 
 Resolution (And. 
 
 114) 
 
 818 
 
 Mullaly V. P. 
 
 498 
 
 Reynolds v. U. S. 
 
 
 286 
 
 Myers v. S. 
 
 266 
 
 Richards, R. v. 
 
 
 82 
 333 
 
 N. 
 
 
 Richardson, R. v. 
 
 (Leach, 387) 
 
 389 
 
 
 R. V. (6 C. & P. 335) 
 
 794 
 
 Napper, R. v. 
 
 930 
 
 Riley, R. v. 
 
 
 603 
 
 Nelson ;;. Rex 
 
 718 
 
 Ritson, R. V. 
 
 
 840 
 
 New Bedford Bridge, C. v. 
 
 366 
 
 Robins, R. v. 
 
 
 536 
 
 Newbury Bridge, C. v. 
 
 923 
 
 Robinson, R. v. 
 
 
 753 
 
 NichoUs, R. V. 
 
 307 
 
 Roby, C. V. 
 
 
 995 
 
 Noble, S. V. 
 
 937 
 
 Roderick, R. v. 
 
 
 102 
 
 Norris v. Buttingham 
 
 37 
 
 Rogers, C. v. 
 
 
 330 
 
 Norton, C. v. 
 
 782 
 
 P. V. 
 
 
 353 
 
 Nerval, R. v. 
 
 542 
 
 Rothwell, R. V. 
 
 
 477 
 
 Note (Dyer 5 a) 
 
 529 
 
 Rowe, R. V. 
 
 
 569 
 
 (Y. B. 3 Hen. VII. 12) 
 
 528 
 
 Rubin, C. v. 
 
 
 654 
 
 (Y. B. 21 Hen. VII. 14) 
 
 529 
 
 Ruggles, P. V. 
 Ruloff V. P. 
 Ruperes v. Ashby 
 
 
 85 
 
 425 
 
 39 
 
 0. 
 
 
 Russell, S. V. 
 
 
 925 
 
 Olmstead, P. v. 
 
 955 
 
 Russett, R. V. 
 
 
 685 
 
 O'Malley, C. v. 
 
 523 
 
 Ryan, C. v. 
 
 
 550 
 
 P. 
 
 
 
 S. 
 
 
 Pardenton, R. v. 
 
 101 
 
 St. John, C. V. 
 
 
 231 
 
 Parks, P. V. 
 
 402 
 
 Salmon, R. v. 
 
 
 306 
 
 Parsons v. S. 
 
 337 
 
 Schmidt, R. v. 
 
 
 805 
 
 Patterson, S. v. 
 
 223 
 
 Searing, R. v. 
 
 
 487 
 
 Pear, H. v. 
 
 647 
 
 Selway, R. v. 
 
 
 732 
 
 Pearson's Case 
 
 350 
 
 Serne, R. v. 
 
 
 457 
 
 Peaslee, C. v. 
 
 122 
 
 Serra v. Mortiga 
 
 
 917 
 
 Pembliton, R. v. 
 
 141 
 
 Sexton, S. v. 
 
 
 931 
 
 Perkins, C. v. 
 
 928 
 
 Seymour, R. v. 
 
 
 49 
 
 Perrigo, C. v. 
 
 902 
 
 Sharpe, R. v. 
 
 
 274 
 
 Phillips, C. V. 
 
 422 
 
 Sharpless, C. v. 
 
 
 90 
 
 Pierce, C. v. 
 
 309 
 
 R. V. 
 
 
 640 
 
 Pigot, R. V. 
 
 23 
 
 Shaw, C. V. 
 
 
 497 
 
 Plant, R. V. 
 
 989 
 
 Sheppard, R. v. 
 
 
 139 
 
 Poulterer's Case 
 
 852 
 
 Sherras v. De Rutzen 
 
 259 
 
 Powers, R. v. 
 
 609 
 
 Shickle, R. v. 
 
 
 492 
 
 Poyser, R. v. 
 
 635 
 
 Silsbee, C. v. 
 
 
 41 
 
 Pratt, R. V. 
 
 627 
 
 Simmons v. U. S. 
 
 
 986 
 
 Pray, C. v. 
 
 895 
 
 Skerrit, R. v. 
 
 
 415 
 
 Preston, R. v. 
 
 564 
 
 Slattery, C. v. 
 
 
 228 
 
 Prince, R. v. (L. R. 2 C. C. 154) 
 
 275 
 
 Slowly, R. V. 
 
 
 521 
 
 R. V. (L. R. 1 C. C. 150) 
 
 674 
 
 Smith V. P. (53 N 
 
 . Y. Ill) 
 
 652 
 
 Prius, C. V. 
 
 861 
 
 (25 111. 17) 
 
 
 862 
 
 Pywell, R. V. 
 
 858 
 
 C. V. (6 Cush 
 
 .80) 
 
 95 
 
 %* J 
 
 
 (111 Mass. 429) 
 
 735 
 
 
 
 R. V. (1 Stra. 704) 
 
 97 
 
 Q. 
 
 
 (Dears. 559) 
 
 
 135 
 
 Quinn v. P. 
 
 825 
 
 (1 Cox, 260) 
 
 
 365
 
 TABLE OF CASES. 
 
 XUl 
 
 
 Pages. 
 
 
 Pages. 
 
 Smith, R. V. (Dears. 494) 
 
 796 
 
 Tuck, C. V. 
 
 947 
 
 S.v. 
 
 460, 932 
 
 Tucker, C. v. 
 
 836 
 
 V. S. V. 
 
 7 
 
 Tunnard's Case 
 
 632 
 
 Solomons, R. v. 
 
 682 
 
 Turner, R. v. 
 
 856 
 
 Spies V. P. 
 
 432 
 
 Tyrrell, R. v. 
 
 403 
 
 Spurgeon, R. v. 
 
 704 
 
 
 
 Stanley v. S. 
 
 617 
 
 V. 
 
 
 Starin v. P. 
 
 423 
 
 
 Stearns, S. v. 
 
 29 
 
 Vandercomb's Case 
 
 987 
 
 Stedman, R. v. 
 
 473 
 
 Vane's Case 
 
 930 
 
 Steimling, C. v. 
 
 600 
 
 Vaux's Case 
 
 965 
 
 Stephens, R. v. 
 
 252 
 
 Vick V. S. 
 
 386 
 
 U. S. V. 
 
 115 
 
 
 
 Stephenson, C. v. 
 
 823 
 
 
 
 R.v. 
 
 54 
 
 W. 
 
 
 Stevens v. Dimond 
 
 20 
 
 Wade, R. v. 
 
 794 
 
 Steward, C. v. 
 
 822 
 
 Wakeling, R. v. 
 
 758 
 
 Stone, C. V. 
 
 940 
 
 Walker v. S. 
 
 830 
 
 Stonehouse, R. v. 
 
 22 
 
 F.v. 
 
 360 
 
 Stratton, C. v. 
 
 209 
 
 Walsh V. P. 
 
 125 
 
 R. ;;. 
 
 216 
 
 R. V. 
 
 504 
 
 Swindall, R. v. 
 
 390 
 
 Warburton, R. v. 
 
 859 
 
 
 
 Ward V. P. 
 
 607 
 
 T. 
 
 
 Watson, R. v. 
 
 539 
 
 
 Watts, R. V. 
 
 489 
 
 Taylor, C. v. 
 
 69 
 
 Webster, C. v. 
 
 461 
 
 S. V. (70 Vt. 1) 
 
 137, 441 
 
 R.v. 
 
 696 
 
 (3 Dutch. 117) 
 
 494 
 
 Welsh, R. V. 
 
 475 
 
 Taylor's Case 
 
 51 
 
 Wemyss v. Hopkins 
 
 997 
 
 Teischer, R. v. 
 
 67 
 
 West, R. V. 
 
 568 
 
 Thomas, P. v. 
 
 754 
 
 Wheatly, R. v. 
 
 77 
 
 Thompson v. S. 
 
 512 
 
 Whitcomb, C. v. 
 
 783 
 
 C. t'. 
 
 375 
 
 White, C. V. 
 
 445 
 
 R.v. 
 
 473 
 
 R. V. (6 Cox, 213) 
 
 505 
 
 Thristle, R. v. 
 
 625 
 
 (1 F. & F. 665) 
 
 814 
 
 Thurborn, R. v. 
 
 558 
 
 Wilkinson, R. v. 
 
 693 
 
 Tibbits, R. v. 
 
 56 
 
 Willard, C. v. 
 
 404 
 
 Tideswell, R. v. 
 
 688 
 
 Williams, R. v. 
 
 136 
 
 Tinkler, R. v. 
 
 373 
 
 Wilson, R. v. 
 
 927 
 
 Titus, C. V. 
 
 570 
 
 Wing, C. V. 
 
 73 
 
 Tollett, R. V. 
 
 540 
 
 Wispington v. Edlington 
 
 33 
 
 Tolliver, C. v. 
 
 932 
 
 Wody, R. V. 
 
 485 
 
 Tolson, R. V. 
 
 236 
 
 Wolfstein v. P. 
 
 668 
 
 Tomson, R. v. 
 
 454 
 
 Woodward, R. v. 
 
 799 
 
 Topolewski v. S. 
 
 186 
 
 Wright's Case 
 
 209 
 
 Towuley, R. v. 
 
 589 
 
 Wyckoff, S. V. 
 
 157 
 
 Towse, R. V. 
 
 374 
 
 
 
 Traverse, C. v. 
 
 933 
 
 
 
 Trebilcock, R. v. 
 
 707 
 
 Y. 
 
 
 Trono v. U. S. 
 
 980 
 
 Yong's Case 
 
 454
 
 " 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. 
 INTRODUCTORY. 
 
 Aj 
 
 SECTION I. 
 Common Law and Statute. 
 
 OHIO V. LAFFERTY. 
 
 Court of Common Pleas, Ohio. 1817. 
 
 [^Reported Tappan, 81. J 
 
 Lafferty was convicted, on three several indictments, for selling 
 unwholesome provisions. 
 
 Wright, for the defendant, moved, in arrest of judgment "for that \ 
 there is no law of this state against selling unwholesome provisions." -> 
 He observed, that the indictment was bottomed upon the common law 
 of England, which was not in force in this state, it never having been 
 adopted by our constitution, or recognized by our laws or judicial de- 
 cisions. . 
 
 Tappan, President. The question raised on this motion, whether 
 the common law is a rule of decision in this state? is one of very great 
 interest and importance, and one upon which contradictory opinions 
 have been holden both at the bar and upon the bench. 
 
 No just government ever did, nor probably ever can, exist without 
 an unwritten or common law. By the common law is meant those 
 maxims, principles, and forms of judicial proceeding which have no 
 written law to prescribe or warrant them, but which, founded on the f '<' 
 laws of nature and the dictates of reason, have, by usage and custom, 
 become interwoven with the written laws, and, by such incorporation, 
 form a part of the municipal code of each state or nation which has 
 emerged from the loose and erratic habits of savage life to civiUzation, 
 order, and a government of laws. 
 
 For the forms of process, indictment, and trial, we have no statute 
 law directing us ; and for almost the whole law of evidence, in criminal 
 as well as in civil proceedings, we must look to the common law, for 
 
 r
 
 2 OHIO V. LAFFERTY. ^CHAP. I. 
 
 we have no other guide. Can it be said, then, that the common law is 
 not in force when, without its aid and sanction, justice cannot be ad- 
 ministered ; when even the written laws cannot be construed, explained, 
 and enforced without the common law, which furnishes the rules and 
 principles of such construction ? 
 
 We may go further, and sa^^ that not only is the common law neces- 
 sarily in force here, but that its authoFity is superior to that of the 
 written laws ; for it not only furnishes the rules and principles by 
 which the statute laws are construed, but it ascertains and determines 
 the validity and authority of them. It is, therefore, that Lord Hobart 
 said that a statute law against reason, as to make a man a judge in his 
 own cause, was void. 
 
 As the laws of nature and reason are neccssaril}- in force in every 
 community of civilized men (because nature is the common parent, and 
 reason the common guardian of man), so with communities as with 
 individuals, the right of self-preservation is a right paramount to the 
 institution of written law ; and hence the maxim, the safety of the 
 ■^<eople is the supreme ta/o, needs not the sanction of a constitution or 
 statute to give it validity' and force. But it cannot have validit}' and 
 force, as law, unless the judicial tribunals have power to punish all 
 such actions as directlj' tend to jeopardize that safety ; unless, indeed, 
 the judicial tribunals are the guardians of pulilic morals, and the con- 
 servators of the public peace and order. Wliatever acts, then, are 
 wicked and immoral in themselves, and directly tend to injure the 
 community, are crimes against the community, which not onl3' tna//, 
 but must, be repressed and punished, or government and social order 
 cannot be preserved. It is this salutary principle of the common law 
 which spreads its shield over society to protect it from the incessant 
 activity and novel inventions of the profligate and unprincipled, — ■ 
 inventions which the most perfect legislation could not always foresee 
 and guard against. 
 
 But although the common law in all countries has its foundation in 
 reason and the laws of nature, and therefore is similar in its general 
 principles, yet in its application it has been modified and adapted to 
 various forms of government; as the different orders of architecture, 
 having their foundation in utility and graceful proportion, I'ise in vari- 
 ous forms of symmetry and beauty, in accordance with the taste and 
 judgment of the builder. It is also a law of liberty ; and hence we 
 find that when North America was colonized by emigrants who fled 
 from the pressure of monarchy and priestcraft in the old world to enjoy 
 freedom in the new, they brought with them the common law of Eng- 
 land (their mother country), claiming it as their birthright and inher- 
 itance. In their charters from the crown they were careful to have it 
 recognized as the foundation on which they were to erect their laws 
 and governments; not more anxious was vEneas to secure from the 
 burning ruins of Tro}- his household gods, than were these first settlers 
 of America to secure to themselves and their children the benefits of
 
 SECT. I.] OHIO V. LAFFERTY. 3 
 
 the common law of England. From thence, through ever}' stage of the 
 colonial governments, the common law was in force so far as it was found 
 necessary or useful. When the i-evolution commenced, and independ- 
 ent state governments were formed ; in the midst of hostile collisions 
 with the mother countr}', when the passions of men were inflamed, and 
 a deep and general abhorrence of the tyranny of the British govern- 
 ment was felt, the sages and patriots who commenced that revolution, 
 and founded those state governments, recognized in the common law a 
 guardian of liberty and social order. The common law of England has 
 thus alwa^'s been the common law of the colonies and states of North 
 America ; not, indeed, in its full extent, supporting a monarchy, aris- 
 tocracy, and hierarchy, but so far as it was applicable to our more free 
 and happy habits of government. 
 
 Has society been formed and government instituted in Ohio on dif- 
 ferent principles from the other states in this respect? The answer 
 to this question will be found in our written laws. 
 
 The ordinance passed b}- the congress of the United States on the 
 13th of July, 1787, " for the government of the territory of the United 
 States North West of the river Ohio," is the earliest of our written 
 laws. Possessing the Northwestern Territory in absolute sovereignty, 
 the United States, by that instrument, provide for the temporary gov- 
 ernment of the people who ma}' settle there ; and, to use tlie language 
 of that instrument, " for extending the fundamental principles of civil 
 and religious libert}', which form the basis whereon these republics, 
 their laws and constitutions, are erected ; to fix and establish those 
 principles as tlie basis of all laws, constitutions and governments, 
 which forever hereafter shall be formed in the said territor}- ; to pro- 
 vide also for the establishment of states and permanent government 
 therein; and for their admission to a share in the federal councils, on 
 an equal footing with the original states, at as early periods as may be 
 consistent with the general interest," it was ordained and declared, 
 "that the inhabitants of the said territory shall alwat/s be entitled to 
 the benefits of the writ of habeas corpus, and of the trial by jury ; of a 
 proportionate representation of the people in the legislature, and of 
 judicial 2)roceedmgs according to the course of the common law,'^ — -as 
 one of the articles of compact between the original states, and the 
 people and states in the said territory, to remain forever unalterable 
 unless by common consent. Under this ordinance we purchased lands 
 and made settlements in this then Northwestern Territory ; we be- 
 came voluntary parties to this contract, and made it, by our own act, 
 what it was intended to be, " the basis of all our laws, constitutions 
 and govern men*^ " — and thus the common law became here, as it had 
 become in tha eai'liest colonies, the foundation of our whole system 
 of jurisprudence. 
 
 That these articles of compact were of perpetual obligation upon the 
 people and states to be formed in the territory, unless altered by the 
 mutual consent of such states and of the original states, is a position
 
 4 OHIO V. LAFFERTY. [CHAP. I. 
 
 which I have never heard controverted ; yet it may not be useless to 
 advert to express recognitions of it by both the contracting parlies. 
 First, the United States, by the act of congress entitled "an act to 
 enable the people of the eastern division of the territory North West of 
 the river Ohio, to form a constitution and state government, and for 
 the admission of such state into the Union, on an equal footing with the 
 original states, and for other purposes," under the authority of which 
 Ohio became an independent state, authorized the people of said divis- 
 ion to form a constitution and state government, " provided the same 
 shall be republican, and not repugnant to the ordinance of the 13th of 
 July, 1787, between the original states and the people and states of 
 the territory North West of the river Ohio." Section 5th. Second, 
 the people of Ohio, by the preamble to their state constitution, declare, 
 that they ordain and establish that constitution, " consistent with the 
 constitution of the United States, the ordinance of congress of 1787, 
 and the law of congress." 
 
 The common law being a part of the existing system of jurisprudence 
 at the time when the state governuKMit was formed, and its continuance 
 being expressly provided for by the 4th section of the last article or 
 schedule to this constitution, which declares that " all laws and parts 
 of laws now in force in this territory, not inconsistent with this consti- 
 tution, shall continue and remain in full effect until repealed by the 
 legislature." We will next examine the power of this court to en- 
 force it. 
 
 The 1st section of the 3d article of the constitution declares that 
 " the judicial power of the state, both as to matters of law and equity, 
 shall be vested in a supreme court, in courts of common pleas for each 
 county," etc. The 2d section declares that the supreme court "shall 
 have original and appellate jurisdiction, both in common law and 
 chancery, in such cases as shall be directed by law ; " and the 3d 
 section, that "the court of common pleas shall have common law and 
 chancery jurisdiction in all such cases as shall be directed by law." 
 These sections refer to future legislative provision to mark the bound- 
 aries of jurisdiction between the court of common pleas and the 
 supreme court, and to fix their extent ; but they do not refer to such 
 provision to point out the particular wrongs which may be redressed 
 by petition in equit}-, by private suit, or by criminal prosecution. Such 
 has been the uniform construction of these sections by the legislature 
 since the constitution was formed, as must be evident from the fact 
 that no statute law has ever been made or projected to detail those 
 wrongs, private or public, which the judicial tribunals were to redress 
 bv virtue of their chancery powers, or " according to the course of the 
 common law." Such a statute would indeed be a phenomenon, the 
 result of a more perfect legislation than man has yet attained to. 
 
 But it has been urged that the 4th section of the 3d article is the 
 only part of the constitution which gives this court jurisdiction in 
 criminal cases, and that it expressly refers to future statutory provis-
 
 SECT. I.] OHIO V. LAFFERTY. 5 
 
 ion, to point out the cases in which such jurisdiction may be exercised. 
 The language of this section is: "The judges of the supreme court 
 and courts of common pleas shall have complete criminal jurisdiction 
 in such cases, and in such manner as may be pointed out by law." 
 
 The laws in existence at the time when the constitution was formed, 
 November 29, 1802, and the state government commenced (beside 
 those of the United States), were the common law, the statutes of 
 other states adopted b}' the governor and judges of the territory, and 
 the acts of the territorial legislatures, — all which were continued in 
 force b}' the constitution. This section of the constitution, by giving 
 jurisdiction in matters of cnrae, ^' in such cases and in such manner as 
 may be pointed out hy kcw,^' must mean, in such cases and in such 
 "manner as ma}' be now or hereafter pointed out by law ; for it must 
 either intend to give the court jurisdiction according to the then ex- 
 isting laws, or to require of the legislature an immediate and perfect 
 criminal code, and so operate as a repeal of the former. It could not 
 intend the latter, because neither a convention or legislature can ever 
 be construed to have exceeded their power, unless such intent is clearly 
 and positively expressed ; and so far is such intent from being ex- 
 pressed, by the section referred to, that the utmost latitude of con- 
 struction leaves the intent that way ambiguous. It must intend the 
 former : 1. Because the convention who framed the constitution were 
 limited in their powers b\- the ordinance and law of congress ; they had 
 not power to deprive the people of Ohio of the benefit of judicial pro- 
 ceedings according to the course of the common law. 2. Because the 
 convention intended the constitution to be consistent with the ordi- 
 nance and law. 3. Because the constitution expressly continues in 
 force all existing laws. 
 
 Such seems ever to have been the opinion of the legislature of this 
 state ; for the first general assembl}" which sat under the constitution 
 passed an act to fix the extent of jurisdiction in the courts, and gave 
 to the common pleas " cognizance of all crimes, offences, and misde- 
 meanors, the punishment whereof is not capital." Stat. Laws, vol. i, 40. 
 But neither the first or second general assembly deemed it necessary 
 to make any material alteration in the criminal code the}- had received 
 from the territorial government; nor had the state any other criminal 
 laws until the first of August, 1805. And when the state courts super- 
 seded the territorial, they were required, " agreeable to their respective 
 jurisdictions," to "take cognizance of all judgments, causes, and mat- 
 ters whatsoever, whether civil or criminal, that are now pending, unde- 
 termined or unsatisfied," in the territorial courts ; and they were 
 "authorized and required to hear and decide upon the said matters." 
 Stat. Laws, vol. i, 50. In prosecutions at common law, then depending 
 in the territorial courts, the state courts were thus directed to take cog- 
 nizance, to hear and decide upon them, " according to the course of the 
 common law." 
 
 But suppose that the position is a correct one, that the principles of
 
 6 MITCHELL V. STATE. [CHAP. I. 
 
 the commoii law have no force or authority in this state, and what are 
 the consequences ? They are these: thai there are no legal forms of 
 process, of indictments, or trial ; there is no law of evidence, and the 
 statute laws cannot be enforced, but must remain inoperative from the 
 uncertain signification of the terms used in defining criminal ofi"ences. 
 Beside, the constitution gives jurisdiction to this court in criminal 
 matters, " in such cases and in such manner as may he pointed out hy 
 law ; " and as we have no statute pointing out the manner in which 
 such jurisdiction shall be exercised, the consequence follows that it 
 cannot be lawfully exercised in any manner whatever. 
 
 On the whole, therefore, it may be concluded that, were the written 
 laws wholly silent on the subject, the principles and maxims of the 
 common law must, of necessity, be the rule and guide of judicial decis- 
 ion in criminal as well as in civil cases; to supply the defects of a 
 necessarily imperfect legislation, and to prevent " the will of the judge, 
 that law of tyrants," being substituted in the room of kuown and 
 settled rules of law in the administration of justice. 
 
 And that by the ordinance of congress, the constitution and laws of 
 the state, a common-law jurisdiction in criminal cases is established and 
 vested in this court. The motion in arrest is, therefore, overruled. 
 
 The defendant was fined fifty dollars in each case, with costs. 
 
 MITCHELL V. STATE. 
 
 Supreme Coukt of Ohio. 1884. 
 
 [Reported 42 Ohio State, 383.] 
 
 Oket, J.* The following positions are shown by the authorities to 
 be impregnable. 
 
 1. In Ohio, as under the federal government (U. S. v. Hudson, 7 Cr. 
 32 ; U. S. V, Coolidge, 1 Wheat. 415 ; U. S. v. Britton, 108 U. S. 
 197) we have no common-law offences. No act, however atrocious, 
 can be punished criminally, except in pursuance of a statute or ordi- 
 nance lawfully enacted. This proposition was not established without 
 prolonged discussion. In Ohio y. Lafferty, Tappan, 81 (1817), it was 
 held in an able opinion by Judge Tappan, that common-law crimes are 
 punishable in Ohio; but Judge Goodenow, a member of this court 
 under the former constitution, in his work entitled " Historical Sketches 
 of the Principles and Maxims of American Jurisprudence, in Contrast 
 with the Doctrines of the English Common Law, on the Subject of 
 Crimes and Punishments," (1819), completely refuted the soundness of 
 
 1 Only so much of the case as discusses the province of the common law in Ohio is 
 given.
 
 SECT. I.] UNITED STATES V. SMITH. 7 
 
 that view, and it is now perfectly well settled that Ohio v. Lafferty is 
 not law. Key v. Vattier, 1 Ohio, 132, 144 ; Winn v. State, 10 Ohio, 
 345 ; Vanvalkenburgh v. State, 11 Ohio, 404; Allen v. State, 10 Ohio 
 St. 287, 301 ; Smith v. State, 12 Ohio St. 466, 469 ; Knapp v. Thomas, 
 39 Ohio St. 377, 385. 
 
 2. In order that this statement may not mislead, it is proper to say, 
 that while the rule is well settled that a statute defining a crime and 
 prescribing punishment therefore must be strictly construed (Denbow 
 V. State, 18 Ohio, 11 ; Hall v. State, 20 Ohio, 1 ; Shultz v. Cambridge., 
 38 Ohio St. 659) ; still, where the legislature, in defining a crime, adopts 
 the language employed by writers of i-ecognized authority in defining 
 the crime at common law, the presumption is that it was intended the 
 commission of acts which at common law would constitute such crime, 
 should constitute a crime under the statute, and the statute will be so 
 construed. Accordingly it was held in Ducher o. State, 18 Ohio, 308, 
 that where the defendant obtained entrance into a house by fraud, with 
 intent to steal, he entered "forcibly;" and, on the same principle, it 
 was held in Turner v. State, 1 Ohio St. 422, that where, b}- putting a 
 person in fear, money is taken, not from his person, but from his 
 presence, the money being under his immediate control, the crime of 
 robbery is shown, within the meaning of the statute which punishes 
 taking money " from the person of another." ^ 
 
 UNITED STATES v. SMITH. 
 
 Circuit Court of the United States. 1792. 
 
 [Repoit 6 Dane's Abridgment, 718], 
 
 Four indictments at common law against the defendants for counter- 
 feiting bank bills of the Bank of the United States, passing them, and 
 having tools to counterfeit, etc. Smith was found guilty of passing 
 bank bills of the said bank, counterfeited. 
 
 1 See to the same effect, Hartford v. State, 96 Ind. 461 ; Estes v. Carter, 10 la. 400 ; 
 Pitcher v. People, 16 Mich. 142 ; Ex parte Meyers, 44 Mo. 279 ; State v. De Wolfe, 
 67 Neb. 321 ; State v. Gaunt, 13 Or. 115. In a few states the crime must not only 
 be made punishable but must also be defined by statute : Williams v. State, 18 Ga. 
 356 ; State v. Young, 55 Kan. 349. 
 
 The criminal law of England was adopted by statute in Texas. Chandler v. State 
 2 Tex. 305. But it is now provided that no act shall be a crime unless it is so provided 
 by statute. Ex parte Bergen, 14 Tex. App. 52. 
 
 In Louisiana the common law has also been adopted by statute ; but the legislature 
 must declare and define all crimes. State v. Gaster, 48 La. Ann. 636. — Ed.
 
 8 UNITED STATES V. HUDSON. [CHAP. 1. 
 
 Parsons moved in arrest of judgment, because there was no federal 
 statute on the subject ; hence only an offence at common law ; and the 
 state courts exclusively have jurisdiction of these offences. 
 
 The Court held, the act incorporating the bank of the United States 
 was a constitutional act, and that bj^ the Constitution of the United 
 States the federal courts had jurisdiction of all causes or cases in law 
 and equity, arising under the said constitution and laws of the United 
 States; that this was a case arising under those laws, for those bills 
 were made in virtue thereof, though there was no statute describing or 
 punishing the offence of counterfeiting them ; and therefore to counter- 
 feit them was a contempt of and misdemeanor against the United 
 States, and punishable by them as such. 
 
 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^ Attorney-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 jurisdic*^^ion in 
 criminal cases. We state it thus broadly because a decision on a case 
 of libel will appl3' to every case in which jurisdiction is not vested in 
 those courts b^- statute. 
 
 Although this question is brought up now for the first time to be 
 decided b}' this court, we consider it as having been long since settled 
 in public opinion. In no other case for man}' 3ears 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.
 
 SECT. I.] UNITED STATES V. HUDSON. 9 
 
 The course of reasoning which leads to this conclusion 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 expressl}' 
 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 bj- 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 immediatelj' from the Con- 
 stitution, and of which tlie legislative power cannot deprive it. All 
 other courts created b}- 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 tliat such 
 jurisdiction has not been conferred b}' any legislative act, if it does not 
 result to those courts as a consequence of their creation. 
 
 And such is the opinion of the majorit}' 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 proprietj" can it assume to itself 
 a jurisdiction much more extended, in its nature ver}- 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 onl}' 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 necessarilj" 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 b}' 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 many 
 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 may communicate certain implied powers to the general govern- 
 ment, it would not follow that the courts of that government are vested 
 with jurisdiction over any particular act done b}' an individual in sup- 
 posed violation of the peace and dignity of the sovereign power. The
 
 10 BARKER V. PEOPLE. [CHAP. I. 
 
 legislative authorit}- of the Union must first make an act a crime, affix 
 a punisbnieut to it, and declare the court that shall have jurisdiction 
 of the offence. 
 
 Certain implied powers must necessanl}' 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 tine for contempt, 
 imprison for contumacy, enforce the observance of order, etc., are 
 powers which cannot be dispensed with in a court, because the\' 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 eases we are of opinion is not 
 within their implied powers.^ 
 
 BARKER V. PEOPLE. 
 Court of Erkors, New York. 1824. 
 
 [Reported 3 Cowen, 686.] 
 
 Error to the Supreme Court. In February, 1822, Jacob Barker, 
 the plaintiff in error, was indicted in the Court of General Sessions of 
 the Peace, of the city and county of New York, for sending a challenge 
 to David Rogers to fight a duel. The indictment contained five counts ; 
 the first four of which alleged the offence to have been committed by 
 Barker in the cit}^ of New York, on various days, in the months of 
 Januar\- and Februar}', 1822, " against the form of the statute in such 
 case made and provided," being founded on the act " to suppress 
 duelling," passed the 5th of November, 1816. The fifth count was for a 
 similar offence at common law. The plaintiff in error was tried on the 
 indictment, at the Court of General Sessions, held in the city of New 
 York, in Ma}', 1822. The jur\' rendered a general verdict of guiltv, 
 and the District Attornej' having entered a nolle prosequi on the fifth 
 count (for the offence at common law), the Court, thereupon, gave 
 judgment that the plaintiff in error, "for the offence aforesaid, as 
 charged in the first, second, third, and fourth counts of the said indict- 
 ment, whereof he is convicted, be incapable of holding, or being elected 
 to any post of profit, trust, or emolument, civil or military, under the 
 State of New York." 
 
 A writ of error was brought, on this judgment, to the Supreme Court, 
 which, in January term, 1823, affirmed the judgment of the General 
 
 1 The common law defines the terms and prevails in all questions except jurisdiction 
 to punish for crimes, U. S. v. Carll. 105 U. S. 611. 
 
 The common law as to crime prevails in the District of Columbia. Tyner t'. U. S . 
 23 App. D. C. 324. — Ed.
 
 SECT. I.] BARKER V. PEOPLE. 11 
 
 Sessions. {Vide 20 John. Rep. 457 S. C, which contains the reasons 
 assigned to this Court in support of the judgment.) ^ 
 
 Sanford, Chancellor. The first section of the act of the fifth of 
 November 1816, to suppress duelling, prescribes, that "the person 
 convicted shall be incapable of holding or being elected to any post 
 of profit, trust, or emolument, civil or military, under this state : " 
 and the objection now made is, that this punishment is inconsistent 
 with the constitution. 
 
 The constitution of the United States provides that cruel and unusual 
 punishments shall not be inflicted. The power of the legislature in 
 the punisliment of crimes is not a special grant, or a limited authority 
 to do any particular thing, or to act in any particular manner. It is a 
 part of " the legislative power of this state," mentioned in the first 
 sentence of the constitution. It is the sovereign power of a state 
 to maintain social order by laws for the due punishment of crimes. It 
 is a power to take life, and liberty, and all the rights of both, when the 
 sacrifice is necessary to the peace, order, and safety of the community. 
 This general authority is vested in the legislature, and it is one of the 
 most ample of their powers, its due exercise is among the highest of 
 their duties. When an offender is imprisoned, he is deprived of the 
 exercise of most of the rights of a citizen ; and when he suffers death, 
 all his rights are extinguished. The legislature have power to prescribe 
 imprisonment or death as the punisliment of any offence. The rights 
 of a citizen are thus subject to the power of the state in the punishment 
 of crimes ; and the restrictions of the constitution upon this, as upon 
 all the general powers of the government, are, that no citizen shall be 
 deprived of his rights, unless by the law of the land or the judgment of 
 his peers, and that no person shall be deprived of life, liberty, or 
 propert}', without due process of law. 
 
 The constitution has, in one case, limited punishment. When an officer 
 of the state is convicted upon impeachment, the judgment cannot ex- 
 tend farther than removal from office and disqualification to hold office. 
 This provision stands here a restriction, not an authority. As the pun- 
 ishment is not to extend farther than removal and disqualification, the 
 sense of the terms, and the known course of proceedings in the country 
 from wliich we derive the history and practice of impeachments, both 
 show that this provision is a mere limitation of a greater power, a 
 power to inflict other punishments, as well as removal and disqualifica- 
 tion. Impeachments of public officers, a peculiar species of accusation 
 made and tried in a peculiar manner, are to extend no farther in their 
 eff'ect than to discharge an officer from his trust, and to render him 
 incapable of holding office ; but if the cause for which the officer is thus 
 punished is a public offence, he may be also indicted, tried, and pun- 
 ished according to law ; the constitution leaving the definition of the 
 ofl"ence and its particular punishment in this case, as in all the others, 
 
 1 Arguments of counsel and parts of the opinion of the court are omitted.— Ed.
 
 12 BARKER V. PEOPLE. [CHAP. I. 
 
 to the general power of the legislature. This part of the constitution 
 concerning judgment on impeachments is therefore a limitation of the 
 power of the court for the trial of impeachments, and not a restriction 
 upon the general power of the legislature over crimes. 
 
 The power of the state over crimes is thus committed to the legisla- 
 ture without a definition of anj- crime, without a description of any 
 punishment to be adopted or to be rejected, and without an}- direction 
 to the legislature concerning punishments. It is, then, a power to pro- 
 duce the end by adequate means ; a power to establish a criminal code, 
 with competent sanctions; a power to define crimes and prescribe 
 punishments by laws in the discretion of the legislature. 
 
 But though no crime is defined in the constitution, and no species of 
 punishment is specially forbidden to the legislature, yet there are nu- 
 merous regulations of the constitution which must operate as restrictions 
 upon this general power. The whole constitution must be supported, 
 and all its powers and rules must be reconciled into concord. A law 
 which should declare it a crime to exercise any fundamental right of the 
 constitution, as the right of suffrage, or the free exercise of religious 
 worship, would infringe an express rule of the S3'stem, and would there- 
 fore not be within the general power over crimes. Particular punish- 
 ments would also encroach upon rules and rights established by the 
 constitution. Though the legislature have an undoubted power to 
 prescribe capital punishment and other punishments which produce a 
 disability to enjo}' constitutional rights, 3et a mere deprivation of 
 rights would, even as a punishment, be, in many cases, repugnant to 
 rules and rights expressly established. Many rights are plainly ex- 
 pressed, and intended to be fundamental and inviolable in all circum- 
 stances. A law enacting that a criminal should, as a punishment for 
 his offence, forfeit the right of trial by jury, would contravene the 
 constitution ; and a deprivation of this right could not be allowed in 
 the form of a punishment. Any other riglit thus secured, as universal 
 and inviolable, must equally prevail against the general power of the 
 legislature to select and prescribe punishments. These rights are se- 
 cured to all ; to criminals as well as to others ; and a punishment 
 consisting solely in the deprivation of such a right would be an evident 
 infringement of the constitution. Any punishment operating as an 
 infringement of some rule thus expressl}' established, or some right 
 thus expressly secured, would be unconstitutional ; and all punishments 
 which do not subvert such rules and rights of the constitution are 
 within the scope and choice of the legislative power. 
 
 But while many rights are consecrated as universal and inviolable, 
 the right of elegibility to office is not so secured. It is not one of the 
 express rules of the constitution, and is not declared as a right, or men- 
 tioned in terms as a principle, in any part of the instrument. 
 Important as this right is, it stands, as the right to life itself stands, 
 subject to the general power of the legislature over crimes and 
 Dunishments.
 
 SECT. 1.] LEDGERWOOD V. STATE. 13 
 
 It has been strong!}- urged that the power to prescribe this species 
 of punishment may be abused. That such a power may be abused 
 cannot be denied, since all power entrusted to men is subject to abuse. 
 Tlie power to declare crimes and prescribe punishments is high, indefi' 
 nite, and discretionary, and therefore affords ample room for abuse. 
 Yet the legislature by their acts, instead of anj' tendency to severit)', 
 show a strong disposition to mildness in the use of their power over 
 crimes and punishments. That disqualification to hold public trusts 
 M'ill become a frequent punishment seems not probable ; the legis- 
 lature having hitherto adopted this punishment only in the two 
 cases of briber}- and duels. But whatever may be the danger of abuse, 
 the punishment itself is not unconstitutional. The remed}' for abuse of 
 the legislative power, in enacting laws which maj- be unwise, while they 
 are not unconstitutional, is not in tlie courts of justice. It is found in 
 other parts of the system, in frequent elections and in the due course 
 of the legislative power itself, which alike enacts and repeals laws in 
 pursuance of public opinion. That this punishment is little consonant 
 to the genius of our institutions ; that there is an ample choice of pun- 
 ishments for crimes witiiout adopting this ; that the electors and the 
 appointing powers should enjoy their free choice for public stations, 
 without legal exclusions even for crimes, are reasons of great force; 
 but they are reasons upon which the legislature must decide. 
 
 My opinion upon the whole case is. that the punishment of incapac- 
 ity to hold office, prescribed by the act to suppress duelling, is 
 not inconsistent with the constitution ; and that this cause has been 
 rightly determined by the courts through which it has passed. 
 
 Bowman, Burt, Clark, Dudley, Earll, Gardiner, Height, 
 Lynde, Mallory, M'Call, M'Intyre, Redfield, Sudam, Thorn, 
 Ward, Wooster, and Wright, Senators, concurred. 
 
 Ogden, Senator, dissented. 
 
 LEDGERWOOD v. STATE. 
 Supreme Court of Indiana. 1893. 
 [Beported 134 Ind. 81]. 
 
 McCabe, J. — The appellant was convicted by the Circuit Court on 
 a plea of guilty on an indictment charging him and Samuel Harbin with 
 arson, and each was sentenced to the State's prison for the period of 
 seventeen years, and the court fined each of them one hundred dollars, 
 and rendered judgment accordingly. The appellant alone appeals. 
 
 The errors assigned are : 
 
 1 and 2. That the indictment does not state facts sufficient to con.' 
 stitute a public offence. 
 
 •3. That the court had no jurisdiction of the subject.
 
 14 LEDGERWOOD V. STATE. [CHAP. I. 
 
 4. That the court had no jurisdiction over the person of appellant. 
 
 5. That there was error in overruling appellant's motion to be 
 discharged. 
 
 6. That there was error in permitting the state to file counter-motions 
 and affidavits to appellant's motion for discharge. 
 
 7. That there was error in overruling the motion to strike out parts 
 of said counter-affidavits. 
 
 8. That there was error in overruling appellant's motion in arrest of 
 judgment. 
 
 9. That there was error in overruling appellant's motion for a new 
 trial. 
 
 There were two counts in the indictment. Therefore, if either count 
 was sufficient, there was no error in overruling the motion in arrest ot 
 judgment. Bryant v. State, 106 Ind. 549. 
 
 The first count reads as follows, omitting the formal part: " Tiiat 
 Bazil Ledgerwood and Samuel Harbin, on the 7th day of October, 
 1891, at and in the county of Daviess, in the State of Indiana, did 
 then and there unlawfully, wilfully, maliciousl}', and felonious!}' set on 
 fire and attempt to burn down and destroy the count}- court-house, 
 situate in the city of Washington, in Daviess county, in the State of 
 Indiana, which county court-house was then and there the property 
 of Daviess county, and then and there of the value of fifty thousand 
 dollars." 
 
 We think this count is sufficient in its statement of the facts consti- 
 tuting the ofl!'ence defined by section 1927, R. S. 1881, as amended by 
 the act approved March 9Lh, 1891, lo withstand a motion in arrest. 
 Acts 1891, p. 402. 
 
 It is insisted by appellant's coimsel that the latter act is invalid, 
 because it does not define the crime of arson, and in support of that 
 contention they cite the statute which provides that "Crimes and mis- 
 demeanors shall be defined and puuislmient therefor fixed by statutes 
 of this State, and not otherwise." Section 237, R. S. 1881. 
 
 This statute was enacted in 1852 as the second section of an act 
 entitled " An act declaring the law governing this State " approved 
 May 31st, 1852. Section G05, 1 R. S. 1876. All that part of the act 
 relating to what laws were in foi'ce, and especially that part adopting 
 the English common law, with certain exceptions, had substantially 
 been in force in this state before. Indeed, the English common law, 
 with the exceptions mentioned, had been adopted in this state as far 
 back as the year 1795 by the Governor and judges of the then Terri- 
 tory, and that provision was substantially reenacted by the Territorial 
 Legislature in 1807, and has been substantially reenacted at every 
 revision of our statute since that time. Stevenson v. Cloud, 5 Blackf. 
 92. But in the act of 1852, above leferred to, the provision as to tlie 
 definition of crimes and misdemeanors was added for the first time, 
 it being the first provision of the kind ever adopted in this state. 
 
 In support of their construction of the statute above cited, appellant's
 
 SECT, l] LEDGERWOOD V. STATE. 15 
 
 counsel cite Rosenbaum v. State, 4 Ind. 599 ; Smoot v. State, 18 Ind. 
 18 ; State v. President, etc., Ohio, etc., R. R. Co., 23 Ind. 362 ; State v. 
 Johnson, 69 Ind. 85 ; Stephens v. State, 107 Ind. 185. 
 
 We have examined these cases, and find them not at all in point, for 
 reasons so obvious that further comment on them is unnecessar3-. 
 
 The appellant's attorneys further seek to support their contention by 
 citing Hackney v. State, 8 Ind. 494; Jennings r. State, 16 Ind. 335; 
 and Marvin r. State, 19 Ind. 181. It must be conceded that these 
 cases all directly support appellant's contention, and hold that a 
 statute tliat does not define a public offence with some degree of 
 minuteness is void because not in conformity to the first statute above 
 quoted. But these cases, and others like them, were all overruled by 
 this court in Wall v. State, 23 Ind. 150. That case has been followed 
 by an unbroken line of decisions by this court until the present time. 
 But the ground upon which Fkazer, Judge, speaking for the whole 
 court, placed the decision in that case, has given rise to some confu- 
 sion as to the real condition of our criminal code. That able jurist in 
 that case said " That the Legislature can not in such a matter impose 
 limits or restrictions upon its own future action, and that when two 
 statutes are inconsistent, the last enactment stands as the law, are ver}* 
 plain propositions, which we presume will never be controverted. It 
 follows that the act of May 31st, if in conflict with the act of June 10th 
 (which was the date of the enactment of the criminal code of 1852), 
 is so far repealed by the latter act. To hold that the legislature may, 
 b}- mere exercise of legislative power, say what a future legislature 
 may or ma}' not do, would be but to declare that the whole legis- 
 lative power of the government maj- be lawfully annihilated, and the 
 government summarily brought to an end by the action of one of its 
 departments." 
 
 While the principle thus announced was correct in the abstract, yet 
 it was not applicable to the case, and did not furnish the true and real 
 reason that made the conclusion reached in the case sound and good 
 law. The court went on to hold, that inasmuch as the statute above 
 quoted was enacted before the criminal statute then in question was 
 enacted, which it was complained did not define the crime sufficiently ; 
 that the last act, the criminal statute, in so far as it conflicted with the 
 first, operated as a repeal of the statute above quoted. 
 
 As before stated, this decision has been followed by a large number 
 of cases in which the same reason is given for the ruling, and, finally-, 
 in Hood v. State, 56 Ind. 263, and Ardery v. State, 56 Ind. 328, it was 
 held that the section of the statute above quoted was repealed by the 
 act creating crimes and misdemeanors. And though that section has 
 not since been reenacted by the legislature, and the decisions of 
 this court in Hood v. State, s'/pra, and Ardery v. State, sitpra, have 
 not been overruled, this court has, in Jones v. State, 59 Ind. 229, and 
 Stephens i\ State, 107 Ind. 185, said of this section, that "That pro- 
 vision of law still continues in force." Other cases, perhaps, make the
 
 16 LEDGERWOOD V. STATE. [CHAP. I. 
 
 same declaration. How such a conclusion is reached neither of the 
 learned judges, Howk and Niblack, delivering the opinions, respec- 
 tively, in those cases, tells us. The truth is, the long line of cases 
 culminating in the two cases in 56 Ind., supra, not being overruled, 
 and the statute therein held to be repealed, never having been reenacted, 
 it is difficult to see how it still remained in force. 
 
 In the case in 107 Ind., supra, Niblack, J., cites in support of the 
 opinion Hackne}' v. State, supra, which, as we have seen, had long 
 before been overruled, and, as we now hold, correctly overruled. The 
 inevitable result is, if the statute mentioned has been repealed, as this 
 court held in the cases in 56 Ind., supra, it makes a great difference 
 in our criminal law. With that statute repealed, instead of public 
 offences being, as is generally supposed, of statutory creation exclu- 
 sively, we have all common-law offences as well as those of statutory 
 origin as parts of our criminal law. 
 
 Such a result as that, it is well understood, is very undesirable with 
 the courts, the legal profession, and the people. This undesirable 
 result has been brought about by assigning a wrong reason for a right 
 decision, in Wall v. State, supra, and following that reason to its 
 legitimate result in the subsequent cases. The section of the statute 
 in question was never intended, by the legislature that enacted it, to 
 place a restriction upon the action of future legislatures, or even upon 
 itself, as to the manner of defining crimes and misdemeanors. This 
 is apparent when we take into consideration the history of the whole 
 act in which this provision is found and the evils sought to be remedied 
 b}- the provision. 
 
 As we have already seen, that part of the act adopting the English 
 common law, which was enacted by the Governor and judges of th*- 
 Indiana Territory in 1795, and reenacted in all the revisions of ou^ 
 statutes substantially as it now is, until 1852, and then for the firs' 
 time the provision in question was added to that act. Prior to that 
 time the common law as to crimes and misdemeanors was in force, 
 because it was so enacted by adopting the common law by the legisla- 
 tive authority of the state without exeception of limitation as to crimes* 
 and misdemeanors. State v. Bertheol, 6 Blackf. 474. 
 
 It was undoubtedly the intention of the legislature in 1852, by add- 
 ing the provision under consideration to the act adopting the commou 
 law, to adopt a new and different system of criminal law from that 
 which had formerly prevailed ; it was the intention to modify the act 
 adopting the common law so as not to adopt that part of it relatino; 
 to crimes and midemeanors. It was the evil of the common law as to 
 criminal offences which were so great in number, and sometimes very 
 shadowy and unsubstantial, imposing upon the people and the courts 
 the necessity of wading through volumes of abstruse learning to ascer- 
 tain what acts were criminal that the legislature proposed to rid the 
 people of. Tliat could be, and was, accomplished by not adopting the 
 common law as to crimes and misdemeanors. It was desirable and 
 necessary to the public weal to adopt the common law as to other
 
 SECT. I.J LEDGERWOOD V. STATE. 17 
 
 subjects. Therefore, the intention as to public offences was made 
 manifest and effectual by adding the provision to the act adopting 
 the common law that " crimes and misdemeanors shall be defined, 
 and punishment therefor fixed, by statutes of this state and not 
 otherwise." "" 
 
 Jt was not for the purpose of securing a more minute definition of 
 crimes and misdemeanors than the common law afforded, that this pro- 
 vision was added, but it was to get rid of common-law offences entirely 
 bj- not adopting that part of the common law. If the common law. 
 had not been adopted at all, in whole or in part, the provision in ques- 
 tion would have had no significance or force whatever. Because, if no 
 part of the common law had been adopted, the provision in question 
 would have been the law without being enacted. If there was no 
 common law of any kind in force, crimes and misdemeanors must, 
 of necessity, be defined and punishment therefor fixed by statutes; 
 of this state and not otherwise. Tlicrefore, this provision was only 
 made necessar}' to secure a purely statutory' criminal code because 
 of the adoption of the common law. This view of the provision 
 relieves it from the charge that it sought to trammel future legis- 
 latures, requiring of them any degree of minuteness in defining crimes ; 
 indeed, no act subsequent to that, however vague and general in its 
 definition of public offences, is at all inconsistent with that act; on the 
 contrar3', all such acts are in harmony with it. It has been held, and 
 we think properly under that statute, that the crime may be designated 
 by the statute without an}- definition, and the punishment fixed, and 
 the courts would define the crime by the aid of common-law definitions, 
 and the general import of the language employed. Hedderich v. State, 
 101 Ind. 564; State v. Berdetta, 73 Ind. 185. 
 
 We think, therefore, it was error to hold that the enactment of 
 criminal statutes without specifically defining the crimes designated 
 therein repealed the provision in question or even modified it. And 
 while a proper conclusion was reached in each of the two cases in 
 56 Ind., supra, and the cases leading up to them, yet the}' were placed 
 on wrong grounds, and so far as they hold that the provision in ques- 
 tion bad been repealed or modified, they are overruled, and we ad- 
 judge that said provision is still in force, unrepealed and unmodified. 
 And, therefore, that we have no common-law offences in Indiana, and 
 that tiie statute under which this prosecution is waged, which reads 
 as follows : " whoever wilfully and maliciously burns or attempts to 
 burn an}' dwelling-house or other building, finished or unfinished, occu- 
 pied or unoccupied, whether the building be used or intended for a 
 dwelling-house or any other purpose ; " . . . " the property so burned 
 or attempted to be burned, being of the value of twenty dollars or 
 upwards, and being the propert}' of another, ... is guilty of arson, 
 and upon the conviction thereof shall be imprisoned in the state prison 
 not more than twenty-one years, nor less than one year, and fined not 
 exceeding double the value of the property burned, ..." is not invalid 
 for indefiniteness.
 
 18 COMMONWEALTH V. MARSHALL. [CHAP. L 
 
 COMMONWEALTH v. MARSHALL. 
 
 Supreme Judicial Court of Massachusetts. 1831. 
 
 [Reported 11 Pick. 350. | 
 
 At April terra 1831 of this Court, in the countA' of Franklin, the 
 defendants were indicted for a misdemeanor in disinterring a dead body 
 on the 20th of Februaiy 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. 
 
 Shaw, C. J., delivered the opinion of the Court. This indictment 
 cannot be maintained, consistently with the decision of the Court last 
 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 tlie 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, revives 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, 
 S 6, that of 1814 was repealed without any saving clause. The act 
 charged upon the defendants as an offence was done after the passing
 
 SECT. I.] HALFIN V. STATE. 19 
 
 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 
 the 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. 
 
 HALFIN V. STATE. 
 Court of Appeals of Texas. 1878. 
 [Reported 5 Tex. App.2l2.] 
 
 Winkler, J. The appellant is prosecuted by information in the 
 County Court, and was convicted on a charge of having violated the 
 provisions of the act of the legislature of 1876, entitled "An act to 
 prohibit the sale, exchange, or gift of intoxicating liquors in any 
 county, justice's precinct, cit}', or town in this state that may so elect ;" 
 prescribing the mode of election, and affixing a punishment for its 
 violation, — commonly known as the local-option law. Acts 1876, 
 p. 26. 
 
 It is not disputed that, prior to the alleged commission of the offence 
 charged against the appellant, Caldwell County had, by vote in accord- 
 ance with the provisions of the act, declared that liquors should not 
 be sold in the count}' except as authorized bj* the act aforesaid. But 
 it is insisted on in behalf of the appellant that, since this prosecution 
 was commenced, another election has been held in the county under the 
 provisions of the act in question, by which it was determined that the 
 act should no longer be enforced so as to prohibit the sale of liquors in 
 the count}' ; and that the effect of this last election is to relieve from 
 prosecution and punishment those who had, prior thereto, been accused 
 of violating its provisions. 
 
 It is provided, in the third section of the act, for the holding of a 
 special session of the Commissioners' Court, for the purpose of open- 
 ing the polls and counting the votes, and directing that " if a majority 
 of the votes cast are for prohibition, said court shall immediately make 
 an order declaring the result of said vote, and absolutely prohibiting 
 the sale of intoxicating liquors within the prescribed bounds (except 
 for the purposes specified in section 1 of this act) until such time as 
 the qualified voters therein ma}', at a legal election held for the purpose, 
 by a majority vote decide otherwise." The section goes on to prescribe 
 the manner of making publication of the result and the order of 
 prohibition. 
 
 We are of opinion that the words in the third section, "until such 
 time as the qualified voters therein may, at a legal election held for the
 
 20 STEVENS V. DIMOND. [CHAP. L 
 
 purpose, b}' a raajorit}' vote decide otherwise," must be construed as 
 an authorit}- giving the voters interested an opportunity to decide — 
 after the expiration of twelve months, mentioned in the fourth section 
 — by vote whether the prohibition named in the first section shall be 
 longer continued or not, and that a majorit}- vote at this second elec- 
 tion would annul, from the time it is held and the result declared and 
 published, the jn-ohibition provided for in the first section of the act. 
 
 It being made to appear that the second election contemplated in 
 the act has been held, and that it has resulted in a majority vote 
 against prohibition, we are of opinion that there is no law now in force 
 in Caldwell County by which persons who may be charged under the 
 act can lawfull}" be punished. 
 
 " The repeal of a penal law, when the repealing statute substitutes 
 no other penalty-, will be held to exempt from punishment all persons 
 who have offended against the provisions of said repealed law, unless 
 it be declared otherwise in the repealing statute." Penal Code, art. 15 
 (Pose. Dig., arts. 16, 17) ; Montgomery v. The State, 2 Texas, Ct. App. 
 618. 
 
 There being no law now in force in Caldwell County to punish oflfen- 
 ders against the local-option law, since its annulment by the second 
 vote of the county against prohibition, the judgment will be reversed 
 and this prosecution will be dismissed. Beversed and dismissed. 
 
 STEVENS V. DIMOND. 
 Superior Court of Judicature, New Hampshire. 1833. 
 [Reported 6 N. H. 330.] 
 
 This was a writ of error brought to reverse a judgment of the court 
 of common pleas in this county. 
 
 It appeared by the record, that Stevens brought an action of debt 
 against Dimond upon the statute of June 17, 1811, entitled '• an act to 
 authorize towns to make by-laws to prevent horses, etc., from going at 
 large," and upon a by-law made by the town of Hawke, on the 9th 
 Marcli, 1830, '-that if any horse, horse kind, etc., shall be found going 
 at large from and after the first day of April until the last day of 
 October, in any street, highway, or common in said town, the owner 
 thereof shall, for each and every offence forfeit and pay the sum of 
 four dollars, with costs of suit, to any person who may sue for the 
 same, to be recovered in an action of debt, etc., unless such horse, 
 etc., shall be going at large without the knowledge or negligence of the 
 owner or owners." 
 
 It was alleged in the declaration that Dimond, on the 11th May, 
 1830, at Hawke, let one mare and one colt, he being the owner thereof, 
 go at large in a certain highway in said Hawke, witb his own knowl- 
 edge and consent, contrary to the form and effect of the law aforesaid.
 
 SECT. I.] STEVENS V. DIMOND. 21 
 
 The defendant pleaded that he did not owe in manner and form as 
 alleged, and the cause was tried in the common pleas, at October term, 
 1831, when the plaintiff proved the making of the by-law, and that the 
 mare and colt of the defendant were, on the II May, 1830, at large, 
 with his consent, in a highway in Hawke ; but the court directed the 
 jury that the said by-law being in force for a year only, from the time 
 of making thereof, and having expired by its own limitation, the 
 plaintiff could not sustain his action. The jury having returned a ver- 
 dict for the defendant, a bill of exceptions to the directions of the court 
 to the jury was filed and allowed, and this writ of error brought. 
 
 Richardson, C. J., delivered the opinion of the court. 
 
 The action, the judgment in which is now before us, was founded as 
 well upon the statute which authorized towns to make by-laws, as upon 
 the by-law, and it was necessary to allege in the declaration, that the 
 offence was committed as well against the form of the statute, as against 
 the form of the by-law. 1 Chitty's PI. 358 ; 3 Pickering, 462, Com- 
 monwealth V. Worcester ; 5 ditto, 44, Commonwealth v. Gay. 
 
 The statute, on which that action was founded, still remains in force; 
 and the by-law has never been repealed by the town. 
 
 But the court below were of opinion that the by-law expired with the 
 year by its own limitation, and ceased to be in force. And if this be 
 correct, it is clear that the verdict was right ; for after a law ceases to 
 be in force no penalty can be enforced, nor punishmem, "inflicted for 
 violations of the law while it was in force. 
 
 The question, then, is, did the by-law in this case cease to be in force 
 after the year, so that no action for a penalty incurred under it can now 
 be maintained? 
 
 There is nothing in the by-law itself which, in express terms, declares 
 it sb-^U not be in force after the year. When the period it was intended 
 to regulate expired, it, without doubt, ceased to be a rule to regulate 
 what was done afterwards. But did it cease to be the law of that 
 
 period ? 
 
 In many cases statutes that are repealed, or that cease to be in force 
 by their own limitation, continue to be the law of the period when they 
 were in force. It is, however, settled, that this is not the case with 
 laws inflicting penalties. When these expire by their own limitation, 
 or are repealed, they cease to be the law in relation to the past as well 
 as the future, and can no longer be enforced in any case. No case is, 
 however, to be found in which it was ever held before that they thus 
 ceased to be law, unless they expired by express limitation in them- 
 selves, or were repealed. ,It has never been decided that they cease to 
 be law merely because the time they were intended to regulate had ex- 
 pired. Many laws have been passed which were limited in their opera- 
 tion to particular seasons of the year. This was the case with the 
 statutes which regulated the hunting of deer, and the taking of fish in 
 rivers and ponds. But it is imagined that n-) one ever supposed that 
 those laws expired by their own limitations every time the season they
 
 22 REX V. BEOWN. [CHAP. I. 
 
 were intended to regulate expired, and revived again with the return 
 of the season. The same is the ease with the statutes regulating the 
 observance of the sabbath. The statutes apply only to one day in the 
 week. But we imagine no person will contend that they remain in force 
 only during Sunday. 
 
 So we have a statute which prohibits the publication of the revised 
 laws within the period of ten j'ears from a certain time under a penalty. 
 It seems to us that no one would seriously suppose that a penalty in- 
 curred under that statute could not be enforced after the expiration of 
 the ten years. 
 
 A very little consideration of the subject will convince any one that 
 a limitation of the time to which a statute is to apply, is a very different 
 thins: from the limitation of the time a statute is to continue in force. 
 
 We are, therefore, of opinion, that the instructions given to the jury 
 by the court below were incorrect, and that the judgment must be re- 
 versed. 
 
 SECTION II. 
 
 Nature of Crime. 
 
 REX V. STONEHOUSE. 
 King's Bench. 1696. 
 [Reported 3 Salk. 188.] 
 
 Indictment against Elizabeth Stonebouse, for that she, intending to 
 deprive Henry Bradshaw of several sums of money, did falsely and 
 maliciously accuse him of felony and of robbing her. 
 
 This indictment was adjudged ill, because it was for a fact not 
 indictable, it not being laid by way of conspiracy, so as to make it 
 a public crime ; and it being only a private wrong the party hath his 
 remedy by action on the case. 
 
 KEX V. BROWN. 
 
 King's Bench. 1696. 
 
 {Reported^ Salk. 189.] 
 
 The justices made an order, that the defendant should pay Stephen 
 Paine, a taylor, 11. for work done ; which he (the defendant) refusing 
 to do, was indicted. 
 
 But it was quashed, for 't is a matter not indictable.
 
 SECT. II.] REGINA V. JONES. 23 
 
 REX V. BRADFORD. 
 
 King's Bench. 1698. 
 
 [Reported 3 Sdk. 189.] 
 
 The defendant was indicted for not curing the prosecutor of an 
 ulcerated throat, as he had agreed and undertaken to do. 
 
 Quashed, for 't is no public offence, and no more in effect than an 
 action on the case. 
 
 REX V. PIGOT. 
 
 King's Bench. 1701. 
 
 [Reported 12 Afod. 516] 
 
 He was convicted upon an indictment for misdemeanor in attempt- 
 ing forcibly to carry awa}' one Mrs. Hescot, a woman of great fortune. 
 
 Lord Holt, C. J. Sure this concerns all the people in England that 
 would dispose of their children well. 
 
 And he was fined two hundred marks, and the lady's maid, who was 
 priv}' to the contrivance, was fined twenty marks, and to go to all the 
 courts with a paper upon her, with her ofl!ence writ in large characters. 
 
 EEGINA V. JONES. 
 Queen's Bench. 1704. 
 
 [Reported 2 Ld. Raym. 1013.] 
 
 Mr. Parker moved to quash an indictment. It is, that the defend- 
 ant came to J. D. and pretended to be sent to him by F. S. to receive 
 20^. for his use ; whereas F. S. did not send him. This is no crime, 
 and he has remedy by action. 
 
 Lord Holt, C. J. It is no crime unless he came with false tokens. 
 Shall we indict one man for making a fool of another? Let him bring 
 his action. 
 
 Powell, J., agreed. Quash it nisi
 
 24 ATCHESON V. EVERITT. [CHAP. I. 
 
 ATCHESON V. EVERITT. 
 
 King's Bench. 1776. 
 
 [Reported 1 Cowp. 382.] 
 
 This was an action of debt upon the stat. 2 Geo. 2, c. 24, sect. 7, 
 against bribery. Plea, Not guilty. Verdict for the plaintiff. 
 
 On behalf of the defendant, it was moved last term, that there might 
 be a new trial ; because a Quaker had been received as a witness on 
 his affirmation ; and it was objected, that this being a criminal cause, 
 his evidence ought not to have been received.^ 
 
 Lord Mansfield, C. J. ... "We come then to this question : Is the 
 present a criminal cause? A Quaker appears, and offers himself as 
 a witness ; can he give evidence without being sworn ? If it is a crimi- 
 nal case, he must be sworn, or he cannot give evidence. 
 
 Now there is no distinction better known than the distinction 
 between civil and criminal law ; or between criminal prosecutions and 
 civil actions. 
 
 Mr. Justice Blackstone, and all modern and ancient writers upon 
 the subject distinguish between them. Penal actions were never yet 
 put under the head of criminal law, or crimes. The construction of the 
 statute must be extended by equit}' to make this a criminal cause. It 
 is as much a civil action, as an action for mone}' had and received. 
 The legislature, when they excepted to the evidence of Quakers in 
 criminal causes, must be understood to mean causes technically crimi- 
 nal ; and a different construction would not only be injurious to 
 Quakers, but prejudicial to the rest of the King's subjects who may want 
 their testimony. The case mentioned by ISIr. Rooke of Sir Watkyn 
 Williams Wynne v. Middleton, VUIe 1 ^Vils. 125. 2 Str. 1227, is a 
 very full authority, and alone sufficient to warrant the distinction 
 between civil and criminal proceedings. In that case the question was, 
 "Whether the stat. 7 & 8 Wm. 3, c. 7, was penal or remedial? The 
 court held it was not a penal statute. But " supposing it was to be 
 considered as a penal statute, yet it was also a remedial law ; and 
 therefore the objection taken was cured by stat. 16 & 17 Car. 2, c. 8." 
 Now the words of exception in that statute, and also in stat. 32 Hen. 
 8, c. 30, and in stat. 18 Eliz. c. 14, are " penal actions and criminal 
 proceedings." But Lord Chief Justice Willes, in delivering the solemn 
 judgment of the court, sa^'s, there is another act which would decide of 
 itself, if considered in the light of a new law, or as an interpretation of 
 what was meant by penal actions in the stat. 16 & 17 Car 2, c. 8. 
 This is the statute of jeofails 4 Geo. 2, c. 26, for turning all law pro- 
 ceedings into English, and it has this remarkable conclusion, "that 
 every statute of jeofails shall extend to all forms and proceedings in 
 
 1 Arguments of counsel and parts of the opinion of the court have been omitted 
 — Ed.
 
 SECT. II.] BANCROFT V. MITCHELL. 
 
 25 
 
 English (except in criminal cases) ; and that this clause shall be con- 
 strued in the most beneficial manner." This is very decisive. 
 
 No authority whatever has been mentioned on the other side, nor any 
 case cited where it has been held that a penal action is a criminal case ; 
 and perhaps the point was never before doubted. The single authority 
 mentioned against receiving the evidence of the Quaker in this case is 
 an appeal of murder, 2 Str. 856. But that is only a different mode of 
 prosecuting an offender to death. Instead of proceeding by indictment 
 in the usual wa}-, it allows the relation to carry on the prosecution for 
 the purpose of attaining the same end, which the King's prosecutio? 
 would have had if the offender had been convicted, namely, execution . 
 and therefore, the writers on the law of England class an appeal of 
 murder in the books under the head of criminal cases. . . . 
 
 In the case of Rex v. Turner, 2 Str. 1219, on a motion to quash an 
 appointment of overseers, the court said, though the prosecution is 
 in the King's name, the end of it is a civil remedy, and very properly 
 allowed the Quaker's affirmation to be road. 
 
 It is extraordinary, that upon all the cases of attachment not one 
 was argued upon the ground of its being a criminal case; and to be 
 sure the exception might as well hold on an affirmation taken to hold 
 to bail ; because it deprives a man of his liberty. The very last 
 attachment for non-performance of an award was obtained in this 
 court upon a Quaker's affirmation, and not a word said by way of 
 objection to it. That was the case of Taylor v. Scott. 
 
 We are not under the least embarrassment in the present case : for 
 there is not a single authorit}- to prove, that upon a penal action 
 a Quaker's evidence ma}' not be received upon his affirmation. There- 
 fore, I am of opinion that Mr. Justice Nares did perfectly right in 
 admitting this Quaker to be a witness upon his affirmation ; and con- 
 sequently that the rule for a new trial should be discharged. 
 
 The three other Judges concurred. 
 
 Rule discharge^ 
 
 'o^ 
 
 BANCROFT v. MITCHELL. 
 
 Queen's Bench. 1867. 
 
 [Reported L. R. 2 Q. B. 549.] 
 
 This was an action for false imprisonment. The plaintiff was arrested 
 while he was protected from arrest on civil suits by an order of the 
 Court of Bankruptcy. The defence was that the plaintiff was arrested 
 on a warrant for failure to obey the order of a magistrate for paying 
 3s. per week for the support of his mother. At the trial the jury found 
 one farthing damages. 
 
 The learned judge, being of opinion that the plaintiff was not protected 
 from arrest, directed a nonsuit, with leave to the plaintiff to move to 
 enter a verdict for 15^. and a farthing.
 
 26 BANCROFT V. MITCHELL. [CHAP. L 
 
 A rule was accordingly obtained.^ 
 
 Blackburn, J. The question which arises under s. 113 of 12 &, 13 
 Vict. c. 106 is, wliether or not the plaintiff was protected by the order 
 of the county court from the process under which he was arrested. 
 That depends upon the nature of the process under which he was 
 arrested and the nature of the process from which the bankrupt is pro- 
 tected. Section 113 relates back to s. 112, which provides that, if a 
 bankrupt be not in prison, he shall be free from arrest in coming to 
 surrender, and after such surrender for such further time as shall be 
 allowed him by the commissioner ; and if he be in prison he may be 
 brought up to be examined or to surrender, and after he has been 
 adjudged a bankrupt and has surrendered and obtained his protection 
 from arrest, if he be in prison or arrested for debt, the Court may order 
 his immediate release. Now, the words of s. 112 are nearly similar to 
 those contained in the bankruptcy acts passed before 12 & 13 Vict. c. 
 106, and the point was considered in Darby v. Baugham, 5 T. R. 209, 
 and the decision of the Court was, that the object of the enactment 
 then in force was to give protection to the same extent, and in the 
 same way, to a bankrupt, as a witness who was going to court to give 
 evidence would receive protection, and therefore a bankrupt's creditors 
 could not arrest him as he was going to surrender. The protection 
 which the bankrupt receives being analogous to that accorded to a wit- 
 ness, the process against which he is protected is in the nature of civil 
 process, but if on the other band the process is in the nature of crimi- 
 nal process he is not protected. 
 
 The question remains, what is the nature of the process under which 
 the plaintiff was arrested? What is it that the plaintiff has done or 
 omitted to do? He is the son of a woman who is chargeable to the 
 parish, and he is of sufficient ability to support her. There was a 
 moral duty on him, but at common law no legal duty, to support her. 
 By statute 43 Eliz. c. 2, s. 7, it is enacted, that the children of every 
 poor person not being able to work, being of sufficient ability, shall, at 
 their own charge, relieve and maintain every such poor person in that 
 manner, and according to that rate, as by the justices shall be assessed, 
 upon pain that every one of them shall forfeit 20s. for every month 
 which they shall fail therein. It was as a punishment for the disobedi- 
 ence of an order made under this section that the plaintiff was arrested. 
 Mr. Williams' argument is that the plaintiff was arrested for not paying 
 a sum of money which he was ordered to pay to the parish, and there- 
 fore it was only for the non-payment of a debt that he was arrested. 
 But the payment of the sum is only one mode by which the plaintiff 
 complies with the statute. The statute makes what was a duty of im- 
 perfect obligation a positive duty. I agree that the fact that an indict- 
 ment will lie for a disobedience of an order of sessions is no reason 
 
 1 Tliis short statement of the facts is substituted for that of the Eeporter. Argu- 
 ments of counsel are omitted. — Ed.
 
 SECT. II.] STATE V. BALDWIN. 27 
 
 that the disobedience should be an offence of a criminal nature. The 
 offence here is that the plaintiff being of ability would not support his 
 impotent relative — that is a duty the neglect of which, though only 
 morally wrong before the statute, is made a crime by the statute. It 
 seems to me, therefore, that the commitment is not in the nature of 
 civil, but of criminal process to punish tlie plaintiff for not performing 
 the duty imposed on him by statute. It is quite true that on payment 
 of the money he would get off the imprisonment, but still it is in the 
 nature of criminal process, and consequently the plaintiff was not 
 entitled to his discharge. He must, therefore, fail to recover the 15/. 
 penalty or the farthing damages which the jury have given him, because 
 he was properly impiisoned as a misdemeanant, and not as a debtor. 
 There was evidence that it was necessary for his health, and for the 
 sake of cleanliness, that his hair and whiskers should be cut, and it 
 was a question for the jury whether there was any excess in this 
 respect, and I think we must take it there was none. 
 
 Mellor, J. I am of the same opinion. I was impressed by the 
 aro-ument of Mr. Williams that whether the plaintiff could be indicted 
 or not for a disobedience of tlie order, was not the test whether the 
 offence was criminal or not. But I have come to the conclusion that 
 the dutv of a son to support his mother, having been originally moral 
 only, was made a positive duty- by the statute, which requires tliat, in 
 the event of the son neglecting that duty, he shall pay such sum as the 
 justices shall order, and then the ultimate enforcement of that duty is 
 carried out by fixing a penalty, and in the event of the nonpayment of 
 that penalty a punishment of not more than three months imprisonment 
 is imposed. That is in the nature of a punishment for a criminal 
 offence. It is not at all analogous to the case of an indictment for dis- 
 obeying an order of sessions for the payment of poor-rates, nor to an 
 attachment for nonpayment of money pursuant to the order of the 
 Court of Chancery, where the process is in the nature of an execution 
 for a del)t. The circumstances of this case show that the imprisonment 
 is a punishment for an offence, and not for enforcing a mere obligation 
 to pay money. The plaintiff, therefore, is not entitled to the penalty 
 for which he sues, nor to the damages the jury have given him ; the rule 
 must be discharged. Hule discharged. 
 
 STATE V. BALDWIN. 
 Supreme Court of North Carolina. 1835. 
 [Reported 1 Dev. 4- Bat. 195] 
 Gaston, J.^ ... The act here charged is not made up of a number 
 of acts frequently repeated, and which cannot be distinctly and spec- 
 ially set forth without inconvenient prolixity. It is an act single and 
 distinct, and committed on a particular occasion. It is charged that 
 
 1 Part of the opinion is omitted. — Ed.
 
 28 STATE V. BALDWIN. [CHAP, I. 
 
 the defendants assembled at a public place, and profanely and with a 
 loud voice cursed, swore, and quarrelled, in the hearing of divers per- 
 sons, and it is alleged, that b}- means thereof a certain singing school 
 then and there kept and held was broken up and disturbed. This pro- 
 fane and loud cursing and quarrelling on that particular occasion^ 
 might have been an anno3ance to those who heard and witnessed it; 
 but it could not have been an annoyance to the citizens in general, 
 unless there were some other facts in the case. If there were such 
 other facts, then these ought to have been set forth; for an indictment 
 must specify all the facts which constitute the offence. It is possible 
 that a fiequent and habitual repetition of acts which singly are but 
 private annoyances may constitute a public or common nuisance. But 
 if so, this frequent and habitual repetition should be appropriately 
 charged. No injurious consequences of an abiding kind, and therefore 
 affecting not simpl3' those present at the commission of the act, but 
 affecting the citizens successively, and as they come within the reach 
 of these consequences, are charged, or can be presumed to have followed 
 from the act. "The singing sch'^ol" is indeed said to have been 
 broken up and disturbed. Of whom that school was composed does 
 not even appear, but whether it consisted of the defendants or of others 
 its interruption cannot be legally pronounced an inconvenience to the 
 whole community. The loss of instruction in the accomplishment, to 
 those who would fain acquire it, does not very gravely influence the 
 good order or enjoyment or convenience of the citizens in general, so 
 as to call for redress on the complaint of the state. 
 
 If we sustain this as an indictment for a common nuisance, we shall 
 be obliged to hold, that whenever two or more persons talk loud or 
 curse or quarrel in the presence of others, it may be charged that this 
 was done to the common nuisance, and if so found, will warrant 
 punishment as for a crime. This would be either to extend the doctrine 
 of common nuisances far beyond the limits within which they have 
 hitherto been confined, or to allow of a vagueness and generality in 
 criminal charges, inconsistent with that precision and certainty on the 
 records so essential as restraints on capricious power, and so salutary 
 as the safeguards of innocent men. 
 
 Independently of the averment ''- to the common nuisance," the 
 indictment contains no criminal charge. No conspiracy is alleged, no 
 special intent or purpose is averred, which would impress an extraor- 
 dinary character on the act done. The persons disturbed are not rep- 
 resented as having been engaged in the performance of any public 
 duty — as engaged in religious worship, attending at an election, or at 
 a court. Upon a demurrer to the indictment, we should be unable to 
 render a judgment for the state. It is our opinion, therefore, that 
 there is no error in the proceedings below, and that the judgment 
 appealed from must be affirmed. 
 
 Per Curiam. Judgment affirmed
 
 SECT. 1I.J STATE V. STEARNS. 29 
 
 STATE V. STEARNS. 
 
 Superior Court of Judicature, New Hampshire. 1855. 
 
 [Reported Si N. H. 106.] 
 
 This is a prosecution against the respondent, for a breach of an 
 ordinance of the city of Portsmouth, regulating bowling alleys, com- 
 menced by a complaint before a justice of the peace.^ 
 
 A warrant was issued upon this complaint, returnable before the 
 poUce court of the city of Portsmouth, and the respondent being there 
 found guilty, took an appeal to the court of common pleas. 
 
 In the court of common pleas, the respondent was ordered to pay 
 the costs of the copies, and entry in that court, to which order he ex- 
 cepted. The respondent demurred to the complaint and declaration in 
 this court, and the court sustained the demurrer and dismissed the 
 complaint. The respondent then moved for costs of this court, and 
 also of the police court, to be taxed against the city of Portsmouth, or 
 the complainant in said prosecution, which motion was refused by the 
 court, and the respondent excepted. 
 
 The penalty to be recovered for the breach of this ordinance is, by 
 law, to be appropriated for such uses as shall be directed by the city 
 council of said city. 
 
 The questions arising upon these exceptions were transferred to this 
 
 court for decision. 
 
 Bell, J. . . . It is contended for the respondent that this proceeding 
 is not in its nature criminal, but is essentially a civil action, falling within 
 the statute rule that " costs shall follow the event of every action or 
 petition, unless otherwise directed by law, or by the court." Rev. Stat, 
 ch. 191, § 1. And first it is said that the form of proceeding by com- 
 plaint is not conclusive that the case is of a criminal nature, and to this 
 position we are inclined to yield our assent ; but we think it very clear 
 that a statute provision prescribing such proceedings in a given case, as 
 are usually made appropriate by the law to criminal cases, is strong 
 evidence that the cases were regarded by the legislature as of a criminal 
 nature. 
 
 We think, too, it may, in general, be justly inferred, where the legis- 
 lature prescribe a course of proceedings adopted by the common law 
 for proceedings of a nature entkely different, that the design of the 
 legislature was to prescribe all the known and usual incidents of the 
 prescribed process, and to give to parties the advantages of proceed- 
 ings in that form. As, if the legislature grant a remedy in assumpsit, 
 where, at common law, trespass would be appropriate, they design that 
 the action of assumpsit shall retain its proper character and rules in 
 that case. 
 
 1 The form of the complaint and part of the opinion of the court are omitted. — Ed.
 
 30 STATE V. STEAENS. [CHAP I. 
 
 Neither does the appropriation of the fine or penalty imposed in a 
 given case, whether it be to the state, count}', or town, or to a corpo- 
 ration, or individual, furnish any decisive test that a proceeding is 
 criminal or civil. When a statute forbids fraudulent mortgages and 
 the concealment of attachable property, it by no means follows, 
 because half the fine is given to the complainant, that the prosecution 
 is civil, nor would it do so if the whole fine were so appropriated. 
 
 The question whether a legal proceeding is to be deemed civil or 
 criminal, or as partaking of the nature of civil and criminal proceed- 
 ings, is to be determined by the consideration whether the law is de- 
 signed to suppress and punish a public wrong, an injury affecting the 
 peace and welfare of the community and the general security, or 
 whether it is designed mainly to afford a remedy to an individual for 
 an injury done to his person or property. Upon this question the ap- 
 propriation of the fine or penalty has a bearing, since, if it is applied 
 to the public use, no idea can be entertained that the proceeding is 
 designed as a remedy for a private loss or injury, though it may some- 
 times have a different tendency, where the amount is appropriated to 
 the use of a suffering party. 
 
 And, in a similar way, the adoption of a course of proceeding usual 
 in criminal cases alone may bear upon the main question before referred 
 to, because, ordinarily, proceedings adapted to the punishment of 
 offences are, to a great degree, unsuitable for the redress of private in- 
 juries. The party injured has no exclusive privilege to institute 
 criminal proceedings ; they are equally open to others ; he has no con- 
 trol over such prosecutions, which are generally managed by the public 
 autliorities ; the fines and penalties are, for the most part, payable 
 to others, and liable to be remitted by the proper officers without 
 reference to his wishes or his interest. 
 
 This present case is one of a prosecution for an offence made penal 
 by a city ordinance, because of its supposed evil consequences to so- 
 ciety. It has no relation to any individual wrong, and the remedy 
 prescribed is such as indicates a criminal proceeding. It is prosecuted 
 by a public officer, as part of his official duty, but might be prosecuted 
 by any other person as well. The fine is payable to the city, but not 
 to compensate any wrong to the corporation. The burden of adminis- 
 terino- justice is here imposed upon counties, cities, and towns, and 
 fines'and forfeitures are payable to them, as the representatives of the 
 public, to aid in defraying this part of the expense of civil government. 
 The case then seems to us to lack all the indicia of a civil action, and 
 to be, in fact, as it appears, a criminal prosecution. 
 
 The court were in error in requiring the costs of the copies and entry 
 to be paid, but the costs were properly disallowed.
 
 SECT. II.] STATE V. KEENAN. 31 
 
 STATE V. KEENAN. 
 
 Supreme Court of Errors of Connecticut. 1889. 
 
 [Reported 57 Conn. 286.] 
 
 Carpenter, J. This is a criminal prosecution for the violation of an 
 ordinance of the city of New Haven. The City Court convicted the 
 defendant, and he appealed to the Court of Common Pleas, criminal 
 side. In the appellate court the defendant's counsel moved to erase 
 the case from the docket on the ground that the alleged offence was not 
 a crime ; and on that motion the case was reserved for the advice of 
 this court. 
 
 The ordinance is as follows : — "no vehicle, or the animals attached 
 thereto, shall stand waiting for employment within ten feet of any 
 cross-walk." Another section prescribes a penalty of not less than one 
 nor more than ten dollars for every violation of the ordinance. The 
 only question 'is w^hether such violation is a crime. 
 
 If the legislature itself had prohibited the act and prescribed the 
 penalty in precisely the same terms, there can be little doubt that 
 the act would be a misdemeanor and might be prosecuted criminally. 
 It cannot be disputed that the legislature in fact granted the power to 
 enact this by-law, and the power has been exercised. Logically it 
 would seem to follow that the by-law should be of the same character 
 and have the same force within local limits as if enacted b}' the 
 legislature. 
 
 The test whether a proceeding is civil or criminal, is to determine 
 whether its purpose is to redress a private or a public wrong. Is the 
 law made to prevent a private injury or a nuisance? 
 
 In Hinman v. Taylor, 2 Conn. 357, which was a prosecution under 
 the bastard}' act, it was contended that because the proceeding was in 
 form criminal it must be regarded as a criminal prosecution ; but the 
 court took a different view. Swift, C. J., held that the proposition 
 that the form of the process decided the character of the action, was 
 repugnant to reason and precedent. " Suppose," he says, " the legis- 
 lature should authorize a forthwith process on a note of hand ; no one 
 will seriously pretend that this would convert an action of assumpsit 
 into a criminal suit. To constitute a criminal suit some punishment 
 must be inflicted in behalf of the state." He evidently regarded the 
 object and nature of the suit as determining the character of the pro- 
 ceeding. Judge HosMER, in the same case, is still more explicit. 
 He says : " The criterion to ascertain a crime is not the mere form of 
 process, but the nature of the act or omission. If it be a violation of a 
 public law, it is a crime or misdemeanor." We find the same doctrine 
 clearly stated in State v. Stearns, 31 N, Hamp. 106.
 
 32 STATE V. KEENAN. [CHAP. I. 
 
 Let lis apply that test. A criminal form of proceeding is clearly 
 authorized, and the act is an offence against the public and not an injury 
 to an individual. The penalty is not in the nature of compensation to 
 the city for an injury sustained, but is designed as a punishment for a 
 wrong done to the community — a wrong prohibited, because it may 
 result in harm or inconvenience to individuals, wiio may or may not 
 be inhabitants of the city. Thus tested the nature of the act as well 
 as the form of process is clearly criminal. 
 
 Two reasons are urged why a criminal prosecution cannot be main- 
 tained and that the motion to dismiss should prevail. First, that the 
 charter expressly provides that an action may be brought for the penalty 
 in the name of the city treasurer, and that consequently that remedy 
 alone must be pursued. But this argument overlooks the object of the 
 bv-law, which is to prevent a nuisance, a matter in its nature criminal. 
 It is no uncommon thing for a statute to authorize an action to recover 
 a penalty incurred by doing a forbidden act, even where a public prose- 
 cution can be sustained, as is the case in all qxi tarn actions. Here 
 not only a civil suit but a public prosecution is authorized in the charter. 
 But to avoid injustice it is expressly provided that ''no person sliall 
 be prosecuted both civilly and criminally for tlie same breach of a 
 by-law." 
 
 In the second place, it is contended that the right of imprisonment to 
 l»erce the payment of a penalty is not expressly given ; and if not 
 tpressly granted, it cannot exist. This argument seems to beg the 
 question by assuming that the sole object of the suit is to collect a 
 penalty for the benefit of the city of New Haven ; whereas the real 
 purpose of the by-law, and consequently of the action, is to suppress a 
 public nuisance. For that purpose there can be no serious objection 
 to putting in operation the power and legal machinery of the state. 
 
 We advise that the motion to dismiss be denied. 
 
 In this opinion the other judges concurred.
 
 SECT. I.] WISPINGTON V. EDLINGTON. 33 
 
 CHAPTER II. 
 THE OFFENCE. 
 
 SECTION I. 
 
 Felonies. 
 
 KENNEL V. CHURCH. 
 
 Cornish Eyre. 1201. 
 
 [1 Selden Soc. 7.] 
 
 OsBERT Church, accused of the death of Roland, son of Reginald of 
 Kennel, on the appeal of the said Reginald, was detained in gaol and 
 defends word b}- word. And Reginald offers proof by the body of a 
 certain freeman, Arkald, who has his daughter to wife, who is to prove 
 in his stead since he has passed the age of sixty. Osbert Church 
 defends all of it. The knights of the hundred of Penwith say that they 
 suspect him of the said death. The knights of Kerrier say the same. 
 The knights of Penwith say the same. The knights of P^'der saj- the 
 same. Judgment : let him purge himself by water. 
 
 And Reginald is in mere}- for he does not allege sight and hearing, 
 and because he has withdrawn himself, and put another in his place, 
 who neither saw nor heard and yet offered to prove it, and so let both 
 Reginald and Arkald be in mercy. 
 
 Osbert is purged by the water.^ 
 
 WISPINGTON V. EDLINGTON. 
 
 Lincolnshire Eyre. 1202. 
 
 [1 Selden Soc. 10.] 
 
 AsTiN of Wispington appeals Simon of Edlington, for that he 
 wickedly and in the king's peace assaulted him in his meadows and 
 put out his eye so that he is maimed of that eye ; and this he offers to 
 prove, &c. Simon comes and defends all of it word by word. And the 
 coronors and the county testifj' that hitherto the appeal has been duly 
 sued, at first by [Astin's] wife, and then by [Astin] himself. 
 
 1 For cases on the modern law of Homicide see Chap. XIII. — Ed.
 
 34 REX V. HUGH. [chap. II. 
 
 Judgment: let law be made, and let it be in the election of the ap- 
 pellee whether he or Astin shall carr}' the iron. He has chosen that 
 Astin shall carry it. Astin has waged the law. Simon's pledges Wil- 
 liam of Laud and his frankpledge and Ralph of Stures. Astin's pledge, 
 Roger of Thorpe, Osgot of Wispington, and William, Joel's brother. 
 
 Afterwards came [the appellor and appellee] and both put themselves 
 in mercy. 
 
 JORDAN DE HORMED v. WALTER HACON. 
 Hertford Eyre. 1198. 
 [1 Rotuli Curiae Regis, 160.] 
 
 Jordan of Hormed appeals Walter Hacon for that in the peace of the 
 king and wickedly in felon}' he assaulted him in his house at Strange near 
 Ikenton, and wounded him in the head and in the hand ; and he shows 
 the wounds and offers to prove it by his body as the court shall 
 consider. 
 
 Walter defends all, word for word, against him as against a champion 
 hired and paid, who twice had started on this course and as often retired 
 without completing it. 
 
 Jordan denies that he is a champion, and pursues his suit against him. 
 
 And a jury of knights testify that on another occasion he had appealed 
 him of the robber}' of a sword and cape of which he now made no 
 mention. 
 
 They are to have a day at Dunstable.^ 
 
 REX V. HUGH, 
 
 Cornish Eyre. 1302. 
 
 [Year Book 30 .J- 31 Ed. I, 529.] 
 
 H. was 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 Justiciar. Brian, we are given to understand that you would 
 have induced the prisoner not to put himself upon the jury which ac- 
 cused him, and you have done ill, but because he is your relative, we 
 
 1 For cases on the modern law of Assault see Chap. XIII., Sect. II. — Bn
 
 SECT. I.J REX V. HUGH. 35 
 
 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 ad- 
 vised by me to refuse his common law. And lest I should be at all 
 suspected of strife, I will withdraw. 
 
 The Justiciar. Ilugli, the presentment is made to us that you 
 carried off, &c., as is set forth; how will you acquit yourself? 
 
 Hugh. My lord, I pray that I may have counsel, lest I be undone 
 in the King's court for lack of counsel. 
 
 The Justiciar. You must know that the king is a party in this case, 
 and prosecutes 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 possi- 
 ble thing, and a thing of your own doing ; so^'ou can well enough, with- 
 out any counsel, answer whether you did it or not. Moreover, the law 
 ought to be general, and applicable 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 3-ou counsel, 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 ; consequent!}- we do not dare grant 3-our request, 
 nor ought you to make it. Therefore, answer. 
 
 Ilngh. My lord, I am a clerk, and ought not to be required to 
 answer except unto my ordinary. 
 
 The Justiciar. Are ^'ou 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 Justiciar. We say that you have forfeited your benefit of 
 clergy, inasmuch as 3'ou 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 juiy. 
 
 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 accused by them ; therefore I shall not agree
 
 36 REX V. HUGH. [chap. II. 
 
 to them. Besides, my lord, I am a knight, and I ought not to be tried 
 except by my peers. ^ 
 
 The Justiciar. Since you are a knight, we are willing tliat yon be 
 judged by your peers. And knights were named; and he was asked if 
 he wished to propound an}' challenges against them. 
 
 Hugh. M3' lord, I do not agree to them ; you shall take whatever 
 inquisition you will ex officio, but I will not agree. 
 
 The Justiciar. Lord Hugh, if you will agi-ee to them, God willing, 
 they will find for you if you will onlj- consent to them. But if 30U will 
 refuse the common law, you will incur the penalty therefor ordained, to 
 wit, " one day you shall eat, and the next da}- you shall drink ; and on 
 the day when 30U drink you shall not eat, and e co7itra ; and 3'ou shall 
 eat barley-bread, and not wheaten-bread, and drink water," &c. ex- 
 plaining many reasons why it would not be well to delaj' at this point, 
 but would be better to agree to tliese. 
 
 Hugh. I will agree to my peers, but not to the twelve b}' whom I 
 am accused; wherefore hear my challenges against them. 
 
 The Justiciar. Willingly ; let them be read ; but if you have any- 
 thing to sa}' wherefore the}' ought to be removed, say it with your own 
 voice or in writing. 
 
 Hugh. 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 tliem and read them. 
 
 The Justiciar. No, for they ought to be proposed by your own 
 mouth. 
 
 Hugh. But I cannot read them. 
 
 The Justiciar. How is tliis, 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 ? 
 
 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 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 
 
 ^ 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 
 judgement 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.
 
 SECT. I.] NORRIS V. BUTTINGIIAM. 37 
 
 we enjoin you by virtue of your oath, tell us whether Lord Hugh ravished 
 the aforesaid woman or not. 
 
 2%e Twelve. We say that she was ravished by force by Lord Hugh's 
 men. 
 
 The Justiciar. 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 T'welve. Consenting.^ 
 
 The Justiciar. Lord Hugh, since they acquit you, we acquit you. 
 
 FABIAN V. GODFREY. 
 Wiltshire Eyre. 1198. 
 
 [Abhreviatio Placitorum, 17.] 
 
 Fabian appealed Godfrey Spilenian's son for that he and Roger his 
 son and Humphrey his man wickedly at night burned his dwelling 
 house ; and this he offers to prove against him as of his own sight, as 
 the court of our lord the king shall determine, considering that he is a 
 man over age. Aud Godfrey defends for himself and his fellows. 
 
 The jurors being asked, said that they do not believe that Godfrey 
 or any of his fellows did this ; and that Fabian is a man who often goes 
 out of his head.^ 
 
 NORRIS V. BUTTINGHAM. 
 
 Strafford Eyre. 1198. 
 
 [1 Rotuli Curice Regis, 205.] 
 
 The jurors say that William Norris appealed William de Buttingham 
 and Robert his son for that in the peace of the king, wickedly and in 
 hamsoke they robbed from him six shillings and sixpence of his chat- 
 tels, and robbed from his possession twent3--four lambs, and broke the 
 doors of his house in his possession, and [robbed from him] chattels 
 to the value of ten shillings ; and this he offers to prove by his body as 
 the court shall consider. 
 
 William and Robert defend all, word by word ; and they say that 
 Maurice held of the said William in fee; and at his death William 
 entered into his fee, and Alexander Fitz-Philip hired of him in the fee 
 
 1 Credo quod deberct hic quod tamen post defuit. — Rep. 
 
 * For cases on the modern law of Arson, see Chap. XVIII. — Ed.
 
 38 LUKE DE BROCHESHEVET V. WALTER DE MAREN, [CHAP II. 
 
 a pasture for twenty-five sheep. And afterwards this William Norris 
 came to that fee and carried away the lambs and put them in another 
 fee and detained them ; so that the said William de Buttingham and 
 Robert his son went to William Fitz-Gerard, serjeant of the hundred, 
 and through him regained possession of the sheep by replevin. And 
 the Serjeant testified to this fact. 
 
 And the whole county testify that men are thus appealed according 
 to their custom. 
 
 It is considered that the appeal against them is null. Judgment: 
 William Norris is amerced for a false appeal, and William and Robert 
 are acquitted.^ 
 
 REX V. HUGH. 
 
 Wiltshire Eyre. 1198. 
 
 \_Abhreviatio Placitorum, 1 9.] 
 
 Robert de Lucy was robbed by Hugh Brien's brother and Nicholas 
 Fitz priest and EUas a relative of Brien's wife, and many others whom 
 the jurors [are unable?] to enumerate, in time of war; and the robbers 
 have not come to the peace of our lord the king. And Brien is out- 
 lawed. And Hugh his brother and Nicholas Fitz-priest and Elias the 
 relative of Brien's wife are to be sought tiirough the county; and 
 unless they appear let them be judged by law of the county.'^ 
 
 LUKE DE BROCHESHEVET v. WALTER DE MAREN. 
 
 Hertford Eyre. 1198. 
 [1 Rotuli Curice Regis, 160.] 
 
 The jurors say that Luke of Brocheshevit appealed Walter of Maren 
 and Godfrey Trenchevent of the theft of a cow. Walter was essoined 
 as beyond sea. And Godfrey does not come. His pledge was William 
 of Maren ; so he is in mercy. 
 
 They say likewise that the said Luke appealed the said Walter for 
 that in the peace of the king, and in felony he stole his wife Felicia 
 and his seal and his chattels to the value of one hundred shillings ; and 
 this he off"ers to prove as the court shall consider. It is to await the 
 coming of the justices.^ 
 
 1 For cases on the modern law of Burglary, see Chap. XVIII. — Ed. 
 
 2 For cases on the modern law of Robbery, see Chap. XIV., Sect. XVII. — Ed. 
 8 For cases on the modern law of Larceny, see Chap. XIV. — Ed.
 
 SECT. II.] REX V. COOK. 39 
 
 HUGH OF RUPERES v. JOHN OF ASHBY. 
 
 Lincolnshire Eyre. 1202. 
 
 [1 Selden Soc. 14.] 
 
 Hugh of Ruperes appeals John of Ashby for that he in the king's 
 peace and wickedly came into his meadows and depastured them with 
 his cattle, and this he offers, etc. And John comes and defends all of 
 it. And whereas it was testified by the sheriff and the coroners, that 
 in the first instance [Hugh] had appealed John of depasturing his 
 meadows and of beating his men, and now wishes to pursue his appeal 
 not as regards his men, but only as regards his meadows, and whereas 
 an appeal for depasturing meadows does not appertain to the crown of 
 our lord the king, it is considered that the appeal is null, and so let 
 Hugh be in mercy and John be quit. 
 
 Hugh is in custody, for he cannot find pledges. 
 
 SECTION II. 
 
 Misdemeanors. 
 
 REX V. COOK. 
 
 Middlesex Sessions. 1696. 
 
 [Reported Comberbach, 382.] 
 
 Upon an indictment setting forth that Sir John Friend and Sir Wil- 
 liam Perkins being attainted and about to be executed at Tyburn for 
 high treason, etc., the defendants, conspiring and intending (as much 
 as in them lay) to justify, or at least to extenuate and lessen tlieir 
 crimes, and to induce his majesty's subjects to believe that they died 
 ratlier as martyrs than as traitors, and to incite the king's subjects to 
 commit the like treasons, they did take upon them to absolve, and did 
 pronounce a form of absolution of them, the said Sir William Perkins 
 and Sir John Friend, without any repentance, or any signs of repent- 
 ance by them given. 
 
 It was proved that the defendants asked the criminals the several 
 questions directed by the rubrick in the office of visitation of the sick, 
 and Mr. Cook pronounced the words of absolution of one of the 
 traitors, Mr. Snatt and one Mr. Collier (who is not now indicted) lay- 
 ing their hands upon his head, and after the words pronounced saying 
 Amen ; and Mr. Collier pronounced the words as to the other traitors, 
 they all three laying on their hands, etc. 
 
 It was proved that the defendants were earnestly requested by Sir 
 William Perkins and Sir John Friend to assist them at the place of
 
 40 STATE V. JACKSON. [CHAP. II. 
 
 execution ; and therefore the ]uvy were directed to acquit them of the 
 conspiracy, though the Attorney General said the indictment was not 
 for conspiracy, and cons^nrantes was put adjectively only to introduce 
 the other matter, and therefore was not material. 
 
 And Holt [L. C. J.] directed the jury that this proceeding of the 
 defendants was certainly scandalous and irregular ; for if the criminals 
 had before made a private confession, the absolution should have been 
 private likewise ; but if they would give a public absolution, they ought 
 to have required as public a confession, and particularly with respect 
 to those crimes for which they were attainted, being so notorious, etc. 
 However, if the jur}- were of opinion that they did it only ignorantly 
 and by mistake (in which case it is properly eonusable in the Spiritual 
 court), then to acquit them ; but if they did it with a design to affront 
 the government, and to vilify the justice of the nation, then to find 
 them guilty. 
 
 But at the instance of the defendant's counsel it was directed to be 
 found specially that Snatt laid his hand on the head, and was assistant 
 while the other pronounced the words of absolution, and afterwards 
 Snatt said Amen (it being laid quod pronuntiaverunt). 
 
 And accordingly the jury acquitted them of the conspiracy, and found 
 Cook guilty of the rest ; and as to Snatt, ut supra} 
 
 STATE V. JACKSON. 
 Supreme Judicial Court of Maine. 1881. 
 
 [Reported 73 Maine, 81.] 
 
 LiBBEY, J. This is an indictment against the defendant for unlaw- 
 fuU}' and wilfully attempting to influence a qualified voter to give in 
 his ballot at a municipal election, in the city of Rockland, bj^ offering 
 and paying him money therefor. 
 
 The offence charged is not within R. S., c. 4, § 67. 
 
 Is bribery at a municipal election a misdemeanor at common law in 
 this state? It is claimed by the learned counsel for the defendant, 
 that it is not recognized as such in this country. We think it is. It 
 was an offence at common law in England. 1 Russell on Crimes, 154 ; 
 Plympton's Case, 2 Ld. Raym. 1377 ; Rex v. Pitt, 3 Burr. 1335. 
 
 The common law of England upon the subject of bribeiy, fraud and 
 corruption at elections, is generally adopted as the common law in 
 this country. Comm. v. Silsbeee, 9 Mass. 417 ; Coinm. v. Hoxey, 16 
 Mass. 385 ; 1 Bish. Crim. Law, 355 ; Walsh v. The People, 65 111., 58 ; 
 State V. Purdy, 36 Wis. 224 ; State v. Collier, 72 Mo. 13 ; People v. 
 Thornton, 32 Hun (N. Y.) 456 ; Comm. of Penn. v. McHale, 97 Pa. 397. 
 
 Bishop in his work on Criminal Law, vol. 1, § 922, says : " We see it 
 to be of the highest importance that persons be elected to carry on the 
 
 1 See Rex v. Noel, Comb. 362 ; Penns. v. Morrison, Add. (Pa.) 274. — Ed.
 
 SECT. II.] COMMONWEALTH V. SILSBEE. 4i 
 
 government in its various departments, and that in every case a suit- 
 able choice be made. Therefore any act tending to defeat these 
 objects, as forcibly or unlawfully preventing an election being held, 
 bribing or corruptly influencing an elector, casting more than one vote, 
 is punishable under the criminal common law." 
 
 Paxon, J., in the opinion of the court in Coram, v. McHale, supra, 
 says : " We are of opinion that all such crimes as especially affect 
 public society, are indictable at common law. The test is not whether 
 precedents can be found in the books, but whether they affect the 
 public policy or economy. It needs no argument to show that the acts 
 charged in these indictments are of this character. They are not only 
 offences which affect public society, but they affect it in the gravest 
 manner. An offence against the freedom and purity of the election 
 is a crime against the nation. It strikes at the foundation of repubi 
 can institutions. Its tendency is to prevent the expression of the v\? 
 of the people in the choice of rulers, and to weaken the public coiT* 
 dence in elections. When this confidence is once destroyed, the end 
 of popular government is not distant. Surely if a woman's tongue 
 can so far affect the good of society as to demand her punishment as a 
 common scold, the offence which involves the right of a free people to 
 choose their own rulers in the manner pointed out by law, is not be- 
 neath the dignit}' of the common law, nor beyond its power to punish. 
 Tiie one is an annoyance to a small portion of the body politic, the 
 other shakes the social fabric to its foundations." 
 
 We have no doubt that bribery at a municipal election is a misde- 
 meanor punishable by the common law of this state. 
 
 An attempt to bribe or corruptly influence the elector, although not 
 accomplished, will submit the oflJ"ender to an indictment. State v. 
 Ames, 64 Maine, 386. 
 
 But admitting that attempting to bribe an elector at a municipal 
 election is an offence at common law, it is claimed b>' the counsel for 
 the defendant that the indictment in this case does not properly charge 
 such oflfence.^ 
 
 J5!xceptions overruled, Judgment for the State?- 
 
 COMMONWEALTH v. SILSBEE. 
 
 Supreme Judicial Court of Massachusetts. 1812. 
 
 [Reported 9 Alassachicsetts, 417.] 
 
 The indictment charged that the defendant, being admitted as a 
 legal voter at the town meeting holden on the eleventh day of March, 
 1811, at Salem, for the choice of town officers, "did then and there 
 
 1 In the subsequent portion of his opinion the learned judge held that this chiira 
 was unfounded. — Ed. 
 
 2 Ace. Taylor's Case, 12 Mod. 314 ; Reg. v. Lancaster, 16 Cox, C. C. 637 ; State v, 
 Davis, 2 Pennew. (Del.) 139 ; State v . Ellis, 33 N. J. Law. 102.
 
 42 COMMONWEALTH V. SILSBEE. [CHAP. II. 
 
 wilfully, fraudulently, knowingly, and designedly give in more than 
 one vote for the choice of selectmen for said town of Salem at one 
 time of balloting ; to the great destruction of the freedom of elections, 
 to the great prejudice of the rights of the other qualified voters in said 
 town of Salem, to the evil example of others in like case to offend, 
 and against the peace and dignity of the Commonwealth aforesaid, and 
 the law of the same in such case made and provided." 
 
 After conviction the defendant moved in arrest of judgment, on the 
 ground of the insutlicieucy of the indictment. 
 
 Dane., for the defendant. Here is no offence charged. The defend- 
 ant put more than one vote for selectmen into the box at one time ; 
 and he might well do this, since not less than three selectmen were to 
 be voted for. 
 
 The offence, if any is described in the indictment, cannot be such 
 by the common law, since that law knows nothing of the office of 
 selectmen. If the offence is created by statute, the indictment ought 
 to conclude contra formam statuti ; and if the conclusion of this be 
 considered so, it belongs to the government to produce the statute 
 against which the offence was committed. But none such can be 
 found ; and the usual punishment applied to the act, that of rejecting 
 the party's vote, is probably all that the government thought necessary 
 or convenient. 
 
 By the Statute of 1795, c. 55, a fine not exceeding twenty nor less 
 than ten dollars was provided for such as should give in more than 
 one vote in the election of State officers. It appears that the Legisla- 
 ture did not contemplate that offence, though of an higher grade than 
 that here intended to be prosecuted, worthy of the severe punishment 
 which may by the common law be imposed on misdemeanors. Indict- 
 ments of this kind are of late origin, which is an argument that they 
 do not lie at common law. 
 
 No fraud is alleged in the indictment ; for as to the general words 
 " fraudulently," &c., they have no operation, being merely formal. 
 
 The Solicitor-General insisted that this was a fraud, upon which the 
 common law would animadvert. It was a direct infringement of the 
 highest political rights of others. The indictment, as to its form, is 
 conformed to the provisions of the statute of 1800, c. 74, respecting 
 the votes to be given for the governor, &c. of the Commonwealth. 
 The mischief is growing in various parts of the Commonwealth, and 
 unless restrained will shortly destroy the purity of our elections, and 
 with that will go our most valued political institutions. 
 
 Curia. There cannot be a doubt that the offence described in the 
 indictment is a misdemeanor at common law. It is a general prin- 
 ciple that where a statute gives a privilege, and one wilfully violates 
 such privilege, the common law will punish such violation. In town 
 meetings every qualified voter has equal rights, and is entitled to give 
 one vote for every officer to be elected. The person who gives more 
 infringes and violates the rights of the other voters, and for this
 
 SECT. II.J RKX V. IVENS. 43 
 
 offence the common law gives the indictment; and the conclusion of 
 the one at bar is proper for the case. 
 
 The defeyidant teas' adjudged to pay a fine often dollars 
 with the costs of prosecution.^ 
 
 REX V. JONES. 
 King's Bench. 1740. 
 [Reported 2 Strange, 1146.] 
 
 He was indicted for not taking upon him tlie office of overseer of the 
 poor, upon a regular appointment ; and on demurrer objected, that as 
 he was to take no oath, and the 43 Miz. c. 2, had inflicted pecuniary 
 penalties for neglect of duty to be recovered in a summary way, lie 
 could not be indicted. 
 
 Sedper Curium, those penalties are for neglect of duty when he is 
 the officer, whereas this indictment says he has obstinately refused to 
 take the office upon him : the disobeying an act of Parliament is indict- 
 able upon the principles of the common law. 
 
 Judgment for the King.^ 
 
 REX V. IVENS. 
 
 Oxford Circuit. 1835. 
 
 [Reported 7 Car. Sf Payne, 213.] 
 
 Indictment against the defendant, as an innkeeper, for not receiv- 
 ing Mr. Samuel Probyn Williams as a guest at his inn, and also for 
 refusing to take his horse. The first count of the indictment averred 
 that the prosecutor had offered to pay a reasonable sum for his lodg- 
 ino-s : and the first and second counts both stated that there was room 
 in the inn. The third count omitted these allegations, and also omitted 
 all mention of the horse. The fourth count was similar to the third, 
 but in a more general form. Plea — Not guilty. 
 
 It was opened by Whitmore, for the prosecution, that the defendant 
 kept the Bell Inn, at Chepstow, and that the prosecutor Mr. Williams 
 had gone there on horseback, on tlie night of Sunday the 14th of April ; 
 and that the defendant and his wife both refused him admittance into 
 
 the inn. 
 
 Godson, for the defendant. — Does your Lordship think that an 
 indictment lies against an innkeeper for refusing to receive a guest? 
 
 1 Ace. Com. V. Hoxey, 16 Mass. 385. 
 
 2 See HuDgerford's Case, 11 Mod. 142.
 
 44 REX V. IVENS. [chap. II. 
 
 I know that an action ma}- be brought against him if he does so ; and 
 such an action was brought against an innkeeper at Lancaster a lew 
 years ago. This is only, at most, a private injury to Mr. Williams, 
 and not an offence against the public. 
 
 Coleridge, J. There can be no doubt that this indictment is sus- 
 tainable in point of law. Mr. Serjeant Hawkins distinctly lays it down 
 that an indictment lies for this offence.^ 
 
 Coleridge, J. (in summing up). The facts in this case do not 
 appear to be much in dispute ; and though I do not recollect to have 
 ever heard of such an indictment having been tried before, the law 
 applicable to this case is this: — that an indictment lies against an 
 innkeeper who refuses to receive a guest, he having at the time room 
 in his house ; and either the price of the guest's entertainment being 
 tendered to him, or such circumstances occurring as will dispense witli 
 that tender. This law is founded in good sense. The innkeeper is not 
 to select his guests. He has no right to say to one, you shall come 
 into my inn, and to another you shall not, as every one coming and 
 conducting himself in a proper manner has a right to be received ; and 
 for this purpose innkeepers are a sort of public servants, they having 
 in return a kind of privilege of entertaining travellers, and supplying 
 them with what they want. It is said in the present case that Mr. 
 Williams, the prosecutor, conducted himself improperly, and therefore 
 ought not to have been admitted into the house of the defendant. If 
 a person came to an inn drunk, or behaved in an indecent or improper 
 manner, I am of opinion that the innkeeper is not bound to receive him. 
 You will consider whether Mr. Williams did so behave here. It is 
 next said that he came to the inn at a late hour of the night, when 
 probably tlie family were gone to bed. Have we not all knocked at inn 
 doors at late hours of the night, and after the family have retired to 
 rest, not for the purpose of annoyance, but to get the people up? In 
 this case it further appears that the wife of the defendant has a con- 
 versation with the prosecutor, in which she insists on knowing his 
 name and abode. I think that an innkeeper has no right to insist on 
 knowing those particulars ; and certainly you and I would think an 
 innkeeper very impertinent, who asked either the one or the other 
 of any of us. However, the prosecutor gives his name and residence; 
 and supposing that he did add the words " and be damned to you," is 
 that a sufficient reason for keeping a man out of an inn who has 
 travelled till midnight? I think that the prosecutor was not guilty 
 of such misconduct as would entitle the defendant to shut him out 
 of his house. It has been strongly objected against the prosecutor 
 by Mr. Godson, that he had been travelling on a Sunday. To make 
 that argument of any avail, it must be contended that travelling on 
 a Sunday is illegal. It is not so, although it is what ought to be 
 avoided whenever it can be. Indeed there is one thing which shows 
 
 1 The evidence is omitted — Ed.
 
 SECT. II.] CROUTHER'S CASE. 45 
 
 that travelling on a Sunday is not illegal, which is, that in many places 
 you pay additional toll at the turnpikes if you pass through them on 
 a Sunday, by which the legislature plainly contemplates travelling on 
 a Sunday as a thing not illegal. I do not encourage travelling on Sun- 
 days, but still it is not illegal. With respect to the non-tender of 
 money by the prosecutor, it is now a custom so universal with inn- 
 keepers, to trust that a person will pay before he leaves an inn, that 
 it cannot be necessary for a guest to tender money before he goes into 
 an inn; indeed, in the present case no objection was made that Mr. 
 Williams did not make a tender ; and they did not even insinuate that 
 they had any suspicion that he could not pay for whatever entertain- 
 ment might be furnished to him. I think, therefore, that that cannot 
 be set up as a defence. It however remains for me next to consider 
 the case with respect to the hour of the night at wliich Mr. Williams 
 applied for admission ; and the opinion which I have formed is, that 
 the lateness of the hour is no excuse to the defendant for refusing to 
 receive the prosecutor into his inn. Why are inns established? For 
 the reception of travellers, who are often very far distant from their 
 own homes. Now, at what time is it most essential that travellers 
 should not be denied admission into the inns? I should say when they 
 are benighted, and when, from any casualty, or from the badness of 
 the roads, they arrive at an inn at a very late hour. Indeed, in former 
 times, when the roads were much worse, and were much infested with 
 robbers, a late hour of the night was the time, of all others, at which 
 the traveller most required to be received into an inn. I think, tliere- 
 fore, that if the traveller conducts himself properly, the innkeeper 
 is bound to admit him, at whatever hour of the night he may arrive. 
 The only other question in this case is, whether the defendant's inn 
 was full. There is no distinct evidence on the part of tlie prosecution 
 that it was not. But I think the conduct of the parties shews that the 
 inn was not full; because, if it liad been, there could liave been no use 
 in the landlady asking the prosecutor his name, and saying, that if 
 he would tell it, she would ring for one of the servants. 
 
 Verdict Guilty. 
 Park, J., sentenced the defendant to pay a fine of 20s.^ 
 
 CROUTHER'S CASE. 
 Queen's Bench. 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 
 » See Rex v. Taylor, Willes, 538 note; Reg v. James, 2 Den. C. C. 1.
 
 46 COMMONWEALTH V. CALLAGHAN. [CHAP. II. 
 
 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 roi)ber3' committed in the night, because they 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 dut}-, 
 upon notice given unto him, presently to pursue.^ And it was said 
 that in every case where a statute prohibits anything, and doth not 
 limit a penalty, the party 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. 
 
 COMMONWEALTH v. CALLAGHAN. 
 General Court of Virginia. 1825. 
 
 [Reported 2 Virginia Cases, 460.] 
 
 This was a case adjourned by the Superior Court of Law of Alleghany 
 County. The case itself is fully set forth in the following opinion of 
 the General Court, delivered by Barbour, J. : — 
 
 This is an adjourned case from the Superior Court of Law for the 
 County of Alleghany. 
 
 It was an information filed against Callaghan and Holloway, two of 
 the justices of Alleghany, alleging in substance the following charge : 
 That at a court held for the county of Alleghany, there was an election 
 for the office of commissioner of the revenue and of clerk of said court, 
 when the defendants were both present, and acting in their official 
 character as magistrates in voting in said election ; that the defendant 
 Callaghan, in said election for commissioner of the revenue, wickedly 
 and corruptly agreed to vote, and in pursuance of said corrupt agree- 
 ment did vote, for a certain W. G. Holloway, to be said commissioner, 
 in consideration of the promise of the defendant Holloway that he 
 would vote for a certain Oliver Callaghan to be clerk of said court ; 
 and that the defendant Holloway in the said election of clerk wickedly 
 and corruptly agreed to vote, and in pursuance of said corrupt agree- 
 ment did vote, for a certain Oliver Callaghan to be said clerk, in con- 
 sideration of the promise of the defendant Callaghan that he would vote 
 for the aforesaid W. G. Holloway to be commissioner. To this infor- 
 mation the defendants demurred generally, and there was a joinder in 
 the demurrer. The Superior Court of Law of Alleghany, with the 
 assent of the defendants, adjourned for novelty and difficulty to this 
 court the questions of law arising upon the demurrer to the informa- 
 tion, and particularly the following, namely : — 
 
 1 See Keg. v. Wiatt, 11 Mod. 53 ; State t;. Haywood, 3 Jones (N. C), 399. 
 « See State v. Parker, 91 N. C. 650. — Ed.
 
 SECT. Il] COMMONWEALTH V. CALLAGHAN. 47 
 
 1. Is there any offence stated in said information for which an infor- 
 mation or indictment will lie? 
 
 2. Is the offence charged in the said information within the true 
 intent and meaning of the Act of the General Assembly entitled " An 
 Act against buying and selling offices," passed Oct. 19, 1792, in page 
 559, 1st vol. Rev. Code of 1819? 
 
 3. If the offence be within the said act, is the information filed in 
 this case a good and sufficient information? 
 
 The first and second questions, for the sake of convenience, will be 
 considered together. 
 
 It is proper to premise that a general demurrer admits the truth of 
 all facts which are well pleaded ; there being such a demurrer in this 
 case, and the information distinctly alleging that the defendants, in 
 giving tlieir votes respectively, acted wickedly and corruptly, such 
 wicked and corrupt motive will be considered throughout as forming a 
 part of the case. 
 
 The court are unanimously of opinion that the case as stated in the 
 information is not within the true intent and meaning of the Act of 
 Assembly referred to in the second question. That act embraces two 
 descriptions of cases : 1. The sale of an office or the deputation of an 
 office ; 2. The giving a vote in appointing to an office or the deputa- 
 tion of office. It would be within the latter description that this case 
 would fall, if within either ; but the court are decidedlj' of opinion that 
 this case does not fall within this description, because the plain con- 
 struction of the statute is that the penalties which it denounces are 
 incurred only l)y those who receive or take, either directl}' or indirectly, 
 any money, profit, &c., or the promise to have any money, profit, &c., 
 to their own use or for their own benefit. In this case it appears from 
 the information that the promise of each of the defendants to the other, 
 which constituted the consideration of the vote of that other, and the 
 vote given in consequence of such promise, inured not to the benefit of 
 the defendants or either of them, but to the benefit of others. If indeed 
 it had been alleged in the information that the persons for whom the 
 votes were given, were, if elected, to have held them upon any agree- 
 ment, that the defendants should in an}' degree participate in their 
 profits or receive from the holders of them any benefit or advantage, 
 the case would have been different, for then the defendants would have 
 received a profit indirectly, and thus would have fallen within the stat- 
 ute ; but there is no such allegation. 
 
 The court being thus of opinion that this case was not embraced by 
 the statute, but at the same time considering that that system of crim- 
 inal jurisprudence must be essentially defective which had provided no 
 punishment for acts such as arc charged in the information, and which 
 merit the reprehension of all good men, were led to inquire whether the 
 acts charged in the information did not constitute an offence at common 
 law ; and they are of opinion that they do. 
 
 In relation to those offences which rise to the grade of felon\' there
 
 48 COMMONWEALTH V. CALLAGHAN. [CHAP. IL 
 
 is usually, particularl}' in the designation of them by name, an accuracy 
 in the definition ; as, for example, murder, burglary, arson, &c., in 
 each of which the term ex vi termini imports the constituent of the 
 offence ; but in the general classification of crimes whatever is not 
 %lony is misdemeanor. In relation to these, then, they are not only 
 umerous but indefinitely diversified, comprehending every act which, 
 ilulst it falls below the grade of felony, is either the omission of some- 
 thing commanded or the commission of something prohibited by law. 
 As to these the law can do no more than lay down general principles, 
 and it belongs to the courts of the country to apply those principles to 
 the particular cases as they occur, and to decide whether the}' are or 
 are not embraced b}- them. Thus the law, as a general proposition, 
 prohibits the doing of any act which is contra bonos mores. The par- 
 ticular acts which come up to this description it is impossible to include 
 in any precise enumeration ; the}- must be decided as the}' occur, b}^ 
 applying this principle to them as a standard. Thus, again, it is now 
 established as a principle that the incitement to commit a crime is itself 
 criminal under some circumstances. 6 P^ast, 464 ; 2 East, 5. As for 
 jxample, the mere attempt to stifle evidence, though the persuasion 
 should not succeed. Cases of this kind may be as various as the vary- 
 ina; combinations of circumstances. 
 
 To come more immediately to the present case, we hold it to be a 
 sound doctrine that the acceptance of ever\- oflSce implies the tacit 
 agreement on the part of the incumbent that he will execute its duties 
 with diligence and fidelity. 5 Bac. Abr. 210, Offices and Officers, Let- 
 ter M. We hold it to be an equally sound doctrine that all officers are 
 punishable for corruption and oppressive proceedings, according to the 
 nature and heinousness of the offence, either by indictment, attach- 
 ment, action at the suit of the party aggrieved, loss of their offices, «&;c. 
 5 Bac. Abr. 212, Letter N. 
 
 And further, that all wilful breaches of the duty of an office are for- 
 feitures of it, and also punishable by fine (Co. Litt. 233, 234), because 
 every office is instituted, not for the sake of the officer, but for the good 
 of another or others; and, therefore, he who neglects or refuses to 
 answer the end for which his office was ordained should give way to 
 others, and be punished for his neglect or oppressive execution. 
 
 Let us apply these principles to the present case. The defendants 
 were justices of the peace, and as such held an office of high trust and 
 confidence. In that character they were called upon to vote for others, 
 for offices also implying trust and confidence. Their duty required 
 them to vote in reference only to the merit and qualifications of the 
 officers, and 3'et upon the pleadings in this case it appears that the}' 
 wickedl}' and corruptl}- violated their duty and betra^-ed the confidence 
 reposed in them, by voting under the influence of a corrupt bargain or 
 reciprocal promise, by which the}' had come under a reciprocal obliga- 
 tion to vote respectively for a particular person, no matter how inferior 
 the qualifications to their competitors. It would seem, then, upon
 
 SECT. II.] REX V. SEYMOUR. 49 
 
 these general principles that the offence in the information is indictable 
 at common law. But there are authorities which api)ly particularly to 
 the case of justices. In 1 Bl. Com. 354, n. 17, Christian, it is said if a 
 magistrate abuse his authority from corrupt motives he is punisliable 
 criminally by indictment or information. 
 
 Again, where magistrates have acted partially, maliciously, or cor- 
 ruptly, they are liable to an indictment. 1 Term Rep. G'J2 ; 1 liurr. 
 556 ; 3 Burr. 1317, 1716, 1786 ; 1 Wils. 7. An instance of their acting 
 partially is that of their refusing a license from motives of partiality, 
 the form of the indictment for which is given in 2 Cliitty's Crim. Law, 
 253. 
 
 We are then of opinion, for the reasons and upon the authorities 
 aforesaid, that the offence stated in the information is a misdemeanor 
 at common law for which an information will lie, but that it is not 
 within the statute referred to. 
 
 In answer to the third question we are of opinion that the informa- 
 tion is a good and sufficient one. 
 
 All which is ordered to be certified to the Superior Court of Law for 
 Alleghany County. 
 
 REX V. SEYMOUR. 
 King's Bench. 1740. 
 
 [Reported 7 Mod. 382.] 
 
 Seymour, Boyce, Blatch, and Duffield attended at the king's bench 
 in order to receive judgment, upon their being found guilty upon several 
 informations.^ 
 
 Chapple, the junior Judge, having attended Baron Carter, who tried 
 the informations, reported to the Court that there were three several 
 informations, one against Seymour, and Boyce, a justice of peace ; 
 another against the same Seymour, and Blatch, a justice of the peace ; 
 and a third against the said Seymour, and Duffield, a justice of the 
 peace. 
 
 1 Ace. Rex v. Chalk, Comb. 396 ; Anon., 6 Mod. 96 ; Reg. v. Buck, 6 Mod. 306 ; 
 Tyner v. U. S., 23 App. D. C. 324, 362 ; People v. Coon, 15 Weud. (N. Y.)277; Com. 
 V. Brown, 23 Pa. Super. Ct. 470. " However reprehensible it may be for a member of the 
 legislature to keep 'open house' for the entertainment of members, where they may 
 partake of ' light refreshments, wine, beer, liquors, and cigars,' it falls short of estab- 
 lishing a case of bribery. A ' bribe ' is defined to be a ' price, reward, gift, or favor 
 bestowed or promised with a view to pervert the judgment or corrupt the conduct of a 
 judge, witness, or other person.' 'To bribe' means 'to give a bribe to a person to 
 prevent his judgment or corrupt his actions by some gift or promise.' To give enter- 
 tainments for the purpose of unduly influencing legislation is wholly bad in morals, but 
 does not constitute the crime of Ijribery." Grant, J., in Randall v. Evening News 
 Ass'n, 97 Mich. 136, 56 N. W. 361.
 
 50 REX r. SEYMOUR. [chap II. 
 
 The offence stated in the information, was matter of extortion used 
 by Seymour and the three justices against several foreigners who were 
 settled in the corporation of Colchester, and wlio had applied to those 
 three justices for licences to sell ale. 
 
 The i)roceeduigs were thus: Seymour and these three justices met in 
 order to grant licences to sell ale ; when the burgesses applied they had 
 their licences upon the common and ordinary terms, but wlien any for- 
 eigner came for a licence, the constables who were stationed to guard the 
 outward door suffered none but the foreigner who applied for a licence 
 to enter into tlie first room, where Seymour was ; and the general ques- 
 tion Seymour put to the foreigner was, Whether he was willing to pay 
 ten shillings for his licence? If he refused he was dismissed, but if he 
 ao^reed to pay it to Seymour his sureties were called, and he was ad- 
 mitted to go along with them into tiie room to the tlu-ee justices, where 
 his recognizance was taken and his licence granted. These informa- 
 tions were tried by three special juries of gentlemen ; the facts charged 
 were very fully proved upon the trial ; and there were above one 
 hundred licences granted at the rate of ten shiUings apiece. 
 
 When Chappie, Justice, had certified as above, Serjeant Price and 
 Mr. Bootle moved, in mitigation of the fines that should be set by the 
 Court, upon several affidavits to shew quo animo the fact was done, as 
 that such fines had been taken for twenty-five years past ; that this 
 whole procedure was by the consent and direction of all the other ruling 
 members of the corporation ; and that the money was applied to public 
 uses, as for repairing bridges, streets, etc. 
 
 The Court suffered the affidavits to be read, though it was opposed 
 by the counsel on the other side. 
 
 The Court. This crime appears upon the informations, and the 
 affidavits for mitigation, to be of a very high nature ; for here are three 
 justices, who are intrusted by the act of Parliament of the 5. & 6. Edw. 
 6, c. 25, with a discretionary power to grant or refuse licences to the 
 persons who apply for them, for each of which the statute allows one 
 shilling. It appears there were several api)lications made for licences, 
 and that the justices granted them to anybody that was willing to pay 
 ten shillings, without any regard to the person, whethei- lie was quali- 
 fied within the intent of the act or not. There was indeed a distinction 
 made Iietween townsmen and foreigners, the latter being obliged to pay 
 much more than the former ; and there is no doubt but that by the by- 
 laws of a corporation, in a great many instances, foreigners may be 
 obliged to pay greater fees than the townsmen, as for the setting up of 
 any trade, etc., but selling of ale is not a trade, or the subject matter of 
 any by-law. Licencing public houses is a trust reposed in justices of the 
 peace by the legislature, and when they execute it in this extraordinary 
 manner, neither the custom of doing it for twent\'-five years before, nor 
 the application of the money to public purposes, nor the consent of the
 
 SECT. II.] TAYLOR'S CASE. 51 
 
 Other ruling members of the borough, can excuse these justices from 
 the censures of this Court. 
 
 Therefore the three justices must be fined one hundred pounds each, 
 and Seymour, who appears to be an agent or instrument to the justices, 
 must be fined one hunch'ed and twenty pounds, viz., the sum of forty 
 pounds on each information. 
 
 The justices and Seymour had in court all the fine money, except 
 one hundred pounds, which they offered to pay. 
 
 But the Court said, Let them be gentlemen of ever so large a fortune, 
 they must pay the whole fine in court or be committed, and checked one 
 of the clerks in court for proposing to undertake for the payment of the 
 one hundred pounds. The justices then paid the three hundred and 
 twenty pounds, and gave their note for the remaining one hundred 
 pounds, which was accepted by the Court as payment.^ 
 
 TAYLOR'S CASE. 
 King's Bench. 1676. 
 
 [Reported 1 Veiitris, 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 only an offence to God and religion, but a crime against the laws, 
 State and government, and therefore punishable in this court (for to 
 say 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 Cliristian 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 pay one thousand marks fine, and to find 
 sureties for his good behavior during life.^ 
 
 1 See Rex r. Roberts, Comb. 193. 
 
 « See State v. Williams. 4 Ire. (N. C.) 400.
 
 52 ANOIS^YMOUS. [chap. IL 
 
 HUGH MANNEY'S CASE. 
 
 Star Chamber. 16. 
 
 [Reported 12 Coke, 101.] 
 
 In an information in the Exchequer against Hugh Manney, Esq., 
 the father, and Hugh Manney, the son, for intrusion and cutting of a 
 great number of trees, in the county of Merioneth, the defendants 
 plead not guilty; and Rowland ap Eliza, Esq., was produced as a 
 witness for the King, and deposed upon his oath to the jurors, that 
 Hugh the father and the son joined in sale of the said trees, and com- 
 manded the vendees to cut them down, upon which the jurors found 
 for the King with great damages ; and judgment upon this was given, 
 and execution had of a great part. 
 
 And Hugh Manney, the father, exhibited a bill in the Star Chamber, 
 at the common law, against Rowland ap Eliza, and did assign the per- 
 jury' in this, that the said Hugh, the father, did never join in sale, nor 
 command the vendees to cut the trees ; and the said Rowland ap 
 Eliza was by all the lords in the Star Chamber convict of corrupt and 
 wilful perjur}'; and it was resolved by all, that it was by the common 
 law punishable before any statute; and altliough that the witness de- 
 pose for the King, yet he shall rather be punished than for another ; 
 for the King is the head and fountain of justice and right ; and he, who 
 perjures himself for the King, doth more offend than if it was in the 
 case of a subject. 
 
 ANONYMOUS. 
 
 Assizes. 1326. 
 [Reported Year Book, 1 Ed. iii. 16, 75/. 7.] 
 
 A MAN was indicted for felony, and put in the stocks ; another comes 
 and enters the house (without breaking the house) and takes him out 
 of the stocks and gets hiin away; and for this act he was arrested and 
 brought before the justices and arraigned, etc., on indictment, and put 
 himself, etc. ; and all this was found by an inquest. 
 
 BouKCHiER, C. J. C. P., said that he should rest in the grace of the 
 King, and have perpetual prison or other punishment according to the 
 King's will. But he should never be hanged, because the principal 
 cause was not tried, nor had the prisoner been attainted ; for he might 
 3'et be acquitted. But it is otherwise when a man is convicted by the 
 inquest on which he has put himself, or by confession, or by the record, 
 or is otherwise adjudged to death; he who rescues such a man 
 shall be hanged, etc.
 
 SECT. II.] ANONYMOUS. 53 
 
 ANONYMOUS. 
 
 King's Bench. 1686. 
 
 [Reported 3 Mod. 97.] 
 
 The defendant was indicted for barratry. The evidence against Iiira 
 was, That one G. was arrested at the suit of C. in an action of four 
 thousand pounds, and was brought before a judge to give bail to the 
 action ; and that tlie defendant, who was a barrister at law, was then 
 present, and did solicit this suit, when in truth at the same time C. 
 was indebted to G. in two hundred pounds, and that he did not owe 
 the said C. one farthing. 
 
 Herbert, C. J., was first of opinion that this might be maintenance, 
 but that it was not barratry, unless it appeared that the defendant 
 did know that C. had no cause of action after it was brought. If a 
 man should be arrested for a trifling cause, or for no cause, this is no 
 barratry, though it is a sign of a very ill Christian, it being against the 
 express word of God. But a man may arrest another thinking that he 
 has a just cause so to do, when in truth he has none, for he may be mis- 
 taken, especially where there have been great dealings between the 
 parties. But if the design was not to recover his own right, but only 
 to ruin and oppress his neighbor, that is barratry. A man may lay 
 out money in behalf of another in suits of law to recover a just right, 
 and this may be done in respect of the poverty of the party ; but if 
 he lend money to promote and stir up suits, then he is a barrator. 
 Now it appearing upon the evidence that the defendant did entertain C. 
 in his house, and brought several actions in his name where nothing 
 was due, he is therefore guilty of that crime. But if an action be first 
 brought, and then prosecuted by another, he is no barrator, though 
 there is no cause for action. 
 
 ANONYMOUS 
 King's Bench. 1688. 
 [Reported Comherhach, 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. 
 
 But per Curiam., Because it appears thej^ 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.^ 
 
 1 See Pocock's Case, 7 Mod. 310 ; Ex parte, The Mayor of Great Yarmouth, 
 1 Cox, C. C. 122.
 
 54 REGINA V. STEPHENSON. [CHAP. U, 
 
 REGINA V. STEPHENSON. 
 
 Crown Case Reserved. 1884. 
 [Reported 13 Q. B. D. 331.] 
 
 Case stated by Hawkins, J. The defendants were convicted upon 
 an indictment cliiirging them with having burnt the dead body of an 
 illegitimate infant child (named George Stephenson) to which the de- 
 fendant Elizabeth Stephenson had recentl}' given birth, with the intent 
 to prevent the holding of an inquest upon it. Counsel for the 
 defendants objected to the sufliciency of the indictment.^ 
 
 Grove, J. This conviction should be affirmed. There are two 
 points raised by the case which has been stated ; first, is it indictable at 
 common law to prevent the holding of a coroner's inquisition? and, 
 secondly, is there enough before us to shew that the coroner had 
 jurisdiction to hold the inquest? 
 
 No case that has been referred to is absolutely' in point, but there are 
 many cases which shew that interference with statutory- duties and the 
 preventing of their performance is a misdemeanor in general at the 
 common law. It is so in cases where statutory provisions are, as here, 
 for the public benefit, and especially where, as here, the matter is one 
 concerning life and death. It is most important to the public that a 
 coroner who on reasonable grounds intends to hold an inquest should 
 not be prevented from so doing. The consequences would otherwise be 
 most formidable, especially in the case, I fear, of 3'oung children, for 
 anyone might prevent the holding of an inquest by the destruction of a 
 dead body with impuuit\', unless it could be proved that the death had 
 been caused by violence. The only evidence might be the examiuation 
 of the body itself. It might be that the only witness of the death was 
 the murderer of the person found dead. To hold it no offence to pre- 
 vent the administration of the law by preventing an inquest being held, 
 unless proof could be given of the cause of death, and that it was a 
 violent cause, would set at nought the protection which there is at 
 present to the public. The inquest is itself an inquiry into the cause 
 of death and the present indictment is framed upon this view, tlie con- 
 trary view involves this proposition, that a coroner should be certain of 
 the cause of death before he ventures to hold his inquest — this is cer- 
 tainly not the law. It is certainl}' not what the statute governing this 
 matter sa^'s. A coroner acts and ought to act upon information, not 
 upon conclusive evidence. He inquires in cases of sudden death where 
 such inquiry- is desirable. Bracton Lib. iii. (De Corona) clu v, and the 
 Mirrour (The Mirrour of Justices, by Home, p. 38), shew that the statute 
 is but an affirmation or confirmation of the common law. In the 
 statute there is nothing about murder, the words are "suddenly dead" 
 
 1 This short statement is substituted for that of the Reporter. — Ed.
 
 SECT. II.] REGINA V. STEPHENSON. 5y 
 
 and the statute requires an examination of the dead body, the whole 
 wording of the statute shews that it is the bodies that are to be ex- 
 amined to find the cause of death. A coroner's inquir}' would be 
 useless if the coroner previously had b}- evidence to satisfy himself of 
 the cause of death. In the present case it appears that there was at 
 the least a reasonable suspicion, and indeed probably more than a 
 reasonable suspicion. The police informed the coroner, the informa- 
 tion came from parties whose business it was to look into these matters, 
 probably the coroner honestly believed the information thus given to 
 him. It is clear to my mind that in holding an inquest the coroner 
 would only in such a case be doing his duty, and in this duty the 
 defendants obstruct him by surreptitiously taking away the body and 
 burning it. Their object was to prevent the inquest ; the case in Mod. 
 Rep. (7 Mod. Rep. Case 15), seems to me in point. In the particular 
 case the death was violent, that either means, appeared to have been a 
 violent one, or it means, was discovered to have been a violent one 
 when the inquest was held, but Lord Holt seems to indicate that the 
 offence was the burying the child before the inquest so as to obsti'uct 
 the inquest. If it is a crime to bury, a fortiori it is one to burn a body, 
 because if you bury, exhumation is possible, but if you burn, the body 
 is destroyed and examination is no longer possible. However, here it 
 is enough to say the coroner had a right to hold the inquest, and the 
 prisoners were wrong in secretly and intentionally burning the body to 
 obstruct him in his duty of holding such inquest. 
 
 Stephex, J. I am of the same opinion. It is a misdemeanor to 
 destroy a body upon which an inquisition is about to be properly held, 
 with intent to prevent the holding of that inquest. This appears from 
 many authorities and from the case in Mod. Rep. (7 Mod. Rep. Case 15). 
 Is it true that it is a misdemeanor to interfere in a case where the 
 coroner is of opinion that an inquest must be held, or is it necessary 
 that the facts should be such that the inquest ought to be held ? This 
 matter is not absolutely covered by authority. In one sense we do 
 create new offences, that is to say, that as a Court we can and do define 
 the law from time to time and apply it to the varying circumstances 
 which arise. In Reg. v. Price, 12 Q. B. D. 247, 248, I said, "it is a 
 misdemeanor to prevent the holding of an inquest which ought to be 
 held by disposing of the body. It is essential to this offence that the 
 inquest which it is proposed to hold is one which ought to be held. 
 The coroner has not absolute right to hold inquests in every case in 
 which he chooses to do so. It would be intolerable if he had power to 
 intrude without adequate cause upon the privacy of a family in distress, 
 and to interfere with their arrangements for a funeral. Nothing can 
 justify such interference except a reasonable suspicion that thei-e may 
 have been something peculiar in the death, that it may have been due 
 to other causes than common illness. In such cases the coroner not 
 only may, but ought to hold an inquest, and to prevent him from doing 
 so by disposing of tiie body in any way — for an inquest must be held
 
 56 REX V. TIBBITS. [chap. II. 
 
 on the view of the body — is a misdemeanor." I say the same thing 
 now, and I concur in my brother Grove's view, indeed any other view 
 would in my opinion be absurd. If a person destroys a dead body or 
 removes it to prevent an inquest being held he is guilty of an offence if 
 the inquest intended to be held was one that might lawfully be held. 
 As has been said in the course of the argument, a man who obstructs 
 an inquest in this way takes his chance of the inquest being one that it 
 was right to hold. It is an obstruction of an officer of justice, it 
 prevents the doing of that which the statute authorizes him to do.^ 
 
 REX V. TIBBITS. 
 
 Court for Crown Cases Reserved. 1901. 
 
 [Reported 1902, 1 K. B. 77.] 
 
 Lord Alverston, C. J.^ This was a case reserved by Kennedy, J., 
 at the last summer assizes at Bristol. Indictments were preferred 
 against two defendants, Charles John Tibbits and Charles Windust. 
 The indictments contained sixteen counts, upon each of which the de- 
 fendants were found guilty. The charges contained in the indictment 
 related to the publication of certain matters in a newspaper called the 
 WeeUy Dispatch, between January 13, 1901, and March 4, 1901 
 (inclusive), and particularly to the issues of that newspaper dated 
 respectively January 13 and February 3, 1901. Prior to the publica- 
 tion of the first article, two persons, named Allport and Chappell, had 
 been charged before the magistrate with offences under the Prevention 
 of Cruelty to Children Act, 1894. Further charges of attempting to 
 murder, and of conspiracy to murder a child named Artliur Bertie 
 Allport, and of a conspiracy to commit the offence against s. 1 of the 
 Prevention of Cruelty to Children Act, 1894, were preferred against 
 them. On February 8 Allport and Chappell were committed to take 
 their trial at the next Bristol Assizes, which had been fixed to com- 
 mence on February 20. Their trial on the indictment for the attempt 
 to murder commenced before Day, J., on March 1, and terminated on 
 March 5. They were found guilty, and sentenced, Allport to fifteen 
 years' penal servitude and Chappel to five years' penal servitude. The 
 publications in the Weekly Dispatch, which formed the subject of the 
 present indictment against Tibbits and "Windust, were statements relat- 
 ing to the case of Allport and Chappell, contained in the issues of the 
 Weekly Dispatch during the hearing of the case against Allport and 
 Chappell before the magistrate, and before and during the trial of these 
 persons at the assizes. It is unnecessary to refer in detail to any of 
 
 1 Concurring opinions of Williams, Mathew, and Hawkins, J.J., are omitted. — Ed. 
 
 2 The opinion only is given : it sufficiently states the case. Part of the opinion is 
 omitted. — Ed.
 
 SECT. II.] , REX V. TIBBITS. 57 
 
 the incriminated articles, of which those of January 13 and February 
 3 were the most important. It is sufficient to say that the publication 
 went far beyond an}' fair and bonajide report of the proceedings before 
 the magistrate. They contained, couched in a florid and sensational 
 form, a number of statements highly detrimental to Allport and Chap- 
 pell. Man}' of these statements related to matters as to which evidence 
 could not have been admissible against them in any event, and pur- 
 ported to be the result of investigations made b}' the "Special Crime 
 Investigator " of the newspaper. Under these circumstances it was 
 contended on behalf of the prosecution that there was evidence upon 
 which the jur}' might properly convict both the defendants on all the 
 counts of the indictment. Upon the ai'gument before us we had no 
 doubt upon the main questions which had been discussed, but, having 
 regard to the nature of the proceedings and the importance of the case, 
 we thought it desirable that we should endeavour to lay down as clearly 
 as possible the law applicable to such a case. Points were raised and 
 argued on behalf of the defendant Windust as distinguished from the 
 defendant Tibbits. It will be convenient to postpone the discussion of 
 those points until we have dealt with the main questions of law raised 
 on behalf of both prisoners. It was not attempted to be argued by 
 Mr. Foote, who appeared as counsel for both defendants, that the pub- 
 lication of such articles was lawful, and that the persons publishing 
 such articles could not be punished. On the contrary, he contended 
 that the publication of such articles was a contempt of Court, and could 
 onh' properly be punished as such either by summary' proceedings or 
 indictment for contempt. He further urged that there was no evidence 
 of any intention on the part of either of the defendants to pervert or 
 interfere with the course of justice, and that any inference which might 
 otherwise be drawn from the contents of the articles, that the}' were 
 calculated to pervert or interfere with the course of justice, was nega- 
 tived by the fact that the defendants Allport and Chappell had been 
 subsequently convicted. That the publication of such articles consti- 
 tuted a contempt of Court and could be punished as such, is viell 
 established. One of the sorts of contempt enumerated by Hardwicke, 
 L. C, in the year 1742, 2 Atk. 471, is prejudicing mankind against per- 
 sons before the case was heard, and he adds these important words : 
 "There cannot be anything of greater consequence than to keep the 
 realms of justice clear and pure that parties may proceed with safety 
 both to themselves and their characters." The case of Rex r. Jolliffe, 
 4 T. R. 285, shews that a criminal information lay for distributing in the 
 assize town, before the trial at Nisi Prius, handbills reflecting on the con- 
 duct of a prosecutor, and, in the course of his judgment in that case. Lord 
 Kenyon made the following very relevant observations, 4 T. R. at p. 298 : 
 " Now it is impossible for any man to doubt whether or not the publica- 
 tion of these papers be an oflTence. Even the charge on the prosecutor 
 would of itself warrant us to grant the information ; but that is a minor 
 oflTence, when compared with that of publishing the papers in question
 
 58 REX V. TIBBITS. • [chap. IL 
 
 during the pendency of the cause at the assizes, and in the hour of trial. 
 It is the pride of the constitution of this countr}- that all causes should 
 be decided by jurors, who are chosen in a manner which excludes all 
 possibilit}' of bias, and who are chosen by ballot, in order to prevent 
 any possibility of their being tampered with. But, if an individual can 
 break down a,x\y of those safeguards which the constitution lias so 
 wiseh' and so cautiously erected, by poisoning the minds of the jury at 
 a time when thej' are called upon to decide, he will stab tlie adminis- 
 tration of justice in its most vital parts. And, therefore, I cannot for- 
 bear saying, that, if the publication be brought home to the defendant, 
 he has been guilty of a crime of the greatest enormity." Again, in the 
 case of Rex v. Fisher, 2 Camp. 563, the printer, publisher, and editor, 
 were convicted for publishing a scandalous, defamatory, and malicious 
 libel, intending to injure one Richard Stephenson, charged with assault, 
 and deprive him of the benefit of an impartial trial, " and to injure and 
 prejudice him in the minds of the liege subjects of our lord the King 
 and to cause it to be believed that he was guilty of the said assault and 
 thereby to prevent the due administration of justice and to deprive the 
 said Richard Stephenson of the benefit of an impartial trial." It was 
 urged on behalf of the defendants that this was an indictment for libel, 
 and that, therefore, it was no authority for the indictment in the present 
 case. But, if the judgment of Lord Ellenborough is examined, it will 
 be noted that the main ground of the judgment is that the publication 
 would tend to pervert the public mind and disturb the course of justice 
 and therefore be illegal, and we cannot doubt that, if the attempt so to 
 do be made, or means taken, the natural effect of which would be to 
 create a wide-spread prejudice against persons about to take their trial, 
 an offence has been committed, whatever the means adopted, provided 
 there be not some legal justification for the course pursued. The case 
 of Rex V. Williams, 2 L. J. (K.B.) (O.S.) 30, is another distinct autho- 
 rity for the same view, in which it was laid down that any attempt 
 whatever to publicly prejudge a criminal case, whether b}' a detail of the 
 evidence or by a comment, or In' a theatrical e:''^''-''*>?n is an offence 
 against public justice and a serious misdemeano ^'^^j' f();)ublication of 
 pi'oceedings publicdy held in a Court of Justice, ''^•V'i"..rrind accurate, has 
 now the protection of the Law of Libel Amendment Act, 1888 (51 & 52 
 Vict. c. 64), s. 3. The law as laid down in the older cases to which 
 we have referred was summarised by Blackburn, J., in Skipworth's Case, 
 L. R. 9 Q. B. 230, at p. 232, and with reference to the objection that 
 the more proper proceeding should be by proceedings for contempt of 
 Court, we would refer to the judgment of the Court in Reg. v. Gray, 
 [1900] 2 Q. B. 36, from which it clearl}' appears that in man}' cases it 
 is preferable to proceed by information or indictment rather than by 
 motion for contempt. We have no doubt whatever that the publication 
 of the articles in this case, at the time when, and under the circum- 
 stances in which the}' were published, constitutes a criminal offence by 
 whomsoever they were published. We think that the facts, which bring
 
 SECT. II.] REX V. TIBBITS. 59 
 
 the incriminated articles within tlie category of misdemeanour, abun- 
 dantl}' appear upon the face of each count, and that, under those circum- 
 stances, it is perfectly immaterial whether the articles be described and 
 charged as libels or contempts or not. With reference to the argu- 
 ment, which was strongly urged, that there was no evidence of any 
 intention to pervert the course of justice, we are clearlj- of opinion, for 
 the reasons given in the authorities to which we have referred, that this 
 is one of the cases in which the intent ma}' properly be inferred from 
 the articles themselves and the circumstances under which they were 
 published. It would, indeed, be far-fetched to infer that the articles 
 would in fact have any effect upon the mind of either magistrate or 
 judge, but the essence of the offence is conduct calculated to produce, 
 so to speak, an atmosphere of prejudice in the midst of which tiie pro- 
 ceedings must go on. Publications of that character have been pun- 
 ished over and over again as contempts of Court, where the legal 
 proceedings pending did not involve trial b}' jury, and where no one 
 would imagine that the mind of the magistrates or judges charged with 
 the case would or could be induced therebv to swerve from the straio;ht 
 course. The offence is much worse where trial by jury is about to take 
 place, but it certainly is not confined to such cases. We further think 
 that, if the articles are in the opinion of the jury calculated to interfere 
 with the course of justice or pervert the minds of the magistrate or of 
 the jurors, the persons publishing are criminally responsible: see Reg. 
 V Grant, 7 St. Tr. (N.S.) 507. We are also of opinion that the fact 
 that Allport and Chappell, the persons referred to, were subsequently 
 convicted can have no weight in the decision of the question now before 
 us. To give effect to such a consideration would involve the conse- 
 quence that the fact of a conviction, though resulting, either whollv or 
 in part, from the influence upon the minds of the jurors at the trial of 
 such articles as these, justifies their publication. This is an argument 
 which we need scarcel}- say reduces the position almost to an absurditv, 
 and, indeed, its chief foundation would appear to be a confusion 
 between the course of justice and the result arrived at. A person 
 accused of crime in this country- can properly- be convicted in a Court 
 of Justice only upon evidence which is legally admissible and which is 
 adduced at his trial in legal form and shape. Tliough the accused be 
 really guilty of the offence charged against him, the due course of law 
 and justice is nevertheless perverted and obstructed if those who have 
 to try him are induced to approach the question of his guilt or inno- 
 cence with minds into which prejudice has been instilled by published 
 assertions of his guilt or imputations against his life and character to 
 which the laws of the land refuse admissibilit}' as evidence. 
 
 We have now only to consider the special points which were taken 
 on behalf of the defendant Windust. . . . 
 
 Conviction Aifflrmed,
 
 60 ^ STATE V. HOLT. " [CHAP. IL 
 
 STATE V. HOLT. 
 
 Supreme Judicial Court of Maine. 1892. 
 
 [Eeported 84 Maine, 509.] 
 
 Walton, J. A wilful and corrupt attempt to prevent the attend- 
 ance of a witness before any lawful tribunal organized for the adminis- 
 tration of justice is an indictable otfence at common law. The essence 
 of the offence consists in a wilful and corrupt attempt to interfere with 
 and obstruct the administration of justice. And when the act and the 
 motive are first directly averred, and then clearly proved, punishment 
 should follow. 
 
 In this case the indictment alleges that the defendant, " well know- 
 ing that one Fred N. Treat had been summoned in due form of law to 
 appear before the Supreme Judicial Court holden at Belfast within and 
 for the county of Waldo, on the thirtieth day of April aforesaid, then 
 and there to give evidence in said court in behalf of the State, and 
 contriving and intending to obstruct the due course of justice, did then 
 and there unlawfullj' and corruptlv prevent, and attempt to prevent 
 the said Treat from appearing at said court to give evidence as afore- 
 said by then and there soliciting, enticing, and persuading the said 
 Treat to become intoxicated, and b}- then and there removing and 
 abducting him, the said Treat, whereby the said Treat did not appear 
 at said court and give evidence," etc. 
 
 It is objected that this indictment is not sufficient, because it does 
 not aver that the witness had been summoned, or that a summons had 
 been issued, or that there was a cause pending requiring the attendance 
 of the witness. 
 
 We do not think that either of these objections can be sustained. 
 
 In State v. Keyes, 8 Vt. 57 (30 Am. Dec. 450), in a well-considered 
 opinion by Mr. Justice Redfield, the court held that it had always 
 been an indictable offence at common law to attempt to prevent the 
 attendance of a witness before a court of justice, although no subpoena 
 for the witness had been served or issued. It will not do for a 
 moment, said the court, to admit that witnesses may be secreted or 
 bribed, or intimidated, and the guilt}- parties not be liable unless a 
 subpoena has been served upon the witnesses. The doing of any act^ 
 continued the court, tending to obstruct the due course of puV)lic justice, 
 has always been held to be an indictable offence at common law ; and 
 bribing, intimidating, and persuading witnesses, to prevent them from 
 testifying, or to prevent them from attending court, has been among 
 the most common and the most corrupt of this class of offences ; and 
 whether the witness has been served with a subpoena, or is about to be 
 served with one, or is about to attend in obedience to a voluntary 
 promise, is not material ; for any attempt, in either case, to prevent his
 
 SECT. 11.] STATE V. CARVER. 61 
 
 attendance, is equally corrupt, equally criminal, and equally deserving 
 of punishment. 
 
 In Com. V. Reynolds, 14 Gray, 87, the court held it to be an in- 
 dictable offence at common law to dissuade, hinder, or prevent a witness 
 from attending before a court of justice ; and that an indictment for 
 such an offence need not allege in whose behalf the witness had been 
 summoned, nor that his testimony was material. The offence, said 
 Mr. Justice Metcalf, is the obstruction of the due course of justice ; 
 and the obstruction of the due course of justice means not only the 
 due conviction and punishment, or the due acquittal and discharge, 
 of an accused party, as justice may require ; but it also means the due 
 course of the proceedings in the administration of justice; that, by 
 obstructing these proceedings, public justice is obstructed. 
 
 Intentionally and designedly to get a witness drunk, for the express 
 purpose of preventing his attendance before the grand jury, or in open 
 court, is such an interference with the proceedings in the administration 
 of justice as will constitute an indictable offence, and one for which the 
 guilty party ought to be promptly and severely punished. And it is 
 important that it should be understood that the suppression of evidence 
 by such, or by any similarly wicked and corrupt means, cannot be 
 practiced with impunity. 
 
 Exceptions overruled. Indictment adjudged sufficient. 
 
 STATE V. CARVER. 
 
 Supreme Court of New Hampshire. 1898. 
 [Reported 69 N. H. 216.] 
 
 Indictment charging that one Fernald had sold one quart of spirituous 
 liquor contrary to the statute, and that the defendant corruptly and 
 without authority made composition with Fernald and took from him 
 thirty dollars for forbearing to prosecute the supposed offence. The 
 defendant moved to quash the indictment. He also excepted to a 
 ruUng of the court at the trial, which is discussed in the opinion.^ 
 
 Blodgett, J. Whatever diversity of opinion there may justly be as 
 to the policy of the liquor laws of this state, it cannot be doubted that 
 their violation is a grave misdemeanor against public justice, nor that 
 its compromise with the offender by a private individual is both 
 pernicious and illegal. 
 
 " Misdemeanors are either mala in se, or penal at common law, and 
 such as are mala prohihita, or penal by statute. Those m,ala in se 
 are such as mischievously affect the person or property of another, or 
 outrage decency, disturb the peace, injure public morals, or are breaches 
 of public duty." 4 Am. & Eng. Enc. Law 654. 
 
 There being in this state no statute prohibiting the composition of 
 
 1 This short statemeat is substituted for that of the Reporter. — Ed.
 
 62 STATE V. CARVEK. [CHAP. II. 
 
 misdemeanors, and the body of the common law and the English stat- 
 utes in amendment of it, so far as they were applicable to our institutions 
 and the circumstances of the country, having been in force here upon 
 the organization of the provincial government and continued in force 
 by the constitution, so far as the}' are not repugnant to tliat instrument, 
 until altered or repealed by the legislature (State v. Rollins, 8 N. H. 
 550; State v. Albee, 61 N. H. 427), the first inquiry is whether such 
 composition was an indictable offence at common law. 
 
 While decisions upon this precise point are lacking, the language of 
 the books is general that the taking of money or other reward to sup- 
 press a criminal prosecution, or the evidence necessary to support it, 
 was an indictable offence at common law, and although the English 
 cases may not all be reconcilable with this view, it would seem that 
 when the offence compounded was one against public justice and dan- 
 gerous to society it was indictable, while those having largely the 
 nature of private injuries, or of very low grade, were not indictable. 
 See Johnson v. Ogilby, 3 P. Wms. 277; Fallowes v. Taylor, 7 T. R. 
 475 ; Collins v. Blantern, 2 Wils. 341, 348, 349; Rex v. Stone, 4 C. & 
 P. 379; Keir v. Leeman, 6 Q. B. 308, 316-322, — S. C, on error. 
 9 Q. B. 371, 395 ; Rex v. Crisp, 1 B. & Aid. 282; Edgcombe v. Rodd, 
 5 East, 294, 303 ; Rex v. Southerton, 6 East, 126 ; Beeley v. Wingfield, 
 11 East, 46. 48; Baker v, Townsend, 7 Taun. 422, 426 ; Bushel v. 
 Barrett, Ry. & M. 434 ; Rex v. Lawley, 2 Stra. 904 ; Steph. C. R. L. 67 ; 
 3 Wat. Arch. Crim. Pr. & PI. 623-10, 623-11 ; 1 Russ. Cr. 136 ; 1 Ch. 
 Cr. L. (3d Am. ed.) 4 ; 1 Bish. Cr. L. (7th ed.), ss. 710, 711; Dest. Cr. 
 Jj. s.lO b] 4 Wend. Bl. Com. 136, and note 18. 
 
 In this restricted sense we are of opinion that the taking of money, 
 or other reward, or promise of reward, to forbear or stifle a crim- 
 inal prosecution for a misdemeanor, was an indictable offence by the 
 common law, the same as it unquestionably was for a felon}' (Part- 
 ridge V. Hood, 129 Mass. 403, 405, 406, 407), and that it has always 
 been so understood and received here, as well as in other jurisdictions. 
 Plumer v. Smith, 5 N. H. 553, 554 ; Hinds v. Chamberlin, 6 N. U. 
 229 ; Severance v. Kimball, 8 N. H. 386, 387 ; Hinesburg r. Sumner, 
 9 Vt. 23, 26 ; Badger v. Williams, 1 D. Chip. 137, 138, 139 ; State v. 
 Keyes, 8 Vt. 57, 65-67 ; State v. Carpenter, 20 Vt. 9 ; Commonwealth 
 V. Pease, 16 Mass. 91 ; Jones v. Rice, 18 Pick. 440 ; Partridge v. Hood, 
 supra ; State v. Dowd, 7 Conn. 384, 386. 
 
 Certainly, there is no ground to contend that the offence is any 
 less pernicious and reprehensible under our form of government than 
 under that of the mother country, or that, as a part of the body of 
 the common law, it was inapplicable to our institutions and circum- 
 stances at the time of the organization of our provincial government, 
 or in any manner repugnant to the constitution or to our present 
 institutions and circumstances. Indeed, the absence of any statute 
 upon the subject of the composition of misdemeanors sufficientl}' shows 
 the general understanding in this state, for it cannot reasonably be
 
 SECT. II.] STATK V. CARVER. 63 
 
 supposed that so infamous an offence would have been permitted to go 
 unpunished for want of statutory enactment, unless it has been 
 understood generally that under our common law none was necossar}'. 
 
 But not only did die defendant, in consideration of a reward, com- 
 pound a public misdemeanor, and suppress and destroy the material 
 evidence necessary to support it, he also defrauded tlie revenue by 
 depriving the public of that portion of, the pecuniary penalty to which 
 they are entitled for a violation of the liquor laws ; and this of itself 
 is a sufficient ground on which to sustain an indictment at common 
 law. Rex t\ Southerton, 6 East, 126; 1 Russ. Cr. 134. 
 
 In view of these conclusions, it is unnecessary' to examine the ques- 
 tion argued by counsel as to whether or not the case falls within the 
 statute of 18 Eliz., c. 5 (made perpetual by 27 Eliz., c. 10, and amended 
 as to punishment b}' 56 Geo. Ill, c. 138), by which it was enacted that 
 if any person " by colour or pretence of process, or without process 
 upon colour or pretence of any matter of offence against any penal law, 
 make any composition, or take an^- money, reward, or promise of re- 
 ward," without the order or consent of some court, " he shall stand 
 two hours in the i)ill()iy, l)e forever disabled to sue on any popular or 
 penal statute, and shall forfeit ten pounds." 
 
 The motion to quash the indictment because it describes the offence 
 for which composition was made as a " supposed offence," was prop- 
 erly denied. " The bargain and acceptance of the reward makes the 
 crime " (State v. Duhammel, 2 Harr. 532, 533) ; and in such a case, 
 "the party may be convicted though no offence liable to a penalty has 
 been committed by the person from whom the reward is taken." 
 Reg. V. Best, 9 C. & P. 368,-38 Eng. C. L. 220; Rex v. Gotley, 
 Russ & Ry. 84 ; People v. Buckland, 13 Wend. 502; 1 Russ. Cr. 133, 
 134 ; 3 Arch. Grim. Pr. & PI. 623-11. 
 
 The ruling that "if the defendant knew what he was doing: and 
 did what he intended to do, it was immaterial what his opinion was 
 as to the legal effect of what he was doing, and it would be no 
 defence that he did not know he was violating the law," was mani- 
 festly correct. "■ A man's moral perceptions may be so perverted as to 
 imagine an act to be right and legal which the law justly pronounces 
 fraudulent and corrupt ; but he is not therefore to escape from the 
 consequences of it." Bump. Fr. Conv. (3d ed.) 25. " Ignorance of a 
 fact may sometimes be taken as evidence of a want ot criminal intent, 
 but not ignorance of the law " (Reynolds v. United States, 98 U. S. 
 145); and "in no case can one enter a court of justice to which he 
 has been summoned in either a civil or criminal proceeding, with the 
 sole and naked defence that when he did the act complained of, he did 
 not know of the existence of the law which he violated." 1 Bish. Cr. 
 L. (7th ed.), s. 294. 
 
 It is elementary, as well as indispensable to the orderly administra- 
 tion of justice, that every man is presumed to know the laws of the 
 country in which he dwells, and also to intend the necessary and
 
 64 REX V. BLAKE. [CHAP. II. 
 
 legitimate consequences of what he knowingly does. If there are 
 cases in which the application of these presumptions might operate 
 harshl}-, the admitted facts ampl}' demonstrate that this case is not 
 such an one. Exceptions overruled. 
 
 REX V. BLAKE. 
 King's Bench. 1765. 
 
 {Reported 3 Burrow, 1731.] 
 
 Mr. Dimning showed cause wh}- 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 Trin. 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 onl}' for 
 (viet armis) breaking and entering a close Cnot a dwelling-house) and 
 unlawfully and unjustly expelling the prosecutors, and keeping them 
 out of possession. 
 
 Mr. Pophcwi, 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- 
 fully and unjustly. This is no other force than the law implies. No 
 actual breach of the peace is stated ; or any riot ; or unlawful assembly. 
 And he cited the cases of Rex v. Gask, Rex v. 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. 
 
 Rex V. Jopson et al. Tr. 24, 25 G. 2 B. R. was an unlawful assembly 
 of a great number of people. (V. ayite 3 Burr. 1702, in the margin.) 
 
 Mr. Justice Wilmot. No doubt, ^an indictment will lie at common 
 law for a forcible entrj-, though the}- are generally brought on the acts 
 of parliament. On the acts of parliament, it is necessar}' 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, " That it ought to appear upon the face 
 of the indictment to be an indictnble offence." 
 
 Here indeed are sixteen defendants. But the number of the defend- 
 ants makes no difference, in itself; no riot, or unlawful assembly, or
 
 SECT. II.] COMMONWEALTH V. GIBNEY. 65 
 
 anything of that kind is charged. It oiiglit to amount to an actual 
 breach of the peace indictable, in order to support an indictment. P'or, 
 otherwise, it is only a matter of civil complaint. And tliis 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 Cur. unanimously. 
 
 Rule made absolute to quash this indictment.^ 
 
 COMMONWEALTH v. GIBNEY. 
 
 Supreme Judicial Court of Massachusetts. 1861. 
 
 [Reported 2 Allen, 150.] 
 
 Indictment, charging that the defendants, five in number, " together 
 with divers others, to the number of twelve and more, to the jurors 
 aforesaid unknown, being evil disposed and riotous persons, and dis- 
 turbers of the peace of said commonwealth, on the thirty-first day ot 
 December in the year of our Lord one thousand eiglit hundred and 
 sixt}-, at North Andover, in the county of Essex aforesaid, with force 
 and arms, to wit, with clubs, staves, stones, and other dangerous and 
 ofTensive weapons, a certain building there situate, called the Union 
 Hall, the property of one Thomas E. Foy, in the night time, unlawfully, 
 riotously, and routously did attack and beset, and did then and there 
 unlawfully, riotously, routously, and outrageously make a great noise, 
 disturbance, and affray near to and about the said building, and did 
 unlawfully, riotously, and routously continue near to and about and in 
 the said building, making such noise, disturbance, and affray for a long 
 space of time, to wit, for the space of one hour, and the doors and 
 windows of the said building did then and there unlawfully, riotouslj^, 
 and routously, with the dangerous and offensive weapons aforesaid, 
 break, destroy, and demolish, to the great damage of the said Thomas 
 E. Foy, to the great terror of divers good people of said commonwealth 
 then and there lawfully being, against the peace, " etc. 
 
 After a verdict of guilty in the superior court, Peter Gibney, one of 
 the defendants, moved in arrest of judgment for reasons indicated in 
 the opinion ; but the motion was overruled by Morton, J., and the 
 defendant alleged exceptions. 
 
 Dewey, J. It was held as early as Regina v. Soley, 2 Salk. 594, 
 that judgment should be arrested and the indictment held bad, " be- 
 
 1 See Rex v. Storr, 3 Burr. 1698 ; Rex v. Wilson, 8 T. R. 357 ; Com. v. Shattuck, 
 4 Cush. (Mass.) 141 ; Kilpatrick v. People, 5 Denio (N. Y.) 277; Com. v. Edwards 
 1 Ashm. (Pa.) 46. See State v. Burroughs. 7 N. J. L. 426 Com. v. Powell, 8 Leigh 
 (Va.) 719.
 
 56 COMMONWEALTH V. GIBNEY. [CHAP. II. 
 
 cause it is not said that the defendants unlawfully assembled." The 
 proposition thus stated seems to be held as correct in the later elemen- 
 tary writers. To maintain an indictment for a riot, it is said in Archb. 
 Crim. Pr. 589, that the prosecutor must prove: 1. The assembling; 
 2. The intent, namely, " that the}' so assembled together with intent 
 to execute some enterprise of a private nature, and also mutually to 
 assist one another against any person who should oppose them in doing 
 so. The intent is proved in this, as in every other case, bj' proving 
 facts from which the jury may fairly presume it." The definition of a 
 riot includes the statement " of three persons or more assembling to- 
 gether." 1 Russell on Crimes, 266. In 2 Deacon's Crim. Law, 1113, 
 a riot is said to be " a tumultuous meeting of three or more persons, 
 who actually do an unlawful act of violence, either with or without a 
 common cause or quarrel ; " '' or even do a lawful act, as removing a 
 nuisance in a violent and tumultuous manner." 
 
 The distinction in criminal treatises, in the definitions of riots, routs, 
 and unlawful assemblies, assumes that there must be an assembling 
 together, and an unlawful assembly ; although the assembly may not 
 have been unlawful on the first coming together of the parties, but 
 becomes so by their engaging in a common cause, to be accomplished 
 with violence and in a tumultuous manner. And the precedents for 
 indictments for a riot, with the exception of a single one in Davis's 
 Precedents, the others in that book being different, all allege an un- 
 lawful assembling together. This seems to be a necessary form in a 
 proper indictment for a riot, although the proof of such unlawful as- 
 sembly may be made by showing three or more persons acting in con- 
 cert in a riotous manner, as to using violence, exciting fear, etc. 
 
 The present indictment cannot therefore be sustained as a good in- 
 dictment for a riot, for want of proper allegations of the assembling 
 together of three or more persons. 
 
 It cannot be sustained as an indictment for forcible entry, the alle- 
 gations not being adapted to a charge of that offence. 
 
 It cannot be sustained as an indictment for malicious mischief, for 
 the like reason. Nor can it be maintained as a charge at common law 
 for a disturbance of the peace. A man cannot be indicted for a mere 
 trespass. No indictment lies at common law for mere trespass com- 
 mitted to land or goods, unless there be a riot or forcible entrj'. The 
 King V. Wilson, 8 T. R. 357. The words " violently and routously,'' 
 here used, have no particular pertinency, except as terms appropriate 
 to a formal indictment for riot, charging also an unlawful assembly. 
 In the present indictment there is nothing more alleged than a tres- 
 pass, with violence. There is no allegation that any person was in the 
 building, but only of a breaking of doors and windows of a building, 
 which might be a mere trespass. 
 
 If the case was a proper one for an indictment for a riot, as it prob- 
 ably was, that offence not being properly charged, the indictment is 
 bad, and the motion in arrest of judgment must prevail. 
 
 Judgment arrested.
 
 SECT. II.] RESPUBLICA V. TEISCnEK. 67 
 
 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, 8. 4 ; and he contended that the principle of several 
 eases, in which it was determined an indictment would not lie, applied 
 to the case before the court. 2 8tra. 793 ; 1 Stra. 679. 
 
 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 
 principle 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
 
 68 KESPUBLICA V. TEISCHER. [CHAP. II. 
 
 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 ; 8. C. Crown Circ. Comp, 
 24, are cases of private wrongs, and yet punished by indictment; be- 
 cause, as it is said in Burrow, common prudence could not have 
 guarded the persons 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 tlie 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 loth of July, by the 
 Chief Justice. 
 
 M'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 found 
 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 Penns^^lvania ; 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, there 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.^ 
 
 1 See U. S. V. Gideon 1 Minn. 292; State v. Beekman, 3 Dutch (N. J.) 124; 
 Loomis V. Edgerton, 19 Wend. (N. Y.) 419; State v. Phipps, 10 Ire. (N. C.) 17.
 
 SECT. II.] COMMONWEALTH V. TAYI.OR. 69 
 
 COMMONWEALTH v. TAYLOR. 
 Supreme Court of Pennsylvania. 1812. 
 
 [Reported 5 Binney 277.] 
 
 The defendant was indicted in the Quarter iSessions of Franklin 
 county for "that he, on the 24th of August 1809, about the hour often 
 of the clock in the night of the same day, with force and arms at 
 Lurgan township, in the count}' aforesaid, the dwelling house of James 
 Strain there situate, unlawfulh', malicioush', and secretly did break 
 and enter, with intent to disturb the peace of the commonwealth ; and 
 so being in the said dwelling house, unlawfull}', vehemently, and tur- 
 bulently did make a great noise, in disturbance of the peace of the 
 commonwealth and greatly misbehave himself, in the said dwelling 
 house ; and Elizabeth Strain, the wife of the said James, greatl}' did 
 frigliten and alarm, by means of which said fright and alarm she the 
 said Elizabeth, being then and there pregnant, did on the 7th daj' of 
 September in the year aforesaid at the county aforesaid miscarry, and 
 other wrongs to the said Elizabeth then and there did, to the evil 
 example, &c." 
 
 The jury having found the defendant guilty, the Quarter Sessions 
 arrested the judgment upon the ground tiiat the offence charged was 
 not indictable; and the record was brought up to this Court by writ 
 of error. 
 
 TiLGHMAM, C. J. It is contended on the part of James Taylor, that 
 the matter charged in the indictment is no more than a private trespass, 
 and not an offence subject to a criminal prosecution. On the other 
 hand it has been urged for the commonwealth that the offence is indict- 
 able; 1st, as a forcible entry,— 2d, as a malicious mischief. 
 
 1. I incline to the opinion that the matter charged in the indictment 
 does not constitute a forcible entry, although no doubt a forcible entry 
 is indictable at common law. There must be actual force to uiake an 
 indictable oflence. The bare allegation of its being done with force 
 and arms, does not seem to be sufficient ; for every trespass is said to 
 be with force and arms. In the King v. Storr, 3 Burr. 1698, the indict- 
 ment was for unlawfully entering his 3'ard and digging the ground and 
 erecting a shed, and unlawfully and with force and arms putting out 
 and expelling one Mr. Sweet the owner from the possession, and keep- 
 ing him out of the possession. This indictment was quashed. The 
 King V. Bake and fifteen others, 3 Burr. 1731, was an indictment for 
 breaking and entering with force and arms a close (not a dwelling 
 house), and unlawfully and unjustly expelling the prosecutors, and 
 keeping them out of possession. This also was quashed, and the rule 
 laid down by all the court was that there must be force or violence 
 shewn upon the face of the indictment, or some riot or unlawful assem- 
 bly. It appears indeed that in the King v. Bathurst, cited and re-
 
 70 COMMONWEALTH V. TAYLOR. [CHAP. II. 
 
 marked by the judges in the Kuig o. Storr, the court laid considerable 
 stress on the circumstance of entering a dwelling house. We have no 
 report of that case, but Lord Mansfield's observation on it (3 Burr. 
 1701) is that it does not seem to him to lay down any such rule as 
 that force and arms alone implies such force as will of itself support an 
 indictment. '' There," says he, " the fact itself naturally implied force ; 
 it was turning and keeping the man out of his dwelling house, and 
 done by three people." In the case before us, there is the less reason 
 to suppose actual force, as the entry is charged to have been made se- 
 cretly. This might have been done through a door which was open, 
 and yet in point of law, it was a breaking and entry with force and arms, 
 which is the allegation in every action of trespass. 
 
 2. But supposing the indictment not to be good for a forcible entry, 
 may it not be supported on other grounds? In the case of the Com- 
 monwealth V. Teischer, 1 Dall. 335, judgment was given against the de- 
 fendant for "maliciously, wilfully and wickedly killing a horse." 
 These are the words of the indictment, and it seems to have been con- 
 ceded by Mr. Sergeant, the counsel for the defendant, that if it had 
 been laid to be done secretly, the indictment would have been good. 
 Here the entering of the house is laid to be done " secretly, maliciously, 
 and with an attempt to disturb the peace of the commonwealth. I 
 do not find any precise line by which indictments for malicious mischief 
 are separated from actions of trespass. But whether the malice, the 
 mischief, or the evil example is considered, the case before us seems 
 full as strong as Teischer's case. There is another principle, however, 
 upon which it appears to me that the indictment may be supported. 
 It is not necessary that there should be actual force or violence to con- 
 stitute an indictable offence. Acts injurious to private persons, which 
 tend to excite violent resentment, and thus produce fighting and dis- 
 turbance of the peace of society, are themselves indictable. To send a 
 challenge to fight a duel is indictable, because it tends directly towards 
 a breach of the peace. Libels fall within the same reason. A libe) 
 even of a deceased person is an offence against the public, because it 
 may stir up the passions of the living and produce acts of revenge. 
 Now what could be more likely to produce violent passion and a dis- 
 turbance of the peace of society, than the conduct of the defendant? 
 He enters secretly after night into a private dwelling house, with an 
 intent to disturb the family, and after entering makes such a noise as 
 to terrify the mistress of the house to such a degree as to cause a mis- 
 carriage. Was not this enough to produce some act of desperate vio- 
 lence on the part of the master or servants of the family ? It is objected 
 that the kind of noise is not described ; no matter, it is said to have 
 been made vehemently and turbulently, and its effects on the pregnant 
 woman are described. ^ In the case of the King v. Hood (Sayers'-Rep. 
 in K. B. 161) the court refused to quash an indictment for disturbing 
 a family by violently knocking at the front door of the house for the 
 space of two hours. It is impossible to find precedents for all offences.
 
 SECT. II.] COMMONWEALTH V. TAYLOR. 71 
 
 The malicious ingenuity of mankind is constantly producing new inven 
 tions in the art of disturbing their neighbours. To this invention must 
 be opposed general priiicii)lcs, calculated to meet and punish them. I 
 am of opinion that the conduct of the defendant falls within the rano-e 
 of established principles, and that the judgment of the Court below 
 should be reversed. 
 
 Brackenridge, J. It cannot be inferred, vi termini^ that the word 
 " break " means more tlian a clausumf regit, or a breaking of the close in 
 contemplation of law, even though a dwelling liouse was the close 
 broken; because the trespass might be by walking into it, the door 
 open. But the court might refuse to quash, because it might appear 
 on the evidence that the breaking amounted to more than a clausum 
 fregit in trespass. But taking the entry to amount to nothing more 
 than a walking in, the door open, may not the motive of his entry, and 
 the use he made of it, constitute a misdemeanor? What is he alleged 
 to have done, after entering the house? " Wilfully, vehemently, and 
 turbulently did make a great noise." How is a noise occasioned that is 
 perceptible to the ear? It must be by an impulse of the air on the 
 organs of hearing. And what is it, whether it is by the medium of air, 
 or water, or earth, that an assault and battery is committed? The im- 
 pulse of the air may give a great shock. Birds have fallen from the 
 atmosphere struck by a mighty voice. This happened at the celebra- 
 tion of the Isthmian games, as related by Plutarch in his life of Paulus 
 Emilius. Are we bound to consider the noise gentle? Are we not at 
 liberty to infer the mightiest effort of the human lungs? But the 
 power of imagination increases the effect. Armies have been put to 
 rout by a shout. The king of Prussia in the seven years' war won a 
 battle b^^ the sound of artillery without ball. Individuals have been 
 thrown into convulsions b}' a sudden fright from a shout. The infant 
 in the womb of a pregnant woman has been impressed with a physical 
 effect upon the body, and even upon the mind, by a fright. Mary, 
 queen of Scots, from the assassination of Rizzio, communicated to her 
 offspring the impression of fear at the sight of a drawn sword. Peter 
 the Great of Russia had a dread of embarking on water from the same 
 cause. Shall we wonder then that death is occasioned to the embryo, 
 in the womb of a pregnant woman, by a sudden fright? If in this 
 indictment it had been stated that the woman was pregnant with a liv- 
 ing child, it might have been homicide. But she is stated to have mis- 
 carried, wliich is the parting with a child in the course of gestation. 
 Will not the act of the individual maliciously occasioning this, consti- 
 tute a misdemeanor? A sudden fright even by an entry without noise, 
 presenting the appearance of a spectre, might occasion this, even though 
 in playful frolic ; 3-et after such effect, would not the law impute malice? 
 No person has a right to trifle in that manner to the injury of another.^ 
 
 1 Part of the opinion of Brackenridge, J., and the concurring opinion of Yeates, J., 
 are omitted. See State v. Huntley, 3 Ire. (N. C.) 418; State v. Tolever, 5 Ire. (N. C.| 
 452; Penns v. Cribs, Add. (Pa.) 277 ; Henderson v. Com., 8 Gratt. (Va ) 708.
 
 72 KEGINA V. ADAMS. [CHAP. II. 
 
 REGINA V. ADAMS. 
 
 Court for Crown Cases Reserved. 1888. 
 
 [Reported 22 Q. B. D. G6.] 
 
 Case stated bj- the Recorder of London for the opinion of the Court 
 for the Consideration of Crown Cases Reserved. 
 
 At the sessions of the Central Criminal Court, held on September 17, 
 1888, J. C. Adams was tried on an indictment which charged him, in 
 ihe third count, witli having, on June 19, 1888, unlawfuU}-, wickedh', 
 and maliciously written and published to E. S. Y., the younger, who 
 was a good, peaceable, virtuous, and worthy subject of our Lady the 
 Queen, in the form of a letter directed to her, the said E. S. Y., the 
 said letter containing divers false, scandalous, malicious, and defama- 
 torj" matters and things of and concerning the said E. S. Y., and of 
 and concerning the character for virtue, modest}-, and morality then 
 borne b^- the said E. S. Y. [the letter was set out], to tlie great damage, 
 scandal, infamy, and disgrace of the said E. S. Y., to the evil example, 
 etc., and against the peace, etc.^ 
 
 At the close of the case for the prosecution counsel for the prisoner 
 submitted that there was no case to go to the jury, on the grounds 
 {inter alia) that to write and send to a person letters in the form of 
 those set out in the indictment was not an indictable offence ; that the 
 letter set out in the third count was neither a defamatory libel nor an 
 obscene libel ; and that there liad been no publication of it. 
 
 The recorder declined to stop the case upon the objections taken, 
 but left it to the jury, who convicted the prisoner on all the counts of 
 the indictment. 
 
 The recorder thereupon respited judgment and admitted the prisoner 
 to bail. 
 
 The question for the opinion of the Court was whether, upon the 
 facts stated, the prisoner could properly be convicted on all or any of 
 the counts of the indictment. 
 
 Lord Coleridge, C. J. It is unnecessary to discuss some of the 
 important questions which have been raised in this case. Upon those 
 questions, therefore, I, and I believe the other members of the Court, 
 desire to give no opinion. It appears to me that there is a ver\' short 
 and plahi ground upon which this conviction can be sustained. It is a 
 conviction upon an indictment, the third count of which charges that 
 the letter there set out is a defamatory libel, tending to defame and 
 bring into contempt the character of the person to wiiom it was sent. 
 I am of tlie opinion that the letter is of such a character as that it tended 
 to provoke a breach of the peace. At all events, the sending of such 
 a letter to the person to whom it was sent might, under the circum- 
 stances of her position and character, reasonably or probably tend to 
 provoke a breach of the peace on her part, or on the part of those con- 
 
 1 The evidence is omitted. — Ed.
 
 SECT. II.] COMMONWEALTH V. WING. 73 
 
 nected with her. The jury must be taken to have found that it was a 
 defamatoiy libel which was calculated to provoke a breach of the peace ; 
 and on that short ground I am of opinion that the conviction must be 
 affirmed on the third count of the indictment. 
 
 Manisty, HawkinS; Day, and A. L. Smith, JJ., concurred. 
 
 Conviction affirmed.'^ 
 
 REX V. HATHAWAY. 
 
 King's Bench. 1701. 
 
 [Reported 12 Mod. 556.] 
 
 One Hathaway, a most notorious rogue, feigned himself bewitched 
 and deprived of his sight, and pretended to have fasted nine weeks 
 together ; and continuing, as he pretended, under this evil influence, he 
 was advised, in order to discover the person supposed to have be- 
 witched him, to boil his own water in a glass bottle till the bottle 
 should break, and the first that came into the house after should be 
 the witch ; and that if he scratched the bodj' of that person till he 
 fetched blood, it would cure him ; which being done, and a poor old 
 woman coming bv chance into the house, she was seized on as the 
 witch and obliged to submit to be scratched till the blood came ; 
 whereupon the fellow pretended to find present ease. The poor woman 
 hereupon was indicted for witchcraft, and tried and acquitted at Surrey 
 assizes before Holt, C. J., a man of no great faith in these things ; and 
 the fellow persisting in his wicked contrivance, pretended still to be ill, 
 and the poor woman, notwithstanding the acquittal, foi'ced bj- the mob 
 to suffer herself to be scratched by him. And this being discovered 
 to be all imposition, an information was filed against him. 
 
 COMMON\YEALTH v. WING. 
 Supreme Judicial Court of Massachusetts. 1829. 
 
 [Reported 9 Pickering, 1.] 
 
 The defendant was indicted for maliciously discharging a gun, 
 whereby a woman, named M. A. Gilford, was thrown into convul- 
 sions and cramps. It was averred that the defendant well knew that 
 she was subject to such convulsions and cramps upon the firing of a 
 gun, and that at the time when the offence was committed, he was 
 warned and requested not to fire. 
 
 The case was tried before Wilde, J. 
 
 It was proved that M. A. Gifford was severely affected with a 
 nervous disorder, and that she was uniformly thrown into a fit upon 
 hearing a gun, thunder, or any other sudden noise, or by hearing the 
 
 1 See State v. Roberts, 2 Marv. (Del.) 450; Com. v. Chapman, 13 Met. (Mass.) 6a 
 Compare Rex v. Freake, Comb. 13 ; Reg. v. Tavlor, 2 Ld. Raym. 879 ; State i;. Edena, 
 93 N. C. 693.
 
 74 COMiMONWEALTH V. WING. [CHA.P, II. 
 
 words "gun, ammunition," &c. mentioned. It was also proved that 
 she had been in this situation for more than six years. 
 
 It was further proved that the defendant discharged the gun in a 
 highway, for the purpose of killing a wild goose, at a place two or 
 three rods from the house in which M. A. Gifford then lived ; which 
 house was situated on a neck of land where citizens had from time 
 immemorial resorted for the purpose of fowling. And it was also 
 proved that immediately before the defendant discharged his gun, he 
 was requested by INI. A. Gifford's father not to fire, as it would tlu'ow 
 his daughter into fits ; and evidence also was introduced showing the 
 defendant's previous knowledge of the effect produced on her by the 
 report of a gun, especially when discliarged near to her. 
 
 The defendant contended tliat as he was engaged in a lawful occu- 
 pation, and as M. A. Gifford had for so long a time been afflicted 
 with what had probably become an incurable disease, he was not 
 liable to punishment for the commission of the act alleged in the 
 indictment. 
 
 The judge instructed the jury that if they believed that the defen- 
 dant knew, or had good reason to believe, that the consequences 
 above mentioned would be produced by the firing of the gun, and had 
 notice to that effect immediately before the firing, they should return 
 a verdict of guilty ; which they did accordingly. If this instruction 
 was wrong, a new trial was to be granted. 
 
 Warren for the defendant. The indictment is for an alleged of- 
 fence, which is technically called a nuisance. It cannot be sustained, 
 because the act done was not to the annoyance of the citizens gener- 
 ally. Bac. Abr. Nuisance B ; Rex v. White, 1 Burr. 333 ; Rex v. 
 Combrune, 1 Wils. 301 ; Rex v. Wheatly, 2 Burr. 1126 ; Rex i?. L%d, 
 4 Esp. 200 ; Arnold v. Jefferson, 3 8alk. 248. The act, in itself, was 
 neither malum in se nor malum 'prohihitmn. The defendant was in 
 the exercise of a lawful employment, and the injury was to a single 
 person. Her remedy is by action ; the Commonwealth is not inter- 
 ested in the matter. The dictum of Sewall, C. J., in Cole v. Fisher, 
 11 Mass. R. 139, — that wliere the discharge of a gun is unnecessary, 
 a matter of idle sport and negligence, and still more where it is ac- 
 companied with purposes of wanton and deliberate mischief, the 
 party is liable as a public offender, — does not apply to this case ; for 
 the act of the defendant does not come within either of those de- 
 scriptions, and it was not done to the common danger of the citizens, 
 but on a neck of land where citizens had immemorially resorted for 
 the purpose of fowling. 
 
 The nature of the disease is such that a citizen was not obliged, 
 from regard to it, to refrain from his usual lawful pursuits. AVhere 
 a person is suffering under a complaint which is aggravated by tlie 
 transaction of the ordinary business of society, it is better that he 
 should suft'er than that the business of the community should be sus- 
 pended. It is certainly better that he should be left to that remedy
 
 SECT. II.J REX V. MAUD. 75 
 
 which the law gives every man for a violation of his private rights. 
 If tlie above doctrine is not sound as applied to temporary diseases, 
 it is when the affection is of so long standing as in tliis case. An 
 action cannot ])e sustained for an injury wliich the party might have 
 avoided by ordinary care. It was the duty of the woman to have 
 removed from a neighborhood where the citizens have immemorially 
 pursued an occupation which injuriously affected her health. Butter- 
 field V. Forrester, 11 East, CO; Smith v. Smith, 2 Pick. 621 ; Rex v. 
 Cross, 2 Carr. & Payne, 483. 
 
 Morton, Attorney-General, contra, cited 4 Bl. Cora. 197; and Cole 
 V. Fisher, 11 Mass. R. 139. 
 
 Parker, C. J., delivered the opinion of the court. If the indict- 
 ment were for a nuisance, the authorities cited by the defendant's 
 counsel would clearly show that it could not be sustained ; for the 
 most that could be made of it would be a private nuisance, for which 
 an action on the case only would lie. But we think the offence de- 
 scribed is a misdemeanor, and not a nuisance. It was a wanton act 
 of mischief, necessarily injurious to the person aggrieved, after full 
 notice of the consequences, and a request to desist. The jury have 
 found that the act was maliciously done. 
 
 In the case of Cole v. Fisher, 11 Mass. R. 137, Chief Justice Sewall, 
 in delivering the opinion of the court, speaking of the discharging of 
 guns unnecessarily, says, if it is a matter of idle sport and negligence, 
 and still more when the act is accompanied with purposes of wanton 
 or deliberate mischief, the guilty party is liable, not only in a civil 
 action, but as an offender against the public peace and security, is 
 liable to be indicted, &c. 
 
 Now the facts proved in the case, namely, the defendant's previous 
 knowledge that the woman was so affected by the report of a gun as 
 to be thrown into fits, the knowledge he had that she was within 
 hearing, the earnest request made to him not to discharge his gun, 
 show such a disregard to the safety and even the life of the afHicted 
 party, as makes the firing a wanton and deliberate act of mischief. 
 
 Judgment on the verdict.^ 
 
 REX V. MAUD. 
 
 Bedfordshire Eyre. 1202. 
 
 [Reported 1 Selden Soc. 27.] 
 
 Maud, wife of Hugh, was taken with a false gallon with which she 
 sold beer, so that the keepers of the measures testify that they took 
 her selling beer with it. And since she cannot defend this, it is 
 considered that she be in mercy. She made fine with two marks. 
 
 1 But see Rogers y. Elliott, 146 Mass. 349. Compare State v. Buckman, 8 N. H. 
 203 ; Peoples. Blake, 1 Wheel. (N. Y.) 490. For other kinds of personal injur^v, see 
 State V. Cooper, 2 Zab. (N.J.) 52; State v. Slagle, 82 N. C. 653; Reg. v. Hogan, 
 2 Den. C. C. 277; Com. v. Stoddard, 9 All. (Mass.) 280; Rex v. Treeve, 2 East P. C 
 821 ; State v. Smith, 3 Hawks (N. C.) 378.
 
 76 KEGINA V. HANNON. [CHAP. U. 
 
 ANONYMOUS. 
 
 Common Bench. 1309. 
 [Reported Year Book, 2 & 3 Edw. II (Seld. Soc.) 120.] 
 
 A MAN was sued b3'the commonalty of the town of London for a tres- 
 pass against the statute of forestallers (made) in the Guildhall, and 
 (the plaintiffs) said that, whereas all the citizens of London came for 
 their merchandise and foreign folk came with their merchandise to 
 the cit}-, to wit, with beasts, sheep, and poultr}-, etc., without which 
 the city cannot be sustained, tliis man is a common forestaller of all the 
 things aforesaid, so that when he has bought them ^or a certain sum 
 he will sell them for double, wrongfully and against the common 
 ordinance, and to their damage, etc. 
 
 Fasseleij for the defendant : We do not believe that you have war- 
 rant to try this plaint, for this is a matter wliich should be tried in the 
 eyre, like a charge that a man is a common thief, a common robber, 
 or a common breaker of parks, where no certain deed is laid to his 
 charo-e. The suit cannot be maintained unless some certain fact be 
 mentioned ; for, were it otherwise, every man might have this suit, 
 whereas it belongs to the King and to his crown, which is not to be 
 dismembered. Judgment, whether you can or ought to be received 
 to this plaint. 
 
 Therefore it was awarded that they took nothing of their plaint, etc. 
 (and that the commonalty of London be amerced). 
 
 REGINA V. HANNON. 
 Queen's Bench. 1704. 
 {Reported 6 Mod. 311.] 
 
 Hannon was indicted, for that being a comnmnis deceptor of the 
 Queen's people, he came to the wife of B. and made her believe that 
 he had sold part of a ship to her husband, and upon that account got 
 several sums of monej^ from her. 
 
 By the Court, 
 
 First, ^'•communis deceptor" is too general, and so is ^^ communis 
 oppressor" " communis pertuhator," etc. and so of all other (except 
 barretor and scold), without adding of particular instances. 
 
 Secondly, The particular instance alledged here is of a private nature ; 
 if he had made use of any false token it would have been otherwise. 
 
 And the court ordered the indictment to be quashed.
 
 SECT. II.J KKX V. WHEATLY. 
 
 77 
 
 REX V. WHEATLY. 
 King's Bench. 1761. 
 
 [Reported 2 Burrow, 1125.1] 
 
 Defendant was indicted, for tliat lie, l)eing a common brewer, and 
 intending to deceive and defraud one Ricliard 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, 
 C. J., at Guildhall, Morton moved in arrest of judgment. 
 
 Mr. Jlorton and Mr. Yates, who were of counsel for the defendant, 
 objected that the fact charged was nothing more than a mere breach of 
 a civil contract, not an indictable offence. To prove this, tbe^- cited 
 Rex V. Combrun, p. 1751, 24 G. 2 B. R., which was exactlj^ and punc- 
 tually the same case as the present, onh' 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 quantity-, was quashed on motion. 
 
 In 1 Salk. 151., Nehuff"s 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 la}' a 
 conspiracy or show something amounting to a false token. 
 
 A mere civil wrong will not support an indictment. And here is no 
 criminal charge. It is not alleged " that he used false measures." 
 The prosecutor should have examined and seen that it was the right 
 and just quantity. 
 
 Mr. Norton, pro rege, off'ered the following reasons wh}' 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.
 
 78 EEX V. WHEATLY. [CHAP. II, 
 
 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 ma}' be a ground for a private action, and for an indictment too. 
 
 None of the cited cases were after verdict. It might here (for auglit 
 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 allegata et 
 probata; it might hapi)en without his own personal knowledge. And 
 they denied any distinction between tliis being done privately and its 
 being done in the course of trade. 
 
 Lord Mansfield. The question is, Whether the fact here alleged 
 be an indictable crime or not. Tlie fact alleged is : — 
 
 [Tlien his Lordship stated the charge, verhatim.'\ 
 
 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 
 right to quash upon motion or put the defendant to demur ; " but after 
 verdict they are obliged to arrest tlie judgment if the}' 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 chaige must be 
 explicit 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 b}- 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 
 negligence and carelessness in not measuring the liquor, upon receiving 
 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. 
 
 Those 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- 
 spiracy' ; onl}' an imposition upon the person he was dealing with, in 
 delivering him a less quantity instead of a greater, which the other
 
 SECT. II. J REX V. WHEATLY. 79 
 
 carelessly accepted. ' T is onl\- a non-performance of his contract, for 
 wliich non-performance lie 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 besides 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 the}' did 
 contain that measure, when in fact they did not contain such measure, 
 but so much less, (&c. 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 estabhshed and 
 settled. 
 
 Therefore (though I ma}' 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, b}' making the injured 
 person 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 an}' conspiracy. 
 
 In tlie case of the Queen y. 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 received £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 conspiracy, it is another case. The 
 Queen v. Maccarty was a conspiracy, as well as false tokens. Rex v. 
 Wilders was a much stronger case than this, and was well considered. 
 That was an imposition in the course of his trade, and the man had 
 marked the vessels as containing more gallons than they did really 
 contain, and had written a letter to Mr. Hicks, attesting that they 
 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. 
 And this matter is not indictable, therefore the judgment ought to be 
 arrested.
 
 80 REX V. WHEATLY, ];CHAP. II. 
 
 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 case, — too strong, perhaps, 
 for there were false tokens ; the vessels were marked as containing a 
 greater quantitj- than they really did. 
 
 Mr. Just. WiLMOT concurred. This matter has been fulh' 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 indictalile. 
 
 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, ubi reverd et in facto plurimum 
 deficiebat^ cfcc," 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 suffei'ing any inconvenience b}- the defendant's 
 offering him less than he had contracted for. 
 
 This was the case of Rex v. Pinknej- ; 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, yet 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} 
 
 1 See Rex i;. Osborn, 3 Burr. 1697; Com. v. Warren, 6 Mass. 72. — Ed.
 
 SECT. III.] COMMONWEALTH V. ECKERT. 81 
 
 SECTION IIL 
 Public Torts. 
 
 COMMONAVEALTH v. ECKERT. 
 Court of Quarter Sessions, Pennsylvania, 1812. 
 
 [Reported 1 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. 
 
 jBoioie, 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 misdemeanor indictable, 
 must be a violation of some known public law. 4 Bl. Com. 5 ; 1 Hawk. 
 P. C. 366, 7, sect. 1. Act of Assembly against taking off 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 common 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. 1698. 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 
 supported against him that did the act. 
 
 Per Curiam, 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.^ Verdict , Guilty. 
 
 1 See Resp. v. Powell, 1 Dall. (Pa. J 47.
 
 82 REX V. RICHARDS. [chap. IL 
 
 REX V. RICHARDS. 
 
 King's Bench. 1800. 
 
 [Reported 8 T. R. 634.] 
 
 This was an indictment against the defendants for not repairing 
 a road. The indictment stated that by virtue of an act of parliament, 
 31 Geo. 3., intitled " an act for draining and dividing a certain moor 
 or tract of waste land called King's sedgmore in the county of Somer- 
 set" it was enacted that certain commissioners therein named should 
 before making an}' allotments of the said moor set out and appoint such 
 private roads and drove-ways over the same as in the judgment of the 
 said commissioners should be necessary and convenient ; and that all 
 private roads and ways so to be set out should be made and repaired 
 at the expense of all or any of the persons interested in the said moor 
 and in such manner as the said commissioners should direct; that 
 certain commissioners under the act in execution of the powers thereby 
 vested in them by their award set out and appointed a certain private 
 road and drove-way in over and upon the said moor to be a private 
 road and drove-wa^- to be called Henley Drove-wa}- (describing it) ; 
 that the said commissioners also awarded that the said drove-way 
 should be for the benefit use and enjoyment of the several owners 
 tenants and occupiers for the time being of all and singular the tene- 
 ments in the several parishes or hamlets of Highham Lowham Aller 
 Pitney Long Sutton Huish Episcopi Butleigh Ashcott and Greinton in 
 the said county in respect whereof and of the rights of common 
 severally appurtenant thereto the divisions and allotments of the said 
 moor were thereby assigned and allotted unto the same parishes or 
 hamlets respectively; that the said commissioners thereby ordered and 
 directed that the said drove-way should for ever thereafter be repaired 
 b}^ the several owners tenants and occupiers for the time being of all 
 and singular the tenements in the several parishes or hamlets of High- 
 bam Lowham Aller Pitney Long Sutton and Huish Episcopi in respect 
 whereof and of the rights of common severall}- appurtenant thereto the 
 divisions and allotments of the moor were thereby assigned and allotted 
 unto the same parishes or hamlets respectively in equal shares and pro- 
 portions, when and so often as need should be &c ; by reason whereof 
 the said private road and drove-wa}' became and was a private road 
 and drove-wa}' for the purposes above mentioned, and by virtue of the 
 said act and of the said award liable for ever hereafter to be from time 
 to time amended and kept in repair in the manner and by the means 
 aforesaid ; that on &c. the said wa}', called Henley Drove- Wa}', was 
 ruinous and in decay for want of needful reparation thereof; that 
 J. Richards late of Highham, and the five other defendants, (describ- 
 ing them respectively as of the parishes of Lowham, Aller, Pitney, 
 Long Sutton, and Huish Episcopi) being severall}' and respectively 
 owners tenants and occupiers of certain tenements in the seyeral
 
 SECT. III.] REX V. EICHAKDS. 83 
 
 parishes or hamlets of Highhain Lowham AUer Pitney Long Sutton 
 and Huish Episcopi, in respect whereof and of the rights of common 
 severall}- appurtenant thereto the divisions and allotments of the said 
 moor were thereby assignecl unto the same parishes or hamlets, and 
 being persons interested in the said moor, and by virtue of the premises 
 liable to keep in repair and amend the said drove-way, had not duly 
 repaired and amended the same &c. The defendants pleaded not 
 guilty; and on the trial at the last, assizes at Bridgewater before 
 Mr. Justice Grose the jury found a special verdict.^ When this case 
 was called on in the paper for argument, The Court asked the prose- 
 cutor's counsel on what ground it could be contended that this was an 
 indictable offence, the road in question being only a private road? 
 
 Praed^ for the prosecutor, answered that this though a private road 
 was set out by virtue of a public act of parliament, under which the 
 defendants were directed to repair it ; that consequently the not repair- 
 ing was a disobedience of a public statute, and therefore the subject 
 of an indictment. That this might be considered to a certain degree 
 as concerning the public ; that even " a private act of parliament may 
 oe given in evidence without comparing it with the record, if it con- 
 cern a whole county, as the act of Bedford Levels." 12 Mod. 216. 
 And that there was no other remedy than the present, because it 
 appeared by the specia\ verdict that there were no less than two 
 hundred and fifty persons who were liable to the repair of this road, 
 and that the difficulty of suing so many persons together was almost 
 insuperable. 
 
 But the Court interposed, and said that, however convenient it 
 might be that the defendants should be indicted, there was no legal 
 ground on which this indictment could be supported. That the known 
 rule was that those matters only that concerned the public were the 
 subject of an indictment. That the road in question being described 
 to be a private road did not concern the public, nor was of a public 
 nature, but merely concerned the individuals who had a right to use it. 
 That the question was not varied by the circumstance that many indi- 
 viduals were liable to repair, or that many others were entitled to the 
 benefit of it ; that each party injured might bring his action against 
 those on whom the duty was thrown. That the circumstance of this 
 road having been set out under a public act of parliament did not make 
 the non-repair of it an indictable offence ; that many public acts are 
 passed which regulate private rights, but that it never was conceived 
 that an indictment lay on that account for an infringement of such 
 rights. That here the act was passed for a private purpose, that of 
 dividing and allotting the estates of certain individuals. That even 
 if it were true that there was no remedy by action the consequence 
 would not follow that an indictment could be supported ; but that 
 in truth the parties injured had another legal remedy. 
 
 Judgment for the defendants. 
 
 1 The special verdict is omitted. — Ed.
 
 84 COMMONWEALTH V. KING. [CHAP. II, 
 
 COMMONWEALTH v. KING. 
 
 Supreme Judicial Court of Massachusetts. 1847. 
 
 [Reported 13 Met. 115.] 
 
 The indictment, in this case, alleged that there was a common and 
 public highway in the town of Sutton, called the Old Central Turnpike, 
 and that the defendant, on the 1st of August 1846, "did unlawfully 
 and injuriously put, place, lay and continue a large quantity of stones, 
 in and upon a part of said highwa}', to wit, upon a space thereof ten 
 rods long and one rod wide, and the said stones, so placed as aforesaid, 
 he the said Wm. King, from said first day of August, until the finding 
 of this bill, unlawfully and injurious!}' did keep, continue and maintain, 
 in and upon said highway, whereb}' the same has been, during all the ^ 
 time aforesaid, and still is, greatly narrowed, obstructed and stopped 
 up," &c. "against the peace," &c. "and coutrar}- to the form of the 
 statute in such case made and provided." ^ 
 
 Dewey, J. . . . The next enquiry is, whether the facts alleged con- 
 stitute an offence at common law. Upon this point we have no doubt. 
 By the location of a public highway, with certain defined exterior limits, 
 the public acquire an easement coextensive with the limits of such 
 highwj)}". Whoever obstructs the full enjoyment of that easement, by 
 making deposits, within such limits of the located highway, of timber, 
 stones or other tilings, to remain there and occupy a portion of such 
 public highway, is guilty of a nuisance at common law. 
 
 It was contended by the counsel for the defendant, that the rights of 
 the public are confined exclusively to the made or travelled road, or to 
 that part which might be safely and properly used for travelling ; and 
 that a deposit of timber, stones or other articles, upon a part of the 
 Ipcated highway, which, from its want of adaptation to use for travel, 
 could not be thus enjoyed, — as a portion of the way on which there 
 was a high bank, or a deep ravine, — would not subject the party to an 
 indictment for a nuisance upon the highway. This principle is sup- 
 posed to be sanctioned by the decisions of this court in reference to the 
 rights of travellers, holding that such travellers are to use the travelled 
 or made road, and that if such road is of suitable width, and kept in 
 proper repair, the town may have fully discharged its duty, although 
 it has not made and kept in repair a road of the entire width of the - 
 located highway. But there is a manifest distinction between the two 
 cases. In the case supposed, the traveller has all the benefits of a 
 public way secured to him. He only requires a road of proper width, 
 and kept in good repair. But the town, on the other hand, to enable 
 itself to discharge its obligation to the public, requires the full and 
 
 1 Only so much of the case as inrolves the question of a nuisance at common law 
 is given. — Ed.
 
 SECT. III.] PEOPLE V. liUGGLES. 85 
 
 entire use of the whole located highwa}-. The space between the made 
 road and the exterior limits of the located higliway raa\- be required 
 for various purposes ; as for making and keeping in repair the travelled 
 path ; for making sluices and water-courses ; for furnishing earth to 
 raise the road. And, not unfrequently, from the location of the road 
 and from its exposure to be obstructed by snow, the entire width of 
 the located road is required to be kept opeu, to guard against accumu- 
 lations of snow that might otherwise wholly obstruct tlic public travel 
 at such seasons. For these and other uses, in aid of what is the lead- 
 ing object, the keeping in good repair of the made or travelled road, 
 the general easement in the public, acquired b}- the location of a high- 
 way, is coextensive with the exterior limits of the located highwaj' ; 
 and the question of nuisance or no nuisance does not depend upon the 
 fact, whether that part of the highwa}-, which is alleged to have been 
 unlawfully entered upon and obstructed by the defendant, was a portion 
 of the highway capable of being used by the traveller. Whether it be 
 so or not, an entry upon the located highway, and occupation of any 
 portion of it by deposits of lumber, stones, &c., would be a nuisance, 
 and subject the party to an indictment therefor.^ 
 
 PEOPLE V. RUGGLES. 
 Supreme Court of New York. 1811. 
 
 [Reported 8 Johns. 290.] 
 
 Inoictment for blasphem}-. After conviction the record was removed 
 to the Supreme Court. Wendell, for the prisoner, now contended that 
 the offence charged in the indictment was not punishable by the law of 
 this state, though, he admitted, it was punishable by the common law 
 of England, where Christianity makes part of the law of the land, on 
 account of its connection with the established church.^ 
 
 Kent, C. J. And why should not the language contained in the 
 indictment be still an offence with us? There is nothing in our man- 
 ners or institutions which has prevented the application or the necessity 
 of tills part of the common law. We stand equally in need, now as 
 formerly, of all that moral discipline, and of those principles of virtue, 
 which help to bind society together. The people of this state, in com- 
 mon with the people of this country, profess the general doctrines of 
 Christianity, as the rule of their faith and practice ; and to scandalize 
 the author of these doctrines is not onh', in a religious point of view, 
 extremely impious, but, even in respect to the obligations due to soci- 
 
 1 See Hall's Case, 1 Mod. 76 ; State v. Peckard, 5 Harr. (Del.) 500 ; State v. Use- 
 fnl Manufactures Society, 44 N. J. Law 502 ; People v. Cunningham, 1 Den. (N. Y.) 
 524. 
 
 ' This short statement is substituted for that of the reporter. Only so much of the 
 opinion is giren as discusses the argument above advanced. — Ed.
 
 86 PEOPLE V. RDGGLES, [CHAP. II. 
 
 ety, is a gross violation of decency and good order. Nothing could be 
 more offensive to the virtuous part of the cornmunitv, or more injurious 
 to the tender morals of the young, than to declare such profanity law- 
 ful. It would go to confound all distinction between things sacred and 
 profane ; for to use the words of one of the greatest oracles of human 
 wisdom, " profane scoffing doth by little and little deface the reverence 
 for religion;" and who adds, in another place, "two principal causes 
 have I ever known of atheism, — curious controversies and profane 
 scoffing." (Lord Bacon's Works, vol. ii, 291, 503.) Things which 
 corrupt moral sentiment, as obscene actions, prints and writings, and 
 even gross instances of seduction, have, upon the same principle, been 
 held indictable ; and shall we form an exception in these particulars to 
 the rest of the civilized world? No government among any of the 
 polished nations of antiquity, and none of the institutions of modern 
 Europe (a single and monitory case excepted), ever hazarded such a 
 bold experiment upon the solidity of the public morals, as to permit 
 with impunity, and under the sanction of their tribunals, the general 
 religion of the community to be openly insulted and defamed. The 
 very idea of jurisprudence with the ancient lawgivers and philosophers 
 embraced the religion of the country. Jurlspnidentia est divinarum 
 atque hinnannrum rennn notitia. (Dig. b. 1. 10. 2. Cic. De Legibus, 
 b. 2. passim.) 
 
 The free, equal, and undisturbed enjoyment of religious opinion, 
 whatever it may be, and free and decent discussions on any religious 
 subject, is granted and secured ; but to revile, with malicious and blas- 
 phemous contempt, the religion professed by almost the whole commu- 
 nity, is an abuse of that right. Nor are we bound, by any expressions 
 in the constitution, as some have strangely supposed, either not to 
 punish at all, or to punish indiscriminately the like attacks upon the 
 religion of Mahomet or of the grand Lama ; and for this plain reason, 
 that the case assumes that we are a Christian people, and the morality 
 of the country is deeply ingrafted upon Christianity, and not upon the 
 doctrines or worship of those impostors. Besides, the offence is crimen 
 malitice, and the imputation of malice could not be inferred from any 
 Invectives upon superstitions equally false and unknown. We are not 
 to be restrained from animadversion upon offences against public de- 
 cency, like those committed by Sir Charles Sedley (1 Sid. 168), or by 
 one RoUo (Sayer, 158), merely because there may be savage tribes, and 
 perhaps semi-barbarous nations, whose sense of shame would not be 
 affected by what we should consider the most audacious outrages upon 
 decorum. It is sufl3cient that the common law checks upon words and 
 actions, dangerous to the public welfare, apply to our case, and are 
 suited to the condition of this and every other people whose manners 
 are refined, and whose morals have been elevated and inspired with a 
 more enlarged benevolence, by means of the Christian religion.^ 
 
 1 Ace. Updegraph i;. Com., II S. &R. (Pa.) 394. — Ed.
 
 SECT. Ill] STATE V. LINKHAW. 87 
 
 REGINA V. BRADLAUGH. 
 
 ASSIZES. 
 
 [Reported 15 Cox C. C. 217.] 
 
 Lord Coleridge, C. J.' . . . . But I have told 3'ou that, with re- 
 gard to these libels, they are, in my judgment, in an}' view of the law, 
 blasphemous libels. It is not mere)}- that the}- asperse the doctrine of 
 Christianity ; it is not merely that they question particular portions of 
 the Hebrew Scriptures. I should suppose that there are few reasoning, 
 thoughtful men to whom the character of David and the acts of Jehu 
 may not have occasioned considerable question ; and to find them rep- 
 resented as approved by an ail-pure and all-merciful God may and must 
 have raised very strong doubts. And if these things were argued 
 with due gravit}- and propriety, I for one would never be a part}-, unless 
 the law were clear, to saying to any man who put forward his views on 
 those most sacred things, that he should be branded as apparently 
 criminal because he differed from the majority of mankind in his relig- 
 ious views or convictions on the subject of religion. If that were so, 
 we should get into ages and times which, thank God, we do not live in, 
 when people were put to death for opinions and beliefs which now al- 
 most all of us believe to be true. It is not a question of that sort at all. 
 It is a question, first of all, whether these things are not in an}' point 
 of view blasphemous libels, whether the}- are not calculated and intended 
 to insult the feelings and the deepest religious convictions of the great 
 majority of the persons amongt whom we live ; and if so, they are not 
 to be tolerated any more than other nuisance is tolerated. We must 
 not do things that are outrageous to the general feeling of propriety 
 among the persons amongst whom we live. 
 
 STATE V. LINKHAW. 
 Supreme Court of North Carolina. 1873. 
 
 [Reported 69 N. C. 214.] 
 
 Settle, J. The defendant is indicted for disturbing a congre- 
 gation while engaged in divine worship, and the disturbance is 
 alleged to consist in his singing, which is described to be so peculiar 
 as to excite mirth in one portion of the congregation and indigna- 
 tion in the other. 
 
 From the evidence reporteil by his honor who presided at the 
 
 ^ An extract from the charge only is given. — Ed.
 
 88 liEX V. LYNN. [chap. II. 
 
 trial, it appears that at the end of each verse his voice is heard 
 fifter all the other singers have ceased, and that the disturbance is 
 decided and serious ; that the church members and authorities 
 expostulated with the defendant about his singing and the disturb- 
 ance growing out of it; to all of which he replied "that he would 
 worship his God, and that as a part of his worship it was his duty 
 to sing." It was further in evidence that the defendant is a strict 
 member of the church, and a man of most exemplary deportment. 
 
 " It was not contended by the State upon the evidence that he 
 had any intention or purpose to disturb the congregation ; but on the 
 contrary, it was admitted that he was conscientiously taking part in 
 the religious services." 
 
 This admission by the State puts an end to the prosecution. It is 
 true, as said b}- his honor, that a man is generally presumed to intend 
 consequences of his acts, but here the presumption is rebutted by a fact 
 admitted by the State. 
 
 It would seem that the defendant is a proper subject for the disci- 
 pline of his church, but not for the discipline of the courts. 
 
 Venire de novo} 
 
 REX V. LYNN. 
 King's Bench. 1789. 
 
 [Reported Leach {4lh 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 talven 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 an}' court of criminal jurisdiction at 
 the common law. But by the Court, the office is cognizable in a 
 criminal court, as highl}- 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 probabilitv of his having committed this crime 
 merely from ignorance, was only fined five marks. ^ 
 
 I See State v. Jasper, 4 Dev. (N. C.) 323. 
 
 * See Reg. v. Jacobson, 14 Cox, C. C. 522. — Ed.
 
 SECT. III.] kanavan's case. 89 
 
 KANAVAN'S CASE. 
 Supreme Judicial Court of Maine. 1821. 
 
 [Reported 1 Greenleaf, 226. J 
 
 The second count stated that the defendant unlawfully and indecently 
 took the body of [a] child and threw it into the river, against common 
 decenc}', &c.^ 
 
 The defendant being convicted on the second count, a motion was 
 made in arrest of judgment, on the ground that the offence charged was 
 not indictable at common law. 
 
 By the Court. We have no doubt upon this subject, and do not 
 hesitate a moment to pronounce the indictment to be good and suffi- 
 cient, and that there must be sentence against the prisoner. 
 
 From our childhood we all have been accustomed to pay a reveren- 
 tial respect to the sepulchres of our fathers, and to attach a character 
 of sacredness to the grounds dedicated and enclosed as the cemeteries 
 of the dead. Hence, before the late statute of Massachusetts was en- 
 acted, it was an offence at common law to dig up the bodies of those 
 who had been buried for the purpose of dissection. It is an outrage 
 upon the public feelings, and torturing to the afflicted relatives of the 
 deceased. If it be a crime thus to disturb the ashes of the dead, it 
 must also be a crime to deprive them of a decent burial, by a disgraceful 
 exposure, or disposal of the body contrary to usages so long sanctioned, 
 and which are so grateful to the wounded hearts of friends and mourn- 
 ers. If a dead body may be thrown into a river, it ma}' be cast into a 
 street ; if the body of a child, so the bod}' of an adult, male or female. 
 Good morals, decency, our best feelings, the law of the land, — all for- 
 bid such proceedings. It is imprudent to weaken the influence of tha^. 
 sentiment which gives solemnity and interest to everything connected 
 with the tomb. 
 
 Our funeral rites and services are adapted to make deep impressions 
 and to produce the best effects. The disposition to perform with all 
 possible solemnity the funeral obsequies of the departed is universal iu 
 our countr}' ; and even on the ocean, where the usual method of sepulture 
 is out of the question, the occasion is marked with all the respect which 
 circumstances will admit. Our legislature, also, has made it an offence 
 in a civil officer to arrest a dead body by any process in his hands 
 against the part}- while living ; it is an affront to a virtuous and decent 
 public, not to be endured. 
 
 It is to be hoped that punishment in this instance will serve to 
 correct any mistaken ideas which may have been entertained as to 
 the nature of such an offence as this of which the prisoner stands 
 convicted.
 
 90 COMMONWEALTH V. SHARPLESS. [CHAP. II. 
 
 COMMONWEALTH v. SHARPLESS. 
 Supreme Court of Pennsylvania. 1815. 
 
 [Reported 2 Sergeant ^- Rawle, 91.] 
 
 TiLGHMAN, C. J.* This is an indictment against Jesse Sharpless 
 and others for exhibiting an indecent picture to divers persons for 
 money. The defendants consented that a verdict should go against 
 them, and afterwards moved in arrest of judgment for several reasons. 
 
 1. "That the matter laid in the indictment is not an indictable 
 offence." It was denied, in the first place, that even a public exhibi- 
 tion of an indecent picture was indictable ; but supposing it to be so, 
 it was insisted that this indictment contained no charge of a public 
 exhibition. In England there are some acts of immorality, such as 
 adultery, of which the ecclesiastical courts have taken cognizance from 
 very ancient times, and in such cases, although they tended to the cor- 
 ruption of the public morals, the temporal courts have not assumed 
 jurisdiction. This occasioned some uncertainty in the law ; some dif- 
 ficulty in discriminating between the offences punishable in the tem- 
 poral and ecclesiastical courts. Although there was no ground for 
 this distinction in a country like ours, where there was no ecclesiastical 
 jurisdiction, yet the common law principle was supposed to be in 
 force, and to get rid of it punishments were inflicted by act of assem- 
 bly. There is no act punishing the offence charged against the 
 defendants, and therefore the case must be decided upon the prin- 
 ciples of the common law. That actions of public indecency were 
 always indictable, as tending to corrupt the public morals, I can have 
 no doubt; because, even in the profligate reign of Charles II., Sir 
 Charles Sedley was punished by imprisonment and a heavy fine for 
 standing naked in a balcony in a public part of the city of London. 
 It is true that, besides this shameful exhibition, it is mentioned in 
 some of the reports of that case that he threw down bottles containing 
 offensive liquor among the people ; but we have the highest authority 
 for saying that the most criminal part of his conduct, and that which 
 principally drew upon him the vengeance of the law, was the exposure 
 of his person. For this I refer to the opinion of the judges in The 
 Queen v. Curl, 2 Str. 792 ; Lord Mansfield, in The King v. Sir Francis 
 Blake Delaval, &c., 3 Burr. 1438, and of Blackstone, in the 4th vol- 
 ume of his Commentaries, page 64. Neither is there any doubt that the 
 
 1 Part of this opinion only is given. Yeates, J., delivered a concurring opinion.
 
 SECT. III.] COMMONWEALTH V. SHARPLESS. 91 
 
 publication of an indecent book is indictable, although it was once 
 doubted by the Court of King's Bench, in The Queen v. Reed (in the 
 sixth year of Queen Anne). But the aiithoiity of that case was 
 destroyed, ujjon great cousideratiou, in The King v. Curl (1 George 
 II.), 2 Str. 788. The law was in Curl's case established upon true 
 principles. What tended to corrupt society was held to be a breach 
 of the peace and punishable by indictment. The courts are guardians 
 of the public morals, and therefore have jurisdiction in such cases. 
 Hence it follows tluit an offence may be punishable if in its nature 
 and by its example it tends to the corruption of morals, although it be 
 not committed in public. In The King v. Delaval, &c., there was a 
 conspiracy, and for that reason alone the court had jurisdiction ; yet 
 Lord Mansfield expressed his opinion that they would have had juris- 
 diction from the nature of the offence, whicli was the seduction of a 
 young woman under the age of twenty-one, and placing her in the 
 situation of a kept mistress, under the pretence of binding her as an 
 apprentice to her keeper ; and he cited the opinion of Lord Hardwicke, 
 who ordered an information to be filed against a man who had made a 
 formal assignment of his wife to another person. In support of this 
 we find an indictment in Trem. PI. 213 (The King v. Dingley), for 
 seducing a married woman to elope from her husband. Now, to apply 
 these principles to the present case. The defendants are charged 
 with exhibiting and showing to sundry persons, for money, a lewd, 
 scandalous, and obscene painting. A picture tends to excite lust as 
 strongly as a writing ; and the showing of a picture is as mucli a pub- 
 lication as the selling of a book. Curl was convicted of selling a 
 book. It is true, the indictment charged the act to have been in a pub- 
 lic shop, but that can make no diff"erence. The mischief was no 
 greater than if he had taken the purchaser into a private room and 
 sold him the book there. The law is not to l^e evaded by an artifice of 
 that kind. If the privacy of the room was a protection, all the youth 
 of the city might be corrupted by taking them one by one into a 
 chamber, and there inflaming their passions by the exhibition of las- 
 civious pictures. In the eye of the law this would be a publication, 
 and a most pernicious one. Then, although it is not said in the 
 indictment in express terms that the defendants published the paint- 
 ing, yet the averment is substantially the same, that is to say, that 
 they exhibited it to sundry persons for money ; for that in law is a 
 publication. 
 
 Motion in arrest of judgment overruled, and judgment on 
 the verdict} 
 
 1 See Reg. v. Grey, 4 F. & F, 73 ; Reg. v. Saunders, 1 Q. B. D. 15; Pike v. Com, 
 2 Duv. (Ky.) 89. — Ed.
 
 92 REX V. DE LAVAL. [CHAP. II. 
 
 REX V. DELAVAL. 
 King's Bench. 1763. 
 
 [Reported 3 Burrow, 1434.] 
 
 Lord Mansfield now delivered the opinion of the court.^ 
 
 This is a motion for fin information 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 j^urpose of 
 prostitution ; contrar}' to decenc}' and moralit}-, 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 b}' 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, indirect!}' assigns her to Sir Francis, as much as it 
 was in his power to assign her over ; and this is done, plainl}' 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 emplo3ed to pa}- 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 pai'ties are signed bv 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, b}- 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 chancer}', 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 
 
 * Part of the opinion only is given.
 
 SECT. III.J REGINA V. BRANWOKTH. 93 
 
 notoriously and grossly against public decency and good manners. 
 And so is the present ease. 
 
 It is true that many offences of the incontinent kind fall properl}' 
 under the jurisdiction of the ecclesiastical court, and are ai)propri- 
 ated to it. But if you except those appropriated cases, this court is 
 the custos morum of the people, and has the superintendency of 
 offences contra bo»os ?nores ; 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. ^ 
 
 REGINA V. BRANWORTH. 
 King's Bench. 1704. 
 
 [Reported 6 Mod. 240.] 
 
 Indictment by a jury of the town of Portsmouth, " for that he. 
 being an idle person, did wander in the said town selling of small 
 wares as a petit chapman." 
 
 To maintain' this indictment it was urged that a petit chapman is a 
 vagabond hy the statute of 39 Eliz. c. 4. ; and though some petit 
 chapmen, that is, such as are legally qualified by the statute of 8 & 9 
 Will. 3, 25, may now lawfully use that occupation, 3'et that act excepts 
 boroughs and corporations, so that as to them they remain in statu quo. 
 
 Holt, Chief Justice. Is a vagabond quatenus such, indictable? It 
 seems not ; for at common law a man might go where he would ; but if 
 he be an idle and loose person, you ma}' take him up as a vagrant, and 
 bind him to his good behaviour by the common law ; and b}- the Statute 
 of Labourers he may be compelled to serve. There is indeed a way by 
 law of punishing incorrigible rogues, b}' burning them in the shoulder, 
 and sending them to the gallies ; from whence it may be urged, that 
 there must be a way before of convicting them of being rogues, because 
 they cannot otherwise be punished as incorrigible rogues; and there- 
 fore that conviction must first be by indictment. 
 
 But by Holt, Chief Justice, No ; but by being judged by a justice of 
 peace to be a vagrant, and used by him as such ; and if he offend again, 
 he ma}- be indicted as a common vagrant. 
 
 Rule for quashing it was enlarged. 
 
 1 See Reg. v. "Webb, 1 Den. C. C. .33S'; Reg. v. Elliot, L. & C. 103. — Ed.
 
 94 BAKER V. STATE. [CHAP. II. 
 
 BAKER V. STATE. 
 
 Supreme Court of New Jersey. 1890. 
 
 [Reported 53 N. J. Law, 45.] 
 
 Dixon, J.^ The plaintiff in error was convicted in the Camden 
 Quarter Sessions of being a common scold. 
 
 One ground on which she seeks a reversal of the judgment is because 
 the indictment does not state the particular facts which make a com- 
 mon scold. But it is not necessary that the indictment should be so 
 explicit. It is enough for it to aver that the accused is a common 
 scold, to the common nuisance, etc. Where the offence consists, not 
 of a single act, but of a habitual course of conduct, an indictment need 
 not charge the details of that conduct, which are only evidence of the 
 misdemeanor, but must charge the general practice which constitutes 
 the crime itself Hawk., bk. 2, ch. 25, §§ 57, 59; Commonwealth v. 
 Pray, 13 Pick. 359, 362 ; Whart. Cr. PI. & Pr., § 155. 
 
 Another reason urged for reversal is, that the court charged the jur}- 
 as follows : " The evidence on the part of the state consists of a number 
 of witnesses who have sworn, not that she only scolded one person at 
 one time, but that she did it to several persons on several occasions. 
 Now, if you believe she did that thing, if you believe the evidence on 
 the part of the state, she is guilty of being a common nuisance to the 
 neighborhood in which she resides." 
 
 This charge did not correctly point out to the jury the facts required 
 to warrant a conviction, nor submit to their judgment, as it should, the 
 question whether such facts were proved. A woman does not neces- 
 sarily become a common scold by scolding several persons on several 
 occasions. It is the habit of scolding, resulting in a public nuisance, 
 which is criminal ; and whether the scoldings to which the State's wit- 
 nesses testified were so frequent as to prove the existence of the habit, 
 and whether the habit was indulged under such circumstances as to 
 disturb the public peace, were questions which the jury alone could 
 lawfully decide, and which were no less important than the credibility 
 of witnesses. Brown v. State, 20 Vroom 61.-^ 
 
 1 Part of the opinion is omitted. — Ed. 
 
 2 Ace. Foxby's Case, 6 Mod. 1 1 ; Com. v. Mohn, 52 Pa. 243. See State v. Davis, 
 139N. C. 547.
 
 SECT. III.] KING V. PEOPLE. 95 
 
 COMMONWEALTH v. SMITH. 
 
 Supreme Judicial Court of Massachusetts. 1850. 
 
 [Reported 6 Ciislt. 80.] 
 
 The defendants were tried before Mellen, J., in the court of common 
 pleas, and convicted, on a complaint originally made to a justice of the 
 peace, in which it was alleged that the defendants, on the 17th of April, 
 1850, at Grafton, " with force and arms, were disturbers and breakers 
 of the peace, and then and there contriving and intending to disturb the 
 peace of said commonwealth, did, in one of the public streets and other 
 public places of saitl town, utter loud exclamations and outcries, and 
 other loud noises, and did then and thereby draw together a number of 
 persons, to the great disturbance of divers citizens, in evil example 
 to all others in like cases to offend against good morals, against the 
 peace of said commonwealth, and contrary to the form of the statutes 
 in such case made and provided." 
 
 The defendants moved in arrest of judgment, on the ground that no 
 offence was set forth and alleged in the complaint. The motion was 
 overruled, and the defendants excepted. 
 
 Dew^ey, J. The judgment in this case must be arrested. No offence 
 is technically charged in this complaint. The " disturbance of divers 
 citizens " by noises in the public streets is not a proper setting out of 
 the offence here intended to l)e charged. If the acts done by the par- 
 ties constitute any criminal offence, it is that of a nuisance. As such 
 it ought to have been alleged that the noises made b}' the defendants 
 were to the great damage and common nuisance of all the citizens of 
 the commonwealth there inhabiting, being, and residing, &c. 
 
 Judgment arrested} 
 
 KING V. PEOPLE. 
 
 Court of Appeals of New York. 1881. 
 
 [Reported 83 N. Y 587] 
 
 Andrews, J. The indictment charges the plaintiff in error with 
 keeping a disorderh' and common bawdy and gambling house, con- 
 cluding ad commune nocumentum. The evidence abundantly sus- 
 tained the charge, and justified the jury in. finding that the defendant 
 kept a house to which gamblers and prostitutes resorted for the pur- 
 pose of gambling and prostitution. 
 
 1 See State r. Appling, 25 Mo. 315 ; State v Powell, 70 N. C. 67 , Com. »;. Linn (Pa.) 
 27 Atl. 843 ; Com. v. Spratt, 14 Phila. (Pa.) 365 ; Bell v. State, 1 Swan (Tenn.) 42.
 
 96 KING V. PEOPLE. fCHAP. II. 
 
 The court, in the course of the charge, stated to the jury that it was 
 not necessary, to constitute the offence of keeping a disorderly house, 
 that the public should be disturbed by noise, and refused to charge 
 that, in order to convict the defendant of keeping a disordeiiy house, 
 the jury must find that the house was so kept as to disturb, annoy, and 
 disquiet the neighbors and the people passing and repassing the house. 
 An exception was taken to the charge in this respect and to the refusal 
 to charge as requested. 
 
 The exception was not well taken. Tlie keeping of a common 
 bawd}' or gambling house constitutes the house so kept a disorderly 
 house and an indictable nuisance at common law. Rex v. Dixon, 10 
 Mod. 335 ; 1 Hawk. P. C. 693. It is a public offence, for the reason 
 that its direct tendency is to debauch and corrupt the public morals, to 
 encourage idle and dissolute habits and to disturb the public peace. It 
 is not an essential element that it should be so kept that the neighbor- 
 hood is disturbed by the noise, or that the immoral practices should be 
 open to public observation. The law, it is true, gives a remedy by 
 indictment against those who unduly disturb the quiet of a community 
 by noises which tend to impair the enjoyment of life, but it does not 
 refuse cognizance of those for greater public injuries, which arise from 
 practices which destroy the peace of families and disturb and under- 
 mine the foundations of social order and virtue. 
 
 The-court also charged, that if prostitutes came to the defendant's 
 saloon for the purpose of prostitution, and there consummated their 
 intent, to the knowledge and with the consent of the defendant, the 
 jury should find him guilty. The defendant's counsel excepted, and 
 requested the court to charge that, in order to find the defendant 
 guilty of keeping a bawd}' house, the jury must find that he kept his 
 house for tlie resort and unlawful commerce of lewd people of both 
 sexes. The court said : "I have charged the jury on that subject, and 
 decline to change my charge ; I have substantially so charged ; " and 
 exception was taken to the refusal of the court to charge as requested. 
 In this there was no error. If the defendant's house was the resort of 
 prostitutes plying their vocation there, to the knowledge of the defend- 
 ant, the house was a bawdy house ; and this was what in substance the 
 court charged, and the court, in stating that it had charged substan- 
 tially as requested by the defendant's counsel, gave the defendant the 
 benefit of the definition contained in his request. 
 
 The defendant's counsel requested the court to charge that the pla^'- 
 in^- of cards in the defendant's house does not, of itself, make it a 
 gambling house ; and the court, in reply, said : " Except that it is the 
 gambling for money that makes it a disorderly house." The defend- 
 ant's counsel excepted. The request was directed to the point that 
 the mere playing of cards in a house did not constitute the house a 
 gambling house ; and the remark of the court, in response to the 
 request, amounted to an assent to this proposition. 
 
 The defendant's counsel claims that the remark is to be construed
 
 SECT. III.] REX V. SMITH. 97 
 
 as affirming tliat if tlie jury should find that tlic defendant permitted 
 gaming in his house on a single occasion he could be convicted. But 
 the remark of the court is to be construed in connection with the pre- 
 vious charge and the occasion on which it was made. The court had 
 stated to the jur}' that if the defendant kept a gambling house, where 
 gamblers resorted to play for money and did so [)lay, to the knowledge 
 of the defendant, he was guilty. The counsel requested the court to 
 charge a specific proposition, which the court substantialh- consented 
 to, and added the element to which the defendant's request pointed, 
 viz. , that the playing must be for money in order to make the house a 
 gambling house. If the defendant desired a specific instruction upon 
 the point now made, he should have requested it. The court had 
 properly defined the offence of keeping a gambling house, and the 
 remark of the court clearly referred to a house of this character. 
 
 These are all the exceptions relied upon bj' counsel. We think none 
 of them are well taken, and that the conviction should be affirmed. 
 
 All concur. Judgment affirmed} 
 
 REX y. SMITH. 
 King's Bench. 1726. 
 
 [Reported 1 Strange, 704.] 
 
 The defendant was convicted on an indictment for making great 
 noises in the night with a speaking trumpet, to the disturbance of the 
 neighboihood ; which the court held to be a nuisance, and fined the 
 defendant £5. 
 
 1 See De Forest v. U. S., 11 App. D. C. 458; Smith ?;. Com., 6 B. Mon. (K7.) 21 ; 
 State V. Haiiies, 30 Me. 65 ; People v. Jackson, 3 Den. (N. Y.) 101. — Ed.
 
 98 HALL'S CASE. [CHAP. U- 
 
 REX V. CROSS. 
 
 Westminster Sittings. 1826. 
 [Reported 2 C. ^ P. 483.] 
 
 Indictment for a nuisance in keeping a house for slaughtering horses 
 at a place called Bell Isle, in the parish of St. Mary, Islington. There 
 were also counts framed on a i)rivate Act of Parliament, 59 Geo. IIIc 
 c. 39, s. 88, on which no question was raised. Plea, nob guilty. 
 
 It was proved that very offensive smells proceeded from the defend- 
 ant's slaughtering house to the annoyance of those who lived near it, 
 and also of persons who passed along a turnpike road, leading from 
 Battle Bridge to HoUoway. 
 
 The defendant put in a certificate and license under the statute 26 
 Geo. III. c. 71, s. 1, authorizing him to keep a house for the slaughter- 
 ing of horses. 
 
 Abbott, C. J. This certificate is no defence, and even if it were a 
 license from all the magistrates in the county to the defendant to 
 slaughter horses in this very place it would not entitle the defendant to 
 continue the business there one hour after it becomes a public nuisance 
 to the neighborhood. If a certain noxious trade is already established 
 in a place remote from habitations and public roads, and persons after- 
 wards come and build houses within the reach of its noxious effects, or 
 if a public road be made so near to it that the carrying on of the trade 
 becomes a nuisance to the persons using the road ; in those cases the 
 party would be entitled to coniinue his trade, because his trade was 
 legal before the erection of the houses in the one case and the making 
 of the road in the other. Verdict, Guilty.^ 
 
 HALL'S CASE. 
 
 King's Bench. 1671. 
 
 [Reported 1 Ventris, 169.] 
 
 Complaint was made to the Lord Chief Justice by divers of the 
 Inhabitants about Charing-Cross, that Jacob Hall was erecting of a 
 great booth in the street there, intending to show his feats of activity, 
 and dancing upon the ropes there, to their great annoyance by reason 
 of the crowd of idle and naughty people that would be drawn thither, 
 and their apprentices inveigled from their shops. 
 
 Upon this the Chief Justice appointed him to be sent for into the 
 court, and that an indictment should be presented to the grand jury of 
 
 1 See Com. v. Perry, 139 Mass. 198.
 
 SECT. III.] ANONYMOUS. 99 
 
 this matter ; and withal the court warned him, that he should proceed 
 no further. 
 
 But he being dismissed, they were presently after informed tliiit he 
 caused his workmen to go on. Whereupon they commanded the mar- 
 shal to fetch him into court , and being brought in and demanded, 
 how he durst go on in contempt of the court, he with great impudence 
 affirmed, that he had the King's warrant for it, and promise to bear him 
 harmless. 
 
 Then they required of him a recognizance of £300, that he should 
 cease further building ; wliich he obstinately refused and was commit- 
 ted. And the court caused a record to be made of this nuisance, as 
 upon their own view (it being in their way to Westminster), and awarded 
 a writ thereupon to the Sheriff of Middlesex, commanding him to pros- 
 trate the building. 
 
 And the court said, things of this nature ought not to be placed 
 amongst people's habitations, and that it was a nuisance to the King's 
 royal palace ; besides that it straitened the way and was insufferable in 
 that respect.^ 
 
 ANONYMOUS. 
 
 Nisi Pkius. 1699. 
 
 [Reported 12 Moder7i, 3A2.] 
 
 One was indicted for a nuisance for keeping several barrels of gun- 
 powder in a house in Brentford town, sometimes two days, sometimes a 
 week, till he could conveniently send them to London. Wherein 
 
 Holt, C. J., resolved, 1st. That to support this indictment there must 
 be apparent danger, or mischief already done.^ 
 
 2dly. Though it had been done for fifty or sixty years, yet if it be a 
 nuisance time will not make it lawful. 
 
 3dly. If, at the time of setting up this house in which the gunpowder 
 is kept there had been no houses near enough to be prejudiced by it, 
 but some were built since, it would be at peril of builder. 
 
 4thly. Though gunpowder be a necessary thing, and for defence ot 
 the kingdom, yet if it be kept in such a place as it is dangerous to the 
 mhabitants or passengers it will be a nuisance. 
 
 » See Rex v. Bradford, Comb. 304. 
 
 « See Feo. v. Sands, 1 Johns. (N, Y.) 78.
 
 100 REX V. BURNETT. fCHAP. II. 
 
 KEX V. BURNETT. 
 
 King's Bench. 1815. 
 
 [Reported 4 Maule and Selwijn, 272.] 
 
 The defendant, an apothecaiy, 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 tlie 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. S., 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, 
 dwellinsf-houses, etc., who had not had the disease, and ad commune 
 nocu7nenti(,m, etc. 
 
 The indictment being removed into this court, the defendant pleaded 
 not guilty, and was found guilty. 
 
 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 this 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 
 their recovery, air and exercise. And in Rex v. Sutton, which was an 
 indictment for keeping an inoculating house, and therefore much more 
 likely to spread infection than what has been done here, the court said 
 that the defendant might demur. 
 
 Lord Ellenborough, C. J. The indictment lays it to be unlawfully 
 and injuriously, and to make that out, it must be shown that what was 
 done was in the manner of doing it incautious, and likely to affect the 
 health of others. The words unlawfully and injuriously preclude all
 
 SECT. III.] KEGINA V. PARDENTON. 101 
 
 legal cause of excuse. And though inoculation for the small pox may 
 be practised lawfully and innocently, j'et it must be under such guards 
 as not to endanger the public health b}- communicating this infectious 
 disease. 
 
 Dampikk. J. The charge amounts to this, that the defendant, after 
 inoculating tlic children, unlawful!}- exposed them, while infected with 
 the disease, in the public street to the danger of the pul)lic healtli. 
 
 Le 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. 1 
 
 The defendant was seiitenced to six months' imprisotiment. 
 
 Lord Ellenborough, C J., in Williams v. East India Co., 3 East 192, 
 200. That the declaration in imputing to the defendants the having 
 wrongfully put on board a ship, without notice to those concerned "in 
 the management of the ship, an article of an highly dangerous com- 
 bustible nature, imputes to the defendants a criminal negligence cannot 
 well be questioned. In order to make the putting on board wrongful 
 the defendants must be conusant of the dangerous quality of the article 
 put on board; and if being so, the}' yet gave no notice considering the 
 probable danger thereby occasioned to the lives of those on board, it 
 amounts to a species of delinquenc}' in the persons concerned in so 
 putting such dangerous article on board, for which they are criminally 
 liable, and punishable as for a misdemeanor at least. 
 
 EEGINA V. PARDENTON. 
 Central Criminal Court. 1853. 
 [Reported 6 Cox C. C. 247.] 
 
 Richard Pardenton and Joseph Woods were indicted for unlawfully 
 and negligently driving a certain railway engine in an incautious, care- 
 less, and negligent manner, and without regarding a certain signal of 
 danger, whereby the life and limbs of divers persons were greatly en- 
 dangered. Three other counts varying the manner of stating the 
 charge. 
 
 1 See Reg. t;. Hensoii, Dears. 24 ; Reg. v. Lister, Dears. & B. 209 (but see Peopl* 
 V. Sands, 1 Johns. 78) ; U. S. v. Hart. 1 Pet. C. C. 390. — Ed.
 
 102 REX V. RODERICK. [CIIAP. II. 
 
 The indictment was founded upon the 13th, 14th, and 15th sections 
 of 3 & 4 Viet. c. 97. A difficulty occurred on the first three counts, 
 founded on the 13th section, as to the jurisdiction of this Court; it 
 being directed that upon the magistrate declining to act summarily, the 
 complaint should be removed to the Quarter Sessions.^ 
 
 Chambers [for the prosecution] admitted that there was no act 
 which placed the Central Criminal Court in the same position as a Court 
 of Quarter Sessions. But still the question would arise whether, 
 although the offence was alleged to be against the form of the statute, 
 the indictment did not disclose an offence at common law, where it 
 charged acts endangering the lives of Her Majestj^'s subjects. 
 
 Cresswell, J. Do 3'ou mean to argue that if a man were to gallop 
 a horse furiously through the public streets without hurting 2iny person, 
 that he would be guilty of a misdemeanor because he might be convicted 
 of manslaughter if an^' one were knocked down by him and killed? 
 
 Without heariug the evidence, I think this case is now ripe for de- 
 cision. Whatever construction may be put upon the 13th and 14th 
 sections of the act referred to as regards the first three counts, I have 
 no difficulty in saying that these counts do not disclose any offence at 
 common law. 
 
 SECTION IV. 
 
 Incomplete Offences. 
 
 REX V. RODERICK. 
 Stafford Assizes. 1837. 
 
 [Reported 7 C. <j- P. 795.] 
 
 Misdemeanor. The first count of the indictment charged the pris- 
 oner with unlawfully knowing a child uuder the age of twelve years. 
 Second count, for attempting so to do. Third count, for a common 
 assault. 
 
 F. V. Lee, for the prisoner, objected that an attempt to commit a 
 statutory misdemeanor was not a misdemeanor. 
 
 Godson., for the prosecution, cited the case of Rex v. Butler, 6 C. & P. 
 368. 
 
 Parke, B, If this offence is made a misdemeanor by statute, it is 
 made so for all purposes. There are many cases in which an attempt 
 to commit a misdemeanor has been held to be a misdemeanor ; and an 
 attempt to commit a misdemeanor is a misdemeanor, whether the offence 
 is created by statute or was an offence at common law. 
 
 Verdict, guilty. 
 
 1 This short statement is taken from the report in 38 Cent. Crim. Ct. Rep. 691. 
 Only so much of the case as discusses the otfence at common law is given. — Ed.
 
 SECT. IV.] REGINA V. COLLINS. 103 
 
 REGINA V. COLLINS. 
 Crown Case Reserved. 1864. 
 
 [Reported 9 Cox C. C. 497.] 
 
 Case reserved for the opinion of this court by the Deputy-Assistant 
 Judge at the Middlesex Sessions. 
 
 The prisoners were tried before me at the Middlesex Sessions on an 
 indictment which stated that they unlawfully did attempt to commit a 
 certain felony ; that is to say, that they did then put and place one or 
 the hands of each of them into the gown pocket of a certain woman, 
 whose name is to the jurors unknown, with intent the property of the 
 said woman, in the said gown pocket then being, from the person of 
 the said woman to steal, &c. 
 
 The evidence showed clearly that one of the prisoners put his hand 
 into the gown pocket of a lady, and that the others were all concerned 
 in the transaction. 
 
 The witness who proved the case said on cross-examination that he 
 asked the lady if she had lost anything, and she said " No." 
 
 For the defence it was contended that to put a hand into an empty 
 pocket was not an attempt to commit felony, and that as it was not 
 proved affirmatively that there was any property in the pocket at the 
 time, it must be taken that there was not, and as larceny was the steal- 
 ing of some chattel if there was not any chattel to be stolen, putting 
 the hand in the pocket could not be considered as a step towards the 
 completion of the offence. 
 
 I declined to stop the case upon this objection ; but as such cases 
 are of frequent occurrence, I thought it right that the point should be 
 determined by the authority of the Court of Criminal Appeal. 
 
 The jurv found all the prisoners guilty, and the question upon which 
 the opinion of your Lordships is respectfully requested is, whether 
 under the circumstances the verdict is sustainable in point of law? 
 The prisoners are in custody awaiting sentence. 
 
 Joseph Payne, Deputy- Assistant Judge. 
 PoCand, for the prisoners. The conviction is bad. It is not an 
 indictable offence to put a hand into an empty pocket with intent to 
 steal, but an offence punishable only under the Vagrant Act. It is not 
 alleged in the indictment that there was any property in the pocket. 
 This is very like the case of Reg. v. M'Pherson (1 Dears. & B. 197; 
 7 Cox Crim. Cas. 281), where it was held that a man who was charged 
 with breaking and entering a dwelling-house and stealing certain spe- 
 cified goods, could not be convicted unless the specified goods were 
 in the house, notwithstanding other goods were there. [Cockburn, 
 C. J. That case proceeds on the ground that 30U must prove the 
 property as laid.] In the course of the argument Bramwell, B., put 
 this very case, and said : "The argument that a man putting his hand
 
 104 REGINA V. COLLINS. [cHAP. II. 
 
 into an empty pocket might be convicted of attempting to steal, 
 appeared to me at first plausible ; but supposing a man, believing a 
 block of wood to be a man who was his deadly* enenn', struck it a blow 
 intending to murder, could he be convicted of attempting to murder the 
 man he took it to be?" So in R. v. Scudder (3 C. & P. 605) it was 
 held that there could not be a conviction for administering a drug to a 
 woman to procure abortion, if it appeared that the woman was not 
 with child at all. That case was before the Consolidation Act (24 & 
 25 Vict. c. 96). [Bramwell, B. You may put this case : Suppose a 
 man takes away an umbrella from a stand with intent to steal it, believ- 
 ing it not to be his own, but it turns out to be his own, could he be 
 convicted of attempting to steal?] It is submitted that he could not. 
 
 Metcalfe, for the prosecution. The fallacy in the argument on the 
 other side consists in assuming that it is necessary' to prove an3-thing 
 more than an attempt to steal. The intent to steal, it is conceded, is 
 not sufficient ; but any act done to carry out the intent, as putting a 
 hand into the pocket, will do. [Crompton, J. Suppose a man were 
 to go down a lane armed with a pistol, with the intention to rob a 
 particular person, whom he expected would pass that wa}', and the per- 
 son does not happen to come, would that be an attempt to rob the 
 person ?] 
 
 CoCKBURN, C. J. We are all of opinion that this conviction cannot 
 be sustained, and in so holding it is necessary" to observe that the judg- 
 ment proceeds on the assumption that the question, whether there waa 
 anything in the pocket of the prosecutrix which might have been the 
 subject of larceny, does not appear to have been left to the jurj'. The 
 case was reserved for the opinion of this court on the question, whether, 
 supposing'a person to put his hand into the pocket of another for the 
 purpose of larceny, there being at the time nothing in the pocket, that 
 is an attempt to commit larceny? We are far from saying that if the 
 question whether there was anything in the pocket of the prosecutrix 
 had been left to the jury, there was not evidence on which they might 
 have found that there was, in which case the conviction would have 
 been affirmed. But, assuming that there was nothing in the pocket of 
 the prosecutrix, the charge of attempting to commit larcen}- cannot be 
 sustained. This case is governed by that of Reg. v. M'Pherson ; and 
 we think that an attempt to commit a felon}' can onl}- be made out 
 when, if no interruption had taken place, the attempt could have been 
 carried out successfully, and the felon}' completed of the attempt to- 
 commit which the part}' is charged. In this case, if there was nothing 
 in the pocket of the prosecutrix, in our opinion the attempt to commit 
 larcen}' cannot be established. It may be illustrated b}' the case of a 
 person going into a room, the door of which he finds open, for the pur- 
 pose of stealing whatever property he ma}' find there, and finding 
 nothing in the room, in that case no larceny could be committed, and 
 therefore no attempt to commit larceny could be committed. In the 
 absence, therefore, of any finding by the jury in this case, either di-
 
 SECT. IV.] COMMONWEALTH V. GREEN. 105 
 
 rectly, or inferentially b}' their verdict, that there was any property in 
 the pocket of the prosecutrix, we think that this conviction must be 
 quashed.-' Convictioti quashed. 
 
 COMMONWEALTH v. GREEN. 
 Supreme Judicial Court of Massachusetts. 1824. 
 
 [Reported 2 Pickering, 380.] 
 
 At May term, 1823, in the county of Hampden, the prisoner, an 
 infant under the age of fourteen years, was convicted of an assault with 
 intent to commit a rape. 
 
 And now, upon a motion in arrest of judgment, S. If. 31ilis and 
 G. Bliss, junior, for the prisoner, contended that it was clear from 
 all the authorities that an infant under that age is presumed by 
 law to be unable to commit a rape (1 Haile's P. C. 630 ; 4 Bl. 
 Com. 212; 1 East's P. C. 446, § 8); and in 3 Chit. Cr. L. 811, it 
 is said that no evidence will be admitted to implicate him as the 
 actual ravisher, though he may be guilty as an abettor. It would be 
 absurd then to say that he may be indicted for an attempt to do what 
 the law presumes him incapable of doing. Suppose an assault by a 
 man upon another man dressed in woman's apparel ; an indictment 
 charging him with an assault with intent to commit a rape could not be 
 sustained. So a female could not be indicted for an assault with such 
 an intent. An indictment for throwing oil of vitriol with intent to 
 burn a person's clothes might be good ; but not so of an indictment for 
 throwing water with such an intent. If a woman were indicted for 
 petty treason, and it should appear that she had not been married, she 
 could not be convicted. A man cannot be convicted of a rape on his 
 own wife, nor of attempting to commit one, because the matrimonial 
 consent cannot be retracted. In like manner the prisoner cannot be 
 convicted of a rape, nor of an attempt to commit one, because the law 
 presumes him to be incapable. To constitute an offence there must be 
 an intent coupled with an act, and likewise a legal ability to do the 
 thing attempted. In regard to the physical powers of the prisoner the 
 court cannot go into the inquiry whether here is a particular exception 
 
 1 This decision was oyerruled by TJeg. v. Ring, 17 Cox, C. C. 491. 
 
 "If a statute simply made it a felony to attempt to kill any human being, or to 
 conspire to do so, an attempt by means of witchcraft, or a conspiracy to kill by means 
 of charms and incantations, would not be an offense within such a statute. The pov- 
 erty of language compels one to say, ' an attempt to kill by way of witchcraft,' but 
 Bach an attempt is really no attempt at all to kill. It is true the sin or wickedness 
 may be as great as an attempt or conspiracy by competent means ; but human laws are 
 made, not to punish sin, but to prevent crime and mischief." — Pollock, C. B., in 
 Att'y-Gen'l v. Sillem, 2 H. &, C. 431, 525.— Ed.
 
 106 COMMONWEALTH V. GREEN. [CHAP. IL 
 
 contrary to the general rule of law. We do not contend that the pris- 
 oner may not be punished for the assault, but only that he is not indict- 
 able for an assault with the intent alleged in this indictment. 
 
 Davis, Solicitor-General, for the Commonwealth. The maxim that 
 an infant under the age of fourteen 3'ears is presumed unable to com- 
 mit a rape, is indeed found in the books. It originated in ancient 
 times, and it requires to be subjected to the examination of a modern 
 judicial tribunal. That no evidence shall be admitted to impeach this 
 presumption is the dictum of one writer only, and it cannot hold uni- 
 versally. In some cases an infant under fourteen 3-ears is physically 
 able, and there was evidence of it in the present case ; it would be 
 absurd then by such presumption to shut out the fact itself. The 
 maxim is founded on the principle that there must be both penetration 
 and emission ; but this idea is now exploded. 1 Hale's P. C. 628 ; 
 3 Inst. 59, 60 : 1 East's P. C. 436, § 3 ; 1 Russell on Crimes, 805. In 
 Pennsylvania v. Sullivan, Addis. 143, it is said that the essence of the 
 crime is the violence to the person and feelings of the woman. An 
 injur}' to the feelings may be inflicted by a person under fourteen years 
 as much as b}' one over that age ; and where there is, a guilty inten- 
 tion in the perpetrator of the injur}', there seems to be no good rea- 
 son for exonerating him from punishment on account of his ph3'sical 
 incapacit}'. 
 
 3fills, in reply, said the law was not clear as to what facts are 
 necessary to constitute the crime of rape, and in addition to the author- 
 ties before cited to this point, he referred to 12 Co. 37 ; 1 Hawk. 
 P. C. c. 41, § 3. 
 
 By the Court (Parker, C. J., dissenting). The court are of opin- 
 ion that the verdict must stand and judgment be rendered on it. The 
 law which regards infants under fourteen as incapable of committing 
 rape was established in favorem vitce, and ought not to be applied by 
 analog}' to an inferior offence, the commission of which is not punished 
 with death. A minor of four-teen j'^ears of age, or just under, is capable 
 of that kind of force which constitutes an essential ingredient in tlie 
 crime of rape, and he may make an assault with an intent to commit that 
 crime, although by an artificial rule he is not punisliable for the crime 
 itself. An intention to do an act does not necessaril}' imply an ability 
 to do it ; as a man who is emasculated may use force with intent to 
 ravish, although possibl}', if a certain eflJ'ect should be now, as it was 
 formerly, held essential to the crime, he could not be convicted of a 
 rape. Females might be in as much danger from precocious boys as 
 from men, if such bo^'S are to escape with impunity from felonious 
 assaults, as well as from the felon}' itself.-^ Motion overruled. 
 
 1 Contra, State v. Sam, Winston, 300 (attempt) ; Rex v. Eldershaw, 3 C. & P. 396 ; 
 Reg. V. Philips, 8 C. & P. 736 ; State v. Handy, 4 Harr. 566 (assaults with intent).
 
 SECT. IV.] COMMONWEALTH V. MCDONALD. 107 
 
 COMMONWEALTH v. McDONALD. 
 Supreme Judicial Court of Massachusetts. 1850. 
 
 [Reported 5 Gushing, 365.] 
 
 The defendant was indicted in the municipal court, and there tried 
 before Mellen, J., for an attempt to commit a larceny from the 
 person. 
 
 At the trial, there being no evidence, on the part of the prosecution, 
 that the individual from whom the defendant was charged with an 
 attempt to steal, had an}- property upon his person at the time of the 
 alleged attempt, the defendant asked the judge to rule that the indict- 
 ment could not be sustained.^ 
 
 But the presiding judge ruled otherwise ; and, the jury thereupon 
 returning a verdict of guilty, the defendant excepted. 
 
 T. Willey, for the defendant. 
 
 Clifford, Attorney-General, for the Commonwealth. 
 
 Fletcher, J. It was said, in argument for the defendant, that he 
 could not be said to have attempted to steal the property of the un- 
 known person, if there was no property to be stolen ; and that therefore 
 the indictment should have set out the property and shown the exist- 
 ence and nature of it by the proof. But it will appear at once, by a 
 simple reference to the import of the term " attempt," that this propo- 
 sition cannot be maintained. To attempt is to make an effort to effect 
 some object, to make a trial or experiment, to endeavor, to use exer- 
 tion for some purpose. A man may make an attempt, an effort, a trial, 
 to steal, by breaking open a trunk, and be disappointed in not finding 
 the object of pursuit, and so not steal in fact. Still he remains never- 
 theless chargeable with the attempt, and with the act done towards the 
 commission of the theft. So a man ma}' make an attempt, an experi- 
 ment, to pick n, pocket, b}- thrusting his hand into it, and not succeed, 
 because there happens to be nothing in the pocket. Still he has clearl}- 
 made the attempt, and done the act towards the commission of the 
 offence. So in the present case it is not probable that the defendant 
 had in view any particular article, or had any knowledge whether or not 
 there was anything in the pocket of the unlcnown person ; but he 
 attempted to pick the pocket of whatever he might find in it, if haply 
 he should find an3thing ; and the attempt, with the act done of thrust- 
 ing his hand into the pocket, made the offence complete. It was an 
 experiment, and an experiment which, in the language of the statute, 
 failed ; and it is as much within the terms and meaning of the statute, 
 if it failed b}' reason of there being nothing in the pocket, as if it had 
 failed from any other cause. The following cases fully support the 
 view taken in this case, and I am not aware of any opposing authori- 
 
 1 Ouly so much of the ca.'^e as relates to this point is printed.
 
 108 PEOPLE V. LEE KONG. [CHAP. IL 
 
 ties : King v. Higgins, 2 East, 5 ; People v. Bush, 4 Hill, 133 ; Josslyn 
 V. Commonwealth, 6 Met. 236 ; Rogers v. Commonwealth, 5 S. & R. 
 463. 
 
 This decision is confined to the particular case under consideration, 
 of an attempt to steal from the person ; as there ma}- perhaps be cases 
 of attempts to steal where it would be necessary- to set out the par- 
 ticular property- attempted to be stolen, and the value. It not being 
 necessary, in the present case, to set out in the indictment the property 
 attempted to be stolen, the defendant's exception to the ruling of the 
 judge, that there need be no evidence of any property- in tlie pocket of 
 the unknown person, cannot, of course, be sustained, unless such evi- 
 dence was made necessary' bj' the allegations in the indictment. 
 
 The indictment alleges that the defendant attempted to steal from the 
 unknown person his personal property then in his pocket and in his 
 possession, neither the name nor the value of the propert}- being known 
 to the jurors. But this allegation is wholly unnecessarj- and imma- 
 terial, and maj' be stricken out ; and the indictment will still remain 
 sufficient, and contain all the allegations necessary to make out the 
 offence against the defendant, and to warrant the conviction. 
 
 It not being necessary to allege that there was an^-thing in the 
 pocket of the unknown person, and as all that part of the indictment 
 may be stricken out, the ruling of the court, that there need be no ex'i- 
 dence of any property in the pocket of the j^erson, was correct, and is 
 fully supported by authority'. Roscoe, Crim. Ev. 100. 
 
 JExceptions overruled.'^ 
 
 PEOPLE V. LEE KONG. 
 Supreme Court of California. 1892. 
 
 [^Reported 9.5 California, 666.] 
 
 Garoutte, J. Appellant was convicted of the crime of an as- 
 sault with intent to commit murder, and now prosecutes this appeal, 
 insisting that the evidence is insufficient to support the verdict. 
 
 The facts of the case are novel in the extreme, and when applied 
 to principles of criminal law, a question arises for determination upon 
 which counsel have cited no precedent. 
 
 A policeman secretly bored a hole in the roof of appellant's build- 
 ing, for the purpose of determining, by a view from that point of 
 observation, whether or not he was conducting therein a gambling or 
 lottery game. This fact came to the knowledge of appellant, and 
 upon a certain night, believing that the policeman was upon the roof 
 
 1 Accord State v. Wilson, 30 Conn. 505 ; People v. Jones, 46 Mich. 441 ; People v. 
 Moran, 123 N. Y. 254. And see Harvick v. State, 49 Ark. 514 ; Clark v. State, 86 
 Tenn. 511.
 
 SECT. IV.] PEOPLE V. LEE KONG. 109 
 
 at the contemplated point of observation, he fired his pistol at the 
 spot. He shot in no fright, and his aim was good, for the bullet 
 passed through the roof at the point intended ; but very fortunately 
 for the officer of the law, at the moment of attack he was upon the 
 roof at a different spot, viewing the scene of action, and thus no 
 substantial results followed from appellant's fire. 
 
 The intent to kill is quite apparent from the evidence, and the 
 single question is presented. Do the facts stated constitute an assault? 
 Our criminal code defines an assault to be " an unlawful attempt, 
 coupled with a present ability, to commit a violent injury upon the 
 person of another." It will thus be seen that to constitute an assault 
 two elements are necessary, and the absence of either is fatal to the 
 charge. There must be an unlawful attempt, and there must be a 
 present abilit}', to inflict the injury. In this case it is plain that the 
 appellant made an attempt to kill the officer. It is equally plain that 
 this attempt was an unlawful one. For the intent to kill was present 
 in his mind at the time he fired the shot, and if death had been the 
 result, under the facts as disclosed, there was no legal justification to 
 avail him. The fact that the officer was not at the spot where the 
 attacking party imagined he was, and where the bullet pierced the 
 roof, renders it no less an attempt to kill. It is a well-settled prin- 
 ciple of criminal law in this country, that where the criminal result 
 of an attempt is not accomplished simply because of an obstruction 
 in the way of the thing to be operated upon, and these facts are un- 
 known to the aggressor at the time, the criminal attempt is committed. 
 Thus an attempt to pick one's pocket or to steal from his person, 
 when he has notliing in his pocket or on his person, completes the 
 offence to the same degree as if he had money or other personal prop- 
 erty which could be tlie subject of larceny. State v. Wilson, 30 
 Conn. 500 ; Commcmwealth v. McDonald, 5 Cash. 365 ; People v. 
 Jones, 46 Mich. 441 ; People v. Moran, 123 N. Y. 254. 
 
 Having determined that appellant was guilty of an unlawful attempt 
 to kill, was such attempt coupled with the present ability to accom- 
 plish the deed? In the case of People v. Yslas, 27 Cal. 633, this 
 court said: "The common-law definition of an assault is substan- 
 tially the same as that found in our statute." Conceding such to be 
 the fact, we cannot indorse those autliorities, principally English, 
 which hold that an assault may be committed by a person pointing 
 in a threatening manner an unloaded gun at another ; and this, too, 
 regardless of tlie fact whether the party holding the gun thought it 
 was loaded, or whether the party at whom it was menacingly pointed 
 was thereby placed in great fear. Under our statute it cannot be 
 said that a person with an unloaded gun would have the present 
 ability to inflict an injury upon another many yards distant, however 
 apparent and unlawful his attempt to do so might be. It was held, 
 in the case of State v. Swails, 8 Ind. 524, that there was no assault 
 to commit murder where A fires a gun at B at a distance of forty
 
 110 PEOPLE V. LEE KONG. [CHAP. IL 
 
 feet, with intent to murder him, if the gun is in fact loaded with 
 powder and a slight cotton wad, although A believes it to be loaded 
 with powder and ball. The later Indiana cases support this rule, 
 although in Kunkle v. State, 32 Ind. 220, the court, in speaking of 
 the Swails case, said : " But if the case is to be understood as laying 
 down the broad proposition that to constitute an assault . . . with 
 intent to commit felony, the intent and the present ability to execute 
 must necessarily be conjoined, it does not command our assent or 
 approval." In the face of the fact that the statute of this State in 
 terms requires that in order to constitute an assault the unlawful 
 attempt and present ability must be conjoined, Kunkle v. State, 32 
 Ind. 220, can have no weight here. In State v. Napper, 6 Nev. 115, 
 the court reversed the judgment upon the ground that the people 
 failed to prove that the pistol with which the assault was alleged 
 to have been made was loaded, and that consequently there was no 
 proof that the defendant had the present ability to inflict the 
 injury. 
 
 It is not the purpose of the court to draw nice distinctions between 
 an attempt to commit an offence and an assault with intent to commit 
 the offence, for such distinctions could only have the effect to favor 
 the escape of criminals from their just deservings. And in view of 
 the fact that all assaults to commit felonies can be prosecuted as 
 attempts, we can see no object in carrying the discussion of the sub- 
 ject to any greater lengths. 
 
 In this case the appellant had the present ability to inflict the in- 
 jury. He knew the officer was upon the roof, and knowing that fact 
 he fired through the roof with the full determination of killing him. 
 The fact that he was mistaken in judgment as to the exact spot where 
 his intended victim was located is immaterial. That the shot did 
 not fulfil the mission intended was not attributable to forbearance or 
 kindness of heart upon defendant's part ; neither did the officer es- 
 cape by reason of the fact of his being so far distant that the deadly 
 missile could do him no harm. He was sufficiently near to be killed 
 from a bullet from the pistol, and his antagonist fired with the intent 
 of killing him. Appellant's mistake as to the policeman's exact loca- 
 tion upon the roof affords no excuse for his act, and causes the act 
 to be no less an assault. These acts disclose an assault to murder as 
 fully as though a person should fire into a house with the intention 
 of killing the occupant, who fortunately escaped the range of the 
 bullet. See Cowley v. State, 10 Lea, 282. The fact that the shots 
 were directed indiscriminately into the house rather than that the 
 intended murderer calculated that the occupant was located at a par- 
 ticular spot, and then trained his fire to that point, could not affect 
 the question. The assault would be complete and entire in either 
 case. If a man intending murder, being in darkness and guided by 
 sound only, should fire, and the bullet should pierce the spot where 
 ihe party was supposed to be, but by a mistake in hearing the in-
 
 SECT. IV.] RESPUBLICA V. MALIN. HI 
 
 tended victim was not at the point of danger, but some distance 
 therefrom, and yet within reach of the pistol-ball, the crime of assault 
 to commit murder would be made out ; for the unlawful attempt and 
 the present ability are found coupled together. If appellant's aim 
 had not been good, or if through fright or accident when pointing 
 the weapon or pulling the trigger, or if the ball had been deflected in 
 its course from the intended point of attack, and by reason of the 
 occurrence of any one of these contingencies the party had been shot 
 and killed, a murder would have been committed. Such being the 
 fact, the assault is established. 
 
 The fact of itself that the policeman was two feet or ten feet from 
 the spot where the fire was directed, or that he was at the right hand 
 or at the left hand or behind the defendant at the time the shot was 
 fired, is immaterial upon this question. That element of the case 
 does not go to the question of present ability, but pertains to the 
 unlawful attempt. 
 
 Let the judgment and order be affirmed. 
 
 Patterson, J., concurred. 
 
 Harrisox, J., concurring. I concur in the judgment, upon the 
 ground that upon the evidence before them the jury have determined 
 that the unlawful attempt of the defendant was coupled with a present 
 ability — that is, an ability by the means then employed by him in 
 furtherance of such attempt — to commit murder upon the policeman.^ 
 
 RESPUBLICA V. MALIN. 
 
 Oyer and Terminer, Philadelphia. 1778. 
 
 [Reported 1 Dallas, 33.] 
 
 Indictment for high treason.^ The prisoner, mistaking a corps of 
 American troops for British, went over to them. And now the Attor- 
 ney-General offered evidence of words spoken by the defendant, to 
 prove this mistake, and his real intention of joining and adhering to 
 the enemy. 
 
 Br the Court. No evidence of words relative to the mistake of 
 the American troops can be admitted ; for any adherence to them, 
 though contrary to the design of the party, cannot possibly come 
 within the idea of treason. 
 
 1 Ace. State v. Mitchell (Mo.), 71 S. W. 175. In that case Gantt, J., said : " The 
 intent evidenced by the tiring into the bedruoin with a deadly weapon, accompanied 
 by a present capacity in defendant to murder Warren if he were in the room, and the 
 failure to do so only because Warren happily retired upstairs instead of in the bed 
 into which defendant fired, made out a perfect case of an attempt." 
 
 * The statement of the case is abridged, and part only of the opinion is given.
 
 112 PEOPLE V. JAFFE. [CHAP. U. 
 
 PEOPLE /'. JAFFE. 
 
 Court of Appeals of New York. 1906. 
 
 [Reported 185 N. Y. 497.] 
 
 WiLLARD Bartlett, J. The indictment charged that the defendant 
 on the 6th day of October, 1902, in the county of New York, feloni- 
 ously received twenty yards of cloth of the value of twenty-five cents a 
 yard belonging to the copartnership of J. W. Goddard & Son, know- 
 ing that the said property had been feloniously stolen, taken and carried 
 uway from the owners. It was found under section 550 of the Penal 
 Code, which provides that a person who buys or receives any stolen 
 property, knowing the same to have been stolen, is guilty of criminally 
 receiving such property. The defendant was convicted of an attempt 
 to commit the crime charged in the indictment. The proof clearly 
 showed, and the district attorney conceded upon the trial, that the 
 goods which the defendant attempted to purchase on October 6th, 1902, 
 had lost their character as stolen goods at the time when they were 
 offered to the defendant, and when he sought to buy them. In fact 
 the property had been restored to the owners and was wliolly within 
 their control, and was offered to the defendant by their authority and 
 through their agency. The question presented by this appeal, there- 
 fore, is whether upon an indictment for receiving goods knowing them 
 to have been stolen the defendant may be convicted of an attempt to 
 commit the crime where it appears without dispute that the property 
 which he sought to receive was not in fact stolen property. 
 
 The conviction was sustained by the Appellate Division chiefly upon 
 the authorit}' of the numerous cases in which it has been held tliat one 
 may be convicted of an attempt to commit a crime notwithstanding the 
 existence of facts unknown to him which would have rendered the com- 
 plete perpetration of the crime itself impossible. Notably among 
 these are what may be called the pickpocket cases, where in prosecu- 
 tions for attempts to commit larceny from the person by pocket picking 
 it is held not to be necessary to allege or prove that there was any- 
 thing in the pocket which could be the subject of larceu}-. (Common- 
 wealth V. McDonald, 5 Cush. 365; Rogers v. Commonwealth, 5 S. & 
 E. 463 ; State v. Wilson, 30 Conn. 500; People v. INIoran, 123 N. Y. 
 254.) Much reliance was also placed in the opinion of the learned 
 Appellate Division upon the case of People v. Gardner (144 N. Y. 119), 
 where a conviction of an attempt to commit the crime of extortion was 
 uplield, although the woman from whom the defendant sought to obtain 
 money by a threat to accuse her of a crime was not induced to pay the 
 money by fear, but was acting at the time as a decoy for the police, 
 and hence could not have been subjected to the influence of fear. 
 
 In passing upon the question here presented for our determination, 
 it is important to bear in mind precisely what it was that the defend-
 
 SECT. IV,] PEOPLE V. JAFFE. 113 
 
 ant attempted to do. He simply made an effort to purchase certain 
 specific pieces of cloth. He believed the cloth to be stolen property, 
 but it was not such in fact. The purchase, therefore, if it had been 
 completely effected, could not constitute the crime of receiving stolen 
 property, knowing it to be stolen, since there could be no such thing as 
 knowledge on the part of the defendant of a non-existent fact, although 
 there might be a belief on his part that the fact existed. As Mr. 
 Bishop well says, it is a mere truism that there can be no receiving of 
 stolen goods which have not been stolen. (2 Bishop's New Crim. Law, 
 § 1140.) It is equally difficult to perceive how there can be an attempt 
 to receive stolen goods, knowing them to have been stolen, when they 
 have not been stolen in fact. 
 
 The crucial distinction between the case before us and the pickpocket 
 cases, and others involving the same principle, lies not in the possi- 
 bility or impossibility of the commission of the crime, but in the fact 
 that in the present case the act, which it was doubtless the intent 
 of the defendant to commit, would not have been a crime if it had 
 been consummated. If he had actually paid for the goods which he 
 desired to buy, and received them into liis possession, he would have 
 committed no offence under section 550 of the Penal Code, because the 
 very definition in that section of the offence of criminally receiving prop- 
 erty makes it an essential element of the crime that the accused shall 
 have known the property to have been stolen or wrongfully appropriated 
 in such manner as to constitute larceny. This knowledge being a ma- 
 terial ingredient to the offence it is manifest that it cannot exist unless 
 the property has in fact been stolen or larcenously appropriated. No 
 man can know that to be so which is not so in truth and in fact. He 
 may believe it to be so, but belief is not enough under this statute. In 
 the present case it appeared not only by the proof but by the express 
 concession of the prosecuting officer that the goods which the defendant 
 intended to purchase had lost their character as stolen goods at the 
 time of tiie proposed transaction. Hence, no matter what was the 
 motive of the defendant, and no matter what he supposed, he could do 
 no act which was intrinsically adapted to the then present successful 
 perpetration of the crime denounced by this section of the Penal Code, 
 because neither he nor an}' one in the world could know that the 
 property was stolen propert}', inasmuch as it was not in fact stolen 
 property. 
 
 In the pickpocket cases the immediate act which the defendant had 
 In contemplation was an act which if it could have been carried out 
 would have been criminal, whereas in the present case the immediate 
 act which the defendant had in contemplation (to wit, the purchase of 
 the goods which were brought to his place for sale) could not have been 
 criminal under the statute even if the purchase had been completed, 
 because the goods had not in fact been stolen, but were at the time 
 when they were offered to him in the custody and under the control 
 of the true owners.
 
 114 PEOPLE V. JAFFE. [CHAP. II. 
 
 If all which an accused person intends to do would, if done, consti- 
 tute no crime it cannot be a crime to attempt to do with the same pur- 
 pose a part of the thing intended. (1 Bishop's Crim. Law [7th ed.], 
 sec. 747.) The crime of which the defendant was convicted necessa- 
 rily consists of three elements: first, the act; second, the intent; and 
 third, the knowledge of an existing condition. There was proof 
 tending to establish two of these elements, the first and second, but 
 none to establish the existence of the third. This was knowledge of 
 the stolen character of the property sought to be acquired. There 
 could be no such knowledge. Tiie defendant could not know that the 
 property possessed the character of stolen property when it had not in 
 fact been acquired by theft. 
 
 The language used by Ruger, C. J., in People v. Moran (123 N. Y. 
 254), quoted with approval by Earl, J., in People v. Gardner (144 
 N. Y. 119), to the effect that " the question whether an attempt to com- 
 mit a crime has been made is determinable solely by the condition of 
 the actor's mind and his conduct in the attempted consummation of 
 his design," although accurate in those cases has no application to a 
 case like this, where, if the accused had completed the act which he 
 attempted to do, he would not be guilty of a criminal offence. A partic- 
 ular belief cannot make that a crime which is not so in the absence of 
 such belief. Take, for example, the case of a young man who attempts 
 to vote, and succeeds in casting his vote under the belief that lie is but 
 twenty years of age, when he is in fact over twenty-one and a qualified 
 voter. His intent to commit a crime, and his belief that he was com- 
 mitting a crime, would not make him guilty of any offence under these 
 circumstances, although the moral turpitude of the transaction on his 
 part would be just as great as it would if he were in fact under age. So, 
 also, in the case of a prosecution under the statute of this state, which 
 makes it rape in the second degree for a man to perpetrate an act of 
 sexual intercourse with a female not his wife under the age of eighteen 
 vears. There could be no conviction if it was established upon the 
 trial that the female was in fact over the age of eighteen years, although 
 the defendant believed her to be 3-ounger and intended to commit the 
 crime. No matter how reprehensible would be his act in morals, it would 
 not be the act forbidden by this particular statute. " If what a man 
 contemplates doing would not be in law a crime, he could not be said 
 in point of law to intend to commit the crime. If he thinks his act 
 will be a crime, this is a mere mistake of his understanding where the 
 law holds it not to be such, his real intent being to do a particular 
 thing. If the thing is not a crime he does not intend to commit one, 
 whatever he may erroneously suppose." (1 Bishop's Crim. Law [7th 
 ed.,] sec. 742.) 
 
 The judgment of the Appellate Division of the Court of General 
 Sessions must be reversed and the defendant discharged upon this in- 
 dictment, as it is manifest that no conviction can be had thereunder. 
 This discharge, however, in no wise affects the right to prosecute the
 
 SECT. IV.] UNITED STATES V. STEPHENS. 115 
 
 defendant for other offences of a like character, concerning which 
 there is some proof in the record, but which were not charged in the 
 present indictment. 
 
 Chase, J. (dissenting). I dissent. Defendant having with linowl- 
 edge repeatedly received goods stolen from a dry goods firm by one of 
 its employees, suggested to the employee that a certain specified 
 kind of cloth be taken, he was told by the employee that that particular 
 kind of cloth was not kept on his floor, and he then said that he would 
 take a roll of a certain Italian cloth. Tlie emplo^'ee then stole a roll 
 of the Italian cloth and carried it awa}-, but left it in another store where 
 he could subsequentl}' get it for delivery to the defendant. Before it 
 was actually delivered to the defendant the employers discovered that 
 the employee had been stealing from them, and the}' accused him of 
 the thefts. The emplo^-ee then confessed his guilt, and told them of 
 the piece of cloth that had been stolen for the defendant, but had not 
 actually been delivered to him. The roll of cloth so stolen was then 
 taken b}' another employee of the firm, and it was arranged at the police 
 headquarters that the employee who had taken the cloth should deliver 
 it to the defendant, which he did, and the defendant paid the employee 
 about one-half the value thereof. The defendant was then arrested and 
 this indictment was thereafter found against liim. That the defendant 
 intended to commit a crime is undisputed. I think the record shows an 
 attempt to commit the crime of criminally receiving property- as defined 
 in sections 550 and 34 of the Penal Code, within the decisions of this 
 court in People v. Morau (123 N. Y. 254) and People v. Gardner (144 
 N. Y. 119). 
 
 CuLLEN, C. J., Grat, Edward T. Bartlett, Vann and Werner, 
 JJ., concur with Willard Bartlett, J. ; Chase, J., dissents in 
 memorandum. 
 
 Judgment of conviction reversed, etc.^ 
 
 UNITED STATES v. STEPHENS. 
 Circuit Court of United States, District of Oregon. 1882. 
 
 [Rejiorted 8 Sawi/er, 116.1 
 
 Deady, J.'^ On March 30, 1882, an information was filed by the 
 district attorney, accusing the defendant, by the first count, of the 
 crime of introducing spirituous liquors into the district of Alaska, con- 
 trary to law ; and, by the second count, of the crime of " attempting " 
 
 1 See Marlej v. State, 58 N. J. L. 207. - Ed. 
 
 2 Part of the opinion only is printed. — Ed.
 
 116 UNITED STATES V. STEPHENS. [CHAP. II. 
 
 to SO introduce such liquors into said district.^ The defendant de- 
 murs to the information because it does not state facts sufficient to 
 constitute a crime. 
 
 Upon the argument of the demurrer it was abandoned as to the first 
 count, and insisted upon as to the second. This count alleges that on 
 July 14, 1879, the defendant, being in the district of Alaska, wrote and 
 transmitted a letter to a certain firm in San Francisco, California, 
 wherein and whereby he requested said firm to ship and send to him at 
 Fort AYrangel, in said district, one hundred gallons of whiskey ; the 
 defendant then well knowing that said firm were then wholesale dealers 
 in spirituous liquors, and owned and possessed said one hundred gallons 
 of whiskey ; ''and he thereby contriving and intending to introduce the 
 said one hundred gallons of whiskey into the said district of Alaska." 
 
 There are a class of acts which maj' be fairl}' said to be done in pur- 
 suance of or in combination with an intent to commit a crime, but are 
 not, in a legal sense, a part of it, and therefore do not with such intent 
 constitute an indictable attempt ; for instance, the purchase of a gun 
 with a design to commit murder, or the purchase of poison with the 
 same intent. These are considered in the nature of preliminary prepara^ 
 tions, — conditions, not causes, — and although coexistent with a guilty 
 intent, are indifferent in their character, and do not advance the con' 
 duct of the party beyond the sphere of mere intent. They are, it is 
 true, the necessar}' conditions without which the shooting or poisoning 
 could not take place, but they are not, in the eye of the law, the cause 
 of either. 1 Whart. C. L., sees. 178, 181 ; 1 Bish. C. L., sec. 668 et 
 seq.; The People v. Murray, 14 Cal. 160. 
 
 Dr. Wharton says (supra^ sec. 181) : "To make the act an indict- 
 able attempt, it must be a cause as distinguished from a condition ; 
 and it must go so far that it would result in the crime unless frustrated 
 by extraneous circumstances." Bishop says (supra^ sec. 669) : "It is 
 plain that if a man who has a wicked purpose in his heart does some- 
 thing entirel}^ foreign in its nature from that purpose, he does not com- 
 mit a criminal attempt to do the thing proposed. On the other hand, 
 if he does what is exactly adapted to accomplish the evil meant, yet 
 proceeds not far enough in the doing for the cognizance of the law, he 
 still escapes punishment. Again, if he does a thing not completely, as 
 the result discloses, adapted to accomplish the wrong, he may under 
 some circumstances be punishable, while under other circumstances he 
 may escape. And the difficulty- is not a small one, to lay down rules 
 readily applied, which shall guide the practitioner in respect to the cir- 
 cumstances in which the criminal attempt is sufficient." 
 
 In The People v. Murray, suj^ra, the defendant was indicted for an 
 attempt to contract an incestuous marriage, and was found guilty. 
 From the evidence it appeared that he intended to contract such mar- 
 riage, that he eloped with his niece for that purpose, and requested a 
 
 1 This was made criminal by Act of March 3, 1873 (17 Stat, at L. 530). — Ed.
 
 SECT. IV.] UNITED STATES V. STEPHENS. 117 
 
 third person to get a magistrate to perform the ceremon}'. Upon an 
 appeal the judgment was reversed. Chief Justice Field, delivering tlie 
 opinion of the court, said: "■ It (the evidence) shows very clearly the 
 intention of the defendant ; but something more than mere intention is 
 liecessary to constitute the offence charged. Between preparation for ' 
 the attempt and the attempt itself, there is a wide difference. The 
 preparation consists in devising or arranging the means or measures 
 necessary for the commission of tlie offence ; the attempt is the direct 
 movement towards the commission after the preparations are made 
 . . . ; but until the officer was engaged, and the parties stood before 
 him, ready to take the vows appropriate to the contract of marriage, it 
 cannot be said, in strictness, that the attempt was made. The attempt 
 contemplated by the statute must be manifested by acts which would 
 end in the consummation of the particular offence, but for the interven- 
 tion of circumstances independent of the will of the part}'." 
 
 In the case under consideration, to constitute the attempt charged in 
 the information there must have been an intent to commit the crime of 
 introducing spirituous liquors into Alaska, combined with an act done 
 in pursuance of such intention that apparently, in the usual course of 
 events, would have resulted in such introduction, unless interrupted by 
 extraneous circumstances, but which actually fell short of such result. 
 
 But it does not appear that anything was done b^- the defendant 
 towards the commission of the intended crime of introducing spirituous 
 liquors into Alaska, but to offer or attempt to purchase the same in 
 San Francisco. The written order sent there hy the defendant was, in 
 effect, nothing more or less than an offer l\y him to purchase the one 
 hundred gallons of whiskey ; and it will simplif}' the case, to regard 
 him as being present at the house of the San Francisco firm, at the 
 time his order reached them, seeking to purchase the liquor with the 
 intent of committing the crime of introducing the same into Alaska. 
 
 But the case made by the information stops here. It does not show 
 that he bought any liquor. Whether he changed his mind, and coun- 
 termanded the order before the delivery of the goods, or whether the 
 firm refused to deal with him, does not appear. 
 
 Now, an offer to purchase whiskey, with the intent to ship it to 
 Alaska, is, in an}' view of the matter, a mere act of preparation, of 
 which the law takes no cognizance. As the matter then stood, it was 
 impossible for the defendant to attempt to introduce this liquor into 
 Alaska, because he did not own or control it. It was simply an attempt 
 to purchase, — an act harmless and indifferent in itself, whatever the 
 purpose with which it was done. 
 
 But suppose the defendant had gone further, and actually succeeded 
 in purchasing the liquor, wherein would the case differ from that of the 
 person who bought the gun or poison with intent to commit murder, 
 but did no subsequent act in execution of such purpose? In all essen- 
 tials they are the same. 
 
 A purchase of spirituous liquor at San Francisco or Portland, either
 
 118 GLOVER V, COMMONWEALTH. fCHAP. II. 
 
 in person or by written order or application, with intent to commit a 
 crime with the same, — as to dispose of it at retail wiihout a license, or 
 to a minor, or to introduce it into Alaska, — is merely a preparatory 
 act, indifferent in its character, of which the law, lacking the omni- 
 science of Deity, cannot take cognizance. 
 
 At what period of the transaction the shipper of liquor to Alaska is 
 guilty of an attempt to introduce the same there, is not very easily 
 determined. Certainly the liquor must first be purchased — obtained 
 in some way — and started for its illegal destination. But it is doubt- 
 ful whethei the attempt, or the act necessary to constitute it, can be 
 committed until the liquor is taken so near to some point or place of 
 " the mainland, islands, or waters" of Alaska as to render it conven- 
 ient to introdace it from there, or to make it manifest that such was the 
 present purpose of the parties concerned. But this is a mere sug- 
 gestion ; and each case must be determined upon its own circumstances. 
 
 The demurrer is sustained to the second count, and overruled as to 
 the first. 
 
 GLOVER V. COMMONWEALTH. 
 Supreme Court of Appeals of Virginia. 1889. 
 
 [Reported 86 Virginia, 382.] 
 
 Lewis, P., delivered the opinion of the court. 
 
 Among the exceptions taken by the prisoner at the trial was one to 
 the refusal of the court to instruct the jury as follows: "If the jury 
 believe from the evidence that the prisoner at the bar intended to com- 
 mit a rape on the prosecutrix, Berta Wright, but before the act was 
 finally executed, he voluntarily and freely abandoned it, they are to 
 find a verdict of not guilty." ^ 
 
 This exception is not well taken. To have given the instruction 
 would have been equivalent to telling the jury that upon an indictment 
 for rape, the accused cannot be legally convicted of an attempt to com- 
 mit a rape, which is not the law. The court, therefore, did not err in 
 refusing to give it, nor did it err in subsequently instructing the jury, 
 as in effect it did, that upon an indictment for rape, the accused may 
 be found guilty of an attempt to commit a rape, which is in accordance 
 with the law in this State. Givens v. Commonwealth, 29 Gratt. 830 ; 
 Mings V. Same, 85 Va. 638. Indeed, the statute, now brought into 
 section 4044 of the Code, expressly enacts that " on an indictment for 
 felony, the jury may find the accused not guilty of the felony, but guilty 
 of an attempt to commit such felony ; and a general verdict of not 
 guilty upon such indictment shall be a bar to a subsequent prosecution 
 for an attempt to commit such felon}'." 
 
 * Only so much of the opinion as refers to this exception is printed.
 
 8ECT. IV.] COMMONWEALTH V. KENNEDY. 119 
 
 An attempt in criminal law is an apparent unfinished crime, and 
 hence is compounded of two elements, viz. : (1) The intent to commit a 
 crime ; and (2) a direct act done towards its commission, but falling 
 short of the execution of the ultimate design. It need not, therefore, 
 be the last proximate act to the consummation of the crime in contem- 
 plation, but is sufficient if it be an act apparently adapted to produce 
 the result intended. It must be something more than mere prepara- 
 tion. Uhl's Case, 6 Gratt. 706 ; Hicks' Case, 86 Va. 223. 
 
 Hence, when the prisoner took the prosecutrix into the stable, and 
 there did the acts above mentioned, the attempt to commit a rape was 
 complete ; for there was the unlawful intent accompanied by acts done 
 towards the commission of the intended crime, but falling short of its 
 commission. Indeed, it is not denied that there was such attempt, but 
 it is contended — and such was the main defence at the trial — that the 
 subsequent voluntary abandonment of the criminal purpose cleansed 
 the prisoner of all crime, so far as the attempt was concerned. But 
 this is a mistaken view. For, on the contrary, it is a rule, founded in 
 reason and supported bj' authority', that if a man resolves on a criminal 
 enterprise, and proceeds so far in it that his act amounts to an indict- 
 able attempt, it does not cease to be such, though he voluntarily aban- 
 dons the evil purpose. 
 
 In Lewis v. The State, 35 Ala. 380, which was an indictment for an 
 attempt to commit a rape, it was ruled b}' the Supreme Court of Alabama 
 that if the attempt was in fact made, and had progressed far enough to 
 put the prosecutrix in terror and render it necessary for her to save 
 herself from the consummation of the attempted outrage b}- flight, then 
 the attempt was complete, though the prisoner had not in fact touched 
 her ; and that an after-abandonment b}- the prisoner of his wicked pur- 
 pose could not purge the crime. And there are man}- other authorities 
 to the same effect. See 1 Bish. Crim. Law (6th ed.), sec. 732, and 
 cases cited. 
 
 COMMONWEALTH v. KENNEDY. 
 
 Supreme Judicial Court of Massachusetts. 1897. 
 
 [Reported 170 3fass 18.] 
 
 Holmes, J.^ The first count is for mingling poison with tea, with 
 intent to kill one Albert F. Learoyd. Pub. Sts. c. 202, § 32. The 
 second count is for an attempt to commit murder by poisoning. Pub. 
 Sts. c. 202, § 2L Whether the first count includes the matter of the 
 second, with the eflfect that, even if the motion to quash the second 
 count should have been granted, the verdict as rendered would stand 
 on the first count (Commonwealth v. Nichols, 134 Mass. 531, 536, 
 537), need not be decided, as we are of opinion that the motion to 
 quash properly was overruled. 
 
 ^ Only so much of the opinion as discusses the law of attempt is given. — Ed.
 
 120 COMMONWEALTH V. KENNEDY. [CHAP. U. 
 
 The second count alleges in substance that the defendant feloniousl}', 
 ■wilfull}', and maliciousl}' attempted to murder Learoyd by placing a 
 quantity of deadly poison known as "rough on rats," known to the 
 defendant to be a deadl}' poison, upon, and causing it to adhere to the 
 under side of the crossbar of a cup of Learoyd's known as a mustache 
 cup, the cup being then empty, with the intent that Learoyd should 
 thereafter use the cup for drinking while the poison was there, and 
 should swallow the poison. The motion to quash was argued largely 
 on the strength of some cases as to what constitutes an "administer- 
 ing" of poison, which have no application, but the argument also 
 touched another question, which always is present in cases of attempts, 
 and which requires a few words, namely, how nearly the overt acts 
 alleged approached to the achievement of the substantive crime 
 attempted. 
 
 Notwithstanding Pub. Sts. c. 210, § 8, we assume that an act may 
 be done which is expected and intended to accomplish a crime, which is 
 not near enough to the result to constitute an attempt to commit it, as 
 in the classic instance of shooting at a post supposed to be a man. As 
 the aim of the law is not to punish sins, but is to prevent certain exter- 
 nal results, the act done must come pretty near to accomplishing that 
 • result before the law will notice it. But, on the other hand, irrespective 
 of the statute, it is not necessarj' that the act should be such as inevit- 
 abh' to accomplish the crime by the operation of natural forces, but for 
 some casual and unexpected interference. It is none the less an 
 attempt to shoot a man that the pistol which is fired at his head is not 
 aimed straight, and therefore in the course of nature cannot hit him. 
 Usually acts which are expected to bring about the end without further 
 interference on the part of the criminal are near enough, unless the 
 expectation is verj' absurd. In this case the acts are alleged to have 
 been done with intent that Learoyd should swallow the poison, and, by 
 implication, with intent to kill him. See Commonwealth v. Adams, 
 127 Mass, 15, 17. Intent imports contemplation, and more or less 
 expectation, of the intended end as the result of the act alleged. If it 
 appeared in the count, as it did in the evidence, that the habits of 
 Learoyd and the other circumstances were such that the defendant's 
 expectation that he would use the cup and swallow the poison was well 
 grounded, there could be no doubt that the defendant's acts were near 
 enough to the intended swallowing of the poison, and, if the dose was 
 large enough to kill, that they were near enough to the accomplishment 
 of the murder. But the grounds of the defendant's expectation are 
 not alleged, and the strongest argument for the defence, as it seems to 
 us, would be that, so far as this count goes, his expectation may have 
 been unfounded and unreasonable. But in view of the nature of the 
 crime and the ordinary course of events, we are of opinion that enough 
 is alleged when the defendant's intent is shown. The cup belonged to 
 Learoyd, and the defendant expected that he would use it. To allow 
 him immunity, on the ground that this part of his expectation was ill
 
 SECT. IV.] COMMONWEALTH V. KENNEDY. 121 
 
 grounded, would be as unreasonable as to let a culprit off because he 
 was not warranted in thinking that his pistol was pointed at the man 
 he tried to shoot. A more important point is that it is not alleged in 
 terms that the dose was large enough to kill, unless we take judicial 
 notice of the probable effect of a teaspoonf ul of " rough on rats " ; and 
 this may be likened to the case of firing a pistol supposed to be loaded 
 with ball, but in fact not so, or to administering an innocent substance 
 supposing it to be poison. State v. S wails, 8 Ind. 524, and note. 
 State V. Clarissa, 11 Ala. 57. There is a difference between the case 
 of an attempt and a murder. In the latter case the event shows the 
 dose to have been sufficient, without an express allegation. But we 
 are of opinion that this objection cannot be maintained. Every ques- 
 tion of proximity must be determined by its own circumstances, and 
 analogy is too imperfect to give much help. Any unlawful application 
 of poison is an evil which threatens death, according to common appre- 
 hension, and the gravity of the crime, the uncertainty of the result, 
 and the seriousness of the apprehension, coupled with the great harm 
 likelv to result from poison even if not enough to kill, would warrant 
 holding the liability for an attempt to begin at a point more remote 
 from the possibility of accomplishing what is expected than might be 
 the case with lighter crimes. But analogy does not require this con- 
 sideration. The case cited as to firing a pistol not loaded with ball has 
 been qualified at least by a later decision, Kunkle v. State 32 Ind. 
 220, 229, a case of shooting with shot too small to kill. And even in 
 less serious crimes (especially in view of Pub. Sts. c. 210, § 8), im- 
 possibility of achievement is not necessarily a defence, for instance, in 
 an attempt to procure an abortion upon a woman not pregnant. 
 Commonwealth v. Taylor, 132 Mass. 261. Commonwealth v. Tiblietts, 
 157 Mass. 519. So in an attempt to pick a pocket which is empty. 
 Commonwealth y. McDonald, 5 Cush. 365. See also Commonwealth 
 V. Jacobs, 9 Allen, 274. In the case of crimes exceptionally dealt with 
 or greatly feared, acts have been punished which were not even ex- 
 pected to effect the substantive evil unless followed by other criminal 
 acts ; e. g., in the case of treason, Foster, 196 ; King v. Cowper, 5 Mod. 
 206 ; or in that of pursuit by a negro, with intent to commit rape. 
 Lewis V. State, 35 Ala. 380. Compare Regina v. Eagleton, Dears. 
 C. C. 515, 538; S. C. 6 Cox, C. C. 559, 571. A familiar statutory 
 illustration of this class is to be found in the enactments with regard to 
 having counterfeit bills in one's possession with intent to pass them, 
 Pub. Sts. c. 204, § 8 (see Regina v. Roberts, Dears. C. C. 539, 550, 
 551), and one which is interesting historically in the English statutes 
 intended to keep secret the machinery used in modern manufacture. 
 Sts. 14 Geo. III. c. 71, § 5 ; 21 Geo. III. c. 37, § 6. The general pro- 
 vision of Pub. Sts. c. 210, § 8, already referred to, long has been on 
 the books. A case having some bearing on the present is State v. 
 Glover, 27 S. C. 602. For these reasons, we are of opinion that the 
 motion to quash the second count properly was overruled.
 
 122 COMMONWEALTH V. PEASLEE. [CHAP. IL 
 
 COMMONWEALTH v. PEASLEE. 
 
 Supreme Judicial Court of Massachusetts. 1901. 
 
 [Reported 177 Mass. 267.] 
 
 Holmes, C. J. This is an indictment for an attempt to burn a building 
 and certain goods therein, with intent to injure the insurers of the same. 
 Pub. Sts. c. 210, § 8. The substantive offence alleged to have been 
 attempted is punished by Pub. Sts. c. 203, § 7. The defence is that 
 the overt acts alleged and proved do not amount to an offence. It 
 was raised by a motion to quash and also by a request to the judge to 
 direct a verdict for the defendant. We will consider the case in the 
 first place upon tlie evidence, apart from any question of pleading, and 
 afterwards will take it up in connection with the indictment as actually 
 drawn. 
 
 The evidence was that the defendant had constructed and arranged 
 combustibles in the building in such a waj' that they were ready to be 
 lighted, and if lighted would have set fire to tlie building and its con- 
 tents. To be exact, the plan would have required a candle which was 
 standing on a shelf six feet away to be placed on a piece of wood in a 
 pan of turpentine, and lighted. The defendant offered to pay a young 
 man in his employment if he would go to the building, seemingly some 
 miles from the place of the dialogue, and carry out the plan. This was 
 refused. Later the defendant and the j'oung man drove toward the 
 building, but when within a quarter of a mile the defendant said that 
 he had changed his mind and drove away. This is as near as he ever 
 came to accomplishing what he had in contemplation. 
 
 The question on the evidence, more precisely stated, is whether the 
 defendant's acts come near enough to the accomplishment of the sub- 
 stantive offence to be punishable. The statute does not punish every 
 act done toward the commission of a crime, but only such acts done in 
 an attempt to commit it. The most common types of an attempt are 
 either an act which is intended to bring about the substantive crime 
 and which sets in motion natural forces that would bring it about in 
 the expected course of events but for an unforeseen interruption, as in 
 this case if the candle had been set in its place and lighted but had 
 been put out b}' the police, or an act which is intended to bring about 
 the substantive crime and would bring it about but for a mistake of 
 judgment in a matter of nice estimate or experiment, as when a pistol 
 is fired at a man but misses him, or when one tries to pick a pocket 
 which turns out to be empty. In either case the would-be criminal has 
 done his last act. 
 
 Obviously new considerations come in when further acts on the part, 
 of the person who has taken the first steps are necessary before th© 
 substantive crime can come to pass. In this class of cases there is 
 still a chance that the would-be criminal may change his mind. In
 
 SECT. IV.] COMMONWEALTH V. PEASLEE. 123 
 
 strictness, such first steps cannot be described as an attempt, because 
 tliat word suggests an act seemingly sufficient to accomplish the end, 
 and has been supposed to have no other meaning. People v. Murray, 
 14 Cal. 159, 160. That an overt act, although coupled with an 
 intent to commit the crime, commonly is not punishable if further acts 
 are contemplated as needful, is expressed in the familiar rule that 
 preparation is not an attempt. But some preparation may amount to 
 an attempt. It is a question of degree. If the preparation comes very 
 near to the accomplishment of the act, the intent to complete it renders 
 the crime so probal)le that the act will be a misdemeanor, although 
 there is still a locus penitentice in the need of a further exertion of the 
 will to complete the crime. As was observed in a recent case, the 
 degree of proximity held sufficient may vary with circumstances, includ- 
 ing among other things the apprehension which the particular crime is 
 calculated to excite. Commonwealth v. Kennedy, 170 Mass. 18, 22. 
 (See also Commonwealth v. Willard, 22 Pick. 476.) A few instances 
 of liability of this sort are mentioned on the page cited. 
 
 As a further illustration, when the servant of a contractor had de- 
 livered short rations of meat by the help of a false weight which he had 
 substituted for the true one, intending to steal the meat left over, it was 
 held by four judges, two of whom were Chief Justice Erie and Mr. 
 Justice Blackburn, that he could be convicted of an attempt to steal. 
 Regina v. Clieeseman, L. & C. 140; S. C. 10 W. R. 225. So lighting 
 a match with intent to set fire to a haystack, although the prisoner 
 desisted on discovering that he was watched. Regina v. Taylor, 1 
 F. & F. 511. So getting into a stall with a poisoned potato, intending 
 to give it to a horse there, which the prisoner was prevented from doing 
 by his arrest. Commonwealth v. McLaughUn, 105 Mass. 460. See 
 Clark V. State, 86 Tenn. 511. So in this Commonwealth it was held 
 criminal to let a house to a woman of ill fame with intent that it should 
 be used for purposes of prostitution, although it would seem that the 
 finding of intent meant only knowledge of the intent of the lessee. 
 Commonwealth v. Harrington, 3 Pick. 26. See Commonwealth v. 
 Willard, 22 Pick. 476, 478. Compare Brockway v. People, 2 Hill, 
 558, 562. The same has been held as to paying a man to burn a barn, 
 wliether well laid as an attempt or more properly as soliciting to com- 
 mit a felony. Commonwealth v. Flags, 135 Mass. 545, 549. State v. 
 Bowers, 35 So. Car, 262. Compare Regina v. Williams, 1 C. & K. 
 589; S. C. 1 Denison, 39. McDade v. People, 29 Mich. 50, 56. 
 Stabler v. Commonwealth, 95 Penn. St. 318. Hicks u. Commonwealth, 
 86 Va. 223. 
 
 On the other hand, making up a false invoice at the place of expor- 
 tation with intent to defraud the revenue is not an offence if not followed 
 up by using it or attempting to use it. United States u. Twenty-eight 
 Packages, Gilpin, 306, 324. United States v. Riddle, 5 Cranch, 311. 
 So in People u. Murray, 14 Cal. 159, the defendant's elopement with 
 his niece and his requesting a third person to bring a magistrate to
 
 124 COMMONWEALTH V. PEASLEE. [CHAP. IL 
 
 perform the marriage ceremony, was held not to amount to an attempt 
 to contract the marriage. But the ground on which this last decision 
 was put clearly was too broad. And however it may be at common 
 law, under a statute like ours punishing one who attempts to commit a 
 crime "and in such attempt does any act towards the commission of 
 such offence" (Pub. Sts. c. 210, § 8), it seems to be settled elsewhere 
 that the defendant could be convicted on evidence like the present. 
 People V. Bush, 4 Hill, 133, 134. McDermott v. People, 5 Parker Cr. 
 Rep. 102. Griffin v. State, 26 Ga. 493. State r. Hayes, 78 Mo. 307, 
 316. See Commonwealth o. Willard, 22 Pick. 476. People v. Bush is 
 distin(Tuished in Stabler v. Commonwealth as a decision upon the 
 words quoted. 95 Penn. St. 322. 
 
 Under the cases last cited we assume tliat there was evidence of a 
 crime and perhaps of an attempt, — the latter question we do not 
 decide. Nevertheless, on the pleadings a majority of the court is of 
 opinion that the exceptions must be sustained. A mere collection and 
 preparation of materials in a room for the purpose of setting fire to 
 them, unaccompanied by any present intent to set the fire, would be 
 too remote. If the accused intended to rely upon his own hands to the 
 end, he must be shown to have had a present intent to accomplish the 
 crime without much delay, and to have had this intent at a time and place 
 where he was able to carry it out. We are not aware of any carefully 
 considered case that has gone further than this. We assume without 
 deciding that that is the meaning of tlie indictment, and it would have 
 been proved if for instance the evidence had been that the defendant 
 had been frightened by the police as he was about to light the candle. 
 On the other hand, if the offence is to be made out by showing a pre- 
 paration of the room and a solicitation of some one else to set the fire, 
 which solicitation if successful would have been the defendant's last 
 act, the solicitation must be alleged as one of the overt acts. It was 
 admissible in evidence on the pleadings as they stood to show the 
 defendant's intent, but it could not be relied on as an overt act unless 
 set out. The necessity that the overt acts should be alleged has been 
 taken for granted in our practice and decisions (see e. g., Common- 
 wealth V. Sherman, 105 Mass. 169; Commonwealth v. McLaughlin, 
 105 Mass. 460, 463; Commonwealth -y. Shedd, 140 Mass. 451, 453), 
 and is expressed in the forms and directions for charging attempts 
 appended to St. 1899, c. 409, § 28 and § 2. Commonwealth v. Clark, 
 6 Gratt. 675. State v. Colvin, 90 No. Car. 717. The solicitations 
 were alleged in McDermott v. People. In New York it was not neces- 
 sary to la}^ the overt acts relied upon. Mackesey v. People, 6 Parker 
 Cr. Rep. 114, 117, and New York cases supra. See 3 Encyc. PI. & 
 Pr., " Attempts," 98. A valuable collection of authorities concerning 
 the crime will be found under the same title in 3 Am. & Eng. Encyc. 
 of Law (2d ed.). If the indictment had been properly drawn we have 
 no question that the defendant might have been convicted. 
 
 Exceptio7is sustained.
 
 SECT. IV. ] WALSH V. PEOPLE. 125 
 
 WALSH V. PEOPLE. 
 Supreme Court of Illinois. 1872. 
 
 [Reported 65 Illinois, 58.] 
 
 Mr. Justice Thornton delivered the opinion of the court : — ■ 
 
 The defendant below was an alderman of the Common Council of 
 the city of Chicago. As such, he was indicted for a proposal, made 
 by himself, to receive a bribe to influence his action in the discharge 
 of his duties. 
 
 The indictment is, in form, an indictment at common law ; and it is 
 conceded that the statute has not created such an offence against an 
 alderman. Our criminal code has made it an offence to propose, or 
 agree to receive, a bribe, on the part of certain officers ; but an alder- 
 man is not, either in terms or by construction, included amongst them. 
 Rev. Stat. 1845, p. 167, s. 87. 
 
 It is contended that the act charged does not fall within any of the 
 common law definitions of bribery ; that no precedent can be found 
 for such an offence, and that, as propositions to receive bribes have 
 probably often been made, and as no case can be found in which they 
 were regarded as criminal, the conclusion must follov/ that the offence 
 charged is no offence. 
 
 The weakness of the conclusion is in the assumption of a premise 
 which may or may not be true. This particular phase of depravity 
 may never before have been exhibited ; and if it had been, a change 
 might be so suddenly made, by an acceptance of the offer and a con- 
 currence of the parties, as to constitute the oft'ence of bribery, which 
 consists in the receiving any undue reward to incline the party to act 
 contrary to the known rules of honesty and integrity. 
 
 But the character of a particular offence cannot fairly be determined 
 from the fact that an offence exactly analogous has not been described 
 in the books. We must test the criminality of the act by known prin- 
 ciples of law. 
 
 At common law, bribery is a grave and serious offence against public 
 justice ; and the attempt or offer to bribe is likewise criminal. 
 
 A promise of money to a corporator, to vote for a mayor of a cor- 
 poration, was punishable at common law. Rex v. Plympton, 2 Lord 
 Raym. 1377. 
 
 The attempt to bribe a privy councillor, to procure an office, was an 
 offence at common law. Rex ?>. Vaughan, 4 Burr. 2494. In that case, 
 Lord Mansfield said: "Wherever it is a crime to take, it is a crime 
 to give. They are reciprocal. And in many cases, especially in bribery 
 at elections to parliament, the attempt is a crime. It is complete on 
 his side who offers it." 
 
 Why is the mere unsuccessful attempt to bribe criminal ? The oflfi- 
 cer refuses to take the offered reward, and his integrity is untouched,
 
 126 WALSH V. PEOPLE. [CHAP. II. 
 
 his conduct uninfluenced by it. The reason for the law is plain. The 
 offer is a sore temptation to the weak or the depraved. It tends to 
 corrupt ; and as the law abhors the least tendency to corruption, it 
 punishes the act which is calculated to debase, and which may affect 
 prejudicially the morals of the community. 
 
 The attempt to bribe is, then, at common law a misdemeanor ; and 
 the person making the offer is liable to indictment and punishment. 
 
 What are misdemeanors at common law ? Wharton, in his work on 
 criminal law, p. 74, says: "Misdemeanors comprise all offences, lower 
 than felonies, which may be the subject of indictment. They are divided 
 into two classes : first, such as are mala in se, or penal at common 
 law ; and secondl3^ such as are 7nala prohibita, or penal by statute. 
 Whatever, under the first class, mischievously affects the person or 
 property of another, or openly outrages decency, or disturbs public 
 order, or is injurious to public morals, or is a breach of ofhcial duty, 
 when done corruptly, is the subject of indictment." 
 
 In the case of The King v. Higgins, 2 East, 5, the defendant was 
 indicted for soliciting and inciting a servant to steal his master's chat- 
 tels. There was no proof of any overt act towards carrying the intent 
 into execution, and it was argued, in behalf of the prisoner, that the 
 solicitation was a mere fruitless, ineffectual temptation, — a mere wish 
 or desire. 
 
 It was held, by all the judges, that the soliciting was a misdemeauor, 
 though the indictment contained no charge that the servant stole the 
 goods, nor that any other act was done except the soliciting. 
 
 Separate opinions were delivered by all the judges. 
 
 Lord Kenyon said the solicitation was an act, and it would be a slan- 
 der upon the law to suppose that such an offence was not indictable. 
 
 Gross, J., said an attempt to commit a misdemeanor was, in itself, 
 a misdemeanor. The gist of the offence is the incitement. 
 
 Lawrence, J., said: "All offences of a public nature, that is, all 
 such acts or attempts as tend to the prejudice of the community, are 
 indictable ; " and that the mere soliciting the servant to steal was an 
 attempt or endeavor to commit a crime. 
 
 Le Blanc, J., said that the inciting of another, by whatever means 
 it is attempted, is an act done ; and if the act is done with a criminal 
 intent, it is punishable by indictment. 
 
 An attempt to commit an offence or to solicit its commission is at 
 common law punishable by indictment. 1 Hawk. P. C. 55 ; Whar. Cr. 
 Law, 78 and 872 ; 1 Russ. on Cr. 49. 
 
 While we are not disposed to concur with AVharton, to the full extent, 
 in the language quoted, that every act which might be supposed, accord- 
 ing to the stern ethics of some persons, to be injurious to the public 
 morals, to be a misdemeanor, yet we are of opinion that it is a mis- 
 demeanor to propose to receive a bribe. It must be regarded as an 
 inciting to offer one, and a solicitation to commit an offence. This, at 
 common law, is a misdemeanor. Inciting another to the commission
 
 SECT. IV.] COMMONWEALTH V. RANDOLPH. 127 
 
 of any indictable offence, though without success, is a misdemeanor. 
 3 Chitty Cr. Law, 994 ; 1 Russ. on Cr. 49, Cartwright's case ; Russ. 
 and R. C. C. 107, note b ; Rex v. Higgins, 2 East, siqjra. 
 
 As we have seen, the mere offer to bribe, though it may l)e rejected, 
 is an offence ; and the party who makes the offer is amenable to indict- 
 ment and punishment. The offer amounts to no more than a proposal 
 to give a bribe ; it is but a solicitation to a person to take one. The 
 distinction between an offer to bribe and a proposal to receive one, is 
 exceedingly nice. The difference is wholly ideal. If one man attempt 
 to bribe an officer, and influence him, to his own degradation and to 
 the detriment of the public, and fail in his purpose, is he more guilty 
 than the officer, who is willing to make sale of his integrity, debase 
 himself, and who solicits to be purchased, to induce a discharge of his 
 duties ? The prejudicial effects upon society are, at least, as great in 
 the one case as in the other ; the tendency to corruption is as potent ; 
 and when the officer makes the proposal, he is not only degraded, but 
 the public service suffers thereby. 
 
 According to the well-established principles of the common law, the 
 proposal to receive the bribe was an act which tended to the preju- 
 dice of the community, greatly outraged public decency, was in the 
 highest degree injurious to the public morals, was a gross breach of 
 official duty, and must therefore be regarded as a misdemeanor, for 
 which the party is liable to indictment. 
 
 It is an offence more serious and corrupting in its tendencies than 
 an ineffectual attempt to bribe. In the one case the officer spurns the 
 temptation, and maintains his purity and integrity ; in the other, he 
 manifests a depravity and dishonesty existing in himself, which, when 
 developed by the proposal to take a bribe, if done with a corrupt intent, 
 should be punished ; and it would be a slander upon the law to suppose 
 that such conduct cannot be checked by appropriate punishment. 
 
 In holding that the act charged is indictable, we are not drifting 
 into judicial legislation, but are merely applying old and well-settled 
 principles to a new state of facts. 
 
 COMMONWEALTH v. RANDOLPH. 
 Supreme Court of Pennsylvania. 1892. 
 
 [Reported 146 Pennsylvania, 83.] 
 
 Per Curiam. The appellant was convicted in the court below upon 
 an indictment in the first count of which it was charged that she, 
 " Sarah A. McGint}', alias Sarah A. Randolph, . . . unlawfully, wick- 
 edly, and maliciously did solicit and invite one Samuel Kissinger, 
 then and there being, and b}' the offer and promise of payment to said 
 Samuel Kissinger of a large sum of mone}', to wit, one thousand dol- 
 lars, which to him, the said Samuel Kissinger, she, the said Sarah A. 
 McGintj', alias Sarah A. Randolph, then and there did propose, offer.
 
 128 COMMONWEALTH V. liANDOLPH. [CHAP. IL 
 
 promise, and agree to pay, did incite and encourage him, the said 
 Samuel Kissinger, one William S. Foltz, a citizen of said county, in 
 the peace of said commonwealth, feloniously to kill, murder, and slay, 
 contrary to the form of the act of general assembly in such case made 
 and provided, and against the peace and dignity of the commonwealth 
 of Pennsylvania." Upon the trial below the defendant moved to quash 
 the indictment upon the ground that '' the said indictment does not 
 charge in any count thereof any offence, either at common law or by 
 statute."' The court below refused to quash the indictment ; and this 
 ruling, with the refusal of the court to arrest the judgment, is assigned 
 as error. 
 
 It may be conceded that there is no statute which meets this case, 
 and, if the crime charged is not an offence at common law, the judgment 
 must be reversed. What is a common-law offence? We endeavored 
 to answer this question in Com. v. McHale, 97 Pa. 397, 410, in which 
 we held that offences against the purity and fairness of elections were 
 crimes at common law, and indictable as such. We there said : " We 
 are of opinion that all such crimes as especially affect public society 
 are indictable at common law. The test is not whether precedents can 
 be found in the books, but whether they injuriously affect the public 
 policy and economy." Tested by this rule, we have no doubt that 
 the solicitation to commit murder, accompanied by the offer of money 
 for that purpose, is an offence at common law. 
 
 It may be conceded that the mere intent to commit a crime, where 
 such intent is undisclosed, and nothing done in pursuance of it, is not 
 the subject of an indictment. But there w\as something more than an 
 undisclosed intent in this case. There was the direct solicitation to 
 commit a murder, and an offer of money as a reward for its commission. 
 This was an act done, — a step in the direction of the crime, — and 
 had the act been perpetrated the defendant would have been liable to 
 punishment as an accessory to the murder. It needs no argument to 
 show that such an act affects the public policy and economy in a serious 
 manner. 
 
 Authorities in this State are very meagre. Smith v. Com., 54 Pa. 
 209, decided that solicitation to commit fornication and adultery is not 
 indictable. But fornication and adultery are mere misdemeanors by 
 our law, whereas murder is a capital felony. Stabler v. Com., 95 Pa. 
 318, decided that the mere delivery of poison to a person, and solicit- 
 ing him to place it in the spring of a certain i)arty, is not " an attempt 
 to administer poison," within the meaning of the eighty-second section 
 of the Act of March 31, 18G0, P. L. 403. In that case, however, the 
 sixth count of the indictment charged that the defendant did "falsely 
 and wickedly solicit and invite one John Neyer, a servant of the said 
 Eichard S. Waring, to administer a certain poison and noxious and 
 dangerous substance, commonly called Paris green, to the said Richard 
 F. Waring, and divers other persons, whose names are to the said 
 inquest unknown, of the family of the said Richard F. Waring," etc.
 
 SECT. IV.] COMMONWEALTH V. EANDOLPH. 129 
 
 The defendant was convicted upon this count, and while the judgment 
 was reversed upon the first count charging " an attempt to administer 
 poison," we sustained the conviction upon the sixth count ; Mekcuk, J., 
 saying: ''Tiie conduct of the plaiutilf in error, as testified to by the 
 witness, undoubtedly shows an offence for which an indictment will lie 
 without an}' further act having been committed. He was rightly con- 
 victed, therefore, on the sixth count." 
 
 The authorities in England are very full upon this point. The lead- 
 ing case is Hex v. lliggins, 2 East, 5. It is very similar to the case 
 at bar, and it was squarely held tliat solicitation to commit a felon}- is 
 a misdemeanor and indictable at common law. In that case it was said 
 b}' Lord Kenyon, C. J. : '* But it is argued that a mere intent to com- 
 mit evil is not indictable without an act done ; but is there not an act 
 done, where it is chai-ged that the defendant solicited another to commit 
 a felony? The solicitation is an act, and the answer given at the bar 
 is decisive that it would be sufficient to constitute an overt act of high 
 treason." We are not unmindful of the criticism of this case b}' Chief 
 Justice Woodward in Smith v. Com., siq^ra, but we do not think it 
 afl'ects the authority of that case. The point involved in Rex v. llig- 
 gins was not before the court in Smith v. Com., and could not have 
 been and was not decided. It is true, this is made a statutory offence 
 by St. 24 &. 25 Vict. ; but, as is said b}' Mr. Russell in his work on 
 Crimes (volume 1, p 9G7), in commenting on this act: "As all the 
 crimes specified in this clause appear to be misdemeanors at common 
 law, the eflTect of this clause is merel}' to alter the punishment of them." 
 In other words, that statute is merely declaratory of the common law. 
 
 Our best text-books sustain the doctrine of Rex v. Higgins. " If 
 the crime solicited to lie committed be not perpetrated, then the adviser 
 can only be indicted for a misdemeanor." 1 Chit. Crim. Law, p. 
 264. See, also, 1 Archb. Crim. Pr. & PI. 19, and 1 Bish. Crim. Law, 
 § 768, where the learned author says: "The law as adjudged holds, 
 and has held from the beginning in all this class of cases, an indict- 
 ment sufficient which simply charges that the defendant, at the time 
 and place mentioned, falsel}', wickedly, and unlawfully did solicit and 
 incite a person named to commit the substantive offence, without any 
 further specification of overt acts. It is vain, then, to say that mere 
 solicitation, the mere entire thing which need be averred against a 
 defendant as the ground for his conviction, is no ofl!'ence." We are of 
 opinion the appellant was properly convicted, and the judgment is 
 affirmed.^ 
 
 1 See State v. Avery, 7 Conn. 266 ; Com. v. Flagg, 135 Mass. 545. Cf. Cox V. 
 People, 82 111. 191; Smith v. Com., 54 Pa. 209. —Ed.
 
 130 STATE V. HURLEY, [CHAP. II. 
 
 STATE V. HURLEY. 
 Supreme Court of Vermont. 1906. 
 
 [Reported 79 Vt. 000.] 
 
 MuNSON, J. The respondent is informed against for attempting to 
 break open the jail in which he was confined by procuring to be de- 
 livered into his hands 12 steel hack saws, with an intent to break open 
 the jail therewith. The state's evidence tended to show that, in pursu- 
 ance of an arrangement between the respondent and one Tracy, a 
 former inmate, Tracy attempted to get a bundle of hack saws to the 
 respondent by throwing it to him as he sat behind the bars at an open 
 window, and that the respondent reached through the bars and got the 
 bundle into his hands, but was ordered at that moment by the jailer to 
 drop it, and did so. The court charged in substance that if the respon- 
 dent arranged for procuring the saws and got them into his possession, 
 with an intent to break open the jail for the purpose of escaping, he 
 was guilty of the offence alleged. The respondent demurred to the in- 
 formation, and excepted to the charge. Bishop defines a criminal at- 
 tempt to be " an intent to do a particular criminal thing, with an act 
 toward it falling short of the thing intended." 2 Cr. Law, § 728, 
 The main difficulty in applying tliis definition lies in determining the 
 relation which the act done must sustain to the completed offence. 
 That relation is more fully indicated in the following definition given 
 by Stephen : " An attempt to commit a crime is an act done with intent 
 to commit that crime, and forming part of a series of acts which would 
 constitute its actual commission if it were not interrupted." Dig. Cr. 
 Law, 33. All acts done in preparation are, in a sense, acts done toward 
 the accomplishment of the thing contemplated. But most authorities 
 certainly hold, and many of them state specifically, that tlie act must 
 be something more than mere preparation. Acts of preparation, how- 
 ever, may have such proximity to the place where the intended crime 
 is to be committed, and such connection with a purpose of present ac- 
 complishment, that they will amount to an attempt. See note to People 
 V. Moran (N. Y.) 20 Am. St. Rep. 741 ; People v. Stiles, 75 Col. 570, 
 17 Pac. 963 ; People v. Lawton, 56 Barb. (N. Y.) 126. 
 
 Various rules have been formulated in elucidating this subject. 
 Some acts toward the commission of the crime are too remote for the 
 law to notice. The act need not be the one next preceding that needed 
 to complete the crime. Preparations made at a distance from the 
 place where the offence is to be committed are ordinarily too reruote to 
 satisfy the requirement. 1 Bish. Cr. Law, §§ 759, 762 (4) 763. The 
 preparation must be such as would be likely to end, if not extraneously 
 interrupted, in the consummation of the crime intended. 3 Am. & 
 Ency. Law (2d ed.) 266, note 7. The act must be of such a character 
 as to advance the conduct of the actor beyond the sphere of mere intent.
 
 SECT. IV.] STATE V. HURLEY. 131 
 
 It must reach far enough towards the accomplishment of the desired 
 result to amount to the commencement of the consummation. Hicks 
 V. Com., 8G Va. 223, 9 S. E. 1024, 19 Am. St. Rep. 891. But after all 
 that has been said, the application is difficult. One of the best known 
 cases where acts of preparation were held insufficient is People w. 
 Murra}', 14 Cal. 159, which was an indictment for an attempt to con- 
 tract an incestuous marriage. There the defendant had eloped with his 
 niece with the avowed purpose of marrying her, and had taken measures 
 to procure the attendance of a magistrate to perform the ceremon3'. 
 In disposing of the case, Judge Field said: "Between preparations 
 for the attempt and the attempt itself, there is a wide difference. The 
 preparation consists in devising or arranging the means or measures 
 necessary for the commission of the offence; the attempt is the direct 
 movement toward the commission after the preparations are made." 
 Mr. Bishop thinks this case is near the dividing line, and doubts if it 
 will be followed by all courts. 1 Cr. Law, § 763 (3.) Mr. Wharton 
 considers the holding an undue extension of the doctrine that prelimi- 
 nary preparations are insufficient. Cr. Law, 181, note. But the case 
 has been cited with approval by courts of high standing. The exact 
 inquirj' presented b}' the case before us is whether the procurement of 
 the means of committing the offence is to be treated as a preparation 
 for the attempt, or as the attempt itself. In considering this question, it 
 must be remembered that there are some acts, preparatory in their char- 
 acter, which the law treats as substantive offences : for instance, the 
 procuring of tools for the purpose of counterfeiting, and of indecent 
 prints with intent to publish them. Comments upon cases of this char- 
 acter may lead to confusion if not correctly apprehended. Wharton, 
 Cr. Law, § 180, and note 1. 
 
 The case of Griffin v. The State, 26 Ga. 493, cited by the respon- 
 dent, cannot be accepted as an authority in his favor. There the de- 
 fendant was charged with attempting to break into a storehouse with 
 intent to steal, by procuring an impression of the key to the lock and 
 preparing from this impression a false key to fit the lock. The section 
 of the Penal Code upon which the indictment was based provides for 
 the indictment of any one wlio " shall attempt to commit an offence 
 prohibited by law, and in such an attempt shall do any act toward the 
 commission of such offence." The court considered that the General 
 Assembl}' used the word "attempt" as synonymous with "intend," 
 and that the object of the enactment was to punish " intents," if dem- 
 onstrated by an act. The court cited Rex v. Sutton, 2 Str. 1074, as a 
 strong authority in support of the indictment. There the prisoner was 
 convicted for having in his possession iron stamps, with intent to im- 
 press the sceptre on sixpences. This was not an indictment for any 
 attempt, but for the offence of possessing tools for counterfeiting with 
 intent to use them. The Georgia court, by its construction of the 
 statute, relieved itself from the distinction between " attempts " and 
 crimes of procuring or possessing with unlawful intent.
 
 132 STATS V. HUELEY. [CHAP. II. 
 
 The act in question here is the procuring b}- a prisoner of tools 
 adapter! to jail breaking. That act stands entirely unconnected with 
 any further act looking to their use. It is true that the respondent 
 procured them with the design of breaking jail. But he had not put 
 that design into execution, and might never have done so. He had 
 procured the means of making the attempt, but the attempt itself was 
 still in abeyance. Its inauguration depended upon the choice of an 
 occasion and a further resolve. That stage was never reached, and the 
 procuring of the tools remained an isolated act. To constitute an 
 attempt, a preparatory act of this nature must be connected with the 
 accomplishment of the intended crime by something more than a 
 general design. 
 
 Exceptions sustained, judgment and verdict set aside, demurrer sus- 
 tained, information held insufficient and quashed, and respondent 
 discharged.
 
 SECT, v.] DOBBS'S CASE. 133 
 
 SECTION V. 
 A Specific Intent as Part of an Offence, 
 
 1 Hale P. C. 569. [Arson] must be a wilful and malicious burning, 
 otherwise it is not felony, but onl}' a trespass ; and therefore if A. 
 shoot unlawfulh' 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, j-et he had no 
 intention to burn the house thereby, against the opinion of J)aU. Caj). 
 105 p. 270. 
 
 But if A. have a malicious intent to burn the house of B., and in 
 settins: 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 ma}' be indicted for the malicious and wilful burning of the 
 bouse of C. Co. P. C. p. 67. 
 
 DOBBS'S CASE. 
 Buckingham Assizes. 1770. 
 
 {Reported 2 East, P. C. 513.] 
 
 Joseph 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. 
 
 Pakker, 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 
 c&pitally convicted.
 
 134 REX V. KELLY. [CHAP. U. 
 
 REX V. BOYCE. 
 Crown Case Reserved. 1824. 
 
 [Reported 1 Mood;/, 29.] 
 
 The prisoner was tried before Thomas Denman, Esq., Common 
 Serjeant at the Old Bailey 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 tiuie, 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 you ; " 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 shai-p instrument, and the prosecutor was cut 
 and maimed by the blows so given with it by the prisoner. 
 
 The prisoner was found guilty; and, on an answer to a question from 
 the Common Serjeant, the jury said, " We find that he was there with 
 intent to commit a robbery, and that he cut and maimed the watchman 
 with intent to disable him till he could eflfect 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, tlie 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 .f- Dix, 186.] 
 
 Indictment for maliciously killing a horse. The evidence was that 
 the prisoner had fired at the prosecutor, and killed his horse. 
 
 1 See 4.3 Geo. III. c. 58, § 1. 
 
 2 Jcc. Rex V. Duffin, Russ. & Ry. 365. — Ed.
 
 SECT, v.] REGINA V. SMITH. 135 
 
 BusHE, C. J. Under this Act^ the offence must be proved to have 
 been done maliciously, and malice implies intention. Here the proof 
 negatives the intention of killing the horse. The prisoner must there- 
 fore be acquitted.' 
 
 REGINA V. SMITH. 
 
 Crown Case Reserved. 1856. 
 [Reported Dears. C. C. 559.] 
 
 The following case was stated for the opinion of the Court of Crim- 
 inal Appeal b}- Mr. Justice Crompton. 
 
 The prisoner was convicted before me at the Winchester Summer 
 Assizes, 1855, on an indictment charging him with wounding William 
 Ta3-lor with intent to murder him. 
 
 On the night in question the prisoner was posted as a sentry at Park- 
 hurst, and the prosecutor, Taylor, was posted as a sentry at a neigh- 
 bouring post. 
 
 The prisoner intended to murder one Malone}', and supposing Taylor 
 to be Malone}', shot at and wounded Taylor. 
 
 The jury found that the prisoner intended to murder Malone}', not 
 knowing that the party he shot at was Taylor, but supposing him to be 
 Maloney, and the jury found that he intended to murder the individual 
 he shot at supposing him to be Maloney. 
 
 I directed sentence of death to be recorded, reserving the question, 
 whether the prisoner could be properly convicted on this state of facts 
 of wounding Taylor with intent to murder him? See Rex -y. Holt, 7 
 Car. & P. 518. See alro Rex v. Ryan, 2 Moo. & Rob. 213. 
 
 Charles Crompton. 
 
 This case was considered on 24th of November, 1855, by Jervis, 
 C. J., Parke, B., Wightman, J., Crompton, J., and Willes, J. 
 
 No counsel appeared either for the Crown or for the prisoner. 
 
 Jervis, C. J. There is nothing in the objection. The conviction is 
 good. 
 
 Parke, B. The prisoner did not intend to kill the particular person, 
 but he meant to murder the man at whom he shot. 
 
 The other learned Judges concurred. 
 
 Conviction affirmed. 
 
 1 9 Geo. IV. c. 56, §17. 
 
 * Ace. Com. V. Walden, 3 Cush. 558. — Ed.
 
 136 KEX V. WILLIAMS. [CHAP. II. 
 
 REX V. WILLIAMS. 
 
 Crown Case Reversed. 1790. 
 
 [Reported 1 Leach C. C. (4th Ed.) 529.] 
 
 AsHHURST, J.^ Rhenwick Williams, the prisoner at the bar, was tried 
 m last Jul}' Session on the statute of 6 Geo. I, e. 23, and the indict- 
 ment charged, that he, on the 18th January 1790, at the parish of St. 
 James, in a certain public street called St. James's-street, wilfully, 
 maliciousl}-, and feloniously did make an assault on Anne Porter, 
 spinster, with intent wilfuU}' and maliciously to tear, spoil, cut, and 
 deface her garments ; and that he, on that said 18th of January 1790, 
 in the parish aforesaid, &c. did wilfull}', maliciously, and feloniously 
 tear, spoil, cut, and deface her silk gown, petticoat, and shift, being 
 part of the wearing apparel which she then had and wore on her 
 person. The Jury found the prisoner guilty ; but the judgment was 
 respited, and the case submitted to the consideration of the Judges 
 upon three questions. A majorit}^ of the Judges are of opinion, upon 
 all the questions, that this indictment is not well founded. . . . The 
 Judges are of opinion, that the case, as proved, is not substantially 
 within the meaning of the Act of Parliament. This statute was passed 
 upon a particular and extraordinary occasion. Upon the introduc- 
 tion of Indian fashions into this country, the silk weavers, conceiving 
 that it would be detrimental to their manufacture, made it a practice to 
 tear and destroy the clothes and garments which were of a different 
 commodity from that which the}' wove, and to prevent this practice 
 the statute of 6 Geo. I, c. 23, was made. To bring a case therefore 
 within this statute, the primary intention must be the tearing, spoiling, 
 cutting, or defacing of the clothes ; whereas, in the present case, the 
 primar}' intention of tlie prisoner appears to have been the wounding 
 of the person of the prosecutrix. The Legislature, at the time they 
 passed tliis Act, did not look forward to the possibilit}' of a crime 
 of so diabolical a nature as that of wounding an unoffending person 
 merely for the sake of wounding the person, without having received 
 any provocation whatever from the party wounded. But even upon the 
 supposition that it was possible for the Legislature to entertain an idea 
 of such an offence, it is clear they did not intend to include it within 
 the penalties of this statute, because, if they had entertained such an 
 idea, it is probable they would have annexed to it a higher punishment 
 than this statute inflicts. As the Legislature therefore could not have 
 framed this statute to meet this offence, it does not fall within the 
 province of those who are to expound the laws to usurp the ofBce of the 
 
 1 Part of the opinion only is giyen. — Ed.
 
 SECT, v.] STATE V. TAYLOR. 137 
 
 Legislature, and to bring an offence within the meaning of an Act, 
 merely because it is enormous, and deserving of the highest punish- 
 ment. But although the lash of the Legislature does not reach this 
 offence so as to inflict the consequences of felony on the offender, yet 
 the wisdom of the Common Law opens a means of prosecution by 
 indictment for the misdemeanor, and, on conviction of the offender, 
 arms the Court with a power to punish the offence in a way that may 
 force him to repent the temerity of so flagrant a violation of the rules 
 of law, the precepts of social duty, and the feelings of humanity.^ 
 
 STATE V. TAYLOR. 
 
 Supreme Court of Vermont. 1896. 
 [Reported 70 Vt. 1.] 
 
 Indictment for an assault with intent to kill and murder. Trial by 
 jury at the May Term, 1895, Windsor County, Taft, J., presiding. 
 Verdict and judgment of guilty, and sentence imposed at the respond- 
 ent's request. The respondents excepted. 
 
 MuNsoN, J.^ The alleged assault was committed upon Paul Tink- 
 ham, constable of Rochester, and three persons acting under him, while 
 they were effecting an arrest of the respondents and two others, with- 
 out a warrant on suspicion of felon3^ . . . 
 
 It is also objected that the respondents could not be convicted of 
 more than a common assault without the finding of an actual intent to 
 take life, and that the charge permitted the jurj^ to return their verdict 
 without finding this. It has been repeatedly held in cases not involving 
 the matter of arrest that proof of a specific intent to kill is requisite. 
 The intent is the body of the aggravated oflfence. If death results from 
 an unlawful^ act, the offender may be guilty of murder, even though he 
 
 ^ It seems that Buller, J., retained the opinion he had given the Jury, viz. that 
 the case came within the statute, because the Jury, whose sole province it was to find 
 the intent, had expressly found that the intent of the prisoner was to wound the 
 party by cutting through her clothes, and therefore that he must have intended to cut 
 her clothes ; and for this opinion he relied upon the case of Cook and Woodburn, upon 
 the statute 22 and 23 Car. II, c. 1, commonly called the Coventry Act, charging them 
 in the words of the Act with an intention to maim a Mr. Crisp. The fact of maiming 
 was clearly proved, but the defendants insisted that their intention was to murder 
 him, and not to maim him, and therefore that they were not within the statute. But 
 Lord King said that the intention was a matter of fact to be collected from the cir- 
 cumstances of the case, and as such was proper to be left to the Jury ; and that if it 
 was the intent of the prisoners to murder, it was to be considered whether the means 
 made use of to accomplish that end and the consequences of those means were not 
 likewise in their intention and design ; and the Jury found them guilty and they were 
 executed. — But it seems that upon a subsequent occasion Willes, J., and Eyre, B., 
 expressed some dissatisfaction with this determination, and thought, at least, that the 
 construction ought not to be carried further. 1 East, 400 and 424. 
 
 * Only so mach of the case as discusses the question of intent to kill is given. — 
 Ed.
 
 ]^38 STATE V. TAYLOR. fCHAP. II. 
 
 did not intend to take life ; but if the assault, however dangerous, is 
 not fatal, the offender cannot be convicted of an assault with intent to 
 kill unless the intent existed. An intent to take life may sometimes be 
 presumed from the fact of killing, but when that fact does not exist the 
 intent must be otherwise established. Any inference that may be drawn 
 from the nature of the weapon and the manner of its use is an inference 
 of fact to be drawn by the jury upon a consideration of these with the 
 other circumstances of the case. 2 Bish. Crim. Law, § 741 ; Roberts 
 V. People, 19 Mich. 401 ; Patterson v. State, 85 Ga. 131 ; 21 Am. St. 
 
 152. 
 
 Nor do we find any ground for holding otherwise when the assault 
 is made in resisting arrest. Under an indictment framed like this, a 
 respondent may be convicted of an assault with intent to kill, or an 
 assault with intent to murder. State v. Reed, 40 Vt. 603. The grade 
 of the assault will depend upon whether the crime would have been 
 manslaughter or murder if death had ensued. But if the death had 
 resulted from resisting an authorized arrest properly made, the crime 
 would have been murder, regardless of the question of malice. So if 
 the assault charged was committed in resisting such an arrest, and was 
 found to have been made with intent to kill, it would have been an 
 assault with intent to murder. But in the case of either assault there 
 must have been the intent to take life. The elimination from the in- 
 quiry of malice as the distinguishing test between murder and man- 
 slaughter, and so between the two grades of assaults, does not eliminate 
 the question of specific intent, which is an essential element even of the 
 lower offence- The malice which the law infers from resistance to law- 
 ful arrest does not cover the intent to do a particular injury, and the 
 question of intent must stand the same as in other cases. 
 
 So it becomes necessary to consider whether the matter of intent was 
 properly submitted to the jury. The question was not entirely ignored 
 by the court, but it was omitted from the general propositions sub- 
 mitted, and we think the charge as a whole could not fail to leave upon 
 the minds of the jury an impression that if the circumstances of the 
 arrest were such that the killing of the officer would have been murder, 
 the assault was an assault with intent to murder. The attention of the 
 jury was directed almost exclusively to the question of guilt as depend- 
 ing upon the legality of the arrest. They were nowhere distinctly told 
 that unless the respondents were found to have made the assault with 
 an intent to take life, they could be convicted of nothing but a common 
 assault.
 
 SECT, v.] REX V. SHEPPARD. 139 
 
 REX V. SHEPPARD. 
 Crown Case Reserved. 1810. 
 
 [Reported Russell ^- Ryan, 169.] 
 
 The prisoner was tried before Mr. Justice Heatli, at the Old Bailey 
 September sessions, iu tLie year 1809, on an indictment consisting of 
 four counts. 
 
 The first count charged the prisoner with forging a receipt for 
 £19 16s. 6(1, 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 tlie 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 INIordey 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. 
 
 That as to the third and fourth counts, although the Mordey s 
 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 effect and consequence of the forgery, if the prisoner could not 
 repay the money, it was sufficient 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 opinion 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.
 
 140 gore's case. [chap. ii. 
 
 GORE'S CASE. 
 Crown Case Reserved. 1611. 
 
 [Reported 9 Coke, 81 a. J 
 
 Before Fleming, Chief Justice, and Tanfield, Chief Baron, Justices 
 of Assize, this case happened in their western circuit. Agnes, the 
 daughter of Roper, married one Gore ; Gore fell sick •, Roper, the 
 father, in good-will to the said Gore his son-in-law went to one Dr. 
 Gray, a physician, for his advice, who made a receipt directed to one 
 Martin, his apothecar}', for an electuary to be made, which the said 
 Martin did and sent it to the said Gore ; Agnes, the wife of Gore, 
 secretl}' mixed ratsbane with the electuar}', to the intent therewith to 
 poison her husband, and afterward, 18 Mail, she gave part of it to her 
 husband, who eat thereof and immediately became grievously sick ; 
 the same day Roper the father eat of it, and iramediatel}^ also became 
 sick ; 19 3Ian C. eat part of it, and he likewise fell sick ; but the}' all 
 recovered, and yet a,re alive. The said Roper, observing the operation 
 of the said electuary, carried the said box with the said electuary 21 
 Mail to the said Gray the physician and informed him of the said 
 accidents, who sent for the said Martin the apothecar}^ and asked hini 
 if he had made the said electuar\' according to his direction, who 
 answered that he had in all things but in one, which he had not in his 
 shop, but put in another thing of the same operation, which the said 
 Dr. Gra}' well approved of; whereupon Martin the apothecary said, '' To 
 the end you may know that I have not put an3-thing in it which I 
 myself will not eat, I will here before you eat part of it," and there- 
 upon Martin took the box, and with his knife mingled and stirred to- 
 gether the said electuary, and took and eat part of it, of which he 
 died the 22d day of May following. The question was, if upon all 
 this matter Agnes had committed murder. And this case was deliv- 
 ered in writing to all the judges of England to have their opinions in 
 the case ; and the doubt was, because Martin himself of his own head, 
 without incitation or procurement of any, not only eat of the said 
 electuar}', but he himself mingled and stirred it together, which mix- 
 ing and stirring had so incorporated the poison with the electuarv, 
 that it made the operation more forcible than the mixture which the 
 said Agnes had made ; for notwithstanding the mixture which 
 Agnes had made, those who eat of it were sick, but 3-et alive, but the 
 mixture which Martin has made by mingling and stirring of it with 
 his knife, made the operation of the poison more forcible and was the 
 occasion of his death. And if this circumstance would make a differ- 
 ence between this case and Saunders's case in Plow. Cora. 474 was 
 the question. 
 
 And it was resolved by all the judges that the said Agnes was 
 guilty of the murder of the said Martin, for the law conjoins the mur-
 
 SECT, v.] REGINA V. PEMBLITON. 141 
 
 derous intention of Agnes in putting the poison into the electuary to 
 kill her husband with the event which thence ensued, — sc. the 
 death of the said Martin ; for the putting of the poison into the elec- 
 tuary is the occasion and cause, and the poisoning and death of the 
 said^ Martin is the event, quia eoentus est qui ex causa seguitur, et 
 dicioitur eventus quia ex causis eveniiint, and the stirring of the 
 electuary by Martin with his knife without the putting in of the poison 
 by Agnes could not have been the cause of his death. 
 
 " And it was also resolved that if A. puts poison into a pot of wine, 
 «fec., to the intent to poison B., and sets it in a place where he sup- 
 poses B. will come and drink of it, and by accident C. (to whom A. 
 has no malice) comes and of his own head takes the pot and drinks of 
 it, of which poison he dies, it is murder in A., for the law couples the 
 event with the intention, and the end with the cause ; and in the same 
 case if C. thinking that sugar is in the wine, stirs it with a knife and 
 drinks of it, it will not alter the case ; for the King by reason of the 
 putting in of the poison with a murderous intent has lost a subject ; 
 and therefore in law he who so put in the poison with an ill and felo- 
 nious intent shall answer for it. But if one prepares ratsbane to kill 
 rats and mice, or other vermin, and leaves it in certain places to that 
 purpose, and with no ill intent, and one finding it eats of it, it is not 
 felony, because he who prepares the poison has no ill or felonious in- 
 tent : but when one prepares poison with a felonious intent to kill any 
 reasonable creature, whatsoever reasonable creature is thereby killed, 
 he who has the ill and felonious intent shall be punished for it, for 
 he is as great an offender as if his intent against the other person 
 had taken effect. And if the law should not be such, this horrible 
 and heinous offence would be unpunished ; which would be mischievous 
 and a great defect in the law. 
 
 REGINA V. PEMBLITON. 
 Crown Case Reserved. 1874. 
 
 [Reported 12 Cox C. C. 607.J 
 
 Case stated for the opinion of this court by the Recorder of 
 Wolverhampton. 
 
 At the Quarter Sessions of the Peace held at Wolverhampton on the 
 8th day of January instant Henry Pembliton was Indicted for that he 
 «« unlawfully and maliciously did commit damage. Injury, and spoil upon 
 a window in the house of Henry Kirkham " contrary to the provision 
 of the Stat. 24 & 25 Vict. c. 97, s. 51. This section of the statute 
 enacts : — 
 
 "Whosoever shall unlawfully and maliciously commit any damage, 
 injury, or spoil to or upon any real or personal property whatsoever,
 
 142 REGINA V. PEMBLITON. [CHAP. II. 
 
 either of a public or a private nature, for which no punishment is 
 hereinbefore provided, the damage, injur}', or spoil being to an amount 
 exceeding £5, shall be guilty of a misdemeanor, and being convicted 
 thereof shall be liable, at the discretion of the court, to be imprisoned 
 for an}- term not exceeding two years, with or without hard labor ; and 
 in case any such offence shall be committed between the hours of nine 
 of the clock in the evening and six of the clock in the next morning, he 
 shall be liable at the discretion of the court to be kept in penal servi- 
 tude for any term not exceeding five years, and not less than three, or 
 to be imprisoned for any term not exceeding two years, with or without 
 hard labor." 
 
 On the night of the 6th day of December, 1873, the prisoner was 
 drinking with others at a public-house called " The Grand Turk " kept 
 by tlie prosecutor. About eleven o'clock p. m. the whole party were 
 turned out of the house for being disorderly, and they then began to 
 fight in the street and near the prosecutor's window, where a crowd 
 of from forty to fifty persons collected. The prisoner, after fighting 
 some time with persons in the crowd, separated himself from them, and 
 removed to the other side of the street, where he picked up a large 
 stone and threw it at the persons he had been fighting with. The stone 
 passed over the heads of those persons, and struck a large plate-glass 
 window in the prosecutor's house, and broke it, thereby doing damage 
 to the extent of £7 12s. 9d. 
 
 The jury, after heai'ing evidence on both sides, found that the pris- 
 oner tlirew the stone which broke the window, but that he threw it at 
 the people he had been fighting with, intending to strike one or more of 
 them with it, but not intending to break the window ; and they returned 
 a verdict of "guilty," whereupon I respited the sentence, and admitted 
 the prisoner to bail, and pray the judgment of the Court for Crown 
 Cases Reserved, whether upon the facts stated and the finding of the 
 jury, the prisoner was rightly convicted or not. 
 
 (Signed) John J. Powell, 
 
 Recorder of Wolverhampton. 
 
 No counsel appeared to argue for the prisoner. 
 
 «/". Uiiderhill, for the prosecution.'^ 
 
 Lord Coleridge, C. J. I am of opinion that this conviction must 
 be quashed. The facts of the case are these. The prisoner and some 
 other persons who had been drinking in a public-house were turned out 
 of it at about eleven p. m. for being disorderly, and they then began to 
 fight in the street near the prosecutor's window. The prisoner sepa- 
 rated himself from the others, and went to the other side of the street, 
 and picked up a stone, and threw it at the persons he had been fighting 
 with. The stone passed over their heads, and broke a large plate-glass 
 window in the prosecutor's house, doing damage to an amount exceed- 
 ing £5. The jury found that the prisoner threw the stone at the people 
 
 * The argument is omitted.
 
 SECT, v.] EEGINA V. PEMBLITON. 143 
 
 he had been fighting with, intending to strike one or more of them with it, 
 but not intending to brealv the window. The question is whether under 
 an indictment for unlawfully and maliciously committing an iujury to 
 the window in the house of the prosecutor, the proof of these facts alone, 
 coupled with the finding of the jury, will do. Now I think that is not 
 enough. The indictment is framed under the 24 & 25 Vict, c 97, s. 51. 
 The Act is an Act relating to malicious injuries to propert}-, and section 
 51 enacts that whosoever shall unlawfully and maliciously commit an\- 
 damage, &c., to or upon any real or personal property whatsoever of a 
 public or a private nature, for which no punishment is hereinbefore 
 provided, to an amount exceeding £5, shall be guilty of a misdemeanor. 
 There is also the 58th section which deserves attention. " Every pun- 
 ishment and forfeiture by this Act imposed on an}- person maliciously 
 committing anv offence, whether the same be punishable upon indict- 
 ment or upon sumraaiy conviction, shall equally apply and be enforced, 
 whether the ofience shall be committed from malice conceived against 
 the owner of the property- in respect of which it shall be committed, 
 or otherwise." It seems to me on both these sections that what was 
 intended to be provided against by the Act is the wilfully doing an 
 unlawful act, and that the act must be wilfully and intentionally done 
 on the part of the person doing it, to render him liable to be convicted. 
 Without saying that, upon these facts, if the jury had found tliat the 
 prisoner had been guilty of throwing the stone recklessly, knowing that 
 there was a window near which it might probably hit, I should have 
 been disposed to interfere with the conviction, yet as they have found 
 that he threw the stone at the people he had been fighting with, intend- 
 ing to strike them and not intending to break the window, I think the 
 conviction must be quashed. I do not intend to throw any doubt on 
 the cases which have been cited, and which show what is sufficient to 
 constitute malice in the case of murder. They rest upon the princi- 
 ples of the common law, and have no application to a statutory oflfence 
 created by an Act in which the words are carefully studied. 
 
 Blackburn, J. I am of the same opinion, and I quite agree that it 
 is not necessary to consider what constitutes wilful malice aforethought 
 to bring a case within the common law crime of murder, when we are 
 construing this statute, which says that whosoever shall unlawfully and 
 maliciously commit any damage to or npon any real or personal prop- 
 erty to an amount exceeding £5, shall be guilty of a misdemeanor. 
 A person may be said to act maliciously when he wilfully does an 
 unlawful act without lawful excuse. The question here is, Can the 
 prisoner be said, when he not only threw the stone unlawfully, but 
 broke the window unintentionally, to have unlawfully and maliciously 
 broken the window? I think that there was evidence on which the jury 
 might have found that he unlawfully and maliciously broke the window, 
 if they had found that the prisoner was aware that the natural and 
 probaljle consequence of his throwing the stone was that it might break 
 the glass window, on the principle that a man must be taken to intend
 
 144 REGINA V. FAULKNER. [CHAP. II. 
 
 what is the natural and probable consequence of his acts. But the jury 
 have not found that the prisoner threw the stone, knowing tliat, on the 
 other side of the men he was tlirowing at, there was a glass window, 
 and that he was reckless as to whether he did or did not break the 
 window. On the contrary, they have found that he did not intend to 
 break the window. I think therefore that the conviction must bt» 
 quashed, 
 
 PiGOTT, B. I am of the same opinion. 
 
 Lush, J. 1 also tliiiik that on this finding of the jury we have no 
 alternative but to hold that the conviction must be quashed. The word 
 " maliciously " means an act done either actually or constructively witli 
 a malicious intention. The jury might have found that he did intend 
 actually to break the window, or constructively to do so, as that he 
 knew that the stone might probably break it when he threw it. But 
 they have not so found. 
 
 Cleasby, B., concurred. Conviction quashed. 
 
 REGINA V. FAULKNER. 
 Crown Case Reserved, Ireland. 1877. 
 
 [Reported 13 Cox C. C. 550] 
 
 Case reserved by Lawson, J., at the Cork Summer Assizes, 1876. 
 The prisoner was indicted for setting fire to the ship " Zemindar," on 
 the high seas, on the 26th day of June, 1876. The indictment was as 
 follows: "That Robert Faulkner, on the 26th day of June, 1876, on 
 board a certain ship called the ' Zemindar,' the property of Sandback, 
 Tenne, and Co., on a certain voyage on the high seas, then being on 
 tiie hio-h seas, feloniouslv, unlawfuUv, and maliciouslv, did set fire to the 
 said ship ' with intent thereby to prejudice the said' (these words were 
 struck out at the trial by the learned judge, and the following words 
 inserted, 'called the "Zemindar," the property of) Sandback, Tenne, 
 and Co., and that the said Robert Faulkner, on the day and year afore- 
 said, on board a certain ship called the ' Zemindar,' being the property 
 of Sandback, Parker, and other, on a certain voyage on the high seas, 
 then being upon the high seas, feloniousl}', unlawfully, and maliciously, 
 did set fire to the said ship, with intent thereby to prejudice the said 
 Sandback, Parker, and other, the owners of certain goods and chattels 
 then laden, and being on board said ship." It was proved that the 
 " Zemindar" was on her voyage home with a cargo of rum, sugar, and 
 cotton, worth £50,000. That the prisoner was a seaman on board, that 
 he went into the forecastle hold, opened the sliding door in the bulk- 
 head, and so got into the hold where the rum was stored ; he had no 
 business there, and no authority to go there, and went for the purpose 
 of stealing some rnm ; that he bored a hole in the cask with a gimlet ; 
 that the rum ran out ; that when trying to put a spile in the hole out of
 
 SKCT. v.] KEGINA V. FAULKNEK, 145 
 
 which the rum was running he had a lighted match in his hand ; that 
 the rum caught fire ; that the prisoner himself was burned on the arms 
 and neck ; and that the ship caught fire and was completely destroyed. 
 At the close of the case for the Crown, counsel for the prisoner asked 
 for a direction of an acquittal on the ground that on the facts proved 
 the indictment was not sustained, nor the allegation that the prisoner 
 had unlawfully and maliciously set fire to the ship proved. The Crown 
 contended that inasmuch as the prisoner was at the time engaged in 
 the commission of a felon}', the indictment was sustained, and the 
 allegation of the intent was immaterial. 
 
 At the second hearing of the case, before the Court for Crown Cases 
 Reserved, the learned judge made the addition of the following para- 
 graph to the case stated by him for the court. 
 
 " It was conceded that the prisoner had no actual intention of burn- 
 ing the vessel, and I vvas not asked to leave any question to the jury 
 as to the prisoner's knowing the probable consequences of his act, or 
 as to his reckless conduct." 
 
 The learned judge told the jury that although the prisoner had no 
 actual intention of burning the vessel, still if they found he was en- 
 gaged in stealing the rum, and that the fire took place in the manner 
 above stated, the}' ought to find him guilty. The jury found the pris- 
 oner guilty on both counts, and he was sentenced to seven years' penal 
 servitude. The question for the court was whetlier the direction of thp 
 learned judge was right ; if not, the conviction should be quashed.-' 
 
 Peter O'Brien, for the prisoner. 
 
 The Attorney General (May), with him Green, Q. C, for the Crown.^ 
 
 O'Brien, J.^ I am also of opinion that the conviction sliould be 
 quashed, and I was of that opinion before the case for our consideration 
 was amended by m}- brother Lawson. I had inferred from the original 
 case that his direction to the jury was to the effect now expressly stated 
 by amendment, and that, at the trial, the Crown's counsel conceded 
 that the prisoner had no intention of burning the vessel, or of ignit- 
 ing the rum ; and raised no questions as to prisoner's imagining or 
 having any ground for supposing that the fire would be the result or 
 consequence of his act in stealing the rum. With respect to Reg. v. 
 Pembliton, 12 Cox C. C G<)7, it appears to me there were much stronger 
 grounds in that case for upholding the conviction than exist In the case 
 before us. In that case the breaking of the window was the act of the 
 prisoner. He threw the stone that broke it ; he threw it with the un- 
 lawful intent of striking some one of the crowd about, and the breaking 
 of the window was the direct and immediate result of his act. And yet 
 
 1 24 & 25 Vict. c. 97, s. 42, "Whoever shall unlawfully and maliciously set fire to, 
 cast away, or in anywise destroy any ship or vessel . . . shall be guilty of felony." 
 
 2 Arguments of counsel are omitted. 
 
 ^ Concurring opinions of Barry and Fitzgerald, JJ., and Fitzgerald, B., and 
 the dissenting opinion of Keogh, J. are omitted. Dowse and Deasy, BB., and 
 Lawson, J. also concurred. — F.b,
 
 146 KEGINA V. FAULKNER. [CHAP, II. 
 
 the court unanimous!}' quashed the conviction upon the ground that, 
 although the prisoner threw the stone intending to strilce some one or 
 more persons, he did not intend to break the window. The courts 
 above have intimated their opinion that if the jury, upon a question to 
 that effect being left to them, had found tliat the prisoner, knowing the 
 window was there, might have reasonably expected that the result of 
 his act would be the breaking of the window, that then the conviction 
 should be upheld. During the argument of this case the Crown counsel 
 required us to assume that the jury found their verdict upon the ground 
 that in their opinion the prisoner may have expected that the fire would 
 be the consequence of his act in stealing the rum, but nevertheless did 
 the act reckhissly, not caring whether the fire took place or not. But 
 at the trial there was not even a suggestion of any such ground, and 
 we cannot assume that the jury formed an opinion which there w^as no 
 evidence to sustain, and which would be altogether inconsistent with 
 the circumstances under which the fire took place. The reasonable 
 inference from the evidence is that the prisoner lighted the match for 
 the purpose of putting the spile in the hole to stop the further running 
 of the rum, and that wliile he was attempting to do so, the rum came in 
 contact with the lighted match and took fire. The recent case of Reg. 
 V. Welch, 13 Cox C. C. 121, has been also referred to, and has been 
 relied on by the Crown counsel on the ground that, though the jur}- 
 found that the prisoner did not, in fact, intend to kill, maim, or wound 
 the mare that had died from the injury inflicted by the prisoner, the 
 prisoner was, nevertheless, convicted on an indictment charging him 
 with having unlawfuU}' and maliciously' killed, maimed, or wounded the 
 mare, and such conviction was upheld by the court. But on referring 
 to the circumstances of that case it will be seen that the decision in it 
 does not in an}' wa}' conflict with that in the previous case of Reg. v. 
 Pembliton, and furnishes no ground for sustaining the present convic- 
 tion. Mr. Justice Lindley, who tried that subsequent case, appears to 
 have acted in accordance with the opinion expressed by the judges in 
 Reg. V. Pembliton. Besides leaving to the juiy the question of prisoner's 
 intent, he also left them a second question, namel}', whether the pris- 
 oner, when he did the act complained of, knew that what he was doing 
 ■would or might kill, maim, or wound the mare, and nevertheless did the 
 act recklessly, and not cai'ing whether the mare was injured or not. 
 The jury answered that second question in the affirmative. Their 
 finding was clearly warranted by the evidence, and the conviction was 
 properly affirmed. B}- those two questions a distinction was taken 
 between the case of an act done by a party with the actual intent to 
 cause the injury inflicted, and the case of an act done by a party know- 
 ing or believing that it would or might cause such injury, but reckless 
 of the result whether it did or did not. In the case now before us there 
 was no ground whatever for submitting to the jur}' any question as to 
 the prisoner believing or supposing that the stealing of the rum would 
 be attended with a result so accidental and so dangrerous to himself
 
 SECT. V.J KEGINA V. FAULKNER. 147 
 
 During the argument doubts were suggested as to the soundness of the 
 decision in Reg. v. Pembliton ; but in my opinion that case was rightly 
 decided, and should be followed. Its autliority was not questioned in 
 Reg. V. Welch, in which the judges who constituted the court were 
 different from those who had decided Reg. v. Pembliton, with the excep- 
 tion of Lord Coleridge, who delivered the judgments of the court on 
 both occasions. 
 
 Pall.es, C. B. I concur in the opinion of the majorit}' of the court, 
 and I do so for the reasons already stated by m}' brother Fitzgerald. 
 I agree with my brother Keogh that from the facts proved the inference 
 might have been legitimatelv drawn that the setting fire to the ship 
 was malicious within the meaning of the 24 & 25 Vict. c. 97. I am of 
 opinion that that inference was one of fact for the jury, and not a con- 
 clusion of law at which we can arrive upon the case before us. There 
 is one fact from which, if found, that inference would, in m}' opinion, 
 have arisen as matter of law, as that the setting fire to the ship was the 
 probable result of the prisoner's act in having a lighted match in the 
 place in question ; and if that had been found I should have concurred 
 in the conclusion at which ]\Ir. Justice Keogh has arrived. In mv 
 judgment the law imputes to a person who wilfully commits a criminal 
 act an intention to do everything which is the probable consequence of 
 the act constituting the corpus delicti which actually ensues. In my 
 opinion this inference arises irrespective of the particular consequence 
 which ensued being or not being foreseen bv the criminal, and whetlier 
 his conduct is reckless or the reverse. This much I have deemed it 
 right to say to prevent misconception as the grounds upon which my 
 opinion is based. I wish to add one word as to Reg. v. Pembliton, 12 
 Cox C. C. 607. In my opinion the learned judges who were parties to 
 that decision never intended to decide, and did not decide, anything 
 contrary to the views I have expressed. That they did not deem actual 
 intention, as distinguished from implied intention, essential is shown 
 by the subsequent case of Reg. v. Welch, in which an indictment under 
 the 40th section of the same Act was upheld, although actual intention 
 was negatived by the jury. The facts found in answer to the second 
 question in that case cannot have been relied upon as evidence of 
 actual intention. As evidence they would have been valueless in face 
 of the finding negativing the fact which in this view they would have 
 but tended to prove. Their value was to indicate a state of facts in 
 which intention was imputed by an irrefutable inference of law. It was 
 not germane to the actual decisions in Reg. v. Pembliton and Reg. v. 
 Welch to determine whether the state of facts from which this inference 
 of law arises is that siTggested in the first case and acted upon by the 
 second, or the circumstance of one act being the natural consequence 
 of the other. Some of the learned judges, no doubt, during the argu- 
 ments and in their judgments in the first case indicate a state of facts 
 from which this inference would arise. They do not decide that the 
 same inference might uot arise in the other state of facts to which J
 
 148 REGINA V. LATIMER. [CHAP. II. 
 
 have alluded. If, contrary to my own view of that case, it shall be held 
 to involve that intention to do that which is a necessarj- consequence 
 of a wrongful act wilfully committed is not an inference irrefutable as 
 matter of law, I must say, with unfeigned deference, that I shall hold 
 myself free hereafter to decline to follow it. The Lord Chief Justice 
 of the Common Pleas, who, in consequence of illness, has been unable 
 to preside to-day, has authorized me to state that he considers that the 
 case before us is concluded by Reg. v. Pembliton. 
 
 Conviction quashed. 
 
 REGINA V. LATIMER. 
 
 Crov^n Case Reserved. 1886. 
 
 [Reported 16 Cox C. C. 70.] 
 
 Case stated by the learned Recorder for the borough of Devonport 
 as follows : — 
 
 The prisoner was tried at the April Quarter Sessions for the borough 
 of Devonport on the 10th day of April, 1886. 
 
 The prisoner was indicted for unlawfully and maliciously wounding 
 Ellen Rolston. There was a second count charging him with a com- 
 mon assault. 
 
 The evidence showed that the prosecutrix, Ellen Rolston, kept a 
 public-house in Devonport; that on Sunday, the 14th day of February, 
 1886, the prisoner, who was a soldier, and a man named Horace 
 Chappie were in the public-house, and a quarrel took place, and event- 
 ually the prisoner was knocked down by the man Horace Chappie. 
 The prisoner subsequently went out into a yard at the back of the 
 house. In al)out five minutes the prisoner came back hastily through 
 the room in which Chappie was still sitting, having in his hand his 
 belt which he had taken off. As the prisoner passed he aimed a blow 
 with his belt at the said Horace Chappie, and struck him slightly ; 
 the belt bounded otf and struck the prosecutrix, who was standing 
 talking to the said Horace Chappie, in the face, cutting her face open 
 and wounding her severely. 
 
 At the close of the case the learned Recorder left these questions to 
 the jury: 1. Was the blow struck at Chappie in self-defence to get 
 through the room, or unlawfully and maliciously? 2. Did the Itlow so 
 struck in fact wound Ellen Rolston? 3. Was the striking Ellen 
 Rolston purely accidental, or was it such a consequence as the pris- 
 oner should have expected to follow from the blow he aimed at 
 Chappie? 
 
 The jury found : 1. That the blow was unlawful and malicious. 
 2. That the blow did in fact wound Ellen Rolston. 3. That the strik- 
 ing Ellen Rolston was purely accidental, and not such a consequence 
 of the blow as the prisoner ought to have expected.
 
 SECT, v.] EEGINA V. LATIMER. 149 
 
 Upon these findings the learned Recorder directed a verdict of 
 guilty to be entered to the first count, but respited judgment, and 
 admitted the prisoner to bail, to come up for judgment at the next 
 
 sessions. 
 
 The question for the consideration of the court was, whether upon 
 the facts and the findings of the jury the prisoner was rightly con- 
 victed of the offence for which he was indicted. 
 
 By sect. 20 of 2-4 & 25 Vict. c. 100, it is enacted that, " Whosoever 
 shall unlawfully and maUciously wound or inflict any grievous bodily 
 harm upon any other person, either with or without any weapon or 
 instrument, shall be guilty of misdemeanor." 
 
 Croft for the prisoner.^ 
 
 Helpman, for the prosecution, was not called upon. 
 
 Lord Coleridge, C. J. I am of opinion that this conviction must 
 be sustained. In the first place, it is common knowledge that, if a 
 person has a malicious intent towards one person, and in carrying into 
 eff"ect that maUcious intent he injures another man, he is guilty of 
 what the law considers malice against the person so injured, because 
 he is guilty of general malice ; and is guilty if the result of his unlaw- 
 ful act be to injure a particular person. That would be the law if the 
 case were res Integra; but it is not res Integra because, in Reg. v. 
 Hunt, a man in attempting to injure A. stabbed the wrong man. 
 There, in point of fact, he had no more intention of injuring B. than 
 a man has an intent to injure a particular person who fires down a 
 street where a number of persons are collected, and injures a person 
 he never heard of before. But he had an intent to do an unlawful act, 
 and in carrying out that intent he did injure a person ; and tiie law 
 says that, under such circumstances, a man is guilty of maliciously 
 wounding the person actually wounded. That would be the ordinary 
 state of the law if it had not been for the case of Reg. v. Pembliton. 
 But I observe that, in such an indictment, as in that case, the words 
 of the statute carry the case against the prisoner more clearly still, 
 because, by sect. 18 of the statute 24 & 25 Vict. c. 100, it is enacted 
 that: "Whosoever shall unlawfully and maliciously by any means 
 whatsoever wound . . . any person . . . with intent ... to maim, 
 disfigure, or disable any person . . . shall be guilty of felony ; " and 
 then sect. 20 enacts that " whosoever shall unlawfully and maliciously 
 wound . . . any other person . . . shall be guilty of a misdemeanor ; " 
 and be liable to certain punishments. Therefore, the language of the 
 18th and 20th sections are perfectly diff'erent ; and it must be remem- 
 bered that this is a conviction for an offence under the 20th section. 
 Now, the Master of the Rolls has pointed out that these very sections 
 are in substitution for and correction of the earlier statute of 9 Geo. 4, 
 c. 31, where it was necessary that the act should have been done with 
 intent to maim, disfigure, or disable such person, showing that the 
 
 1 The argument is oaiitted.
 
 150 REGINA V. LATIMER. [CHAP. II. 
 
 intent must have been to injure the person actually injured. Thosfc 
 words are left out in the later statute, and the words are *■' wound an;\ 
 other person." I cannot see that there could be an^' question, but foi 
 the case of Reg. v Penibliton. Now, I think that that case was prop- 
 erly decided ; but upon a ground which renders it clearly distinguish- 
 able from the present case. That is to saj', the statute which was 
 under discussion in Reg. v. Pembliton makes an unlawful injur}- to 
 property punishable in a certain wa^-. In that case the jury and the 
 facts expressly negatived that there was any intent to injure any prop- 
 erty at all ; and the court held that, in a statute which created it an 
 offence to injure property, there must be an intention to injure propert}^ 
 in order to support an indictment under that statute. But for that 
 case Mr. Croft is out of court, and I therefore think that this convic- 
 tion should be sustained. 
 
 Lord Eshek, M. R. I am of the same opinion. It seems to me 
 that the case of Reg. v. Pembliton is the only case which could be 
 cited against a well-known principle of law. But that case shows that 
 there was no intention to injure any property at all ; therefore there 
 was no intent to commit the crime mentioned in the Act. 
 
 BowEN, L. J. I am also of opinion that this conviction should be 
 affirmed. It is quite clear that this offence was committed without any 
 malice in the mind of the prisoner, and that he had no intention of 
 wounding Pollen Kolston. The onl}- difficulty that arises is from Reg. 
 V. Pembliton, which was a case under an Act of Parliament which 
 does not deal with all malice in general, but with malice towards prop- 
 erty ; and all that case holds is, that though the prisoner would have 
 been guilty of acting maliciously within the common law meaning of 
 the term, still he was not guilt}' of acting maliciously within the mean- 
 ing of a statute which requires a malicious intent to injure propertv. 
 Had the prisoner meant to strike a pane of glass, and without any 
 reasonable expectation of doing so injured a person, it might be said 
 that the malicious intent to injure property was not enough to sustain 
 a prosecution under this statute. But, as the jury found that the 
 j)risoner intended to wound Chappie, I am of opinion that he acted 
 maliciously within the meaning of this statute. 
 
 Field, J. I am also of opinion that this conviction must be af- 
 firmed. I think this a very important case and one of ver}' wide 
 application, and am ver}' glad that it has come before this court, and 
 has been carefully considered and decided so that there may be no 
 doubt about the matter. 
 
 Manisty, J. I do not propose to add more than a few words. The 
 facts in this case raise an exceedingly important question, because the 
 man Chappie, who was intended to be struck, was standing close by 
 the woman who was wounded, and who was talking to him ; and the 
 prisoner intending to strike Chappie with the belt did strike him, but 
 the belt bounded off and struck Ellen Rolston. It seems to me that 
 the first and second findings of the jury justify the conviction, because
 
 SECT, v.] REX V. KNIGHT. 151 
 
 they are in these terras : " The jurj' found that the blow was unlawful 
 and malicious, and that it did in fact wound Ellen Rolston ; " and that 
 being so, I think that the third finding does not entitle the prisoner to 
 an acquittal. It is true he did not intend to strike Ellen Rolston, but 
 he did intend to strike Chappie, and in doing so wounded Ellen Rols- 
 ton ; therefore I think that the third finding is quite immaterial, and 
 this conviction should be affirmed.^ 
 
 Conviction affirmed. 
 
 REX V. KNIGHT. 
 Crown Case Reserved. 1782. 
 
 [Reported 2 East, Pleas of the Croivn, 510.] 
 
 The prisoners were indicted for feloniously and burglariously break- 
 ing and entering the dwelling-house of Mary Snelling at East Grin- 
 stead, in the night of November 14, 1781, with intent to steal the goods 
 of Leonard Hawkins, then and there being in the said dwelling-house. 
 It appeared that L. Hawkins, being an excise officer, had seized seven- 
 teen bags of tea on the same month at a Mrs. Tilt's, in a shop entered 
 in the name of Smith, as being there without a legal permit, and had 
 removed the same to Mrs. Snelling's at East Grinstead, where Hawkins 
 lodged. The tea, the witnesses said, they supposed to belong to Smith ; 
 and that on the night of November 14 the prisoners and divers other 
 persons broke open the house of Mary Snelling with intent to take this 
 tea. It was not proved that Smith was in company with them ; but 
 the witnesses swore that they supposed the fact was committed either 
 in company with or by the procurement of Smith. The jury were di- 
 rected to find the prisoners guilty, on the point being reserved ; and 
 being also directed to find as a fact with what intent the prisoners broke 
 and entered the house, they found that they intended to take tbe 
 goods on the behalf of Smith. In Easter term following all the judges 
 held that the indictment was not supported, there being no intention to 
 steal, however outrageous the behavior of the prisoners was in thus 
 endeavoring to get back the goods for Smith.^ 
 
 ' See ace. (wounding with intent to do bodily harm) Reg. v. Lynch, 1 Cox C. C. 
 361 ; Reg. v Stofford, 11 Cox C. C. 643; (with intent to ivill) Reg. v. Smith, 7 Cox 
 C. C. 51. — Ed. 
 
 2 Acc. Com. V. Newell, 7 Mass. 245. — Ed.
 
 152 UNITED STATES V. DAVIS. [CHAP. II. 
 
 SECTION VI. 
 
 Jurisdiction over an Offence. 
 
 UNITED STATES v. DAVIS. 
 
 U. S. Circuit Court, District of Massachusetts. 1837. 
 
 [Reported 2 Summer, 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. 
 
 AVhat 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 wliich 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 ?'. 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 the 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. VI.] ♦ STATE V. GESSERT. 153 
 
 doctrine of the Supreme Court in United States v. Palmer, 3 Wheat. R. 
 610, and United States v. Khntock, 5 Wheat. R. 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 he had been an American citizen. We decide the case 
 wholly on the ground tliat the schooner was a foreign vessel belonging 
 to foreigners, and at the time under the acknowledged jurisdiction of 
 a foreign 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. GESSERT. 
 
 Supreme Court of Minnesota. 1875. 
 
 [Reported 21 Minnesota, 369.] 
 
 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 tliey 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 Washington 
 County. The death which ensued in Pierce County, though it went to 
 characterize the acts committed m 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. Burdett, 4 B. & Aid. 95, 173 ; Grosvenor v. Inhabitants, 
 &c., 12 East, 244 ; People v. Gill, 6 Cal. 637 ; State v. Carter, 3 Dutch. 
 499 ; 1 Hale P. C. c 33 ; 1 Bish. Cr. Law, § 83 ; 1 Bish. Cr. Proc. 
 § 67 ; 2 Wharton Cr. Law, § 1052.^ 
 
 1 Ace. Green v. State, 66 Ala. 40 ; U. S. v. Guiteaa, 1 Mack. 498. See also the 
 following cases for decision 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.
 
 154 REGINA V. ARMSTRONG. [CHAP. II. 
 
 REGINA V. ARMSTRONG. 
 
 Liverpool Assizes. 1875. 
 
 [Reported 13 Cox C. C. 184.] 
 
 John Armstrong was charged with the wilful murder of Lawrence 
 Harrington, on board the hulk JSent, in the Bonny River, Africa, on 
 
 the 4th of May, 1875.^ . . . 
 
 It was proved in evidence that the Kent had been a three-masted 
 sailing ship, of 1324 tons register, and was registered as a British ship, 
 though not British built. That she had for eighteen months at least 
 been dismasted, and employed as a floating depot or receiving ship on 
 the Bonny Station for a line of commercial steamers trading between 
 Liverpool and that port ; that she swung with the tide and floated in 
 the tideway of the river, and that she hoisted the British ensign at the 
 peak. The general appointments as a ship, boats, etc., remained ; 
 the masts had been cut down to form a support for an awning or house 
 on deck, but the rigging had been taken away. The prisoner was mate 
 of the Kent, and in the evening of the 4th day of May he stealthily 
 approached the captain as he was standing near the stern and leaning 
 over the taffrail of the ship, and took hold of him by the collar of his 
 coat and the seat of his trousers and flung him overboard. The body 
 of the captain in falling struck the quarter rail or gallery of the Kent, 
 and bounded off ; and the back of his head, as was deposed by one 
 witness, then struck the gunwale of a boat that was lying moored on 
 the port side, leaving marks of blood. The body then fell into the 
 water, and was never seen again, though five or six boats were imme- 
 diately put out in search. The river was running out very rapidly, at 
 the rate of four to five knots an hour. It was at this point six or seven 
 miles broad, and the nearest ship was probably a thousand yards dis- 
 tant. The station of the ship was at about seven miles from the bar, 
 one and a half miles from the easterly or southern shore, and more than 
 five from the northern shore. One of the witnesses said the river was 
 infested with sharks, and that bathing was forbidden on that account, 
 but admitted in cross-examination he had never seen an}-. 
 
 Cottingham, for the prisoner, submitted . . . that the murder, if 
 murder it were, was not committed on board the Kent, and was not a 
 completed criminal act on board that ship. That at the utmost there 
 had only been an assault on board the ship, and that the ultimate con- 
 sequence of the act, where it was only a possible consequence, could 
 not be assumed to have occurred on board the ship. . . . 
 
 His Lordship [Archibald, J.] overruled all the objections, and 
 pointed out that there was ?i\nmda.i\i prima facie evidence that the ship 
 was a British ship, and that this had not been rebutted ; that the crime 
 
 1 Only so much of the case as discusses the question of jurisdiction is given. — Ed.
 
 SECT. VI.] JACKSON V. COMMONWEALTH. 155 
 
 had been committed on board a British ship, and on the high seas, and 
 that it was not necessary that the act should have been completed on 
 board, as it was a direct consequence of the felonious assault. 
 
 The jury found the prisoner guilty of manslaughter, and he was 
 sentenced to twenty years penal servitude. 
 
 JACKSON V. COMMONWEALTH. 
 Court of Appeals of Kp:ntucky. 1897. 
 
 iReported 100 Ki/. 239.] 
 
 The defendant and one Walling were indicted for the murder of 
 Pearl Bryan in Campbell County, Kentucky. The evidence indicated 
 that the two persons accused had attempted to kill the deceased by 
 giving her poison in Ohio ; that she became unconscious, and was 
 believed by them to be dead ; that they brought her across the Ohio 
 River into Kentucky, and there cut off her head, and thus caused her 
 death. The court at the trial charged: "If the jury believe from 
 all the evidence beyond a reasonable doubt that the defendant, Scott 
 Jackson, wilfully, feloniously, and with malice aforethought, himself 
 attempted or aided or abetted or procured another to attempt to kill 
 Pearl Bryan, but she was not thereby killed, and that said Scott Jack- 
 son, in this county and State, before the 14th day of February, 1896, 
 though believing said Pearl Bryan was then dead, for whatever purpose, 
 cut her throat with a knife or other sharp instiument so that she did 
 then and there, and because thereof die, they will find said Scott 
 Jackson guilty of murder." 
 
 On appeal this charge was held to be correct. The defendant moved 
 for a rehearing.^ 
 
 Du Rklle, J. With great earnestness, force and plausibility two 
 contentions are made by the petitions for rehearing in this case and in 
 the case of Walling v. Commonwealth : 
 
 1st. That no facts which occurred in the foreign jurisdiction of Ohio 
 can be tacked on to facts which occurred in Kentucky for the purpose 
 of supplying the elements necessary to constitute the crime of murder 
 in Kentucky. 
 
 2d. (And this appears to be the point chiefly relied on) That in 
 giving its instructions to the jury the trial court is not authorized to 
 refer to any fact which occurred in the foreign jurisdiction. Other 
 suggestions are made in the petitions, but in our judgment do not 
 require specific response. 
 
 These two contentions may be considered together, as the first is 
 
 1 This short statement of the facts upon which the petition for a rehearing is baaed 
 is abridged from the opinion given after the first argument. — Ed.
 
 156 JA.CKSON V. COMMONWEALTH. [CHAP. II. 
 
 necessarily raised and considered in the decision of tlae second, and 
 so treated in the petition. 
 
 Reduced to its lowest terms, the claim of counsel is that an attempt 
 to commit a murder in another State, supposed b}' the guilty party to 
 have been there successful, but in realit}- completed in this State, 
 though by an act not by him believed to be the consummation of his 
 purpose, is not in this State punishable. 
 
 Such is not nor should it be the law. By the law of this State a 
 crime is punishable in the jurisdiction in which it has effect. Statutes 
 in numbers have been passed by the general assembly of this Common- 
 wealth providing that jurisdiction should be had of crimes in the county 
 in which the crime became effectual. (Chapter 36, article 2, Kentucky 
 Statutes.) Such we believe to have been the common law before such 
 enactments. 
 
 Assuming that what the jury found was true, in what State or district 
 could the crime be punished? If not here, w^here? If we concede the 
 claims of counsel for appellants no serious crime was committed in 
 Ohio. Nothing was there done but an ineffective attempt to murder. 
 None was committed there. What was done in this jurisdiction was 
 only the mutilation of a supposed corpse, and yet the fact, established 
 hy overwhelming testimony, remains that the crime has been com- 
 mitted. Not all the refinements of counsel can lead us from the con- 
 clusion that, when a crime has been completed the result of which is a 
 death in this Commonwealth, we can take jurisdiction of the offence. 
 
 Not for a moment can we admit as law the logical conclusion of 
 counsel's argument, namely, tliat there is a variety of murder, which, 
 by reason of error in its commission, is not anywhere in any jurisdic- 
 tion punishable ; not in Ohio, for the reason that the attempt there 
 made was not successful ; not in Kentucky, for the reason that the act 
 there done, and which accomplished and completed the actual killing, 
 was done upon the supposition that the murder had already been 
 accomplished. 
 
 One reliance of the defence upon petition for rehearing is that the 
 indictment charges murder by cutting the throat or decapitation, and 
 that the instructions permit and require the jury to consider a previous 
 attempt to kill in a foreign State and by different means. But in our 
 opinion it was not error in the instructions to present to the jury evi- 
 dential facts whicii, if found to be true, showed the criminal nature of 
 the act by which the offence was completed. 
 
 We see no good reason why we should not consider the motive which 
 Inspired an attempted crime in another sovereignt}', and the circum- 
 stances of the attempt, with the view to determine the character, 
 criminal or not, of the ultimate fact which took place in this sov- 
 ereignty ; nor is such a determination an invasion of the constitutional 
 right of the accused to a speedy " public trial by an impartial jury of 
 the vicinage." For the accused himself selected the vicinage in which 
 the final act occurred, and thus himself gave jurisdiction to the court
 
 SECT. VI.] STATE V. WYCKOFF. 157 
 
 which determined the criminal character of that act. Nor can we con- 
 sider as serious the contention that the ruling of the trial court, approved 
 b}- the opinion in this case, is punishment in Kentucky of an offence 
 committed in another jurisdiction, and tliere again punishable, so as to 
 come within the constitutional inhibition against a citizen being twice 
 put in jeopardy. On counsel's own contention no completed crime 
 existed in Ohio, and the crime committed, if punishable under this 
 State's law, can not further or again be punished there. . . . 
 
 We have carefully examined the immense mass of testimony in the 
 case, and see no error to the prejudice of any substantial right of the 
 appellant. 
 
 The petition for rehearing is overruled. 
 
 STATE V. WYCKOFF. 
 Supreme Court of New Jersey. 1864. 
 
 [Rfjiorted 2 Vroom, 65.] 
 
 Beasley, C, J. The defendant was convicted before the Court of 
 Oyer and Terminer, on an indietment 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 w^lnle 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 m 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-
 
 158 STATE V. WYCKOFF. [CHAP. IL 
 
 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 tiie 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 ; Wharton's Free, 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 jurisdictioa 
 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 j^ersonam. 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. VI.] STATE V. WYCKOFF. 1 
 
 01 
 
 485, the defendant was accused of shooting from an American ship 
 and killing a man on board a foreign sclioouer. Chief Justice Story 
 said: ''The act was, in contemplation 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 this court in the case 
 of The State v. Carter, 3 Dutcher, 499. So, when a crinwj is com- 
 mitted by an innocent living agent, the projector of such crime bemg 
 absent from the country whose laws are infringed. Such was the case 
 of The People v. Adams, 3 Denio, 190. In this latter case the facts 
 were these : The defecdant 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 Y^ork 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 opinion 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 difiBcult 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 which 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. 24,1 ^Q 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 accessory or accessories in any manner of 
 wise to any such murder or felony in any other county, that then an indictment fouad
 
 160 STATE V. WYCKOFF. [CHAP. II. 
 
 this state. Nix. Dig. 199 (Rev. p. 282, § 78). And so in like manner 
 the same rigor existed in eases in whicli death ensued out of the king 
 dom from a felonious stroke iutlicted within it, it being decided that 
 neither the principal nor accessory was, under such cu'cumstances, 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 in Nix. 
 Dig. 200 (Rev. p. 282, § 78). For the rules of law which were thus 
 modified by statute, see 3 Inst. 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, in 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 tlie 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 ease ^x parte Smith, 6 Law Reporter, 57, was to the same 
 
 or taken against such accessory and accessories upon the circumstance of such matter 
 before the justices of the peace, or other justices or commissioners to enquire of felonies 
 iu the county where such offences of accessory or accessories in any manner of wise shaU 
 be committed or done, shall be as good and effectual in the law as if the said principal 
 offence had been committed or doue within the same county where the same indictment 
 against such accessory shall be found." 2 & 3 Ed. 6, c. 24, § 4. — Ed.
 
 SECT. VI.] STATE V. WYCKOFF. 161 
 
 effect. The same principle was again considered, though in a some- 
 M'hat different aspect, in the case of The State ik Knight, 1 Taylor's 
 Rep. (N. C.) 65, and the opinion intimated by the court entirely ac- 
 corded with those expressed in tlie two cases first above cited. These 
 are the only judicial examinations of the matter now in hand which I 
 have met 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.* 
 
 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. 
 
 Mass. R. L. eh. 215, § 43. [An accessory before the fact] may be 
 indicted, tried, and punished in the same county in which the princi- 
 pal felon might be indicted and tried, although the counselUng, hiring, 
 or procuring the commission of such felony was committed, within or 
 without this commonwealth, or on the high seas."'^ 
 
 1 Ace. State v. Chapin, 17 Ark. 561 ; State v. Moore, 26 N. H. 448. But see State 
 V. Grady, 34 Conn. 118 ; State v. Ayres, 8 Baxter, 96. — Ed. 
 
 2 See Com. v. Fettes, 114 Mass. 307. — Ed.
 
 162 LINDSEY V. STATE. [CHAP. II. 
 
 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 
 feloniously 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 acknowledged 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 TurubuU, 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 tiie notary public by the procurement of Lindse}', who 
 then and thereafter, until forcibly brought to Ohio, was never in this 
 State , that this deed was delivered by Lindsey or his agent to his co- 
 defendant Morris (who is awaiting his trial), and by him was sent by 
 mail to T. & D. Hall, real estate agents in Steubenville, through whom it 
 was uttered and published by a sale of the land to TurubuU. 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? 
 
 If 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. 
 
 1 Part of the evidence and the arguments of counsel are omitted. 
 
 * That portion of the opinion which relates to the second question is omitted.
 
 SECT. VI.] LINDSEY V. STATE. 163 
 
 The question therefore is, was this deed uttered and published in 
 Jefferson County, Ohio, and was Lindsey guilty of this crime? 
 
 That this forged deed was uttered and published in Ohio by T. & D. 
 Hall, 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. & D. Hall did so utter and publish this deed by the 
 procurement of Lindsey. 
 
 The crime was therefore completed or consummated in Oliio, 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 Morris by correspondence mailed in St. Louis 
 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 ))y 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 puhlisliing is not complete until the paper 
 comes to the liands 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 tlie person to whom it is to be 
 delivered. It is a fundamental principle that a person is responsible 
 criminally for acts committed by liis procurement as well as for those 
 done in person. The inherent power of the state to punish the utter- 
 ing and publication of forged instruments witliin its territorial limits, 
 without regard to the place where the forgery was committed, or pur- 
 pose was formed, is essential to the 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 u. The State, 8 Ohio St. 131 ; 
 Norris v. The State, 25 Ohio St. 217; 1 Whart. Grim. Law (7th ed.), 
 §§ 210, 278; see also Commonwealth v. Macloon, 101 Mass. 1 ; Com- 
 monwealth V Smith, 11 Allen (Mass.), 243 ; Commonwealth v. 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 Sumn. 482 : State v. Wyckoff, 2 Vroom (N. J.) 68 ; 
 Commonwealth v. Gillespie, 7 Serg, & R. 469 ; Stillman 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.^ 
 
 ' Ace. Reg. V. Taylor, 4 F. & F. 511 ; People v. Adams, 3 Den. 190; 1 N. Y. 17a 
 See Reg. v. Finkelstein, 16 Cox C. C. 107. — Ed.
 
 164 STATE V. CAKTER. LCHAP. 11. 
 
 STATE V. CARTER. 
 Supreme Coukt of New Jersei 1859. 
 
 {Reported 3 Dutcher, 499.] 
 
 Vredenburgh, J. The iudictment charges that the defendant, on 
 the 29th of December, 1858, in the city of New York, gave one Brush- 
 ingham several mortal bruises, of which, until the 31st of Uecem'her, 
 1858, as well in New York as in Hudson County, in this state, he lan- 
 guislied, 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. 
 When the 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 offence 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 nof the case where a man stands on the New York 
 side of the line, and shooting across the border, kills one in New -Jer- 
 sey. When that is so, the blow is in fact struck in New Jersey. It is 
 the 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 con- 
 venient to travel.
 
 SECT. VI.] STATE V. CARTER. 165 
 
 This is not like the case of stolen o;oods, 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, 
 s. 3. But this evidently relates to murder only, and not to man- 
 slaughter. 
 
 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 within our 
 own. Such an enactment, upon general principles, would necessarily 
 be void; it would give the courts of this state jurisdiction over all tlu^ 
 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 very essence of crime 
 punishaljle by human law. How can an act done in one jurisdiction 
 be an oif ence 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 within 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 the place 
 of trial is clianged. 
 
 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 an act done 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 in se is done in solitudes, upon land where there
 
 166 • COMMONWEALTH V. MACLOON. [CHAP. II. 
 
 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, /?ro hac vice arrogate to itself the prerogative of omnipotence, 
 and hang the pirate of the land as well as of the water. Further than 
 this it could not have been intended that our statute should apply. 
 But here the act was done in the State of New York, a regularly organ- 
 ized and acknowledged supreme government. The act was a crime 
 against 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 crime 
 against this state is charged in the indictment.'^ 
 
 COMMONWEALTH v. MACLOON. 
 Supreme Judicial Court of Massachusetts. 1869. 
 
 [Reported 101 Massnchtisetts, l.j 
 
 Gray, J.'* The defendants, the one a citizen of Maine, and tht 
 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 tlie 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 thoroughly argued, and has received the consideration 
 which its importance demands. 
 
 1 Ace. State v. Kelly, 76 Me. 331. — Ed. 
 
 2 Part of the opinion only is given.
 
 SECT. VI.J COMMONWEALTH V. MACLOON. 167 
 
 The statute on wbich the defendants were indicted, after prescribing 
 the punishment for murder and nuiuslaughter, provides that '' if a mor- 
 tal wound is given, or other violence or injur}- inthcted, 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 any 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 partly 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 tliat jurisdiction. 
 
 A good ilhistration 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 carrying 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 whicii he afterwards cariies 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 country, and brings them into this state, it is not a common 
 law larceny, 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 v. Uprichard, 3 Gray, 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 countrj-, shall be punished here as 
 larceny, it is within their constitutional authority to do so. People v. 
 Burke, 11 Wend. 129 ; State v. 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 lias 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 
 larceny 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 tlie 
 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.
 
 168 COMMONWEALTH V. MACLOON. [CHAP. II. 
 
 The general principle, that a man who does a criminal act in one 
 county or state ma}' be held liable for its continuous operation in 
 another, has been affirmed in various other cases. Thus a man who 
 erects a nuisance in a river or stream in one county or state is liable, 
 criminally as well as civilly, in any county 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. & Afd. 175, 176 ; Thompson v. Crocker, 9 Pick. 59 ; Stillman 
 V. White Rock Manufacturing Co. 3 Woodb. & Min. 538. And one 
 who publishes a libel in another state, in a newspaper which circulates 
 in this commonwealth also, is liable to indictment here. Common- 
 wealth V. Blanding, 3 Pick. 304. There is no more reason against 
 holding the wrong-doer criminall}' liable in the county and state where 
 his victim dies from the continuous operation of his mortal blow, than 
 in those to which the flowing water carries the injurious effect of his 
 nuisance to property, or the circulation of his libel extends the injury 
 to reputation. 
 
 Criminal homicide consists in the unlawful taking by one human 
 beinff of the life of another in such a manner that he dies within a year 
 and a day from the time of the giving of the mortal wound. If com- 
 mitted with malice, express or implied by law, it is murder ; if without 
 malice, it is manslaughter. No personal injury, however grave, which 
 does not destroy life, will constitute either of these crimes. The injury 
 must continue to affect the body of the victim until his death. If it 
 ceases to operate, and death ensues from another cause, no murder or 
 manslaughter has been committed. But if the bullet remains in the 
 body so as to press upon or disturb the vital organs and ultimately pro- 
 duce death, or the wound or the poison causes a gradual decline of 
 health, ending in death, the injury and death are as much the continu- 
 ous operation and effect of the unlawful act as if the shot, the stab, or 
 the poison proves instantly fatal. The unlawful intent with which the 
 wound is made or the poison administered attends and qualifies the act 
 until its final result. No repentance or change of purpose, after inflict- 
 ing the injury or setting in motion the force by means of which it 
 is inflicted, will excuse the criminal. If his unlawful act is the 
 efficient cause of the mortal injury, his personal presence at the time of 
 its beginning, its continuance, or its result, is not essential. He may 
 be held guilty of homicide bj- shooting, even if he stands afar off, out 
 of sight, or in another jurisdiction. 1 Hale P. C. 475 ; People v. 
 Adams, 3 Denio, 207; s. c. 1 Comst. 176, 179. If he knowingly lets 
 loose a dangerous beast, which runs any distance and then kills a man ; 
 or incites a madman or a child not of years of discretion to commit 
 murder in his absence, whereby any one is killed ; or, with intent to 
 murder, leaves poison with another pei'son to be administered to a 
 third, and the poison is administered by the same or another innocent 
 ao"ent, and causes the death of the person intended, or any other ; he is 
 responsible as principal, to the same extent as if personall}' present at
 
 SECT. VI.] COMMONWEALTH V_ MACLOON. 169 
 
 the actual killing. 1 Hale P. C 430, 431, 615, G17 ; Rcgina v. Michael, 
 9 C & P. 356 ; s. c. 2 Mood}', 120 ; People v. Adams, supra. And if 
 be wilfully inflicts a wound which results fatally, he is not excused by 
 the fact that the negligence of the wounded man or the unskilful treat- 
 ment of surgeons hastens or contributes to the death. 1 Hale P. C. 
 428; Commonwealth v. Hackett, 2 Allen, 136. The person who un- 
 lawfull}' sets the means of death in motion, whether through an irre- 
 sponsible instrument or agent, or in the body of the victim, is the 
 guilty cause of the death at the time and place at which his unlawful 
 act produces its fatal result; and, according to the great weight of 
 authority, may be then and there tried and punished, under an express 
 statute, if not by the common law. 
 
 The crime not being murder or manslaughter before the death, an 
 indictment alleging the stroke at one day and place, and the death at 
 another day and place, is good if it alleges the murder or manslaughter 
 to have been at the time and place of the death, but bad if it alleges 
 that the defendant killed and murdered the deceased at the day and 
 place at which the stroke was given, " for," in the words of Lord Coke, 
 " though to some purpose the death hath relation to the blow, yet this 
 relation, being a fiction in law, maketh not the felon}' to be then com- 
 mitted." 2 Inst. 318 ; 1 Hale P. C. 427 ; 2 Hale P. C. 188. So the 
 year and day " after the deed, — apres le fait,'" within which by the 
 Statute of Gloucester an appeal of murder must be brought, was held 
 to run not from the blow, but from the death, " for before that tmie no 
 felony was committed." 2 Inst. 320; 1 Hale P. C. 4 27, And man- 
 slaughter arising out of a blow struck in one count}', followed by death 
 in another, was held by Mr. Justice Littledale to be a felony "• begun in 
 one county and completed in another," within the meaning of a modern 
 Enghsh statute authorizing such a felony to be indicted in either 
 county. Rex v. Jones, 1 Russell on Crimes (3d_Eng. ed.), 549, 550. 
 
 \yhenever at common law murder escaped punishment at the place 
 of the death, it was not from a want of authority in the government, 
 but from a defect in the laws regulating the mode of prosecution and 
 trial. 
 
 In the beginning of the reign of Edward III., according to Chief 
 Justice Scrope, if a man died in one county of a wound received in an- 
 other, the murderer might be indicted and arraigned in the county 
 where the death happened, " and yet the cause of his death began in 
 the other county." Fitz. Ab. Corone, 373. At a later period, it was 
 held that where a man was feloniously stricken or poisoned in one 
 county, and died in another county, no indictment could be found in 
 either county, because both the stroke and the death were necessary to 
 constitute the crime, and the jurors of one county could not inquire of 
 that which was done in another, " unless," as Lord Hale says, " speci- 
 ally enabled by act of parliament ; " and for this reason the custom at 
 one time prevailed of taking the dead body into the county where the 
 mortal stroke was given, and havmg an indictment found and tried
 
 170 COMMONWEALTH V. MACLOON. . [CHAP. II. 
 
 there ; and, in carrying out the same principle, it was held that an 
 appeal of murder, which required no indictment, but was sued out by 
 the nearest relation, and prosecuted by the king only in case of the with- 
 drawal of the appellant, might be brought in the county of the death, 
 although the mortal stroke was given in another county, provided there 
 were legal means of summoning a jury for the trial out of both counties, 
 but not otherwise. 6 Hen. VII. 10, pi. 7 ; 3 Inst. 48, 49 ; 2 Hale P. C. 
 163 ; 1 Stark. Crim. PL 3, and notes. 
 
 The St. of 2 & 3 Edw. VI. c. 24, begins with declaring, " Forasmuch 
 as the most necessary office and duty of law is to preserve and save 
 the life of man, and condignly to punish such persons that unlawfully 
 and wilfully murder, slay, or destroy men," and, after reciting the de- 
 fects in the previous laws, enacts, '-for redress and punishment of 
 which offences and safeguard of man's life," that "where any person 
 or persons hereafter shall be feloniously stricken or poisoned in one 
 county, and die of the same stroke or poisoning in another county, then 
 an indictment thereof founden by jurors of the county where the death 
 shall happen, whether it shall be founden before the coroner upon the 
 sight of such dead body, or before the justices of peace or other justices 
 or commissioners which shall have authority to inquire of such otfences, 
 shall be as good and effectual in the law, as if the stroke or poisoning 
 had been committed and done in the same county where the party shall 
 die, or where such indictment shall be so founden ; an}' law or usage to 
 the contrary notwithstanding." That statute, passed within a century 
 before the settlement of Massachusetts, and manifestly suitable to our 
 condition, would seem to have been part of our common law. Com- 
 monwealth V. Knowlton, 2 Mass. 534 ; Report of the Judges, 3 Binn. 
 595, 620 ; State v. Moore, 26 N. H. 448. 
 
 In the most ancient times of which we have any considerable records, 
 the English courts of common law took jurisdiction of crimes com- 
 mitted at sea, both by English subjects and loy foreigners. Beufo v. 
 H(jltham, 25 Edw. I., in Selden's Notes to Fortescue, c. 32; Case of 
 the Norman Master and English Seamen, 40 Assis. 25 ; s. c. Fitz. Ab. 
 Corone, 216 ; 13 Co. 53, 54 ; 2 Hale P. C. 12, 13, ahd notes, and cases 
 cited. But after the admiralty jurisdiction had been settled by the Sts. 
 of 13 and 15 Ric. IL, if a mortal stroke was given on the high sea, and 
 the person stricken came to land in England and died there, then, 
 according to the rule established before the St. of Edw. VI. in the case 
 of two counties, the courts of common law could not try the murderer, 
 because no jury could inquire of the stroke at sea, and the admiral 
 could not try him, for want of authority' to inquire of the death on land. 
 3 Inst 48. 
 
 Both Lord Coke and Lord Hale, however, were of opinion that such a 
 murderer could not wholly escape punishment, although they differed 
 as to the mode of bringing him to justice Co. Lit. 74 b ; 3 Inst. 48 ; 
 2 Hale P. C. 12-20. 
 
 Neither Lord Coke nor Lord Hale suggests any doubt of the rightful
 
 SECT, VI.] COMMONWEALTH V. MACLOON. 171 
 
 power of the legislature to pass a statute to punish whoever should 
 cause death within tlie realm by an injury on tlie high seas. And in 
 1729 the parliament of Great Britain passed a statute, deehired to be 
 " for preventing any failure of justice and taking away all doubts 
 touching the trial of murders in the cases hereinafter mentioned," by 
 which it was enacted that, where any person should be feloniously stricken 
 or poisoned upon the sea or at any place out of England, and should 
 die of the same stroke or poisoning in England ; or where any pei son 
 should be feloniously stricken or poisoned at any place in England, and 
 should die of the same stroke or poisoning upon the sea or at any place 
 out of England ; in either of said cases the offenders, both principals 
 and accessories, migiit be indicted, tried, convicted and sentenced in 
 the county in England in which such death-stroke or poisoning should 
 happen respectively, with the same effect as if the felonious stroke and 
 ileath thereby ensuing, or poisoning and death thereby ensuing, had 
 happened in the same county. St. 2 Geo. II. c. 21. That statute did 
 not extend to the colonies, and was repealed by St. 9 Geo. IV. c. 31, 
 § 1 ; and no suggestion appears to have been made, while it was in 
 force, of its being limited in its application to British subjects. 4 BI. 
 Com. 303 ; 1 East P. C. 366. The only pubhshed exposition of it is in 
 an opinion given by Sir James Marriott as advocate-general, who, 
 looking upon the subject in the view of the law of nations, wrote : 
 " With respect to murders, when persons die in a foreign country of a 
 wound received within this realm, or die in this realm of a wound re 
 ceived in a foreign country, in either alternative the party giving the 
 wound, and his accessory or accessories, by St. 2 Geo. II. c 21, must 
 be tried in England, the statute considering the cause and effect as one 
 continuity of action without interval, in order to found a domestic juris- 
 diction and to reach the crime." Forsyth's Opinions on Constitutional 
 Law, 218. In The King v. Farrel, 1 W. Bl. 459, Lord Mansfield 
 treated the question whether a murder by a mortal stroke on the high 
 seas, from which death ensued in Ireland, was triable in Ireland, as de- 
 pending upon the question whether there was any Irish statute upon 
 the subject. In fact, the Irish St. of 10 Car. I. contained provisions' 
 similar to the English Sts. of Edw. VL and Geo. II. 1 Gabbett's 
 Crim. Law, 501. Thus stood the law of the mother country at the 
 time of the American Revolution. 
 
 The courts of the United States have held that a mortal stroke on 
 the high seas, from which death ensues on land, either in a foreign 
 country or within the United States, cannot be indicted under an act of 
 Congress providing for the punishment of murder or manslaughter on 
 the high seas. The reason was thus stated by Mr. Justice Washington, 
 in the leading case: "The death, as well as the mortal stroke, must 
 happen on the high seas, to constitute a murder there." " The present 
 is a case omitted in the law ; and the indictment cannot be sustained." 
 " It would be inconsistent with common law notions to call it murder; 
 but Congress, exercising the constitutional power to define felonies on
 
 172 COMMONWEALTH V. MACLOON. [CHAP. II, 
 
 the high seas, may certainly provide that a mortal stroke on the high 
 sea, wherever the death may happen, shall be adjudged to be a felony." 
 United States v. M'Gill, 4 ball. 427 ; s. c. 1 Wash. C. C. 463. United 
 States V. Armstrong, 2 Curtis C. C. 446. Congress has accordingly 
 passed statutes providing for the punishment, at first of murder only, 
 and afterwards of manslaughter, by a blow, wound or poison on the 
 high seas, or in any river or bay, within the admiralty and maritime 
 jurisdiction of the United States, and out of the jurisdiction of any 
 particular state, followed by death on land. U. S. Sts. 1825, c. 65, § 4 ; 
 1857, c. 116, § 1. 
 
 The legislature of the Commonwealth, from an earlier period, has 
 asserted the right of punishing such crimes in the county where they 
 take final effect by destroying life. At February term, 1795, of this 
 court in Suffolk, a conviction of manslaughter at common law was had 
 upon an indictment charging that Joseph Hood on the high seas mor- 
 tally injured John Antony, by assaulting and beating him with a rope 
 and a stave and his hands and feet, and exposing him without sufficient 
 covering to the cold, winds, and storms, and depriving him of necessary 
 food, of all which injuries he languished on the high seas and at Boston 
 in said county, and died at Boston. At August term, 1795, judgment 
 was arrested, upon the ground that the indictment charged that the 
 cause of death arose on the high seas and not within the jurisdiction of 
 this court. Hood's Case, Rec. 1795, fol. 216, and papers on file. It 
 was to cure the defect thus declared to exist in our law, that the legis- 
 lature at its next session, on the 15th of P'ebruary, 1796, passed the 
 St. of 1795, c. 45, § 2, by which it was enacted that " where any per- 
 son hereafter shall be feloniously stricken, poisoned, or injured, on the 
 high seas, and without the limits of this Commonwealth, and die of the 
 same stroke, poisoning or injury in any county thereof, that then an in- 
 dictment thereof, found by the grand jurors of the. county where the 
 death shall happen, before the justices of the Supreme Judicial Court 
 there held, shall be as good and effectual in law as if the stroke had 
 been given or the poisoning or injur}' done in the same county where 
 the party shall die." By later statutes, all indictments are returned 
 into the lower court. Webster v. Commonwealth, 5 Cush. 386 ; Gen. 
 Sts. e. 171, §§ 1 & seq., 21 & seq. But the substance of this provision, 
 omitting the word " feloniously" (which might be somewhat difficult of 
 appUcation to an act not done under laws of which our courts have 
 judicial knowledge) and extended to cases in which the mortal wound 
 or injury is given on land without the limits of the Commonwealth, has 
 been embodied in the Rev. Sts. c. 133, § 9, and thence, with merely 
 verbal changes, in the Gen. Sts. c. 171, § 19, on which this indictment 
 is founded. Neither of these statutes appears to have been made the 
 subject of judicial exposition. But a law which has been kept on the 
 statute book for such a length of time by repeated enactments is not to 
 be lightly declared invalid for exceeding the legislative power. And it 
 comes within the principle by which the preceding section, relating to
 
 SECT. VI.] COMMONWEALTH V. MACLOON. 173 
 
 death resulting in one county from an unlawful act in another, was held 
 valid in Commonwealth r. Parker, 2 Tick. TkIO, before cited. 
 
 A similar enactment, adding, after " high seas," " or on any other 
 navigable waters," has been sustained upon full argument and consider- 
 ation b}' the Supreme Court of IMichigan. Tyler v. People, 8 Mich. 320. 
 
 The most plausible form of the argument against the jurisdiction is, 
 that the coming into the state is the act not of the wrong-doer, but of 
 the injured person, and tlierefore should not subject the former to the 
 jurisdiction, merely because the latter happens to die there. But it is 
 the nature and the right of every man to move about at his pleasure, 
 except so far as restrained b}' law ; and whoever gives him a mortal 
 blow assumes the risk of this, and in the view of the law, as in that of 
 morals, takes his life wherever lie hajjpens to die of that wound ; and 
 may be there punished if the laws of the country have been so framed 
 as to cover such a case. 
 
 In State v. Carter, 3 Butcher, 499, the supreme court of New Jersey 
 held that a man could not be indicted in that state for manslaughter by 
 mortal bruises given in New York, of which the person injured died in 
 New Jersey. But the only statute of that state upon the subject, as 
 was observed by Mr. Justice Vredenburgh in delivering the judgment 
 of the court, evidentl}' relates to murder only, and not to manslaughter. 
 His remarks upon the power of the legislature of New Jersey to provide 
 for the punishment of such a case are therefore purely obiter dicta ^ 
 and they are unsupported by any reference to authorities, and present 
 no considerations which require further discussion. 
 
 Grosvenor v. St. Augustine, 12 East, 244, was not a criminal case, 
 but in the nature of an action against the hundred on the St. of 19 
 Geo. II. c. 34, § 6, which provided that if any officer of the revenue 
 should be beaten, wounded, maimed or killed by a smuggler, the inhabi- 
 tants of the lath in such counties as were divided into laths, and in 
 other counties the inhabitants of the hundred, " where such fact shall 
 be committed," should pay all damages suffered by such beating, 
 wounding or maiming, and one hundred pounds to the executor or 
 administrator of each person so killed. It was indeed held that this pen- 
 alty might be recovered by the executor of a revenue officer who re- 
 ceived a mortal wound in a boat between high and low water mark, of 
 which he afterwards died on the high sea, by a shot fired from the shore 
 within the lath. But that was upon the construction of the particular 
 statute, as appears from Lord Ellenborough's judgment. "The shot 
 which produced the death, having been fired from the shore within the 
 lath, brings the case within the fair meaning of the act, the object of 
 which was to make the inhabitants of that place where the act was 
 done which caused the death answerable for it, in order to interest them 
 in repressing the offences against which the act was levelled," All the 
 authorities agree that the mere fact of the shot being fired from the 
 shore would not give the courts of common law jurisdiction of an in- 
 dictment for homicide. Rex v. Coombes, 2 Leach (4th ed.). 388; 2 
 Chalmers Opinions, 217; United States v. Davis, 2 Sumner, 485.
 
 174 COMMONWEALTH V. MACLOON. [CHAP. II. 
 
 The learned counsel for the defendants much relied on the case of 
 Regina v. Lewis, Dearsly & Bell, 182 ; S C 7 Cox Crim. Cas. 277. 
 That was an indictment on the St. of 9 Geo. IV. c. 31, § 8, which was 
 held not to cover the case of a foreigner dying in England from injuries 
 inflicted by another foreigner in a foreign vessel upon the high seas. 
 But, although at the argument two of the judges, Mr. Justice Coleridge 
 and Mr. Baron Martin, expressed doubts whether parhament could 
 legislate for the punishment of such a crime, none of the judges except 
 Mr. Justice Crompton denied the power ; Lord Chief Justice Cockburn 
 suggested that the section under which the indictment was found, taken 
 in connection with the next preceding section, relating to murder or 
 manslaughter in a foreign country, which was in terms limited to 
 British subjects, must be equally limited ; and after advisement the 
 opinion of the court was put upon that ground only. The case of Nga 
 Hoong V. The Queen, 7 Cox Crim. Cas. 489, was decided upon like 
 considerations. Both of those cases, therefore, merely held that the 
 whole tenor of the statute in question showed that it was not intended 
 to cover cases of foreigners sailing on the high seas under a foreign 
 flag , applying the same rule of construction as the Supreme Court of 
 the United States in United States v. Palmer, 3 Wheat. 631-634, and 
 LFnited States v. Pirates, 5 Wheat. 195-197. Whether an explicit 
 statute of the state where a murdered man dies will warrant the in- 
 dictment and trial of his murderer if found within the jurisdiction is 
 quite a different question. 
 
 Neither of the statutes of the Commonwealth upon this subject has 
 ever contained an^^ words limiting the description of the persons by 
 whom the offence might be committed ; and the existing statute clearly 
 manifests the intention of the legislature to punish all who without 
 legal justification cause the death of any person within the Common- 
 wealth, wherever the first wrongful act is done, or of whatever country 
 the wrong doer is a citizen. The power of the Commonwealth to punish 
 the causing of death within its jurisdiction is wholly independent of the 
 power of the United States, or of the nation to which the vessel be- 
 longs, to punish the inflicting of the injury on the high seas. And upon 
 full consideration the court is unanimously of opinion that there is 
 nothing in the Constitution or laws of the United States, the law of 
 nations, or the Constitution of the Commonwealth, to restrain the legis- 
 lature from enacting such a statute. 
 
 Exceptions overruled.
 
 SECT. VI.) PEOPLE V. BOTKIN. 175 
 
 PEOPLE V. BOTKIN. 
 
 Supreme Court of California. 1901. 
 
 [Reported \32 Cal. 231.] 
 
 Garoutte, J. Defendant has been convicted of the crime of mur- 
 der, and prosecutes this appeal. The charge of the court given to tlie 
 jury upon the law contained declarations which were held to be unsound 
 in People v. Verneseneckockockhoff, 129 Cal. 497. In view of the 
 decision in that case, the attorney-general concedes that the judgment 
 should be reversed and the cause remanded to the trial court for 
 further proceedings. But defendant claims that she is not triable at 
 all bv the courts of this state, and this contention should now be passed 
 upon. For if maintainable a second trial becomes a useless expenditure 
 of money, time, and labor, and necessarily should not be had. 
 
 For the purposes of testing the claim of lack of jurisdiction in the 
 courts of California to try defendant, the facts of this case may be 
 deemed as follows : Defendant, in the citj' and count}' of San Francisco, 
 state of California, sent b}- the United States mail to Elizabeth Dun- 
 ning, of Dover, Delaware, a box of poisoned candy, with intent that 
 said Elizabeth Dunning should eat of the candj' and her death be 
 caused thereby. The candy was received b}^ the partj- to whom ad- 
 dressed, she partook thereof, and her death was the result. Upon 
 these facts may the defendant be charged and tried for the crime of 
 murder in the courts of the state of California? We do not find it 
 necessar}' to declare what the true rule ma}' be at common law upon 
 this state of facts, for, in our opinion, the statute of this state is broad 
 enouiih to cover a case of the kind here disclosed. There can be no 
 question but that the legislature of this state had the power to declare 
 that the acts here pictured constitute the crime of murder in tliis state, 
 and we now hold that the legislative body has made that declaration. 
 
 Section 27 of the Penal Code reads as follows : — 
 
 "The following persons are liable to punishment under the laws of 
 this state : — 
 
 " 1. All persons who commit, in whole or in part, any crime within 
 this state ; 
 
 " 2. AH who commit larceny or robber}' out of this state, and bring 
 to, or are found with the property stolen, in this state ; 
 
 " 3. All who, being out of this state, cause or aid, advise or en- 
 courage, another person to commit a crime within this state, and are 
 afterwards found therein." 
 
 Subdivision 1 covers the facts of this case. The acts of defendant 
 constituted murder, and a part of those acts were done by her in this 
 state. Preparing and sending the poisoned candy to Elizabeth Dun- 
 ning, coupled with a murderous intent, constituted an attempt to
 
 176 PEOPLE V. BOTKIN. [CHAP. II. 
 
 commit murder, and defendant could have been prosecuted in this state 
 for that crime, if, for any reason, the candy had failed to fulfill its 
 deadly mission. That being so, — those acts being sufficient, standing 
 alone, to constitute a crime, and those acts resulting in the death of 
 the person sought to be killed, — nothing is plainer than that the 
 crime of murder was in part committed within this state. The murder 
 being committed in part in tliis state, the section of the law quoted de- 
 clares that persons committing murder under those circumstances " are 
 liable to punishment under the laws of this state," The language 
 quoted can have but one meaning, and that is : a person committing 
 a murder in part in this state is punishable under the laws of this state, 
 the same as though the murder was wholly committed in this state. 
 
 Counsel for defendant insist that this section contemplates only 
 offences committed by persons who, at the time, are without the state. 
 This construction is not sound. For as to subdivision 1, it is not at 
 all plain that a person without the state could commit, in whole, a 
 crime within the state. Again, if the crime in whole is committed 
 within the state by a person without the state, such a person could 
 not be punished under the laws of this state, for the state has not pos- 
 session of his body, and there appears to be no law by which it may 
 secure that possession. Indeed, all of the subdivisions of the section 
 necessarily contemplate a case where the person is, or comes, within the 
 state. If the fraraers of the section had intended by subdivision 1 to 
 cover the case of persons only who were without the state when the 
 acts were committed which constitute the crime, they would have in- 
 serted in the section the contingency found in the remaining sub- 
 divisions, which subdivisions contemplate a return to the state of the 
 person committing the crime. It is plain that the section by its 
 various provisions was intended to embrace all persons punishable 
 under the laws of the state of CaUfornia. The defendant, having 
 committed a murder in part in the state of California, is punishable 
 under the laws of the state, exactly in the same way, in the same 
 courts, and under the same procedure, as if the crime was committed 
 entirely within the state. 
 
 For the foregoing reasons the judgment and orders are reversed and 
 the cause romanded.
 
 SECT. I.] REX V. MAKTIN. 177 
 
 CHAPTER III. 
 THE OFFENCE: MODIFYING CIRCUMSTANCES. 
 
 SECTION I. 
 Participation of a Public Officer, 
 
 REX V. MARTIN. 
 
 Crown Case Reserved. 1811. 
 
 [Reported Russell ^ Ryan, 196.] 
 
 The defendant was tried before Mr. Baron Wood, at the Lent 
 assizes, for Northamptonshire, in the ^ear 1811, upon an indictment for 
 a misdemeanor in unlawfull}- 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 hira 
 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-bo}' 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 the 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 by 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.
 
 178 GRIMM V. UNITED STATES. [CHAP. III. 
 
 It was objected to b}- the counsel for the defendant that the commis- 
 saiy, 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. 
 
 In Trinity term, 15th June, 1811, all the judges met (except Law- 
 rence, J.,) when they held the conviction wrong, inasmuch as the 
 prisoner never escaped or intended to escape. 
 
 GRIMM V. UNITED STATES. 
 Supreme Court of the United States. 1895. 
 ^Reported 156 U. S. 604.] 
 
 Indictment under Rev. St. § 3893 for mailing obscene pictures.^ 
 Brewer, J. ... A final matter complained of grows out of these facts : 
 It appears that the letters to defendant — the one signed " Herman 
 Huntress," described in the second count, and one signed " William W. 
 Waters," described in the fourth count ^ — -were written by Robert W. 
 McAfee; that there were no such persons as Huntress and Waters; 
 that McAfee was and had been for years a post-office inspector in the 
 employ of the United States, and at the same time an agent of the 
 Western Society for the Suppression of Vice ; that for some reasons 
 not disclosed by the evidence McAfee suspected that defendant was 
 engaged in the business of dealing in obscene pictures, and took this 
 method of securing evidence thereof; that after receiving the letters 
 written by defendant, he, in the name of Huntress and Waters, wrote 
 for a supply of the pictures, and received from defendant packages of 
 pictures which were conceded to be obscene. Upon these facts it is 
 insisted that the conviction cannot be sustained because the letters of de- 
 fendant were deposited in the mails at the instance of the govern- 
 ment, and through the solicitation of one of its officers ; that they were 
 directed and mailed to fictitious persons; that no intent can be imputed 
 to defendant to convey information to other than the persons named 
 in the letters sent b}- him, and that as they were fictitious persons 
 there could in law be no intent to give information to any one. This 
 objection was properly overruled by the trial court. There has been 
 much discussion as to the relations of detectives to crime, and counsel 
 for defendant relies upon the cases of United States v. Whittier, 5 
 Dillon, 35 ; United States v. Matthews, 35 Fed. Rep. 890 ; United 
 States V. Adams, 59 Fed. Rep. 674 ; Saunders v. People, 38 Michigan, 
 
 1 The statement of facts and part of the opinion, dealing with the sufficien»y of 
 the indictment, are omitted. — Ed.
 
 SECT. I.] GRIMM V. UNITED STATES. 179 
 
 218, in support of the contention that no conviction can be sustained 
 under the facts in this case. 
 
 It is unnecessary to review these cases, and it is enough to say that 
 we do not think they warrant the contention of counsel. It does not 
 appear that it was the purpose of the post-otlice inspector to induce or 
 solicit the commission of a crime, but it was to ascertain whether the 
 defeudant was engaged in an unlawful business. The mere facts tliat 
 the letters were written under an assumed name, and that he was a 
 government official — a detective, he may be called — do not of them- 
 selves constitute a defence to the crime actually committed. The 
 official, suspecting that the defendant was engaged in a business offen- 
 sive to good morals, sought information directly from him, and the 
 defendant responding thereto, violated a law of the United States by 
 using tlie mails to conve}'' such information, and he cannot plead in 
 defence that he would not have violated the law if inquir}' had not 
 been made of him by such government official. Tlie authorities in 
 support of this proposition are many and well considered. Among 
 others reference may be made to the cases of Bates v. United States, 
 10 Fed. Rep. 92, and the authorities collected in a note of Mr. Whar- 
 ton, on page 97; United States v. Moore, 19 Fed. Rep. 30, United 
 States V. Wight, 38 Fed. Rep. 106, in which the opinion was delivered 
 by Mr. Justice Brown, then District Judge, and concurred in by 
 Mr. Justice Jackson, then Circuit Judge ; United States /'. Dorse}', 
 40 Fed. Rep. 752 ; Commonwealth v. Baker, 155 Mass. 287, in which 
 the court held that one who goes to a house alleged to be kept for 
 illegal gaming, and engages in such gaming himself for the express 
 purpose of appearing as a witness for the government against the pro- 
 prietor, is not an accomplice, and the case is not subject to the rule 
 that no conviction should be had on the uncorroborated testimony 
 of an accomplice; People v. Noelke, 94 N. Y. 137, in which the same 
 doctrine was laid down as to the purchaser of a lottery ticket, who 
 purchased for the purpose of detecting and punishing the vendor ; 
 State V. Jansen, 22 Kansas, 498, in which the court, citing several au- 
 thorities, discusses at some length the question as to the extent to which 
 participation by a detective affects the liability of a defendant for 
 a crime committed bj' the two jointly ; State v. Stickney, 53 Kansas, 
 308. But it is unnecessary to multiply authorities. The law was 
 actually violated by the defendant ; he placed letters in the post- 
 office which conveyed information as to where obscene matter could 
 be obtained, and he placed them there with a view of giving such infor- 
 mation to the person who should actually receive those letters, no 
 matter what his name ; and the fact that the person who wrote under 
 these assumed names and received his letters was a government 
 detective in no manner detracts from his guilt. 
 
 These are all the questions presented by counsel. We see no error 
 in the rulings of the trial court, and the judgment is, therefore. 
 
 Affirmed,
 
 180 PEOPLE V. MILLS. [CHAP. III. 
 
 PEOPLE V. MILLS. 
 
 Court of Appeals of New York. 1904. 
 [Reported 178 tV.F. 274.] 
 
 Indictment for theft of public records. The defendant was con- 
 iricted of an attempt to commit larceny of the records. The defendant, 
 desiring to have a certain indictment removed from the records, offered 
 an assistant district attorney a bribe to remove and give it up. 
 The district attorney being informed of tlie scheme directed his assist- 
 ant seemingly to comply with it ; the assistant thereupon, for the pur- 
 pose of apprehending the defendant, removed the indictment and handed 
 it to tlie defendant, who was tliereupon arrested bv police officers in 
 waiting. A judgment of conviction was affirmed by the Appellate Divi- 
 sion, and an appeal was taken. ^ 
 
 Vann, J. The indictments against Dr. Flower were records or doc- 
 uments filed in a public office, under the authority of law. (Code Crim. 
 Pro. § 272, Code Civ. Pro. § 866.) They were the property of the 
 state and a wilful and unlawful removal of them constituted a crime 
 under section 94 of the Penal Code. An}^ one who unlawfully obtained 
 or appropriated them was guilty of grand larceny' in the second degree, 
 according to the provisions of another section of the same statute. 
 (Penal Code, § 531.) Whoever is guilty of violating either section may 
 be convicted of an attempt to commit the offence s[)ecified tlierein, 
 even if it appears on the trial tliat the crime was fully consummated, 
 unless the court in its discretion discharges the jury and directs the 
 defendant to be tried for the crime itself, whicli was not done in the 
 case before us. (Code Crim. Pro. §§ 35 and 685). The jury found 
 the defendant guilty of an attempt both to remove and to steal the indict- 
 ments, and after affirmance by the Appellate Division we are confined 
 in our review to such questions as were raised b}' exceptions taken 
 during the trial. 
 
 In view of the able and exhaustive opinion of the Appellate Division, 
 the only question we feel called upon to consider is that raised by the 
 challenge of the learned counsel for the appellant in tlie nature of 
 a demurrer to the evidence. He claims that even on the assumption 
 that all tlie evidence for the prosecution is true, still the facts thus 
 proved do not constitute the crime charged in either count of the 
 indictment. His argument is that the object of the district attorney 
 was not to detect, but to create a crime, and that no crime was com- 
 mitted by the defendant in taking the indictments into his possession, 
 because he took them with the consent of the state as represented by 
 the district attorney. 
 
 The flaw in this argument is found in the fact that the records were 
 the property of the state, not of the district attorney, and that the latter 
 
 1 This short statement is substituted for the longer statement of facts by the Repor- 
 ter. Part of the opinion is omitted. — Ed.
 
 SECT. I.] PEOPLE V. MILLS. 181 
 
 could not lawfulh- give them away or permit tljem to be taken by the 
 defendant. Purity of intention only could prevent the action of the 
 district attorney from being a crime on his part. This is true also as 
 to the detective, for if either had in fact intended that tlie defendant 
 should permanently remove the indictments, and steal, appropriate or 
 destroy them, he would have come within the statute. Neitlier of those 
 officers represented the state in placing the records where the defendant 
 could take them, but each was acting as an individual only. Neither 
 had the right or power, as a public officer, to deliver them to the de- 
 fendant, and if either had acted with an evil [lurpose, his act would 
 have been criminal in character. . . . 
 
 We shall not review the authorities cited on either side, for that duty 
 has been so thoroughly discharged by the Appellate Division that we 
 can tlirow no furtiier light upon the subject. We merely state that an 
 important distinction between this case and those relied upon bv the 
 appellant is found in the difference between public and private owner- 
 ship of the property taken by the accused. In most cases some third 
 person is injured by the crime and is directly or indirectly the com- 
 plainant, but in this case the state was, as it must be in all criminal 
 cases, the prosecutor and it was also the injured party, for its property 
 was the subject of the attempt at larceny. If an individual owner vol- 
 untarily delivers his property to one who wishes to steal it there is no 
 trespass, but when the property of the state is delivered by any one, 
 under any circumstances, to any person for the purpose of having him 
 steal it and he takes it into his possession with intent to steal it, there 
 is a trespass and the attempt is a crime. The state did not solicit or 
 persuade or tempt the defendant, any more than it took his money 
 when he handed it over to the detective. Neither did the district attor- 
 ney, as such, but Mr. Jerome did, acting as an individual, with the best 
 of motives, but without authority of law and, hence, his action did not 
 bind the state. While the courts neither adopt nor approve tlie action 
 of the officers, which they hold was unauthorized, still they should not 
 hesitate to punish the crime actually committed by the defendant. It 
 is their duty to protect the innocent and punish the guilty. We are 
 asked to protect the defendant, not because he is innocent, but because 
 a zealous public officer exceeded his powers and held out a liait. Tiie 
 courts do not look to see who iield out the bait, but to see who took it. 
 When it was found that the defendant took into his possession the 
 property of the state with intent to steal it, an offence against public 
 justice was established and lie could not insist as a defence that he 
 would not have committed the crime if he had not been tempted by a 
 public officer whom he thought he had corrupted. He supposed he had 
 bought the assistant district attorney when he handed over the money, 
 but he knew he had not bought the state of New York and, hence, that 
 the assistant had no right to give him its property for the purpose of 
 enabling him to steal it. The judgment of conviction should be affirmed.^ 
 1 O'Brien and Bartlett, JJ., delivered dissenting opinions. — Ed.
 
 182 mcdaniel's case. [chap. iii. 
 
 SECTION II. 
 
 Acquiescence of the Injured Party. 
 
 McDANIEL'S CASE. 
 Chown Case Reserved. 1755. 
 
 [Reported Foster C. L. 121.] 
 
 At the Old Baile}' session in December, 1 755, 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-deliveiy holden at 
 Maidstone in the count}- of Kent, on the 13th of August in the twenty- 
 eighth year of the King, Peter Kell}' and John p]llis were b}' due course 
 of law convicted of a felony and robber}' committed \)\ them in the 
 King's highwa\- in the parish of Saint Paul Deptford in the county 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 robbery, did in the parish of Saint 
 Andrew Holbourn in this cit}', feloniousl}' and malicioush' comfort, aid, 
 assist, abet, counsel, hire, and command the said Peter Kelly and John 
 Ellis to commit the said felony and robberj-. 
 
 On this indictment the prisoners have been tried, and the jury have 
 found a special verdict to tliis effect. 
 
 That Kelly and Ellis were bj- due course of law convicted of the said 
 felony and robbery. 
 
 That before the robber\- 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 highwa}', did maliciously and feloni- 
 oush* 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 tliey 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 privitj' 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 
 robber}'. 
 
 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. II.] mcdaniel's case. 183 
 
 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 feloniouslj' assaulted 
 him, and took from his person the money and goods mentioned in the 
 indictment. 
 
 They 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 robber}' the prisoners Maedaniel, Eagen, 
 and Berry saw the said Ellis and Kelly, 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 atlvice of the court. 
 
 This special verdict hath been argued before all the judges of 
 England.^ 
 
 It is expressly 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 robbery was eflTected. 
 
 This being the state of the case with regard to Salmon, the judges 
 are of opinion that in consideration of law no robbery- was committed 
 on him. His property was not taken from him against liis will. 
 
 I come now to tiie case which I promised at the beginning to consider 
 and to distinguish from the present case. One Norden, having l)een 
 informed that one of the early stage-coaches had been frequently robbed 
 near the town by 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 company 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 year 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. In 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 
 wliether he would come alone or not. In the case now under considera- 
 tion there was a most detestalile conspiracy between Salmon and the 
 rest of the prisoners, that his property should be taken from him under 
 the pretence and show of a robbery ; and time, place, and every other 
 circumstance were known to Salmon beforehand, and agreed to by him, 
 
 1 Part of the case is omitted.
 
 184 eggington's case. [chap. iii. 
 
 In Norden's case there was no concert, no sort of connection between 
 him and the highwayman ; nothing to remove or lessen the difficulty or 
 danger Norden miglit be exposed to in the adventure. In tlie present 
 case there was a combination between Salmon and one at least of ttie 
 supposed robbers. I mean Blee. And though Salmon might not know 
 the persons of Ellis and Kelly ; 3'et he well knew that tliey were brought 
 to the place by 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 ver}' salutai-y 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 robbery. 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 the 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. Anone, 2 N. & McC. 27; Alexander r. State, 12 Tex, 541. — Ed.
 
 SECT. IL] EGGINGTON's CASE. 185 
 
 the counting-house which was locked, and the desks, which were also 
 locked ; and took from thence the ingots of silver and guineas. They 
 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 felon}-, 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 the burglary.^ 
 
 But with respect to the larceny the majorit}' thought there was no 
 assent in Boulton ; that his object being to detect the prisoners, he 
 only gave them a greater facilit}' 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 b}' the 
 presence of that servant ; and that by his assistance they should take 
 the goods, so as to make a complete felon}' ; though he did not mean 
 that they should carry them away. Finall}', the prisoners were recom- 
 mended to mercy on condition of being transported for seven 3-ears, 
 the punishment the}" 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; State v. Douglass, 44 Kan. 618. — Ed. 
 
 2 Vide Just. Inst. lib. 4, tit. 1, s. 8.
 
 186 TOPOLEWSKI V. S'J ATE. [CHAP. lU. 
 
 TOPOLEWSKI V. STATE. 
 Supreme Court of Wisconsin. 1906. 
 
 [Reported 109 N. W. 1037.] 
 
 The accused was charged with having stolon three barrels of meat, 
 the property of the Plankinton Packing Compan}', of the value of 
 $55.20, and was found guilty. 
 
 The evidence was to this effect : The Plankinton Packing Company 
 suspected the accused of having by criminal means possessed himself 
 of some of its property, and of having a purpose to make further efforts 
 to that end. A short time before the 14th day of October, 1905, one 
 Mat Dolan, who was indebted to the accused in the sum of upwards of 
 $100, was discharged from the company's employ. Shortly theretofore 
 the a.ccused pressed Dolan for payment of the aforesaid indebtedness, 
 and the latter being unable to respond, the former conceived the idea 
 of solving the difficulty by obtaining some of the company's meat pro- 
 ducts through Dolan's aid and by criminal means, Dolan to participate 
 in the benefits of the transaction by having the value of the property 
 credited upon his indebtedness. A plan was accordingly laid by the 
 two to that end, which Dolan disclosed to the company. Such plan 
 was abandoned. Thereafter various methods were discussed of carrj-- 
 ing out tlie idea of the accused, Dolan participating with the knowledge 
 and sanction of the company. Finally a meeting was arranged between 
 Dolan and the accused to consider the subject, the packing company 
 requesting the former to bring it about, and with knowledge of Dolan 
 causing one of its employes to be in hiding where he could overhear 
 whatever might be said, the arrangement being made on the part of the 
 company by Mr. La3-er, the person in charge of its wholesale depart- 
 ment. At such interview the accused proposed that Dolan should pro- 
 cure some packages of the company's meat to be placed on their loading 
 platform, as was customary in delivering meat to customers, and that 
 he should drive to such platform, ostensibly as a customer, and remove 
 such packages. Dolan agreed to the proposition, and it was decided 
 tliat the same should be consummated earl}' the next morning, all of 
 which was reported to Mr. Layer. He thereupon caused four barrels 
 of meat to be packed and put in the accustomed condition for deliver}'^ 
 to customers, and placed on the platform in readiness for the accused 
 to take them. He set a watch over the property, and notified the per- 
 son in charge of the platform, who was ignorant of the reason for so 
 placing the barrels, upon his inquiring what they were placed there for, 
 to let them go ; that they were for a man who would call for them. 
 About the time appointed for the accused to appear, he drove to the 
 platform and commenced putting the barrels in his wagon. The plat- 
 form boss supposing, as the fact was, that the accused was the man
 
 SECT. II.] TOPOLEWSKI V. STATE. 187 
 
 Mr. La3'er said was to come for the pro[)ertv, assumed tlie attitude of 
 consenting to the taking. He did not actually help load the barrels on 
 to the wagon, but he was by, consented by his manner, and when the 
 accused was ready to go, helped him arrange his wagon, and inquired 
 what was to be done with the fourth barrel. The accused replied that 
 he wanted it marked and sent up to him with a bill. He told the plat- 
 form boss that he ordered the stuff the night before through Dolan. 
 He took full possession of the three barrels of meat with intent to 
 deprive the owner permanentlj' thereof, and without compensating it 
 therefor, wholly in ignorance, however, of the fact that Dolan had 
 acted in the matter on behalf of such owner, and that it had knowingly' 
 aided in carrying out the plan for obtaining the meat. 
 
 Marshall, J.^ . . . It was frankly conceded on the oral argument b}- 
 the learned attorney general that if the plaintiff in error committed the 
 crime of larceny, Dolan, the decoy of the packing company, was a 
 guilty participant in the matter, unless the element of guilt on his part 
 was absent, because, while in the transaction he acted ostensibly as an 
 accomplice of the accused, his acts were in fact those of the packing 
 company. So in the circumstances characterizing the taking of the 
 barrels of meat from the loading platform the case comes down to this: 
 If a person procures another to arrange with a third person for the lat- 
 ter to consummate, as he supposes, larceny of the goods of such person 
 and such third person in the course of negotiations so sanctioned by 
 such person suggests the plan to be followed, which is agreed upon 
 between tlie two, each to be an actor in the matter, and subsequently 
 that is sanctioned secretly by such person, the purpose on the part oi: 
 the latter being to entrap and bring to justice one thought to be dis' 
 posed to commit the offence of larceny, and such person carries out a 
 part of such plan necessarj' to its consummation assigned to such other 
 in the agreement aforesaid, such third person not knowing that such 
 person is advised of the impending offence, and at the finalitv causeu 
 one of its employes to, tacitl}' at least, consent to the taking of thti 
 goods, not knowing of the real nature of the transaction, is such third 
 person guilty of the crime of larceny, or does the conduct of such per- 
 son take from the transaction the element of trespass or nonconsenl 
 essential to such crime? 
 
 It will be noted that the plan for depriving the packing company- ol 
 its propert}' originated with the accused, but that it was whollj* im- 
 practicable of accomplishment without the property being placed on the 
 loading platform, and the accused not being interfered with when he 
 attempted to take it. When Dolan agreed to procure such placing the 
 packing company in legal effect agreed thereto. Dolan did not ex- 
 pressly consent, nor did the agreement he had with the packing com- 
 pany authorize him to do so, to the misappropriation of the property'. 
 Did the agreement in legal effect, with the accused to place the prop- 
 
 '- Part uf the opiuiou is uiiutted. — Ed.
 
 188 TOPOLEWSKI V. STATE. [CHAP. III. 
 
 erty of the packing cuin[)aiiy on the loiuling platform, where it could be 
 ap[)ropnated by the accused, if he was so disposed and was not inter- 
 fered with in so doing, though his movements in that regard were 
 known to tlie i)acking corai)any, and his taking of the property, his 
 efforts to that end being faciUtated as suggested, constitute consent to 
 such appropriation ? 
 
 The case is very near the border line, if not across it, between con- 
 sent and nonconsent to the taking of the property. Reg. v. Lawrence, 
 4 Cox C. C. 438, it was held that if the property was delivered by a 
 servant to the defendant by the master's direction the offence cannot 
 be larceu}-, regardless of the purpose of the defendant. In this case 
 the property was not only placed on the loading platform, as was usual 
 in delivering such goods to customers, with knowledge that the accused 
 would soon arrive, having a formed design to take it, but the packing 
 company's employe in charge of the platform, Ernst Klotz, was in- 
 structed that the property was placed there for a man who would call 
 for it. Klotz, from such statement, had every reason to infer, when the 
 accused arrived and claimed the right to take the property, that he was 
 the one referred to, and that it was proper to make delivery to him, 
 and lie acted accordingly. While he did not physically place the prop- 
 erty, or assist in doing so, in the wagon, his standing by, witnessing 
 such placing by the accused, and then assisting him in arranging the 
 wagon, as the evidence shows he did, and taking the order, in the usual 
 way, from the accused as to the disposition of the fourth barrel, and 
 his conduct in respect thereto, amounted practicall}' to a delivery of the 
 three barrels to the accused. 
 
 In Rex V. Egginton, 2 P. & P. 508, we have a very instructive case 
 on the subject under discussion here. A servant informed his mastei 
 that he had been solicited to aid in robbing the latter's house. By the 
 master's direction the servant opened the house, gave the would-be 
 thieves access thereto, and took them to the place where the intended 
 subject of the larceny had been laid in order that they might take it. 
 All this was done with a view to the apprehension of the guilty parties 
 after the accomplishment of their purpose. The servant, by direction 
 of the master, not only gave access to the house, but afforded the 
 would-be thieves every facility for taking the property, and yet the 
 court held that the crime of larcen}- was complete, because there was 
 no direction to the servant to deliver the property to the intruders or 
 consent to their taking it. The}' were left free to commit the larcenj-, 
 as they had purposed doing, and the way was made easy for them to 
 do so, but they were neither induced to commit the crime, nor was any 
 act essential to the oflence done by an}- one but themselves. 
 
 In harmon}- with the case last discussed in Williams v. State of 
 Georgia, 55 Ga. 391, cited by counsel for the plaintiff in error, it was 
 held that the owner of property ma^' make everjthing read}' and easy 
 for a larceu}' thereof b}- one purposing to steal the same, and then
 
 bEGT. ll.j TOPOLEWSKI V. STATE. 189 
 
 remain passive, allowing the would-be criminal to perpetrate the offence 
 of larceu}- as to every essential part of such offence, witliont sacrificing 
 the element of trespass or nonconsent ; but if one osteusibl}' acting as 
 an accomplice, but really for the owner of the property, for the pur- 
 pose of entrapping the would-be criminal, does acts amounting to the 
 constituents of the crime of larceny, although the accused concurred in 
 and supposed he prompted the act, he is not guilt}' of larceny. The 
 circumstances of that case were these : The would-be criminal when he 
 took the property supposed he was committing the offence of larceny, 
 and that his associate was criminal!}' participating therein ; but because, 
 as a fact, such person was acting by direction of the owner, and actually 
 placed the property in the hands of the taker, the element of nonconsent 
 essential to larceny did not characterize the transaction. A distinction 
 was drawn between one person inducing another to commit the crime 
 of larceny of the former's goods, or such person aiding in the commis- 
 sion of the offence, so far as the mental attitude of such other is con- 
 cerned, by doing some act essential to such an offence, and merely 
 setting a trap to catch a would-be criminal by affording him the freest 
 opportunity to commit the offence. The latter does not sacrifice the 
 element of nonconsent. State v. Jansen, 22 Kan. 498 ; Varner v. State 
 of Georgia, 72 Ga. 745 ; State v. Duncan, 8 Rob. (La.) 562 ; Reg. v. 
 Williams, 1 Car. & K. 195; Rex v. P:gginton, 2 B. & P. 508. 
 
 In the case before us, the owner of the property, through its agent, 
 Dolan, did not suggest the plan for committing the offence of larceny, 
 which was finally adopted, but the evidence shows conclusively that, 
 by the consent or direction of the packing company, through words or 
 otherwise, he suggested the commission of such an offence, and invited 
 from the accused plans to that end. The fair construction of the evi- 
 dence is that in the finality the plan was a joint creation of the two, 
 and that it required each to be an active participant in its consumma- 
 tion. It seems that there is good reason for holding that the situation 
 in that respect falls within the condemnatory language in the opinion of 
 the court in Love v. People, 160 111. 501, 43 N. E. 710, 32 L. R. A. 
 139, cited to our attention by counsel for the plaintiff in error. That 
 will be apparent from the closing words of the opinion, which are as 
 follows : 
 
 " A contemplated crime may never be developed into a consummated 
 act. To stimulate unlawful intentions for the purpose and with the 
 motive of bringing them to maturity, so the consequent crime may be 
 punished, is a dangerous practice. It is safer law and sounder morals 
 to hold, where one arranges to have a crime committed against his 
 propert}' or himself, and knows that an attempt is to be made to en- 
 courage others to commit the act by one acting in concert with such 
 owner, that no crime is thus committed. The owner and his agent may 
 wait passively for the would-be criminal to perpetrate the offence, and 
 each and every part of it, for himself, but they must not aid, encourage, 
 or solicit him that they may seek to punish."
 
 190 TOPOLEWSKI V. STATE. [CHAP. III. 
 
 We cannot well escape the conclusion that this case falls under the 
 condemnation of the rule that where the owner of property by himself 
 or his agent, actually or constructively, aids in the commission of the 
 offence, as intended by the wrongdoer, by performing or rendering 
 unnecessary some act in the transaction essential to the oflfence, the 
 would-be criminal is not guilty of all the elements of the offence. Here 
 Mr. Layer, acting for the owner of the property, packed or superin- 
 tended the packing of the four barrels of meat, as suggested by the 
 owner's agent in the matter, Dolan, and caused the same to be placed 
 on the platform, knowing that the accused would soon arrive to take 
 them, under an arrangement between him and its agent, and directed 
 its platform l)oss, when he inquired as to the purpose of so placing the 
 barrels, " Let them go ; they are for some man, and he will call for 
 them." He, from the standpoint of such employe, directed the latter 
 to deliver the barrels to the man when he called, the same in all re- 
 spects as was done in Williams v. State, supra. He substantially made 
 isuch deliver}', b}' treating the accused when he arrived upon the scene 
 as having a right to take the pro|)erty. In that the design to trap a 
 criminal went a little too far, at least, in that it included the doing of 
 an act, in effect preventing the taking of the property from being char- 
 acterized by any element of trespass. 
 
 Tlie logical basis for the doctrine above discussed is that there can 
 be no larceny without a trespass. So if one procures his property to 
 be taken b}- another intending to commit larcen}-, or delivers his prop- 
 erty to such other, the latter purposing to commit such crime, the 
 element of trespass is wanting, and the crime not fully consummated, 
 however plain may be the guiltv purpose of the one possessing himself 
 of such property. That does not militate against a person's being free 
 to set a trap to catch one whom he suspects of an intention to commit 
 the crime of larceny, but the setting of such trap must not go further 
 than to afford the would-be thief the amplest opportunit}- to carry out 
 his purpose, formed without such inducement on the part of the owner 
 of the property, as to put him in the position of having consented to 
 the taking. If I induce one to come and take my property', and then 
 place it before him to be taken, and he takes it with criminal intent, or 
 if knowing that one intends to take my property, I deliver it to him, 
 and he takes it with such intent, the essential element of trespass in- 
 volving nonconsent requisite to a completed offence of larceny does not 
 characterize the transaction, regardless of the fact that the moral turpi- 
 tude involved is no less than it would be if such essential were present. 
 Some writers in treating this subject give so much attention to con- 
 demning the deception practiced to facilitate and encourage the com- 
 mission of a crime by one supposed to have such a purpose in view, 
 that the condemnation is liable to be viewed as if the deception were 
 sufficient to excuse the would-be criminal, or to preclude his being 
 prosecuted ; that there is a question of good morals involved as to both
 
 SECT. II.] TOPOLEWSKI V, STATE. • 191 
 
 parties to the transaction, and tliat tiie wrongful participation of tlie 
 owner of ttie property renders him and tlie public incapable of being 
 heard to charge the person he has entrapped with the offence of larcen}-. 
 That is wrong. It is the removal from the completed transaction, which 
 from the mental attitude of the would-be criminal may have all the in- 
 gredients of larcen}', from the standpoint of the owner of the property 
 of the element of trespass or nonconsent. When such element does 
 not characterize a transaction involving the full offence of larceny, so 
 far as concerns the mental purpose of such would-be criminal is con- 
 cerned, is often not free from difficulty, and courts of review should 
 incline quite stronglj- to support the decision of the trial judge in re- 
 spect to the matter, and not disturb it except in a clear case. It seems 
 that there is such a case before us. 
 
 If the accused had merely disclosed to Dolan, his ostensible accom- 
 plice, a purpose to improve the opportunity^ when one should present 
 itself to steal barrels of meat from the packing company's loading plat- 
 form, and that had been communicated by Dolan to the company, and 
 it had then merel}^ furnished the accused the opportunity he was look- 
 ing for to carry out such purpose, and he had improved it, the situation 
 would be quite different. The mere fact that the plan for obtaining 
 the property was that of the accused, under the circumstances of this 
 case, is not controlling. Dolan, as an emissary of the packing company, 
 as we have seen, was sent to the accused to arrange, if the latter were 
 so disposed, some sort of a plan for taking some of the company's prop- 
 ertj^ with the intention of stealing it. Though the accused proposed the 
 plan, Dolan agreed to it, which involved a promise to assist in carrying 
 it out, ostensibly as an accomplice, but actuall}^ as an instrument of the 
 packing company. That came very near, if it did not involve, solicita- 
 tion by the company, in a secret way, for the accused to take its prop- 
 erty as proposed. With the other element added of placing such 
 property on the loading platform for the accused to take pursuant to 
 the agreement, with directions, in effect, to the person in charge of the 
 platform, to let the accused take it when he came for that purpose, we 
 are unable to see any element of trespass in the taking which followed. 
 The packing company went very significantly further than the owner 
 of the property did in Rex v. Egginton, supra, which is regarded as 
 quite an extreme case. It solicited the opportunity to be an ostensible 
 accomplice in committing the offence of larceny instead of being solic- 
 ited in that regard, and the property was in practical effect delivered 
 to the would-be thief instead of its being merely placed where he could 
 readily trespass upon the rights of the packing company by taking it. 
 When one keeps in mind the plain distinction between merely furnish- 
 ing opportunity for the execution of a formed design to commit larceny 
 and negotiations for the purpose of develojiing a scheme to commit the 
 offence, regardless of who finally proposes the plan jointl^^ adopted, and 
 not facilitating the execution of the plan by placing tlie property pur-
 
 192 REGINA V. CASE. [CHAP. IIL 
 
 suant to the arrangement where it can readily be taken, but in practicul 
 effect, at least, delivering the same into the possession of the would-be 
 iliief, one can readily see that the element of trespass, involving consent, 
 is present in the first situation mentioned, and not in the last, and that 
 the latter prett}" clearly fits the circumstances of this case. 
 
 The judgment is reversed^ and the cause remanded for a new trial. 
 
 SECTION III. 
 
 Consent of the Injured Parti/. 
 
 REGINA V. CASE. 
 
 Crown Case Reserved. 1850. 
 
 [Reported 4 Cox C. C. 220.] 
 
 The following case was reserved by the Recorder of Dover: 
 William Case was tried before me at the last April Quarter Sessions 
 for the borough of Dover, for an assault upon Mary Impitt. 
 
 The defendant was a medical practitioner. Mar}' Impitt, who was 
 fourteen years old, was placed under his professional care b}' her 
 parents, in consequence of illness, arising from suppressed menstrua- 
 tion ; and on the occasion of her going to his house, and informing him 
 she was no better, he observed, " Then I must try further means with 
 you." He then took hold of her, and laid her down in his surgery, 
 lifted up her clothes, and had carnal connection with her, she making 
 no resistance, believing (as she stated) that she was submitting to 
 medical treatment for the ailment under which she labored. The de- 
 fendant's counsel, in his address to the jur\', contended that the girl 
 was a consenting party ; therefore, that the charge of assault could not 
 be sustained. 
 
 I told the jur}' that the girl was of an age to consent to a man having 
 carnal connection with her, and that if they thought she consented to 
 such connection with the defendant he ought to be acquitted ; but that 
 if they were satisfied she was ignorant of the nature of the defendant's 
 act, and made no resistance, solel}^ from a honCifide belief that the 
 defendant was (as he represented) treating her medically, with a view 
 to her cure, his conduct, in point of law, amounted to an assault. 
 
 The jury found the defendant guilty, and he was sentenced to be 
 imprisoned for eighteen calendar months in the borough gaol, where he 
 now remains. I have to pray the judgment of my lords, justices, and
 
 SECT. III.] REGINA V. CASE. 193 
 
 Others, sitting in a court of appeal, whether my direction to the jury 
 was correct in point of law. 
 
 Horfi, for the prisoner. The consent of the girl is found ; for con- 
 senting and not resisting are synonymous. [Coleridge, J. — They are 
 clearly used in a different sense here. Wilde, C. J. — If a medical 
 man uses an injurious ointment the patient does not resist its applica- 
 tion ; but it cannot be said that he consents. Alderson, H. — How 
 does this differ from the case of a man pretending to be the husband of 
 the woman ?] Fraud is not expressly found in this case. It ought to 
 have been left to the jury expressly to say whether tlie act done was 
 necessary or proper. It is consistent with the verdict that be may have 
 treated her medically. [Alderson, B. — He pretended that that was 
 medicine which was not ; hereby that is fraud.] In the notes to R. 
 V. Read (1 Den. C. C. 379), it is said, "It seems from R. v. Martin 
 (2 Moo. C. C. 123 ; 9 Car. & P. 213) ; R. v. Banks (8 Car. & P. 574) ; 
 R. V. Meredith (8 Car. & P. 589), first, that the stat. 9 Geo. 4, c. 31, 
 s. 17, does not deprive a girl under ten years of age of the power to 
 consent which she had at common law ; secondly, that consequently if 
 she consents to the mere incomplete attempt, such an attempt is not 
 punishable as an assault ; thirdly, that it is punishable as an attempt 
 to commit a felony, viz., as a misdemeanor ; " and further, " an assault 
 seems to be any sort of personal ill-usage, short of a battery done to 
 another against liis consent. Therefore, such act, done with consent, 
 is no breach of the peace or crime." Children of tender age are, there- 
 fore, capable of consenting; so is an idiot (R. v. Ryan, 2 Cox C. C. 
 115). [Patteson, J. — What do you say the jury found?] It is con- 
 sistent with the verdict that he may have treated her medically. 
 [Coleridge, J. — Suppose even that he did the act bond fide for the 
 purpose which he pretended, would that justify him? Had he a right 
 to pollute the cliild's body?] Certainly not, morally ; but the question 
 is, was it an assault in the eye of the law, there being consent in fact. 
 [Platt, B. — The girl did not consent to that which was done. She 
 did not know the nature of the act.] In Read's case (I Den. C. C. 377), 
 the jury found that, from her tender years, the child did not know 
 what she was about. Yet, as they found that she assented, the prison- 
 ers were held entitled to an acquittal upon the indictment, which 
 charged them with an assault. [Alderson, B. — It must be taken that 
 there was actual consent in that case.] Even if fraud was established, 
 still there was no assault. The doctrine of rape per fraudem stands 
 upon the decision of two judges, Alderson, B. and Gurney, B., in R, v. 
 Williams (8 Car. & P. 286), and R. v. Saunders {ib. 265). In those cases 
 the defendants were indicted for rape, and it appearing that the con- 
 sent of the woman in each case had been obtained under the belief that 
 the man was her husband, the learned judges directed that the prison- 
 ers should be acquitted of the charge of rape, but convicted of an 
 assault. [Alderson, B. — In the case before me I followed several 
 previous decisions, although I doubted them.] If they were guilty of
 
 194 KEGINA. V. CASE. [CHAP. III. 
 
 an assault, and penetration was proved, why were they not guilty of 
 rape ? [Alderson, B. — Suppose a woman is ravished wliilst under the 
 influence of laudanum. I recollect a case before me on the Home Cir- 
 cuit, where, at the time when the offence was committed, the woman 
 was completely insensible from drunkenness. I doubted whether the 
 prisoner ought to be convicted of rape ; but upon consultation witli Lord 
 Dcnman I held that he might.] R. v. Camplin (1 Den. C. C. 89 ; 1 
 Cox C. C. 220), was a somewhat similar case, but different in this, — 
 that the prisoner gave the woman the liquor which made her drunk. 
 He therefore contributed to the production of the state of insensil»ilitv 
 during which the offence was committed ; and if the woman does not 
 consent as long as she has the power of consenting or resisting, a 
 reasonable inference tliat she did not consent may be drawn from her 
 previous conduct ; the act would be done against " her permanent will," 
 as Lord Denman expressed it in R. v. Camplin ; but if fraud dispenses 
 with tlie necessity- of resistance, any deceit will liave that effect ; and it 
 would be an assault if the woman consented, upon a false representa- 
 tion that the man would marr}- her, or that medically it would be bene- 
 ficial to her. If a surgeon cuts off a leg or draws a tooth, and the 
 patient consents because he believes that he is being medically treated, 
 could he afterwards indict him for an assault? Again, the charge of 
 rape includes an assault ; and is there to be one kind of consent for an 
 assault and another kind of consent to get rid of the charge of rape? 
 The cases, therefore, it is submitted, deserve to be reconsidered, 
 f Wilde, C. J. — There are two cases which clearl}' show that this de- 
 fendant was guilty of an assault, and you say that the court ought to 
 have held him guilt}' of rape ; but it would not be less an assault if it 
 should be held to be rape.] If upon an indictment for assault a rape is 
 proved, the misdemeanor merges in the felony ; but it is held that if 
 the connection takes place by consent obtained by fraud it is not rape. 
 If not, neither is it an assault. 
 
 jBarroio, contra, was not called upon. 
 
 Wilde, C. J. I have no doubt in this case that the direction of the 
 learned recorder was perfectly correct. The objection is to the latter 
 part of the charge ; for he first of all tells the jury that the girl was of 
 an age to consent, and that, if she consented, the prisoner must be 
 acquitted. Therefore, he treats her as competent to consent, and her 
 consent as a ground of acquittal ; but then, that direction is qualified 
 by what he adds afterwards, — that if they were satisfied that she was 
 ignorant of the nature of the act, and made no resistance solely from a 
 bona fide belief that the defendant was, as he represented, treating her 
 medically with a view to her cure, his conduct amounted to an assault. 
 That is the part which is objected to. The jurj' found the prisoner 
 guilt}-. The girl was of an age at which she might be totall}' ignorant 
 of the nature of the act, morally or religioush", and of the effect which 
 it might have upon her character and station in life ; and she was sent 
 by her parents to the defendant to be medically treated by him. It is
 
 SECT. III.] REGINA V. CASE. 195 
 
 said that he may have treated her medically ; if so, can it be said that 
 he did not commit both a legal and ecclesiastical offence? But the jury 
 must, I think, be taken to have found that it was not medical treatment. 
 I admit that the question was not put to them ; nor was it necessary, 
 because, whether the defendant thought it would be beneficial or not, 
 his act was altogether improper and unjustifiable. He was guilty of a 
 great offence. He in truth disarms the girl ; and she submits under 
 a misrepresentation that it was some act necessary and proper for her 
 cure ; she made no resistance to an act which she supposed to be quite 
 different from what it was ; what she consented to was something 
 wholly different from that which was done, and, therefore, that which 
 was done, was done without her consent. I am not prepared to say 
 that the two cases referred to might not be cases of rape ; for every 
 rape includes an assault ; but it is not necessary to decide that ques- 
 tion now. 
 
 Alderson, B. This is quite undistinguishable from the two cases 
 decided by myself and my brother Gurney, which were only the sequel 
 of many others previously decided. When a man obtains possession of 
 the person of a woman by fraud, it is against her will ; and if the 
 question were res nova, I should be disposed to say that this was a 
 rape, but that is not necessary in this case. This is an indictment for 
 an assault, and the prisoner obtains the consent of the child by 
 representing the act as something different from what it was. 
 
 Patteson, J. Mr. Horn confounds active consent and passive non- 
 resistance, which, I think, the learned recorder has very accurately 
 distinguished. Here the girl did not resist ; but still there was no 
 consent. 
 
 Coleridge, J. The girl was under medical treatment, and she 
 makes no resistance only in consequence of the confidence which she 
 reposed in the defendant as her medical adviser. If there had been no 
 consent the defendant's act would have been indisputably an assault ; 
 and under the circumstance, therefore, his conduct amounted to an 
 assault according to cases which I should be sorry to see infringed. 
 
 Platt, B. I think my brother Patteson has pointed out the fallacy 
 of Mr. Horn's argument as to consent. The girl consents to one thing, 
 and the defendant does another ; that other involving an assault.^ 
 
 Conviction affirmed. 
 
 1 Are. Rex v. Nichols, Russ. & Ry. 130; Rex v. Rosinski, 1 Moody, 19; Reg. v. 
 Woodhurst. 12 Cox C. C. 443 ; Reg. v. Lock, L. R. 2 C. C. R. 10. — Ei>.
 
 J.96 REGINA V. CLARENCE. [CHAP. III. 
 
 REGINA V. CLARENCE. 
 Crown Case Reserved. 1888. 
 
 [Reported 16 Cox C. C. 511, 22 Q. B. D. 23.] 
 
 Wills, J.,^ read the following judgment: The prisoner in this 
 case has been convicted (1) of "■ an assault" upon his wife, " occasion- 
 ing actual bodily harm," under sect. 24 & 25 Vict. c. 100, s. 47 ; and 
 (2) of "unlawfully and maliciousl}' inflicting" upon her ''grievous 
 bodily harm " under sect. 20 of the same statute. The facts are that 
 he was, to his knowledge, suffering from gonorrhoea ; that he had 
 marital intercourse with his wife without informing her of the fact; 
 that he infected her, and that from such infection she suffered grievous 
 bodily harm. The question is, whether he was righth' convicted upon 
 either count. First, was he guilty of an assault? In support of a 
 conviction it is urged that even a married woman is under no obliga- 
 tion to consent to intercourse with a diseased husband ; that had the 
 wife known tliat her husband was diseased she would not have con- 
 sented ; that the husband was guilty of a fraud in concealing the fact 
 of his illn3ss ; that her consent was therefore obtained b}- fraud, and 
 was therefore no consent at all, and, as the act of coition would imply 
 an assault if done without consent, he can be convicted. This reason- 
 ing seems to me eminently unsatisfactory. That consent obtained b}- 
 fraud is no consent at all is not true as a general proposition either in 
 fact or in law. If a man meets a woman in the street and knowingly 
 gives her bad money in order to procure her consent to intercourse 
 with him, he obtains her consent by fraud, but it would be childish to 
 say that she did not consent. In respect of a contract, fraud does not 
 destroy the consent ; it oul}' makes it revocable. Mone}- or goods 
 obtained b\' false pretences still become the propert}' of the fraudulent 
 obtainer unless and until the contract is revoked by the person de- 
 frauded, and it has never been held that, as far as regards the applica- 
 tion of the criminal law, the repudiation of the contract had a 
 retrospective effect, or there would have been no distinction between 
 obtaining money under false pretences and theft. A second and far 
 more effective way of stating the argument, however, is that connection 
 with a diseased man and connection with a sound man are things so 
 essentially different that the wife's submission without knowledge of 
 the facts is no consent at all. It is said that such a case rests upon 
 the same footing with the consent to a supposed surgical operation or 
 to connection with a man erroneousl}' supposed to be the woman's 
 husband. In the latter case there has been great difference of judicial 
 
 ^ Part of each opinion, not involving the question of assault, is omitted.
 
 SECT. III.] REGINA V. CLARENCE. 197 
 
 Opinion as to whether it did or did not amount to the crime of rape ; 
 but as it certain!}' would now be rape by virtue of the Criminal Law 
 Amendment Act, 1885 (48 & 49 Vict. c. 69), s. 4, I treat it as so set- 
 tled. A third way of putting the case is, that inasmuch as the act 
 done amounts to legal cruelty according to the doctrines formerly of 
 the Ecclesiastical Courts, and now of the Divorce Court, it cannot be 
 said to be within the consent implied by the marital relation. These 
 different ways of putting the argument in favor of a conviction have 
 some important differences. According to each the consent of the 
 marital relation does not apph- to the thing done, — a fact as to which 
 there does not seem to be room for doubt, and according to each the 
 want of it makes the transaction an assault. According to the first, it 
 is the fraudulent suppression of the truth which destroys the consent 
 de facto given, a proposition involving as a necessar}' element in the 
 offence the knowledge of his condition on the part of the offender. 
 According to the second, it is the difTerence between the thing sup- 
 posed to be done and the thing actually done that negatives the idea 
 of consent at all, and in that view it must be immaterial whether the 
 offender knew that he was ill or not. According to the third, his 
 knowledge is material, not on the ground of fraudulent misrepresenta- 
 tion, but because it is an element in legal cruelty as that term is under- 
 stood in the Divorce Court. It makes a great difference upon which 
 of these grounds a conviction is supported. Each of them covers an 
 area vastly greater than the ground occupied by the circumstances of 
 the present case. If the first view be correct, ever}^ man, as has been 
 pointed out, who knowingly gives a piece of bad mone}^ to a prostitute 
 to procure her consent to intercourse, oi- who seduces a woman by 
 representing himself to be what he is not, is guilty of assault, and, as 
 it seems to me, therefore, of rape. If the second view be correct, it 
 applies in similar events just as much to unmarried as to married 
 people, unless the circumstances should establish that the parties were 
 content to take their chances as to their respective states of health ; 
 and the allegation that a man had given an assui'ance to a prostitute 
 before having intercourse with her that he was sound when he was not 
 so in fact, might be a ground for putting him upon a trial for rape. If 
 the third view be correct, it places the married man, in the eye of the 
 criminal law, in a much worse position than the unmarried, and makes 
 him guilt}- of an assault, and possibly of rape, when an unmarried man 
 would not be liable to the same consequences. It ma}- be said that, 
 from the moral point of view, his case is the worse ; but there are two 
 sides to this as to most other questions. The man who goes out of his 
 way to seek intercourse under such circumstances — and, be it remem- 
 bered that the hypothesis I am now dealing with assumes knowledge of 
 his condition on the part of the man — is without excuse. There may 
 be many excuses for the married man suggested by the modes of life 
 with which poverty and overcrowding have to do. We are thus intro- 
 duced, as it seems to me, to a set of very subtle metaphysical questions.
 
 198 REGINA V. CLARENCE. [CHAP. III. 
 
 If we are invited to apply the analog}' of the cases in which a man has 
 procured intercourse by personating a husband, or b}' representing that 
 he was performing a surgical operation, we have to ask ourselves 
 whether the procurement of intercourse b}' suppressing the fact that 
 the man is diseased is more nearly allied to the procurement of inter- 
 course b}' misrepresentation as to who the man is, or as to what is 
 being done, or to misrepresentations of a thousand kinds in respect of 
 which it has never 3'et occurred to any one to suggest that intercourse 
 so procured was an assault or a rape. There are plenty of such in- 
 stances in which the knowledge of the truth would have made the 
 victim as ready to accept the embraces of a man stricken with small- 
 pox or lepros3\ Take, for example, the case of a man without a 
 single good quality, a gaol-bird, heartless, mean, and cruel, without 
 the smallest intention of doing anytliing but possessing himself of the 
 person of his victim, but successfuU}' representing himself as a man ot 
 good famil}' and connections prevented by some temporar}' obstacle 
 from contracting an immediate marriage, and with conscious hypocrisy 
 acting the part of a devoted lover, and in this fashion, or perliaps under 
 the guise of affected religious fervor, effecting the ruin of his victim. 
 In all that induces consent there is not less difference between the man 
 to whom the woman supposes she is yielding herself and the man by 
 whom she is really beti'ayed, than there is between the man bodily 
 sound and the man afflicted with a contagious disease. Is there to be 
 a distinction in this respect between an act of intercourse with a wife 
 who on this special occasion would have had a right to refuse her con- 
 sent, and certainh' would have refused it had she known the truth, and 
 the intercourse taking place under the general consent inferred from 
 a bigamous marriage obtained by the false representation that the man 
 was capable of contracting a legal marriage ? In such a case the man 
 can give no title of wife to the woman whose person he obtains b}' the 
 false representation tliat he is unmarried, and l\y a ceremony which, 
 under the circumstances, is absolutely void. Where is the difference 
 between consent obtained b}^ the suppression of the fact that tlie act of 
 intercourse may produce a foul disease, and consent obtained b}' the 
 suppression of the fact that it will certainly make the woman a concu- 
 oine, and while destroying her status as a virgin withhold from her the 
 dtle and rights of a wife? Where is the distinction between the mis- 
 take of fact which induces the woman to consent to intercourse with a 
 man supposed to be sound in body, but not reall}' so, and the mistake 
 of fact which induces her to consent to intercourse with a man whom 
 she believes to be her lawful husband, but who is none ? Man}^ women 
 would think that, of two cruel wrongs, the bigamist had committed the 
 worse. These are but specimens of the questions which must be faced 
 before the circumstances of the present case can be pronounced to 
 constitute an assault ; and such considerations lead one to pause on
 
 SECT. III.] REGINA V. CLA.RENCE. 199 
 
 the threshold and inquire whether the enactment under consideration 
 could really have been intended to appl}' to circumstances so com- 
 pletely removed from those \yhich are usually understood when an 
 assault is spoken of, or to deal with matters of an}^ kind involving the 
 sexual relation or act. The description of the offence constituted by 
 sect. 47 is as follows: "Whoever shall be convicted of an assault 
 occasioning actual bodily harm." The section is the last of a group of 
 twelve headed "Assaults." None of them excejjt sect. 43 implies 
 that any distinction between males and females is thought of, and that 
 section points to nothing of a sexual character. It merel}- provides 
 that in cases of assault upon males under fourteen and upon females 
 generall}', if the assault or batterj' is of such an aggravated character 
 that it cannot in the opinion of the justices be sufficiently punished as a 
 common assault or batter}', it shall be lawful for them to inflict a heavier 
 punishment. Indecent assaults, as such, upon females are dealt with 
 by sect. 52, and upon males by sect. 62, and there is therefore no 
 ground for supposing that anything speciallj' between the sexes is 
 pointed at either by this section, or by an}" of those in the group to 
 whic;h it belongs. The next group of eight sections (48-55) is headed 
 "Rape, abduction, or defilement of women," and deals specialh' with 
 sexual crimes. Sureh' this was the place in which to find an enact- 
 ment dealing with the very peculiar circumstances now before us, and 
 it cannot really have been intended that they should be embraced b;,- a 
 section whose terms are applicable to, and as it seems to me satisfied 
 by, the class of cases which would naturally occur to one's mind, those 
 of direct violence. The worst of the contagious diseases of this class 
 has, I believe, been known m this country for close upon four centuries. 
 The circumstances which have happened in this case cannot have been 
 of infrequent occurrence during that Interval, and cannot have failed 
 justlv to give rise to the bitterest resentment. It seems to mj- mind a 
 verv cogent argument against the conviction that, if the view of the 
 law upon which it is founded be correct, thousands of offending hus- 
 bands, and as I think also of offending wives, must have rendered 
 themselves amenable to the criminal law ; and yet it was reserved for 
 the year 1866, when Reg. v. Bennett (4 F. & F. 1105) was decided, to 
 discover that such transgressors might have been indicted and crimi- 
 nallv dealt with during all that long period. It is true that women take 
 a different place in social position, and have by Act of Parliament 
 many rights and by common usage much social liberty which no one 
 would have claimed for them centuries ago. This fact, however, seems 
 to me a strangelv insufficient reason for a new reading of the criminal 
 law fraught with consequences which no one can deny to be of a very 
 serious and widespread character. The principle upon which a convic- 
 tion in this case must be upheld will or will not apply to the intercourse 
 of unmarried, as well as of married, men and women, according to the 
 ground or grounds selected upon which to justify it. If it is based
 
 200 KEGINA V. CLARENCE. [CHAP. III. 
 
 upon the notion of cruelt}' as understood in the Divorce Court, the 
 ease of the unmarried man and woman falls without its purview. If 
 suppression of the truth be a material element in the inquiry, actual 
 misrepresentation on the subject of health would put an unmarried 
 man or woman in the same position as the married man or woman 
 who conceals that fact against which the married state ought to be a 
 sufficient guarantee. I intentionally refer to women as well as men, 
 for it is a great mistake to look at questions of this kind as if sexual 
 faults and transgressions were all on the side of one sex. The unmar- 
 ried woman who solicits and tempts a perhaps reluctant man to inter- 
 course which he would avoid like death itself if he knew the truth as to 
 her health, must surely, under some circumstances at least, come under 
 the same criminal liability as the same man. If, again, the conviction 
 be upheld on the ground of the difference between the thing consented 
 to and the thing done, the principle will extend to many, perhaps most, 
 cases of seduction and to other forms of illicit intercourse, including at 
 least theoretically the case of prostitution ; and if such difference be 
 the true ground upon which to base a confirmation of the conviction, 
 knowledge of his or her condition on the part of the person affected 
 is immaterial. It is the knowledge or want of knowledge on the part 
 of the person who suffers from contagion alone that is the material 
 element. Surely these considerations point to the conclusion that a 
 wide door will be opened to inquiries not of a wholesome kind, m 
 which the difficulties in the way of arriving at truth are often enor- 
 mous, and in which the danger of going wrong is as great as it is by 
 people in general inadequately appreciated. A new field of extortion 
 may be developed, and very possibly a fresh Illustration afforded of 
 the futility of trying to teach morals by the application of the criminal 
 law to cases occupying the doubtful ground between immorality and 
 crime, and of the dangers which always beset such attempts. Of 
 course, if by legislation such cases should be brought within the crim- 
 inal law, all we shall have to do will be to face the difficulties and do 
 our best to administer the law. It seems to me, however, that such 
 an extension of the criminal law to a vast class of cases with which it 
 has never yet professed to deal is a matter for the Legislature and the 
 Legislature only. I understand the process of expansion by which 
 the doctrines of the common law are properly made by judicial con- 
 struction to apply to altered modes of life and to new circumstances 
 and results thus brought about which would have startled our ancestors 
 could they have foreseen them. I do not understand such a process, 
 and I do not think it legitimate, when every fact and every circum- 
 stance which goes to constitute the alleged offence is identical with 
 what it has been for many hundreds of years past. Whether further 
 legislation in this direction is desirable is a question for legislators rather 
 than lawyers, and the only remark that I desire to make upon this sub- 
 ject is that, apart from cases of actual violence, and of children so
 
 SECT. III.] REGINA V. CLARENCE. 201 
 
 3'oung that the very fact of touching them In the wa}- of sexual rela- 
 tion ma}- fixirly be treated as a crime, the mysteries of sexual impulses 
 and intercourse are well nigh insoluble, and the diflicultv of arrivino- at 
 the truth in the case of imputed misconduct enormous ; and I doubt 
 whether the}' can be thoroughly appreciated without the experience 
 gained by trying cases of intercourse with girls near the age of six- 
 teen, and they certainly suggest the necessity of the utmost care in 
 dealing by wa}' of legislation with the subject under discussion. If 
 intercourse under the circumstances now in question constitute an 
 assault on the part of the man, it must constitute rape, unless, indeed, 
 as between married persons rape is impossible, — a proposition to which 
 I certainh' am not prepared to assent, and for which there seems to me 
 to be no sufficient authority. As between unmarried people this quali- 
 fication will not apply. I cannot understand wh}', as a general rule, if 
 intercourse be an assault, it should not be a rape. To separate the 
 act into two portions, as was suggested in one of the Irish cases, and 
 to say that there was consent to so much of it as did not consist in the 
 administration of an animal poison, seems to me a subtlet}' of an ex- 
 treme kind. There is, under the circumstances, just as much and just 
 as little consent to one part of the transaction as to the rest of it. No 
 one can doubt that in this case, had the truth been known, there would 
 have been no consent or even a distant approach to it. I greath' prefer 
 the reasoning of those who say that, because the consent was not to 
 the act done, the thing done is an assault. If an assault, a rape also, 
 as it appears to me. I am well aware of the respect due to the opinion 
 of the very learned judges from whom I differ ; but I cannot help say- 
 ing that to me it seems a strange misapplication of language to call 
 such a deed as that under consideration either a rape or an assault. In 
 other words, it is, roughly speaking, where the woman does not intend 
 that the sexual act shall be done upon her either at all, or, what is 
 pretty much the same thing, by the particular individual doing it ; and 
 an assault which includes penetration does not seem to me, under such 
 circumstances, to be anything but rape. Of course, the thing done in 
 the present case is wicked and cruel enough. No one wishes to say a 
 word in palliation of it. But that seems to me to be no reason for 
 describing it as something else than it is, in order to bring within the 
 criminal law an act which, up to a very recent time, no one ever 
 thought was within it. If coition, under the circumstances in question, 
 be an assault, and if the reason why it is an assault depends in any 
 degree upon the fact that consent would have been withheld if the 
 truth had been known, it cannot the less be an assault because no mis- 
 chief ensues to the woman, nor, indeed, where it is mereh' uncertain 
 whether the man be infected or not. For had he disclosed to the 
 woman that there might be the peril in question, she would, in most 
 cases other than that of mere prostitution, have refused her consent, 
 and it is, I should hope, equally true that a married woman, no less
 
 202 REGINA V. CLARENCE. [CHAP. III. 
 
 than an unmarried woman, would be justified in sucli a refusal. In all 
 such cases, therefore, apart from the suggested impossibility of rape 
 upon a wife, rape must be committed, and a great man}' rapes must be 
 constantly taking place without either of the parties having the least 
 idea of the fact. The question raised is of very wide application. It 
 does not end with the particular contagion under consideration, but 
 embraces contagion communicated by persons having small-pox or 
 scarlet fever, or other like diseases quite free from the sexual element, 
 and whilst so afflicted coming into a personal contact with others which 
 would certainl}' have been against the will of those touched had they 
 known the truth. This species of assault, if assault it be, must have 
 been of much longer standing than the four centuries I have alluded 
 to, and it involves no considerations depending upon the social status 
 of women, yet no one has ever been prosecuted for an assault so con- 
 stituted. But upon this point I desire only to express my concurrence 
 in the observations of m^- brother Stephen, which I have had the 
 opportunity of reading. I wish to observe that, if an assault can be 
 committed b}- coition to which consent has been procured by suppres- 
 sion of the truth or misrepresentation as to the state of health of one 
 of the parties, questions of the kind I have indicated will l)e triable, 
 may be tried now at petty sessions. The observation is not, of course, 
 conclusive ; but it is well to appreciate whither a conviction in the 
 present case must lead us, not only as regards the subject-matter of 
 the criminal Law, liut as to the tribunals which will have to administer 
 it. When the Act of 1861 (24 & 25 Vict. c. 100) was passed, it had 
 never occurred to any human being, so far as our legal history affords 
 any clue, that the circumstances now^ under consideration constituted 
 an assault. The term is as old as any in our law, but it had never 
 been so applied. The doctrine owes its origin to the remarks of 
 Willes, J., at the Taunton Assizes, held in 1866, and reported in Reg. 
 V. Bennett (4 F. & F. 1105). It was pointed out in the Irish case of 
 Hegarty v. Shine (Ir. L. Rep. 2 C. L. 273 ; C. A. Ir. L. Rep. 4 C. L. 
 288) that the conviction might be upheld, on the ground that the girl 
 was, as she alleged, asleep when intercourse took place, and thei'efore 
 gave no consent. In spite of all my respect for everything that fell 
 from the lips of that very great lawyer, I am compelled to think that 
 it was a case in which he strained the law for the purpose of punishing 
 a great wrong, and I confess myself unable to follow his view, that 
 the thing done in that case might be an assault and j'et not a rape. 
 Were it, however, possible that the mere words of the section would 
 appl}' to the transaction in question, and that it were capable of being 
 described as an assault, I am still of opinion that the context shows 
 that sexual crimes were intended to be dealt with as a class bj' them- 
 selves, the onlj- rational waj- of legislating upon such a subject ; and if 
 the letter of the section could be satisfied b^' the present circumstances, 
 there never was a case to which the maxim Qui hceret in literd hceret 
 m cortice more emphatically applied.
 
 SECT. III.] REGIXA V. CLAKENCE. 203 
 
 Hawkins, J., read the following judgment: I am of opinion that 
 the prisoner was rightly convicted upon both counts of the indictment. 
 Tlie first count was framed under sect. 20 of 24 & 25 Vict. c. 100, and 
 charged the prisoner with "unlawfully and maliciously inflicting sriev- 
 ous bodily harm " upon Selina Clarence. The second count was framed 
 under sect. 47 of the same Act, and charged him with an "assault" 
 upon the said Selina Clarence, "occasioning" her "actual bodily 
 harm." At the time of the committing of the offences charged Selina 
 Clarence was and still is the wife of the prisoner. At that time the 
 prisoner was suffering from gonorrhoea, as he knew, but his wife was 
 ignorant of the fact. In this condition of things the prisoner had 
 sexual intercourse with his wife, and in so doing communicated to her 
 his disease, and thereby caused her grievous bodily harm. It must 
 also be taken as a fact that, had the prisoner's wife known that he was 
 so suffering she would have refused to submit to such intercourse. On 
 the prisoner's behalf it was contended that the conviction was wrong 
 upon several grounds : first, that the injury caused to the wife was the 
 result of a lawful act. viz., the sexual communion of a husband with 
 his wife ; secondlj-, that the charge in the first count involved, and that 
 in the second count was based on, an assault, and that no assault 
 could be committed by a husband in merely exercising his marital 
 right upon the person of his wife ; and, thirdly, that the sections of the 
 statute under which the indictment was framed had no application to 
 such circumstances as those above mentioned. About the unlawfulness 
 and maliciousness of the prisoner's conduct it seems to me impossible 
 to raise a doubt. It has long been established b}' authority that, if a 
 husband knowingly communicates to his wife a venereal disease, such 
 misconduct amounts to legal crueltj-, and is ground for judicial separa- 
 tion ; and, in tlie absence of evidence to the contrary, it may be pre- 
 sumed that a man suffering under venereal disease knows it, and knows 
 also that, if he has comuiunion with his wife, he will in all human 
 probability communicate his maladj' to her (see Brown v. Brown, L. 
 Rep. 1 P. & D. 46). It is equally clear that wilfull}' to do an unlawful 
 act to the prejudice of another is to do it maliciouslj'. We have, then, 
 these elements established, grievous bodily harm unlawfull}' and 
 maliciously caused. ... I proceed now to consider the question 
 whether there was in fact an assault by the prisoner on his wife occa- 
 sioning her either grievous or actual bodil}' harm. I answer this 
 question also in the affirmative. By the marriage contract a wife no 
 doubt confers upon her husband an irrevocable privilege to have sexual 
 intercourse with her during such time as the ordinary relations created 
 b}' such contract subsist between them. For this reason it is that a 
 husband cannot be convicted of a rape committed b}- him upon the 
 person of his wife. But this marital privilege does not justify a hus- 
 band in endangering his wife's health and causing her grievous bodil}^ 
 harm by exercising his marital privilege when he is suffering from 
 venereal disorder of such a character that the natural consequence of
 
 204 EEGINA V. CLARENCE, [CHAP. III. 
 
 such communion will be to communicate the disease to her. Lord 
 Stowell, in Popkin v. Popkin, cited in Durant v. Durant (1 Hagg. Eccl. 
 Rep. 767), said : " The husband has a right to the person of his wife, 
 but not if her health is endangered." So, to endanger her health, 
 and cause her to suffer from loathsome disease contracted through his 
 own infidelity cannot, b}- the most liberal construction of his matri- 
 monial privilege, be said to fall within it ; ahd, although I can cite no 
 direct authority upon the subject, I cannot conceive it possible seri- 
 ously to doubt that a wife would be justified in resisting by all means 
 in her power — nay, even to the death, if necessary — the sexual em- 
 braces of a husband suffering from such contagious disorder. In my 
 judgment, wilfully to place his diseased person in contact with hers 
 without her express consent amounts to an assault. It has been 
 argued that, to hold this, would be to hold that a man who, suffering 
 from gonorrhoea, has communion with his wife might be guilty of the 
 crime of rape. I do not think this would be so. Rape consists in a 
 man having sexual intercourse with a woman without her consent, and 
 the marital privilege being equivalent to consent given once for all at 
 the time of marriage, it follows that the mere act of sexual communion 
 is lawful ; but there is a wide difference between a simple act of com- 
 munion which is lawful and an act of communion combined with infec- 
 tious contagion endangering health and causing harm which is unlawful. 
 It may be said that, assuming a man to be diseased, still, as he cannot 
 have communion with his wife without contact, the communication of 
 the disease is the result of a lawful act, and therefore cannot be crim- 
 inal. My reply to this argument is that if a person, having a privilege 
 of which he may avail himself or not at his will and pleasure, cannot 
 exercise it without at the same time doing something not included in 
 this privilege, and which is unlawful and dangerous to another, he 
 must either forego his privilege or take the consequences of his unlaw- 
 ful conduct. I may further illustrate my view upon this part of the 
 case by applying, by way of test, to an indictment for assault the old 
 form of civil pleadings. Thus : Indictment for an assault ; plea of 
 justification, that the alleged assault was the having sexual communion 
 with the prosecutrix, she being the prisoner's wife; new assignment, 
 that the assault charged was not that charged in the plea, but the un- 
 lawful and malicious contact of her person with dangerous and contagious 
 disease. What possible justification could be pleaded or answer given 
 to such new assignment? I ought perhaps to state that, even if to hold 
 a husband liable for an assault under such circumstances would be to 
 subject him also to a charge of rape, the opinion I have above expressed 
 would not be changed. No jury would be found to convict a husband 
 of rape on his wife except under very exceptional circumstances, any 
 more than they would convict of larceny a servant who stealthily 
 appropriated to her own use a pin from her mistress's pincushion. I 
 can, however, readily imagine a state of circumstances under which a 
 nusband mioht deservedly be punished with the penalty attached U
 
 SECT. III.] REGINA V. CLARENCE. 205 
 
 rape, and a person committing a theft even of a pin to the penalty 
 attached to larceny. The cases put of a person sudering from small- 
 pox, diphtheria or an}- other infectious disorder, thoughtlessly giving a 
 wife or child a mere atlectionate kiss or shake of the luuid from which 
 serious consequences never contemplated ensued, seem to me cases in 
 which it is impossible to suppose any criminal prosecution would be 
 tolerated, or could, if tolerated, result in a conviction ; but I can 
 picture to myself a state of things in which a kiss or shake of the 
 hand given b}' a diseased person, maliciously with a view to communi- 
 cate his disorder, might well form the subject of criminal proceedings. 
 I will not, however, stop to discuss such imaginar}' cases further. The 
 case of Reg. r. Bennett (4 F. & F. 1105), decided in 1866, is an 
 authority directly in support of the view I have taken. The indictment 
 was for an indecent assault on a girl who had consented to sleep with 
 the prisoner, who had connection with her, and communicated to her a 
 foul disease. Willes, J., before whom the case was tried, in summing- 
 up, told the jury that, though it would have been impossible to have 
 established rape, yet if the girl did not consent to the aggravated cir- 
 cumstances — i. e., to connection with a diseased man — his act would 
 be an assault. Willes, J., no doubt, according to the report, based his 
 observations upon the tule that fraud vitiates consent ; but it is clear 
 bis mind was alive to the point I have been considering, viz., that, 
 though there might be such consent to sexual intercourse as to make 
 the connection no rape, nevertheless, the infectious contact might 
 amount to an assault. See also Hegarty v. Shine, 14 Cox C. C. 124; 
 s. c. C. A. ib. 145 ; and Reg. v. Sinclair, 13 Cox C. C. 28. In dealing 
 with this case my judgment is not based upon the doctrine that fraud 
 vitiates consent, because I do not think that doctrine applies in the 
 case of sexual communion between husband and wife. The sexual 
 communion between them is b}' virtue of the irrevocable privilege con- 
 ferred once for all on the husband at the time of the marriage, and 
 not at all by virtue of a consent given upon each act of communion, as 
 is the case between unmarried persons. My judgment is based on the 
 fact that the wrongful act charged against the prisoner was not involved 
 in or sanctioned by his marital privilege, and was one for which no 
 consent was ever given at all. For this I'eason it is unnecessary to 
 discuss or express any opinion upon the various cases cited during the 
 argument relating to connection obtained by fraud, and I accordingly 
 abstain from doing so. Another argument used for the prisoner was 
 that such cases as the present were not contemplated b}- the statute 
 under which he was indicted, and it was also said that, if it had been 
 intended that the communication of a venereal disease to a woman 
 during an act of sexual intercourse, consented to by her, should be 
 punishable as a crime, some special enactment to that effect would 
 have been introduced into one or other of the Acts of Pailiament relat- 
 ing to women and offences against them. This is an argument to 
 which I attach no weight, assuming the facts bring the case within the
 
 206 BEGIN A V. CLARENCE. [CHAP. III. 
 
 fair interpretation of the sections to which I have referred. Moreos-er, 
 I may point out that Reg. v. Bennett (4 F. & F. 1105), to which I 
 have referred, was tried in the year 1866, and it is strange, if the 
 law as there laid down was thought to be contrary to the law of 
 the land or to the intention of the Legislature, that in no subse- 
 quent legislation during the twenty-two years which have since elapsed 
 has any enactment been introduced in which an}- expression is to 
 be found indicative of a disapproval of that decision or that the 
 intention of the statute was at variance with it. I think the Legisla- 
 ture contemplated the punishment of all grievous bodil}' harm, however 
 caused, if caused unlawfuU}- and maliciously ; and I cannot bring my 
 mind for an instant to believe that, even had the circumstances before 
 us been present to the minds of the framers of the Act, the}' would 
 have excluded from its operation an offence as cruel and as contrary- to 
 the obligation a man owes to his wife to protect her from harm as can 
 well be conceived. It has been urged that the case of husband and 
 wife does not differ from that of unmarried persons, and that to affirm 
 this conviction would tend to encourage undesirable prosecutions where 
 disease has been communicated during illicit communion. I do not b}' 
 any means assent to these propositions. I think the two cases are 
 substantially different. The wife submits to her husband's embraces 
 because at the time of marriage she gave him an irrevocable i-ight to 
 her person. The intercourse which takes place between husband and 
 wife after niarringo is not by virtue of any special consent on her part,. 
 but in mere submission to an obligation imposed upon her by law. Con- 
 sent is immaterial. In the case of unmarried persons, however, consent 
 is necessar}' previous to every act of communion, and if a common 
 prostitute were to charge with a criminal offence a man who, in having 
 had connection with her had infected her with disease, few juries would 
 under ordinary circumstances hesitate to find that each party entered 
 into the immoral communion tacitly consenting to take all risks. In 
 the case of women other than prostitutes, the circumstances of each 
 particular case would have to be considered, and the question how far 
 fraud vitiates consent to such communion would also have to be dealt 
 with. In such cases, too, shame would deter most decent women from 
 appealing to the law ; and, if a man were the sufferer, seldom would he 
 incur the ridicule and exposure which would be brought upon him. 
 Considering how few prosecutions have been instituted for such causes 
 since the decision in Reg. v. Bennett (4 F. & F. 1105), and enter- 
 taining moreover, as I do, a doubt whether any person, man or 
 woman, could, as against the public interests, consent to the inflic- 
 tion of grievous bodily harm, so as to give a legal defence to a crim- 
 inal prosecution, although such consent might afford a good defence 
 to a civil action, I do not see any reason for such fears on the subject 
 as have been entertained. Anyhow they cannot affect the law. Forti- 
 fied in my opinion, as I believe myself to be, by the plain words of the 
 statute, and by the authority of Willes, J., one of the greatest and most
 
 SECT. 111.] EEGINA V. BARROW. 207 
 
 accurate lawyers of modern times, 1 have arrived at the conclusion 
 that this conviction is right and in accordance witli the law, and 1 can- 
 not therefore be a party to a judgment which in effect would proclaim 
 to the world that by the law of England in this year 1888 a man may 
 deliberately, knowingly, and maliciously perpetrate upon the body of 
 his wife the abominable outrage charged against the prisoner, and yet 
 not be punishable criminally for such atrocious barbarit}'. I may state 
 that this judgment has been read by my brother Day, who requests me 
 to say that he thoroughly concurs in it.^ 
 
 REGINA V. BARROW. 
 
 Ckown Case Reserved. 18G8. 
 
 [Reported L. R. 1 Crotcn Cases Reserved, 1 56.] 
 
 The following case was stated by Kelly, C. B. : — 
 
 This was an indictment for a rape. The question is whether the 
 offence as proved amounted in point of law to a rape. This question 
 depended entirely upon the evidence of the prosecutrix, Harriet Gel- 
 dart, which was as follows : — 
 
 " I and my husband lodge together at William Garner's. We sleep 
 upstairs on the first floor, and were in bed together on the night 
 of Saturday, the 21st of June. I went to bed about 12 o'clock, and 
 about 2 o'clock on Sunday morning I was lying in bed, and my 
 husband beside me. I had my baby in my arms, and was between 
 waking and sleeping. I was completely awakened by a man having 
 connection with me, and pushing tlie bal^y aside out of my arms. He 
 was having connection with me at the moment when I completely 
 awoke. I thought it was m}- husband, and it was while I could count 
 five after I completely awoke before I found it was not my husband. 
 A part of my dress was over my face, and I got it off, and he was 
 moving away. As soon as I found it was not my husV>and, I pulled 
 my husband's hair to wake him. The prisoner jumped off tlie bed." 
 
 On cross-examination she added, " Till I got my dress off my face I 
 thought it was my husband. After he had finished I pulled the dress 
 oflT my face. I was completely awakened by the man having connec- 
 tion with me and the baby being moved." On re-examination she said, 
 " The baby was pushed on further into the bed." 
 
 The jury found this evidence, as I have stated it, to be true. 
 
 Upon these facts the prisoner's counsel, Mr. Cottingham, submitted 
 that the indictment was not sustained, and quoted 1 Russell on Crimes, 
 ed. of 1843, p. 677; Rex y. Jackson, Russ. & Ry. 487 ; Reg. v. Saun- 
 ders, 8 C. & P. 265 ; Rex v. Williams, 8 C. & P. 286 ; Reg. v. Camp- 
 
 1 Smith, Stephen, and Manisty, JJ., Pollock, B., and Coleridge, C. J., also 
 delivered opinions against the conviction. Mathew and Grantham, JJ., and 
 Huddleston, B., agreed. Field, J., also delivered an opinion supporting the con- 
 viction, and Day and Charles, JJ., agreed. See, contra. Keg. r.Bennett, 4 F. & F, 
 1105; Reg. v. Sinclair, 13 Cox C. C. 28. — Ed.
 
 208 REGINA V. BARROW. [CHAP. III. 
 
 lin, 1 Den. C. C. 89. Reg. v. Fletcher, 8 Cox C. C. 131, was also 
 
 referred to. 
 
 I thought, especially on the authority of the judgment delivered by 
 Lord Campbell in Reg. v. Fletcher, 8 Cox C. C. 131, that the case 
 was made out, inasmuch as it was sufficient that the act was done by 
 force and without consent before or afterwards ; that the act itself, 
 coupled witli the pushing aside the child, amounted to force ; and there 
 was certainly no consent before, and the reverse immediately after- 
 wards ; but I reserved the point for the Court of Criminal Appeal. 
 
 No counsel appeared on either side. 
 
 BoviLL, C. J. We have cai-e fully considered the facts as stated in 
 this case. It does not appear that the woman, upon whom tlie offence 
 was alleged to have been committed, was asleep or unconscious at the 
 time when the act of connection commenced. It must be taken, thei"e- 
 fore, that the act was done with the consent of the prosecutrix, though 
 that consent was obtained by fraud. It falls, therefore, within the 
 class of cases which decide that, where consent is obtained by fraud, 
 the act done does not amount to rape. 
 
 Channell, B., Byles, Blackburn, and Lush, JJ., concurred.^ 
 
 Conviction quashed. 
 
 1 Now, rape being defined to be sexual connection with a woman without her 
 consent, or without and therefore against her will, it is essential to consider what is 
 meant and intended by consent. Does it mean an intelligent, positive concurrence of 
 the will of the woman, or is the negative absence of dissent sufficient ? In these sur- 
 gical cases it is held that the submission to an act believed to be a surgical operation 
 does not constitute consent to a sexual connection, being of a wholly different charac- 
 ter; there is no consensus quoad hoc. In the case of personation there is no consensus 
 quoad luinc personam. Can it be considered that there is a consent to the sexual con- 
 nection, it being manifest that, had it not been for tlie deceit or fraud, the woman 
 would not have submitted to the act ? In the cases of idiocy, of stupor, or of infancy, it 
 is held that there is no legal consent, from tlie want of an intelligent and discerning will. 
 Can a woman, in the case of personation, be regarded as consenting to the act in the 
 exercise of an intelligent will ? Does she consent, not knowing the real nature of the 
 act ? As observed by Mr. Curtis, she intends to consent to a lawful and marital act, 
 to which it is her duty to submit. But did she consent to an act of adultery ? Are 
 not the acts themselves wholly different in their moral nature ? The act she per- 
 mitted cannot properly be regarded as the real act which took place. Therefore the 
 connection was done, in my opinion, without her consent, and the crime of rape was 
 constituted. I therefore am of opinion that the conviction should stand confirmed.— 
 May, C. J., in Reg v. Dee, 15 Cox C. C. 579, 587. 
 
 In accordance with the principal case, see Reg. v. Fletcher, 10 Cox C. C. 248 ; Don 
 Moran v. People, 25 Mich. 356 ; Wyatt v. State, 2 Swan, 394. — Ed.
 
 SECT. III.] COMMONWEALTH V. STRATTOIST. 209 
 
 WRIGHT'S CASE. 
 
 Leicester Assizes. 1004. 
 [Reported Co. Lit. 127 a.] 
 
 In my circuit in anno 1 Jacobi regis, in the county of Leicester, one 
 Wriglit, a young, strong, and lustie rogue, to make himselfe impotent, 
 thereby' to have the more colour to begge or to be relieved without put- 
 ting himselfe to any labour, caused his companion to strike off his left 
 hand ; and both of them were indicted, fined, and ransomed there- 
 fore, and that by the opinion of the rest of the justices for the cause 
 aforesaid. 
 
 COMMONWEALTH v. STRATTON. 
 Supreme Judicial Court of Massachusetts. 1873. 
 
 [Reported 114 Massachusetts, 303.] 
 
 Indictments, each charging that the defendant, upon a certain young 
 woman in the indictment named, made an assault and administered to 
 her a large quantity of cantharides, " the same being ... a deleterious 
 and destructive drug," with intent to injure her health, whereby she 
 became sick, and her life was despaired of. Both cases were tried 
 together. 
 
 It appeared at the trial in the Superior Court, before Devens, J., 
 that the defendant, in company with another 3'oung man, called upon 
 the young women in the indictments named, and during the call offered 
 them some figs, w^iich they ate, they having no reason to suppose that 
 the figs contained any foreign substance ; that a few hours after, both 
 young women were taken sick, and suffered pain for some hours ; that 
 the defendant and his companion had put into the figs something they 
 had procured b}' the name of "love powders," which was represented 
 by the person of whom they got it to be perfectly harmless. 
 
 Tiiere was evidence that one of the ingredients of these powders was 
 cantharides, and that this would tend to produce sickness like that 
 which the young women suffered. 
 
 The Court instructed the jiir}- that if it was shown beyond a reason- 
 able doubt '• that the defendant delivered to the women a harmless arti- 
 cle of food, as figs, to be eaten by them, he well knowing that a foreign 
 substance or drug was contained therein, and concealing the fact, of 
 which he knew the women to be ignorant, that such foreign substance 
 or drug was contained therein, and the women eating thereof by the in- 
 vitation of the defendant were injured in health by the deleterious char- 
 acter of the foreign substance or drug therein contained, the defendant 
 should be found guilty of an assault upon them, and this, although he 
 did not know the foreign substance or drug was deleterious to health, 
 had been assured that it was not, and intended only to try its effect 
 upon them, it having been procured by him under the name of a ' love
 
 210 COMMONWEALTH V. STKATTON. [CHAP. III. 
 
 powder,' and he being ignorant of its qualities or of the effects to be 
 expected from it." 
 
 The jiuy found the defendant guilty of a simple assault in each case, 
 and he alleged exceptions. 
 
 W. Colburn, for the defendant. 
 
 C. H. Traill, Attorney-General, for the Commonwealth. 
 
 Wells, J. All the judges concur that the evidence introduced at 
 the trial would warrant a conviction of assault and batter}- or for a sim- 
 ple assault, which it includes ; and in the opinion of a majority of the 
 court, the instructions given required the jur\' to find all that was es- 
 sential to constitute the offence of assault and battery. 
 
 The jury must have found a physical injur\- inflicted upon another 
 person by a voluntary act of the defendant directed toward her, which 
 was without justification and unlawful. Although the defendant was 
 io-norant of the qualities of the drug he administered and of the effects 
 to be expected from it, and had been assured and believed that it was 
 not deleterious to health, yet he knew it was not ordinary food, that 
 the girl was deceived into taking it, and he intended that she should 
 be induced to take it without her conscious consent, hy the deceit 
 which he practised upon her. It is to be inferred from the statement 
 of the case that he expected that it would produce some effect. In the 
 most favorable aspect of the facts for the defendant he administered 
 to the girl, without her consent and by deceit, a drug or " foreign sub- 
 stance," of the probable effect of which he was ignorant, with the ex- 
 press intent and purpose " to ivy the effect of it upon" her. This in 
 itself was unlawful, and he must be held responsible for whatever effect 
 it produced. Being an unlawful interference with the personal rights 
 of another, calculated to result- and in fact resulting in physical injury, 
 the criminal intent is to be inferred from the nature of the act and its 
 actual results. 3 Bl. Com. 120; Rex v. Long, 4 C. & P. 398, 407, 
 note. The deceit, b}' means of which the girl was induced to take the 
 drug, w\is a fraud upon her will, equivalent to force in overpowering 
 it. Commonwealth v. Burke, 105 Mass. 376; Regina v. Lock, 12 
 Cox C. C. 244; Regina v. Sinclair, 13 Cox C. C. 28. 
 
 Although force and violence are included in all definitions of assault, 
 or assault and batter}-, yet where there is physical injury to another 
 person, it is sufficient that the cause is set in motion by the defendant, 
 or that the person is subjected to its operation by means of any act or 
 control which the defendant exerts. In 3 Chit. Crira. Law, 799, is a 
 count, at common law, for an assault with drugs. For other instances 
 of assault and battery without actual violence directed against the per- 
 son assaulted, see 1 Gabbett's Crim. Law, 82 ; Rose. Crira. Ev. (8th 
 ed.) 296 ; 3 Bl. Com. 120 and notes ; 2 Greenl, Ev. § 84. 
 
 If one should hand an explosive substance to another and induce 
 him to take it by misrepresenting or concealing its dangerous qualities, 
 and the other, ignorant of its character, should receive it and cause it
 
 SECT. III.] KEGINA V. MAKTIN. 211 
 
 to explode in his pocket or hand, and should be injured bj it, the offend- 
 ing party would be guilty of a batter}', and that would necessarily- in- 
 clude an assault ; although he might not be guilty even of an assault, 
 if the substance failed to explode or failed to cause any injury. It 
 would be the same if it exploded in his mouth or stomach. If that 
 which causes the injury is set in motion by the wrongful act of the de- 
 fendant, it cannot be material whether it acts upon the person injured 
 externally or internally, by mechanical or chemical force. 
 
 In Regina v. Button, 8 C. & P. 660, one who put Spanish flies into 
 coffee to be drunk by another was convicted of an assault upon the per- 
 son who took it, although it was done " only for a lark." This decision 
 is said to have been overruled in England. Regina v. Dilworth, 2 
 Mood. & Rob. 531 ; The Queen v. Walkden, 1 Cox C. C. 282 ; Re- 
 gina V. Hanson, 2 C. «& K. 912. In the view of the majority of the 
 court, the last only of these three cases was a direct adjudication, and 
 that entirely upon the authority of mere dicta in the other two and 
 without any satisfactory reasoning or statement of grounds ; and the 
 earlier decision in Regina v. Button is more consistent with general 
 principles, and the better law.^ Exceptions overruled. 
 
 REGINA V. MARTIN. 
 Crown Case Reserved. 1840. 
 
 [Reported 2 Moodij, 123.] 
 
 The prisoner was tried before Mr. Baron Alderson upon an indict- 
 ment, the first count of which charged him with carnally knowing and 
 abusing Esther Ricketts, a girl above ten and under twelve years of age. 
 
 The second count was for an assault on Esther Ricketts with intent 
 carnally to know and abuse her. The third count was for a common 
 
 assault. 
 
 Godson, for the prisoner, contended that, supposing the fact to have 
 been done by the consent of the prosecutrix, no conviction could take 
 place on the second and third counts. 
 
 The learned judge left the question to the jury, who found the fact 
 that the prosecutrix had consented ; and he then directed a verdict of 
 guilty on the ground that the prosecutrix was by law incapable of giving 
 her consent to what would be a misdemeanor by statute. 
 
 But as Godson stated that the point was doubtful and had been 
 otheVwise decided before, the learned judge respited the judgment. 
 1 Ace. Carr v. State (Ind.), 34 N. E. 533. —Ed.
 
 212 REGINA V. BKADSHAW. [CHAP. III. 
 
 It appeared to the learned judge clear that if the indictment had 
 charged an attempt to conunit the statutable misdemeanor, the pris- 
 oner would clearl\- have been liable to conviction ; but the learned judge 
 was not free from doubt as to the present case, in which an assault was 
 charged. 
 
 This case was considered at a meeting of the judges in Hilarv term, 
 1840, and thej- all thought that the proper charge w^as of a misdemeanor 
 in attempting to commit a statutable offence, and that the conviction 
 
 was wrong, 
 
 C3 
 1 
 
 REGINA V. BRADS HAW. 
 Leicester Assizes. 1878. 
 
 [Reported 14 Cox C. C. 83.] 
 
 William Bradshaw was indicted for the manslaughter of Herbert 
 Dockerty, at Ashb3'-de-la-Zouch, on the 28th da^' of February. 
 
 The deceased met with the injurj' which caused his death on the 
 occasion of a football match played between the football clubs of Ashby- 
 de-la-Zouch and Coalville, in which the deceased was a pla3'er on the 
 Ashb}' side, and the prisoner was a player on the Coalville side. The 
 game was played according to certain rules known as the " Association 
 Rules." ^ After the game had proceeded about a quarter of an hour, 
 the deceased was " dribbling" the ball along the side of the ground in 
 the direction of the Coalville goal, when he was met b}' the prisoner, 
 who was running towards him to get the ball from him or prevent its 
 further progress ; both pla3-ers were running at considerable speed ; on 
 approaching each other, the deceased kicked the ball beyond the pris- 
 oner, and the prisoner, by way of " charging" the deceased, jumped in 
 the air and struck him with his knee in the stomach. The two met, 
 not directly but at an angle, and both fell. The prisoner got up un- 
 hurt, but the deceased rose with difficult}- and was led from the ground. 
 He died next day after considerable suffering, the cause of death being 
 a rupture of the intestines. 
 
 1 " It is a presumption of law that a giil under ten years of age is incapable of con- 
 senting to the offence of rape (Pen. Code, sec. 261); and as such an offence Includes an 
 attempt to commit it, accompanied by such force and violence upon the person as con- 
 stitutes an a.ssault, a girl under ten years of age is incapable in law of consenting to 
 the assault in connection with the attempt to commit the offence. "Whether the girl 
 in fact consented or resisted is therefore immaterial. Being incapable of consenting to 
 an act of carnal intercourse, it was criminal for the defendant to make an assault upon 
 her to commit such an act." McKee, J., in People v. Gordon, 70 Cal. 467, 468. — Ed. 
 
 2 Etherington Smith, in opening the case for the prosecution, was proceeding to ex- 
 plain the "Association Eules " to the jury, and to comment upon the fact of whether 
 the prisoner was or was not acting within those rules, when Bramwell, L. J., inter- 
 posed, saying, " Whether within the rules or not the prisoner would be guilty of man- 
 slaughter if while committijig an unlawful act he caused the deatli of the deceased."
 
 SECT. III.] REGINA V. BRADSHAW. 213 
 
 Witnesses were called from both teams whose evidence differed as to 
 some particulars, those most unfavorable to the prisoner alleghig that 
 the ball had been kicked by the deceased and had passed the prisoner 
 before he charged ; that the prisoner had therefore no right to charge 
 at the time he did ; that the charge was contrary to the rules and prac- 
 tice of the game and made in an unfair manner, with the knees protrud- 
 ing ; while those who were more favorable to the prisoner stated that 
 the kick by the deceased and the charge by the prisoner were simultan- 
 eous, and that the prisoner had therefore, according to the rules and 
 practice. of the game, a right to make the charge, though these wit- 
 nesses admitted that to charge by jumping with the knee protruding 
 was unfair. One of the umpii-es of the game stated that in his opinion 
 nothing unfair had been done.-*^ 
 
 Bkamavell, L. J., in summing up the case to the jury, said : " The 
 question for you to decide is whether the death of the deceased was 
 caused by the unlawful act of the prisoner. There is no doubt that the 
 prisoner's act caused the death, and the question is whether that act 
 was unlawful. No rules or practice of any game whatever can make 
 that lawful which is unlawful b}' the law of the land ; and the law of 
 the land says you shall not do that which is hkel}' to cause the death of 
 another. For instance, no persons can by agreement go out to fight 
 with deadly weapons, doing by agreement what the law says shall not 
 be done, and thus shelter themselves from the consequences of their 
 acts. Therefore, in one way you need not concern yoursiilves with the 
 rules of football. But, on the other hand, if a man is playing accord- 
 ing to the rules and practice of the game and not going beyond it, it 
 may be reasonable to infer that he is not actuated by any malicious 
 motive or intention, and that he is not acting in a manner which he 
 knows will be likely to be productive of death or injury. But, inde- 
 pendent of the rules, if the prisoner intended to cause serious hurt to 
 the deceased, or if he knew that in charging as he did he might produce 
 serious injur}', and was indifferent and reckless as to whether he would 
 produce serious injury or not, then the act would be unlawful. In 
 either case he would be guilt}' of a criminal act, and you must find him 
 guilty ; if you are of a contrar}' opinion 30U will acquit him." His 
 lordship carefully reviewed the evidence, stating that no doubt the 
 game was, in an}' circumstances, a rough one ; but he was unwilling to 
 decry the manly sports of this countr}', all of which were no doubt 
 attended with more or less danger. " Verdict, Not guilty. 
 
 ^ Arguments of counsel are omitted.
 
 214 COMMONWEALTH V. COLLBERG. [CHAP. III. 
 
 COMMONWEALTH v. COLLBERG. 
 Supreme Judicial Court of Massachusetts. 1875. 
 
 [Reported 119 Mass. 350.] 
 
 Two indictments : one for an assault and batteiT by Benjamin F. 
 CoUberg upon Charles E. Phenix ; and the other for an assault and bat- 
 tery by Phenix upon CoUberg. Both indictments were founded upon 
 and supported by the same evidence. 
 
 At the trial of the two indictments in the Superior Court before 
 Lord, J., there was evidence for the Commonwealth tending to show 
 that about six o'clock on the evening of Sunday, August 22, 1875, 
 CoUberg and Phenix met near the station of the Boston and Maine 
 Railroad in Maiden and had a slight altercation, as a result of which 
 CoUberg bantered Phenix to fight him ; that Plienix declined on the 
 ground that he did not want to fight with his best clothes on, but said 
 that if CoUberg would wait until he could go home and change his 
 clothes, they would go to some place outside of the town and settle it ; 
 that thereupon Phenix did go home and change his clothes, and he and 
 CoUberg met at a retired place, remote from habitations and thorough- 
 fares, and fought with each other in the presence of some fifty or seventy- 
 five persons who had gathered there, and that the fight continued until 
 CoUberg said that he had enough, when it ceased and the parties went 
 home ; that the next day CoUberg and Phenix were a good deal bruised 
 and looked as if they had been fighting. 
 
 The defendants testified that they had been acquainted with each 
 other for a period of five or six years, during which time they had 
 always been on the most friendl}' terms, and were so at the time of the 
 act complained of, and subsequently ; that during the period of their 
 acquaintance they had engaged at various times in wrestling-matches 
 with each other, all of which had been carried on in a friendl}' spirit 
 and without engendering any ill feeling between them ; that on the day 
 mentioned in the indictment the}' met towards evening near the station 
 of the Boston and Maine Railroad in Maiden, where thej' had some talk 
 about a recent wrestling-match that had taken place in New York, and 
 growing out of this, as to previous contests of this character which had 
 taken place between them ; that after some talk about their matches, 
 they agreed to go then to some place where they should not disturb any 
 one and have another trial of their agility and strength in this direction ; 
 that they shortly afterwards went to such a place and engaged in a 
 " run and catch " wrestle with each other, without any anger or malice, 
 or any intention to do each other bodily harm ; that an}- injuries which 
 they inflicted upon each other were inflicted accidentally and by mutual 
 consent while voluntarily continuing in such contest. 
 
 There was no evidence of any uproar or outcries when the contest
 
 SECT. III.] COMMONWEALTH V. COLLBKKG. 215 
 
 took place, or that an}- one was disturbed thereb}-, except that the par- 
 ties were fighting in presence of a crowd of from fifty to one hundred 
 persons who had collected together. After the evidence was all in, the 
 defendants asked the judge to instruct the jury as follows : — 
 
 " If the jury are satisfied that whatever acts and things the defend- 
 ants did to each other they did by mutual consent, and that the struggle 
 between them was an amicable contest voluntarily continued on both 
 sides without anger or malice, and simply for the purpose of testing 
 their relative agility and strength, then there is no assault and battery, 
 and the defendants must be acquitted." 
 
 Tiie judge declined to give this instruction, but instructed the jury 
 upon this branch of the case in substance as follows : " That if the de- 
 fendants were simply engaged in a wrestling match, that being a lawful 
 sport, they could not be convicted of an assault and battery ; but if by 
 mutual agreement between themselves, previously made, they went to 
 a retired spot for the purpose of fighting with each other and for the 
 purpose of doing each other physical injury by fighting, with a view to 
 ascertain by a trial of their skill in fighting which was the best man, 
 and there engaged in a fight, each endeavoring to do and actually doing 
 all the physical injury in his power to the other, and if, in such contest, 
 each did strike the other with his fist for the purpose of injuring him, 
 each may properly be convicted of assault and battery upon the other, 
 although the whole was done by mutual arrangement, agreement, and 
 consent, and without anger on the part of either against the other." 
 
 To this instruction, and to the refusal of the judge to give the in- 
 struction prayed for, the defendants alleged exceptions. 
 
 G. S. Scammon, for the defendants. 
 
 W. C. Loring {C. JR. Train, Attorney-General, with him), for the 
 Commonwealth. 
 
 Endicott, J. It appears by the bill of exceptions that the parties 
 by mutual agreement went out to fight one another in a retired place, 
 and did fight in the presence of from fifty to one hundred persons. 
 Both were bruised in the encounter, and the fight continued until one 
 said that he was satisfied. There was also evidence that the parties 
 went out to engage in and did engage in a '' run and catch " wrestling 
 match. We are of opinion that the instructions given by the presiding 
 judge contained a full and accurate statement of the law. 
 
 The common law recognizes as not necessarily unlawful certain 
 manly sports calculated to give bodily strength, skill, and activity, and 
 " to fit people for defence, public as well as personal, in time of need." 
 Playing at cudgels or foils, or wrestling b}- consent, there being no 
 motive to do bodily harm on either side, are said to be exercises ol 
 this description. Fost. C. L. 259, 260; Com. Dig. Plead. 3 m. 18. 
 But prize-fighting, boxing-matches, and encounters of that kind serve 
 no useful purpose, tend to breaches of the peace, and are unlawful 
 even when entered into by agreement and without anger or mutual ill- 
 will. Fost. C. L. 260 ; 2 Greenl. on Ev. § 85 : 1 Steviheus N. P. 211.
 
 216 REX V. STRATTON. [CHAP. III. 
 
 If one part}' license another to beat him, such license is void, because 
 it is against the law. Matthew v. Ollerton, Comb. 218. In an action 
 for assault the defendant attempted to put in evidence that the plain- 
 tiff and he had boxed by consent, but it was held no bar to the action, 
 for boxing was unlawful, and the consent of the parties to fight could 
 not excuse the injury. Boulter v. Clark, Bull. N. P. 16. The same 
 rule was laid down in Stout v. Wren, 1 Hawks (N. C), 420, and in 
 Bell V. Hanslej', 3 Jones (N. C), 131. In Adams v. Waggoner, 33 
 Ind. 531, the authorities are reviewed, and it was held that it was no 
 bar to an action for assault that the parties fought with each other bj' 
 mutual consent, but that such consent ma}' be shown in mitigation of 
 damages. See Logan v. Austin, 1 Stew. (Ala.) 476. It was said by 
 Coleridge, J., in Regina v. Lewis, 1 C. & K. 419, that " no one is justi- 
 fied in striking another except it be in self-defence, and it ought to be 
 known that whenever two persons go out to strike each other, and do 
 so, each is guilty of an assault ; " and that it was immaterial who 
 strikes the first blow. See Rex v. Perkins, 4 C. & P. 537. 
 
 Two cases only have been called to our attention where a different 
 rule has been declared. In Champer v. State, 14 Ohio St. 437, it was 
 held that an indictment against A. for an assault and battery on B. was 
 not sustained by evidence that A. assaulted and beat B. in a fight at 
 fisticuffs, by agreement between them. This is the substance of the 
 report, and the facts are not disclosed. No reasons are given or cases 
 cited in support of the proposition, and we cannot but regard it as 
 opposed to the weight of authority. In State v. Beck, 1 Hill (S. C), 
 363, the opinion contains statements of law in which we cannot concur. 
 
 Exceptions overruled. 
 
 SECTION IV. 
 
 Fault of the Injured Party, 
 
 (d) CONTRIBUTOKY CrIME. 
 
 REX V. STRATTON. 
 Nisi Prius. 1809. 
 
 [Reported I Campbell, h49] 
 
 Indictment for a conspiracy to deprive one Thompson of the office 
 of secretary to the Philanthropic Annuity Society, and to prosecute
 
 SECT. IV.] REGINA V. . 217 
 
 liiin, witliout an\- reasonable or probable cause, for obtaining money 
 ii[)on false pretences. It appeared that tliis society is an unincorpor- 
 ated company, with transferable shares ; that there was a violent dis- 
 pute among tlie subscribers as to the choice of secretary ; tliat one 
 part}', headed by the defendants, cashiered the prosecutor ; that he 
 still went on collectuig subscriptions, and that they indicted him for 
 obtaining monej' upon false pretences, of which he was acquitted. 
 
 Lord Ellenbokougii. 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 probable 
 cause. I thought he was not guilty 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 societ}', to which he was secretary' ; whereas 
 no such society existed. The defendants must all be acquitted.^ 
 
 REGINA V. -. 
 
 Central Criminal Court. 1845. 
 
 [Reported 1 Cox C. C. 250.] 
 
 The defendant was indicted for uttering counterfeit coin. Evidence 
 was adduced to show that he had given a counterfeit sovereign to a 
 girl with whom he had had uitercourse. 
 
 Bodkin^ in opening the case for tlie prosecution, referred to R. v. 
 Page, 8 C. «fe 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, altliough 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 jur}' 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 
 
 1 See Rex v. Beacall, J C. & P. 454 ; Reg. v. Hunt, 8 C. & P. 642 ; Com. v. Smith, 
 129 Mass. 104. — Ed.
 
 218 REGINA V. HUDSON. [CHAP. III. 
 
 charged. We do not consider the decision of Lord Abinger to be in 
 point ; that was a case of charity ; at tlie 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 Epipliany 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 oflence 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 otlier persons to the jurors unknown, 
 by divers unlawful and fraudulent devices and contrivances, and by 
 divers false pretences, unlawfully to obtain from the said A. Rhodes 
 the sum of £'1 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 pen- 
 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 Smith, 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 
 the pen that he had taken out under the bottom of the prosecutor's 
 dnnking-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 
 
 1 Ace. Com. V. Woodbury, Thach. (Mass.) 47. 
 
 2 Contra, People v. Wilsou, 6 Johns. 320. — Ed.
 
 SECT, IV.] IJEGINA V. HUDSON. 219 
 
 up into the prosecutor's hand, and another pen with the pin fell into 
 his hand, and then the prisoners took his money. 
 
 Upon tliis evidence it was objected, on belialf of the prisoners, that 
 no offence within the meaning of the 8 & i) Vict. c. 109, was proved b)" 
 it, and tliat 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 tlie facts in evidence amounted to the 
 offence charged in the tliird count, and directed the jury to return a 
 separate verdict on eacli count, a case having been asked for by the 
 prisoners' counsel, for the consideration of the Court for Crown Cases 
 Reserved. 
 
 The jur}' 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 Reserved shall be 
 of opinion that the above facts in evidence constituted in law any one 
 of tlie offences charged m the indictment, and was evidence to go to the 
 jur}' in support thereof the verdict is to stand for such of the counts in 
 which the offence is laid to wliich 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 per se would con- 
 stitute the ordinary misdemeanor of false pretences. 
 
 Pollock, C. B. Why so? This is a count for conspirac}' to cheat 
 
 Price. Yes, b}' false pretences. 
 
 Channell, B. If the count had said merely to conspire, and had 
 omitted the words " b}- 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 any indictable 
 combination to cheat and defraud. 
 
 Channell, B. If two persons conspire to puff up the qualities of a 
 horse and therebj- 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 ordinaiy conjuring-trick. Besides, here the prosecutor 
 himself intended to cheat one of the prisoners by the bet. 
 
 No counsel appeared for the prosecution.
 
 220 COMMONWEALTH V. MOREILL. [CHAP. III. 
 
 Pollock, C. B. We are all of opinion that the conviction on the 
 third count is good and ought to be sui)poited. 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 i,s 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 Cashing, 571.] 
 
 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 h\ false pre- 
 tences to cheat and defraud of his goods, did then and there unlawfully, 
 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 eight}' dollars; and the said Lynch, then and there be- 
 lieving the said false pretences and representations so made as afore- 
 said by said Morrill and Hodgdon, and being deceived thereby, was 
 induced by reason of the 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, belonging to said Lynch, and of the value 
 of twenty dollars, and the said Morrill and Hodgdon did then and there 
 receive and obtain 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 Hodgdon as a gold watch, 
 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 Lvnch represented his watches, one of which 
 was of silver and tlie other of yellow metal, as worth fift^- dollars ; and 
 on the testimony of the only witness for the Commonwealth who was a 
 judge of the value of watches, thej were worth not exceeding fifteen
 
 SECT, IV.] COMMONWEALTH V. MORRILL. 221 
 
 dollars. Lynch testified that his silver watch cost him fifteen dollars ; 
 that he received the other in exchange for two, which cost him respec- 
 tivel}' seven dollars and thirteen dollars ; and that he believed it to be 
 worth thirty dollars. 
 
 The defendant requested the presiding judge to instruct the jury that 
 if Lvnch's watches were not worth fifty dollars, or some considerable 
 part of that sum, but were of merely trifling value, this indictment 
 could not be maintained. But the judge instructed the jury 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- 
 gain ; but that if the defendants made the false representations charged 
 in the indictment, with the intent to defraud, knowing them to be false, 
 and the}' were such as would mislead and deceive a man of ordinar}- 
 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 insufficient; and 
 this motion being overruled, they alleged exceptions to the order of the 
 court, overruling the same, and also to the instructions aforesaid. 
 
 W. C. Endicott^ 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 party 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, knowingly and designedly 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 party has also subjected him- 
 self to a prosecution for a like oflTence, he also may be punished. This 
 
 1 Part of the opinion, referring to a question of pleading, is omitted.
 
 222 McCORD V. PEOPLE. [CHAP. III. 
 
 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 Neiv 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 Count}' of New York, convicting the plaintiff in 
 error upon an indictment for false pretences. 
 
 The plaintiff in error, Henr}- 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, u[)on an indictment charging in sub- 
 stance that with intent to cheat and defraud one Charles C. Miller, he 
 falsely and fraudulentlv represented. — 
 
 " That he, the said Henry McCord, was an officer attached to the 
 bureau of Captain Jolni 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 tlie complaint of one Henry Brinker. charging 
 the said Charles C. IMillcr with a ci"iminal offence and for his arrest; 
 and that the said Henry P»rinker had promised him, tiie said Henry 
 McCord, $200 for the arrest of him, the said Charles C. Miller." 
 
 And that said Miller, believing such false representations, was in- 
 duced to and did deliver to McCord a gold watch and a diainoinl ring.^ 
 
 Per Curiam. If the prosecutor parted with his property upon ihe 
 representations set forth in tlie indictment, it must have been for some 
 unlawful purpose, a purpose not warranted by law. There was no 
 legitimate purpose to be attained by delivering the goods to the accused 
 upon the statements made and alleged as an inducement to the act. 
 What 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 officer having a crimi- 
 nal warrant for the arrest of the prosecutor, which was the character 
 he assumed. The false representation of the accused was that lie was 
 an officer and had a criminal warrant for the prosecutor. Tliere was 
 no pretence of an}- agenc}' for or connection with any person or of any 
 authority to do any act save sucli 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 
 
 1 Ace. Peo. V. Martin (Oal ), 36 Pac. 952; In re Cummins, 16 Col. 451, 27 Pac, 
 887. Aud see Com. v. Henry, 22 i'a. 253. — Ed. 
 
 - Arguments of couusel aud tnu uisseuring opinion of PECKnA:\r. J., are omitted.
 
 SECT. IV.J STATE V. PATTERSON. 223 
 
 do this he has been defrauded, the law will not punish his confederate, 
 although swell confederate ma}' have been instrumental in inducing the 
 couunission of tlie offence. Neither the law or public polic\' designs 
 the pi'otectiou of rogues in their dealings with each other, or to insure 
 fair dealing and trulli fulness as between each other in tlieir dislionest 
 practices. Tlie 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 willi tiieir 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.^ 
 
 STATE V. PATTERSON. 
 
 Supreme Court of Kansas. 1903. 
 
 [Reported 66 Kan. 447.] 
 
 BuRCH, J.^ The appellant was convicted of embezzlement of money 
 which came into his hands by virtue of his official position as treasurer 
 of the cit}' of Clyde. . . . 
 
 The defence to the action was that appellant collected the money 
 embezzled from persons engaged in unlawful traffic in intoxicating 
 liquors in the city of Clyde, under an arrangement between such 
 persons and the city whereby immunity from prosecution was secured 
 to them. Counsel for appellant call this money " blood-mone^^ " 5 
 characterize its collection as "robbery," and, from their language, 
 would seem to regard the transaction at least as infamous as that of the 
 thief " in the sacristy with the fair adornments," whom Dante located 
 as far down as the eighth circle of hell. And because of the utter 
 indefensibility of the conduct of the city and of the appellant under 
 the law, it is claimed he cannot be punished criminally. The defence 
 is applied in many ways. It is said the citj' could not authorize the 
 collection of such money ; that appellant could not act for the city 
 in such business ; that he did not act as city treasurer, or b}' virtue 
 of such office, and could exercise no official conduct in such an affair ; 
 that money received by him from such source could not, and did not, 
 become the property of the cit}* ; and that, if it did become the city's 
 money, it was so unclean that the law of embezzlement will not take 
 cognizance of it. The district court excluded all evidence relating to 
 this defence. In this it was correct. The defence is repugnant to law, 
 to moralit}-, and even to expediency in the regulation of the conduct 
 of individuals in society. 
 
 ^ Ace. State v. Crowley, 41 Wis. 271. But see Peo. o. Tompkins, (N. Y.), 79 
 N. E. 326. — Ed. 
 
 2 Part of the opinion is omitted. — Ed.
 
 224 STATE V. PATTERSON. [CHAP. III. 
 
 In 1852 the Supreme Court of Massachusetts, in deciding that money 
 accumulated by the illegal sale of intoxicating liquors was nevertheless 
 the subject of larceny, said : 
 
 "That same common law, which, in its integrity and wisdom, re- 
 fuses to lend itself to be the instrument, even indirectly, for the execu- 
 tion of a criminal contract, will as little condescend to throw its mantle 
 over crime itself. The law punishes larceny, because it is larceny; 
 and, therefore, one may be convicted of theft, though he do but steal 
 his own property, from himself or his bailee. 7 H. VI. 43« ; 3 Co. 
 Inst. 110. And the law punishes the larceny of property, not solely 
 because of any rights of the proprietor, but also because of its own 
 inherent legal rights as property ; and, therefore, even he, who larceni- 
 ously takes the stolen object from a thief whose hands have but just 
 closed upon it, may himself be convicted therefor, in spite of the 
 criminality of the possession of his immediate predecessor in crime. 
 This principle is coeval with the common law itself as a collection of 
 received opinions and rules, for we have to go back to the Year-books 
 to find its first judicial announcement. The leading decision is the 
 case of a so-called John at Stile, in 13 Edw. IV, 3i, where it was 
 held by the judges that if A. steal the goods of B., and afterwards 
 C. steal the same goods from A., in such case C. is indictable both as 
 to A. and as to B. This decision was afterwards affirmed arguendo in 
 4 Hen. VII 56. 
 
 " We do not saj- our doctrine is good law, merely because it was in 
 principle so adjudged in the time of the Plantagenets and the Tudors ; 
 but we say it is good law, also, because it is reasonable and just ; 
 because ever}- subsequent authority in England, such as Hale, 1 Hale, 
 P. C. (Am. ed.) 507 ; East. 2 East, P. C. 654 ; Russell, 2 Russ. on 
 Crim. (6th Am. ed.) 89, has adopted and approved it; because it has 
 been affirmed by modern judicial opinion in England ; Wilkin's Case, 
 2 Leach, 586 ; because it has already been recognized in the United 
 States; "Ward v. The People, 3 Hill, 396; and because it thus bears 
 that genuine stamp of venerable time, which consists, not in the 
 antiquit}' of date — for there may be old errors as well as new ones — 
 but in having stood the test of the scrutiny of many successive 
 ages. . . . 
 
 " If, looking beyond the mere question of property, we pass to con- 
 siderations of public policy, this may be regarded in two points of view, 
 one, of convenience in the administration of justice, the other, of higher 
 ethical relation. As to the former point, it is not easy to conceive an}'- 
 thing which would more seriously embarrass the public ministers of 
 justice, and obstruct its administration, than if it were held that any 
 element of illegality in the acquisition of property rendered it incapa- 
 ble of being the subject of larceny, and if, as a consequence, the 
 necessity followed, in every case, to go into the inquiry how the party 
 complaining acquired the property.
 
 SECT. JV.] STATE V. PATTERSON. 225 
 
 "As to the latter point, if the question be put in the form most 
 favorable to the argument for the defendant here, it stands thus : of 
 the alternative moral and social evils, which is the greater — to deprive 
 property unlawfully acquired of all protection as such, and thus to dis- 
 courage unlawful acquisition but encourage larceny' ; or to punish, and 
 so discourage larceny, though at the possible risk of thus omitting 
 so fqr forth to discourage unlawful acquisition? The balance of public 
 policy, if we thus attempt to estimate the relative weight of alternative 
 evils, requires, it seems to us, that the larcen}' should be punished. 
 Each violation of law is to be dealt with by itself. The felonious tak- 
 ing has its appropriate and specific punishment; so also has the 
 unlawful acquisition." (Commonwealth v. Rourke, 10 Cush. 397.) 
 
 Such is the law both of larceny and embezzlement in the United 
 States. (State v. Cloutman, 61 N. H. 143 ; Commonwealth v. Smith, 
 129 Mass. 104; Commonwealth v. Cooper, 130 id. 285; Woodward y. 
 The State, 103 Ind. 127, 2 N. E. 321 ; Stave v. O'Brien, 94 Tenn. 79, 
 28 S. W. 311, 26 L. R. A. 252; People v. Hawkins, 106 Mich. 479, 
 64 N. W. 736 ; The State v. Shadd, 80 Mo. 358 ; Miller & Smith v. 
 The Commonwealth, 78 Ky. 15, 39 Am. Rep. 194 ; The State of Iowa 
 V. May, 20 Iowa, 305 ; Bales v. The State, 8 W. Va. 685 ; State v. 
 Littschke, 27 Ore. 189, 40 Pac. 167 ; Hertzler v.Geigley, 196 Pa. St. 
 419, 46 Atl. 366, 79 Am. St. Rep. 724.) 
 
 Crime does indeed beget crime, but such progeny cannot justify itself 
 before the law by its hideous and hateful parentage. 
 
 The judgment of the district court is therefore aflSrmed. All the 
 Justices concurring.
 
 226 KEGINA V. HOLLAND. [CHAP. IIL 
 
 SECTION V. 
 
 Negligence of the Injured Party. 
 
 REGINA V. HOLLAND. 
 
 Liverpool Assizes. 1841. 
 
 \Reported 2 Moody Sf 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 appeared 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- 
 mately the cause of death, the prisoner was guilty of murder ; that for 
 this purpose it made no difference whether the wound was in its own 
 nature instantly mortal, or whether if became the cause of death by 
 reason of the deceased not having adopted the best mode of treatment ; 
 the real question is whether in the end the wound inflicted by the 
 prisoner was the cause of death. Guilty ^ 
 
 1 Ace. Com. r. Hackett, 2 AH. 136. — Ed.
 
 SECT. V.J REGINA V. KEW. 227 
 
 REGINA V. KEW. 
 Suffolk Assizes. 1872. 
 
 [Reported 12 Cox C. C. 355.] 
 
 The prisoners were indicted for raanslfiughter. It appeared that on 
 the 2d of June the prisoner, Jackson, who was in the employ of Mr. 
 Harris, a farmer, was instructed to take liis 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 j^ears of age going to school unattended by any adult. 
 
 Metcalfe and Simms Reeve, for the prisoners, contended that there 
 was contributor}' negligence on behalf of the child running on the road, 
 and that Kew was not liable for the acts of another man's servant, ha 
 having no control over the horse and not having selected either the 
 horse or the driver. 
 
 Byles, J., after reading the evidence, said : Here tlie 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 
 Irian's servant, so not onh* 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 
 doubt contributor}' negligence would be an answer to a civil action. 
 But who is the plaintiff here? The Queen, as representing the nation ; 
 and if the}' were all negligent together I think their negligence would 
 be no defence, even if they had been adults. If they were of opinion 
 that the prisoners were driving at a dangerous pace in a culpably negli- 
 gent manner, then they are guilty. 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 jur}' acquitted both prisoners.^ 
 
 1 Ace. Reg. V. Longbottoni, 3 Cox C. C. 439 ; Belk v. People, 125 111. 584 ; Crum 
 V. State, 64' Miss. 1, I'So. 1. But see Reg. v. Biicliall, 4 F. & F. 1087. —Ed.
 
 228 COMMONWEALTH V. SLATTERY. [CHAP. lH 
 
 SECTION VI. 
 
 Condonation. 
 
 4 Bl. Com. 133. Theft bote is where the party robbed not only 
 knows the felon, but also takes his goods again, or other amends upon 
 agreement not to prosecute. This is frequently called compounding 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 '•'• httroni eum similem 
 habuit, qui fertum celare vellet, et occulte sine judice compositionem 
 ejus admitterey Bj' 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 Mass. 42.3.] 
 
 Indictment for rape on Bridget Donovan.^ At the trial in the Supe- 
 rior Court, before Dunbar, 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, 1.5 Cox C. C. 779. 
 
 2 Only so much of the case as involves the question of condonation is printed.
 
 SECT. VI.] COMMONWEALTH V. KENNEDY. 229 
 
 FLEENER v. STATE. 
 Supreme Couut of Arkansas. 1893. 
 
 [Reported 58 Ar/c. 98.] 
 
 BuNN, C. J.^ The defendant, A. W. Fleener, was indicted at the 
 October term, 1892, of the St. Francis circuit court, for tlie crime of 
 embezzlement ; at the March term, 1893, found guilty and sentenced to 
 imprisonment in the penitentiary for the period of one year. Motions 
 in arrest of judgment and also for a new trial were overruled, and 
 appeal taken to tliis court. 
 
 The fourth ground of the motion for a new trial is a novel one. The 
 defendant contends that, having hired the guarantee company to make 
 his bond for faithful performance of duty to the Pacific Express Com- 
 pany, and that company having paid the express company for all losses 
 claimed by it to have been suffered by reason of defendant's alleged 
 embezzlement, therefore there was no crime committed ; that the 
 express companj- had no longer any interest at stake, and even that 
 the State has no interest in the matter. In this the defendant is 
 mistaken. This is no longer a controversj' between himself and 
 the two companies, or either of them, and has not been since he fraud- 
 ulently appropriated the money of the express company, if indeed he 
 did so appropriate it. It is now a controversy between the State of 
 Arkansas and himself, which the State will not permit either one of the 
 said companies to determine at present or in the future, nor will the 
 State acknowledge the validity of any settlement of it, by any thing 
 they both, or either of them, have done in the past. 
 
 COMMONWEALTH v. KENNEDY. 
 
 Supreme Judicial Court of Massachusetts. 1894. 
 
 [Reported 100 Mass. 312.] 
 
 Complaint, charging the defendant with violating the provisions of 
 Pub. Sts. c. G9, § 5, by boarding a ship without obtaining leave, as 
 therein required. 
 
 At the trial in the Superior Court, before Bond, J., there was evi- 
 dence tending to show that the ship was unable to obtain a place at 
 a wharf as desired, and was obliged to anchor in the harbor, that the 
 captain was on board and in charge of the vessel, that the defendant 
 
 1 Part of the opinion is omitted. — Ed.
 
 230 COMMONWEALTH V. KENNEDY. [CHAP. III. 
 
 was not a pilot or public officer, and that he had no written leave from 
 any owner or agent of the vessel to go on board. 
 
 "While the vessel was at anchor in the harbor, the defendant went on 
 board, and, before doing anj' business, approached the captain and 
 obtained permission from him to remain on board. The defendant con- 
 tended, and asked the judge to rule, that, if the defendant boarded the 
 vessel intending, before he engaged in an^- business on board, to obtain 
 leave of the captain to remain, and he did obtain such leave before he 
 engaged in any business on board, he was not guilty of any violation of 
 the statute. 
 
 The judge declined so to rule, and instructed the jury that the 
 statute required a person to obtain leave of the master or person in 
 charge of the vessel before going on boai-d, and that it would be a vio- 
 lation of the statute if the defendant boarded the vessel before it was 
 made fast to the wharf without first obtaining leave of the master or 
 person in charge. 
 
 The jury returned a verdict of guilty ; and the defendant alleged 
 exceptions. 
 
 Morton, J. "We think that the statute in question must be con- 
 strued as if it read " without first having obtained leave from the 
 master or person having charge of such vessel, or without first having 
 obtained leave in writing from its owners or agents.'' Pub. Sts. c. 69, 
 § 5. The statute as originally enacted was intended according to its 
 title " to protect mariners and shipowners from imposition" (St. 1857, 
 c. 139), and in order to do that forbade without qualification the entry 
 upon a vessel before it was made fast to the wharf of an}' person except 
 a pilot or public officer, without having obtained leave from one of the 
 persons named in the statute. The original statute was re-enacted, with 
 slight changes in phraseolog}', in Gen. Sts. c. 52, §§ 22 to 29 inclu- 
 sive, excepting § 26, which was a re-enactment of St. 1859, c. 235, and 
 the provisions of the General Statutes were incorporated into Pub. Sts. 
 c. 69, §§ 5 to 12 inclusive, excepting § 7, which was a re-enactment of 
 St. 1874, c. 76. The offence with which the defendant is charged 
 became complete upon his boarding the vessel without having obtained 
 the l^ave which the statute required, no matter what his motive was, 
 and without regard to the fact that permission was afterwards given 
 him by the captain to remain on board. Commonwealth r. Slatterj', 
 147 Mass. 423 ; Commonwealth i\ Tobin, 108 Mass. 426. Cases may 
 be supposed where the application of this rule would operate with 
 harshness, but thev do not justif}' us in departing from the words of 
 the statute. . Exceptions overruled.
 
 SECT, VI.] COMMONWEALTH V. ST. JOHN. 231 
 
 COMMONWEALTH v. St. JOHN. 
 
 Supreme Judicial Court of Massachusetts. 1899. 
 
 [Reported 1 73 Mass. 566.] 
 
 Indictment, against Joseph St. John, Albert St. Germaine, and 
 Eugene Bernatchez, charging the first named defendant, on May 31, 
 1896, at Springfield, with unlawfnll}- using a certain instrument in and 
 upon the body of a woman named, with intent to procure a miscarriage, 
 and thereby causing her death ; and charging the other defendants with 
 being accessories before the fact. 
 
 St. Germaine, in support of his plea in bar, offered to show that he 
 was promised and pledged by the city marshal of Springfield, who was 
 at the time at the head of the police department of the city, and by one 
 Boyle, the chief detective of the police department, and who were in 
 the preliminary proceedings the prosecuting ofticers, and by whom a 
 warrant was obtained for the arrest of St. Germaine, that if he would 
 make full disclosure and confession of what he knew with reference to 
 the abortion alleged to have been performed by St. John, and against 
 whom a complaint had been made and a warrant issued from the police 
 court of Springfield for such offence, as principal, and if St. Germaine 
 would hold himself in readiness to testify and would testify at the pre- 
 liminary hearing in the police court upon the complaint and warrant 
 against St. John, and if he would hold himself in readiness to testify 
 at any other trial or hearing with reference to the charge against St. 
 John, he should have immunitj- and protection from the crime charged 
 against him in the indictment. 
 
 The judge ruled that the evidence offered was not competent, and 
 excluded the same ; and each of the defendants alleged exceptions.^ 
 
 Morton, J. The decisive question in each case is the same, and 
 the cases may therefore properly be considered together. The question 
 is whether the immunity that was promised to the defendants by the 
 city marshal and by Boyle, the chief detective of the police depart- 
 ment of Springfield, can be pleaded in bar of the indictment against 
 them. We think that it cannot. The immunity and protection which 
 may be promised from the consequences of crime on condition of a full 
 disclosure and readiness to testify are not a matter of right, but rest in 
 the last resort on the sound judicial discretion of the court having final 
 jurisdiction to sentence, and cannot therefore be pleaded in bar. 
 Wright V. Rindskopf, 43 Wis. 344 ; State v. Moody, 69 N. C. 529 ; 
 State V. Graham, 12 Vroom, 15 ; Rex v. Rudd, Cowp. 331 ; Whart. 
 Grim. Ev. §§ 439, 443 ; 3 Russ. Crimes (9th Am. ed.), 599. 
 
 When such promises are made by the public prosecutor or with his 
 authority, the court will see that due regard is paid to them, and that 
 the public faith which has been pledged by him is duh^ kept. The 
 
 1 The statement of facts has been shortened. — Ed.
 
 232 IN RE LEWIS. [chap. III. 
 
 prosecuting officer has also the power to enter a noUe x>roseqxd. It ap- 
 pears in each case that neither the city marshal nor Boyle had any 
 authorit}' from the District Attorney' to make the promises or hold out 
 the inducements which they did. There is nothing in either bill of ex- 
 ceptions tending to show that the District Attornej' had anything to 
 do with the prosecution in the police court. Neither of the defendants 
 appeared before the grand jurj', although they were at the court-house 
 from day to day when the grand jur}- was in session, ready to testify-, 
 relying on the promises of immunity made by the cit}' marshal and b}' 
 Bo3'le. And there is nothing tending to show that there was any ex- 
 pectation or understanding on the part of the District Attorney that 
 either was to testify as a government witness in the Superior Court, 
 and neither did so testify. If an appeal had been made to the clem- 
 ency of the court, it would no doubt have been competent for the court 
 to take into consideration the inducements which had been held out 
 and the promises that had been made, if any, b}' the city marshal and 
 b}' Bo^'le. But what was done was to plead the promises and induce- 
 ments in bar. A question of law was thus presented, and we think 
 that the ruling of the court was clearly right. Exceptions overruled. 
 
 1)1 re LEWIS. 
 Supreme Court of Kansas. 1903. 
 
 {Reported 67 Kan. 562.] 
 
 Mason, J.^ Oscar Lewis was arrested on a warrant issued April 2, 
 1903, chai-giug him with having, on June 1, 1902, obtained illicit con- 
 nection, under promise of marriage, with Nellie Meador, she being of 
 good repute and under twenty-one years of age. Upon a preliminary 
 examination he was held to answer the charge. It was shown that on 
 November 27, 1902, he was married to said Nellie Meador, and he now 
 asks his discharge upon habeas corpus on the ground that such 
 marriage is a complete bar to the prosecution. The state claims, and 
 the claim is supported b}' the evidence, that the defendant abandoned 
 his wife on the morning after the marriage, but this does not affect 
 the legal aspect of the matter. 
 
 In the following cases it has been held that a subsequent marriage 
 is a bar to a prosecution for seduction : Commonwealth v. Eichar, 4 
 Pa. L. J. Rep. 326 ; People v. Gould, 70 Mich. 240, 38 N. W. 232, 
 14 Am. St. Rep. 493 ; The State v. Otis, 135 Ind. 267, 24 N. E. 954, 
 21 L. R. A. 733. The law is so stated in Wharton on Criminal 
 Law, 10th edition, volume 2, page 1760, and Lawson's Criminal De- 
 fences, volume 5, page 780. These statements of the text-writers, 
 however, are based solely upon the cases just cited, and therefore 
 
 1 Part of the opinion is omitted. — Ed.
 
 SECT. VI.J IN RE LEWIS. 233 
 
 add ittle to their authority. The Michigan and Indiana cases, more- 
 over, merely followed the reasoning in Commonwealth v. Eichar, 
 supra, so tliat the soundness of the doctrine in principle can be de- 
 termined from an examination of the opinion in that case. Its full 
 text upon this point is as follows : 
 
 " The evidence full}- establishes the fact that, six montlis previous 
 to the finding of this indictment b}' the grand jury, the defendant 
 was legally married by the Rev. Mr. Rugan, of the Lutheran churcl), 
 to the ftMuale whom lie is charged with having seduced. 81ie is b}' the 
 laws of God and man his wife, and as such is entitled to all the rights 
 which are incident to that relation. Can he now be convicted and 
 punished for her seduction before marriage? It is not the carnal 
 coiniection, even when induced by the solicitation of a man, that is the 
 object of this statutoiy penalty, but it is the seduction under promise 
 of marriage which is an offence of so grievous a nature as to require 
 this exemplary punishment. What promise? One that is kept and 
 performed? Clearly not, but a false promise, broken and violated 
 after performing its fiendish purpose. The evil which led to the en- 
 HCtment was not that females were seduced and thou made tlie drives 
 of the seducer, but that after the ends of the seducer were accom- 
 plished his victim was abandoned to her disgrace. An objection to 
 this construction is that it places within the power of the seducer a 
 means of escaping the penalty. So be it. This is far better thnn 
 bj- a contrary construction to remove the inducement to a faithful 
 adherence to the promise which obtained the consent." 
 
 Our attention has not been called to an}' actual adjudication against 
 this doctrine, nor have we discovered any. However, in State r. Bierce, 
 27 Conn. 319, 324, in considering the question whether it could be 
 shown in defence that the promise of marriage was made in good faith, 
 and broken only by reason of the subsequent misconduct of the 
 complaining witness, the court said : 
 
 " Even if he had performed his promise to many her, we do not per- 
 ceive how it could plausibly be urged that it would be any answer to 
 the charge of the previous seduction ; however, such partial repara- 
 tion might be viewed as a circumstance to mitigate the punishment. 
 As to the claim founded on the misconduct of the female subsequent 
 to the illicit connection between her and the defendant, it is a sufficient 
 answer that the offence was committed and complete before such 
 misconduct took place, and that, whatever effect it might have upon a 
 claim b}- her upon him for the breach of his promise of marriage, or 
 however it might be considered by the court in affixing the punish- 
 ment for the offence charged upon the defendant, it could not relate 
 back to render legal or innocent a violation of the statute for which 
 he had already become amenable." 
 
 In State v. Wise, 32 Ore. 280, 282, 50 Pac. 800, it was said : 
 
 "But, as we take it, the gravamen of the offence is the act of se- 
 ducing and debauching an unmarried female, of previous chaste
 
 234 IN RE LEWIS. [chap. IH. 
 
 cliaracter, under or bj' means of a promise of marriage ; and the 
 crime is complete as soon as tlie act is accomplished, although a 
 subsequent marriage is b}- statute a bar to a prosecution." 
 
 In People v. Hough, 120 Cal. 558, 52 Pac. 846, 65 Am. St. Rep. 
 201, the court held : 
 
 " When a man induces an unmarried female of previous chaste 
 character to submit her person to him by reason of a promise of mar- 
 riage upon his part, the seduction, has taken place — the crime has 
 been committed. The succeeding section, which provides that the 
 marriage is a bar to a prosecution, clearl}' recognizes that the crime has 
 been committed when the promise has been made and the intercourse 
 thereunder has taken place. There may be incidental references in 
 some cases indicating that a refusal upon the part of the man to cany 
 out the promise is a necessary element of the offence. (People v. 
 Samonset, 97 Cal. 448, 32 Pac. 520; State v. Adams, 25 Ore. 172, 35 
 Pac. 36, 22, L. R. A. 840, 42 Am. St. Rep. 790.) But such is not 
 the fact." 
 
 In Clark and Marshall's Law of Crimes, page 1122, the authors 
 say: 
 
 " By express provision of the statutes in most states, the subse- 
 quent intermarriage of the parties is a bar to a prosecution for seduc- 
 tion. But this is not the case in the absence of such a provision, 
 for, as was shown in another place, the person injured by a crime 
 cannot prevent a prosecution by afterwards condoning the offence." 
 
 Notwithstanding the authorities cited in support of the contention 
 of defendant, we are not disposed to yield assent to it. Being based 
 upon the Pennsylvania case, they depend for their force, as it does, 
 upon the soundness of the reasoning by which it is supported, and 
 this reasoning is based less upon the language of the statute than 
 upon considerations of public polic}', and the decision borders upon 
 judicial legislation. 
 
 While the followins; language of Mr. Justice Johnston in The State 
 V. Newcomer, 59 Kan. 6G8, 54 Pac. 685, was used in a case of stat- 
 utory rape, it is equally applicable here, and is a satisfactory refu- 
 tation of every argument advanced in the opinion in the Eichar 
 case : 
 
 "In behalf of the defendant it is argued that the evil conse- 
 quences of the unlawful act have been averted b3- the marriage ; that 
 when the parties to the act voluntarih', and in good faith, entered into 
 the marriage relation the offence was condoned, and that the welfare 
 of the parties and their offspring requires and the interest of the public 
 will be best subserved by the ending of the prosecution. 
 
 " The difficult}- with this contention is that the law does not provide 
 that the offence may be expiated by marriage or condoned by the 
 injured female. Her consent to the sexual act constitutes no defence, 
 and neither her forgiveness nor anything which either or both will do 
 will take away the criminal quality of the act or relieve the defendant
 
 SECT. VI.] IN RE LEWIS. 235 
 
 from the consequences of the same. The principle of condonation 
 wliich obtains in divorce cases where civil rights are involved has no 
 application in prosecutions brought at the instance of the state for the 
 protection of the public and to punish a violation of the law. It is 
 true, as stated, that society api)roves the act of the defendant, when 
 he endeavors to make amends for the wrong done the injured female, 
 by marrying her, and usually a good-faith marriage between the parties 
 to the wrong prevents or terminates a prosecution; but the statute 
 which defines the offence and declares punishment therefor makes no 
 such provision. If the defendant has acted in good faith in marrying 
 the girl, and honestly desires to perform the marital obligation resting 
 upon him, and is prevented from doing so by the influence and inter- 
 ference of persons other than his wife, it may constitute a strong 
 appeal to the prosecution to discontinue the same, or to the governor 
 for the exercise of executive clemency, but as the law stands it furnishes 
 no defence to the charge brought against the defendant." 
 
 Moreover, the doctrine of the Pennsylvania, Michigan and Indiana 
 courts, if accepted as sound, would not necessarily control here, since 
 it has arisen under statutes for the punishment of offences that include 
 the element of seduction, properly so called, and the decisions support' 
 ing it are based to some extent upon that fact. The Kansas statute 
 here involved (Gen. Stat. 1901, § 2021) does not use the word 
 " seduce," and, while the offence it creates is commonly and conven- 
 iently called "seduction," this does not imply that the term is techni- 
 cally correct. It makes criminal the act of obtaining illicit connection 
 under promise of marriage with any female of good reputation under 
 twenty-one years of age. This does not constitute seduction, as the 
 word is used in the statutes of other states. 
 
 We hold that a subsequent marriage to the injured female is not a 
 bar to a prosecution under section 2021 of the General Statutes of 
 1901.
 
 236 EEGINA V. TOLSON. [CHAP. IV. 
 
 CHAPTER lY. 
 CULPABILITY. 
 
 SECTION I. 
 
 What Crimes Require a G-uilty Mind. 
 
 EEGINA V. TOLSON. 
 
 Crown Case Reserved. 1889. 
 
 {Reported 23 Queen's Bench Division, 168.] 
 
 Wills, J. In this case the prisoner was convicted of bigamy. She 
 married a second time within seven years of the time when she last 
 knew of her husband being alive, but upon information of his death, 
 which the jury found that she upon reasonable grounds believed to be 
 true. A few months after the second marriage he reappeared. 
 
 The statute- upon which the indictment was framed is the 24 & 25 
 Vict. c. 100, s. 57, which is in these words: " Whoever, being mar- 
 ried, shall marry any other person during the life of the former husband 
 or wife shall be guilty of felony, punishable with penal servitude for 
 not more than seven years, or imprisonment with or without hard 
 labor for not more than two years," with a proviso that " nothing in 
 this 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 last past, and shall not have been known 
 by such person to be living within that time." 
 
 There is no doubt that under the circumstances the prisoner falls 
 within the very words of the statute. She, being married, married 
 another person during the life of her former husband, and, when she 
 did so, he had not been continually absent from her for the space of 
 seven years last past. 
 
 It is, however, undoubtedly a principle of English criminal law, that 
 ordinarily speaking a crime is not committed if the mind of the person 
 doing an act in question be innocent. " It is a principle of natural 
 justice and of our law," says Lord Kenyon, C. J., " that actus non 
 facit 7'eum, nisi mens sit rea. The intent and act must both concur to
 
 SECT. I.] REGINA V. TOLSON. 237 
 
 constitute the crime."' Fowler v. Padget, 7 T. R. 509, 514. The 
 guilty intent is not necessarily that of intending the very act or thing 
 done and [)rohibited by common or statute law, but it must at least be 
 the intention to do something wrong. Tiiat intention may belong to 
 one or otlier of two classes. It may be to do a thing wrong in itself 
 and apart from positive law, or it may be to do a thing merely prohi- 
 bited by statute or Ijy common law, or both elements of intention may 
 co-exist with respect to the same deed. There are many things prolii- 
 bited by no statute — fornication or seduction for instance — wliich 
 nevertheless no one would hesitate to call wrong ; and tlie intention to 
 do an act wrong in this sense at the least must as a general rule exist 
 before the act done can be considered a crime. Knowingly and inten- 
 tionally 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, wliether it be a law approved of or 
 disapproved of by the individual, is the first duty of a citizen. 
 
 Although j)r I ma facie and as a general rule there must be a mind at 
 fault before there can be a crime, it is not an inflexible 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 body of 
 municipal law in the present day, which is so conceived. By-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 tliis sense or witli the 
 qualification ordinarily imported into the construction of criminal stat- 
 utes, that there must be a guilty mind, must, I think, depend upon 
 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 tlie kind of language 
 used by Acts of Parliament which made the unautliorized possession 
 of Government stores a crime, and the language used in by-laws which
 
 E38 REGINA V. TOLSON. [CHAP. IV. 
 
 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 1 suppose that in the first case 
 ihe penalty would attach if the thing were not done, while in tlie other 
 ;ase it has been held in Heme v. Garton, 2 E. & E. 66, that where the 
 jender had made reasonable inquiry and was tricked into the belief 
 jhat 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 " 
 ihall be liable to a penalty, and the language by which it is enacted 
 ^hat " if any person sliall 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 lanaruaaie 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.] liKGlXA V. TOLSON. 239 
 
 If identical language may thus be legitimately construed in two 
 opposite senses, and is sometimes lield to unply that there is and some- 
 times that there is not an offence wlieu the guilty mind is absent, it is 
 obvious that assistance must be sought aliunde, and tliat all circum- 
 stances must be taken into consideration which tend to show that the 
 one construction or the other is reasonable, and among such circum- 
 stances it is impossible, to discard the consequences. This is a con- 
 sideration entitled to little weight if the words be incapable of more 
 than one construction ; but 1 have, I think, abundantly shown that 
 thei*e Is nothing in the mere form of words used in the enactment now 
 under consideration to prevent the application of what is certainly the 
 normal rule of construction in the case of a statute constituting an 
 offence entailing severe and degrading punishment. If the words are 
 not conclusive in themselves, the reasonableness or otherwise of the 
 construction contended for has always been recognized as a matter 
 fairly to be taken into account. In a case in which a woman was 
 indicted under 9 & 10 Wm. III., c. 41, s. 2, for having in her posses- 
 sion without a certificate from the proper authority Government stores 
 marked in the manner described in the Act, it was argued that by the 
 Act the possession of the certificate was made the sole excuse, and 
 that as she had no certificate she must be convicted. Foster, J., said, 
 however, that though the words of the statute seemed to exclude any 
 other excuse, yet the circumstances must be taken into consideration, 
 otherwise a law calculated for wise purposes might be made a hand- 
 maid to oppression ; and directed the jury that if they thought the 
 defendant came into possession of the stores without any fraud or 
 misbehavior on her part they ought to acquit her. Foster's Crown 
 Law, 3d ed. App. pp. 439, 440. This ruling was adopted by Lord 
 Kenyon in Rex v. Banks, 1 Esp. 144, who considered it beyond ques- 
 tion that the defendant might excuse himself by showing that he came 
 innocently into such possession, and treated the unqualified words of 
 the statute as merely shifting the burden of proof and making it neces- 
 sary for the defendant to show matter of excuse, and to negative the 
 guilt}' mind, instead of its being necessary for the crown to show the 
 existence of the guilty mind. Prima facie the statute was satisfied 
 when the case was brought within its terms, and it then lay upon the 
 defendant to prove that the violation of the law which had taken 
 place had been committed accidentally or innocently so far.«as he was 
 concerned. Suppose a man had taken up by mistake one of two 
 baskets exactly alike and of similar weight, one of which contained 
 Innocent articles belonging to himself and the other marked " Govern- 
 ment Stores," and was caught with the wrong basket in his hand. He 
 would by his own act have brought himself within the very words of 
 the statute. Who would think of convicting him? And yet what 
 defence could there be except that his mind was innocent, and that he 
 had not intended to do the thing forbidden by the statute? In Fowler 
 V. Padget. 7 T. R. 509, the question was whether it was an act of
 
 240 EEGINA V. TOLSON. [CHAP. IV. 
 
 bankruptcy for a man to depart from his dwelling-house, whereby his 
 creditors were defeated and delayed, although he had no mtention of 
 defeating and delaying them. The statute which constituted the act 
 of bankruptcy was 1 Jac. I. c. 15, which makes it an act of bankruptcy 
 (among other things) for a man to depart his dwelling-house "to the 
 intent or whereby his creditors may be defeated and delayed." The 
 court of King's Bench, consisting of Lord Kenyon, C. J., and Ashurst 
 and Grose, JJ., held that there was no act of bankruptcy. " Bank- 
 ruptcy," said Lord Kenyon, " is considered as a crime, and the bank- 
 rupt in the old laws is called an offender ; but," he adds in the passage 
 already cited, " it is a principle of natural justice and of our law that 
 actus non facit retim nisi mens sit rea ; " and the court went so far 
 as to read " and" in the statute in place of " or," which is the word 
 used m the Act, in order to avoid the consequences which appeared to 
 them unjust and unreasonable. In Rex v. Banks, 1 Esp. 144, above 
 cited, Lord Kenyon referred to Foster, J.'s, ruling in this case as that 
 of " one of the best Crown lawyers that ever sat in Westminster Hall." 
 These decisions of Foster, J., and Lord Kenyon have been repeatedly 
 acted upon. See Reg. v. Willmett, 3 Cox C. C. 281 ; Reg. v. Cohen, 
 8 Cox C. C. 41 ; Reg. v. Sleep (in the Court for C. C. R.), L. & C. 
 44 ; 30 L. J. N. C. 170 ; Reg. v. O'Brien, 15 L. T. (N. S.) 419. 
 
 Now in the present instance one consequence of holding that the 
 offence is complete if the husband or wife is de facto alive at the time 
 of the second marriage, although the defendant had at the time of the 
 second marriage every reason to believe the contrary, would be that 
 thouffh the evidence of death should be sufficient to induce the Court 
 of Probate to grant probate of the will or administration of the goods 
 of the man supposed to be dead, or to prevail with the jury upon an 
 action by the heir to recover possession of his real property, the wife 
 of the person supposed to be dead who had married six years and 
 eleven months after the last time she had known him to be alive would 
 be guilty of felony in case he should turn up twenty years afterwards. 
 It would be scarcely less unreasonable to enact that those who had in 
 the meantime distributed his personal estate should be guilty of lar- 
 ceny. It seems to me to be a case to which it would not be improper 
 to apply the language of Lord Kenyon when dealing with a statute 
 which literally interpreted led to what he considered an equally pre- 
 posterous result : " I would adopt any construction of the statute that 
 the words will bear in order to avoid such monstrous consequences." 
 Fowler v. Padget, 7 T. R. 509, 514. 
 
 Again, the nature and extent of the penalty attached to the offence 
 may reasonably be considered. There is nothing that need shock any 
 mind in the payment of a small pecuniary penalty by a person who 
 has unwittingly done something detrimental to the public interest. To 
 subject him, when what he has done has been nothing but what any 
 well-disposed man would have been very likely to do under the cir- 
 cumstances, to the forfeiture of all his goods and chattels, which
 
 SECT. I.] IIEGINA V. TOLSON. 241 
 
 would have been one consequence of a conviction at the date of the 
 Act of 2-i & 25 Vict., to the loss of civil rights, to impiisoumeut with 
 hard labor, or even to penal servitude, is a very different matter ; and 
 such a fate seems properly reserved for those who have transgressed 
 morally, as well as unintentionally done something prohibited by law. 
 I am well aware that the mischiefs wliich may result from bigamous 
 marriages, however innocently contracted, are great ; but I cannot 
 thiulc that the appropriate way of preventing 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 appeared perfectly satisfactory 
 to a Court of Probate, a tribunal emphatically difficult to satisfy in 
 such matters, and certain only to act upon what appears to be the most 
 cogent evidence of death. It is, as it seems to me, undesirable in the 
 highest degree without necessity to multiply instances in which people 
 shall be liable to conviction upon 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 " nothmg 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 mdicates what in that case shall be sufficient to exempt the party, 
 without any further inquiry, from criminal liability ; and I think it is an 
 argument of considerable weight in this connection, that under 9 & 10 
 Wm. 111. c. 41, 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 w^ithout fraud or misbehavior on his part. Rex v. Banks, 
 1 Esp. 144, 147. 
 
 Upon the point in question there are conflicting decisions.^ Tliere 
 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 suggested, however, that the important decision of the 
 court of fifteen judges in Reg. v. Prince, L. R. 2 C. C. 154, 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. e. 100, 
 
 1 The learned judge here examined the following conflicting decisions: Reg. v 
 Turner, 9 Cox C. C. 145; Reg. v. Horton, 11 Coz C. C. 670; Reg. v. Gibbons, ]2 
 Cox C. C. 237; Reg. v. Bennett, 14 Cox C. C. 45; Reg. v. Moore, 13 Cox C. C, 
 544. — Ed.
 
 242 EEGINA V. TOLSON. [CHAP. IV. 
 
 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." Tlie jury found that the prisoner bona fide believed upon 
 reasonable grounds that she was eighteen. The court (dissentiente 
 Brett, J..) uplield the conviction. Two judgments were delivered by 
 a majority of tiie court, in each of wliich several judges concurred, 
 wliilst three of them, Denman, J., Pollock, B., and Quam, 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 subject- 
 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 the consequences. The second 
 of the two judgments, being that of seven judges, gives a number of 
 other reasons for arriving at tlie 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 gu'l 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 established law of England (unless the 
 legislation on the subject has clearly enacted it), to say that a person can be guilty of a 
 crime in England without a wrongful intent, — without an attempt to do that which 
 the law has 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, 
 and to have understood the facts to be such that he might with impunity have done a 
 certain thing, was by the terms of that Act of Parliament guilty of a crime, and could 
 be imprisoned. I say still, as 1 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. 
 
 " Adtis noil facit reiim, nisi mens sit rea is the foundation of all criminal justice." 
 CocKBURN, C J., in Reg. v. Sleep, 8 Cox C. 0. 472, 477. — Ed.
 
 SECT. I.j 
 
 KEGINA V. TOLSON. 243 
 
 In my opinion, therefore, this conviction ought to be quashed.^ 
 Stephen, J. I am of oi)inion that the conviction should be quashed. 
 My view of the subject is based upon a particuUir application of tlie 
 doctrine usually, though I think not happily, described by the phrase 
 ^^non est reus, uisi mens sit rea." Though this phrase is in common 
 use, I think it most unfortunate, and not only likely to mislead, but 
 actually misleading, on the following grounds: It naturally suggests 
 that, apart from all particular dellnitious of crimes, such a thing exists 
 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 different crimes differ widely. 3Ieus 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- 
 slaughter 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 "mens rea," 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, 
 I think, be found that much of the discussion of the law of libel in 
 Shipley's Case, 4 Doug. 73 ; 21 St. Tr. 847, proceeds 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 in 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 rea appears to me 
 to be too short and antithetical to be of much practical value. It is, 
 ind'^ed, 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 " reguke Juris" in the digests. The earliest case of its 
 use which I have found is in the " Leges Henrici Primi," v. 28, in 
 which it is said: '■'■Si qicis per coactlonem abjurare cogatur quod per 
 rmdtos annos quiete tenuerit non in jurante set cogente perjurium erit. 
 Eeum non facit nisi mens rea:' In Broom'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 insurrection 
 "■pro timore mortis et quod recesserunt quani cito potnerunt," ihe 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:' 
 
 1 Conciirrlug opinions of Cave and Hawkins, JJ., and Lord Coleridge, C. J., are 
 omitted. Charles, Day, A. L. Smith, and Grantham, JJ., concurred. Part of the 
 opinion of Stephen, J., is omitted. — Ed.
 
 244 REGINA V. TOLSON. [CHAP. IV. 
 
 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 others in the 21 R. 2 : '•'•Melius est omnia mala pati 
 quam iiialo conseyitire" (22-23), which 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 ^Ixiiiular 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? iSimply 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 clefendendo, which 
 then involved certain forfeitures. In other words, he was in the same
 
 SECT. I.] REGINA V. TOLSON. 245 
 
 situation as far as regarded the honiicide as if he had killed a burglar. 
 In the decision of tlie judges in McNaghten's Case, 10 CI. & F. 200, 
 it is stated that if, under an insane delusion, one man killed another, 
 and if the delusion was such that it would, if true, justify or excuse 
 the killing, the honiicide would be justified or excused. This could 
 hardly be if the same were not law as to a sane mistake. A bona Jide 
 claim of right excuses larceny, and many of the offences against the 
 Malicious Mischief Act. Apart, indeed, from the present case, I think 
 it may be laid down as a general rule that an alleged offender is deemed 
 to have acted under that state of facts which he in good faith and on 
 reasonable grounds believed to exist when he did the act alleged to be 
 an offence. 
 
 I am unable to suggest any real exception to this rule, nor has one 
 ever been suggested to me. A very learned person suggested to me 
 the following case : A constable, reasonably believing a man to have 
 committed murder, is justified in killing him to prevent his escape, but 
 if he had not been a constable he would not have been so justified, but 
 would have been guilty of manslaughter. This is quite true, but the 
 mistake in the second case would be not only a mistake of fact, but a 
 mistake of law on the part of the homicide in supposing that he, a 
 private person, was justified in using as much violence as a public offi- 
 cer, whose duty is to arrest, if possible, a person reasonably suspected 
 of murder. The supposed homicide would be in the same position as 
 if his mistake of fact had been true ; that is, he would be guilty, not 
 of murder, but of manslaughter. I think, therefore, that the cases 
 reserved fall under the general rule as to mistakes of fact, and that 
 the conviction ought to be quashed. 
 
 I will now proceed to deal with the arguments which are supposed 
 to lead to the opposite result. 
 
 It is said, first, that the words of 24 & 25 Vict. c. 100, s. 57, are 
 absolute, and that the exceptions which that section contains are the 
 only ones which are intended to be admitted ; and this, it is said, is 
 confirmed by the express proviso in the section, — an indication which 
 is thought to negative any tacit exception. It is also supposed that 
 the case of Reg. v. Prince, L. R. 2 C. C. 154, decided on s. 55, con- 
 firms this view. I will begin by saying how far I agree with these 
 views. First, I agree that the case turns exclusively upon the con- 
 struction of s. 57 of 24 & 25 Vict. c. 100. Much was said to us in 
 argument on the old statute, 1 Jac. 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 1861, in passing over the general 
 mental elements of crime which are presupposed in every case. Age,
 
 246 REGINA V. TOLSON. [CHAP. IV. 
 
 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, wliich 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 tlie 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 tliat a girl is sixteen or upwards 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 cliarge 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 mens 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 
 tlie -act forbidden by the statute."
 
 SECT. I.] RECxINA V. TOLSON. 247 
 
 All the judges, therefore, in Reg. v. Prince agreed on the general 
 principle, though they all, except Lord Plsher, considered that the 
 object of the legislature being to prevent a scandalous and wicked 
 invasion of parental rights (whether it was to be regarded as illegal 
 apart from the statute or not) it was to be supposed that they intended 
 that the wrong-doer should act at his peril. 
 
 As another illustration of the same principle, I may refer to Reg. v. 
 Bishop, a Q. B. D. 'ifji). The defendant in tliat case was tried before 
 me for receiving more than two lunatics into a house not duly licensed, 
 upon an indictment on 8 and 9 Vict. c. 100, s. 44. It was proved that 
 the defendant did receive more than two persons, whom 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 object 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 presumably 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 
 cases miaht 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 that 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. 154, 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 by 
 the 'parties to be a valid and honorable marriage, with a liability to 
 seven years' penal servitude. 
 
 It is argued that the proviso that a re-marriage after seven years* 
 separation shall not be punishable operates as a tacit exclusion of ail 
 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 
 
 1 "I am not aware of any other way in which it is possible to determine whether 
 the word ' knowingly ' is or is not to he implied in the definition of a crime in which it 
 is. not expressed." 2 Stephen Hist. Ci'. Tj. 117.
 
 248 EEGINA V. TOLSON. [CHAP. IV. 
 
 in the absence of explicit proof of death. But it seems to me to show, 
 not that belief in the death of one married person excuses the iiianiage 
 of the other only after seven years' 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, 
 sufficient 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. 
 
 Manisty, 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 jur\- 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 ambiguity' as words can make it. Tlie statute says : " Who- 
 soever being married shall marry any other person during the life of 
 the former husband or wife . . . shall be guilty of felony, 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 years, or to be imprisoned for an}" term not exceeding two 
 years, with or without hard labor." The statute does not even say if 
 the accused shall feloniousl}' or unlawfully or knowingly commit the 
 act he or she shall be guilty of felon}', 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 
 again 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.] RKGINA V. TOLSON. 249 
 
 second marriage would be born, and all would be bastards. The pro- 
 viso is evidently founded upon the assumption that after the lapse of 
 seven years, and the former husband or wife not being heard of, it ma}' 
 reasonably be inferred that he or she is dead, and thus the mischief of 
 a second marriage in the lifetime of the former husband or wife is to a 
 great extent, if not altogethei', 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 Parliament, and is now 
 governed by 24 & 25 Vict. c. 100, s. 57. 
 
 No doubt in construing a statute the intention of the legislature is 
 what the court has to ascertain ; but the intention must be 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 different principle, namely, that of an absence of mens. 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 b}' the 
 statute declared to be a felony, and punishable with penal servitude 
 or imprisonment, 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, sureh' 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 married 
 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. No doubt circumstances may 
 and do affect the sentence, even to the extent of the punishment being 
 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 au}- 
 one having been saved, the underwriters pay the insurance on the ship, 
 and the supposed widow gets probate of her husband's will, and mar- 
 ries and has children, and after the lapse of several years the husband 
 appears, it may be a few days before seven 3'ears have expired ; and 
 the question is asked, would it not be shocking that in such a case the 
 wife could be found guilty of bigamy? 
 
 My answer is, that the Act of Parliament says in clear and express 
 words, for very good reasons, as I have already' pointed out, that she
 
 250 KEGINA V. TOLSON. [CHAP. IV. 
 
 is guilty of bigamy. The only shocking fact would be that some one, 
 for some purpose of his own, had instituted the prosecution. I need 
 not say that no public prosecutor would ever think of doing so, and the 
 judge before whom the case came on for trial would, as my brother 
 Stephen did in the present case, pass a nominal sentence of a day's 
 imprisonment (which in eflect is immediate discharge), accompanied, 
 if I were the judge, with a disallowance of the costs of the prosecution. 
 It may be said, but the woman is put to some trouble and expense in 
 appearing before the magistrate (who would, of course, take nominal 
 bail) and in appearing to take her trial. Be it so, but such a case 
 would be very rare indeed. On the other hand, see what a door would 
 be opened to collusion and mischief if, in the vast number of cases 
 where men in humble life leave their wives and go abroad, it would be 
 a good defence for a woman to say and give proof, which the jury 
 believed, that she had been informed by some person upon whom she 
 honestly thought she had reason to rely, and did believe, that her hus- 
 band was dead, whereas in ftict she had been imposed upon, and her 
 husband was alive. 
 
 What operates strongly on my mind is this, that if the legislature 
 intended to prohibit a second marriage in the lifetime of a former hus- 
 band or wife, and to make it a crime, subject to the proviso as to seven 
 years, I do not believe that language more apt or precise could be found 
 to give effect to that intention than the language contained in the 57th 
 section of the Act in question. In this view I am fortified by several 
 sections of the same Act, where the words ''unlawfully" and "mali- 
 ciously and unlawfully" are used (as in s. 23), and by a comparison 
 of them with the section in question (s. 57), where no such words are 
 to be found. I especially rely upon the 55th section, by which it is 
 enacted that " whosoever shall unlawfully" (a word not used in s. 57) 
 " take or cause to be taken any unmarried girl being under the age of 
 sixteen years out of the possession of her father or mother, or any 
 other person having the lawful care or charge of her, shall be guilty of 
 a misdemeanor." Fifteen out of sixteen judges held, in the case of 
 Reg. V. Prince, L. R. 2 C. C. 154, that, notwithstanding tlie use of the 
 word " unlawfully," the fact of the prisoner believing and having 
 reason to believe that the girl was over sixteen afforded no defence. 
 This decision is approved of upon the present occasion by five judges, 
 making in all twenty against the nine who are in favor of quashing the 
 conviction. To the twenty I may, I think, fairly add Tindal, C J , 
 in Reg. v. Robins, 1 C. «Ss K. 456, and Willes, J., in Reg. v. Mycock, 
 12 Cox C. C 28. 
 
 I rely also very much upon the 5th section of the Act passed in 1885 
 for the better protection of women and girls (48 & 49 Vict. c. 69), by 
 which it was enacted that "any person who unlawfully and carnally 
 knows any girl above thirteen and under sixteen years sliall be guilty 
 of a misdemeanor ; " but to that is added a proviso that " it shall be a 
 sufficient defence if it be made to appear to the court or jury before
 
 SECT. I.] REGINA V. TOLSON. 251 
 
 whom the charge shall be brought that the person charged had reason- 
 able cause to believe, and did believe, that the girl was of or above 
 the age of sixteen." It is to be observed tliat notwithstanding tlie 
 word '■'• unlawfully" appears in this section it was considered necessary 
 to add the proviso, without which it would have been no defence that 
 the accused had reasonable cause to believe, and did believe, that the 
 ffirl was of or above the age of sixteen. Those who hold that the con- 
 viction in the present case should be quashed really import into the 
 o7th section of the 24 & 25 Vict. c. 100, the proviso which is in the 
 5th section of the 48 & 49 Vict. c. 69, contrary, as it seems to me, to 
 the decision in Reg. v. Prince, and to the hitherto undisputed canons 
 for construing a statute. 
 
 It is said that an indictment for the offence of bigamy commences by 
 stating tliat the accused feloniously married, etc., and consequently the 
 principle of 7nens rea is applicable. To this I answer that it is to the 
 language of the Act of Parliament, and not to that of the indictment, 
 the court has to look. I consider the indictment would be perfectly 
 good if it stated that the accused, being married, married again in the 
 lifetime of his or her wife or husband, (contrary to the statute, and so 
 was guilty of felon}-. 
 
 I am very sorry we had not the advantage of having the case argued 
 by counsel on behalf of the Crown. My reason for abstaining from 
 commenting upon the cases cited by Mr. Henry in his very able argu- 
 ment for the prisoner is because the difference of opinion among some 
 of the judges in those cases is as nothing compared with the solemn 
 decision of fifteen out of sixteen judges in the case of Reg. v. Prince. 
 So far as I am aware, in none of the cases cited by my learned brothers 
 was the interest of third parties, such as the fact of there being children 
 of the second marriage, involved. I have listened with attention to 
 the judgments which have been delivered, and I have not heard a single 
 observation with reference to this, to my mind, important and essential 
 point. I am absolutely- unable to distinguish Reg. v. Prince from the 
 present case, and, looking to the names of the eminent judges who 
 constituted the majority, and to the reasons given in their judgments, 
 I am of opinion, upon authority as well as principle, that the conviction 
 should l)e affirmed. 
 
 The only observation which I wish to make is (speaking for myself 
 onl}-) that I agree with my learned brother Stephen in thinking that 
 the phrases ''mens rea" and " non est reus nisi mens sit rea" are not 
 of much practical value, and are not only "likely to mislead," but are 
 " al)solutely misleading." Whether they have had that effect in the 
 present case on the one side or the other it is not for me to say. 
 
 I think the conviction should be affirmed. My brothers Denman, 
 Pollock, Field, and Huddleston agree with this judgment. 
 
 Conviction quashed.
 
 252 REGINA V. STEPHENS. [CHAP. IV. 
 
 REGINA v. STEPHENS. 
 Queen's Bench. 1866. 
 [Reported L. R. 1 Q. B. 702.] 
 
 Indictment. First count for obstructing tlie navigation of a public 
 river called the Tivy by casting and throwing, and causing to be cast 
 and thrown, slate stone and rubbish in and upon the soil and bed of 
 the river, and thereby raising and producing great mounds projecting 
 and extending along the stream and waterway of the river. 
 
 Second count that the defendant was the owner of large quantities 
 of slate quarried from certain slate quarries near the river Tiv}', and 
 that he unlawfully kept, permitted, and suffered to be and remain large 
 quaniities of slate sunk in the river, so that the navigation of the river 
 was obstructed. 
 
 Plea, not guilty. 
 
 The indictment was tried before Blackburn, J., at the last spring 
 assizes for Pembrokeshire, when the following facts were proved : — 
 The Tivy is a public navigable river which flows through Llechryd 
 Bridge, thence b^- Kilgerran Castle, and fi-om thence past the town of 
 Cardigan to the sea. About twenty years ago the Tivy was navigable 
 to within a quarter of a mile of Llechryd Bridge, from which place a 
 considerable traffic was carried on in limestone and culm by means of 
 lighters. 
 
 The defendant is the owner of a slate quarr}- called the Castle Quarry, 
 situate near the Castle of Kilgerran, which he has extensivel}- worked 
 since 1842. The defendant had no spoil bank at the quarry. The 
 rubbish from the quarry was stacked about five or six yards from 
 the edge of the river. Previous to 1847, the defendant erected a wall 
 to prevent it from falling into the river, but in that year a heavy flood 
 carried away the wall, and witli it large quantities of the rubbish. 
 Quantities of additional rubbish were from time to time shot by the 
 defendant's workmen on the same spot, and so slid into the river. By 
 these means the navigation was obstructed, so that even small boats 
 were prevented fi-om coming up to Llechryd Bridge. 
 
 The defendant being upwards of eighty years of age was unable per- 
 sonallj- to superintend the working of the quarry, which was managed 
 for his benefit by his sons. The defendant's counsel was prepared to 
 offer evidence that the workmen at the quarry had been prohibited both 
 by the defendant and his sons from thus depositing the rubbish ; and 
 chat they had been told to place the rubbish in the old excavations 
 and in a place provided for that purpose. The learned judge intimated 
 that the evidence was immaterial ; and he directed the jury that as the 
 defendant was the proprietor of the quarry, the quarrying of which was 
 carried on for his benefit, it was his duty to take all proper precautions
 
 SECT. I.] BEGINA V. STEPHENS. 253 
 
 to prevent the rubbish from falling into the river, and thai if a sub- 
 stantial part of the rubbisii went into the river from having been im- 
 properly stacked so near the river as to fall into it, the defendant was 
 o^uilty of having caused a nuisance, although the acts might have been 
 committed by his workmen, without his knowledge and against his 
 general orders. The jury found a verdict of guilty. 
 
 A rule having been obtained for a new trial, on the ground that the 
 judge misdirected the jury in telling them that the defendant would be 
 liable for the acts of his workmen in depositing the rubbish from the 
 quarries so as to become a nuisance, though without the defendant's 
 knowledge and against his orders, 
 
 JI. S. Giffard^ Q. C, and Poland, showed cause.* 
 
 J. W. Boxoen and Hughes, in support of the rule. 
 
 Mellor, J. \\\ tills case I am of opinion, and in my opinion my 
 Brother Shee concurs, that the direction of my Brother Blackburn 
 was right. It is quite true that this in point of form is a proceeding 
 of a criminal nature, but in substance I think it is in the nature of a 
 civil proceeding, an<l I can see no reason why a different rule should 
 prevail with regard to such an act as is charged in this indictment 
 between proceedings wliich are civil and proceedings which are crim- 
 inal. I think there may be nuisances of such a character that the rule 
 I am applying here, would not be applicable to them, Init here it is per- 
 fectly clear that the only reason for proceeding criminally is that the 
 nuisance, instead of being merel}' a nuisance affecting an individual, or 
 one or two individuals, affects the public at large, and no private indi- 
 vidual, without receiving some special injury, could have maintained an 
 action. Then if the contention of those who sa}' the direction is wrong 
 is to prevail, the public would have great difficulty in getting redress. 
 The object of this indictment is to prevent the recurrence of the nui- 
 sance. The prosecutor cannot proceed by action, but must proceed bv 
 indictment, and if this were strictly a criminal proceeding the prosecu- 
 tion would be met with the objection that there was no r)%ens rea : that 
 tlie indictment charged the defendant with a criminal offence, when in 
 reality there was no proof that the defendant knew of the act, or that 
 he himself gave orders to his servants to do tlie particular act he is 
 charged with ; still at the same time it is perfectl}- clear that the defend- 
 ant finds the capital, and carries on the business which causes tlie 
 nuisance, and it is carried on for his benefit ; although frou". ?ge or in- 
 firmity the defendant is unable to go to the premises, the business is 
 carried on for him bv his sons, or at all events b}' his agenLs. Uuder 
 these circumstances the defendant must necessaril}- give to his servants 
 or agents all the authority that is incident to the carrying on of the busi- 
 ness. It is not because he had at some time or other given directions 
 that it should be carried on so as not to allow the refuse from the works 
 to fall into the river, and desired his servants to provide some other 
 
 ' Arejumenfs of counsel are omitted.
 
 254 REGINA V. STEPHENS. [CHAP. IV. 
 
 place for depositing it, that wlien it lias fallen into tlie river, and li:;s 
 become prejudicial to the public, he can say he is not liable on an indict- 
 ment for a nuisance caused by the acts of liis servants. It appears to 
 me that all it was necessary to prove is, tliat the nuisance was caused 
 in the carrying on of tlie works of the quarry. That being so my 
 Brother Blackburn's direction to the jury was quite riglit. 
 
 I agree tliat the authorities that bear directly upon the case are very 
 few. In the case of Reg v. Russell, 3 E. & B. 942, 23 L. J. M. C. 173, 
 the observations of Lord Campbell might liave been justified by the cir- 
 cumstances of that case, though as I understand it the judgment of the 
 other judges did not proceed on the same reasons. It is therefore only 
 t'le opinion of Lord Campbell as applied to that case. Whether there 
 ii; or is not any distinction between tliat case and the present ma}' be 
 open to question ; but if there is no distinction, I should be prepared 
 rather to have acted upon the reasons which influenced the other judges 
 than those which influenced Lord Campbell. Inasmuch as the object 
 cf the indictment is not to punish the defendant, but really to prevent the 
 nuisance from being continued, I think that the evidence which would 
 support a civil action would be suflScient to support an indictment. 
 
 The rule must be discharged. As I have said, ray Brother Shee con- 
 curs with me in that opinion. 
 
 Blackburn, J. I need only add that I see no reason to change the 
 opinion I formed at the trial. I only wish to guard myself against it 
 lieing supposed that either at the trial or now, the general rule that a 
 principal is not criminally answerable for the act of his agent is in- 
 fringed. All that it is necessary to sa}- is this, that where a person main- 
 tains works by his capital, and employs servants, and so carries on the 
 works as in fact to cause a nuisance to a private right, for which an 
 action would lie, if the same nuisance inflicts an injury upon a public 
 right the remedy for which would be by indictment, the evidence which 
 would maintain the action would also support the indictment. That is 
 all that it was necessary to decide and all that is decided. 
 
 Bule discharged.
 
 SECT. I.] CHISHOLM V. DOULTON. 255 
 
 CHISHOLM V. DOULTON. 
 
 High Court of Justice, Queen's Bench Division. 1889. 
 
 [Reported 22 Q. B. D. 736.] 
 
 Case stated bj- a nietropolitan police magistrate under 20 &. 21 Vict 
 c. 43. 
 
 The respondent, the owner and occupier of certain pottery works 
 situate in tlie metropolis, was summoned b}- the appellant, one of the 
 chief inspectors of the melropolitan police, for having on April 18, 
 1888, negligently used a furnace employed in his pottery works so that 
 the smoke was not effectually consumed or burnt, contrary to the pro- 
 visions of 16 *& 17 Vict. c. 128, s. 1.^ 
 
 Tiie magistrate dismissed the summons subject to a case, of which 
 the material facts were as follows: Smoke issued for the space of ten 
 minutes on the morning of the day in question from one of the respon- 
 dent's furnaces, but the furnace was properly constructed, and the 
 smoke arose by the act of the stoker or person who lighted the fire, 
 who might by proper care have prevented the occurrence. Neither the 
 respondent nor his foreman were guilty of any negligence. The ques- 
 tion for the opinion of the Court was whether the respondent was 
 liable for the negligence of the stoker. 
 
 Field, J. M}- mind has not been altogether free from doubt during 
 the argument, but I think upon the whole that the true conclusion to 
 arrive at upon the construction of the Act is that the respondent can- 
 not be convicted upon the facts found by the magistrate. The offence 
 of which it is sought to convict him is (to put it shortly) that of negli- 
 gently using a furnace so as to emit black smoke, which is the thing 
 
 1 By the Smoke Nuisance (Metropolis) Act, 1853 (16 & 17 Vict c. 128, s. 1), it is 
 provided that " every furnace employed in any mill, factory, ... or other buildings 
 used for the purpose of trade or manufacture within the metropolis, . . . shall in all 
 cases be constructed or altered so as to consume or burn the smoke arising from such 
 furnace; and if any person shall . . . within the metropolis use any such furnace 
 which shall not be constructed so as to consume or burn its own smoke, or shall so 
 negligently use any such furnace as that the smoke arising therefrom shall not be effec- 
 tually consumed or burnt, or shall carry^ on any trade or business which shall occasion 
 any noxious or offensive effluvia, or otherwise annoy the neighbourhood or inhabitants, 
 without using the best practicable means for preventing or counteracting such smoke 
 or other annoyance, every person so offending, being the owner or occupier of the 
 premises, or being a foreman or other person employed by such owner or occupier, 
 shall, upon a summary conviction for such offence before any justice or justices, forfeit 
 and pay a sum of not more than five pounds nor less than forty shillings, and upon a 
 second conviction for such offence the sum of ten pounds, and for each subsequent 
 conviction a sum doubled the amount of the penalty imposed for the last preceding 
 conviction."
 
 256 CHISHOLM V. DOULTON. [CHAP. IV. 
 
 that the legislature was desirous of jjreveiiting. The magistrate has 
 found that the furnace was properl}' constructed, and that the respon- 
 dent had gone to great expense in taking precautions against the dis- 
 charge of smoke from his furnaces. He also found that the respondent 
 had taken care to eniplo}' an efficient foreman to superintend the vari- 
 ous persons having control of the furnaces. In short, the respondent 
 was not personally guilt}" of any negligence whatever. The negligence 
 which caused the emission of smoke on the particular morning in ques- 
 tion was that of the stoker who lit the Are. And the question is, 
 whether the respondent is criminally answerable for the negligence of 
 his servant. 
 
 Now the general rule of law is that a person cannot be convicted and 
 punished in a proceeding of a criminal nature unless it can be shewn 
 that he had a guilt\^ mind. And though the legislature undoubtedlj' 
 mav enact, as in the case of certain of tiie offences under this very Act 
 it has enacted, that persons shall be criminally responsible for the 
 doing of particular acts, even though they have no guilty mind in 
 doing them, yet it is for the prosecution in each case to make out 
 clearl}' that the legislature has in fact so enacted. 
 
 It is said that the respondent is liable because he in fact used this 
 furnace for the purposes of his trade. I agree that he used it, for I 
 entertain no doubt that if this were a civil proceeding for damages he 
 would be liable, and yet he could in such proceeding only be liable 
 if he were the person using it. But the mere use of a furnace so as to 
 emit smoke is not an offence against the section, the offence is the 
 using of it negligently'. Suppose that by an accident which no care 
 could have guarded against the furnace had got out of order, whereb}'' 
 an emission of smoke ensued, that could not be said to be an offence, 
 for there would be no negligence. The essence of the offence is that 
 it should be negligent. And here the respondent took all the care he 
 could. 
 
 Looking at the cases in which it has been held that no appeal lies to 
 the Court of Appeal from decisions relating to public nuisances, I am 
 forced to the conclusion that this is not a mere civil proceeding, but 
 that the offence charged against the respondent is a criminal offence. 
 No doubt in the case of Reg. v. Stephens, Law Rep. 1 Q. B. 702, the 
 learned judges came to the conclusion that in that particular case the 
 proceeding was civil. AVhether they were right or wrong in that view 
 it is not necessary for me to express any opinion, but the}' carefully 
 guarded themselves against being supposed to infringe on the general 
 rule of law that a master is not criminall}' responsible for the acts of 
 his servants. That case must be taken to stand upon its own facts. 
 Tlie case here being a criminal one I must apply the general rule, and 
 by that rule the respondent must be acquitted. 
 
 The conclusion that the respondent is not criminally liable for his 
 servant's negligence is much fortified by a comparison of the provi-
 
 SECT. I.J CHISHOLM V. DOULTON. 257 
 
 sions of s. 1 with those of s. 2. Sect. 1 applies to a stationary thing, 
 a furnace fixed in a building, and provides that the person to be 
 punished shall be the " person so offending," the person, that is to say, 
 who uegligentl}' uses the furnace ; whereas s. 2 applies to a thing which 
 is transient, a steamer moving up or down the river, and provides that 
 the person to be punished shall be not the " person so offending," but 
 " the owner or master or other person having charge of such vessel." 
 From a comparison of the language of those two sections it seems to 
 me that in. the one case the intention of the legislature was to strike at 
 the person guilt}' of the negligence, while in the other, owing to the 
 difficulty of finding out who that person was, it struck directly at the 
 owner or person in charge. I quite admit that this construction may 
 throw difficulties in the way of securing convictions under the former 
 section, but I must construe the language as I find it. 
 
 I must also confess that the provision of s. 1 as to the increase of 
 the penalties on repeated convictions raises a doubt in my mind as to 
 the correctness of our construction. The penalt}' payable on the first 
 conviction is one which, with the costs, there would be great difficulty 
 in getting paid by a mere stoker ; and on each subsequent conviction 
 the penalty is to be doubled, so that if the stoker is the person respon- 
 sible the penalty is to be recovered from a person who is utterly unable 
 to paj- it. This certainly does seem to suggest that the person respon- 
 sible is the person to whom the premises belong, and who is capable of 
 a series of offences, the opportunit}' of committing which a stoker 
 would probably not be given. 
 
 But although I feel the difficultv I think it better to be bound bv the 
 general rule of law that a man cannot be convicted of a criminal 
 offence unless he had a criminal mind. I am therefore of opinion that 
 the magistrate was right, and that this appeal must be dismissed. 
 
 Cave, J. I am of the same opinion. It is a general principle of 
 our criminal law that there must be as an essential ingredient in a 
 criminal offence some blameworth}' condition of mind. Sometimes it 
 is negligence, sometimes malice, sometimes guilty knowledge — but as 
 a general rule there must be something of that kind which is designated 
 by the expression mens rea. Moreover, it is a principle of our criminal 
 law that the condition of mind of the servant is not to be imputed to 
 the master. A master is not criminally responsible for a death caused 
 by his servant's negligence, and still less for an offence depending on 
 the servant's maUce ; nor can a master be held liable for the guilt of his 
 ■servant in receiving goods knowing them to have been stolen. And 
 this principle of the common law applies also to statutory offences, with 
 this difference, that it is in the power of the legislature, if it so pleases, 
 to enact, and in some cases it has enacted, that a man maj' be con- 
 victed and punished for an offence although there was no blameworthy 
 condition of mind about him ; but, inasmuch as to do so is contrarj' to 
 the general principle of the law, it lies on those who assert that the
 
 258 CHISHOLM V. DOULTON. [CHAP. IV. 
 
 legislature has so enacted to make it out convincingly by the language 
 of the statute ; for we ought not lightly to presume that the legislature 
 intended that A. should be punished for the fault of B. 
 
 Now apply those principles to the statute in question. Sect. 1 
 enacts that every furnace sliall be " constructed or altered so as to 
 consume or burn the smoke arising from such furnace." Then comes 
 the part of the section which affixes penalties for various acts tending 
 to produce the evil against which the legislation is directed. " If any 
 •person shall . . . use any such furnace which shall not be constructed 
 so as to consume or burn its own smoke." Now there no condition of 
 mind is required as an element in the offence ; and we ought to hold 
 with regard to that offence that the owner of the works, although not 
 cognisant tliat his furnace is incapable of consuming its own smoke, is 
 liable to be convicted if it in fact is so; for it is expressly enacted that 
 if he uses a furnace not properly constructed he shall be liable to the 
 penalty, and he certainly may use it by his servants. Then, passing 
 over the middle clause for a moment, another part of the section enacts 
 that if any person " shall carry on any trade or business which shall 
 occasion any noxious or offensive effluvia, or otherwise annoy the 
 neighbours or inhabitants, without using the best practicable means for 
 preventing or counteracting such smoke or other annoyance," he shall 
 be liable. There, again, a 7ne/is rea is not essential to the commission 
 of the offence, the owner of the premises is absolutely liable if the 
 trade is carried on in such a manner. Now go back to the clause 
 under which the respondent has been summoned, " or shall so negli- 
 gently use any such furnace as that the smoke arising therefrom shall 
 not be effectually consumed." This differs from the other clauses in 
 that it introduces the word "negligently," a word which imports a 
 blamable condition of mind. If that word were not there, the owner 
 would be responsible for the use of the furnace in such a way tliat the 
 smoke was not consumed although the use was by his servants and not 
 personally by himself. But the legislature has chosen to make negli- 
 gence an essential ingredient in this particular offence. And, al- 
 though the decisions under the Licensing Acts have established that, 
 where a statute has expressly prohibited the doing of something with- 
 out reference to the condition of mind of the party doing it, it may 
 under certain circumstances, and having regard to the object of the 
 statute, he reasonable to infer that the legislature intended that the 
 master should be responsible if his servant disobeyed the prohibition, 
 yet so far as I know no statute has ever yet been judicially interpreted 
 as enacting that where negligence is an essential ingredient in the 
 offence a master is to be responsible for the negligence of his servant. 
 
 Then is there anything else m the section which points to a different 
 interpretation of the clause which we have to construe. I think there 
 is not. The section goes on — " Every person so offending, being the 
 owner or occupier of the premises, or being a foreman or other person
 
 SECT. I.] SHEKRAS V. DE KUTZEN. 259 
 
 employed by such owner or occupier," shall be liable to the penalties 
 provided. That no doubt clearly imports that under certain circum- 
 stances the owner or occupier may be guilty of some of the offences 
 created by the section ; but it creates no difficulty, for the words would 
 be satisfied by reference to thb first-mentioned offence, that of using 
 a furnace not properly constructed, which, as I have said, would clearly 
 be an offence in the owner. And, further, the owner might be guilty 
 of the offence of negligently using the furnace, provided there was 
 personal negligence on his part, as, for instance, if he were to employ 
 an incompetent person to attend to the furnace, or neglected to pro- 
 vide the person employed with the proper appliances to prevent smoke 
 arising, or if he continued to retain in his emplo3'ment a person who, 
 b}' allowing smoke to be emitted, shewed that he was unfit to have the 
 control of the furnace. On the other hand the words above referred 
 to equally clearh' import that under certain circumstances the person 
 emi)loyed by the owner may be guilt}- of some of the offences created 
 b}' the section and liable to the penalties thereto attached. And this, 
 to m\' mind, at once disposes of the difficult}' suggested with regard to 
 the magnitude of the penalties, which it was said a stoker would be 
 unable to pay, and which it was said consequently pointed to the 
 owner as the sole person who was intended to be held responsible. 
 
 I should be quite content to rest my judgment on a consideration of 
 the language of the 1st section alone. But the case for the respondent 
 is still stronger when we come to look at the language of the 2nd 
 section. The language under that section is very different. The 
 legislature has there clearly expressed its intention that in the event of 
 the stoker on board a steamer being guilty of negligence in the use 
 of the furnace, the owner or person in charge of the vessel should be 
 responsible. But the fact that the legislature where it intended that 
 the master should be responsible for the negligence of the servant has 
 expressed that intention in plain language, affords a strong reason why 
 we should not infer such an intention where it has not expressed it 
 clearly. 
 
 For these reasons I think that the decision of the magistrate must 
 be affirmed. Appeal dismissed. 
 
 SHERRAS V. DE RUTZEN. 
 High Court of Justick, Queen's Bench Division. 1895. 
 [Reported 1895, 1 Q. B. 918.] 
 
 The appellant was the licensee of a public-house, and was convicted 
 before a metropolitan police magistrate under s. 16, sub-s. 2, of the 
 Licensing Act, 1872, for having unlawfully supplied liquor to a police 
 constable on duty without having the authority of a superior officer of 
 such constable for so doing.
 
 260 SHERRAS V. DE RUTZEN. [CHAP. IV. 
 
 It appeared that the appellant's public-house was situated nearl}- 
 opposite a police-station, and was much frequented b}- the police 
 when off duty and that on July 16, 1894, at about 4.40, the police 
 constable in question, being then on duty, entered the appellant's 
 house and was served with liquor by the appellant's daughter in his 
 presence. Prior to entering the house the police constable had re- 
 moved his armlet, and it was admitted that if a police constable is not 
 wearing his armlet that is an indication that he is off duty. Neither 
 the appellant nor his daughter made any inquiry of the police con- 
 stable as to whether he was or was not on duty, but they took it for 
 granted that he was off duty in consequence of his armlet being off, 
 and served him with liquor under that belief.^ 
 
 Day, J. I am clearly of opinion that this conviction ought to be 
 quashed. This police constable comes into the appellant's house 
 without his armlet, and with every appearance of being off duty. The 
 house was in the immediate neighborhood of the police-station, and the 
 appellant believed, and he had very natural grounds for believing, that 
 the constable was off duty. In that belief he accordingly served him 
 with liquor. As a matter of fact, the constable was on duty ; but does 
 that fact make the innocent act of the appellant an offence? I do not 
 think it does. He had no intention to do a wrongful act ; he acted in 
 the bona fide belief that the constable was off duty. It seems to me 
 that the contention that he committed an offence is utterly erroneous. 
 An argument has been based on the appearance of the word " know- 
 ingly " in sub-s. 1 of s. 16, and its omission in sub-s. 2. In my opin- 
 ion the only effect of this is to shift the burden of proof. In cases 
 under sub-s. 1 it is for the prosecution to prove the knowledge, while in 
 cases under sub-s. 2, the defendant has to prove that he did not know. 
 That is the only inference I draw from the insertion of the word " know- 
 inglv " in the one sub-section and its omission in the other. 
 
 It appears to me that it would be straining the law to say that this 
 publican, acting as he did in the bona fide belief that the constable was 
 off duty, and having reasonable grounds for that belief, was neverthe- 
 less guilty of an offence against the section, for which he was liable 
 both to a penalty and to have his license indorsed. 
 
 Wright, J. I am of the same opinion. Tliere are many cases on the 
 subject, and it is not very easy to reconcile them. There is a presump- 
 tion that mens rea, an evil intention, or a knowledge of the wrongful- 
 ness of the act, is an essential ingredient in every offence ; but that 
 presumption is liable to be displaced either by the words of the statute 
 creatino; the offence or bv the subject-matter with which it deals, and 
 both must be considered : Nichols v. Hall, Law Rep. 8 C. P. 322. One 
 of the most remarkable exceptions was in the case of bigamy. It 
 was held by all the judges, on the statute 1 Jac. 1, c. 11, that a man 
 was rightlv convicted of bigamy who had married after an invalid 
 
 1 The statement of facts has been slightly condensed. The arguments are omitted
 
 SECT. I,] SHEKRAS V. DE RUTZEN. 261 
 
 Scotch divorce, which had been obtained in good faith, and the validity 
 of which he had no reason to donbt : Lolle^-'s Case, R. & R. 237. An- 
 other exception, ap[)arently grounded on the hmgiiage of a statute, is 
 Prince's Case, Law Rep. 2 C. C. 154, wliere it was held by filleen judges 
 against one that a man was guilty of abduction of a girl under sixteen, 
 although he believed, in good faith and on reasonable grounils, that she 
 was over that age. Apart from isolated and extreme cases of this kind, 
 the principal classes of exceptions may perhaps be reduced to three. 
 One is a class of acts which, in the language of Lush, J., in Davies o. 
 Harvey, Law Rep. 9 Q. B. 433, are not criminal in any real sense, but 
 are acts which in the public interest are prohibited under a penalty. 
 Several such instances are to be found in the decisions on the Revenue 
 Statutes, e. g., Attorney General v. Lockwood, 9 M. & W. 378, where 
 the innocent possession of liquorice by a beer retailer was held an 
 offence. So under the Adulteration Acts, Reg. v. Woodrow, 15 M. &, 
 W. 404, as to the innocent possession of adulterated tobacco ; Fitz- 
 patrick v. Kelly, Law Rep. 8 Q. B. 337, and Roberts v. Egerton, Law 
 Rep. 9 Q. B. 494, as to the sale of adulterated food. So under the 
 Game Acts, as to the innocent possession of game b\' a carrier : Rex v. 
 Marsh, 2 B. & C. 717. So as to the liability of a guardian of the poor, 
 whose partner, unknown to him, supplied goods for the poor : Davies 
 V. Harvey, Law Rep. 9 Q. B. 433. To the same head may be referred 
 Reg. V. Bishop, 5 Q. B. D. 259, where a person was held rightly con- 
 victed of receiving lunatics in an unlicensed house, although the jury 
 found that he honestly and on reasonable grounds believed that they 
 were not lunatics. Another class comprehends some, and perhaps all, 
 public nuisances : Reg. v. Stephens, Law Rep. 1 Q. B. 702, where the 
 employer was held liable on indictment for a nuisance caused by work- 
 men without his knowledge and contrary to his orders ; and so in Rex 
 V. Medley, 6 C. & P. 292, and Barnes v. Akroyd, Law Rep. 7 Q. B. 474. 
 Lastly, there may be cases in which, although the proceeding is criminal 
 in form, it is really only a summary mode of enforcing a civil right : 
 see per Williams and Willes, JJ., in Morden v. Porter, 7 C. B. (N. S.) 
 641; 29 L. J. (M. C.) 213, as to unintentional trespass in pursuit of 
 game ; Lee v. Simpson, 3 C. B. 871, as to unconscious dramatic piracy; 
 and Hargreaves v. Diddams, Law Rep. 10 Q. B. 582, as to a bona fide 
 belief in a legally impossible right to fish. But, except in such cases 
 as these, there must in general be guilty knowledge on the part of the 
 defendant, or of some one whom he has put in his place to act for him, 
 generall}-, or in the particular matter, in order to constitute an offence. 
 It is plain that if guilty knowledge is not necessary, no care on the part 
 of the publican could save him from a conviction under s. 16, sub-s. 2, 
 since it would be as easy for the constable to deny that he was on duty 
 when asked, or to produce a forged permission from his superior officer, 
 as to remove his armlet before entering the public-house. I am, there- 
 fore, of opinion that this conviction ought to be quashed. 
 
 Conviction quashed.
 
 262 BANK OF NEW SOUTH WALES V. PIPER. [CHAP. IV. 
 
 BANK OF NEW SOUTH WALES v. PIPER. 
 
 Judicial Committee of the Privy Council. 1897. 
 
 [Reported 1897, A. C. 383.] 
 
 The judgment of their Lordships was delivered by 
 
 Sir Richard Couch. The suit in this appeal was brought b}' the 
 respondent against the appellants for falseh' and naaliciously and with- 
 out reasonable or probable cause making a charge against him before 
 a justice of the peace, upon which he was summoned to appear at the 
 police court at Cowra in New South Wales, and was committed for 
 trial at the court of quarter sessions at Cowra. Afterwards the 
 attorney general refused to prosecute. The defendants pleaded not 
 guilt}'. The trial took place in March, 1895, before Simpson, J., when 
 the jury found a verdict for the plaintiff for 1000/. damages. Ou May 
 7, 1895, a rule nisi for a new trial or for a nonsuit or verdict for the 
 defendants, pursuant to leave reserved at the trial, was granted by 
 the Supreme Court. On May 11, 1896, the rule was discharged by the 
 Chief Justice and OwEisr, J., Stephen, J., the third judge, dissenting. 
 
 The appellants are a banking company incorporated in the Colony 
 of New South Wales by Act of Parliament and Deed of Settlement. 
 The respondent is a farmer and grazier residing near Cowra. By a 
 deed of mortgage dated February 29, 1892, the respondent assigned to 
 the appellants by way of mortgage 2050 sheep, ninet3'-five head of 
 cattle, and twelve horses, as a collateral security for credit advances 
 and accommodation to the extent of 2o0l. in account current which the 
 bank had agreed to grant to him. The mortgage was duh' executed 
 and registered in accordance with the provisions of the Act 11 Vict. 
 No. 4. Sect. 7 of that Act is as follows : — ■ 
 
 " And whereas it is expedient, with a view to increase the public con- 
 fidence in the validity of such preferable liens on wool and mortgages 
 of live stock to surround them with the penal provisions necessary for 
 the punishment of frauds : Be it enacted that any grantor of any such 
 preferable lien on wool or of an^- mortgage of sheep, cattle, or horses 
 and of their increase and progeny under this Act, whether such grantor 
 shall be principal or agent, who shall afterwards b}' the sale or delivery 
 of the wool under any such lien, without the written consent of the lienec. 
 to any purchaser, pawnee, or other person, or by selling, steaming, 
 or boiling down or causing to be sold, steamed, or boiled down without 
 such written consent as aforesaid the sheep whereon the same shall be 
 o;rowino; with a view to defraud such lienee of such wool or of the value 
 thereof, or who shall, after the due execution and registry of any such 
 mortgage, without the written consent of the mortgagee thereof, sell or 
 dispose of or steam or boil down, or cause to be sold and disposed of or
 
 SECT. I.] BANK OF NEW SOUTH WALES V. PIPER. 263 
 
 to be steamed or boiled down, any sheep, cattle, or horses or their 
 increase or progen}', or who shall in an}' waj' or by any means whatso- 
 ever or howsoever directly or indirectl}' destro}', defeat, invalidate, or 
 impair, or any other person or persons who shall wilfully and knowinglv 
 incite, aid, or abet any such grantor directly or indirectly to defeat, 
 destro}', invalidate or impair the right of property of any lienee in the 
 wool of an}' sheep mentioned and described in an}' such registered 
 agreement as aforesaid, or the right of property of any such mortgagee 
 as aforesaid, in any sheep, cattle, or horses or their increase and progeny 
 mentioned in any mortgage duly executed and registered as aforesaid, 
 under the provisions of this Act, shall be severally held and deemed 
 guilty of an indictable fraud and misdemeanor; and being thereof duly 
 convicted, shall be severally liable, in the discretion of the judge or 
 Court before whom any such offender shall be so convicted, to fine or 
 imprisonment, or to both fine and imprisonment, for any period not ex- 
 ceeding three years with or without hard labor at the discretion of 
 such Court or judge.'' 
 
 In May, 1893, whilst the mortgage was subsisting, and the respon- 
 dent was indebted thereon to the appellants in about 240/., the respon- 
 dent, without their written consent, sold and delivered to one Robert 
 Philip King 645 sheep and a number of cattle, part of the sheep and 
 cattle included in the mortgage. On November 3, 1893, James 
 Thomas Evans, the manager of the bank at Cowra, swore an infor- 
 mation under s. 7 before a justice of the peace that the respondent 
 on or about May 19, 1893, without the written consent of the bank, 
 sold and disposed of the sheep and cattle to King. Upon this infor- 
 mation the respondent was brought before the justice of the peace and 
 committed for trial, but the Attorney-General, as already stated, re- 
 fused to file a bill against him. The action was then brouo^ht. 
 
 At the trial the respondent admitted the execution and registration 
 of the mortgage and the sale to King, and did not suggest or set up 
 that at the time of the sale he had or believed himself to have the 
 written consent of the appellants or their manager to the sale ; but he 
 swore that before the sale he obtained the verbal consent of Evans to 
 it. At the close of the respondent's case the appellants' counsel ap- 
 plied for a nonsuit on the ground that on the respondent's evidence he 
 was in fact guilty of the offence with which he had been charged, and 
 that even if it were proved that the appellants had given a verbal con- 
 sent to the sale, it would afford no answer to the charge ; and that, 
 therefore, upon the admitted facts there was reasonable and probable 
 cause for the information and charge. The learned judge declined to 
 nonsuit, but reserved leave to the appellants to move to enter a non- 
 suit or a verdict for them. Evans was then examined as a witness for 
 the appellants. He denied that he gave the respondent any authority 
 orally or in writing to make the sale to King; but the jury, in answer 
 to the first question put to them by the learned judge, found that
 
 264 BANK OF NEW SOUTH WALES V. PIPEE. [CHAP. IV. 
 
 Evans did verball}- authorize the sale. That must therefore be takea 
 as the fact. Two other questions were submitted to the jury, one 
 being: "Did Evans entertain an honest belief that the plaintiff was 
 guilty of the offence charged in the information, and, if so, was his 
 belief founded on such reasonable grounds as would lead an ordinaril}* 
 prudent and cautious man, placed in the position of Mr. Evans, to the 
 conclusion that the plaintiff was probably guilty of the offence?" and 
 the other: ''Did Evans honestly believe that the plaintiff, having sold 
 and disposed of certain sheep and cattle, covered by the mortgage to 
 the bank, without written authority, although he ma}- have had verbal 
 authorit}', was guilty of an indictable offence under 11 Vict. No. 4, s. 
 7, and, if so, was his belief founded on such reasonable grounds as 
 would lead a fairl}' cautious and prudent man in the position of Mr. 
 Evans to entertain such belief? " To both these questions the jury 
 answered " No." 
 
 The decision of the question whether there was reasonable or proba- 
 ble cause for the charge depends upon the construction of s. 7. It was 
 for the judge to decide that question, as a matter of law, upon the facts 
 admitted or found by the jur}'. It is to be observed that in the first 
 part of s. 7, which relates to the sale or deliver}- of wool that is under 
 a lien, the words " with a view to defraud" are introduced as an essen- 
 tial qualit}' of the offence ; but in the part of the section which relates 
 to the sale and disposition of sheep or cattle that have been mortgaged, 
 these words are omitted. Tliis cannot he considered to be an uninten- 
 tional omission unless it is shewn to be so by the context of the sec- 
 tion. Their Lordships do not see any ground for construing the 
 section as if the words "with a view to defraud" had been inserted 
 in this part of it. The}' cannot alter the offence created b}- the statute 
 by the introduction of words which the Legislature has omitted. 
 
 It was certainly competent to the Legislature of New South Wales 
 to define a crime in such a way as to make the existence of any state 
 of mind of the perpetrator immaterial, and the question is whether in 
 the case of the sale bv the mortgagor it has not done so. The enact- 
 ment in this part of s. 7, according to the ordinary meaning of the 
 words, appears to their Lordships to provide that the selling without 
 a written consent shall be punished as if it were a fraud. In their 
 Lordships' opinion neither the preamble to the 7th section nor the 
 enactment that the persons offending shall be held and deemed guilty 
 of an indictable fraud justifies the opinion that an intent to defraud 
 must be implied, or that it is open to the person charged to give evi- 
 dence to rebut the presumption of fraud. It is the intention of the 
 Legislature to make a sale by the mortgagor without the written con- 
 sent of the mortgagee a criminal offence. It was strongly urged by 
 the respondent's counsel that in order to the constitution of a crime, 
 whether common law or statutory, there must be mens rea on the part 
 of the accused, and that he maj^ avoid conviction by shewing that such
 
 SECT. I.] BANK OF NEW SOUTH WALES V. PIPEK, 265 
 
 mens did not exist. That is a proposition which their Lordsliips do not 
 desire to dispute ; but the questions whether a particular intent is made 
 an element of the statutory' crime, and when that is not the case, 
 whether there was an absence of mens rea in the accused, are questions 
 entirely different, and depend upon different considerations. In cases 
 when the statute requires a motive to be proved as an essential element 
 of the crime, the prosecution must fail if it is not proved. On the 
 other hand, the absence of mejis rea reall}- consists in an honest and 
 reasonable belief entertained by the accused of the existence of facts 
 which, if true, would make the act charged against him innocent. The 
 case of Sherras v. De Rutzen, [1895] 1 Q. B. 918, where the convic- 
 tion of a publican for the offence of selling drink to a constable on 
 duty was set aside b}- the court because the accused believed, and had 
 reasonable grounds for the belief, that the constable was not on duty at 
 the time, is an illustration of its absence. The circumstances of the 
 present case aie far from indicating that there was no mens rea on the 
 part of the respondent. He must be presumed to have known the pro- 
 visions of s. 7, whether he was actuall}' acquainted with its terms or 
 not. Then he knew that he had not the written consent of the mort- 
 gagee; and that knowledge was sufficient to make him aware that he 
 was offending against the provisions of the Act, or, in other words, 
 was sufficient to constitute what is known in law as mens rea. If the 
 offence of which the offender is convicted is a venial one, the Act puts 
 it within the discretion of the judge who tries the case to award a 
 nominal punishment. At the end of the defendants' case the learned 
 judge ought to have ruled that, there being no written consent, there 
 was reasonable and probable cause for making the charge in the infor- 
 mation, and he should have directed the jurj' to find a verdict for the 
 defendants. The questions which were submitted to the jur\' were un- 
 necessar}-, and ought not to have been submitted. Their Lordships 
 will therefore humbl}' advise Her Majest}- to discharge the order of the 
 Supreme Court, and to order the rule to enter a verdict for the defen- 
 dants to be made absolute with costs. The respondent will pa}' the 
 costs of this appeal.
 
 266 
 
 MYERS V. STATE. [CHAP. IV. 
 
 MYERS V. STATE. 
 Supreme Court of Errors of Connecticut. 1816. 
 
 [Reported 1 Connecticut, 502.] 
 
 This was an information, brought before tlie count}- court, on the 
 statute,^ for suffering and allowing A. M. and others to travel in a 
 haekne3--coach owned b}' the defendant, from New Haven to Middle- 
 town, on the Sabbath-day."^ 
 
 The court charged the jury that it was incumbent on the defendant, 
 if he justified his act as a case of necessity or charity, to prove by evi- 
 dence on the trial that a case of necessity or charity existed, and that 
 the representation of the passenger to the driver did not in law amount 
 to a justification, unless the same was proved to have been true when 
 made. 
 
 Swift, C. J.^ The letting of a carriage on Sunday, on the ground of 
 necessity or charity, is not prohibited by the statute. If then a man 
 acts honestly on such principle, and really believes that the case of 
 necessity or charit}' exists, he is not criminal. It is true, a man may 
 be deceived and imposed upon by falsehood and misrepresentation ; 
 yet if he verily believes that the case exists, and acts on that ground, 
 it is as much a deed of charity in him, if the fact does not exist, as if 
 it does. It is a letting of the carriage as a matter of charity. Unless 
 this construction be adopted, a man may be convicted of a crime when 
 he had no intent to violate the law, and when his object was to perform 
 a deed of charity conformable to law. This would oppugn the maxim 
 that a criminal intent is essential to constitute a crime. 
 
 It is true, on this construction, attempts may be made to evade the 
 statute ; but in all cases it will be a question of fact to the jury whether 
 the party acted under a serious impression of the truth of the repre- 
 sentation made to him. If there be any appearance of collusion, any 
 management to elude the statute, then the excuse ought not to avail ; 
 and by the exercise of a proper discretion the violation of this law 
 may commonly be prevented. But on a diflferent construction, all 
 works of cliarity would be prevented. If a man is bound to prove not 
 only that he believed it to be an act of charity, but that the facts existed, 
 otherwise he should be liable to be punished, there would be very great 
 danger in performing the charity which the statute does not prohibit 
 
 The court, tlien, in charging the jury that the facts constituting the 
 act of charity must be proved to have existed, committed an error. 
 
 1 Oct. Sess. 1814, c. 17. " No proprietor ... of any coach . . , shall suffer or allow 
 any person or persons to travel, except from necessity or charity, in such cairiage, 
 within this state, on the Sabbath or Lord's day." 
 
 2 The statement of facts has been abridged. 
 
 * The concurring opinion of Gould, J., is omitted.
 
 SECT. I.] BIRNEY V. STATE. 2G7 
 
 They should have directed the jury, if they found that the defendant 
 had reasona!)le ground to believe from tlie representation made to hiui 
 that the case of charity existed, and tluit he honestly acted under the 
 impression of that belief, they ought to find him not guilty. 
 
 1 am of opinion there is error in the judgment of the county court.* 
 
 BIRNEY V. STATE. 
 Supreme Court of Ohio. 1837. 
 
 [Reported 8 Ohio, 230.] 
 
 Judge Wood ^ delivered the opinion of the court. 
 
 The statute upon which this indictment is predicated enacts "that 
 if any person shall harbor or secrete any black or mulatto person, the 
 property of another, the person so offending shall, on conviction thereof, 
 be fined any sum not less than ten nor more than fifty dollars." We are 
 first called to consider whether, under this enactment, the indictment 
 is sufficient. 
 
 It is required that every indictment shall have a precise and suflBcient 
 certainty. The omission of a word of substance is fatal. (2 Haw. P. C. 
 chap. 25, s. 4.) Here the plaintiff in error is charged with harboring 
 and secreting a certain mulatto girl by the name of Matilda, the prop- 
 erty of L. Larkin. There is no averment that the plaintiff in error knew 
 the facts alleged, that Matilda was a slave and the property 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 involuntary servitude within its 
 limits, except as a punishment for the commission of crimes. On the 
 contrary, the presumption is in favor of freedom. The scienter, 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 held criminal, unless the 
 intention accompanies the act, either expressly or necessarily inferred 
 from the act itself. '■'•Ignorantia facti doth excuse, for such an igno- 
 rance, many times, makes the act itself morally involuntary." 1 Hale's 
 P. C. 42. 
 
 It is true that the statute upon which the indictment is founded 
 omits the scienter, and the indictment covers all the facts enumerated 
 in that statute. But this is not sufl^icient ; it cannot be assumed 
 that an act which, independent of positive enactment, involves no 
 
 » See Bradley v. People, 8 Col. 599. — Ed 
 
 2 The opinion only is given ; it sufficiently states the case.
 
 268 COMMONWEALTH V. MASH. [CHAP. IV. 
 
 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, the plaintiff in error was indicted for uttering 
 and publishing forged certificate of deposit, without averring his knowl- 
 edge of such forgery. The statute under whicli tlie 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 tlie conviction that it is correct. Tliis 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 countr}', to 
 be adjudicated upon without necessit}.^ 
 
 COMMONWEALTH v. MASH. 
 Supreme Judicial Court of Massachusetts. 1844. 
 
 [Reported 7 MetcalJ] 472.] 
 
 The defendant was indicted, on the Rev. Sts. c. 130, s. 2, for mann- 
 ing a second husband while her former husband was living. 
 
 At the trial in the Municipal Court, at August term, 1843, there was 
 evidence tending to prove that the 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 the 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 authorit}' 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, Hempst. 489 ; Lee v. Lacey, 1 Cranch C. C. 263 ; couf. State 
 V. B. & S. Steam Co. 13 Md. 181. — Ed.
 
 SECT. I.] COMMONWEALTH V. MASH. 26U 
 
 The counsel for the defendant moved the court to instruct the jury 
 that if they believed all the facts which tlie aforesaid evidence tended 
 to prove, she was entitled to an acquittal. But the court refused so to 
 instruct the jury, and instructed them that the defendant's ignorance 
 that lier said husband, Teter Mash, was alive, and her honest belief 
 that he was dead, constituted no legal defence. 
 
 The jury found the defendant guilty, and she filed exceptions to the 
 instruction of the court. 
 
 Hallett, 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 the motion of the 
 defendant's counsel was expressed. The rule, as thus laid down, in 
 effect was, that a woman whose husband suddenly left her without 
 notice, and saying, when he went out, that he should return immediately, 
 and who is absent between three and four years, though she have made 
 inquiry after him, and is ignorant of his being alive, but honestly believes 
 him to be dead, if she marries again is guilty of polygamy. The cor- 
 rectness of this instruction must of course depend upon the construction 
 of tlie Rev. Sts. c. 130, which regulate this subject. The second section 
 imposes a penalty upon any person who, having a former husband or wife, 
 shall marry another person ; with some exceptions. The third section 
 excepts from the operation of the statute "any person whose husband 
 or wife shall have been continually remaining beyond sea, or shall have 
 voluntarily withdrawn from the other, and remained absent for the 
 space of seven years together, — the party marrying again not knowing 
 the other to be living within that time." 
 
 It appears to us that in a matter of this importance, so essential to 
 the peace of families and the good order of society, it was not the inten- 
 tion of the law to make the legality of a second marriage, while the 
 former husband or wife is in fact living, depend upon ignorance of such 
 absent party's being alive, or even upon an honest belief of such per- 
 son's death. Such belief might arise after a \ev\ short absence. But 
 it appears to us that the legislature intended to prescribe a more exact 
 rule, and to declare, as law, that no one should have a right, uj^on such 
 ignorance that the otlier party is alive, or even upon such honest belief 
 of his death, to take the risk of marrying again, unless such belief is 
 confirmed by an absence of seven years, with ignorance of the absent 
 party's being alive within that time. It is analogous to other provis- 
 ions and rules of law, by which a continued absence of a person for 
 seven years, without being heard of, will constitute a presumption of 
 his death. Loring v. Steineman, 1 Met. 204 ; Greenl. on Ev. s. 41. 
 
 We are strongly confirmed in this construction of the statute, and 
 that such was the deliberate expression of the legislative will, by refer- 
 ence to the report of the commissioners for revising the statutes. It 
 appears, by their report upon this provision, that they prescribed a much
 
 270 COMMONWEALTH V. BOYNTON. [CHAP. IV. 
 
 more mitigated rule, and proposed to extend the exception "to an\' 
 person whose former liusband or wiCo, having been absent one year or 
 more at the time of such second marriage, sliall be believed to be dead." 
 This proposal was stricken out l)y the committee appointed to consider 
 the report of the commissioners, and the legislature adopted their 
 amendment, and passed the law as it stands, without tlie proposed 
 additional exception. This shows at least tliat the attention of the 
 legislature was called to the subject, and that it was by design, and not 
 through inadvertence, that the law was framed as it is. 
 
 It was urged in the argument that where there is no criminal intent, 
 there can be no guilt ; and if the former husband was honestly believed 
 to be dead, there could be no criminal intent. The proposition stated 
 is undoubtedly correct in a general sense ; but the conclusion drawn 
 from it in this case by no means follows. Whatever one vohintarily 
 does, he of course intends to do. If the statute has made it criminal 
 to do an}' act under particular circumstances, the part}' voluntarily doing 
 that act is chargeable with the criminal intent of doing it. On this 
 subject the law has deemed it so important to prohibit the crime of 
 polvgamy, and found it so difficult to prescribe what shall be sufficient 
 evidence of the death of an absent person to warrant a belief of the 
 fact, and as tlie same vague evidence might create a belief in one mind 
 and not in another, the law has also deemed it wise to fix a definite 
 period of seven 3'ears' continued absence, without knowledge of the con- 
 trary, to warrant a belief that the absent person is actually dead. One, 
 therefore, who marries within that time, if the other party be actually 
 living, whether the fact is believed or not, is chargeable witli that crimi- 
 nal intent, hy purposely doing that w^hich the law expressl}' prohibits. 
 
 Exceptions overruled.} 
 
 [The court did not pass sentence on the defendant, but took a recog- 
 nizance for lier appearance in court at a future day. On the 9th of Jul}', 
 1844, the defendant received a full pardon from the governor, which 
 she brought into court on the 15th of said July, and pleaded the same 
 in bar of sentence. Whereupon the court ordered her to be discharged.] 
 
 COMMONWEALTH v. BOYNTON. 
 
 Supreme Judicial Court of Massachusetts. 1861. 
 
 [Reported 2 Allen, 160.] 
 
 Indictment against the defendant for being a common seller of 
 intoxicating liquor. At the trial in the Superior Court, after certain 
 sales of beer had been testified to, the defendant ofl!'ered evidence to 
 prove that the article sold was not intoxicating, and that, if it were 
 
 1 See, contra, Squire v. State, 46 Ind. 459. — Ed.
 
 SECT I.] COMMONWEALTH V. BOYNTON. 271 
 
 SO, he had no reason to suppose that it was so, and bought it for beei 
 which was not intoxicating, and did not believe it to be intoxicating ; 
 but Brigham, J., rejected the latter part of tlie evidence offered, and 
 instructed the jury tliat if tlie defendant sold liquor which was intoxi- 
 cating, as alleged, he might be found guilty, although he did not know 
 or suppose that it was so. The defendant was convicted, and alleged 
 exceptions. 
 
 J. Q. A. Griffin for the defendant. 
 
 Foster, Attorne3'-General, for the Commonwealth. 
 
 Hoar, J. The court are of opinion that the sale of intoxicating 
 liquors in violation of the statute prohibition is not one of those cases 
 in which it is necessary to allege or prove that the person charged 
 with the offence knew the illegal character of his act ; or in which a 
 want of such knowledge would avail him in defence. If the defendant 
 purposely sold the liquor, which was in fact intoxicating, he was bound 
 at his peril to ascertain the nature of the article which he sold. Where 
 the act is expressl}' prohibited, without reference to the intent or pur- 
 pose, and the party committing it was under no obligation to act in 
 the premises, unless he knew that he could do so lawfully, if he violates 
 the law he incurs the penalty. The salutar}* rule that every man is 
 conclusiveh' presumed to know the law is sometimes productive of 
 hardship in particular cases. And the hardship is no greater where 
 the law imposes the duty to ascertain a fact. 
 
 It could hardly be doubted that it would constitute no defence to an 
 indictment for obstructing a highway, if the defendant could show 
 that he mistook the boundaries of the way, and honestly supposed 
 that he was placing the obstruction upon his own land. The same 
 principle was applied in the case of bigamy. Commonwealth lu Mash, 
 7 Met. 472 ; and In the case of adultery, Commonwealth v. El well, 2 
 Met. 190. 
 
 Exceptions overruled. ^ 
 
 1 See ace. Com. v. Farren, 9 All. 489 ; State v. Smith, 10 R. I. 258 (selling adul- 
 terated milk); State v. Stanton, 37 Conn. 421 (selling adulterated liquor). 
 
 Contra, Teague v. State, 25 Tex. App. 577 (selling diseased meat). 
 
 On the same principle it has been held that one is guilty (under a statute forbid- 
 ding it) for allowing a minor to remain in his billiard saloon, though he did not know 
 that tlie youth was a minor. State v. Probasco, 62 la. 400. (See, contra, Marshall v. 
 State, 49 Ala. 21 ; Stern v. State, 53 Ga. 229.) The same decision has been reached 
 in a prosecution upon a statute forbidding the sale of intoxicating liquor to a minor. 
 McCutcheon v. People, 69 111. 601 ; lllrich v. Com., 6 Bush, 400 ; In re Carlson's 
 License, 127 Pa. 330 ; State v. Hartfiel, 24 Wis. 60. (See, contra, Mulreed v. State, 
 107 Ind. 62.) So in the case of a sale to a common drunkard. Barnes v. State, 19 
 Conn. 398. (See, contra, Williams v. State, 48 Ind. 306). 
 
 On the same ground one is held guilty under a statute forbidding the sale of oleo- 
 margarine, though he sold oleomargarine in ignorance of its real nature. State v, 
 Newton, 50 N. J. 534 ; Com. v. Weiss, 139 Pa. 247. 
 
 See also U. S. v. Leathers, 6 Sawy. 17; People v. Harris, 29 Cal. 678 ; State v 
 Welch, 21 Minn. 22. — Ed.
 
 272 STATE V. CHICAGO, MILWAUKEE & ST. PAUL RY. [CHAP. IV. 
 
 STATE V. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY. 
 Supreme Court of Iowa. 1903. 
 
 [Reported 122 la. 22.] 
 
 Ladd, J.^ The defendant admitted the failure of its train to stop 
 within 800 feet and more than 200 feet from the crossing, and inter- 
 posed the defence that the engineer in charge did all he could to stop 
 it, but that, owing to the brakes not working in the usual manner, the 
 momentum of the train carried it over the crossing. The court sub- 
 mitted the case to the jury on the theor}' that the burden of proof was 
 on the defendant, in order to exonerate itself from liabilit}', to show 
 by a preponderance of evidence that the failure to stop was not due to 
 any negligence on the part of its eraplo3-ees in operating the train, or 
 of the company in not having proper appliances, or in keeping those 
 had in proper condition, and that the company might be liable even 
 though the engineer was not. Possibly that should have been the law, 
 but it was not so written b}' the legislature. The statute in question 
 reads: " All trains run upon an^' railroad in this state which intersects 
 or crosses any other railroad on the same level shall be brought to a 
 full stop at a distance of not less than two hundred and not more than 
 eight hundred feet from the point of intersection or crossing, before 
 such intersection or crossing is passed, except as otherwise provided in 
 this chapter. An}' engineer violating the provisions of this section 
 shall forfeit one hundred dollars for each offence, to be recovered in an 
 action in tlie name of the State for the benefit of the school fund, and 
 the corporation on whose road the offence is committed shall forfeit the 
 sum of two hundred dollars for each offence, to be recovered in like 
 manner." Section 2073, Code. The latter part of the statute is purely 
 penal in character, with the evident object of punishing the offender, 
 rather than afford a remedy for the wrongful act. In this respect it 
 differs radically from provisions awarding damages flowing from cer- 
 tain acts, such as the setting out of fire. Its meaning, then, cannot be 
 extended beyond the terms employed. But one offence is denounced 
 by it, and that is the omission of the engineer to stop the train as 
 required. The first sentence commands what shall be done — defines 
 a duty ; the first clause of the second sentence imposes a penalty on 
 any engineer for "each offence" of omitting such duty; the second 
 clause of the second sentence adds a penalty against the corporation 
 "on whose road such offence is committed." To what do these last 
 words refer? Manifestly, to the offence of which the engineer is guilty. 
 
 1 Part of the opiuion only is given. — Ed.
 
 SECT. I.] STATE V. CHICAGO, MILWAUKEE & ST. PAUL EY. 273 
 
 No other is mentioned in the section. The statute cannot be fairlv read 
 otherwise. The thought seems to have been that, as the engineer con- 
 trols the train, the fault in failing to stop as required is primarily his, 
 and secondarily that of the company for which he acts. There is no 
 ground for holding that the company may be liable independent of any 
 fault of the engineer. The forfeiture of the corporation is made to 
 depend upon his guilt of the offence defined, and upon that only. 
 
 As the statute is purely penal in character, it ought not to be 
 construed as fixing an absolute liability. A failure to stop may some- 
 times occur, notwithstanding the utmost efforts of the engineer. In 
 such even this omission cannot be regarded as unlawful. The law 
 never designs the infliction of punishment where there is no wrong. 
 The necessity of intent of purpose is always to be implied in such 
 statutes. An actual and conscious infraction of duty is contemplated. 
 The maxim, " Actus non facit reum nisi mens sit rea" obtains in all 
 penal statutes unless excluded by their language. See Regina v. 
 Tolson, 23 Q. B. Div. 168, where it was said, " Crime is not com- 
 mitted where the mind of the person committing the act is innocent." 
 See, also, Sutherland on Statutory Construction, section 354 et seq. 
 No doubt many statutes impose a penalty regardless of the intention 
 of those who violate them, but these ordinarily relate to matters which 
 may be known definitely in advance. In such cases commission of the 
 offence is due to neglect or inadvertence. But even then it can hardly 
 be supposed the offender would be held if the act were committed when 
 in a state of somnambulism or insanity. As it is to be assumed in the 
 exercise of the proper care that the engineer has control of his train at 
 all times, proof of the mere failure to stop makes out a prima facie 
 case. But this was open to explanation, and if, from that given, it 
 was made to appear that he made proper preparation, and intended 
 to stop, and put forth every reasonable effort to do so, he should be 
 exonerated. See Furley v. Ry. Co., 90 Iowa, 146.
 
 274 REGINA V. SHARPE. [CHAP. IV. 
 
 SECTION II. 
 
 The mens rea : Intent. 
 
 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 the 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 tlie 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 burj'ing-ground was intrusted to allow 
 him to cause the grave above mentioned to be opened, under the pre- 
 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 coffin. 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 coffin, with the corpse therein, to be placed 
 is no authority for saying that relationship can justify the taking of a 
 corpse from the grave where it bad been laid. We have been unwill- 
 ing to affirm 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 the only protection the law affords 
 in respect of the burials of dissenters. The result is, the conviction 
 will stand, and, as the judge states, the sentence should be a nominal 
 fine of one shilling. Conviction affirmed.^ 
 
 ' See Rex v. Ogden, 6 C. & P. 631. — Ed.
 
 SECT. II.] REGINA V. rKINCP]. 2f 5 
 
 REGINA V. PRINCE. 
 
 Court for Crown Cases Reserved. 1875. 
 
 [Reported L. R. 2 C. C. 154.] 
 
 Case stated hy Denman, J. 
 
 At the assizes for Surrey, held at Kingston-upon-Thames, on the 
 24th of March last, Henrj' Prince was tried upon the charge of having 
 unlawfully taken one Annie Phillips, an unmarried girl, being under 
 the age of sixteen 3'ears, out of the possession and against the will of 
 her father. The indictment was framed under s. 55 of 24 & 25 Vict, 
 c. 100. 
 
 He was found guilt}'. 
 
 All the facts necessar}' to support a conviction existed, unless the 
 following facts constituted a defence. The girl Annie Phillips, though 
 proved by her father to be fourteen years old on the 6th of April fol- 
 lowing, looked very much older than sixteen, and the jury found upon 
 reasonable evidence that before the defendant took her away she had 
 told him that she was eighteen, and that the defendant bona Jide 
 believed that statement, and that such belief was reasonable. 
 
 If the Court should be of opinion that under these circumstances a 
 conviction was right, the defendant was to appear for judgment at the 
 next assizes for Surrey ; otherwise the conviction was to he quashed : 
 see Reg. v. Robins, C. & K. 546, and Reg. v. Olifier, 10 Cox, Cr. C. 
 402. 
 
 Brett, J.^ ... It would seem that there must be proof to satisfy a 
 jury ultimately that there was a criminal mind, or mens rea^ in every 
 offence reallj' charged as a crime. In some enactments, or common 
 law maxims of crime, and therefore in the indictments charcjins: the 
 committal of those crimes, the name of the crime imports that a mens 
 Tea must be proved, as in murder, burglary, etc. In some the mens rea 
 is contained in the specific enactments as to the intent which is made a 
 part of the crime. In some the word "feloniously" is used, and in 
 such cases it has never been doubted but that a felonious mind must 
 ultimately be found b}' the jur}'. In enactments in a similar form, but 
 in which the prohibited acts are to be classed as a misdemeanor, the 
 word '•'• unlawfully " is used instead of the word " feloniously." What 
 reason is there wh}', in like manner, a criminal mind, or mens rea, must 
 not ultimately be found by the jury in order to justify a conviction, the 
 distinction always being observed, that in some cases the [)roof of the 
 committal of the acts may prima facie, either by reason of their own 
 nature, or by reason of the form of the statute, import the proof of 
 the mens rea ? But even in those cases it is open to the prisoner to 
 rebut the ^:»nma facie evidence, so that if, in the end, the jury are 
 satisfied that there was no ciMminal mind, or mens rea, there cannot be 
 
 1 Fart of this dissenting opinion is omitted. — Ed.
 
 276 REGINA V. PRINCE. [CHAP. IV. 
 
 a conviction in England for that which is b}- the law considered to be a 
 crime. 
 
 There are enactments which by their form seem to constitute the pro- 
 hibited acts into crimes, and jet b}' virtue of whicli enactments the 
 defendants charged with the committal of the prohibited acts have been 
 convicted in the absence of the knowledge or intention supposed neces- 
 sar}' to constitute a mens rea. Such are the cases of trespass in pursuit 
 of game, or of piracy of literary' or dramatic worlis, or of the statutes 
 passed to protect the revenue. But the decisions have been based upon 
 the judicial declaration that the enactments do not constitute the pro- 
 hibited acts into crime, or otfences against the Crov/n, but only prohibit 
 them for the purpose of protecting the individual interest of individual 
 persons, or of the revenue. Thus, in Lee v. Simpson, 3 C. B. 871 ; 15 
 L. J. (C. P.) 105, in an action for penalties for the representation of a 
 dramatic piece, it was held that it was not necessary to shew that the de- 
 fendant knowingly invaded the plaintiff's right. But the reason of the 
 decision given by Wilde, C. J., 3 C. B. at p. 883. is : "The object of 
 the legislature was to protect authors against the piratical invasion 
 of their rights. In the sense of having committed an offence against 
 the Act, of having done a thing that is prohibited, the defendant is an 
 offender. But the plaintiff's rights do not depend upon the innocence 
 or guilt of the defendant." So the decision in Morden v. Porter, 7 C. 
 B. (N. S.) 631 ; 29 L. J. (M. C.) 218, seems to be made to turn upon 
 the view that the statute was passed in order to protect the individual 
 property of the landlord in game reserved to him bv his lease against 
 that which is made a statutory trespass against him, although his land 
 is in the occupation of his tenant. There are other cases in which the 
 ground of decision is that specific evidence of knowledge or intention 
 need not be given, because the nature of the prohibited acts is such that, 
 if done, they must draw with them the inference that the}' were done 
 with the criminal mind or intent which is a part of every crime. Such 
 is the case of the possession and distribution of obscene books. If a 
 man possesses them, and distributes them, it is a necessary inference 
 that he must have intended that their first effect must be that which is 
 prohibited by statute, and that he cannot protect himself by shewing 
 that his ultimate object or secondary- intent was not immoral : Reg. v. 
 Hicklin, Law Rep. 3 Q. B. 360. This and similar decisions go rather 
 to shew what is inens rea, than to shew whether there can or cannot be 
 conviction for crime proper without 7nens rea. 
 
 As to the last question, it has become ver}' necessary to examine the 
 authorities. In Blackstone's Commentaries, b}' Stephen, 2d ed., vol. 
 iv., Book G, Of Crimes, p. 98. " And as a vicious will without a vicious 
 act is no civil crime, so, on the other hand, an unwarrantable act 
 without a vicious will is no crime at all. So that, to constitute a crime 
 against human laws, there must be first a vicious will, and secondh' an 
 unlawful act consequent upon such vicious will. Now there are three 
 cases in which the will does not join with the act : 1. Where there is a
 
 SECT. II.] REGINA V. rillNCE. 277 
 
 defect of understanding, etc.; 2. Where there is understanding and 
 will sufficient residing in the part3-, but not called forth and exerted at 
 the time of the action done, wliieh is the case of all offences committed 
 by chance or ignorance. Here the will sits neuter, and neither concurs 
 with the act nor disagrees to it." And at p. 105 : " Ignorance or mis- 
 take is another defect of will, when a man, intending to do a lawful act, 
 does that which is unlawful; for here, the deed and the will acting 
 separately, there is not that conjunction between them which is neces- 
 sar}- to form a criminal act. But this must be an ignorance or mistake 
 in fact, and not an error in point of law. As if a man, intending to 
 kill a thief or housebreaker in his own house, b}' mistake kills one of 
 his famil}', this is no criminal action; but if a man thinks he has a right 
 to kill a person excommunicated or outlawed wherever he meets him, 
 and does so, this is wilful murder." In Fowler v. Padget, 7 T. R. 509, 
 the jury found that the}' thought the intent of the plaintiff in going to 
 London was laudable ; that he had no intent to defraud or delay his 
 creditors, but that dela}' did actually happen to some creditors. Lord 
 Kenyon said: " Bankruptc}' is considered as a crime, and the bankrupt 
 in the old laws is called an offender ; but it is a principle of natural 
 justice and of our laws that actus non facit reiirn nisi mens sit rea. 
 The intent and the act must both concur to constitute the crime." 
 And again : "I would adopt any construction of the statute that the 
 words will bear, in order to avoid such monstrous consequences as 
 would manifestly ensue from the construction contended for." 
 
 In Hearne v. Garton, 2 E. & PI 16 ; 28 L. J. (M. C.) 216, the respond- 
 ents were charged upon an information for having sent oil of vitriol by 
 the Great Western Railway without marking or stating the nature of 
 the goods. B}' 20 & 21 Vict. c. 43, s. 168, " everv person who shall 
 send or cause to be sent by the said railway any oil of vitriol, shall dis- 
 tinctl}' mark or state the nature of such goods, etc., on pain of forfeit- 
 ing, etc." By s. 206 such penalt}' is recoverable in a summary way 
 before justices, with power to imprison, etc. The respondents had in 
 fact sent oil of vitriol unmarked. But the justices found that there was 
 no guilty knowledge, but, on the contrary, the respondents acted under 
 the full belief that the goods were correct!}- described, and had pre- 
 viouslj' used all proper diligence to inform themselves of the fact. 
 The}' refused to convict. It must be observed that in that case, as in 
 the present, the respondents did in fact the prohibited acts, and thnt 
 in that case as in tliis, it was found, as the ultimate proof, that they 
 were deceived into the belief of a different and non-criminal state of 
 facts, and had used all proper diligence. The case is stronger, per- 
 haps, than the present by reason of the word "unlawfully" being 
 absent from that statute. The Court upheld the decision of the magis- 
 trates, holding that the statute made the doing of the prohibited acts a 
 crime, and therefore that there must be a criminal mind, whicii there 
 was not. "As to the latter reason I think the justices were perfectly 
 right: actus non facit reum nisi mens sit rea. The act with which the
 
 278 fiEGINA V. PRINCE. [CHAP. IV. 
 
 respondents were ohfirgerl is an offence created by statute, and for 
 wliich the person committing it is liable to a penalty or to imprison- 
 ment ; not only was there no proof of guilty knowledge on the part of 
 the respondents, but the presumption of a guilty knowledge on their part, 
 if any could be raised, was rebutted by the proof that a fraud had been 
 practised on them. I am inclined to think they were civilly liable : " 
 Lord Campbell, C. J. "I was inclined to think at first, tliat the pro- 
 vision was merely protective; but if it create a criminal offence, which 
 I am not prepared to den}', then the mere sending by tlie respondents, 
 without a guilt}- knowledge on their part, would not render tliem crimi- 
 nall}' liable, although, as the}' took Nicholas's word for the contents of 
 the parcel, they would be civilly liable : " Erle, J. 
 
 In Taylor v. Newman, 4 B. & S. 89 ; 32 L. J. (M. C.) 186, the infor- 
 mation was under 24 & 25 Vict. c. 96, s. 23: "Whosoever shall un- 
 lawfully and wilfully kill, etc., any pigeon, etc." The appellant shot 
 pigeons on his farm belonging to a neighbor. The justices convicted 
 on the ground that the appellant was not justified by law in killing the 
 pigeons, and, therefore, that the killing was unlawful. In other words 
 they held that the only meaning of "unlawfully" in the statute was 
 " without legal justification." The Court set aside the conviction. 
 "I think that the statute was not intended to apply to a case in which 
 there was no guilty mind, and where the act was done by a person 
 under the honest belief that he was exercising a right." Mellor, J. 
 
 In Buckmaster v. Reynolds, 13 C. B. (N. S.) 62, an information was 
 laid for unlawfully, by a certain contrivance, attempting to oljstruct or 
 prevent the purposes of an election at a vestry. The evidence was 
 that the defendant did obstruct the election because he forced himself 
 and others into the room before eight o'clock, believing that eight o'clock 
 ■was passed. The question asked was, whether an intentional ol)struc- 
 tion by actual violence is an offence, etc. This question the Court 
 answered in the aflSrmative, so that there, as here, the defendant had 
 done the prohibited acts. But Erle, J., continued : " I accompany tliis 
 statement (i. e. the answer to the question) by a statement that upon 
 the facts set forth I am unable to see that the magistrate has come to 
 a wrong conclusion. A man cannot be said to be guilty of a delict 
 unless to some extent his mind goes with tlie act. Here it seems that 
 the respondent acted in the belief that he had a right t<j enter the room, 
 and that he had no intention to do a wrongful act." 
 
 In Reg. V. Hilibert, Law Rep. 1 C. C. 184, tlie prisoner was indicted 
 under the section now in question. The girl, who lived with her father 
 and mother, left her home in company with another girl to go to a 
 Sunday school. The piisoner met the two girls and induced them to 
 go to Manchester. At Manchester he took them to a public house and 
 tiiere seduced the girl in question, who was under sixteen. The prisoner 
 made no inquiry and did not know who the girl was, or wiiether she 
 had a father or mother living or not, but he had no reason to, and did 
 not believe that she was a girl of the town. The jury found the prisoner
 
 SECT. II.] REGINA V. PRINCE. 279 
 
 guilty, and Lush, J., reserved the case. In the Court of Criminal 
 Appeal, BoviLLL,C. J.,Channell and Pigott, BB., Byles and Lush, JJ., 
 quashed the conviction. Bovill, C. J. : " In the present case there is 
 no statement of ai)\- finding of fact that the i)risoncr knew, or had 
 reason to beUeve that the girl was under the lawful care or charge of 
 her father or mother, or any other person. In the absence of any find- 
 ing of fact on this point the conviction cannot be supported." This 
 case was founded on Reg. /;. Green, 3 F. & F. 274, before Martin, B. 
 The girl was under fourteen, and lived with her father, a fisherman, at 
 iSouthend. The prisoners saw her in the street b\- herself and induced 
 her to go with them. They took her to a lonely house, and there Green 
 had criminal intercourse with her. Martin, B., directed an acquittal : 
 " There must, he said, be a taking out of the possession of the father. 
 Here the prisoners picked up the girl in the street, and for anything 
 that appeared, they might not have known that the girl had a father. 
 The girl was not taken out of the possession of an}' one. The prison- 
 ers, no doubt, had done a very immoral act, but the question was whether 
 they had committed an illegal act. The criminal law ought not to be 
 strained to meet a case which did not come within it. The act of the 
 prisoners was scandalous, but it was not an}' legal offence." 
 
 In each of these cases the girl was surely in the legal possession of 
 her father. The fact of her being in the street at the time could not 
 possibly prevent her from being in the legal possession of her father. 
 Everything, therefore, proliibited was done by the prisoner in fact. But 
 in each case tlie ignorance of facts was held to prevent the case from 
 being the crime to be punished. 
 
 In Reg. V. Tinckler, 1 F. & F. 513, in a case under this section, 
 CoCKBURN, C. J., charged the jur}' thus: " It was clear the prisoner 
 had no right to act as he had done in taking the cliild out of Mrs. 
 Barnes's custody. But inasmuch as no improper motive was suggested 
 on the part of the prosecution, it might very well be concluded that the 
 prisoner wished the child to live with him, and that he meant to dis- 
 charge the promise which he alleged he had made to her father, and 
 that he did not suppose he was breaking the law wlien he took the child 
 awa}'. This being a criminal prosecution, if the jury should take this 
 view of the case, and be of opinion that the prisoner honestly believed 
 that he had a right to the custody of the child, then, although the prisoner 
 was not legally justified, he would be entitled to an acquittal." The 
 jury found the prisoner not guilty. 
 
 in Reg. V. Sleep, 8 Cox, Cr. C. 472, the prisoner had possession of 
 government stores, some of which were marked with tlie broad arrow. 
 The jury, in answer to the question whether the prisoner knew that the 
 copper, or any part of it was marked, answered, " We have not suffi- 
 cient evidence before us to shew that he knew it." The Court of 
 Criminal Appeal held that the prisoner could not be convicted. Cock- 
 burn, C. J. : Actus non facit ream nisi tnens sit rea is the foundation 
 of all criminal procedure. The ordinary principle that there must be a
 
 280 EEGINA V. PKINCE. [CHAP. IV. 
 
 guilty mind to constitute a guilty act applies to this ease, and must be 
 imported into this statute, as it was held in Reg. v. Cohen, 8 Cox, Cr. 
 C. 41, where this conclusion of the law was stated by Hill, J., with his 
 usual clearness and power. It is true that the statute says nothing 
 about knowledge, but this must be imported into the statute." Pol- 
 lock, C. B., Martin, B., Crompton and Willes, JJ. , agreed. 
 
 In the cases of Reg. v. Robins, 1 C. & K. 456, and Reg. v. Olifler, 10 
 Cox, Cr. C. 402, there was hardly such evidence as was given in this 
 case, as to the prisoner being deceived as to the age of the girl, and 
 having reasonable grounds to believe the deception, and there cer- 
 tainl}' were no findings by the jury equivalent to the findings in this 
 case. 
 
 In Reg. V. Forbes and Webb, 10 Cox, Cr. C. 362, although the 
 policeman was in plain clothes, the prisoners certainly liad strong 
 ground to suspect, if not to believe, that he was a policeman ; for the 
 case states that they repeatedly called out to rescue the boy and pitch 
 into the constable. 
 
 Upon all of the cases I think it is proved that there can be no con- 
 viction for crime in England in the absence of a criminal mind or 
 mens rea. 
 
 Then comes the question, what is the true meaning of the phrase? 
 I do not doubt that it exists where the prisoner knowingly does acts 
 which would constitute a crime if the result were as he anticipated, but 
 In which the result may not improbably end by bringing the offence 
 within a more serious class of crime. As if a man strikes with a dan- 
 gerous weapon, with intent to do grievous bodily harm, and kills, the 
 result makes the crime murder. The prisoner has run the risk. So, if 
 a prisoner do the prohibited acts, without caring to consider what the 
 truth is as to facts — as if a prisoner were to abduct a girl under sixteen 
 without caring to consider whether she was in truth under sixteen — he 
 runs the risk. So if he without abduction defiles a girl who is in fact 
 under ten j-ears old, with a belief that she is between ten and twelve. 
 If the facts were as he believed, he would be committing the lesser crime. 
 Then he runs the risk of his crime resulting in the greater crime. It is 
 clear that ignorance of the law does not excuse. It seems to me to fol- 
 low that the maxim as to mews rea appliea whenever the facts which 
 are present to the prisoner's mind, and which he has reasonable ground 
 to believe, and does believe to be the facts, would, if true, make his 
 acts no criminal offence at all. 
 
 It may be true to sa}' that the meaning of the word " unlawfully " is 
 that the prohibited acts be done without justification or excuse ; I. of 
 course, agree that if there be a legal justification there can be no crime ; 
 but I come to the conclusion 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 criminal offence at all, is an 
 excuse, and that such excuse is implied in every criminal charge and 
 every criminal enactment in England. I agree with Lord Kenyon
 
 SECT. II.] KEGINA V. PRINCE. 281 
 
 that "such is our law," and with Cockburn, C. J., that "such is the 
 foundation of all criminal procedure." 
 
 Bramwell, B.^ The question in this case depends on the construc- 
 tion of the statute under wliich the prisoner is indicted. Tliat enacts 
 tliat " whosoever shall unlawfully take any unmarried girl under the 
 age of sixteen out of the possession and against the will of her father 
 or mother, or any other person having the lawful care or charge of her, 
 shall be guilty of a misdemeanor." Now the word "unlawfully " means 
 "not lawfully," "otherwise than lawfully," "without lawful cause," 
 such as would exist, for instance, on a taking by a police officer on a 
 charge of felony, or a taking by a father of his child from his school. 
 The statute, therefore, may be read thus : " Whosoever shall take, etc., 
 without lawful cause." Now the prisoner had no such cause, and con- 
 sequently, except in so far as it helps the construction of the statute, 
 the word " unlawfully " may in the present case be left out, and tiien 
 the question is, has the prisoner taken an unmarried girl under the age 
 of sixteen out of the possession of and against the will of her father? In 
 fact, he has; but it is said not within the meaning of the statute, and 
 that that must be read as though the word " knowingly," or some equiv- 
 alent word, was in ; and the reason given is, that as a rule the mens 
 rea is necessar}- to make an}' act a crime or offence, and that if the facts 
 necessary to constitute an offence are not known to the alleged offender, 
 there can be no mens rea. I have used the word "knowingly ; " but it 
 will, perhaps, be said that here the prisoner not only did not do the act 
 knowingly, but knew, as he would have said, or believed, that the fact 
 was otherwise than such as would have made his act a crime ; that here 
 the prisoner did not say to himself, " I do not know how the fact is, 
 whether she is under sixteen or not, and will take the chance," but 
 acted on the reasonable belief that she was over sixteen ; and that 
 though if he had done what he did, knowing or believing neither way, 
 but hazarding it, there would be a mens rea, there is not one when, as 
 he believes, he knows that she is over sixteen. 
 
 It is impossible to suppose that, to bring the case within the statute, 
 a person taking a girl out of her father's possession against his will is 
 guilty of no offence unless he, the taker, knows she is under sixteen ; 
 that he would not be guilty if the jury were of opinion he knew neither 
 one way nor the other. Let it be, then, that the question is whether 
 he is guilty where he knows, as he thinks, that she is over sixteen. 
 This introduces the necessity for reading the statute with some strange 
 words introduced; as thus: "Whosoever shall take any unmarried 
 girl, being under the age of sixteen, and not believing her to be over 
 the age of sixteen, out of the possession," etc. Those words are not 
 
 1 In this opinion Kelly, C. B., Cleasbv, Pollock and Amphlett, BB., and 
 Grove, Quain, and Denman, JJ., concurred. Blackburn. J., also delivered an 
 opinion supporting the conviction, in which Cockburn, C. J., Mellor, Lush, Quain, 
 Denman, Archibald, Field, and Lindley, JJ., and Pollock, B., concurred. 
 — Ed.
 
 282 REGINA V. PRINCE. [CHAP. IV. 
 
 there, and the question is, whether we are bound to construe the stat- 
 ute as though they were, on account of the rule that the mens rea is 
 necessar}' to make an act a crime. I am of opinion that we are not, 
 nor as tliough the word " Icnowingly " was there, and for the following 
 reasons : The act forbidden is wrong in itself, if without lawful cause ; 
 I do not say illegal, but wrong. I have not lost sight of this, that 
 though the statute probably principally aims at seduction for carnal 
 purposes, the taking may be by a female with a good motive. Never- 
 theless, though there may be such cases, which are not immoral in one 
 sense, I say that the act forbidden is wrong. 
 
 Let us remember what is the case supposed by the statute. It sup- 
 poses that there is a girl — it does not say a woman, but a girl — 
 something between a child and a woman ; it supposes she is in the 
 possession of her father or mother, or other person having lawful care 
 or charge of her ; and it supposes there is a taking, and that that 
 taking is against the will of the person in whose possession she is. 
 It is, then, a taking of a girl, in the possession of some one, against 
 his will. I sa}' that done without lawful cause is wrong, and that the 
 legislature meant it should be at the risk of the taker whether or no 
 she was under sixteen. I do not sa\' that taking a woman of fifty from 
 her brother's or even father's house is wrong. She is at an age when 
 she has a right to choose for herself; she is not a girl, nor of such 
 tender age that she can be said to be in the possession of or under the 
 care or charge of an3'one. I am asked where I draw the line; I answer 
 at when the female is no longer a girl in anyone's possession. 
 
 But what the statute contemplates, and what I say is wrong, is the 
 taking of a female of such tender j-ears that she is properly called a 
 girl, can be said to be in another's possession, and in that other's care 
 or charge. No argument is necessary to prove this ; it is enough to 
 state the case. The legislature has enacted that if anyone 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 the father's consent, though wrongh', he would 
 have no mens rea ; so if he did not know she was in an3'one's posses- 
 sion, nor in the care or charge of anyone. In those cases he would not 
 know he was doing the act forbidden by the statute — an act which, if 
 he knew that she was in possession and in care or charge of anyone, 
 he would know was a crime or not, according as she was under sixteen 
 or not. He would not know he was doing an act wrong in itself, 
 whatever was his intention, if done without lawful cause. 
 
 In addition to these considerations, one may add that the statute 
 does use the word "unlawfully," and does not use the words " know- 
 ingly " or " not believing to the contrary." If the question was whether 
 his act was unlawful, there would be no difficult}', as it clearly was not 
 lawful. 
 
 This view of the section, to m}' mind, is much strengthened by a 
 reference to other sections of the same statute. Sect. 50 makes it
 
 8ECT, II.] BEGINA V. PRINCE. 283 
 
 a felony to unlawful!}' and carnally know a girl under the age of ten. 
 Sect. 51 enacts when she is above ten and under twelve to unlawfully 
 and carnally know her is a misdemeanor. Can it be supposed that in 
 the former case a person indicted miglit claim to be acquitted on the 
 ground that he had believed the girl was over ten thougii under twelve, 
 and so that he had only committed a misdemeanor ; or that he believed 
 her over twelve, and so had committed no offence at all ; or that in a 
 case under s. 51 he could claim to be acquitted, because he believed her 
 over twelve ? In both cases the act is intrinsically wrong ; for the stat- 
 ute says if " unlawfully " done. The act done with a mens rea is un- 
 lawfully and carnally knowing the girl, and the man doing that act does 
 it at the risk of the child being under the statutory age. It would be 
 mischievous to hold otherwise. So s. 56, by which, whoever shall take 
 away any child under fourteen with intent to deprive parent or guardian 
 of the possession of the child, or with intent to steal any article upon 
 such child, shall be guilty of felony. Could a prisoner say, " I did 
 take away the child to steal its clothes, but I believed it to be over 
 fourteen ? " If not, then neither could he say, " I did take the child 
 with intent to deprive the parent of its possession, and I believed it 
 over fourteen." Because if words to that effect cannot be introduced 
 into the statute where the intent is to steal the clothes, neither can they 
 where the intent is to take the child out of the possession of the parent. 
 But if those words cannot be introduced in s. 56, why can they be in 
 
 s. 55 ? 
 
 The same principle applies in other cases. A man was held liable for 
 assaulting a police officer in the execution of his duty, though he did not 
 know he was a police officer. (10 Cox, Cr. C. 362.) Why? because the 
 act was wrong in itself So, also, in the case of burglar}-, could a person 
 chai'ged claim an acquittal on the ground that he believed it was past 
 six when he entered, or in housebreaking, that he did not know the 
 place broken into was a house? Take also the case of libel, published 
 when the publisher thought the occasion privileged, or that he had a 
 defence under Lord Campbell's Act, but was wrong; he could not be 
 entitled to be acquitted because there was no mens rea. Why? because 
 the act of publishing written defamation is wrong where there is no 
 lawful cause. 
 
 As to the case of the marine stores, it was held properly that there 
 was no mens rea where the person charged with the possession of 
 naval stores with the Admiralty mark did not know the stores he had 
 bore the mark : Reg. v. Sleep, 8 Cox, Cr. C. 472 ; because there is 
 nothing prima facie wrong oi immoral in having naval stores unless 
 they are so marked. But suppose his servant had told him that there 
 was a mark, and he had said he would chance whether or not it was the 
 Admiralty mark ? So in the case of the carrier with game in his pos- 
 session ; unless he knew he had it, there would be nothing done or 
 permitted by him, no intentional act or omission. So of the vitriol
 
 284 REGINA V. PRINCE. [CHAP. IV. 
 
 senders ; there was nothing wrong in sending such packages as were 
 sent unless they contained vitriol. 
 
 Further, there have been four decisions on this statute in favour of 
 the construction I contend for. I say it is a question of construction 
 of this particular statute in doubt, bringing thereto the common law 
 doctrine of me7is rea being a necessary ingredient of crime. It seems 
 to me impossible to say that where a person takes a girl out of her 
 father's possession, not knowing wliether she is or is not under sixteen, 
 that he is not guilty ; and equally impossible wiien he believes, but 
 erroneously, that she is old enough for him to do a wrong act with 
 safety. I think the conviction should be affirmed. 
 
 Denman, J. I agree in the judgment of my Brothers Bramwei-l and 
 Blackburn, and I wish what I add to be understood as supplementary 
 to them. The defendant was indicted under the 24 & 25 Vict c. 100, 
 s. 55, which enacts that " whosoever shall unlaw full}' take, or cause to 
 be taken, any unmarried girl, being under the age of sixteen years, out 
 of the possession and against the wish of her father or mother, or of 
 any other person having the lawful care or charge of her, shall be guilty 
 of a misdemeanor." 
 
 I cannot hold that the word " unlawfully " is an immaterial word in 
 an indictment framed upon this clause. I think that it must be taken 
 to have a meaning, and an important meaning, and to be capable of 
 being supported or negatived by evidence upon the trial : see Reg. v. 
 Turner, 2 Moo. Cr. C. 41 ; Reg. v. Ryan, 2 Hawk. P. C. C. 25, § 96. 
 
 In the present case the jury found that the defendant had done ever}'- 
 thing required to bring himself within the clause as a misdemeanant, 
 unless the fact that he bona fide and reason abl}* believed the girl taken 
 by him to be eighteen j'ears old constituted a defence. That is in 
 other woi"ds, unless such bona fide and reasonable belief prevented 
 them from saying that the defendant in what he did acted " uulawfull}' " 
 within the meaning of the clause. The question, therefore, is whether, 
 upon this finding of the juiy, the defendant did unlawfullj' do the things 
 which they found him to have done. 
 
 The solution of this question depends upon the meaning of the word 
 " unlawfully " in s. 55. If it means " with a knowledge or belief that 
 every single thing mentioned in the section existed at the moment of 
 the taking," undoubtedly the defendant would be entitled to an acquittal, 
 because he did not believe that a girl of under sixteen was being taken 
 by him at all. If it only means " without lawful excuse " or justifica- 
 tion, then a further question arises, viz., whether the defendant had any 
 lawful excuse or justification for doing all the acts mentioned in the 
 clause as constituting the offence, by reason, merel}', that he bona fide 
 and reasonably believed the girl to be older than the age limited bj- the 
 clause. Bearing in mind the previous enactments relating to the abduc- 
 tion of girls under sixteen, 4 & 5 Phil. & Mary, c. 8, s. 2, and the gen- 
 eral course of the decisions upon those enactments, and upon the present 
 statute, and looking at the mischief intended to be guarded against.
 
 SECT. II.] REGINA V. PRINCE. 285 
 
 it appears to rae reasonably clear that the word "unlawfully," in the 
 true sense in which it was used, is fully satisfied b}' holding that it is 
 equivalent to the words " without lawful excuse," using those words as 
 equivalent to " without such an excuse as being proved would be a 
 complete legal justification for the act, even where all the facts con- 
 stituting the offence exist." 
 
 Cases may easily be suggested where such a defence might be made 
 out, as, for instance, if it were proved that he had the authority of a 
 Court of competent jurisdiction, or of some legal warrant, or that he 
 acted to prevent some illegal violence not justified by the relation of 
 parent and child, or school-mistress, or other custodian, and requiring 
 forcible interference b}' wa}' of protection. 
 
 In the present case the jur}- find that the defendant believed the girl 
 to be eighteen 3'ears of age ; even if slie had been of that age, she would 
 have been in the lawful care and charge of her father, as her guardian 
 by nature: see Co. Litt. 88, b, n. 12, 19th ed., recognized in Reg. r. 
 Howes, 3 E. & E. 332. Her father had a right to her personal custody 
 up to the age of twenty-one, and to appoint a guardian by deed or will, 
 whose right to her personal custody would have extended up to the 
 same age. The belief that she was eighteen would be no justification 
 to the defendant for taking her out of his possession, and against his 
 will. By taking her, even with her own consent, he must at least have 
 been guilty of aiding and abetting her in doing an unlawful act, viz., in 
 escaping against the will of her natural guardian from his lawful care 
 and charge. This, in ra}' opinion, leaves him wholly without lawful 
 excuse or justification for the act he did, even though he believed that 
 the girl was eighteen, and therefore unable to allege that what he has 
 done was not unlawfull}' done, within the meaning of the clause. In 
 other words, having knowingly done a wrongful act, viz., in taking the 
 girl away from the lawful possession of her father against his will, and 
 in violation of his rights as guardian hy nature, he cannot be heard to 
 say that he thought the girl was of an age beyond that limited by the 
 statute for the off'ence charged against him. He had wrongfully done 
 the very thing contemplated by the legislature : He had wrongful!}- and 
 knowingly violated the father's rights against the father's will. And 
 he cannot set up a legal defence by merel}^ proving that he thought he 
 was committing a different kind of wrong from that which in fact he 
 •?Fas committing. Conviction affirmed.
 
 286 REYNOLDS V. UNITED STATES. [CHAP. IV. 
 
 REYNOLDS v. UNITED STATES. 
 Supreme Coukt of the United States. 1878. 
 
 [Reported 98 United States, 145.] 
 
 Error to the Supreme Court of the Territory of Utah. 
 
 This is an indictment found in the District Court for the third judicial 
 district of the Territory of Utah, charging George Reynolds witli bigamy 
 in violation of sect. 5352 of the Revised Statutes.^ 
 
 Mr. Chief Justice Waite deUvered 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- 
 scribino; 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 onlj- question which remains is, whether those who make pol\'g- 
 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 the}' cannot interfere with mere religions belief and 
 opinions, the}' may with practices. Suppose one believed that human 
 sacrifices were a necessary part of religious worship, would it be seri- 
 ously contended tliat 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 lierself 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 societ}' 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 contraiy 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 effect 
 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 ever}' man is 
 presumed to intend the necessary and legitimate consequences of' what 
 he knowingly does. Here the accused knew he had been once married, 
 and that his first wife was living. He also knew that his second mar- 
 
 's* 
 
 Part only of tlie case, relating to the question of intent, is here given.
 
 SECT. II.] UNITED STATES V. HARMON. 287 
 
 riasre was forbidden by law. When, therefore, he married the second 
 time, he is presumed to have intended to break tlie law. And the 
 breaking of the law is the crime. Every act necessary 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 tlie 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 belief was a part of his 
 professed religion ; it was still belief, and belief only.^ 
 
 UNITED STATES v. HARMON. 
 United States District 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 althougli 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 j)ublic 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 by 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 stoutly 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 Ace. State v. White, 64 N. H. 48, 5 Atl. 828. — Ed. 
 
 2 Part of the opinion only is given. The case was an indictment for depositing an 
 obscene publication in the United States post-office in violation of the provisions of 
 section 3893 of the Revised Statutes of the United States. The defendant attenii)ted 
 to justify his act on the ground that he was actuated solely by the desire to improve 
 sexual habits, and thus benefit the human race. — En.
 
 288 ANONYMOUS. [CHAP. IV. 
 
 advouring Ganges to appease the gods. But civilized society says both 
 arc murderers. The Mormon contends that his religion teaches polyg- 
 amy ; and there is a school of so-called " modern thinkers" who would 
 iibolish inonogamj', and erect on the ruins the flagrant doctrine of 
 promiscuit}', under tlie disguise of.' the affinities. All these claim liberty 
 of conscience and thouglit as the basis of their dogmas, and the pro 
 bono publico as the strength of their claim to indulgence. The law 
 against adulter}- itself would lie dormant if the libertine could get the 
 courts to declare and tlie jurj' 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. 
 Societ}' 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 
 communit}- ; and he consents to all the motto implies, sulus populi 
 suprema est lex; and, as no government can exist without law, the law- 
 making power, within the limits of constitutional authorit}', must be 
 recognized as the bod}- 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. Tlie respon- 
 sibility for this statute rests upon Congress. The duty of the courts is 
 imperative to enforce it while it stands. 
 
 ANONYMOUS. 
 
 Reporters' Note. 1498. 
 
 [Reported Year-Booh, 13 Hen. VII. 14, pi. 5.] 
 
 Hussey 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 keys 
 of the church ; which with the force of the blow flew out of his hand 
 and through a window, and put out the eye of a woman. The question 
 was, whether it should be called maihem 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.
 
 SKCT. II. J KEGINA V. BKUCE. i^B9 
 
 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 ottered him money, whieh the prisoner 
 toolc and put into liis pocket, but continued to treat her witli 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 
 majorit)' of the judges ; for the woman, from violence and terror occa- 
 sioned by the prisoner's behavior, and to redeem her chastit}', offered 
 the money, which it was clear she would not have given voluntarily ; 
 and the prisoner, by 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 by one of the witnesses. He said the prisoner came into his 
 master's shop, and pulled hun b}' 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 they were outside, and kept spinning him round ; the 
 latter broke away 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 verv 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 jury). I think, upon this evidence, j'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 any 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,
 
 290 EEGINA. V. FKANKLIN. [CHAP. IV. 
 
 there was nothing unlawful in what the prisoner did to this lad, and 
 which led to the death of the woman. Had his treatment of the boy 
 been against the will of the latter, the prisoner would have been com- 
 mitting an assault — an unlawful act — which would have rendered 
 him amenable to the law for any consequences resulting from it ; but 
 as every thing tliat was done was with the witness's consent, there was 
 no assault, and consequently no illegality. It is, in the eye of the law, 
 an accident, and nothing more. 
 
 EEGINA V. FRANKLIN. 
 
 Sussex Assizes. 1883. 
 
 [Reported 15 Cox C. C. 163 ] 
 
 Charles Harris Franklin was indicted V)efore Field, J., at Lewes, 
 for the manslaugliter of Craven Patrick Trenchard. 
 
 The facts were as follows : 
 
 On the morning of the 25th da}- of Juh', 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 sufficient to constitute the offence of manslaughter, 
 that the act done bj' the prisoner was an unlawful act, which the facts 
 clearh' 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 : " If 
 death ensues in consequence of a wrongful act, which the party who 
 commits it can neither justif}' nor excuse, it is manslaughter. An indict- 
 ment charged that there was a scaffolding in a certain coal mine, and 
 that the prisoners, by throwing large stones down the mine, broke the 
 scaffolding, and that in consequence of the scaffolding 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 bj' 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 part}' who commits it can neither justif}' 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 injur}- in the particular case, or any general malice, the 
 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
 
 SECT.. II.] COMMONWEALTH V. ADAMS. 291 
 
 party is to be fairly and rcasonabl}" considered as a consequence of 
 sucb 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 (uOi 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 my 
 brother Mathew agrees — that the mere fjict of a civil wrong committed 
 bj' one person against another ought not to be used as an incident wliich 
 is a necessar}' 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 immatei'ial 
 to this charge of manslaughter. I do not think that the facts of this 
 case bring it clearly within the principle laid down by Tindal, C. J., in 
 Reg. V. Fenton. If I tliought 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 boy, and the death of the boy 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 months' imprisonment 
 
 COMMONWEALTH v. ADAMS. 
 Supreme Judicial Court of Massachusetts. 1873. 
 
 [Reported 114 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 i>ass the team while driving
 
 292 COMMONWEALTH V. ADAMS. [CHAP. IV. 
 
 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 defendant to injure the boy was 
 shown. The defendant had pleaded guilly to a complaint for fast driv- 
 ing, in violation of the city ordinance. The Commonwealth asked for a 
 verdict, upon the ground that the intent to violate the cit^- ordinance 
 supplied the intent necessary to sustain the charge of assault and bat- 
 tery. The court so ruled, and thereupon the defendant submitted to a 
 verdict of guilty, and the judge, at the defendant's request, reported 
 the case for the determination of this court. 
 
 A. Buss, for the defendant. 
 
 C. H. Train, Attorney-General, for the Commonwealth. 
 
 Endicott, J. We are of opinion that the ruling in this case cannot 
 be sustained. It is true that one in the pursuit of an unlawful act may 
 sometimes be punished for another act done without design and by mis- 
 take, if the act done was one for which he could have been punished if 
 done wilfully. But the act, to be unlaw^ful in this sense, must be an act 
 bad in itself, and done with an evil intent ; and the law has always 
 made this distinction : that if the act the part}- was doing was merel}- 
 nudum prohibitum, he shall not be punishable for the act arising from 
 misfortune or mistake ; but if malum in se, it is otherwise. 1 Hale 
 P. C. 39 ; Foster C. L. 259. Acts m,ala in se include, in addition to 
 felonies, all breaches of public order, injuries to person or property, 
 outrages upon public decency or good morals, and breaches of official 
 duty, when done wilfully or corruptl}'. Acts ?nala jjrohibita include 
 any matter forbidden or commanded by statute, but not otherwise wrong. 
 3 Greenl. Ev. § 1. It is within the last class that the city ordinance of 
 Boston falls, prohibiting driving more than six miles an hour in the 
 streets. 
 
 Besides, to prove the violation of such an ordinance, it is not neces- 
 sary to show that it was done wilfully or corrupth". The ordinance 
 declares a certain thing to be illegal ; it therefore becomes illegal to do 
 it, without a wrong motive charged or necessary to be proved ; and 
 the court is bound to administer the penalty, although there is an entire 
 want of design. The King u. Sainsbury, 4 T. R. 451, 457. It was held 
 in Commonwealth r. Worcester, 3 Pick. 462. that proof only of the fact 
 that the part}' was driving faster than the ordinance allowed was suf- 
 ficient for conviction. See Commonwealth v. Farren, 9 Allen, 489 ; 
 Commonwealth v. Waite, 11 Allen, 264. It is therefore immaterial 
 whether a party violates the ordinance wilfully or not. The offence 
 consists, not in the intent with wbich the act is done, but in doing the 
 act prohibited, but not otherwise wrong. It is obvious, therefore, that 
 the violation of the ordinance does not in itself supply the intent to do 
 another act which requires a criminal intent to be proved. The learned 
 judge erred in ruling that the intent to violate the ordinance in itselt 
 supplied the intent to sustain the charge of assault and battery. The 
 verdict raust therefore be set aside, and a JVew trial granted.
 
 SECT. II.] STATE V. HORToN. 293 
 
 STATE V. IIOIITON. 
 Supreme Court of Xouth Carolina. 1905. 
 
 [Reported 1.39 N. C. 588.] 
 
 IxDiCTMENT for manslaughter against W. P. Horton, heard by Judo^e 
 W. B. CouNCiLL and a jnr}-, at April Term, 1905, of the Superior Court 
 of Franklin County. Tlie jury rendered a special verdict, and such 
 verdict and proceedings thereon are as follows: 
 
 "Tluit in the uioutli of November, 11)04, to-wit: on the day 
 
 thereof, the defendant, • W. P. Ilorton; was hunting turkeys on the 
 lands of another; that tlie following local statute, enacted bv the Gen- 
 eral Assembly of 11)01, was in force at and in the place in which said 
 defendant was hunting, to-wit : chapter 410 of the Laws of 1901 ; that 
 the said Ilorton at the time he was so hunting, had not the written con- 
 sent of the owner of said land, or of his lavvful agent; that while so 
 engaged in hunting he killed Charlie Hunt, the deceased, but that said 
 killing was wholly unintentional; that the shooting of the deceased was 
 done while the defendant was under the impression and belief that he 
 was shooting at a wild turkey ; that the hunting engaged in by the 
 defendant was not of itself dangerous to human life, nor was he reck- 
 less in the manner of hunting or of handling the firearm with which the 
 killing was done ; that hunting at that season was not forbidden under 
 the general game law of the State, but was prohibited only by the 
 special statute referred to ; that the shooting from which the killing 
 resulted was not done in such grossly careless or negligent manner as 
 to impl}' an}' moral turpitude, or to indicate auy indifference to the 
 safeguarding of human life; that, but for the said statute herein incor- 
 porated, the killing of the deceased bj- defendant does not constitute 
 any violation of the law. If upon the above findings of fact, the court 
 should be of opinion that the defendant is guilty of manslaughter, we 
 for our verdict find the defendant guilty of manslaughter, but if the 
 court should be of opinion that the defendant is not guilty, we for our 
 verdict find that the defendant is not guilty." Upon this special find- 
 ing, the court being of opinion that the defendant was guilt}' of man- 
 slaughter, so adjudged and ordered a verdict of guilty of manslaughter 
 to be entered, and gave judgment that the defendant be imprisoned in 
 the county jail of Franklin, for a period of four months. Defendant 
 excepted to the ruling of the court, and appealed from the judgment 
 against him. 
 
 Hoke, J., after stating the ease: It will be noted that the finding of 
 the jury declares that the act of the defendant w^as not in itself danger- 
 ous to human life, and excludes every element of criminal negligence, 
 and rests the guilt or innocence of the defendant on the fact alone that 
 at the time of the homicide the defendant was hunting on another's 
 land without written permission from the owner. The act which applies
 
 294 STATE V. HOKTON. [CHAP, IV. 
 
 only in the counties of Orange, Frnnlvlin, and Scotland, malces tlie con- 
 duct a misdemeanor, and imposes a punislimeut on conviction, of not 
 less than five nor more than ten dollars. 
 
 The statement sometimes appears in works of approved excellence to 
 the effect that an unintentional liomicide is a criminal offence when 
 occasioned b}' a person engaged at the time in an unlawful act. In 
 nearly ever}' instance, however, will be found the qualification that if 
 the act in question is free from negligence, and not in itself of danger- 
 ous tendency, and the criminality must arise, if at all, entirely from the 
 fact that it is unlawful, in such case, the unlawful act must be one that 
 is malum in se and not merely n)alum proldhiUim^ and this we hold to 
 be the correct doctrine. In Foster's Crown Law, it is thus stated at 
 page 258 : "In order to bring a case within this description (excusable 
 homicide) the act upon which death ensueth mast be lawful. For if 
 the act be unlawful, I mean if it be inulidii in se, the case will amount 
 to felony, either murder or manslaughter, as circumstances may vary 
 the nature of it. If it be done in prosecution of a felonious intent, it 
 will be murder ; but if the intent went no further than to commit a bare 
 trespass, it will be manslaughter." At page 259, the same author puts 
 an instance with his comments thereon as follows: "A shooteth at 
 the poultry of B and by accident killeth a man ; if his intention was to 
 steal the poultry, which must be collected from circumstances, it will 
 be murder b}' reason of that felonious intent, but if it was done wan- 
 tonly and without that intention, it will be barely manslaughter. The 
 rule I have laid down supposeth that the act from which death ensued 
 was mdlnm in se. For if it was barely malum 2:>rohihitani^ as shooting 
 at game by a person not qualified by statute law to keep or use a gun 
 for that i)urpose, the case of a person so offending will fall under the 
 same rule as that of a qualified man. For the statutes prohibiting the 
 destruction of the game under certain penalties will not, in a question 
 of this kind, enhance the accident be^'ond its intrinsic moment." 
 
 One of these disqualif^ying statutes here referred to as an instance of 
 mahim prohibitum was an act passed (13 Richard II, cliap. 13) to 
 prevent certain classes of persons from keeping dogs, nets, or engines 
 to destro}' game, etc., and the punishment imposed on conviction was 
 one year's imprisonment. There were others imposing a lesser penalty. 
 
 Bishop, in his work, entitled New Criminal Law, vol. 1, sec. 332, 
 treats of the matter as follows : "In these cases of an unintended evil 
 result, the intent whence the act accidentally sprang must probabl}' be, 
 if specific, to do a thing which is malum in se and not merely- malum, 
 prohibitum." Thus Archbold says : " When a man in the execution 
 of one act, by misfortune of chance and not designedl}', does another 
 act for which, if he had wilfully committed it, he would be liable to be 
 punished — in that case, if the act he were doing were lawful or merely 
 malum prohibitum, he shall not be punishable for the act arising from 
 misfortune or chance, but if it be malum in. se, it is otherwise. To 
 illustrate: since it is inalntn pro/iibitum, not malum in se, for an
 
 SECT. II.] STA.TE V. HORTON. 295 
 
 unauthorized person to kill game in England contrary to the statutes, 
 if, in unlawfully shooting at game, he accidentally kills a man, it is no 
 more criminal in him tlian if he were authorized. But to shoot at 
 another's fowls, wantonly or in sport, an act which is mxilum in sf, 
 though a civil trespass, and thereby accidental!}' to kill a human being 
 is manslaughter. If the intent in the shooting were to commit larceny 
 of the fowls, we have seen that it would be murder." To same effect 
 is Estelle v. State, 21 N. J. Law, 182; Com. /'. Adams, 114 Mass. 
 323. 
 
 An offence mahun in se is properl}' defined as one which is uaturalh' 
 evil as adjudged b}^ the sense of a civilized community, whereas an act 
 malum prohibitum is wrong onlj- because made so by statute. For 
 the reason that acts mala in se have, as a rule, become criminal offences 
 by the course and development of the common law, an impression has 
 sometimes obtained that only acts can be so classified which the 
 common law makes criminal, but this is not at all the test. An act 
 can be, and frequently is, malum in se, when it amounts only to a civil 
 trespass, provided it has a malicious element or manifests an evil 
 nature, or wrongful disposition to harm or injure another in his person 
 or property. Bishop Cr. Law, supra; Com. v. Adams, siqjfa. 
 
 The distinction between the two classes of acts is well stated in 19 
 Am. & Eng. Enc. (2nd ed.), at p. 705 : " An offence m,alum in se is 
 one which is naturally evil, as murder, theft, and the like. Offences at 
 common law are generally malum in se. An offence malum prohibi- 
 tum, on the contrary, is not naturally an evil, but becomes so in 
 consequence of being forbidden." 
 
 We do not hesitate to declare that the offence of the defendant in 
 hunting pn the land without written permission of the owner was 
 malum prohibitum, and the special verdict having found that the act 
 in which the defendant was engaged was not in itself dangerous to 
 human life, and negatived all idea of negligence, we hold that the case 
 is one of excusable homicide, and the defendant should be declared not 
 guilty. 
 
 We are referred b}' the Attorney-General to East's Pleas of the 
 Crown, and Hale's Pleas of the Crown, as authorities against this 
 position. We would be slow indeed to hold that the law differed from 
 what these eminent authors declared it to be in their da}' and time, nor 
 are we required to do so, for a careful examination of their writings 
 will, we think, confirm the views expressed by the court. My Lord 
 Hale does say in volume 1, p. 39, that " If a man do ex intentione an 
 unlawful act, tending to the bodily hurt of an}- person, as by striking or 
 beating him, though he did not intend to kill him, but the death of the 
 party struck, follow thereby within the yeax and day ; or if he strike at 
 one and missing him kill another whom he did not intend, this is felony 
 and homicide, and not casualty or ^jer infortunium,'''' " So it is, if he 
 be doing an unlawful act though not intending bodily harm to any per- 
 son, as throwing a stone at another's horse, if it hit a person and kill
 
 296 STATE V. HORTON. [CHAP. IV. 
 
 him, this is felony and homicide, and not per infortunium, for the act 
 was voluntarj", though the event was not intended, and therefore the 
 act itself being unlawful, he is criminall}' guilty of the consequence that 
 follows." 
 
 But this author says in treating of the same subject, at pp. 475, 476 : 
 " So if A throws a stone at a bird, and the stone striketh and killeth 
 another to whom he intended no harm, it \.% per infortunium, but if lie 
 had thrown the stone to kill the poultrj' or cattle of B, and the stone 
 hits and kills a bystander, it is manslaughter because the act was un 
 lawful: but not murder because he did not maliciously or with intent 
 to hurt the bystander. . . . B}- the statute of 33 Henry VIII, chap. 6. 
 no person not having lands, etc., of the yearly value of one hundred 
 pounds per annum may keep or shoot a gun, upon pain of forfeiture of 
 ten pounds. Suppose, therefore, such a person, not qualified, shoot 
 with a gun at a bird or at crows, and b}' mischance it kills a b^'stander, 
 by the breaking of the gun or some other accident, that in another case 
 would have amounted onlv to chance-raedle\', this will be no more than 
 chance-medley in him ; for though the statute prohibits him to keep or 
 shoot a gun, yet the same was but mahan prohibitum, and that only 
 under a penalty, and will not enhance the effect beyond its nature." 
 
 Mr. East, while he gives an instance which apparently supports the 
 view of the State, in treating further on the subject in volume 1, p. 255, 
 sa3's : "Homicide in the prosecution of some act or purpose criminal 
 or unlawful in itself, wherein death ensues collaterallj' to or beside the 
 principal intent; I say collaterally to or beside the principal intent in 
 order to distinguish this kind of homicide from that before treated of 
 under the general head of malice aforethought, where the immediate 
 and leading purpose of the mind was destruction to another. And first, 
 it is principally to be observed that if the act on which death ensued be 
 malum in se, it will be murder or manslaughter according to the cir- 
 cumstances ; if done in the prosecution of a felonious intent, however, 
 the death ensued against or beside the intent of the part}', it will be 
 murder ; but if the intent went no further than to commit a bare tres- 
 pass, it will be manslaughter. As where A shoots at the poultry of B, 
 and by accident kills a man ; if his intent were to steal the poultr}^ 
 which must be collected from circumstances, it will be murder by reason 
 of that felonious intent; but if it were done wantonly and without that 
 intent, it will be barel}' manslaughter. A whips a horse on which B is 
 riding, whereupon the horse springs out and runs over a child and kills 
 it; this is manslaughter in A and misadventure in B." And again, at 
 page 257 : " So if one be doing an unlawful act, though not intending 
 bodily harm to any person, as throwing at anothei-'s horse, if it hit a 
 person and kill him, it is manslaughter. Yet in each case it seems that 
 the guilt would rather depend on one or other of these circumstances ; 
 either that the act might probably breed danger or that it was done 
 with a mischievous intent." 
 
 So we have it, that both Sir Matthew Hale and Mr. East, to whom
 
 SECT. II.] STATE V. HORTON. 297 
 
 we were referred as supporting the claim of guilt, declared that the act 
 must be malum in, se, and the instances given b}' them show that these 
 writers had this qualification in mind whenever they state the doctrine 
 in more general terms. 
 
 Sir William IJhukstone also says in .volume 4, pp. 192, 193: ''And 
 in general when an involuntary killing happens in consequence of an 
 unlawful act, it will be either murder or manslaughter, according to the 
 nature of the act which occasions it. If it be in prosecution of a 
 felonious intent, or its consequences naturally- tended to bloodshed, it 
 will be murder; but if no more was intended than a mere civil trespass, 
 it will be manslaughter" — citing Foster's Criminal Law. AVe take it 
 that the distinguished commentator must have intended only such civil 
 trespasses as involve an element mahtm in se, as he cites Foster's 
 Criminal Law, and this author, as we have seen, states the qualification 
 suggested. 
 
 Again, we are cited by the State to an instance put b}' East at 
 p. 269 : •' But though the weapons be of a dangerous nature yet if they 
 be not directed by the person using them against each other, and so no 
 danger to be reasonably apprehended, and if death casually ensue, it is 
 but manslaughter; as if persons be shooting at game, or butts, or any 
 other lawful object, and a bystander be killed. And it makes no differ- 
 ence with respect to game whether the part}' be qualified or not, but if 
 the act be unlawful in itself, as shooting at deer in another's park with- 
 out leave, tliough in sport and without any felonious intent, whereby a 
 bystander is killed, it will be manslaughter ; but if the owner had given 
 leave or the party had been shooting in his own park, it would only 
 have been misadventure." Lord Hale, at page 475, gives the same 
 instance. And it is urged that this instance is exactly similar to the 
 one before us, but not so. 
 
 According to Sir William Blackstone, in his Commentaries, book 2, 
 p. 415 : " For sometime prior to the Norman Conquest, every free- 
 holder had the full liberty of sporting upon his own territories, provided 
 he abstained from the king's forests, as is fully expressed in the laws 
 of Canute and Edward the Confessor. Cuique enlm in propria f undo 
 quamlihet feratn quoquo modo venari permisstim." And further on it 
 is said: "That if a man shoots game on another's private ground and 
 kills it there, the property belongs to him on whose ground it was 
 killed. The property arising ratione soli. . . . On the Norman Con- 
 quest, a new doctrine took place, and the right of pursuing and taking 
 all beasts of chase or venar^-, and such other animals as were accounted 
 game, was then held to belong to the king, or to such onlj' as were 
 authorized under him." Again: "But if the king reserve to himself 
 the forests for his own exclusive diversion, so he granted from time to 
 time other tracts of land to his subjects under the name of chases or 
 parks, or gave them license to make such in their own parks. And, by 
 the common law, no one is at liberty to take or kill any beast of chase 
 but such as hath an ancient chase or park." In Enc. Britannica we
 
 298 STATE V. HORTON. [CHAP. IV. 
 
 read that the chases or parks were much the same, except that the 
 parks were enclosed, having a tendency to make the game contained 
 therein more completely and exclusively the property of the owner. 
 Anyone who entered them was a trespasser, and in shooting the game 
 therein, his act can be likened to that of the case put by Foster, p]ast, 
 and Lord Hale, where one wantonly shot another's chicken. He was 
 engaged in the effort to destroy another's property, and the act could 
 well be considered malum in se. But not so here. We have never 
 transplanted to this country either the Saxon or Norman theory as to 
 the right to take and appropriate game. Here, it is considered the 
 property of the captor, except perhaps in the case of bees. 
 
 It is said in Cooley on Torts: "As regards beasts of chase, the 
 English law is that if a hunter shoots and cai)tures a beast on the land 
 of another, the property is in him as in the owner of the land. Under 
 the civil law, the property passed to the captor. And such is believed 
 to be the recognized rule in America, even wliere the cai)ture has been 
 effected by means of a trespass on another's land." State v. House, 
 65 N. C. 315. 
 
 The act of the defendant, therefore, was not in the effort to destroy 
 another's property, but was strictly vi<il>(7n prohiljitum. State v. Vines, 
 93 X. C. 493, and State v. Dorsey, 118 Ind. 167, are cases apparently 
 opposed to our present decision, but neither is really so. In State v. 
 Vines the sport was imminently dangerous, amounting to recklessness ; 
 and in State v. Dorsey the element of criminal negligence was also 
 present, and in this case a State statute governing the construction was 
 eiven much weio;ht. Neither the one case nor the other required anv crit- 
 ical examination of the doctrine as sometimes stated, that an uninten- 
 tional homicide, occasioned when in the commission of an unlawful act, 
 is manslaughter. The verdict in the case before us negatives both the 
 elements of guilt (present in tliese two cases), declaring that the act 
 was not in itself dangerous and that the defendant was not negligent. 
 
 Again, it has been called to our attention that courts of the highest 
 authority have declared that the distinction between malum prohibitum 
 and malum in se is unsound, and has now entirely disappeared. Our 
 own court so held in Sharp v. Farmer, 20 N. C. 255, and decisions to 
 the same effect have been made several times since. Said Ruffin, C. 
 J., in Sharp v. Farmer : " The distinction between an act malum in se 
 and one malum prohibitum was never sound and is entirely disregarded, 
 for the law would be false to itself if it allowed a party through its tri- 
 bunals to derive advantage from a contract made against the intent and 
 express provisions of the law." It will be noted that this decision was 
 on a case involving the validity of a contract, and the principle there 
 establislied is undoubtedly correct. The fact, however, that the judge 
 who delivered the opinion uses the words " was never sound," and that 
 other opinions to the same effect use the words " has disappeared," 
 shows that the distinction has existed ; and it existed too at a time 
 when this feature in the law of homicide was established. And we are
 
 SECT. II.J 
 
 STATE V. HOIITON. 299 
 
 well assured that because the courts, in administering the law on the 
 civi) side of the docket, have come to the conclusion that a principle 
 once established is unsound and should be rejected, this should not have 
 the effect of changing the character of an act from innocence to guilt, 
 which had its status fixed when the distinction was recognized and 
 
 enforced. 
 
 It was further suggested that the homicide was one of the very results 
 which the statute was designed to prevent, and to excuse the defendant 
 would be contrary to the policy of the act. But this can hardly be 
 seriously maintained. It will be noted that it was not the owner of the 
 land who was killed, but the defendant's comrade in the hunt; and of a 
 certainty, if our Legislature thought that conduct like that of the de- 
 fendant was dangerous and the statute was designed to protect human 
 life, some other penalty would have been imposed than a fine of " not 
 less than five dollars and not more than ten." It is more reasonable to 
 conclude that the act in its purpose was designed to prevent and sup- 
 press petty trespasses and annoyances, such as leaving open gates, 
 throwing down fences, treading over crops, etc. 
 
 The special verdict having established that the act of the defendant 
 was entirely accidental, it is a relief that we can declare him innocent 
 in accordance with accepted doctrine, and that in the case at bar the 
 law can be administered in mercy as well as justice. Quoting again 
 from that eminent judge and humane and enlightened man, Sir Michael 
 Foster: "And where the rigor of law bordereth upon injustice, mercy 
 should, if possible, interpose in the administration. It is not the part 
 of the judges to be perpetually hunting after forfeitures, where the 
 heart is free from guilt. They are ministers appointed by the Crown 
 for the ends of public justice, and should have written on their hearts 
 the solemn engagement His Majesty is under to cause law and justice 
 in mercy to be executed in all his judgments." We know that in this 
 spirit the judge below dealt with the defendant and his cause ; for 
 though the judgment of His Honor impelled him to the conclusion of 
 guilt, he imposed the lightest punishment permissible for the offence. 
 
 There was error in holding the defendant guilty, and, on the facts 
 declared, a verdict of not guilty should be directed and the defendant 
 discharged. 
 
 Reversed. 
 
 Walker, J., concurs in result only.
 
 300 COMMONWEALTH V. MINK. [CHAP. IV. 
 
 COMMONWEALTH v. MINK. 
 Supreme Judicial Court of Massachusetts. 1877, 
 
 [Reported 123 Alassachusetls, 422.] 
 
 Indictment for llie. inurder of Charles Rieker at Lowell, in the county 
 of Middlesex, on August 3 1 , 1876. Trial before Ames and Morton, JJ.. 
 who allowed a bill of exceptions in substance as follows : — 
 
 It was proved that Charles Rieker came to Ins death by a shot from 
 d pistol in the hand of the defendant. The defendant introduced evi- 
 dence tending to show tliat she had been engaged to be married to 
 Rieker ; that an interview was had between tliem at her room, in the 
 course of which he expressed his intention to break off the engagement 
 and abandon her entirely ; that she thereupon went to her trunk, took 
 a pistol from it, and attempted to use it upon herself, with the intention 
 of taking her own life ; that Rieker then seized her to prevent her from 
 accom[)lishing that purpose, and a struggle ensued between them ; and 
 that in the struggle the pistol was accidentalh' discharged, and in that 
 way the fatal wound inflicted upon him. 
 
 The jury were instructed on tliis point as follows: "If you believe 
 the defendant's stoiT, and that she did put the pistol to her head with 
 the intention of committing suicide, she was about to do a criminal 
 and unlawful act, and that whicli she had no right to do. It is true, 
 undoubtedly, that suicide cannot be punished by any proceeding of the 
 courts, for the reason that the person who kills himself has placed him- 
 self be3ond the reach of justice, and nothing can be done. But the 
 law, nevertheless, recognizes suicide as a criminal act, and the attempt 
 at suicide is also criminal. It would be the dutv of any bystander who 
 saw such an attempt about to be made, as a matter of mere humanit}', 
 to interfere and tty to prevent it. And the rule is, that if a homicide 
 is produced b}' the doing of an unlawful act, although the killing was 
 the last thing that the person about to do it had in his mind, it would 
 be an unlawful killing, and the person would incur the responsibility 
 which attaches to the crime of manslaughter. 
 
 " Then you are to inquire, among other things, and if 3'ou reach that 
 part of the case. Did this woman attempt to commit suicide in the pres- 
 ence of Rieker? and, if she did, I shall have to instruct you that he would 
 have a right to interfere and try to prevent it b}- force. He would have 
 a perfect right, and I think I might go further and sa^' that it would be 
 his duty, to take the pistol away from her if he possibh' could, and to 
 use force for that ])urpose. If then, in the course of the struggle on 
 his part to get possession of the pistol to prevent the person from com- 
 mitting suicide, the pistol went off accidentally, and he lost his life in 
 that way, it would be a case of manslaughter, and it would not be one 
 of those accidents which would excuse the defendant from being held 
 criminally accountable.
 
 SECT. 1L] commonwealth V. MINK. 301 
 
 " Did she get into such a condition of despondency and disappoint- 
 ment that she was trying to connnit suicide, and was about to do so?' 
 If that was her condition, if she was making that attempt, and he inter- 
 fered to prevent it and got injured by an accidental discliarge of tlie 
 pistol, it would be manslaughter." The jury returned a verdict of guilty 
 of manslaughter ; and the defendant alleged exceptions. 
 
 Gray, C. J.^ The life of every human being is under the protection 
 of the law, and cannot be lawfully taken by himself, or by another with 
 his consent, except by legal authority. By the common law of Eng- 
 land, suicide was considered a crime against the laws of God and man, 
 the lands and chattels of the criminal were forfciteil to tlie King, his 
 body had an ignominious burial in the highway, ami lie was deemed a 
 murderer of himself and a Mon,felo de se. Hales v. Petit, Plovvd. 253, 
 261 ; 3 Inst. 5-1; 1 Hale P. C. 411-417; 2 Hale P. C. 62; 1 Hawk, 
 c. 27 ; 4 Bl. Com. 95, 189, 190. '' He who kills another upon his desire 
 or command is, in the judgment of the law, as much a murderer as if 
 he had done it merely of his own head." 1 Hawk. c. 27, s. 6. One 
 who persuades another to kill himself, and is present when he does so, 
 is guilty of murder as a principal in the second degree ; and if two 
 mutually agree to kill themselves together, and the means employed to 
 produce death take effect upon one only, the survivor is guilty of the 
 murder of the one who dies. Bac. Max. reg. 15 ; Rex v. Dyson, Russ. 
 & Ry. 523 ; Regina v. Alison, 8 Car. &, P. 418. One who encourages 
 another to commit suicide, but is not present at the act which causes 
 the death, is an accessor}' before the fact, and at common law escaped 
 punishment onl}' because his principal could not be first tried and con- 
 victed. Russell's case, 1 Mood}', 356 ; Regina v. Leddington, 9 Car. 
 & P. 79. And an attempt to commit suicide is held in England to be 
 punishable as a misdemeanor. Regina v. Dood}-, 6 Cox C. C. 4G3 ; 
 Regina v. Burgess, Leigh & Cave, 258 ; s. c. 9 Cox C. C. 247. 
 
 Suicide has not ceased to be unlawful and criminal in this Common- 
 wealth by the simple repeal of the Colony Act of 1660 by the St. of 
 1823, c. 143, which (like the corresponding St. of 4 G. IV. c. 52, enacted 
 by the British Parliament within a 3'ear before) ma}' well have had its 
 origin in consideration for the feelings of innocent surviving relatives ; 
 nor by the briefer directions as to the form of coroner's inquests in the 
 Rev. Sts. c. 140, s. 8, and the Gen. Sts. c. 175, s. 9, which in this, as in 
 most other matters, have not repeated at length the forms of legal pro- 
 ceedings set forth in the statutes codified ; nor by the fact that the 
 Legislature, having in the general revisions of the statutes measured 
 the degree of punishment for attempts to commit oflTences by the punish- 
 ment prescribed for each offence if actually committed, has, intentionally 
 or inadvertently, left the attempt to commit suicide without punishment, 
 because the completed act would not be punished in any manner. Rev. 
 Sts. c. 133, s 12 ; Gen. Sts. c. 168, s. 8 ; Commonwealth v. Dennis, 
 
 1 Arguments of counsel and part of the opinion are omitted.
 
 302 NEGLIGENCE. [CHAP. IV. 
 
 105 Mass. 162. After all these changes in the statutes, the point decided 
 ■ in Bowen's case was ruled in tlie same way b}- Chief Justice Bigelow 
 and Justices Dewey, Metcalf, and Chapman, in a case which has not 
 been reported. Commonwealth o, 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- 
 callj' 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. P^very 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 K. IV. 
 45, pi. 10 ; Marler v. AylifTe, 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 jury were not therefore too favorable to the defendant. 
 
 Exceptions overruled. 
 
 SECTION III. 
 
 The mens rea: 
 Negligeyice. 
 
 Foster, Crown Law, 262. It is not sufficient that the act upon which 
 death ensueth be lawful or innocent, it must be done in a proper manner 
 and with due caution to prevent mischief. Parents, master, and other
 
 SECT. III.] NEGLIGENCE, 303 
 
 persons having authority in for o domestico, may give reasonable correc- 
 tion to those under tlieir care ; and if death eiisueth without their fault, 
 it will be no more tlian accidental death. But if the correction exceedeth 
 the bounds of due niotleratiun, either in the measure of it or in the instru- 
 ment made use of for lliat purpose, it will be either murder or manslaughter 
 according to the circmnslances 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 likely 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, especiallj- such from whence 
 danger may probably 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 they look out and give timely' warning beforeliand 
 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 wa}' of illustration under this head ; 
 these are sufficient. But I cannot pass over one reported by Kehng 
 (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 strictly legal, it was, to say no 
 better of it, suninium 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 ordinarv caution of look- 
 ing out and giving warning by outer}' from above will excuse, though 
 doubtless a better and more effectual warning might have been given. 
 But this excuseth, because it is what is usualh' given, and hath been 
 found by long experience, in the ordinar}' course of things, to answer 
 the end. The 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 beeu 
 excused. 
 
 ^ Chief Justice Holt.
 
 304 REGINA V. CHAMBERLAIN. [CHAP. IV. 
 
 r 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 affliction upon the head of the afflicted, and galling an heart 
 already' wounded past cure. It would even aggravate the loss of a 
 brother, 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 b}' 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 wa}' ; 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 the evening returned home with 
 his wife and neighboi's, 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 off 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 famil}' privatel}' 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 jury, that if they were of 
 the same opinion they should acquit him. And he was acquitted. 
 
 REGINA V. CHAMBERLAIN. 
 Hertford 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 shoulder, 
 and in March, 1866, she consulted the prisoner, who gave her first a 
 mercurial ointment, to which no objection 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 sa}-, in August, 1866 ; that she
 
 SECT. III.] EEGINA V. CHAMBERLAIN. 305 
 
 suffered from arsenical symptoms ; and that her death, which liiippeued 
 in September, was owing to this cause. It was not disputed that slie 
 died with the symptoms of arsenic, nor that there was arsenic in tlie 
 ointment she used ; the real question in the case was whether tliere was 
 "culpable negligence" on tlie part of the prisoner in giving it witliout 
 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. Taylor admitted that it was used upon the Continent, 
 and that it had been used in this country until within the last thirty 
 years, wiien he said it was discovered that it was absorbed into the sys- 
 tem, and it was discontinued in tliis 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 apparently hopeless, and a little 
 more disposed to what he called "heroic" treatment — that is to sa3-, 
 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 necessary 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, naturall}' 
 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, Serjt., 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 jurj-. 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 guiltj of gross want of care in its use, there 
 would be criminal culpabilit}'. 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 nse of the drug ; and in either case that would be culpa- 
 ble and criminal negligence, which would justify a conviction, supposing 
 the jur}' were satisfied that the death arose from the arsenic. The first 
 question was, whether the death was caused b}' the arsenic administered 
 by the prisoner ; upon which, however, he thought the evidence verj' 
 strong. The real question would be whether 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 jur3-, for it was a
 
 o 
 
 06 REGINA V. SALMON. [CHAP. IV. 
 
 question of degree. It was a question of more or less, and it could not 
 be defined. All the direction he could give them was that if the prisoner 
 administered the arsenic without knowing or taking tlie pains to find out 
 what its effect 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 ought 
 to be convicted: I)ut if utherwise, tiiere would not be sucli 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 s\stem so as to cause 
 death. It was said that foreign doctors used it, but if so it might be 
 presumed that the}' watched its use with care. It appeared to him that 
 a medical man who sliould administer such 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. Not guilty.^ 
 
 REGINA V. SALMON. 
 Ckown Case Reserved. 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 Wells, 1880. 
 
 The three prisoners were tried for the manslaughter of William Wells, 
 a little bo}' 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 the 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 fifty 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 identit}- not 
 being clear, the rule that all persons engaged in a common enterprise 
 are jointly liable will appl}'. All the prisoners went into the field for 
 a common purpose, rifle practice ; and it was their dut}' 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. Eeg V. Macleod, 12 Cox C. C. 534; State v. Hartlister, .38 Ark. 605. — Ed. 
 
 2 Tills statement of the case is condensed from tlie report of Lord Coleridge. 
 —Ed.
 
 SECT. ITl.] KEGINA V. NICIIOLLS. 307 
 
 that the}' were firing too near to the neighboring gardens, iu one of 
 which the deceased boy was. 
 
 LoKi) CoLEUiDGE, 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 boy. 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. 1 am of the same opinion. At first I thought it was ne- 
 cessary to show some duty on the part of the prisoners as regards the 
 bo}', but I am now satisfied that there was a dut}' 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 
 injur}' to the public. Looking at the character of the spot where the 
 firing took place, there was sutficient evidence that all three prisoners 
 were guilty of culpable negligence under the circumstances. 
 
 LoPKS, 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 every 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. 
 
 Watkin Williams, J., concurred. Gonvictioji affirtned. 
 
 REGINA V. NICHOLLS. 
 Stafford Assizes. 1875. 
 
 [Reported 13 Cox C. C. 75.] 
 
 Prisoner was indicted for the manslaughter of Charles Nicholls. 
 
 A. Young prosecuted. 
 
 The prisoner was the grandmother of the deceased, an infant of 
 tender yeat-s, said to have died from the neglect of the prisoner to 
 suppl}' 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.
 
 308 EEGINA V. NICHOLLS. [CHAP. IV. 
 
 The facts will be found more particularly stated in the summing up of 
 tlie 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 custod}' of so 3'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 infirmity, he is 
 bound to execute that charge without, at all events, v/icked negligence ; 
 and if a person who has chosen to take charge of a helpless creature 
 lets it die by wicked negligence, that person is guilty 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 tliese 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 
 probabh' have suckled it for some days before her death. The child 
 was small and weakl}-. It might, perhaps, have lived. What, however, 
 was the prisoner to do? It is said that she had, through 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 da}^ collecting 
 rags and bones. Wliat ought she to have done with respect to the 
 child ? The prosecution say tliat 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 ouglit 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 the old woman certainl\- 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 
 nave 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. 
 
 Vhrdict, Not guilty.
 
 SECT. III.] COMMONWEALTH V. PIERCE. 309 
 
 COMMONWEALTH v. PIP:RCE. 
 
 Supreme Judicial Court of Massachusetts. 1884. 
 
 [Reported 138 Mass. 165.] 
 
 Holmes, J. The defendimt has been found guilty of manslaughter, 
 on evidence that he publicl}' practised as a physician, and, being called 
 to attend a sick woman, caused her, with her consent, to be kept in 
 flannels saturated with kerosene for three days, more or less, by reason 
 of which she died. There was evidence that he had made similar appli- 
 cations with favorable results in other cases, but that in one the effect 
 had been to blister and burn the flesh as in tlie present case. 
 
 The main questions which have been argued before us are raised by 
 the fifth and sixth rulings requested on behalf of the defendant, but 
 refused by the court, and by the instructions given upon the same 
 matter. The fifth request was, shortly, that the defendant must have 
 " so much knowledge or probable information of the fatal tendency of 
 the prescription that [the death] may be reasonably presumed by the 
 jury to be the effect of obstinate, wilful rashness, and not of an honest 
 intent and expectation to cure." The seventh request assumes the law 
 to be as thus stated. The sixth request was as follows: "If the de- 
 fendant made the prescription with an honest purpose and intent to 
 cure the deceased, he is not guilty of this offence, however gross his 
 ignorance of the quality and tendency of the remedy prescribed, or of 
 the nature of the disease, or of both." The eleventh request was sub- 
 stantially similar, except tliat it was confined to this indictment. 
 
 The court instructed the jury that "it is not necessary to show an 
 evil intent;" that, "if b}- gross and reckless negligence he caused the 
 death, he is guilty of culpable homicide ; " that " the question is whether 
 the kerosene (if it was the cause of the death), either in its original 
 application, renewal, or continuance, was applied as the result of fool- 
 hardy presumption or gross negligence on the part of the defendant ; " 
 and that the defendant was "to be tried b}- no other or higlier stand- 
 ard of skill or learning than that which he necessaril}' assumed in treat- 
 ing her ; that is, that he was able to do so without gross recklessness 
 or foolhardy presumption in undertaking it." In other words, that the 
 defendant's dut}' was not enhanced by any express or implied contract, 
 but that he was bound at his per'l to do no grossly reckless act when, 
 in the absence of any emergenc}' or other exceptional circumstances, 
 he intermeddled with the person of another. 
 
 The defendant relies on the case of Commonwealth v. Thompson, 6 
 Mass. 134, from which his fiftli request is quoted in terms. His argu- 
 ment is tased on another quotation from the same opinion: "To con- 
 stitute manslaughter, the killing must have been a consequence of some 
 unlawful act. Now, there is no law whicli prohibits any man from 
 prescribing for a sick person with his consent, if he honestly intends to
 
 310 COMMONWEALTH V. PIERCE. [CHAP. IV. 
 
 cure him hy his prescription." This language is ambiguous, and we 
 must begin by disposing of a doubt to which it might give rise. If it 
 means that the killing must be the consequence of an act which is un- 
 lawful for independent reasons apart from its likelihood to kill^ it is 
 wrong. Such may once have been the law, but for a long time it has 
 been just as fully, and latterly, we may add, much more willingly, rec- 
 ognized that a man may commit murder or manslaughter b}- doing 
 otherwise lawful acts recklessly, as that he may by doing acts unlawful 
 for independent reasons, from which death accidontalh' ensues. 3 Inst. 
 57 ; 1 Hale P. C. 472-477 ; 1 Hawk. P. C, c. 29, §§ 3, 4, 12 ; c. 31, 
 §§ 4-6 ; Foster, 262, 263 (Homicide, c. 1, § 4) ; 4 Bl. Cora. 192, 197 ; 
 1 East P. C. 260, and seq. ; Hull's case, Kelyng, 40, and cases cited 
 below. 
 
 But recklessness in a moral sense means a certain state of conscious- 
 ness with reference to the consequences of one's acts. No matter 
 whether defined as indifference to what those consequences may be, or 
 as a failure to consider their nature or probability as fully as the party 
 might and ought to have done, it is understood to depend on the actual 
 condition of the individual's mind with regard to consequences, as 
 distinguished from mere knowledge of present or past facts or circum- 
 stances, from which some one or everybody- else might be led to antici- 
 pate or apprehend them if the supposed act were done. We have to 
 determine whether recklessness in this sense was necessar}' to make 
 the defendant guilty of felonious homicide, or whetlier his acts are to 
 be judged by the external standard of what would be morally reck- 
 less, under the circumstances known to him, in a man of reasonable 
 prudence. 
 
 More specifically, the questions raised by the foregoing requests and 
 rulings are whether an actual good intent and the expectation of good 
 results are an absolute justification of acts, however foolliardy they 
 may be if judged by the external standard supposed, and whether the 
 defendant's ignorance of the tendencies of kerosene administered as it 
 was will excuse the administration of it. 
 
 So far as civil liability is concerned, at least, it is very clear that 
 what we have called the external standard would be applied, and that, 
 if a man's conduct is such as would be reckless in a man of ordinary 
 prudence, it is reckless in him. Unless he can bring himself within 
 some broadly defined exception to general rules, the law deliberatel}-- 
 leaves his idiosyncrasies out of account, and peremptorily assumes that 
 he has as much capacity to judge and to foresee consequences as a man 
 of ordinary prudence would have in the same situation. In the language 
 of Tindal, C. J., "Instead, therefore, of saying that the liability for 
 negligence should be coextensive with the judgment of each individual, 
 which would be as variable as the length of the foot of each individual, 
 we ought rather to adhere to the rule which requires in all cases a re- 
 gard to caution such as a man of ordinary prudence would observe." 
 Vaughan v. Menlove, 3 Bing. N. C. 468, 475 ; s. c. 4 Scott, 244.
 
 SECT. ill.J COMMONWEALTH V. PIERCE. 311 
 
 Jf this Is the rule adopted in regard to the redistribution of losses, 
 wliich sound policy allows to rest where they fall in the absence of a 
 clear reason to the contrary, there would seem to be at least equal 
 reason for adopting it in the criminal law, which has for its immediate 
 object and task to establish a general standard, or at least general neg- 
 ative limits, of conduct for the communitv, in the interest of the safety 
 of all. 
 
 There is no denying, however, that Commonwealth v. Thompson, 
 although possibly distinguishable from the present case upon the evi- 
 dence, tends very strongly to limit criminal lial)ility more narrowl}- 
 than the instructions given. l>ut it is to be observed that the court 
 did not intend to lay down any new law. They cited and meant to 
 follow the statement of Lord Hale, I P, C. 429, to the effect " tliat if a 
 physician, whether licensed or not, gives a person a potion, without 
 any intent of doing him any bodily hurt, but with intent to cure, or 
 prevent a disease, and, contrary to the expectation of the physician, it 
 kills him, he is not guilty of murder or manslaughter." 6 Mass. 141. 
 If this portion of the charge to the jury is reported accurately, which 
 seems uncertain (6 Mass. 134, n.), we think that the court fell into the 
 mistake of taking Lord Hale too literally. Lord Hale himself admitted 
 that other persons might make themselves lia])le by reckless conduct. 
 1 P. C. 472. We doubt if he meant to deny that a physician might do 
 so, as well as any one else. He has not been so understood in later 
 times. Rex v. Long, 4 C. & P. 423, 436 ; Webb's case, 2 Lewin, 196, 
 211. His text is simi)ly an abridgment of 4 Inst. 251. Lord Coke 
 there cites the Mirroi-, c. 4, § 16, with seeming api)roval, in favor of 
 the liability. The case cited by Hale does not deny it. Fitz. Abr. 
 Corone, pi. 163. Another case of the same reign seems to recognize it. 
 Y. B. 43 Edw. IIL 33, pi. 38, where Thorp said that he had seen one 
 M. indicted for killing a man whom he had undertaken to cure, by want 
 of care. And a multitude of modern cases have settled the law accord- 
 ingly in England. Rex v. Williamson, 3 C. & P. 635 ; Tessymond's case, 
 1 Lewin, 169; Ferguson's case, 1 Lewin, 181; Rex v. Simpson, Will- 
 cock, Med. Prof., part 2, ccxxvii. ; Rex ?;. Long, 4 C. & P. 398; Rex 
 V. Long, 4 C. & P. 423 ; Rex v. Spiller, 5 C. & P. 333 ; Rex v. Senior, 
 1 Moody, 346; Webb's case, vbi supra; s. c. 1 Mood. & Rob. 405; 
 Queen v. Sjnlling, 2 Mood. & Rob. 107; Regina v. Whitehead, 3 C. & 
 K. 202; Regina v. Crick, 1 F. & F. 519; Regina v. Crook, 1 F. & F. 
 521 ; Regina v. Markuss, 4 F. & F. 356 ; Regina v. Chamberlain, 10 
 Cox C. C. 486 ; Regina v. Macleod, 12 Cox C. C. 534. See also Ann 
 V. State, 11 Humph. 159; State v. Hardister, 38 Ark. 605; and the 
 Massachusetts cases cited below. 
 
 If a physician is not less liable for reckless conduct than other people, 
 it is clear, in the light of admitted principle and the later Massachusetts 
 cases, that the recklessness of the criminal no less than that of the civil 
 law must be tested by what we have called an external standard. In 
 dealing with a man who has no special training, the question whether
 
 312 COMMONWEALTH V. PIERCE. [CHAP. IV. 
 
 his act would be reckless in a man of ordinary prudence is evidently 
 equivalent to an inquiry into the degree of danger which common expe- 
 rience shows to attend the act under the circumstances known to the 
 actor. The only difference is that the latter inquirj- is still more obvi- 
 ously external to the estimate formed b}- the actor personally than the 
 former. But it is familiar law that an act causing death may be mur- 
 der, manslaughter, or misadventure, according to the degree of danger 
 attending it. If the danger is very great, as in the case of an assault 
 with a weapon found by the jur}' to be deadly, or an assault with hands 
 and feet upon a woman known to be exhausted by illness, it is murder. 
 Commonwealth v. Drew, 4 Mass. 391, 396; Commonwealth v. Fox, 
 7 Gray, 585. The doctrine is clearly stated in 1 East P. C. 262. 
 
 The very meaning of the fiction of implied malice in such cases at 
 common law was, that a man miglit have to answer with his life for 
 consequences which he neither intended nor foresaw. To say that he 
 was presumed to have intended them, is merely to adopt another 
 fiction, and to disguise the truth. The truth was, that his failure or 
 inabilit}' to predict them was immaterial, if, under the circumstances 
 known to him, the court or jury, as the case might be, thought them 
 obvious. 
 
 As implied malice signifies the highest degree of danger, and makes 
 the act murder; so, if the danger is less, but still not so remote that it 
 can be disregarded, the act will be called reckless, and will be man- 
 slaughter, as in the case of an ordhiar^' assault with feet and hands, or 
 a weapon not deadly, upon a well person. Cases of Drew and Fox, 
 iibi supra. Or firing a pistol into the highwaj-, when it does not amount 
 to murder. Rex v. Burton, 1 Stra. 481. Or slinging a cask over the 
 highway in a customary, but insufficient mode. Rigmaidon's case, 
 1 Lewin, 180. See Hull's case, ubi supra. Or careless driving. Rex, 
 V. Timmins, 7 C. & P. 499; Rcgina v. Dalloway, 2 Cox C. C. 273; 
 Regina v. Swindall, 2 C. & K. 230. 
 
 If the piinciple which has thus been established both for murder and 
 manslaughter is adhered to, the defendant's intention to produce the 
 opposite resnlt from that which came to pass leaves him in the same 
 position with regard to the present charge that he would have been in 
 if he had had no intention at all in the matter. We think that the 
 principle must be adhered to, where, as here, the assumption to act as 
 a physician was uncalled for by any sudden emergency, and no excep- 
 tional circumstances are shown ; and that we cannot recognize a privi- 
 lege to do acts manifestly endangering human life, on the ground of 
 good intentions alone. 
 
 We have implied, however, in what we have said, and it is undoubt- 
 edly true, as a general proposition, that a man's liability for his acts is 
 determined by their tendency under the circumstances known to him, 
 and not by their tendency under all the circumstances actuall}- affecting 
 the result, whether known or unknown. And it may be asked why the 
 dangerous character of kerosene, or "the fatal tendency of the pre-
 
 SECT. III.] COMMONWEALTH V. PIERCE. 313 
 
 scription," as it was put in the fifth request, is not one of the circum- 
 stances the defendant's knowledge or ignorance of which might have a 
 most important bearing on his guilt or innocence. 
 
 But knowledge of the dangerous character of a thing is only the 
 equivalent of foresiglit of the way in wliich it will act. We admit that, 
 if the thing is generally supposed to be universally harmless, and only 
 a specialist would foresee that in a given case it would do damage, a 
 person who did not foresee it, and who had no warning, would not be 
 held liable for the harm. If men were held answerable for everything 
 they did which was dangerous in fact,, they would be held for all their 
 acts from which harm in fact ensued. The use of the thing must be 
 dangerous according to common experience, at least to the extent that 
 there is a manifest and appreciable chance of harm from what is done, 
 in view either of the actor's knowledge or of his conscious i<rnorance. 
 And therefore, again, if the danger is due to the specific tendencies of 
 the individual thing, and is not characteristic of the class to which it 
 belongs, which seems to have been the view of the common law with 
 regard to bulls, for instance, a person to be made liable must have 
 notice of some past experience, or, as is commonly said, " of the qualit}' 
 of his beast." 1 Hale P. C. 430. But if the dangers are characteristic 
 of the class according to common experience, then he who uses an arti- 
 cle of the class upon another cannot escape on the ground that he had 
 less than the common experience. Common experience is necessary to 
 the man of ordinary prudence, and a man who assumes to act as the 
 defendant did must have it at his peril. When the jury are asked 
 whether a stick of a certain size was a deadly weapon, they are not 
 asked further whether the defendant knew that it was so. It is enough 
 that he used and saw it such as it was. Commonwealth v. Drew, 2ibi 
 siqjra. See also Commonwealth v. Webster, 5 Gush. 295, 306. So as 
 to an assault and battery by the use of excessive force. Common- 
 wealth V. Randall, 4 Gray, 36. So here. The defendant knew that he 
 was using kerosene. The jury have found that it was applied as the 
 result of foolhardy presumption or gross negligence, and that is enough. 
 Commonwealth v. Stratton, 114 Mass. 303, 305. Indeed, if the de- 
 fendant had known the fatal tendency of the prescription, he would 
 have been perilously near the line of murder. Regina v. Packard, 
 C. & M. 236. It will not be necessary to invoke the authority of those 
 exceptional decisions in which it has been held, with regard to knowl- 
 edge of the circumstances, as distinguished from foresight of the con- 
 sequences of an act, that, when certain of the circumstances were 
 known, the party was bound at his peril to inquire as to the others, 
 although not of a nature to be necessarilv inferred from what were 
 known. Commonwealth v. Hallett, 183 Mass. 452; Regina v. Prince, 
 L. R. 2 C. C, 154 ; Commonwealth v. Farren, 9 Allen, 489. 
 
 The remaining questions may be disposed of more shortly. When 
 the defendant applied kerosene to the person of the deceased in a way 
 which the jury have found to have been reckless, or, in other words,
 
 314 JOHNSON V. STATE. [CHAP. IV. 
 
 seriously and unreasonabi}' endangering life according to common ex- 
 perience, he did an act which his patient could not justify by her con- 
 sent, and which therefore was an assault notwitlistanding that consent. 
 Commonwealth v. Collberg, 119 Mass. 350. See Commonwealth v. 
 Mink, 123 Mass. 422, 425. It is unnecessary to rel}' on the principle 
 of Commonwealth v. Stratton, vbi supra^ that fraud may destroy the 
 effect of consent, although evidently the consent in this case was based 
 on the express or implied representations of the defendant concerning 
 his experience. 
 
 As we have intimated above, an allegation tliat the defendant knew 
 of the deadly tendency- of the kerosene was not only unnecessary, but 
 improper, Regina v. Packard, uhi supra. An allegation that the 
 kerosene was of a dangerous tendency is superfluous, although similar 
 allegations are often inserted in indictments, it being enough to allege 
 the assault, and that death did in fact result from it. It would be 
 superfluous in the case of an assault with a staff, or where the death 
 resulted from assault combined with exposure. See Commonwealth r. 
 Macloon, 101 Mass. 1. See further the second count, for causing 
 death l\y exposure, in Stockdale's case, 2 Lewin, 220 ; Regina t>. Smith, 
 11 Cox C. C. 210. The instructions to the jury on the standard of skill 
 bv which the defendant was to be tried, stated above, were as favorable 
 to him as he could ask. 
 
 The olijection to evidence of the defendant's previous unfavorable 
 experience of the use of kerosene is not pressed. The admission of it 
 in rebuttal was a matter of discretion. Commonwealth v. Blair, 126 
 Mass. 40. Exceptions overruled. 
 
 JOHNSON V. STATE. 
 
 Supreme Court of Ohio. 1902. 
 
 [Reported 66 Ohio St. 59.] 
 
 Price, J. If the conceded facts are sufficient and the charge of the 
 trial court sound law to govern the jury in deciding on such facts, the 
 plaintiff in error may have been properl}' punished for very reprehensi- 
 ble conduct. That part of the charge contained in the statement of 
 the case as well as a subsequent paragraph which we will notice, were 
 equivalent to directing a verdict of conviction, inasmuch as there was 
 no dispute as to the facts. There was a verdict of conviction and 
 a sentence upon the verdict, which the circuit court sustained, and 
 thereby must have held that the charge correctly stated the law of the 
 case. 
 
 The importance of what is presented as an apparenth' new doctrine 
 in this state, as well as respect for the opinions of both the lower 
 courts, have been sufficient reasons for giving the questions involved 
 a careful consideration.
 
 SECT. III.] JOHNSON V. STATE. 315 
 
 The indictment for manslaughter in this case is in the short form 
 authorized by section 7217 of the Revised Statutes, and it charges that 
 " Noah Johnson ... on the tvvent3--fifth day of May in the year 
 of our Lord one thousand nine hundred and one, in the county of 
 Scioto, did unlawfully kill one Emory Barrows then and there being, 
 contrary to the form of the statute," etc. 
 
 Prior to the codification of the criminal statutes, manslaughter was 
 thus defined : " That if any person shall unlawfully kill another without 
 malice, either upon a sudden quarrel, or unintentionally while the slayer 
 is in the commission of some unlawful act, every such person shall be 
 deemed guilty of manslaughter, and on conviction thereof, be pun- 
 ished," etc. Vol. 1, S. & C. 403. 
 
 The statute on the subject now is section 6811, Revised Statutes, 
 which reads: "Whoever unlawfully kills another, except as provided 
 in the last three sections, is guilty of manslaughter, and shall be im- 
 prisoned," etc. The preceding sections define murder in the first and 
 second degrees. But the present section 9811 is not different in sub- 
 stance and meaning from the original section above quoted, and to 
 ascertain the elements of the crime of manslaugliter we look to the 
 criminal as it stood before codification or revision. Therefore, to con- 
 vict of manslaughter, it is incumbent upon the state to establish that 
 the killing was done "either upon a sudden quarrel, or unintentionally 
 while the slayer was (is) in the commission of some unlawful act." 
 
 It is clear from the facts and the instructions given the jur}-, 
 that Barrows was not killed l)y Johnson in a quarrel ; nor was the kill- 
 ing intentional. Hence, the latter clause of the definition of the crime 
 is the one to which our investigation sliould be confined. The state 
 was required to show that while the killing was unintentional, it was 
 done by Johnson while he was in the commission of some unlawful act ; 
 and the question arises, whether the negligent act or acts of the slayer, 
 though no breach of any law, may be sufficient to constitute the unlaw 
 ful act designated in the statute. Or, is the state required to show that 
 he was in the commission of an act prohibited by law ? 
 
 At the time of this homicide there was even no ordinance of the 
 village of Scioto regulating the speed or manner of riding bicycles upon 
 its streets. None appears in the record, and we therefore assume there 
 was no such ordinance. And it is not claimed that tliere was any stat- 
 ute then in force on that subject. What then is the proper construc- 
 tion of the clause " while in commission of some unlawful act "? 
 
 The construction which prevailed in the lower courts is found again 
 in a portion of the charge which we quote as the final admonition 
 to the jury: "Now, gentlemen, apply these principles to tlie case and 
 determine from the evidence introduced upon the trial whether the de- 
 fendant, Noah Johnson, at the time he struck and killed the decedent, 
 Emory Barrows, was riding his bicycle with gross negligence, and was 
 it sucii as an ordinarily reasonable and prudent person might and rea- 
 sonably ought to have foreseen would endanger the lives and safety of
 
 316 JOHNSON V. STATE. [CHAP. IV. 
 
 others, and be likely to produce fatal injuries ; and was such killing 
 the direct, natural, and proximate result of such negligence? If the 
 evidence satisfies you be3'ond a reasonable doubt of all these matters, 
 then your verdict should be that the defendant is guilty of manslaughter 
 as he stands charged in the indictment ; otherwise you should acquit him." 
 
 In this language the trial court told the jury that if the defendant's 
 conduct in the manner of riding the bicycle — its speed without signal 
 of a bell — was, in their judgment, grossly negligent, it was an unlaw- 
 ful act, and they might find that in such conduct he was committing an 
 unlawful act, and, if it resulted in the death of Barrows, the rider was 
 guilty of manslaughter. And it was left to the jury, and they were 
 directed to determine from the evidence whether or not the acts done 
 were grossly negligent and regardless of the life and safety of another. 
 If so, to convict. 
 
 We have no common law crimes in this state. We think such has 
 been the uniform understanding of the bar, and the opinion of both the 
 judicial and legislative departments of our commonwealth. Before the 
 trial of this case there was but one other case brought to our attention 
 where tlie proposition has been called in question. Weller v. The State 
 of Ohio, 10 Circ. Dec. 381 ; 19 C. C. R. 166. 
 
 But this court has settled the commonly accepted rule in more than 
 one case. In Sutcliffe v. The State, 18 Ohio, 469, 477, Justice Avery, 
 speaking for the court, says: "There is no common law crime in this 
 state, and we therefore look always to the statute to ascertain what is 
 the offence of the prisoner, and what is to be his punishment . . .'' 
 Ao"ain on same page : " What is affirmed in this statute of manslaughter 
 of the character which this court is intended to reach, except that the 
 slayer must be in the commission at the time of some unlawful act?" 
 
 Also on page 477 : " It is claimed for the plaintiff in error that there 
 is no allegation in the count of the unlawful act designated in the stat- 
 ute. It was necessary to allege in the indictment that the person was 
 engaged in the commission of some unlawful act. And this allegation, 
 it appears to the court, is distinctl}' made in that part of the indictment 
 which charges the prisoner with an assault upon the person killed, 
 and unlawfully discharging and shooting off at him a loaded gun. 
 This sufficiently declares an unlawful act . . ." 
 
 As before stated, our statute now provides for a shorter form of in- 
 dictment, but it does not dispense with the ingredients of manslaughter 
 as defined in the former statute. 
 
 In Smith v. The State, 12 Ohio St. 466, 469, this court says: "It 
 must be borne in mind that we have no common law offences in this 
 state. No act or omission, however hurtful or immoral in its tenden- 
 cies, is punishable as a crime in Ohio, unless such act or omission 
 is specially enjoined or prohibited by the statute law of the state. It 
 is, therefore, idle to speculate upon the injurious consequences of per- 
 mitting such conduct to go unpunished, or to regret that our criminal 
 code has not the expansiveness of the common law."
 
 SECT. III.] JOHNSON V._ STATE. 317 
 
 The same statement of tue law was again made in Mitchell v. The 
 State, 42 Ohio St. 383, and otlier decisions of this court. 
 
 We think the same rule abides in many, if not all the other states of 
 the Union whose legislatures have man}' codes or systems of statutory 
 crimes. It evidently is true of the federal government as settled by 
 repeated decisions of the Supreme Court of the United States. United 
 States V. Worrall, 2 U. S. (2 Dall.) 384: United States v. Hudson and 
 Goodwin, 11 U. S. (7 Cranch), 32 ; Pennsylvania v. Bridge Co., 54 U. 
 S. (43 How.) 518, and later cases in that court. When our legisla- 
 ture first enacted statutes upon the subject of homicide and defining its 
 different degrees, it did, as to manslaughter, what the state suggests, 
 adopted almost literally the common law definition. Sutcliffe v. The 
 State, 18 Ohio, 469, supra. But when this definition was borrowed 
 and adopted by our legislature, it was adopted, not in part, but as 
 a whole, and the act committed when the unintentional killing occurs, 
 must be a violation of some prohibitory law. The very word " unlaw- 
 ful " in criminal jurisprudence means that and nothing less. Surely 
 the legislature did not intend to adopt part of the common law descrip- 
 tion of the offence as a statutory provision, and leave the other part 
 to the expansiveness of tlie common law. Yet, that is practically the 
 construction wliich the lower courts must have placed upon our statute 
 ao^ainst manslauoliter. We assume that the facts show couduct grossh' 
 negligent in character. There was no malice and no quarrel between 
 defendant and the deceased. The killing was unintentional. It was 
 manslaughter nevertheless, if the slayer was then in commission of 
 some unlawful act. The jury were told that if in tlieir judgment the 
 accused was guilty of gross negligence and a disregard for the lives 
 and safety of others, the state was entitled to a verdict of manslaughter. 
 In considering this rather unusual, if not new construction of the law, 
 we must not forget a few elementar}' principles of tlie law of negligence. 
 It (negligence) ma}' consist of acts of omission as well as commission ; 
 and what may be mere ordinar}' negligence under one class of circum- 
 stances and conditions, may become gross negligence under other con- 
 ditions and circumstances. Negligence is the failure to exercise ordinary 
 care. Gross negligence may consist in failure to exercise an}- or very 
 slight care. There are other definitions, but these are sufficient now 
 for our purpose. So we may truly say that negligence differs only 
 in degree. With this, we cannot overlook what experience has taught 
 for many years, that what may seem ordinary negligence when con- 
 templated by one mind may be regarded by another as very gi'oss neg- 
 ligence. The inferences drawn from the same facts bv different minds 
 may often greatly differ. Hence, wlien we look to the case as it 
 appeared in the trial court, we see that, without any rule of conduct 
 prescribed by statute to govern the case, the rule for the first time was 
 to be established by the verdict of the jury and sentence of the court. 
 
 Up to that time the behavior of tlie defendant had violated no law. 
 It was for the jury to say, under tlie instructions given, whether the
 
 318 JOHNSON tJ. 'state. [chap. IV. 
 
 accused had been guilty of gross negligence. If so, although the kill- 
 ing was unintentional and free from malice, it was manslaughter. In 
 England, the home of the common law and where it attained its won- 
 derful growth, and from which we have borrowed to a large extent, it 
 became necessary and was permissible to build up, by the pen of law 
 writers and adjudged cases, a system of criminal jurisprudence, and 
 enforce it until parliament would occupy the ground and supplant it. 
 But that country, while so doing, was under no written constitution, 
 and ex post facto, or retroactive laws might be laid down by the courts 
 or enacted b>' parliament. Not so in this countrj' where we have a 
 written constitution prohibiting retroactive and ex post facto legisla- 
 tion. Weeks or months after the negligent acts involved in this case, 
 we have the rule of conduct of the defendant passed upon and defined 
 by a verdict upon the all important and indispensable element of man- 
 slaughter based on the facts of the case. It is retroactive in its effect. 
 An act of the legislature attempting to so operate would be promptly 
 held unconstitutional. Can we sustain a construction of our statute 
 against manslaughter which will have the same effect? 
 
 In our judgment the unlawful act, the commission of which gives 
 color and character to the unintentional killing, is an act prohibited by 
 law, and that such is the natural meaning of the term or clause when 
 used in the parlance of criminal jurisprudence. 
 
 Another observation is appropriate here: The uncertainty of the 
 common law. Some principles which are deemed common law in Ohio 
 are not so regarded in other states, and what some of them regai'd as 
 common law we do not recognize as such in Ohio. Therefore, the 
 wisdom of enacting a sj'stem of penal laws at the beginning of our 
 statehood, and of improving and expanding it as fast as conditions of 
 societ}' required. The growth of such legislation is itself against the 
 holdings of the lower courts. What acts or omissions in early years 
 were harmless, owing to the sparsity of population and character of 
 property and business then owned and conducted, afterwards, as popu- 
 lation increased and business relations became diversified, became in- 
 jurious to others; and in other respects the good order of society and 
 tlie protection of life and property' demanded and received appropriate 
 legislation. That department of our state government has kept pace 
 with the wrongs, the vices, and immoralities of our social and industrial 
 lifCo It has gone farther, when occasion demanded, and has made 
 criminal many acts and omissions which before belonged to the field of 
 negligence, as witness, many provisions regarding tlie management of 
 railroads, factories, and mines, and other branches of business where 
 labor is employed. Many acts or omissions to act, which before were 
 subject to the charge of negligence, are made penal by statute. And a 
 consideration of this course of legislation demonstrates that there is no 
 longer a necessit}' to turn to the common law to find what act or acts 
 it is unlawful to commit. 
 
 If the contention of the state in this case is tenable, it is not difficult
 
 SECT. III.] REGINA V. EG AN. 319 
 
 to see how the criminal dockets in our courts will soon be flooded. 
 Tlie gross negUgence of one may unintentional!}- cause the death of 
 many. If such negligence is the commission of an unlawful act, the 
 killing of each of the slain becomes a separate crime of manslaughter. 
 And so it would proceed, and the cases multiply according to the judg- 
 ment of men, as to when the acts of others are or are not grossly negli- 
 gent. 
 
 The position is untenable, and we decide that the judgments of the 
 common pleas and circuit conrts are erroneous and must be reversed, 
 and the facts of this case being conceded, as stated herein, the plaintiff 
 in error is discharged. Reversed. 
 
 BuKKET, Davis, and Shauck, J J., concur. 
 
 REGIXA V. EGAN. 
 
 Crown Case Reserved, Victoria. 1897. 
 
 [Reported 23 Vic. L. R. 159.] 
 
 The prisoner was convicted at the April criminal sittings of the 
 court of the manslaughter of her male child, aged about eleven months. 
 On the evening of the offence the prisoner had been drinking, and in 
 a more or less intoxicated condition took the child into bed with her, 
 overlay it, and thus caused its death by suffocation. The presiding 
 judge, Hodges, J., directed tlie jury that if they believed this evidence 
 they should find the prisoner guilty. The prisoner was convicted. 
 Hodges, J., then reserved for consideration of the Full Court the 
 question whether his direction was right. 
 
 Madden, C. J., delivered the judgment of the Court [Madden, C. J., 
 Hodges and Hood, JJ.]. We think that the proposition involved 
 in this case is too broad, and that, looking at all the circumstances, 
 the charge of manslaughter cannot be supported. If a woman has 
 made a resolution to kill her child, and, having allowed herself to be- 
 come to some degree drunk, takes it to bed with her, knowing that 
 in a heavy sleep she will probably overlie the child — apparently in- 
 nocentl}', but at the same time with the intention to destroy the child — 
 then that is murder. If, being in the state I have mentioned, she, 
 knowing that she may overlie the child, and, against the advice or 
 disregarding the remonstrances of her friends, takes the child to bed 
 ■with her and overlies it, killing it, that is manslaughter. But the 
 evidence in this case is to the effect that the defendant had been 
 drinking, and while under the influence of liquor and after taking the 
 child to bed with her, by an unhappy mischance overlay it ; this, in 
 our opinion, is not suflflcient to sustain a charge of manslaughter.
 
 320 MORSE V. STATE. [CHAP. IV. 
 
 SECTION IV. 
 Concurrence of Offence and Gruilty Mind. 
 
 MORSE y. STATE. 
 Supreme Court of Errors of Connecticut. 1825. 
 
 [Reported 6 Connecticut, 9.] 
 
 This was an information against the plaintiff in error, for a violation 
 of the statute "concerning the students of Yale College," passed in 
 May, 1822.^ The information alleged that the defendant, on the 15th 
 of January, 1824, gave credit to Washington Van Zandt, then a student 
 of Yale College, and under the age of twent3'-one years, for suppers, 
 wine and other liquors, to the amount of seven dollars, without the 
 knowledge of the parent or guardian of Van Zandt, and without the 
 knowledge or consent of the officers of Yale College, or either of them. 
 
 On the trial before the county court the defendant claimed that if 
 credit was given to Van Zandt by any one, it was given b}- Stephen 
 Northam, who was the servant and bar-keeper of the defendant, against 
 his express directions ; and tliat the defendant could not be responsible 
 criminally for such act of Northam. The court charged the jury that 
 if they should find that the defendant had assented to Northam's act in 
 giving credit to Van Zandt, after the credit was given, it was the same 
 as if the defendant had previously authorized the giving of such credit ', 
 and that the defendant in that case would be liable as principal, the 
 same as if he had been present, advising or consenting to the giving of 
 such credit.^ 
 
 The jury found the defendant guilty ; who thereupon filed a bill of 
 
 1 The first section of this act is in these words : " That no person or persons shall 
 give credit to any student of Yale College, being a minor, without the consent, in 
 writing, of his parent or guardian, or of such oflScer or officers of the college as may 
 be authorized, by the government thereof, to act in such cases, except for washing or 
 medical aid." The 2d section inflicts a penalty from $20 to $300 for a violation of the 
 law. 
 
 2 Only so much of the case as relates to this point is given. — Ed.
 
 SECT. IV.] STATE V. MOORE. 321 
 
 exceptions, and brought a writ of error ; which was reserved for the 
 advice of the Supreme Court of Errors. 
 
 lIoSMEU, C. J. From the motiou it is fairly to be inferred that no 
 credit was given to Van Zandt by the defendant ; but by Northam, his 
 bar-keeper, only, without the knowledge or consent of Morse, and 
 against his express directions. In the performance of this act, Nor- 
 tham was not the defendant's agent. He was not authorized to give 
 the credit, either expressly or in the usual course of his business ; but 
 was prohibited from doing it. Notwithstanding this, which the court 
 below impliedly admitted, the jury were charged that if the defendant 
 subsequently assented to the acts of Northam he ratified them and 
 made them his own. This was an unquestionable error. In the law of 
 contracts, a posterior lecognition, in many cases, is equivalent to a 
 precedent command ; but it is not so in respect of crimes. The de- 
 fendant is responsible for his own acts, and for the acts of others done 
 by his express or implied command, but to crimes the maxim Omnis 
 ratihahitio retrotrahitur et mandato equiparatur is inapplicable. 
 
 In cases admitting of accessories, a subsequent assent merely would 
 not render a person an accessory. Judgment to be reversed. 
 
 STATE V. MOORE. 
 Superior Court of Judicature of New Hampshire. 1841. 
 
 [Reported 12 New Hampshire, 42.] 
 
 Indictment for breaking and entering the house of Isaac Paddleford, 
 at Lyman, in the night time, on the 19th day of November, 1840, with 
 intent to steal, and stealing therefrom certain pieces of money. 
 
 It appeared in evidence that the prisoner went to the house, which 
 is a public house, and asked for, and obtained lodging for the night, 
 and that he took the money from a box in a desk in the bar-room, in 
 the course of the night. 
 
 The jury were instructed that upon this indictment the prisoner 
 might be convicted of burglary, of entering in the night time and steal- 
 ing, or of larceny ; that if the door of the bar-room were shut, and the 
 prisoner left his own room in the night time, and opened the door of 
 the bar-room, or any other door in his way thereto, except his own 
 door, and stole the money, he was guilty of burglary ; but that if he 
 left his own room in tlie night, and stole the money from the bar-room,
 
 322 STATE V. MOORE. [CHAP. IV. 
 
 without opening any door on his way thereto, except his own door, he 
 was guilty of entering in the night time and stealing. 
 
 The jury found the prisoner guilty of entering in the night time and 
 stealing. 
 
 The counsel for the prisoner contended that under this indictment 
 the prisoner could not be convicted of the offence of which he was 
 found guilty. 
 
 He also contended that the prisoner, being a guest, and having 
 entered the house with the assent of the owner, if guilty at all upon 
 this evidence, was guilty of larceny only ; and he moved to set aside 
 the verdict, and for a new trial, for the reasons aforesaid. 
 
 Gove, Attorney-General, for the State. 
 
 Goodall^ for the prisoner. 
 
 Gilchrist, J.^ It is said that, as the prisoner was lawfully in the 
 house, he cannot be convicted of the offence of entering in the night 
 time with intent to steal. 
 
 It is clear that the prisoner had a legal authority to enter the house, 
 without any special permission for that purpose from the owner or 
 landlord. If an innkeeper, or other victualler, hangs out a sign, and 
 opens his house for travellers, it is an implied engagement to entertain 
 all persons who travel that way ; and upon this universal assumpsit an 
 action on the case will lie against him for damages, if he, without good 
 reason, refuses to admit a traveller. 3 Bl. Com. 166. And an indict- 
 ment at common law lies against an innkeeper if he refuses to receive 
 a guest, he having at that time room in his house. If the traveller 
 conducts properly, he is bound to receive him, at whatever hour of the 
 night he maj- arrive. Rex y. Ivens, 7 C. & P. 213. 
 
 An innkeeper, holding out his inn " as a place of accommodation 
 for travellers, cannot prohibit persons who come under that character, 
 in a proper manner, and at suitable times, from entering, so long as 
 he lias tlie means of accommodation for them." Markham v. Brown, 
 8 N. H. Rep. 528. As he has authority to enter the house, so he may 
 enter an}' of the common public rooms. Markham v. Brown. Thi 
 bar-room of an inn is, from universal custom, the most public room in 
 the house ; and whether a traveller may, without permission, enter 
 any of the private rooms or not, he has clearly a right to enter the 
 bar-room. 
 
 If, after having made an entry into the house by authoritv of law, he 
 commit a trespass, he may be held civilh' responsible as a trespasser 
 ab initio. This principle has alwajs been recognized since the decision 
 of The Six Carpenters' Case, 8 Coke, 290. 
 
 The prisoner, therefore, had a riglit to enter the inn, and the bar- 
 room ; and the question arises, whether the larceny- committed in the 
 bar-room can relate back, and give a character to the entr}' into the 
 house, so as to make it criminal, and the prisoner punishable for it; 
 
 1 Part only of the opinion is given.
 
 SECT. IV.] STATE V. MOOKE. 323 
 
 upon reasoning similar to that which, in a civil action, would render 
 him liable as a trespasser ab initio. Except the inference that may 
 lawfulh' be made from the act of larceny-, there is no evidence that he 
 entered with an}- illegal purpose, or a felonious intent. 
 
 Where the law invests a person with authority to do an act, the con- 
 sequences of an abuse of that authority b}' the party should be severe 
 enough to deter all persons from such an abuse. But has this " policy 
 of the law " ever been extended to criminal cases ? We are not aware 
 that it has. It is true that, in order to ascertain the intent of the 
 accused, the law often regards the nature of the act committed. But 
 this is generally such an act as could not have been committed witli 
 any other than a criminal purpose. Thus, the act of secreth' taking 
 the property of another, necessaril}- raises the presumption that the 
 party intended to steal, and this presumption stands until explained 
 by other evidence. In an indictment for breaking, etc., with intent to 
 commit a felony, the actual commission is so strong a presumptive 
 evidence that the law has adopted it, and admits it to be equivalent to 
 a charge of the intent in the indictment. But where one lawfull}' 
 enters a house, it by no means follows that because he steals, while 
 there, he entered with that purpose. The act of stealing is evidence 
 of the intent to steal ; but is hardly sufficient to rebut the presumption 
 that where he lawfully entered, he entered for a lawful purpose. To 
 hold that, for a lawful entry, a party could be punished, because, after 
 such entry, he does an unlawful act, would be to find him guilty of a 
 crime by construction ; a result which the law, in its endeavors always 
 to ascertain tlje real intention of the accused, invariably, in theory, 
 avoids, and which has seldom, in modern times, happened in practice. 
 
 A case is put by Lord Hale, the reasoning of which is analogous to 
 that we have used in this case. " It is not a burglarious breaking and 
 entry, if a guest at an inn open his own chamber door, and takes and 
 carries away his host's goods. /o?- he has a right to open his oion door, 
 and so not a burglarious breaking." 1 Hale P. C. 553, 554. 
 
 If a burglary could not be committed because the party had a right 
 to open his own door, notwithstanding the subsequent larceny, the 
 same principle would seem to be applicable here, where the prisoner 
 had a right to enter the house, and where, by parity of reasoning, 
 his subsequent larceny would not make his original entry unlawful. 
 
 For these reasons, the judgment of the court is that the verdict be 
 
 set aside and a 
 
 New trial granted.
 
 324 STATE V. ASHER. [CHAP. IV. 
 
 STATE V. ASHER. 
 Supreme Court of Arkansas. 1887. 
 
 [Reported 50 Arkansas, 427.] 
 
 At the May term, 1887, of the Phillips Circuit Court, appellees were 
 indicted for a violation of section 1645 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 251, 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. Fitzpatrick, 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, 1885 ; that the sale of the mules was made on 
 the faith of the security afl'orded by a first lien 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 Fitzpatrick 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 daj- ol 
 April, 1885. Fitzpatrick 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. 
 
 CocKPviLL, C. J. (after stating the facts as above set forth). To con- 
 stitute an offence within the meaning of section 1645, 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 b}' a false pretence. 
 
 By the terms of the statute the pretence must be false. And the doc- 
 trine undoubtedly is, tliat if it is not false, though believed to be so by 
 the person employing it, it is insufficient. 2 Bish. 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 reprehensible 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
 
 SECT. IV.] STATE V. ASHER. 325 
 
 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 tliat 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 obtaining the mules 
 from Moore on the faith of it. The demurrer admits tliat these alle";a- 
 tions are true. Being true, the legal conclusion is that P'itzpatrick 
 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 by repairing the injur}' done in its 
 commission. There has been no criminal offence. 
 
 Moore might have been injured b}- the transaction if Fitzpatrick's 
 mortgage-note had been negotiated according to the law merchant and 
 assigned to an innocent holder for value before maturity. But there is 
 no allegation of the existence of either of these facts, and there is no 
 presunii)tion that that state of facts exists. People v. Stone, 11 Wheat 
 182-19U. 
 
 Afflrm.'
 
 326 m'naghten's case. [chap. v. 
 
 CHAPTER V. 
 CULPABILITY: MODIFYING CIRCUMSTANCES. 
 
 SECTION I. 
 
 Insanity. 
 M'NAGHTEN'S CASE. 
 
 Answer of the Judges to the House of Lords. 1843. 
 [^Reported 10 Clark ^ Finnelly, 200.3 
 
 The prisoner had been indicted for the murder of Edward Drum- 
 mond.^ The prisoner pleaded '• Not guilty." Evidence having been 
 given of the fact of the shooting of Mr. Druinmond, 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 tlie act, iu 
 a sound state of mind. 
 
 Lord Chief Justice Tindal (in his charge). The question to bf 
 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 tc 
 know that he was doing a wrong or wicked act. If the jurors shoul(? 
 be of opinion that the prisoner was not sensible, at the time he com- 
 mitted it, that he was violating the laws both of God and man, thei? 
 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 he was in g 
 sound state of mind, then their verdict must be against him. 
 
 Verdict., Not guilt)/, 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 the 
 law governing such cases. Accordingly the judges attended the 
 House of Lords ; when (no argument having been had) questions of 
 law were propounded to them. 
 
 Lord Chief Justice Tixdal. M}^ Lords, her Majesty's judges 
 (with the exception of Mr. Justice Maule, who has stated his opin- 
 ion to your Lordships), in answering the questions proposed to them 
 by your Lordships' House, think it right, in the first place, to state 
 
 1 The statement of facts in this case has been abridged.
 
 SECT. I.] M'NAGHTEN's CASE. 327 
 
 that they have forborne entering into any particular discussion upon 
 these questions, from the extreme and almost insuperable ditticulty of 
 applying those answers to cases in which the facts are not IroutJ^ht 
 judicially before tliem. 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 tliey 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 aflflicted with 
 insane delusion iu 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 injur}-, 
 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 laud. 
 
 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 aflflicted 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 
 oe, that the jurors ought to be told in all cases that every man is to 
 be presumed to be sane, and to possess a suflScient degree of reason
 
 328 m'naghten's case. [chap. v. 
 
 to be responsible for hla crimes, until the 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 accused was laboring under sucli a defect of 
 reason, from disease of the mind, as not to know tlie nature and 
 quality of the act he was doing ; or, if he did know it, that he did not 
 know he was doing what was wrong.' Tlie mode of putting the 
 latter part of the question to the jury on these occasions has gener- 
 ally been, whether the accused at the time of doing the act, knew 
 the difference between right and wrong : which mode, though rarely, 
 if ever, leading to any mistake with the jury, is not, as we conceive, 
 so accurate, when put generally and in the 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 tlie land, it might 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 tliat act was at the same time contrary to the law of the laud, 
 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 labors under such partial delusions only, and is not 
 in other respects insane, we think he must be considered in the same 
 
 1 " I think that any one would fall within 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 meant to do. Suppose, for instance, that by 
 reason of disease of the brain a man's mind is filled with delusions which, if true, 
 would not justify or excuse his proposed act, but which in themselves are so wild and 
 astonishing as to make it impossible for him to reason about them calmly, or to 
 reason calmly on matters connected with them. Suppose, 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 disease, that he is unequal to the effort of 
 calm sustained thought upon any subject, and especially upon subjects connected with 
 his delusion ; can he be said to know or have a capacity of knowing that the act which 
 he proposes to do is wrong ? I should say he could not." 2 Stephen Hist. Crim, 
 Law. 164. —Ed
 
 SKCT. I.] REGINA V. HAYNES. 329 
 
 situation as to responsibility as if the facts with respect to which the 
 delusion exists were real. For example, if under the influence of liis 
 delusion 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, lie 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 <j- 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 bv 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 
 
 1 The answer to the fifth question is omitted. Maule, J. delivered a separate 
 opinion, which he prefaced bv stating that he felt great difficulty in answering the 
 questions : first, because they did not appear to arise out of a particular case which 
 might explain or limit the generality of their terms ; secondly, because he had heaid 
 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 irr^ 
 sponsible for ciime on account of unsoundness of mind, the unsoundness should be 
 such as renders him incapable of knowing right from wrong. In reply to tne 
 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.
 
 330 COMMONWEALTH V. KOGERS. [CHAP. Y. 
 
 the existence of such an influence. Motives exist unknown and innu- 
 merable which might 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 should 
 uot withdraw any of the safeguards tending to counteract it. There 
 are three powerful restraints existing, all tending to the assistance of 
 the person who is suffering under such an influence, — the restraint of 
 veligion, the restraint of conscience, and the restraint of law. But if 
 the influence itself be held a legal excuse, rendering the crime dispun- 
 ishable, you at once withdraw a most powerful 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 was 
 doing what was wrong? Guilty. Sentence, death. 
 
 The prisoner was reprieved. 
 
 COMMONWEALTH v. ROGERS. 
 Supreme Judicial Court of Massachusetts. 1844. 
 
 [Reported 7 Metcalf, 500.] 
 
 The defendant was indicted for the murder of Charles Lincoln, 
 Junior, warden of the state prison, on the 15th 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 his 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 that 
 he has no will, no conscience or controlling mental power, or if, 
 through the overwhelming violence of mental disease his intellectual 
 
 1 Part of the case, not involving a question of insanity, is omitted.
 
 SECT. I.] COMMONWEALTH V. KOGERS. 331 
 
 power is for the time obliterated, he is not a responsible 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 
 cases, 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 miud 
 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 tliat the act he is doing is done by the immedi- 
 ate command of God, and he acts under the delusive but sincere belief
 
 332 COMMONWEALTH V. ROGERS. [CHAP. V. 
 
 that what he is doing is by the command of a superior power which 
 supersedes all human laws, and the 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 towards friend or foe indiscriminately ; 
 so that, although 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 tlie 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 sutHcient 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 
 his former remarks on the same point, and added that if the prepon-
 
 SECT. I.] STATM V. l.'ICHARDS. 333 
 
 (lerance 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 you in finding 
 that the burning complained of was caused bj- the prisoner. Your 
 attention has been turned mainly' to the question whether the act was 
 done with the felonious intent charged, and this question depends 
 mainly 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 bj' his countenance and general appearance. 
 
 The same thing is indicated by his extraordinary conduct at th« 
 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 hi« 
 .except his shirt and trousers. Tlie day was excessively 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 inferiority of intellect is no answer to the prosecution. Wt 
 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. 
 
 1 "To punish a homicide, committed by the insane victim of such delusion, and 
 under its resistless influence, wouhl be punishing for what every other man in the same 
 condition wouhl ever do, in defiance of all penal consequences ; and, therefore, such 
 punishment would be useless and inconsistent with the preventive aim of all criminal 
 jurisprudence." — Robert.son, J., in Smith v. Com., 1 Duv. 224. 
 
 " Whether passion or in.sinufij 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." — Dillon, C. J., in State v. Felter, 25 Iowa, 67. — Ed.
 
 334 STATE V. KICHARDS. [CHAP. V. 
 
 He is not a mere idiot, nor does lie appear to be a lunatic. He 
 suffers from want of mind rattier than from derangement or delusion, 
 and ttie question is whether the want of mind is such as to entitle him 
 to acquittal on the ground of what in law is termed dementia. 
 
 This inquir}' is attended with inherent difficulties. 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 difficulty in com- 
 municating to us, on a subject of this nature, what they do know. 
 
 Our principal embarrassment 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 by 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 probably knew that by igniting a match and throwing it 
 into a hay-mow a fire would be kindled and that the barn would 
 thereby be consumed. He perhaps also had some appreciation of the 
 loss and destruction of property which would ensue. 
 
 But I am not willing to say that some knowledge of consequences, 
 however faint and imperfect, is sufficient to warrant you in convict- 
 ing the prisoner. I can give you no precise rule, but I think it 
 clear that if the prisoner's perception of consequences and effects 
 was 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 ordinar}' children of that age.
 
 SECT. I.] STATE V. RICHARDS. 335 
 
 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 3'our adoption, 
 not however without (jualifications which I think it important to 
 observe. 
 
 And first, this test, like all others which I know of, is imperfect. 
 
 Probablv 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 farther 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 ma}- be subjects of punishment if they are siiown 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 1 can furnish you with wo 
 definite measure of mental capacity to apply to the prisoner. The 
 whole matter must be submitted to your sound judgment. You wil". 
 sa}' whether the prisoner has such knowledge of right and wrong, an(.'. 
 such appreciation of the consequence and effects of his acts, as to bo 
 a proper subject of punishment. Opinions on tliis subject have bcou 
 expressed by most of the witnesses who have testified. These opinioni; 
 depend for their value mainly upon the facts with which they an; 
 connected. You have the advantage of being able to compare witti 
 each other all the facts which have been brought to your notice bear- 
 ing upon the prisoner's mental condition. You will look carefully a; 
 all these facts. The history of the prisoner's hfe is somewhat signifi- 
 cant. From early childhood it has been spent in alrahouses, 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 3-our verdict, in order that the prisoner may in that 
 event have the benefit under our statute of a home where he will be
 
 336 FLANAGAN V. PEOPLE. [CHAP. V. 
 
 kindly cared for, but kept under such restraints as to prevent his 
 doing injur}' to the persons or propert}' of others. 
 
 The jury acquitted the prisoner, 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.] 
 
 Andrews, J. ' The judge, among other things, charged the jury that, 
 "to establish 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 English courts. 
 
 Maule, J., gave a separate opinion, in which he declared that, to 
 render a person irresponsible 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 
 PiNDAL, C. J., in the McNaghten Case, was quoted and approved ; and 
 Beardsley, J., said : " Where insanity is interposed as a defence to an 
 indictment 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 responsibility 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.
 
 SECT. I.] PARSONS V. STATE. 337 
 
 between right and wrong at the time of and with respect to the act 
 which is the subject of the inquiry. 
 
 We are asked in this case to introduce a new element into tlie rule 
 of criminal responsibility in cases of alleged insanity, and to hold that 
 the power of choosing riglit from wrong is as essential to legal rospon- 
 sibilit}- as the capacity of distinguishing between them ; and that the 
 absence of the former is consistent with the presence of the latter. 
 
 The argument proceeds upon the theorj- that there is a form of 
 insanity in whicli the faculties are so disordered and deranged that a 
 man, tliough 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 authorit}' there ma}' be for this view, 
 it has not been accepted bv 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 
 Tule 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 may 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. 
 Allunt, 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 : " Every 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 witli 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 insanity, 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 Sto.ve, C. J., is 
 omitted.
 
 338 PARSONS V. STATE. [CHAP. V. 
 
 The rulings of the court raise some questions of no less difficulty 
 than of interest, for, as observed b}' a distinguished American judge, 
 "of all medico-legal questions, those connected with insanity are the 
 most difficult and perplexing," (Per Dillon, C. J., in State v. Felter, 
 25 Iowa, G7.) It has become of late a matter of comment among intel- 
 ligent men, including the most advanced thinkers in the medical and 
 legal professions, that the deliverances of the law courts on this branch 
 of our jurisprudence have not heretofore been at all satisfactory, either 
 in the soundness of their theories, or in their practical application. 
 The earliest English decisions, striving to establish rules and tests on 
 the subject, including alike the legal rules of criminal and civil respon- 
 sibility, and the supposed tests of the existence of the disease of insanity 
 itself, are now admitted to have been deplorably erroneous, and, to say 
 nothing of their vacillating character, have long since been abandoned. 
 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 subj'^cts, 
 and they are now entirely exploded. Time was in the history of our 
 laws that the veriest lunatic was debarred from pleading his providen- 
 tial affliction 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 
 by pleading liis 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. J^rskine, when defending Hadfield 
 for shooting the king, in the year 1800, justly observed : "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 insanit}-, and acting under the duress of such delusion was 
 recognized in effect as the legal rule of responsibility. Lord Kenyon, 
 after ordering a verdict of acquittal in that case, declared with empha- 
 sis 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 posscFsed 
 by a child fourteen ^-ears of age ; and Mr. Justice Tracy, and other 
 judges, had ventured to decide that, to be non-punishable for alleged 
 acts of crime, "a man must be totall}- deprived of his understanding 
 and memory, so as not to know what he was doing, no more than an 
 infant, a brute, or a loild beast.'' (Arnold's Case, 16 How. St. Tr, 
 764.) All these rules have necessarily been discarded in modern limes 
 in the light of the new scientific knowledge acquired b}' a more thor- 
 ough study of the disease of insanity. In Bellingham's Case, decided 
 in 1812 by Lord Mansfield at the Old Bailey (Coll. on Lun. 630), the 
 test was held to consist in a knowledge that murder, the crime there 
 committed, was "against the laws of God and nature," thus meaning 
 an ability to distinguish between right and wrong in the abstract.
 
 SECT, I.J PAKSONS V. STATE. 330 
 
 This rule was not adhered to, but seems to have been modified so as to 
 make the test rather a knowledge of right and wrong as applied to the 
 particular act. (Lawson on Insanity, 20 1, § 7 et seq). The great lead- 
 ing case on the subject in England is McNaghtcn's Case, decided in 
 1843 before the English House of Lords, 10 CI. & F. 200 ; s. c, 2 Law- 
 son's Cr. Def. 150. It was decided by the judges in that case that, in 
 order to entitle the accused to acquittal, it must be clearly proved that, 
 at the time of committing the offence, he 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, or, if he did, not to know that what he 
 was doing was wrong. This rule is commonly supposed to have here- 
 tofore been adopted by this court, and has been followed by the general 
 current of American adjudications. Boswell v. The State, 63 Ala. 307 ; 
 s. c. 35 Amer. Rep. 20 ; s. c 2 Lawson's Cr. Def. 352 ; McAllister v. 
 State, 17 Ala. 434 ; Lawson on Insanity, 219-221, 231. 
 
 In view of these conflicting decisions, and of the new light thrown 
 on the disease of insanity by the discoveries of modern psychological 
 medicine, the courts of the country may well hesitate before blindly 
 following in the unsteady footsteps found upon the old sandstones of 
 our common law jurisprudence a century ago. The trial court, with 
 prudent propriety, followed the previous decisions of this court, the cor- 
 rectness of which, as to this subject, we are now requested to review. 
 
 We do not hesitate to say that we re-open the discussion of this 
 subject with no Uttle reluctance, having long hesitated to disturb our 
 past decisions on this branch of the law. Nothing could induce us to 
 do so except an imperious sense of dut}', which has been excited by 
 u protracted investigation and stud}', impressing our minds witli the 
 conviction that the law of insanit}' as declared hy the courts on many 
 points, and especially the rule of criminal accountability, and the as- 
 sumed tests of disease to that extent which confers legal irresponsi- 
 bility, have not kept pace with the progress of thought and discovery 
 in the present advanced stages of medical science. Though science 
 has led the way, the courts of England have declined to follow, as 
 shown by their adherence to the rulings in McNaghten's Case, em- 
 phasized by the strange declaration made by the Lord Chancellor of 
 England, in the House of Lords, on so late a day as March 11, 1862, 
 that " the introduction of medical opinions and medical theories into 
 this subject has proceeded upon the vicious principle of considering 
 ijisaiiity as a disease ! " 
 
 It is not surprising that this state of affairs has elicited from a 
 learned law writer, who treats of this subject, the humiliating declara- 
 tion that, under the influence of these ancient theories, '' the memorials 
 of our jurisprudence are written all over with cases in which those 
 who are now understood to have been insane have been executed as 
 criminals." 1 Bish. Cr. Law (7th ed.) § 390. There is good reason, 
 both for this fact and for the existence of unsatisfactory- rules on this 
 subject. In what we sa}' we do not intend to give countenance to ao
 
 340 PAKSONS V. STATE, [CHAP. V. 
 
 quittals of criminals, frequent examples of whicli have been witnessed 
 in modern times, based on the doctrine of moral or emotional insanit}', 
 unconnected with mental disease, wliich is not yet sufficiently supported 
 h}' psychology, or recognized b}- law as an excuse for crime. Boswell's 
 case, supra; 1 Whar. Cr. Law (9th ed.), § 43. 
 
 In ancient times lunatics were not regarded as "unfortunate suffer- 
 ers from disease, but rather as subjects of demoniacal possession, or as 
 self-made victims of evil passions." They were not cared for humanel}' 
 in as3'lums and hospitals, but were incarcerated in jails, punished with 
 chains and stripes, and often sentenced to death bj' burning or the 
 gibbet. When put on their trial, the issue before the court then was 
 not as now. If acquitted, the}' could only be turned loose on the com- 
 munity to repeat their crimes without molestation or restraint. The}' 
 could not be committed to liospitals, as at tlie present da}', to be kept 
 in custody, cared for by medical attention, and often cured. It was not 
 until the beginning of the present century that the progress of Christian 
 civilization asserted itself by the exposure of the then existing bar- 
 barities, and that tlie outcry of philanthropists succeeded in eliciting 
 an investigation of the British Parliament looking to their suppression. 
 Up to that period the medical treatment of the insane is known to have 
 been conducted upon a basis of ignorance, inhumanity, and empiricism, 
 Amer, Cyclopaedia, vol. ix. (1874), title, Insanity. Being punished for 
 wickedness, rather than treated for disease, this is not surprising. The 
 exposure of these evils not only led to the establishment of tliat mos 
 beneficent of modern civilized charities, the Hospital and Asylum for 
 the Insane, but also furnished hitherto unequalled opportunities to the 
 medical profession of investigating and treating insanity on the path- 
 ological basis of its being a disease of the mind. Under these new 
 and more favorable conditions the medical jurisprudence of insanity 
 has assumed an entirely new phase. The nature and exciting causes of 
 the disease have been thoroughly studied and more fully comprehended. 
 The result is that the " right and wrong test," as it is sometimes called, 
 which, it must be remembered, itself originated with the medical pro- 
 fession, in the mere dawn of the scientific knowledge of insanity, has 
 been condemned by the great current of modern medical authorities, 
 who believe it to be " founded on an ignorant and imperfect view of 
 the disease." Encyc. Brit. vol. xv, (9th ed.), title. Insanity. 
 
 The question then presented seems to be whether an old rule of 
 legal responsibility shall be adhered 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
 
 SECT. I.J PARSONS V. STATE. 341 
 
 case be infallibl}' detected. The inqiiiiy must not be unduly obstructed 
 bv the doctrine of stare decisis, for the life of the coniinon 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 b}- a constant struggle for 
 approximation to the highest practical wisdom. It is not like the laws 
 of the Medes and Persians, which could not be 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 inhumanit}- 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 ma}' do while in that state. 
 
 Can the courts justly- sa}', 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 destroy the 
 power 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 bj' a writer on psychological medicine, as 
 one " in which the reason has lost its empire over the passions, and the 
 actions by which they 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 
 separatiug 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. Tlie rule in McNaghten's Case arro- 
 gates to the court, in legal effect, the right to assert, as matter of law, 
 the following propositions : — 
 
 1. That there is but a single test of the existence of that degree of 
 insanity, such as confers irresponsibility 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 tlie 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
 
 342 PAESONS V. STATE. [CHAP. V. 
 
 be law which is matter of /act." " If" observes the same court, " the 
 tests of insanity are matters of law, the practice of allowing experts 
 to testify what they are should be discontinued ; if they are matters 
 of fact, the judge should no longer testify without being sworn as a 
 witness, and showing himself to be qualified to testify as an expert." 
 State V. Pike, 49 N. H. 39.9. 
 
 We first consider vvhat is the jproper legal rale of responsibility in 
 criminal cases. 
 
 No one can deny that there must be two constituent elements of legal 
 responsibility' in the commission of ever}' crime, and no rule can be just 
 and reasonable which fails to recognize either of them : (1) capacity 
 of intellectual discrimination ; and (2) freedom of will. Mr. Wharton, 
 after recognizing this fundamental and obvious principle, observes : 
 " If there be either incapacit}- to distinguish between right and wrong 
 as to the particular act, or delusion as to the act, or inabilit}' to refrain 
 from doing the act, there is no responsibility." 1 Whar. Cr. Law (9th 
 ed.), § 33. Sa^-s 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.), § 3836. 
 
 If, therefore, it be true, as matter of fact, that the disease of insanit}' 
 can, in its action on the human brain through a shattered nervous 
 organization, 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 the right and abstain 
 from the wrong, — is such a one criminally responsible for an act done 
 under the influence of such controlling disease? We clearly think not; 
 and sucli we believe to be the just, reasonable, and humane rule towards 
 which all the modern authorities in this countrv, legislation in England, 
 and the laws of other civilized countries of the world, are gradually', but 
 surely tending, as we shall further on attempt more fully to show. 
 
 We next consider the question as to the probable existence of such a 
 disease, and the test of its prese?ice 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 ps^'chical effects, because 
 this is a matter of evidence, not of law, or judicial cognizance. Its 
 existence, and effect 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 3'ellow fever formerly 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 and 
 electricity as a motive power, or the possibilit}' of communication in a 
 few moments between the continents of Europe and America l>y the 
 magnetic telegraj^h, or that of the instantaneous transmission of the 
 human voice from one dist;inl city to another bv the use of the tele-
 
 SECT. I,] PARSONS V. STATE. 343 
 
 phone. These are scientific facts, first discovered by experts before 
 becoming matters of common knowledge. So, in like manner, must be 
 every other unknown scientific fact, in whatever profession or depart- 
 ment of knowledge. The existence of such a cerebral disease as that 
 which we have described is earnestly alleged by the superintendents of 
 insane hospitals and other experts who constantly have experimental 
 dealings with the insane, and they are permitted every day to so testify 
 before juries. Tiie truth of their testimony — or what is the same thing, 
 the existence or non-existence of such a disease of the mind — in each 
 particular case, is necessarily a matter for the determination of the jury 
 from the evidence. 
 
 So it is equally obvious that the courts cannot, upon any sound prin- 
 ciple, undertake to say what are the invariable or infallible tests of such 
 disease. The attempt has been repeatedly made, and has proved a 
 confessed failure in practice. "Such a test," says Mr. Bishop, "has 
 never been found, not because those who have searched for it have not 
 been able and diligent, but because it does not exist." 1 Bish. Cr. Law 
 (7th ed), § 381. In this conclusion. Dr. Ray, in his learned work on 
 the Medical Jurisprudence of Insanity, fully concurs. Raj's Med. Jur. 
 Ins. p. 39. The symptoms and causes of insanit}' are so variable, and 
 its pathology so complex, that no two cases ma}- be just alike. " The 
 fact of its existence,"' says Dr. Ray, " is never established by any single 
 diagnostic symptom, but by the whole body of symptoms, no particular 
 one of which is present in every case." Ray's Med. Jur. of Ins. § 24. 
 Its exciting causes being moral, psychical, and physical are the especial 
 subjects of specialists' study. What effect may be exerted on the given 
 patient by age, sex, occupation, the seasons, personal surroundings, 
 hereditary transmission, and other causes is the subject of evidence 
 based on investigation, diagnosis, observation, and experiment. Pecu- 
 liar opportunities, never before enjoyed in the history of our race, are 
 offered in the present age for the ascertainment of these facts, b}- the 
 establishment of asylums for the custody and treatment of the insane, 
 which Christian benevolence and statesmanship have substituted for 
 jails and gibbets. The testimony of these experts — differ as they may 
 in many doubtful cases — would seem to be the best which can be 
 obtained, however unsatisfactory it may be in some respects. 
 
 In the present state of our law, under the rule in McNaghten's 
 Case, we are confronted with this practical difficulty, which itself demon- 
 strates the defects of the rule. The courts in effect charge the juries, 
 as matter of law, that no such mental disease exists as that often 
 testified to by medical writers, superintendents of insane hot^pitals, and 
 other experts, — that there can be as matter of scientific f£Oi no cere- 
 bral defect, congenital or acquired, which destroys the patien. s power 
 of self-control, his hberty of will and action, provided only he retains 
 a mental consciousness of right and wrong. The expei'ts are immedi- 
 ately put under oath, and tell the juries just the contrary, as matter of 
 evidence ; asserting that no one of ordinary intelligence can spend an
 
 344 PARSONS V. STATE. [CHAP. V. 
 
 hour in the wards of an insane as3lum without discovering such cases, 
 and in fact that "the whole management of such asyhuns presupposes 
 a knowledge of right and wrong on the part of their inmates." (iuy & 
 F. on Forensic Med. 220. The result in practice, we repeat, is that 
 the courts charge one way, and the jury, following an alleged higher 
 law of humanity, find another in harmony with the evidence. 
 
 In Bucknill on Criminal Lunac}', p. 59, it is asserted as "the result 
 of observation and experience, that in all lunatics and in the most 
 degraded idiots, whenever manifestations of any mental action can be 
 educed, the feeling of right and wrong ma^^ be proved to exist." 
 
 " With regard to this test," says Dr. Russell Reynolds, in his work 
 on "The Scientific Value of the Legal Tests of Insanity," p. 34 
 (London, 1872), *' I may say, and most emphatically, that it is utterly 
 uuirustworthy, because untrue to the obvious facts of Nature." 
 
 In 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 potver 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 wrung is own 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 oallows." 
 
 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 IIosp. (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 found 
 in the following resolution unanimously passed at the annual meeting 
 of the British Association of medical officers of Asylums and Hospitals 
 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 responsible agent, because 
 he knows the difference between right and wrong, is niconsistent with
 
 SECT. I.] PARSONS V. STATE. 345 
 
 the fact, well known to every 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 mtelligent 
 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 knoicledge of good and evil, but the power to choose the 
 one, and refrain from the other." Browne's Med. Juf. of Insanity, 
 §§ Id, 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 stq. 
 
 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 enfeeblement 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 inductire science of ?nedical p)sychology 
 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. 66, note 1 ; Browne's Med. 
 Jur. of Insan. § 10, note 1.
 
 346 PARSONS V. STATE. [CHAP. V. 
 
 There are many well considered cases which support these views.* 
 
 The law of Scotland is in accord with the English law on this subject, 
 as miglit well be expected. Tbe Criminal Code of Germany, however, 
 contains the foUowaig provision, which is said to have been the formu- 
 lated result of a very able discussion both by the physicians and lawyers 
 of that country : " There is no criminal act when the actor at the 
 time of the offence is in a state of unconsciousness, or morbid disturb- 
 ance of the mind, (hrouf/h which the free determination of his vnll is 
 excludecir Encyc. Brit. (9th ed.), vol. ix. p. 112 ; citing Crim. Code of 
 Germany (§ 51, 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 tiie French tribunals were inclined to interpret this law in 
 such a manner as to follow in substance the law of England. 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, siqyra, 
 is equally obnoxious to a like criticism. The difficulty does not lie in 
 the rule, but is inherent in the subject of insanity itself. The practical 
 trouble is for the courts to determine in what particular cases the party 
 on trial is to be transferred from the category 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 every- 
 day fact of Nature, no one can say where twilight ends or begins, but 
 there is ample distinction nevertheless between day and night. We 
 think we can safely rely in this matter upon the intelligence of our 
 juries, guided by the testimony of men who have practically made a 
 study of the disease of insanity, and enUghtened by a conscientious 
 desire, on the one hand, to enforce the criminal laws of the land, and 
 on the other, not to deal harshly with any 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 
 punishment for crime on the 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 
 mere moral, or emotional insanity, so-called, unconnected with disease 
 of the mind, or irresistible 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 
 
 1 The consideration of certain authorities on the subject is omitted.
 
 SECT. I.] PARSONS V. STATE. 347 
 
 one acting under the influence of an insane delusion is to be exempted 
 from criminiil accountability. Tlie evidence tended to sliow ihat one of 
 the defendauts, Mrs. Nancy J. Parsons, acted under tlie influence of 
 an insane delusion that the deceased, whom she assisted in killing, 
 possessed supernatural power to alllict her with disease, and to take 
 her Ufe 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 m a criminal case only when 
 the imaginary state of facts would, if real, justify or excuse the act ; 
 or, in tlie 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 destroyed or impaired by disease, except, perhaps, in cases where 
 the imaginary state of facts, if real, w'ould excuse or justify the act 
 done under their influence. Fields" Med. Leg. Guide, 101-104 ; GuV 
 & F. on Forensic Med. 220. If the rule declared by the English judge."? 
 be correct, it necessarily follows that the only possible instance ol 
 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, altliough 
 - 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 tlie 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 eml^odied 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 
 rnnre 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 combatt
 
 348 PARSONS V. STATE. [CHAP. V. 
 
 when he could do so safely 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 only 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 probably 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 fallac}' consists in the 
 assumption that no other phase of delusion proceeding from a diseased 
 brain can so destroy the volition of an insane i)erson as to render him 
 powerless to do what he knows to be right, or to avoid doing what 
 he mav 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 sufficient if the insane delusion — by which we mean the 
 delusion proceeding from a diseased mind — sincerelj' exists at the time 
 of committing the alleged crime, and the defendant believii]g it to be 
 real, is so influenced b\- it as either to render him incapable of perceiv- 
 ing the true nature and quality' of the act done, bj' 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. St. Tr. 
 1282 ; s. c, 2 Lawson's Cr. Def 201 ; Roberts v. State, 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 verj' clearlj' from what we have said 
 that the inquiries to be submitted to the jury, then, in every criminal 
 trial where the defence of insanity 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 of the 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 legall}' responsible. 
 
 3. If he did have such knowledge, he maj- nevertheless not be legally 
 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 was so connected 
 with such mental disease, in the relation of cause and effect, as to have 
 been the product of it solely.
 
 SECT, I.! PARSONS V. STATE. 349 
 
 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, 
 and to that extent is declared incorrect, and is not su[)ported b}- the 
 opinion in that case, otherwise than by dictum. 
 
 We adhere, however, to the rule declared by this court in Boswell's 
 case, siqyra^ 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 by a preponderance of the 
 evidence ; and a reasonable doubt of the defendant's sanity, raised by 
 all the evidence, does not authorize an acquittal. 
 
 The judgment is reversed, and the cause remanded. In the mean- 
 while the prisoners will be held in custody until discharged by due 
 process of law. 
 
 Stone, C. J., dissents in part. 
 
 Note on the Test of Insaxity. The test of insanity laid down by the judges 
 in McNaghten's Case, suj)ra (usually known as "the knowledge of right and wrong 
 test"), prevails in many jurisdictions, and "irresistible impulse" is lield not to be 
 such insanity as will excuse from crime. U. S. v. Shults, 6 McLean, 121 ; U. S. v. 
 Young, 25 F. R. 710 ; People v. Hoin, 62 Cal. 120 ; U. S. v. Guiteau, 10 F. R. 161 
 (D. C.) ; Brinkley v. State, .'iS Ga. 296 ; State v. Mowry, 37 Kas. 369, 15 Pac. 282; 
 State V. 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 {supra) ; 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 
 (semblc). See Andersen v. State, 43 Conn. 514. 
 
 Other jurisdictions, staiting 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. Com. v. Rogers, 7 Met. 500 (supra) ; Bovard v. State, 
 30 Miss. 600 ; Brown v. Com., 78 Pa. 122. 
 
 Still other jurisdictions discard altogether the "right aud 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.
 
 350 REGTNA V. DOODY. [CHAP. V. 
 
 SECTION IL 
 
 Intoxication. 
 
 PEARSON'S CASE. 
 
 Carlisle Assizes. 1835. 
 
 [Reported 2 Lewin, 144.] 
 
 The prisoner was indicted for the murder of his wife. 
 
 It was proved that in a fit of drunkenness he had beaten her in a cruel 
 manner with a rake-shank, and that she died of the wounds and bruises 
 which she received. His only defence was that he was drunk. 
 
 Pakk, J. Vohintary 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 Cor C. C. 463.] 
 
 The prisoner was indicted for unlawfully attempting to commit 
 suicide at Wolverhampton, on the 5th of March, 1854. 
 
 It appeared 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 had 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 wa3 quite capable of taking care of himself. 
 
 WiGHTMAN, 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 
 at the time, which must be taken to mean that he had no deliberate
 
 SECT. II.] KEGINA V. DAVIS. 351 
 
 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 Finlasnn, 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.] 
 
 WiLLi.\M 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. Maisliall'.s Case, 1 Lewin C. C. 76. But see Com. v. Hawkins, 3 Gray, 
 463. — Ed
 
 o 
 
 52 EEGINA V. DAVIS. [CHAP. V. 
 
 between moral right and wrong at the time he committed the act. 
 Under proper care and treatment he recovered in a week, and was 
 then perfectly sensible. 
 
 For the defence it was submitted that he was of unsound mind at 
 the time of the commission of the act, and was not responsible for his 
 actions. 
 
 Stephen, J., to the jury. The prisoner at the bar is charged with 
 having feloniously wounded his sister-in-law, Jane Davis, on the 14th 
 day of January last, with intent to murder her. You will have to 
 consider whether he was in such a state of mind as to be thoroughly 
 responsible for liis actions ; and with regard to that I must explain to 
 you what is the kind or degree of insanity which relieves a man from 
 responsibility. Nobody must suppose — and I hope no one will be led 
 for one moment to suppose — that drunkenness is any kind of excuse 
 for crime. Jf this man had been raging drunk and had stabbed his 
 sister-in-law and killed her, he would have stood at the bar guilty of 
 murder beyond all doubt or question. But drunkenness is one thing, 
 and the diseases to which drunkenness leads are different things ; and 
 if a man by drunkenness brings on a state of disease which causes 
 such a degree of madness, even for a time, which would have relieved 
 him from responsibility if it had been caused in any other way, then 
 he would not be criminally responsible. In my opinion, in such a case 
 the man is a madman, and is to be treated as such, although his mad- 
 ness is only temporary. If you think he was so insane that if his 
 insanity had been produced by other causes he would not be respon- 
 si])le for his actions, then the mere fact that it was caused by drunk- 
 enness will not prevent it having the effect which otherwise it would 
 have had, of excusing him from punishment. Drunkenness is no ex- 
 cuse, but delirium tremens caused by drunkenness may be an excuse 
 if you think it produces such a state of mind as would otherwise 
 relieve him from responsibility. A person may be both insane and 
 responsible for his actions, and the great test laid down in McNagh- 
 ten's Case (10 CI. & Fin. 200 ; 1 C. & K. 130 n.) was whether he did 
 or did not know at the time that the act he was committing was wrong. 
 If he did — even though he were mad — he must be responsible ; but if 
 Ills madness prevented that, then he was to be excused. As I under- 
 stand the law, any disease which so disturbs the mind that you cannot 
 tliiuk calmly and rationally of all the different reasons to which we 
 refer in considering the rightness or wrongness of an action, — any 
 disease which so disturbs the mind that you cannot perform that duty 
 with some moderate degree of calmness and reason, may be fairly said 
 to prevent a man from knowing that what he did was wrong. Deli- 
 rmm tremens is not the primary but the secondary consequence of 
 drinking, and both the doctors agree that the prisoner was unable to 
 control his conduct, and that nothing short of actual physical restraint 
 would have deterred him from the commission of the act. If you 
 think there was a distinct disease caused by drinking, but different
 
 SECT. II.] PEOPLE V. KOGEliS. 353 
 
 from drunkenness, and that by reason thereof he did not know that the 
 act was wrong, you will find a verdict of not guilty on tlie ground of 
 insanity ; but if you are not satisfied witli that, you nuist find him 
 guilty either of stab))ing with intent to murder or to do grievous bodily 
 harm. 
 
 The jury returned a verdict of not guilty on the ground of insanity. 
 
 The prisoner was ordered to be detained during Her Majesty's 
 pleasure.* 
 
 PEOPLE V. ROGERS. 
 
 Court of Appeals of New York. 1858. 
 
 [Reported 18 New York, 9.] 
 
 Denio, J.^ The principal exception to the judge's charge which is 
 now relied on, relates to the consideration which should be given to 
 the proof that the prisoner was intoxicated at the time of the homi- 
 cide. The commission of crime is so often the attendant upon and 
 the consequence of drunkenness, that we should naturally expect the 
 law concerning it to be well defined. Accordingly we find it laid down 
 as early as the reign of Edward VI. (1548), that " if a person that is 
 drunk kills another, this shall be felony, and he shall be hanged for it. 
 And yet he did it through ignorance, for when he was drunk he had 
 no understanding nor memory ; but inasmuch as that ignorance was 
 occasioned by his own act and folly, and he might have avoided it, 
 he shall not be privileged thereby." Plowden, 19. The same doc- 
 trine is laid down by Coke in the Institutes, where he calls a drunk- 
 ard voluntarius dcemoti, and declares that "whatever hurt or ill he 
 doeth, his drunkenness doth aggravate it." 3 Thomas's Coke, 46. 
 So in his Reports it is stated that "although he who is drunk is for 
 the time non compos mentis, yet his drunkenness does not extenuate 
 his act or offence, nor turn to his avail ; but it is a great offence in 
 itself, and therefore aggravates his oflTence, and doth not derogate 
 from the act which he did during that time, — and that as well in cases 
 touching his life, his lands, his goods, or any other thing that concerns 
 him." Beverley's Case, 4 Co. 125, a. Lord Bacon, in his " Maxims 
 of the Law," dedicated to Queen Elizabeth, asserts the doctrine thus : 
 "If a madman commit a felony, he shall not lose his life for it, be- 
 cause his infirmity came by the act of God ; but if a drunken man 
 commit a felony, he shall not be excused, because the imperfection 
 came by his own default." Eule V. And that great and humane 
 Judo-e, Sir Matthew Hale, in his " Historv of the Pleas of the 
 
 1 Ace. U. S. V. McGlue, 1 Curt. 1; Beasley v. State, 50 Ala. 149; Fisher v State, 64 
 Ind. 435; Maconneheyr. State, 5 Ohio St. 77; State v. Robinson, 20 W. Va. 713. — Ed 
 
 2 Parts only of the opinions are <:;iven.
 
 354 PEOPLE V. ROCIEKS. [CHAP. V. 
 
 Crown," written nearly two hundred years ago, does not countenance 
 an^' relaxation of the rule. "The third kind of dementia " he says, 
 "is that which is dementia affectata^ namely, drunkenness. This 
 vice doth deprive men of the use of reason, and puts man}' men into 
 a perfect but temporary- frenzy, and therefore, according to some 
 civiUans, such a person coujmitting homicide shall not be punisiied 
 simph' for the crime of homicide, but sliall suffer for his drunkenness, 
 answerable to the nature of the crime occasioned thereby, so that yet 
 the primal cause of the punishment is rather the drunkenness than the 
 crime committed in it ; hut by the Imos of England sucli a person 
 shall have no privilege by his vohuitarily contracted madness, but 
 shall have the same judgment as if he were in his right senses." He 
 states two exceptions to tlie rule : one where the intoxication is without 
 fault on his part, as where it is caused by drugs administered by an 
 unskilful physician ; and the other, where indulgence in habits of in- 
 temperance has produced permanent mental disease, which he calls 
 fixed frenzy. 1 Hale, 32. Coming down to more modern times, we 
 find the principle insisted upon by the enlightened Sir William Black- 
 stone. "The law of England," he says, "considering how easy it is 
 to contract this excuse, and how weak an excuse it is (though real), 
 will not suffer any man thus to privilege one crime by another." 
 4 Com. 26. A few recent cases in the English courts will show the 
 consistency with which the rule has been followed down to our own 
 times. In Burrow's Case (Lewin's Cr. C. 75, a. d. 1823) the pris- 
 oner was indicted for a rape, and urged that he was in liquor. Hol- 
 rovd, J., addressed the jury as follows: " It is a maxim in law that 
 if a man gets himself intoxicated, he is answerable to the consequences, 
 and is not excusable on account of an}- crime he may commit when 
 infuriated by liquor, provided he was previously in a fit state of 
 reason to know right from wrong. If, indeed, the infuriated state at 
 which he arrives should continue and become a lasting malady, then 
 he is not answerable." A similar charge was given to the jury in the 
 next case in the same book, where drunkenness was urged upon the 
 trial of an indictment for burglary. Patrick Carroll was tried in 1835, 
 at the Central Criminal Court, before a judge of the King's Bench and 
 a judge of the Common Pleas, for the murder of Elizabeth Browning. 
 It appeared that shortly before the homicide the prisoner was very 
 drunk. His counsel, though he admitted that drunkenness could 
 not excuse from the commission of crime, yet submitted that in a 
 charge for murder, the material question being whether the act 
 was premeditated or done only with sudden heat and impulse, the 
 fact of the party being intoxicated was a proper circumstance to be 
 taken into consideration, and he referred to a case before Holroyd, 
 J., reported in 2 Russell on Crimes 8, Rex v. Grindley, where that 
 doctrine was laid down. Parke, J., in summing up, said : " Highly 
 as I respect that late excellent judge, I differ with him, and my brother 
 Littlcdale [the associate] agrees with me. He once acted on that
 
 SECT. II. j PEOPLE V. ROOERS. 355 
 
 case, but afterwards retracted his opinion, and there is no doubt that 
 that case is not law. I think that there would be no safety 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 unnecessary, 
 as they all agree upon the main proposition, namely, that mental 
 alienation, produced b}' drinking intoxicating liquors, furnishes no im- 
 munity for crime. Rex v. Meakin, 7 Carr. & Payne, 297, and Rex 
 V. Tliomas, 7 id. 817, may be mentioned; and in tliis country, The 
 United States v. Drew, 5 Mason C. C. R. 28, and The United vStates 
 V. McGlue, 1 Curtis C. C R. 1, will be found to maintain the principle 
 upon the authority of Judge Story 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 b}- 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 Story directed an acquittal on that account. In 
 the other the evidence left it doubtful whether the furious madness 
 exhibited b}' 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 effect 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 absolutely 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 by intoxication ; but human laws are based upon 
 considerations of policy, 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 duty 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
 
 356 PEOPLE V. ROGERS. [CHAP. V. 
 
 if by a voluntary act he temporarily casts off the restraints of reason 
 and conscience, no wrong is done him if he is considered answerable 
 for any injury whicli in that state he may do to others or to society. 
 
 Before proceeding to examine the judge's charge, it is necessary to 
 state one other principle connected with the subject of intoxication. 
 I am of the opinion that, in cases of homicide, tlie fact that the ac- 
 cused was under the influence of liquor may be given in evidence in 
 his behalf. The effect which the evidence ought to have upon the 
 verdict will depend upon the other circumstances of the case. Thus, 
 in Rex v. Carroll, which was a case of murder by stabbing, there was 
 not, as tlie court considered, any provocation on the part of the de- 
 ceased, and it was hold tliat tlie circumstance that the prisoner was 
 intoxicated was not at all material to be considered. Rex v. Meakin 
 was an indictment for stabbing with a fork, with intent to murder, 
 and it was shown that the prisoner was the worse for liquor. Alder- 
 son, Baron, instructed the jury that, with regard to the intention, 
 drunkenness might be adverted to according to the nature of the in- 
 strument used. "If," he said, "a man uses a stick, you would not 
 infer a malicious intent so strongly against him, if drunk when he 
 made an intempei*ate use of it, as you 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 liave no 
 effect upon the consideration of the malicious intent of the party." 
 In Rex V. Thomas (for maliciously stabbing), the person stabbed had 
 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 w4iere what the law deems sufficient 
 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 
 by the previous provocation ; and that passion, it was said, is more 
 easily excitable in a person when in a state of intoxication than when 
 he is sober. So, it was added, where the question is whether words 
 have been uttered with a deliberate purpose, or are merel}" 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 affront in a barbarous 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 by drunken men, 
 that the condition of the prisoner would explain or give character to 
 some of his language, 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 would sometimes be right to advise the jury that 
 it ought to have no influence upon the case, is, I think, clear from 
 the foregoing authorities. In a case of lengthened premeditation, of 
 Iving in wait, or where the death was by poisoning, or in the case of 
 wanton killing without any provocation, such an instruction would 
 plainly- be proper.
 
 SECT. IT.] PEOPLE V. ROGERS. 357 
 
 Harris, J. No rule is more familiar than that intoxication is never 
 an excuse for crime. There is no judge m'Iio lias been engagecl in the 
 administration of criminal law, who has not had occasion to assert it. 
 Even where intent is a necessary ingredient in tlu; 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 Iiim down with an axe, no degree of 
 intoxication, short of that wliich sljcnvs that he was at the time utterly 
 incapable of acting from motive^ will shield him from conviction. This 
 was, in substance, the doctrine wliicli the jury received from the court 
 in this case. The defendant had struck a blow with a deadly weapon, 
 which had resulted in immediate deatli. 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 connnitted 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 bj- 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 case 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 w^as requested to do was to instruct the jury that if they 
 were satisfied that, by reason of intoxication, there was no intention op 
 motive to commit the crime of murder, they should convict the defend- 
 ant of manslaughter onl}'. 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 intoxicax 
 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.
 
 358 CHOICE V. STATE. [CHAP. V, 
 
 it was intended that the court should instruct the jury that if, b}' reason 
 uf intoxication, the defendant was so far deprived of his senses as to 
 he incapable of entertaining a purpose, or acting from design, the jury 
 were so instructed. This was enough, unless the counsel for the de- 
 fendant desired to have the jury decide whether the act was not com- 
 mitted in the heat of passion. In that case, his proposition must have 
 been \Qvy differently framed. 
 
 Judgment of the Supreme Court reversed, and that of the General 
 Sessions affirmed. 
 
 CHOICE V. STATE. 
 Supreme Court of Georgia. 1860. 
 
 [Reported 31 Georgia, 424.] 
 
 Lumpkin, J.^ The sixth error alleged in the motion for a new trial 
 is, because the judge failed to include in his charge to the jury the 
 law on the material facts proven in the evidence and insisted on in 
 the argument of counsel ; and especially in failing to charge the jury 
 whether the prisoner was or was not responsible for crime, if by rea- 
 son of the injury to his' brain or otherivise (mark that expression !)he 
 was afflicted with the disease called oinomania^ and by reason of this 
 disease was irresistibly impelled, by a will not his own, to drink, and 
 after being so impelled did drink, and thus became insane from 
 drink, and while thus insane he committed homicide. The court also 
 erred in not charging the jury that if they believed the prisolier had 
 suffered by injury, or otherwise (mark that again !), a pathological or 
 organic change in the brain, which produced the disease of oinomania, 
 and by this disease was irresistibly impelled to drink liquor, and from 
 the liquor thus drank became insane, and while thus insane killed 
 deceased, he was not guilty of murder. 
 
 Whether any one is born with an irresistible desire to drink, or 
 ■whether such thirst may be the result of accidental injury done to the 
 brain, is a theory not yet satisfactorily established. For myself, I 
 capitally doubt whetlier it ever can be. And if it were, how far this 
 crazy desire for liquor would excuse from crime, it is not for me to 
 say. That this controlling thirst for liquor may be acgnired by the 
 force of habit, until it becomes a sort of second nature, in common 
 language, I entertain no doubt. Whether even a long course of in- 
 dulgence will produce a pathological or organic change in the brain. I 
 venture no opinion. Upon this proposition, however, I plant myself 
 immovably, and from it nothing can dislodge me but an Act of the 
 Legislature ; namely, that neither moral nor legal responsibility can be 
 avoided in this way. This is a new principle sought to be ingrafted 
 
 ^ Part of the oiiinion only is given.
 
 SECT, n.] STATE V. JOHNSON. 359 
 
 upon criminal jurisprudence. Tt is neither more nor less than this, 
 — that a want of will and conscience to do right will constitute an 
 excuse for the commission of crime ; and that, too, where this deficiency 
 in will and conscience is the result of a long and persevering course of 
 wrong-doing. If this doctrine be true, — I speak it with all serious- 
 ness, — the devil is the most irrcsponsil^le being in the universe. For, 
 from his inveterate hostility to the Author of all good, no other crea- 
 ture has less power than Satan to do right. The burglar and the 
 pirate may indulge in robbing and murder until it is as hard for an 
 Ethiopian to change his skin as for them to cease to do evil, but the 
 inability of Satan to control his will, to do right, is far beyond theirs ; 
 and yet our faith assures us that the fate of Satan is unalterably and 
 eternally fixed in the prison-house of God's enemies. The fact is, 
 responsibility depends upon the possession of will, — not the power 
 over it. Nor does the most desperate drunkard lose the power to 
 control his will, but he loses the desire to control it. No matter how 
 deep his degradation, the drunkard uses his will when he takes his 
 cup. It is for the pleasure of the relief of the draught, that he takes 
 it. His intellect, his appetite, and his will, all work rationall3% if not 
 wisely, in his guilty indulgence. And were you to exonerate the ine- 
 briate from responsibility, you would do violence both to his conscious- 
 ness and to his conscience ; for he not only feels the self-prompted 
 use of every rational power involved in accountability, but he feels 
 also precisely what this new philosophy denies, — his solemn and 
 actual wrong-doing, in the very act of indulgence. Converse seriously 
 with the greatest drunkard this side of actual insanity, — just compose 
 him, so as to reach his clear, constant experience, — and he will confess 
 that he realizes the guilt, and therefore the responsibility of his con- 
 duct. A creature made responsible by God never loses his respon- 
 sibility save b}' some sort of insanity. There have always existed 
 amongst men a variety of cases wherein the will of the transgressor 
 is universally admitted to have little or no power to dictate a return to 
 virtue. But mankind have never, in any age of the world, exonerated 
 the party from responsibility, except where they were considered to 
 have lost rectitude of intellect by direct mental alienation.^ 
 
 STATE V. JOHNSON. 
 SuPKEME Court of Errors of Connecticut. 1873. 
 
 {Reported AO Connecticut, 136] 
 
 Carpenter, J.^ The prisoner was indicted and on trial for murder 
 iu the first degree. As the homicide was not perpetrated by means of 
 
 1 See accord Flanigan v. People, 86 N. Y. 554. — Ed. 
 * Part of the opinion only is given.
 
 3fi0 PEOPLE V. WALKER. [CHAP. V. 
 
 poison, or lying in wait, or in committing or attempting to commit any 
 of the crimes enumerated in the statute, he could only be convicted of 
 the higher offence by showing that it was a wilful, deliberate, and 
 premeditated killing. A deliberate intent to take life is an essential 
 element of that offence. The existence of such an intent must be 
 shown as a fact. Implied malice is sufficient at common law to make 
 the offence murder, and under our statute to make it murder in the 
 second degree ; but to constitute murder in the first degree, actual 
 malice must be proved. Upon this question the state of the prisoner's 
 mind is material. In behalf of the defence, insanity, intoxication, or 
 any other fact which tends to prove that the prisoner was incapable of 
 deliberation, was competent evidence for the jury to weigh. Intoxica- 
 tion is admissible in such cases, not as an excuse for crime, not in 
 mitigation of punishment, but as tending to show that the less and not 
 the greater offence was in fact committed. I cite a few only of the 
 many authorities which sustain this position. Keenan v. The Com- 
 monwealth, 44 Pa. 55 ; Roberts v. The People, 19 Mich. 401 ; Pigman 
 V. The State, 14 Ohio, 555 ; State v. Garvey, 11 Minn. 154; Haile v. 
 The State, 11 Humph. 154 ; Shannahan v. The Commonwealth, 8 Bush 
 (Ky.), 463 ; Ray's Med. Jur. 5th ed. 566.^ 
 
 PEOPLE V. WALKER. 
 Supreme Court of Michigan. 1878. 
 
 [Reported 38 Michigan, 156 ] 
 
 CoOLEY, J.^ The defendant was convicted in the court below for 
 the larceny of a sum of money from one Martin. All the evidence in 
 the case tended to show that if the defendant took the money wrong- 
 fully, it was while he was under the influence of liquor, and some of 
 it indicated that he was very drunk. 
 
 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 him unconscious of what he was doing at the time 
 of the commission of the alleged offence, it is no excuse for him, and 
 they should 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. 
 
 1 Ace. Hopt V. People, 104 U. S. 631; Cartwright v. State, 8 Lea, 376; Terrell r. 
 State, 43 Tex. 503; State v. Robinson, 20 W. Va. 713. 
 
 The same principle would seem to appl)' where it is desired to show that by reason 
 of intoxication an intent to kill was absolutely lacking, and so to reduce the degree of 
 a homicide to manslaughter. Reg. v. Doherty, 16 Cox C. C. 306. — Ed. 
 
 ■■' Part of the opinion only is given.
 
 SECT. III.] ANONYMOUS. 361 
 
 While 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 cousibts in the wrongful 
 takiug witli felonious iuteut ; and if the defendant, for any reason 
 whatever, indulged no such intent, tlie 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 Assisarum, 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 i;. 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; Seiler i^. 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.
 
 362 m'growther's case. [chap. v. 
 
 ANONYMOUS. 
 
 Cambridge Assizes. 1G64. 
 
 [Reported Kelyng, 31.] 
 
 It was propounded to all the judges : If a man and his wife go 
 both together to commit a burglary, and both of them break a house 
 in the night, 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 supposeth 
 the wife doth it by coercion of the husband. And so it is in all larce- 
 nies ; but as to murder, if husband and wife both join in it, they are 
 both equally guilty. Vid. 2 E. III. ; F. Corone. 160 ; 27 Ass. pi. 40 : F. 
 Corone, 199; Poulton de Pace, 126, b ; and the case of the Earl of 
 Somerset and his lady, both equally found guilty of the murder of Sir 
 Thomas Overbury, by poisoning him in the Tower of Loudon [2 How. 
 St. Tr. 951, 3 Co. lust. 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 in 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 2Sth of August the person called Duke of Perth, and 
 the Lord Strathallan, with about twenty Highlanders, came to the town 
 where the prisoner lived ; that on the same day three several sum- 
 monses were sent out by the Duke, requiring his tenants to meet him, 
 and to conduct him over a moor in the neighborhood, 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 proposed to them that they should take arms and follow him 
 into the rebellion ; that the prisoner and the rest refused to go ; where- 
 upon they were told that they 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 
 
 1 Coram Lee, C. J., "Willes, C. J., Wright and Foster, J J., Reynolds and Clive, BB. 
 Reported also 18 How. St. Tr. 391. — Ed.
 
 SECT, in.] REGINA V. DYKES. 363 
 
 houses and to drive off the cattle of such of his tenants as should 
 refuse to follow him. 
 
 They all spake very extravagantly of the power lords in Scotland 
 exercise over their tenauts, and of the obedience (even to the joining 
 in rebellion) which they expect from them. 
 
 Lord Chief Justice Lee, in siunmiug 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 iucurabent 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 jrz-o timore 7no7'tts, et recesserunt quam 
 cito potuerunt. 
 
 He then observed that the only force the prisoner pretends to w^as 
 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 Cor C C 771.] 
 
 In this case the two prisoners, who w^ere 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. DicTcens, 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 w:)S 
 for the jury to find whether upon the facts the wife had acted under
 
 364 COMMONWEALTH V. DALEY. [CHAP. V. 
 
 the coercion of her husband or not, addressed the jury for the defence ; 
 and, while admitting that the male prisoner must be convicted, urged 
 that the wife had really acted under the coercion of the husband. 
 
 The learned judge [Stephen, J.], iti summing up, left the following 
 questions to the jury : — 
 
 1. ^Yere the prisoners individually guilty or not guilty? This ques- 
 tion to be answered as if they were unmarried. 
 
 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 both prisoners guilty, but also found that the wife 
 had acted under the compulsion of the husband. 
 
 Upon this finding counsel for the defence claimed a verdict of not 
 guilty in favor of the wife, quoting the case already cited, and also 
 Reg. V. Woodward, 8 C. & P. 561. 
 
 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 married 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 husband, the question 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 
 sufficient if he was near enough for her to be under his immediate 
 control or influence. 
 
 No exact rule applicable to all cases 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 
 
 1 See Rex v. Buncombe, 1 Cox C. C. 183; People v. Wright, 38 Mich. 744. 
 
 "A wife may be indicted together with her husband, and condemned to tlie pillory 
 with him for keeping a bawdy-house; for this is an offence as to the government of the 
 house, in which the wife has a principal share ; and also such an offence as may gener- 
 ally be presumed to be managed by the intrigues of her sex." 1 Hawk. P. C. eh. 1, 
 s. 12. See Reg. v. Williams, in Med. 63; State i'. Bentz, 11 Mo. 27. — Ed. 
 
 3 Part of the opinion only is given. <
 
 SECT. IV. 1 REGINA V. SMITH. 365 
 
 the wife did not act in the du'ect presence of her husband or under his 
 eye, it must usually be left to the jury to deterniiue 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 independently of any 
 coercion or control by 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 ; Conunonwealth 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. ch. 1, s. 14. Neither a son nor a servant are excused 
 the eoniiiiission of any crime, whether capital or not capital, by the 
 command or coercion of the father or master.^ 
 
 REGINA V. SMITH. 
 Somerset Assizes. 1845. 
 
 [Repbrted 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. 
 
 Erle, 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. y. Tryon, 99 
 Mass. 442; State v. CoUin.s, 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.
 
 366 COMMONWEALTH V. NEW BEDFORD BRIDGE. [CHAP. V. 
 
 mere commissiou of the act. You are to determine from a review of 
 the evidence whether it is satisfactorily proved that at the time he fired 
 the rick (if you should be of opinion he did fire it) he had a guilty 
 knowledge that he was committing a crime Not guilty} 
 
 COMMONWEALTH v. PROPRIETORS OF NEW BEDFORD 
 
 BRIDGE. 
 
 Sdpkeme Judicial Court of Massachusetts. 1854. 
 
 [Reported 2 Graji, 339.] 
 
 Indictment 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 Fairhaven, and 
 thereby filling up and obstructing the navigation of the river. The 
 indictment was found at June term, 1852, of the Court of Common 
 Pleas. 
 
 At the trial in that court, before Btington, 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 liable to indictment for non- 
 feasance, or an omission to perform a legal duty or obligation, are not 
 
 1 See ace. Rex v. Owen, 4 C. & P. 236; Angelo v. People, 96 111. 209; State v. Fow- 
 ler, 52 la. 103; State v. Adams, 76 Mo. 355; State v. Doherty, 2 Overton, 80. 
 
 Criminal capacity in a child between seven and fourteen may be proved by evidence, 
 or may be inferred from the circumstances of the act. 4 Bl. Com. 23; Godfrey v. State, 
 31 Ala. 323; State v. Toney, 15 S. C. 409. 
 
 As to proof of criminal capacity, see Willet v. Com., 13 Bush, 230; Carr v. State, 
 24 Tex. App. 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. ElJ^rshaw, 3 C. & P. 396; Com. v. 
 Green, 2 Pick. 380 (supra); Law v. Com., 75 Va. 885. — Ed. 
 
 2 Part of the case has been omitted.
 
 SECT. I V.J COMMONWEALTH V. NEW BEDFORD BRIDGE. 367 
 
 amenable in thiff form of prosecution for a misfeasance, or the doing 
 of any act uukivvfiil 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 puri)oses for which 
 they 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 offences which derive their crimi- 
 nality from evil intention, or which consist in a violation of those social 
 duties wliich appertaui 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 
 many 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 tlms furnish 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 ; Mauud 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 therel)y obstructing navigation, which would be 
 a non-feasance, and not for unlawfully placing obstructions in the
 
 368 levett's case. [chap. v. 
 
 river, which would be a misfeasance. The difficulty in distinguishing 
 the character of these offences strongly illustrates the absurdity of the 
 doctrine that a corporation are indictable for a nou-feasancej but not 
 for a misfeasance. See 9 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 thereby inflicted upon offenders, doth not excuse any 
 that is of the age of discretion and compos 7ne>itls from the penalty of 
 the breach of it ; because ever}- person of the age of discretion and 
 compos mentis is bound to know the law, and presumed so to do ; 
 Jgnorantia eorum quae quis scire tenetur nan excusat. 
 
 But in some cases igiiorantia facti doth excuse, for such an igno- 
 rance many times makes the act itself morally involuntar}- ; 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 officer 
 sets his watch, or sentinels, and the general, to tiy 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. 1638. 
 
 [Reported Croke Car. 538.] 
 
 Jones said that it was resolved by the Chief Justice Brampton, him- 
 self, and the Recorder of London, 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 b}' special ver- 
 dict that the said Levett and bis wife being in the night in bed and 
 
 ' As to the criminal liability of members of a corporation who take part in its crimi- 
 nal acts, see Reg. v. Ry., 9 Q. B. 315, 327; People i\ England, 27 Hun, 139.— Ed. 
 ^ Here follows a statement ot" Levett's Case, infra. - - Eb.
 
 SECT, v.] REX V. BAILEY. 369 
 
 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 olFcring 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 sudtlenly and fetched a drawn rapier. 
 And the said Martha Sta[)lL't()n, lest her master and mistress should 
 see the said Frances Freeman, hid iier in the buttery. And tlie said 
 Levett and Helen his wife coining d(jwn, he with his sword searched 
 the entry for the thieves ; and she, tlie said Helen, espying in the 
 butter^' 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 butter}-, 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 instantl}' 
 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- 
 rantlj' 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 offences 
 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 year, 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 i'. Lynch, 1 Cox C. C. 361 ; McGehee v. State, 62 Miss. 772. — Ed. 
 ' Part of the case is omitted
 
 370 REX V. HALL. [chap. V. 
 
 strict law, guilty within the statutes, taken together, if the facts laid 
 were proved, though he could not then know that the act of the 39 
 Geo. III. c. 37 had passed ; and that his ignorance of that fact could in 
 no otherwise affect the case than that it might be the means of recom- 
 mending him to a merciful consideration elsewhere should he be found 
 guilty. 
 
 On the first day of Hilary term, 1800, all the Judges (except Mr. 
 Justice Buller) met at Lord Kenyon's chambers, and were of opinion 
 that it wouid 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 ^- Pai/ne, 409.] 
 
 Indictment 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 my 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 give 
 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. 
 
 Vaughan, 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 bonajide 
 
 ^ "Although proclamation be not made in the county, every one is bound to take 
 notice of that which is done in parliament ; for as soon as the parliament hath con- 
 cluded anything, the law intends that every person hath notice thereof, for the parlia- 
 ment represents the body of the whole realm ; and therefore it is not requisite that 
 any proclamation be made, seeing the statute took effect before." — Thorpe, C. J., in 
 y. B. 39 Edw. III. 7 (translation of Coke, 4 Inst. 26). See Brig Ann, 1 Gall. 62. — Ed.
 
 SECT. V.J REX V. ESOP. 371 
 
 impression that he was only getting back the possession of his own 
 property, there is no animus furandi, and I am of opinion tliat the 
 prosecution must fail. Verdict, Not guiltv i 
 
 REX V. ESOP. 
 Central Criminal Court. 1836. 
 
 [Reported 7 Carrington ^' Payne, 456.] 
 
 The prisoner was indicted for an unnatural offence, committed on 
 board of an East India ship, lying at St. Katherine's Docks. It 
 appeared that he was a native of Bagdad. 
 
 Chambers, for the prisoner. In the country fi'om which the priso- 
 ner comes it is not cousidered an offence ; and a person wlio comes 
 into this country and does an act, believing that it is a perfectly inno- 
 cent one, cannot be convicted according to the law of England. A 
 pairty must know that what he does is a crime. This is the principle 
 upon which infants, idiots, and lunatics are held not to be answerable. 
 If a person is unconscious that he is doing a wrong act. or believes 
 that it is a right or innocent act, he is exonerated. Where one man 
 kills another under the persuasion that he is doing a good action, he is 
 not liable to punishment, for he knows not the distinction between 
 right and wrong, and upon that point is insane. 
 
 BosANQUET, J. I am clearly of opinion that this is no legal de- 
 fence. 
 
 Vaughan, J. Where is the evidence that it is not a crime in the 
 prisoner's own country? But if it is not a crime there, that does 
 not amount to a defence here. Numbers have been most improperly 
 executed if it is a defence. 
 
 The prisoner, after the examination of some witnesses on his behalf, 
 from whose statements it appeared that the witnesses for the prosecu- 
 tion acted under the influence of spite and ill will, was found 
 
 Not guilty.^ 
 
 1 "Ignorance of the law cannot excuse any ])erson; but at the same time, when the 
 question is with what intent a person takes, we cannot help looking into their state of 
 mind, as if a person take what he believes to be his own, it is impossible to say that he 
 is guilty of felony." — Coleridge, J., in Reg. v. Reed, C. & M. 306. See Reg. v. Hem- 
 tnings, 4 F. & F. 50; Com. v. Stebbins, 8 Gray, 492. — Ed. 
 
 ^ See ace. Barrouet's Case, 1 E. & B. 1. — Ed.
 
 372 ANONYMOUS. [CHAP. V. 
 
 ANONYMOUS. 
 
 Western Circuit. 17 — . 
 [Reported Foster C. L. {3d ed.) 439.] 
 
 A WIDOW WOMAN was indicted on the statute 9 and 10 W. III. c. 41, 
 
 for liaving in her custody divers pieces of canvas marked with his 
 Majesty's niarlv in the manner described in the Act, she not being a 
 person employed by the commissioners of the navj' to make the same 
 for his Majest3''s use. 
 
 The canvas was produced at the trial marked as charged in the 
 indictment, and was proved to the satisfaction of the court and jury 
 to be of that sort which is commonly made for the use of the navy 
 and to have been found in the defendant's custody. 
 
 The defendant did not attempt to show that she was within the 
 exception of the Act, as being a person employed to make canvas for 
 the use of the navy ; nor did she offer to produce an}' certificate from 
 any officer of the Crown touching the occasion and reason of such 
 canvas coming into her possession. 
 
 Her defence was that when there happened to be in his Majesty's 
 stores a considerable quantity of old sails, no longer fit for that use, 
 it had been customary for the persons intrusted with the stores to 
 make a public sale of them in lots larger or smaller as best suited the 
 purpose of the bu3ers ; and that the canvas produced in evidence, 
 which happened to have been made up long since, some for table-linen 
 and some for sheeting, had been in common use in the defendant's 
 family a considerable time before her husband's death, and upon his 
 death came to the defendant, and had been used in the same public 
 manner by her to the time of the prosecution. This was proved by 
 some of the family, and by the woman who had frequently washed the 
 linen. 
 
 This sort of evidence was strongly opposed by the counsel for the 
 Crown, who insisted that, as the Act allows of but one excuse, the 
 defendant, unless she can avail herself of that, cannot resort to any 
 other ; for if the canvas was reall}' bought of the commissioners or of 
 persons acting under them, which is the only excuse pointed out by 
 the statute, why was no certificate of that matter taken at the time 
 of the purchase, since the fourth section of the Act admits of that 
 excuse, and the second section admits of no other ?
 
 SECT, v.] REGINA V. TINKLER. 373 
 
 But the judge [Foster, J.] was of opinion that, though the clause 
 of the statute which directs the sale of these things hath not pointed 
 out any other wa}' for indemnifying the buyer tlian the certificate ; and 
 thougli the second section seems to exclude any otlier excuse for those 
 in whose custody they shall be found ; yet still the circumstances at- 
 tending every case which may seem to fall witliin the Act ouglit to 
 be taken into consideration ; otherwise a law calculated for wise imr- 
 poses ma}', by too rigid a construction of it, be made a handmaiil to 
 oppression. There is no room to say that this canvas came into the 
 possession of the defendant by any act of her own. It was brought 
 into famil}' use in the lifetime of her husband, and it continued so to 
 the time of his death ; and bj- act of law it came to her. Things of 
 this kind have been frequently exposed to public sale ; and though the 
 Act points out an expedient for the indemnity of the buyers, yet prob- 
 ably few buyers, especially where small quantities have been purchased 
 at one sale, have used the caution suggested to them b}' the Act. And 
 if the defendant's husband really bought this linen at a public sale, but 
 neglected to take a certificate, or did not preserve it, it would be con- 
 trary to natural justice, after this length of time, to punish her for his 
 neglect. He therefore thought the evidence given by the defendant 
 proper to be left to the jury, and directed them that if, upon the whole 
 of the evidence, they were of opinion that the defendant came to the 
 possession of the linen without any fraud or misbehavior on her part, 
 they should acquit her ; and she was acquitted. 
 
 REGINA V. TINKLER. 
 Norfolk Circuit. 1859. 
 
 [Reported 1 Foster ijj- Finlason, 513.] 
 
 The prisoner was indicted, under the 9 Geo. IV., c. 31, s. 20, for 
 unlawfully taking one Sarah Thompson, she being then unmarried, and 
 under the age of sixteen years, out of the possession and against the 
 will of Jane Barnes, her lawful guardian. 
 
 It appeared that the prisoner, who was a widower, had married the 
 elder sister of Sarah Thompson, and up to the time of his wife's death, 
 Sarah Thompson, who was an orphan, had lived in the prisoner's 
 house. On that occasion, Mary Johnson, anotlier married sister of 
 Sarah Thompson, caused her to be placed under the care of Jane 
 Barnes. 
 
 No improper motive was alleged against the prisoner, he having 
 asserted, as his reason for taking the child away, that he had promised 
 her father, on his deathbed, to take care of her. 
 
 The Chief Justice [Cockburn] told the jurj'' that it was clear the 
 prisoner had no right to act as he had done in taking the child out of
 
 374 REGINA V. TOWSE. [CIIAP. V. 
 
 Mrs. Barnes's custody. But inasmuch as no improper motive was 
 suggested on the part of the prosecution, it might very well be con- 
 cluded that the prisoner wished the child to live with him, and that 
 he meant to discharge the promise which he alleged he had made to 
 her father, and that he did not suppose he was breaking the law when 
 he took the child away. This being a criminal prosecution, if the jury 
 should take this view of the case, and be of opinion that the prisoner 
 honestly believed that he had a right to the custody of the child, then 
 although the prisoner was not legally justified, he would be entitled to 
 an acquittal upon this charge.^ 
 
 The jury found the prisoner not guilty. 
 
 REGINA V. TOWSE. 
 
 Exeter Assizes. 1879. 
 [Reported 14 Cox C. C. 327.] 
 
 Prisoner was indicted for having set fire to some furze growing on 
 a common at Culmstock.^ 
 
 It appeared from the evidence that persons living near the common 
 had occasionally burnt the furze to improve the growth of the grass, 
 although the existence of any right to do this was denied. 
 
 But the prisoner in this case denied having set the furze on fire 
 at all. 
 
 JBulIen., for the defence, contended that even if it were proved that 
 the prisoner set the furze on fire she could not be found guilty if it 
 appeared that she hona fide believed she had a right to do so, whether 
 the right were a good one or not. 
 
 Lopes, J. If she set fire to the furze thinking she had a right to do 
 so that would not be a criminal offence. I shall leave two questions to 
 the jury. I. Did she set fire to the furze? 2. If yes, did she do it 
 wilfully and maliciously ? 
 
 1 " Whosoever shall unlawfully and maliciousl}' set fire to any . . . furze or fern, 
 wheresoever the same may be growing, shall be guilty of felony." 24 & 25 Vict. c. 97, 
 s. 16. —Ea.
 
 SECT. \'.] COMMONWEALTH V. THOMPSON. 375 
 
 COMMONWEALTH v. THOMPSON. 
 
 Supreme Judicial Coukt of Massachusetts. 1863. 
 
 [Reported 6 Allen, 591.] 
 
 Indictment for adultery with Etneliue B. Carlton. 
 At the trial in the Superior Court, before Rockwell, J., it appeared 
 that in November, 1861, the defendant was married to said Emeline, 
 and lived with her as his wife thereafter. The defendant contended 
 on the evidence which was offered that he then believed her to be a 
 widow, and that she had no knowledge that her former husband was 
 alive, and had not seen or heard from him for eleven years ; and he 
 asked the court to instruct the jury that if he married and cohabited 
 with her without any knowledge that she had a husband living, and 
 believing that she had no husband living, such cohabitation would not 
 amount to the crime of adulterj-, even if her husband was not dead. 
 The judge refused to give these instructions, but instructed the jury 
 that if they were satisfied that the intercourse took place as alleged, 
 it would be adultery if the former husl)and wa^ still living, although 
 the defendant had no knowledge or belief that he was alive ; and he 
 excluded the evidence which was offered. 
 
 The jury returned a verdict of guilty, and the defendant alleged 
 exceptions. 
 
 6r. ^. Verry, for the defendant. 
 Foster, Attorney-General, for the Commonwealth. 
 Dewey, J. The court properly refused to rule that upon the mere 
 showing that the defendant married the said Emeline B. Carlton and 
 cohabited with her without any knowledge that she had a husband 
 living, and believing that she had no husband living, the defendant 
 could not be convicted of adultery, although she then had a legal hus- 
 band in full life. 
 
 The objection urged in behalf of the defendant, that to make any 
 act criminal there must be a criminal intent, will not screen the guilty 
 party under such circumstances. Commonwealth v. Mash, 7 Met. 
 474. 
 
 This would dispose of the case but for the facts which were offered 
 to be proved, that the husband had been absent from his wife for 
 eleven years preceding the time when the acts complained of took 
 place, and that his wife had not seen or heard of him during that 
 period, and had no knowledge that he was alive. 
 
 It is a well settled rule of law that, upon a person's leaving his home 
 for temporary purposes of business or pleasure, and not being heard 
 of or known to be living for the term of seven years, the presumption 
 arises of his death. 2 Stark. Ev. (4th Amer. ed.) 458. Loring v. 
 Steineman, 1 Met. 211. Although this is merely a presumption au- 
 thorized by law, and may be controlled by evidence showing that the
 
 376 STATE V. GOODENOW. [CHAP. V. 
 
 fact was otherwise, yet in reference to acts of other parties, and in 
 deciding whether they are criminal, this presumption is allowed to 
 have its proper effect. Thus in reference to the criminal intercourse 
 alleged to have taken place between Mrs. Carlton and the defendant, 
 supposing she had been indicted for pol^-gamx', and the fact had ap- 
 peared of the absence of her husband for eleven years, she not knowing 
 him to be living during that time, this would constitute a legal defence 
 to the criminal charge. Gen. Sts. c. 165, § 5. We think this statute, 
 though not in terms applicable to an indictment for adultery, recog- 
 nizes a rule that should operate as a legal defence to the charge of 
 adultery, when the alleged criminal acts are the marrying and cohabit- 
 ing with a woman whose husband had been absent more than seven 
 years, and not known to the defendant to have been alive during that 
 period. 
 
 The proper instructions to the jur}' in a case like the present would 
 be, that if it appeared that the husband had absented himself from 
 his wife, and remained absent for the space of seven years together, 
 a man who should, under the existence of such circumstances, and 
 not knowing her husband to have been living within that time, in good 
 faith and in the belief that she had no husband, intermarry with her 
 and cohabit with her as his wife, would not by such acts be criminall}' 
 punishable for adultery, although it should subsequent!}' appear that 
 the former husband was then living. 
 
 Exceptions sustained} 
 
 o 
 
 STATE V. GOODENOW. 
 
 Supreme Judicial Court of Maine. 1876. 
 
 [Reported 65 Maine, 30.] 
 
 Peters, J.'* The respondents are joint!}' indicted for adulter}^ they 
 having cohabited as husband and wife while the female respondent 
 was lawfully married to another man who is still alive. The only 
 question found in the exceptions is, whether the evidence offered and 
 rejected should have been received. This was, that the lawful hus- 
 band had married again, and that the justice of the peace who united 
 the respondents in matrimony advised them that, on that account, the} 
 had the right to intermarrv, and that they believed the statement to 
 be true, and acted upon it in good faith. It is urged for the respond- 
 ents that those facts would show that the}" acted without any guilty 
 intent. It is undoubtedly true that the crime of adultery cannot be 
 
 1 On a new trial it appeared that Emeline B. Carlton had herself left her husband, 
 of whom she had not tliereafter heard for eleven years. As the exception in the stat- 
 ute (Gen. Stats, c. 16.5, § 5) did not cover the case, defendant was found guilty, and 
 the conviction upheld. 11 All. 23. — Ed. 
 
 2 The opinion only is given ; it sufficiently states the case.
 
 SECT, v.] STATE V. GOODENOW. 377 
 
 committed without a criminal intent. But tiie intent may be inferred 
 from tlie criminality of the act itself Lord Mansfield states the rule 
 thus: "Where an act, in itself indifferent, becomes criminal if done 
 witli a particular intent, there the intent must be proved and found ; 
 but where the act is in itself unlawful, tlie proof of justification or 
 excuse lies on the defendant ; and in failure thereof, the law implies 
 a criminal intent." 
 
 Here the accused have intentionally committed an act which is in 
 itself unlawful. In excuse for it, they plead their ignorance of the 
 law. This cannot excuse them. Ignorance of the law excuses no 
 one. Besure, this maxim, like all others, has its exceptions. None 
 of the exceptions, however, can ai)ply here. The law, which the re- 
 spondents are conclusively presumed to have known, as applicable to 
 their case, is well settled and free of all obscurity or doubt. It would 
 perhaps be more exact to say, they are bound as if they knew the 
 law. Late cases furnish some interesting discussions upon this sub- 
 ject. Cutter V. State, 36 New Jer. 125 ; United States v. Anthony, 
 11 Blatch. 200; United States v. Taintor, id. 374; 2 Green's 
 Crim. Law R. 218, 244, 275, 589; Black v. Ward, 27 Mich. 191; 
 s. c. 15 Amer. Law Reports, 162 and note, 171. The rule, though 
 productive of hardship in particular cases, is a sound and salutary 
 maxim of the law. Then the respondents say that they were misled 
 by the advice of the magistrate, of whom they took counsel concerning 
 their marital relations. But the gross ignorance of the magistrate 
 cannot excuse them. They were guilty of negligence and fault, to 
 take his advice. They were bound to know or ascertain the law and 
 the facts for themselves at their peril. A sufficient criminal intent is 
 conclusively presumed against them, in their failure to do so. The 
 facts offered in proof may mitigate, but cannot excuse, the offence 
 charged against them. There is no doubt that a person might commit 
 an unlawful act, through mistake or accident, and with innocent in- 
 tention, where there was no negligence or fault or want of care of any 
 kind on his part, and be legally excused for it. But this case was far 
 from one of that kind. Here it was a criminal heedlessness on the 
 part of both of the respondents to do what was done by them. The 
 Massachusetts cases cited by the counsel for the state, go much further 
 than the facts of this case require us to go in the same direction, to 
 inculpate the respondents. Besides those cases, see also Common- 
 wealth V. Elwell, 2 Met. 190; Commonwealth v. Farren, 9 Allen, 
 489; Commonwealth v. Goodman, 97 Mass., 117; Commonwealth v. 
 Emmons, 98 Mass. 6. We see no relief for the respondents except, 
 if the facts warrant it, through executive interposition. 
 
 Exceptions overruled.^ 
 
 1 See U. S. V. Anthony, 11 Blatch. 200; U. S. v. Taintor, 11 Blatch. 374; U. S. v. 
 Adams, 2 Dak. 305. — Ed.
 
 878 THE BRIG WILLIAM GRAY. [CHAP. 
 
 SECTION VI. 
 
 Impossibility. 
 
 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 awa}- 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 rely 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 BRIG WILLIAM GRAY. 
 
 Circuit Court of the United States. 1810. 
 [Reported I Paine, 16.] 
 
 Livingston, J. In defence of the libel filed against this vessel for 
 proceeding from the United States to the island of Antigua, contrary 
 to the act laying an embargo, and the first act in addition thereto, the 
 claimant alleges that while on a voyage from Alexandria to Boston, 
 she was driven b}' storms, tempests, stress of weather, and necessit}', 
 out of her course, and forced to proceed to that island for her own 
 preservation and that of the cargo, and of the lives of the persons on 
 board. 
 
 Both the fact and the legal consequences deduced from it by the 
 appellant are denied b}' the counsel for the United States. 
 
 In looking at the testimony, it cannot be denied that there is every 
 reason to believe that the real destination of the William Gray was 
 Boston. Two witnesses swear to this fact positively', and she had actu- 
 ally arrived at Martha's Vineyard on that voyage. Wh}' it was not 
 completed is very minutely accounted for. An attempt was made to 
 
 1 The opinion only is given ; it sufficiently states the case.
 
 SECT. VI.] THE BKIG WILLIAM GRAY. 379 
 
 reach Boston, but the inclemency of the season, the frozen and muti- 
 lated condition of several of the luinds, and the wrecked state of the 
 brig, are assigned as reasons for not being able to effect this purpose. 
 In this state of things it appears to have been unanimously thought 
 necessary for the preservation of life, and on the advice of tlie pilot, to 
 bear away for the West Indies, it being deemed impossible to return 
 to any port on the continent of America. What the pilot advised to be 
 done is a matter of fact, and may be proved as such by any witness. 
 Such advice or conduct on his part cannot be classed, as has been done, 
 with hearsay testimon}-. To this body of evidence the Court is desired 
 to oppose its own opinion as to the practicability of arriving at some 
 one or other port within the United States. It is certain that a story 
 may be so very improbable that although attested to by more than one 
 credible witness, no one would be bound to believe it. But this is not 
 of that description, although it docs appear to the Court somewhat 
 extraordinary tliat a vessel so near the continent, and in so liigh a lati- 
 tude, should not be able to make some part of it; yet, for aught it can 
 know to the contrary, vessels quite as near, if not nearer, may have 
 been blown off in the winter season, especially if in a shattered order, 
 to the West Indies. It would, therefore, be unpardonable in either a 
 jury or a Court, mereh' because a fact appears somewhat improbable, 
 to disregard the evidence establishing it, and to decide in conformity 
 with its own opinion, unassisted by that of professional men, in the face 
 of all the proofs in the cause. 
 
 In the judgment of this Court, then, the alleged necessity is suffi- 
 ciently made out. Whether it takes the case out of the statute is next 
 to be considered. Were this res integrd, the very able argument on 
 behalf of the United States would be entitled to the most respectful 
 consideration. It is perhaps to be lamented that judges ever permitted 
 themselves to make any exceptions to an act which the legislature 
 itself had not thought proper to incorporate within the body of it. The 
 latitude which has been assumed in this way has very much added to 
 the uncertainty of the written law of the land, and produced much liti- 
 gation, which a firm adherence to its letter would have prevented. But 
 it is too late for speculations of this kind. Their only use can be to 
 make Courts careful, and they cannot be too much so, never to depart, 
 under the idea of preventing a particular hardship, from the plain and 
 obvious meaning of the legislature. This restriction, which every judge 
 should impose on himself, is not transcended when, in the interpreta- 
 tion of penal statutes, any principle is applied whi(;h is found in every 
 code of laws, divine or human, and has from time immemorial been 
 ingrafted into the common law of the country, from which our jurispru- 
 dence is borrowed. Where such rules or principles exist and have 
 invariably- and on all occasions governed Courts in tlie administration of 
 criminal justice, the}- become as much a part of the law, and are as 
 obligatory on a Court as the statute which it may be called on to ex- 
 pound. Of this kind is the one of which the appellants now claim the
 
 380 COMMONWEALTH V. BROOKS. [CHAP. V. 
 
 benefit; that the concurrence of the will in what is done, where it has 
 a choice, is the only thing that renders a human action culpable, or, in 
 other words, that to make a complete offence there must be both a will 
 and an act. This axiom, as it ma}' be termed, is applied as well to 
 offences created b}' statute as to those which are such at common law. 
 The variety of cases in which this absence of will excuses those who 
 would otherwise be offenders have been mentioned in the course of the 
 argument, and among them we find that on which this defence pro- 
 ceeds, namely, an act which proceeds from compulsion and inevitable 
 necessity. Whether the legislature might not by apt words punish an 
 act taking place under such circumstances is foreign from the present 
 inquiry ; but where this is not done in terms, they are supposed to 
 know that, by the rules of the common law, it is always considered as 
 excepted, and therefore do not make the exception themselves. The 
 cases which have been produced b}' the appellant are as strong and 
 conclusive as perhaps were ever submitted to a Court in support of any 
 proposition of law. If the necessit}' which leaves no alternative but 
 the violation of law to preserve life be allowed as an excuse for com- 
 mitting what would otherwise be high treason, parricide, murder, or 
 any other of the higher crimes, wh}' should it not render venial an 
 offence which is only malum prohibitum^ and the commission of which 
 is attended with no personal injury to another. The Court, therefore, 
 cannot but yield to the weight of so many authorities, especially, too, 
 when every decision accords with reason, common sense, and the feel- 
 ings of mankind, which are universal and indelible. 
 
 But is it so very clear that the law itself does not make the excep- 
 tion ? The Court is inclined to think that, on a fair comparison of the 
 different acts with each other, this will be found to be done. The leg- 
 islature, by some of the provisions of the enforcing law, as it is called, 
 certainly appear to have been of the same opinion. 
 
 The Court, therefore, thinks that the necessity which is proved to 
 have existed excused the part}' from all guilt, and of course from the 
 forfeiture which is sought ; and that none having accrued, it is not 
 among those cases which are referred for mitigation to the Secretary of 
 the Treasur}^ 
 
 The sentence of the District Court must accordingly be reversed. 
 
 COMMONWEALTH v. BROOKS. 
 
 Supreme Judicial Court of Massachusetts. 1868. 
 
 [Reported 99 Massachusetts, 434.] 
 
 Complaint for the violation of s. 34 of an ordinance of the city of 
 Boston relating to carriages, which section is printed in the margin. 
 
 1 " No owner, driver, or other person having the care or ordering of any chaise, 
 carryall, hackney carriage, truck, cart, waggon, handcart, sleigh, sled, handsled, or any
 
 SECT. VI.] COMMONWEALTH V. BROOKS. 381 
 
 (Laws and Ordinances of Boston, ed. 1863, p. lOG) in suffering the 
 defendant's wagon to stop in South Market Street in Boston more 
 than twenty niiuutes.^ 
 
 Gkay, J. It is very clear tliat the defendant was not proved to have 
 violated the city ordinance on which he was prosecuted. No person 
 transgresses the ordinance, who does not voluntarily suffer his vehicle 
 to stop in the street for more than twenty minutes. The defendant, 
 indeed, drove into South Market Street more than twenty minutes 
 before four o'clock, and intended to remain in that street until four 
 o'clock. But he had the right to travel in the street, if he did not volun- 
 tarily suft'er his vehicle to stop in it for the prohibited period. If he 
 had arrived on his stand more than twenty mmutes before four o'clock 
 and voluntarily remained there with his wagon until that hour, or if he 
 had voluntarily stopped his wagon for more than twenty minutes at 
 any other place in the street, it would have been a violation of the 
 ordinance. So, perhaps, if he had stopped for more than twenty 
 minutes in all in two places near each other, in the execution of one 
 purpose. But it is unnecessary in this case to consider under what 
 circumstances repeated intermissions of travel, or time spent in driving 
 about the street without intention of moving onward towards a par- 
 ticular destination, might be treated as goiug to make up one stopping, 
 within the meaning of the ordinance ; for it appears that the defend- 
 ant, while driving his wagon through the street towards his stand, was 
 delayed by the crowding of other vehicles which he could not control 
 for five or six minutes, and then drove on and occupied his stand. He 
 did not voluntarily stop at all before arriving at his stand ; he did not 
 stop on his stand but fifteen minutes before four o'clock ; and after 
 four o'clock, being a marketman, engaged in bringing vegetables into 
 the city and selling them from his wagon at a stand occupied by him 
 within the established limits of the market, though in a public street, 
 he is admitted to have had a right, by virtue of the exception in the 
 ordinance, and of the St. of 1859, c. 211, to be and remain upon his 
 stand with his wagon. Neiv trial ordered. 
 
 ^o^ 
 
 other vehicle whatsoever, new or old, finished or unfinished, with or without a horse 
 or horses, or other animal or animals harnessed thereto, shall suffer the same to stop 
 in anv street, square, lane, or alley of this city more than five minutes, without some 
 proper person to take care of the same, or more than twenty minutes in any case ; and 
 any person so offending shall be liable to a fine of not less than tliree, nor more than 
 twenty dollars for each offence. But this section shall not apply to the carriages of 
 physicians while visiting the sick, or to the vehicles of market and provision men, who 
 may stand with the same, without the limits of Faneuil Hall Market, until eleven 
 o'clock in the forenoon, at such places in the city as the board of aldermen may desig- 
 nate, for the purpose of vending provisions." 
 1 The evidence is omitted.
 
 382 REGINA V. kp:ed. [chap. 
 
 SECTION VIL 
 
 Custom. 
 
 ANONYMOUS. 
 
 Common Pleas. 
 
 [Reported 2 Leon. 12.] 
 
 Manwood, J., said: When I was servant to Sir James Hales, 
 one of the Justices of the Common Pleas, one of his servants was 
 robbed at Gads Hill, within tlie Hundred of Gravesend in Kent, and he 
 sued the men of the Hundred upon this statute,^ and it seemed hard to 
 the inhabitants there that the}- should answer for the robberies done at 
 Gads Hill, because robberies are there so frequent that if the}' 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, etc., felons had used to 
 rob at Gads Hill, and so prescribed, and afterwards by award they 
 were charged. 
 
 REGINA V. REED. 
 
 Sussex Assizes. 1871. 
 
 [Reported 12 Cox C. C. 1.] 
 
 The indictment stated that the defendants did unlawfully and inde- 
 cently expose their bodies and persons naked and uncovei-ed in pres- 
 ence of divers of her Majest3''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, unlawfully and indecentl}' did expose their bodies and 
 persons naked and uncovered in the presence of divei's subjects then 
 and there being, and within sight and view of divers others passing and 
 repassing in the highwa}', to the common nuisance of the subjects of 
 the Queen. 
 
 The defendants pleaded not guilty. 
 
 1 Statute of Winchester, 13 Edw. 1.
 
 SECT. VII.] REGINA V. REED. 383 
 
 Hawkins, Q. C, and Grantham, for the prosecution. 
 Willoughby and A. L. iSinith, for the defendants. 
 
 Hawkins, in opening the case, cited Rex v. Crowden, 2 Camp. 
 N. P. C. 89, where a defendant was convicted of indecency 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 i)rineiple. 
 
 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 footway 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- 
 dressino-, and so the bathers dressed and undressed on the land side of 
 the patli. 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 
 they 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, especially in that season of the year 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 ai)pear 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 lialf a 
 century bathing had taken place there without any complaint, and that 
 there had not been on the part of any of the defendants any 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 where 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
 
 384 BANKUS V. STATE. [CHAP. V. 
 
 passing at all, it would be a material element in the ease. 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 
 the bathing ought not to go on. Upon these facts it was quite impos- 
 sible that the defendants could resist a conviction upon this indictment. 
 There vv'as, it appeared, a public footway frequented in fine weather by 
 the inliabitants of Chichester, and which must be taken to be an ancient 
 and accustomed footway. It was impossible to set up a customary 
 right to bathe close to the path in such a way as to violate public 
 decency, 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 the habit of bathing, and were constantly seen in a state of 
 nudity. It was clear, therefore, that the usage so to bathe, however 
 lono- it mioht liave existed, could not be upheld, and that those 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 
 v^ressed, be a verdict of guilty upon this indictment, unless the facts as 
 thus sliown in evidence could be altered. 
 
 It was not suggested for the defence that the facts could be altered. 
 
 Haickins, for the prosecution, stated that it was not desired to press 
 the prosecution, if protection for the future could be secured, and there- 
 ripon it was agreed between the parties that bathing henceforth should 
 take place from a shed to be erected for the purpose, and on this 
 condition the jury were discharged.^ 
 
 BANKUS V. STATE. 
 
 Supreme Court of Indiana. 1853. 
 
 [Reported 4 Ind. 1 U.] 
 
 Perkins, J. Indictment for a riot. Jury trial, conviction, motion 
 for a new trial overruled, and judgment against the defendants. 
 
 The bill of exceptions in the case states the substance of the evidence 
 given as follows: "Jesse Bankus, Lewis Simpson, William Woods, 
 and William McShirely, four of the defendants, were on trial, and three 
 witnesses were examined on the part of the state (one of whom was 
 engaged in the alleged riot with the defendants), whose testimony 
 tended to prove that on a certain evening, within a year before the 
 finding of said indictment, at the county of Henry, the above-named 
 defendants were at a certain place in said county, called Chicago, 
 (there being no evidence to prove that they had assembled at said place 
 by previous concert or arrangement, for any purpose whatever, except 
 the facts that they were all present without any known business, and 
 
 1 Ace. Com. V. Perry, 139 Mass. 198
 
 SECT. VII.] BANKUS V. STATE. 385 
 
 that they lived in different parts of the neighborhood) ; that there had 
 been an infair at the house of one Jacob Wise, in said Chicago, whose 
 house was situated on or near the public highway ; that the defendants, 
 with one exception, were young men, one of whom went to a neighbor- 
 ing house and borrowed a horn, with which they marched back and 
 forth along the highwa\', sometimes blowing said horn and sino-ino- 
 songs, but not vulgar ones, before the house of said Wise, and north 
 and south of it, and hallooed so that they could be heard near a mile 
 distant, as certain persons, not witnesses, had informed said Wise ; and 
 that they continued on the ground, thus acting, till one or two o'clock 
 in the morning. But said witnesses all concurred in stating that the 
 defendants were all in good humor, and used no violence further than 
 above set forth ; that they had no guns or weapons of any kind, made 
 no threats or attempts at force of any kind ; that the witnesses were 
 not in the least alarmed, and feared no danger of any kind, and were in 
 no way disturbed, except that Jacob Wise stated that he went to bed 
 about nine o'clock, and was awakened occasional!}' by the hallooing in 
 the Yoad, and that a pedler, M'ho put up at the house of said Wise that 
 night (it being a public house), inquired if there were a lock and key 
 to the stable in which his horses were kept; and that said Wise, at the 
 instance of said pedler, locked the stable ; " which was all the testimony 
 given in the cause. 
 
 The question is, whether, upon the foregoing evidence; the jury were 
 authorized to find the defendants guilty of a riot. 
 
 The R. S. of 1S43 enact, p. 973, that " if three or more persons shall 
 actually do an unlawful act of violence, either with or without a common 
 cause or quarrel, or even do a lawful act in a violent and tumultuous 
 manner, they shall be deemed guilty of a riot." The R. S. of 1852, 
 vol. 2, p. 425, thus define a riot: " If three or more persons shall do 
 an act in a violent and tumultuous manner, they shall be deemed guilty 
 of a riot." 
 
 A great noise in the night-time, made by the human voice or by 
 blowing a trumpet, is a nuisance to those near whom it is made. The 
 making of such a noise, therefore, in the vicinity of inhabitants, is an 
 unlawful act; and, if made by three or more persons in concert, is, b}'- 
 the statute of 1843, a riot. All these facts exist in the present case. 
 Here was a great noise, heard a mile, in the night-time, made with 
 human voices and a trumpet, in the vicinity of inhabitants. The re- 
 quirements of the statute for the making out of the offence are filled. 
 The noise was also made tumultuously. The act itself involves tumul- 
 tuousness of manner in its performance. But it is said, here was no 
 alarm or fear. The statute defining the offence says nothing about 
 alarm or fear. In this case, however, it was only the witnesses who 
 were not alarmed. Others within the distance of the mile in which the 
 noise was heard, and who were not present to observe the actual con- 
 dition of things, may have been, and doubtless were, alarmed ; and the 
 pedler was afraid his horses would be stolen.
 
 386 VICK V. STATE. [chap. V. 
 
 It is said the rioters were in good humor. Very hkel\% as they were 
 permitted to carr}' on their operations without interruption. But with 
 what motive were the}' performing these good-humored acts? Not, 
 certainly, for the gratification of Wise and his family. The}- were giv- 
 ing them what is called a charivari, which Webster defines and explains 
 as follows : " A mock serenade of discordant music, kettles, tin-pans, 
 etc., designed to annoy and insult. It was at first directed against 
 widows who married a second time, at an advanced age, but is now 
 extended to other occasions of nocturnal annoyance and insult." 
 
 Again, it is urged that these defendants were but acting in accord- 
 ance with the custom of the countrv. But a custom of violating the 
 criminal laws will not exempt such violation from punishment. In the 
 case of The State of Pennsylvania v. Lewis, et al.. Add. R. 279, it 
 appeared that on the 5th of November, 1795, there was a wedding at 
 the house of one John Weston. The defendants in said case were 
 there without invitation, were civilly treated, and, in the evening, when 
 dancing commenced, began a disturbance in which, during the evening, 
 Weston was so seriously injured that, on the tliird day after, he died. 
 On the trial of the indictment against said defendants, Campbell, Pen- 
 tecost, and Brackenridge, in their argument, said, "These men did 
 nothing more than an usual frolic, according to the custom and 
 manners of this country. There was no intention of hurt, no de- 
 sign of mischief, in which the malice, which is a necessary ingredient of 
 murder, consists." But the argument did not prevail; and the Court 
 said, " If appearance of sport will exclude the presumption of malice, 
 sport will always be affected to cover a crime." The defendants wero 
 convicted of murder in the second degree. 
 
 The case before us we regard as a plain, but not an aggravated, 
 one of riot, and the judgment below must be affirmed. The defendantfi 
 were fined but three dollars each. The judgment is affirmed with costs 
 
 VICK V. STATE. 
 
 Court of Criminal Appeals of Texas. 1902. 
 
 [Reported 69 Southwestern Rep. 156] 
 
 Brooks, J.- Appellant was prosecuted under an information chargin* 
 the theft of a load of wood. Upon conviction, his punishment was 
 assessed at a fine of $5 and one hour's confinement in the count}' 
 jail. . . . 
 
 Appellant also complains that the court erred in not charging the 
 jury as to the custom of people to go into the pastures and take wood 
 from parties owning the pastures. There is no law authorizing thieving 
 by custom. This testimony was not admissible. . . . 
 
 The judgment is affirmed. 
 
 ^ Only so much of the case as discusses the defence of custom is given. — Ed.
 
 SECT. VII.] HENDRY V. STATE. 387 
 
 % 
 
 HENDRY V. STATP:. 
 
 Supreme Couut of Florida. 1897. 
 
 \Reporied 39 Ma. 235.] 
 
 Mabrt, J. The plaintiff in error was indicted, tried and convicted 
 of the larceny of cows, the property of one Adam Mercer, and sentenced 
 to the penitentiary for one year. Two assignments of error are insisted 
 on for a reversal of the judgment ; the first being the rejection of cer- 
 tain testimony sought to be elicited by plaintiff in error from the wit- 
 ness, Ziba King, and the second, relating to the sufficiency of the 
 evidence to sustain the verdict. 
 
 Ziba King, testifying for the prosecution, stated that he ran a 
 butcher shop at Punta Gorda, and that some time in May, 1894, 
 defendant delivered to him at his butcher shop in DeSoto county 
 about nineteen head of cattle, and among them were six or seven in 
 the mark and brand of Adam Mercer ; that witness knew the mark and 
 brand of Mercer, and defendant stated at the time of the delivery of the 
 cattle that he was authorized to sell them. Witness bought the cattle 
 from defendant and paid him for seventeen head, most of which were 
 butchered. On cross-examination of this witness, after stating that he 
 had been extensively engaged in the cattle business for twenty-five 
 years, and was familiar with the rules and customs of stock men in De- 
 Soto county, the following question was propounded, viz. : You have 
 stated that you have been extensively engaged in the cattle business in 
 this county for twenty-five years, and that you are familiar with the 
 rules and customs of stock men, please state whether or not it has been 
 the custom among cattle owners of this county, during the time you 
 have been engaged in the cattle business, to drive to market and sell the 
 cattle of their neighbors where they were on friendly terms with each 
 other, without any special authority for so doing, and with the under- 
 standing that they would be paid fm- by the men who drove them such 
 price as they could obtain for them in the market, with or without a 
 reasonable compensation for driving them?" This question was ob- 
 jected to by the State Attorney and excluded by the court, and we 
 are of the opinion that there was no error in the ruling. The 
 question was on cross-examination of the state's first witness, and 
 was not in cross of any testimony brought out on direct examina- 
 tion by the state, but the objection was not based on this ground, 
 and it may be said to have been waived. The charge against the 
 defendant was for the larceny of the animals described in the in- 
 dictment, and this included not only a wrongful taking of the prop- 
 erty of another, but also that it was done animo furandi, or with the 
 intent to steal. There can, of course, be no legal custom to justify one 
 man in stealing the property of another, as such a custom would be 
 bad and contrary to law. Commonwealth v. Doane, 1 Gushing, 5. We
 
 388 HENDRY V. STATE, [CHAP. V. 
 
 do not understand that this legal*' proposition is questioned by counsel 
 for plaintiff in error, but it is insisted that the custom proposed to be 
 shown, if it existed, was proper as bearing upon the intent with which 
 the accused took the propert}*, and that it would tend to show he did 
 not take it with a felonious purpose. It had not been shown that the 
 accused was a cattle owner residing in DeSoto county on friendly 
 terms with the owner of the cattle alleged to have been stolen, or was 
 in an}' way entitled to avail himself of the custom sought to be shown. 
 Subsequent testimony of the accused himself showed that he was not a 
 cattle owner, and was not in a situation to avail himself of such a cus- 
 tom, if it did exist. If it liad been shown, or offered to be shown, 
 that the accused was a cattle owner, residing in DeSoto county, on 
 friendly terms with the owner of the cattle in question, and that, under 
 such a custom offered to be shown, he had driven the cattle to market 
 and had sold them, but with the intention of accounting to the owner 
 for the purchase money, we do not intimate tliat the evidence of such a 
 custom would be improper. It might become pertinent and material 
 in such a case, but the accused in the present case was not shown to be 
 a stock owner, or in any proper way connected with such a custom, if 
 it existed, and there was no error in rejecting the proposed testimonj*. 
 We have entertained some misgivings as to the sufficienc}' of the 
 evidence to sustain the verdict, but after a careful examination have 
 concluded that it is of such a nature, when viewed in an unfavorable 
 light against the accused, as to sustain the conviction. The credi- 
 bilit}' of witnesses, in case of conflict, we leave to the settlement of 
 the jiuy ; nor can we say how much credence must be given to the 
 evidence of the accused where there is conflict or improbability of 
 statement. It is true, as contended by counsel for plaintiff in error, 
 that to constitute larceny, the taking must be with a felonious intent 
 at the time, and whether such intent existed is a question of fact to be 
 determined by the jury from all the facts of the case. The testimony 
 before us shows beyond dispute that the accused gathered the cattle of 
 Adam Mercer and drove them some thirtj- miles to a market and sold 
 them for money which he never accounted to the owner for, or offered 
 to make any account, and under all the facts of the case we are of the 
 opinion that the question of whether the accused took the cattle with 
 felonious purpose of converting them to his own use and profit, was 
 proper for the jur}- to settle, and as they determined it adversely 
 to him, the judgment will be aflirmed.
 
 SECT, I.] KEX V. RICHARDSON. 389 
 
 CHAPTER VI. 
 PARTIES IN CRIME. 
 
 SECTION I. 
 
 WIio are Parties. 
 
 ANONYMOUS. 
 Old Bailey. 1723. 
 [Reported 8 Mod. 165.] 
 
 At the sessions in the Old Bailey held there on the ninth day of 
 April, in the ninth year of George the First, where some of the judges 
 of the Common Pleas were present, this case happened : 
 
 Two men were beating another man in the street in the night-time. 
 A stranger passing by at the same time said, " I am ashamed to see two 
 men beat one." Thereupon one of those who was beating the other ran 
 to the stranger in a furious manner, and with a knife which he held in his 
 right hand, gave him a deep wound, of which he died soon after. And 
 now both the others were indicted as principals for the said murder. 
 
 But the Judges were of opinion that, because it did not appear that 
 one of them intended any injury to the person killed, he could not be 
 guilty of his death, either as principal or accessory. It is true, they 
 were both doing an unlawful act, but the death of the party did not 
 ensue upon that act. 
 
 REX V. RICHARDSON. 
 Old Bailey. 1785. 
 
 [Reported Leach (4th ed.) 387.] 
 
 At the Old Bailey, in June Session 1785, Daniel Richardson and 
 Samuel Greenow were indicted before Mr. Justice Bullek 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 money he had in his pocket ; that upon his replying 
 that he had only two-pence half-penny one of the prisoners immedi- 
 ately 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 him of the two-pence half-penny, 
 which was all the money 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.
 
 390 EEGINA V. SWINDALL. [CHAP. VI. 
 
 The Court. The point of law goes to the acquittal of both the 
 prisoners; for if two men assault another with intent to rob him, and 
 one of them, before any demand of mone}', 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 changed his evil intention before the 
 act which completes the offence was committed. That prisoner there- 
 fore, whichever of the two it was who thus desisted, cannot be guilty 
 of the present charge ; and the prosecutor cannot ascertain who it was 
 that took the property. One of them is certainly guilty, but which of 
 them personally does not appear. It is like the Ipswich Case, where 
 five men were indicted for murder; and it appeared, on a special ver- 
 dict, that it was murder in one, but not in the other four ; but it did 
 not appear which of the five had given the blow which caused the 
 death, and the court thereupon said that, as the man could not be 
 clearly and positively ascertained, all of them must be discharged. 
 
 The two prisoners were accordingly acquitted.^ 
 
 REGINA V. S WIND ALL. 
 Stafford Assizes. 1846. 
 
 [^Reported 2 Carringtoii <^- Kirwan, 230.] 
 
 Manslaughter. — The prisoners were indicted for the manslaughtei 
 of one James Durose. The second count of the indictment charged 
 the prisoners with inciting each other to drive their carts and horses 
 at a furious and dangerous rate along a public road, and with driving 
 their carts and horses over the deceased at such furious and dangerous 
 rate, and thereby killing him. The third count charged Swindall with 
 driving his cart over the deceased, and Osborne with being present, 
 aiding and assisting. The fourth count charged Osborne with driving 
 his cart over the deceased, and Swindall with being present, aiding 
 and assisting. 
 
 Upon the evidence it appeared that the prisoners were each driving 
 a cart and horse, on the evening of the 12th of August, 1845. The 
 first time the}' were seen that evening was at Draycott toll-gate, two 
 miles and a half from the place where the deceased was run over. 
 Swindall there paid the toll, not only for that night, but also for 
 having passed with Osborne through the same gate a da}' or two 
 before. The}' then appeared to be intoxicated. The next place at 
 which the}' were seen was Tean Bridge, over which they passed at a 
 gallop, the one cart close behind the other. A person there told them 
 to mind their driving ; this was 990 yards from the place where the 
 
 ^ Ace. People v. Moody, 45 Cal. 289. - Ed.
 
 SECT. I.] REGINA V. SWINDALL. 391 
 
 deceased was killed. The next place where the}' were seen was forty- 
 seven yards beyond the place where the deceased was killed. Ti)e 
 carts were then going at a quick trot, one closely following the 
 other. At a turnpike-gate a quarter of a mile from the place where 
 the deceased was killed, Swindall, who appeared all along to have 
 been driving the first cart, told the toll-gate keeper, " We have driven 
 over an old man," and desired him to bring a light and look at the 
 name on the cart ; on which Osborne pushed on his cart, and told 
 Swindall to bold his bother, and they then started off at a quick pace. 
 They were subsecjuently seen at two other places, at one of which 
 Swindall said he had sold his concern to Osborne. It appeared that 
 the carts were loaded with pots from the potteries. The surgeon 
 proved that the deceased had a mark upon his body which would cor- 
 respond with the wheel of a cart, and also several other bruises, and, 
 although he could not say that botli carts had passed over his body, it 
 svas possible that both might have done so. 
 
 Greaves, in opening the case to the jur}', had submitted that it was 
 perfectly immaterial in point of law, whether one or both carts had 
 passed over the deceased. The prisoners were in company, and had 
 concurred in jointly driving furiously along the road ; that that was 
 an unlawful act, and, as both had joined in it, each was responsible 
 for the consequences, though they might arise from the act of the 
 other. It was clear that they were either partners, master and ser- 
 vant, or at all events companions. If they had been in the same cart, 
 one holding the reins, the other the whip, it could not be doubted that 
 they would be both liable for the consequences ; and in effect the case 
 was the same, for each was driving his own horse at a furious pace, 
 and encouraging the other to do the like. 
 
 At the close of the evidence for the prosecution, Allen, Serjt., for 
 the prisoners, submitted that the evidence only proved that one of 
 the prisoners had run over the deceased, and that the other was en- 
 titled to be acquitted. 
 
 Pollock, C B. I think that that is not so. I think that Mr. 
 Greaves is right in his law. If two persons are in this way inciting 
 each other to do an unlawful act, and one of them runs over a man^ 
 whether he be the first or the last he is equally liable : the person who 
 runs over the man would be a principal in the first degree, and the 
 other a principal in the second degree. 
 
 Allen, Serjt. The prosecutor, at all events, is bound to elect upon 
 which count he will proceed. 
 
 Pollock, C. B. That is not so. I very well recollect that in 
 Regina v. Goode there were many modes of death specified, and that 
 It was also alleged that the deceased was killed by certain means to 
 the jurors unknown. When there is no evidence applicable to a par- 
 ticular count, that count must be abandoned ; but if there is evidence 
 to support a count, it must l)e sulmiitted to the jury. In this case the 
 evidence goes to support all the counts.
 
 392 KEGINA V. SWINDALL. [CHAP. VL 
 
 Allen^ Serjt, addressed the jury for the prisoners. 
 
 Pollock, C. B., in summing up. The prisoners are charged with 
 contributing to the death of the deceased by their neghgence and 
 improper conduct, and, if they did so, it matters not whether he was 
 deaf, or drunk, or negligent, or in part contributed to his own death ; 
 for in this consists a great distinction between civil and criminal pro- 
 ceedings. If two coaches run against each other, and the drivers of 
 both are to blame, neither of them has any remedy against the other 
 for damages. So, in order that one ship-owner ma}' recover against 
 another for any damage done, he must be free from blame ; he cannot 
 recover from the other if he has contributed to his own injur}', however 
 slight the contribution may be. But in the case of loss of life the 
 law takes a totally different view, — the converse of that proposition is 
 true ; for there each part}- is responsible for any blame that may 
 ensue, however large the share may be ; and so highly does the law 
 value human life that it admits of no justification wherever life has 
 been lost, and the carelessness or negligence of an}' one person has 
 contributed to the death of another person. Generally, it may be laid 
 down that where one by his negligence has contributed to the death 
 of another he is responsible ; therefore, you are to say, by your ver- 
 dict, whether you are of opinion that the deceased came to his death 
 in consequence of the negligence of one or both of the prisoners. 
 A distinction has been taken between the prisoners : it is said that 
 the one wlio went first is responsible, but that the second is not. 
 If it is necessary that both should have run over the deceased, the 
 case is not without evidence that both did so. But it appears to 
 me that the law, as stated by Mr. Greaves, is perfectly correct. 
 Where two coaches, totally independent of each other, are proceeding in 
 the ordinary way along a road, one after the other, and the driver of the 
 first is guilty of negligence, the driver of the second, who had not the 
 same means of pulling up, may not be responsible. But when two 
 persons are driving together, encouraging each other to drive at a 
 dangerous pace, then, whether the injury is done by the one driving 
 the first or the second carriage, I am of opinion that in point of 
 law the other shares the guilt.-^ 
 
 Verdict, Chuilty. 
 
 Greaves and Kynnersley ., for the prosecution. 
 
 Allen ^ Serjt., and G. H. Whalley. for the prisoners. 
 
 1 See Reg. v. Salmon, 14 Cox C. C. 494. — Ed.
 
 SECT. I.] REGINA V. CONEY. 393 
 
 REGINA V. CONEY. 
 Court for Crown Cases Reserved. 1882. 
 [Reported 8 Q. D. D. 534.] 
 
 Cave, J.^ In this case I am of opinion that the direction to the jury 
 was wrong, and consequently that the conviction ought not to stand. 
 
 No direction to a jury can, in my opinion, be regarded as right or 
 wrong without reference to the evidence before the jury ; for a direc- 
 tion which is sufficient under a certain state of facts may be mislead- 
 ing and wrong under another state of facts. It is important, therefore, 
 first to see what the offence was with which the prisoners were charged 
 and what was the evidence against them. 
 
 The prisoners were charged in one count with a common assault on 
 one Burke, and in another count with a like assault on one Mitchell. 
 
 The evidence was that on the IGth of June last, at the close of Ascot 
 races, Burke and Mitchell had engaged in a fight near the road from 
 Ascot to Maidenhead ; that a ring was formed with posts and ropes ; 
 that a large number of persons were present looking on, some of whom 
 were undoubtedly encouraging the fight ; that the men fought for some 
 time ; and that the three prisoners were seen in the crowd, but were not 
 seen to do anything, and there was no evidence how they got there or 
 how long they stayed there. 
 
 The chairman of quarter sessions directed the jury in the words of 
 Russell on Crimes, vol. i. p. 818 : " There is no doubt that prize-fights 
 are illegal, indeed just as much so as that persons should go out to 
 fight with deadly weapons, and it is not at all material which party 
 strikes the first blow, and all persons who go to a prize-fight to see the 
 combatants strike each other, and who are present when they do so, are, 
 in point of law, guilty of an assault." And the chairman added, in 
 the words of Littledale, J., in Rex v. Murphy, 6 C & P. 103: "If 
 they were not casually passing by, but stayed at the place, they 
 encouraged it by their presence, although they did not say or do 
 anything." 
 
 By this direction I gather that the chairman laid down as matter of law, 
 first, that the actual fighters in a prize-fight are guilty of an assault ; 
 and, secondly, that if any person is shewn to have been present in the 
 crowd looking on at the fight, that is not merely evidence, but, if un- 
 explained, conclusive proof that he was aiding and abetting the assault. 
 That seems to be the natural meaning of the language used, and that, 
 from the finding of the jury, appears to me to be the sense in which 
 they understood it. They found a verdict of guilty against five of the 
 
 1 Concurring opinions were delivered by Stephen, Lopes, North, and Haw- 
 kins, JJ., HuDDLESTON, B., Manisty and Denman, JJ., and dissenting opinions by 
 Mathew, J., Pollock, B., and Lord Coleridge, C. J.
 
 394 EEGINA V. CONEY. [CHAP. VI. 
 
 prisoners who, I presume, were proved to have taken some active part, 
 or to have been there for the purpose of encouraging the fight; and as 
 to the three prisoners in question, the}- found that they were guilty of 
 an assault, and yet that the}' were not aiding and abetting, which is to 
 my mind an inconsistent finding. Indeed, on no other supposition can 
 I understand the verdict, for the evidence against the three prisoners, 
 and especialh' against Gilliam, is quite consistent with their being 
 laborers working near or persons going quietl}' home from the races, 
 who, observing a crowd, went up to see what the matter was, and 
 finding it was a fight, stayed some short time looking on. 
 
 For the defence it was first contended that inasmuch as Burke and 
 Mitchell had agreed to fight there was no assault. I am, however, of 
 opinion that this is not so. With regard to an action for an assault, 
 in the case of Boulter v. Clarke, Buller's Nisi Prius, p. 16, it was held 
 by Parker, C. B., that it was no defence to allege that the plaintiff 
 and defendant fought together bj- consent, the fighting itself being 
 unlawful, and in Matthew v. OUerton, Comb, 218, it was held that if 
 one license another to beat him, such license is no defence, because it 
 is against the peace. So with regard to an indictment for an assault, 
 Patteson, J., in Rex v. Perkins, 4 C. & P. 537, speaking of a prize- 
 fight, says, if all these persons went out to see these men strike each 
 other, and were present when the}- did so, they are all in point of law 
 guilty of an assault. There is also the authorit}' of Coleridge, J., in 
 Reg. V. Lewis, 1 C. & K. 419, who says that whenever two persons go 
 out to strike each other, and do so, each is guilty of an assault. 
 
 Reg. V. Orton, 39 L. T. 293, proves nothing against this view, for the 
 most that can be said of that case is that this point did not arise there. 
 Christopherson v. Bare, 11 Q. B. 473, has also nothing to do with this 
 point, all that was there decided being that a plea of leave and license 
 was not a good defence to an action for an assault, on the ground that 
 if that is a defence, it arises under the general issue, an assault b}' leave 
 and license being a contradiction in terms. 
 
 The true view is, I think, that a blow struck in anger, or which is 
 likeh' or is intended to do corporal hurt, is an assault, but that a blow 
 struck in sport, and not likely nor intended to cause bodily harm, is 
 not an assault, and that, an assault being a breach of the peace and 
 unlawful, the consent of the person struck is immaterial. If this view 
 is correct, a blow struck in a prize-figlit is clearh' an assault ; but pla}'- 
 ing with single-sticks or wrestling do not involve an assault ; nor does 
 boxing with gloves in the ordinar}- way, and not with the ferocit}' 
 and severe punishment to the boxers deposed to in Reg, v. Orton, 39 
 L, T. 293. 
 
 It was next contended that the chairman was wrong in directing the 
 jurj- in the words of Littledale, J., in Rex v. Murphy, 6 C. & P. 103, 
 that if the prisoners were not merely casuall}' passing by, but stayed at 
 the place, they encouraged it Iw their presence, although they did not 
 say or do anything.
 
 SECT. I.] REGINA V. CONEY. 395 
 
 Now it is a general rule in the case of principals in tlie second degree 
 that there must be participation in the act, aii(l that, altliough a man is 
 present whilst a felony is being committed, if he takes no part in it, and 
 does not act in concert witli those wlio commit it, he will not be a 
 principal in the second degree merely because he does not endeavor 
 to prevent tlie felon}-, or apprehend the felon. 
 
 In 1 Hale, Pleas of the Crown, p. 439, it is said that to make an 
 abettor to a murder or a homicide princii)al to a felony- there are regu- 
 larly two things requisite ; 1st, he must be present, 2d, he must be 
 aiding and abetting. If, says Hale, A. and B. be fighting and C, a 
 man of full age, comes by chance, and is a looker-on only, and assists 
 neither, he is not guilt}' of murder or homicide as principal in the 
 second degree. 
 
 So again in Foster's Crown Law, p. 350, it is said that " in order 
 to render a person an accomplice and a principal in felony, he must be 
 aiding and abetting at the fact, or ready to afford assistance if neces- 
 sary, and therefore if A. happeneth to be present at a murder, for 
 instance, and taketh no part in it, nor endeavoreth to prevent it, nor 
 apprehendeth the murderer, nor levyeth hue and cry after him, this 
 strange behavior of his, though highly criminal, will not of itself 
 render him either principal or accessory." "1 would be here," he con- 
 tinues, " understood to speak of that kind of homicide, amounting in 
 construction of law to murder, which is usually committed openly and 
 before witnesses, for in the case of assassinations done in private, to 
 which witnesses who are not partakers in the guilt are very rarely ad- 
 mitted, the circumstances I have mentioned may be made use of against 
 A., as evidence of consent and concurrence on his part ; and in that 
 light should be left to the jur}-, if he be put upon his trial." 
 
 This seems to me to hit the point. Where presence may be entirely 
 accidental, it is not even evidence of aiding and abetting. Where 
 presence \^ prima facie not accidental, it is evidence, but no more than 
 evidence, for the jur\-. 
 
 In accordance with the principles here laid down, Kelly, C. B., in 
 Reg. V. Atkinson, 11 Cox, 330, a case of persons who were indicted foj 
 a serious riot, held, that the mere presence of a person among the riot- 
 ers, even though he possessed the power, and failed to exercise it, ol 
 stopping the riot, did not render him liable on such a charge, and that 
 in order to find any of the defendants guilty, the jury must be satisfied 
 that they had taken part in an assembly for an unlawful purpose, and 
 had helped, or encouraged, or incited the others in the prosecution «^f 
 that purpose. 
 
 In Rex V. Borthwick, 1 Doug. 207, it is laid down that from mere 
 presence the court cannot intend that the prisoner was aiding and 
 abetting. 
 
 In Rex V. Perkins, 4 C. «&; P. 537, Perkins and three others were 
 indicted for a riot, and an assault on Coates.
 
 396 REGINA V. CONEY. [CHAP. VI. 
 
 It appeared that a prize-fight was fought between Perkins and Coates, 
 and that of the other three defendants, one acted as Perkins's second, 
 another collected nione}' for the combatants, while the third walked 
 round the ring and kept the people back. Mr. Justice Patteson said, 
 "It is proved that all the defendants were assisting in this breach 
 of the peace, and there is no doubt that persons who are present on 
 such an occasion, and taking an}' part in the matter, are equally guilty 
 as principals." 
 
 The foreman of the jury said that the}' doubted whether they could 
 find all the defendants guilty of an assault, whereupon Mr. Justice 
 Patteson said, " If all these persons went out to see these men strike 
 each other, and were present when they did, they are all in point of law 
 guilty of an assault. There is no distinction between those who concur 
 in the act and those who fight." Whereupon the jury convicted the 
 men of the riot, but acquitted them of the assault. 
 
 In that case there was ample evidence that the accused were guilty 
 of the assault, and the case did not require Patteson, J., to lay down, 
 nor do I understand him as having laid down, that a mere on-looker is 
 ipso facto guilty of an assault. On the contrary, I understand him to 
 say, that to be guilty, they must not only be present, but must be 
 *' taking part in the matter," as he expresses it in the one passage, 
 or, "concurring in the act," as he expresses it in the other. 
 
 In Reg. V. Young, 8 C. & P. 644, the prisoners were indicted for the 
 murder of Mirfin, who was killed in a duel by one Eliot. In summing 
 up, Vaughan, J., said, ''There is no difficulty as to the law upon this 
 subject. Principals in the first degree are those by whom the death 
 wound is inflicted. Principals in the second degree those who are 
 present at the time it is given, aiding and abetting, comforting and 
 assisting the persons actually engaged in the contest — mere presence 
 alone will not be suflBcient to make a party an aider and abettor, but it 
 is essential that he should by his countenance and conduct in the pro 
 ceeding, being present, aid and assist the principals. If either of the 
 prisoners sustained the principal by his advice or presence, or if you 
 think he went down for the purpose of encouraging and forwarding 
 the unlawful conflict, although he did not do or say anything, yet, if 
 he was present and was assisting and encouraging when the pistol was 
 fired, he will be guilty of the off'ence imputed by the indictment." In 
 that direction I entirely concur, but I believe if a similar direction 
 had been given in the present case, the prisoners would have been 
 acquitted. 
 
 In Reg. V. Cuddy, 1 C. & K. 210, the prisoner was charged with aid- 
 ing and abetting Munro in the murder of Colonel Fawcett, whom Munro 
 had shot in a duel. Williams, J., in directing the jury in the presence 
 of RoLFE, B., said, " When two persons go out to fight a deliberate 
 duel, and death ensues, all persons who are present on that occasion, 
 encouraging or promoting that death, will be guilty of abetting the 
 principal offender."
 
 SECT. I.] KEGINA V. CONEY. 397 
 
 So far the decisions are uniform. Tliere are, however, two which 
 ma}- seem to favor a different view of the law. 
 
 In Rex V. Bellingliam, 2 C. & P. 234, Bellingham and Savage had 
 agreed to fight, and about 1000 persons were assembled to witness it. 
 Mr. Rogers, a police magistrate, being applied to to prevent it, went 
 to the place and told them they should not fight. Skinner said the}' 
 should, and a scuffle ensued between him and Mr. Rogers, wliich ended 
 in a general tumult on the part of the mob, and the rescue of Skinner. 
 Bellingham, Savage, and Skinner were indicted for a riot, and for assault- 
 ing Mr. Rogers, and were convicted. In the course of his summing-up, 
 Bdrrough, J., said, " By law, whatever is done in such an assembly 
 by one, all present are equally liable. These fights are unlawful as- 
 semblies, and every one going to them is guilty of an offence." These 
 obiter dicta apjjear to me to be no justification for the ruling of the 
 chairman in the present case. Bukrough, J., could not have intended 
 to say that all who were present for the purpose of seeing the fight 
 were Ipfto facto liable for the riot and assault upon the magistrate 
 which arose incidentally out of his trying to prevent the fight, and, if 
 he did not mean that, his remarks had no relation to the oflfence then 
 beins: tried, and were merelv in the nature of a caution. Moreover, 
 taking the whole together, Burrough, J., seems to have referred to 
 people going to prize-fights for the purpose of encouraging them, and 
 not to mere on-lookers. 
 
 In Rex r. INIurphy, 6 C. & P. 103, the prisoner was indicted for the 
 murder of one Thompson. It was proved for the prosecution that there 
 was a figlit between Michael Murpliy and the deceased, who died in 
 consequence of the blows he received, and that the prisoner acted as 
 one of tlie seconds. For the defence witnesses were called to shew 
 that though the prisoner was present, he did not act as second, and 
 that he did nothing, and did not even say anything. IMr. Justice 
 LiTTLEDALE told the jury that if the prisoner was at the fight encourag- 
 ing it by his presence, he was guilty of manslaughter, altliougli he took 
 no active part in it, and, on his attention being drawn to tlie evidence 
 for tlie defence, his Lordship said, " I am of opinion that persons who 
 are at a fight, in consequence of wliich death ensues, are all guilty of 
 manslaughter if they encouraged it by their presence — I mean, if they 
 remained present during the fight. I say that if they were not casually 
 passing by, but stayed at the place, they encouraged it by their pres- 
 ence, although they did not say or do anything. If the death occuried 
 from the figlit, all persons encouraging it by their presence are guilty 
 of manslaughter." 
 
 This summing-up unfortunately appears to me capable of being 
 understood in two different ways. It may mean either that mere pres- 
 ence unexplained is evidence of encouragement, and so of guilt, or that 
 mere presence unexplained is conclusive proof of encouragement, and 
 80 of guilt. If the former is the correct t\ieaning, I concur in the law
 
 398 COMMONWEALTH V. HADLEY. [CHAP. VI. 
 
 SO laid down ; if the latter, I am unable to do so. It appears to me 
 that the passage tending to convey the latter view is tliat which was 
 read by the chairman in this case to the jury, and I cannot help think- 
 ing that the chairman believed himself, and meant to direct the jur}', 
 and at any rate I feel satisfied that the jury understood him to mean, 
 that mere presence unexplained was conclusive proof of encouragement 
 and so of guilt ; and it is on this ground I hold that this conviction 
 ought not to stand. 
 
 COMMONWEALTH v. HADLEY. 
 
 Supreme Judicial Court of Massachusetts. 1846. 
 [Reported 11 MetcaJf, 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 
 »ras 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 b}' 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 defendant 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 merely a hired agent, having no interest in the profits, and 
 acting in the presence and under the control of his emplo3er ; and he 
 contended that to support the indictment the government must show 
 tliat the spirituous liquor was to be used in his house or other building, 
 and that if tlie 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 could not be a sufficient defence 
 under the statute, and that if the juiy believed that sales were effected 
 by 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 rigiit. The evi- 
 dence first oflfered on the part of the prosecutor constituted a ^^rimd 
 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, 
 brandy, etc., unless first licensed as an innholder or common victualler. 
 Section 2 provides, that if any person shall sell anj' spirituous liquor, to
 
 SECT. I.] COMMONWEALTH V. HAULEY. 399 
 
 be used in or about his house or other buildings, without being dulj 
 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. 
 449. Any person incurs the penalty of the second section by selling 
 any quantity, in a particular 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 
 the article sold, and also that he had such actual and uncontrolled 
 possession, occupation, or use of the 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. Tlie true question, therefore, is, whether the evidence otfered 
 bv 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 anotlier 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 ami contradictory to 
 maintain that one who sells goods on commission, or as the factor > 
 agent, or salesman of another, does not sell them. The ai-gumeni; 
 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 b}' the authority of the owner. So the 
 naked possession of property, however obtained, is some evidence of 
 title. The holder may make a sale defucto, which can only be defeated 
 by one having a higher title, and which may be ratified by 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 statuce. 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
 
 400 COMMONWEALTH V. HADLEY. [CHAP. VI. 
 
 rather than defeat the obvious^ purposes of the legislature. Now, in 
 i-eading this statute, it is iujpossible 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 by prohibiting the 
 indiscriminate sale of it by disorderl}', 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 propert}^ 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 b}^ 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 by the defendant, by 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 authority, 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, by taking the lease of shops, and employing 
 selling agents and barkeepers, might wholly defeat the salutaiy 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 already stated 
 apply 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 3'et sell, and the law fixes the penalty upon him 
 who does the act. We are to understand in the present case that the 
 sale was actually made by the defendant, otherwise he would not have 
 been convicted by the jury. If the employer should expressly or tacitl}' 
 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 offence, each is 
 severally liable to the penalty, and either may be severall}^ prosecuted 
 for it. But the command of the master will afford no iustification or 
 excuse to the servant making tne sale, becansft it is an unlawfuf com- 
 mand, which he is not bound to obev. and for the doing of which he
 
 SECT. I.J COMMONWEALTH V. IIADLEY. 401 
 
 can have no indemnity from the employer. These points are familiar, 
 and are well stated in the authorities cited in the argument. Thus it is 
 stated in 1 Bl. Com. 429, 430, '' if the servant commit a trespass by the 
 command or encouragement of his master, the master shall be guilty 
 of it, though tlie servant is not thereby excused, for he is only to obey 
 his master in n)atters that are honest and lawful." So in 2 Dane Ab. 
 316, "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 perform only the lawful commands of his superior ; and the 
 inferior person must know, too, when he does an injury ; and if he has 
 to pay for it, he has no remedy against his master, except he deceives 
 him." Perkins v. Smith, Sayer, 40, and 1 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 necessar}' 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 would be liable, is a question 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 are 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 hy the legislature. But we think this is not a 
 sound conclusion from the premises. An innkeeper or retailer has a 
 laioful 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 qui facit per alinm facit per se makes them, in 
 legal contemplation, his own ; and his license will authorize him to 
 emplo}- persons under him, and will be their justification. This right 
 must, of course, have its reasonable limits. We do not mean to inti- 
 mate that one can make a general assignment of his license, because 
 the law contemplates a personal trust, but that he ma}' authorize others 
 to act with and under him in executing the powers granted to him by 
 the license. All, therefore, that an agent or barkeeper has to do. in
 
 402 PEOPLE V. PAKKS. [CHAP. VI. 
 
 order to secure an immunit}' from the penalties of the law, is not 
 to obtain a license himself, but to be well assured that his employer 
 has one.* 
 
 PEOPLE V. PARKS. 
 Supreme Court of Michigan. 1882. 
 
 [Reported 49 Michicjan, 333 ] 
 
 Campbell, J. Respondent was convicted under the statute of 1881, 
 making it a misdemeanor to sell intoxicating liquor to persons who 
 are in the habit of becoming intoxicated. The sale was not made by 
 respondent, but by a clerk. The court below held that the respondent 
 was responsible for the knowledge of his clerk, as well as if he had 
 known the condition of the vendee himself. 
 
 The statute in question prohibits sales by means of clerks as well as 
 in person. Laws 1881, p. 355, s. 12. And a sul)sequent section (13) 
 makes violations of the statute misdemeanors, and punishable as such. 
 But it would be an unjust and inadmissible interpretation to construe 
 such a provision as covering anything but an act in which the will of 
 the respondent concurred in the sale. It is contrary' to every rule of 
 law to hold a person criminally responsible for an act in which he has 
 taken no part. He can only be punished for what is his own wrong. 
 Section 2 clearly implies the necessity of criminal intent as an element 
 of the offence, and la3-s down certain rules of presumption involving 
 personal knowledge of the act done. It makes the act of sale to an 
 improper person presumptive evidence of such intent to violate the 
 law. The case comes within the decision in Faulks v. People, 39 Mich. 
 200. It cannot be permissible to give an}' other construction, which 
 would violate the elementary' rules of criminal responsibilit}'. 
 
 Whatever civil liability may arise from the acts of a clerk, the crim- 
 inal responsibility must fall on the actual wrong-doers, who have done 
 or been connected with the violation of the law by some fault of their 
 own. 
 
 The conviction should be set aside and the case dismissed. 
 
 The other justices concurred.^ 
 
 ^ Part of the opinion, relating to another objection, is omitted. 
 See ace. State v. Bell, 5 Porter, 365; Com. v. Drew, 3 Cush. 279; State v. Bugbee, 
 22 Vt. 32. — Ed. 
 
 « But see People v. Roby, 52 Mich. 577. — Ed.
 
 SECT. I.] REGINA V. TYRRELL. 403 
 
 REGINA V. TYRRELL. 
 
 Court for Crown Cases Reserved. 1893. 
 
 [Reported 1894, 1 Q. B. 710.] 
 
 Case reserved b}' Mr. Commissioner Kerr. 
 
 The defendant, Jane Tyrrell, was on September 15, 1893, tried and 
 convicted at the Central Criminal Court on an indictment charging her, 
 in the first count, with having unlawfully aided and abetted, counselled, 
 and procured the commission by one Thomas Ford of the misdemeanor 
 of having unlawful carnal knowledge of her whilst she was between the 
 ages of thirteen and sixteen, against the form of the statute, etc. ; and, 
 in the second count, with having falsely, wickedly, and unlawfully so- 
 licited and incited Thomas Ford to commit the same offence. 
 
 It was proved at the trial that the defendant did aid, abet, solicit, 
 and incite Thomas Ford to commit the misdemeanor made punishable 
 by s. 5 of the Criminal Law Amendment Act, 1885 (48 & 49 Vict. 
 c. 69). 
 
 The question for the opinion of the Court was, " Whether it is an 
 offence for a girl between the ages of thirteen and sixteen to aid and 
 abet a male person in the commission of the misdemeanor of havins: 
 unlawful carnal connection with her, or to solicit and incite a male 
 person to commit that misdemeanor." 
 
 Lord Coleridge, C. J. The Criminal Law Amendment Act, 1885, 
 was passed for the purpose of protecting women and girls against 
 themselves. At the time it was passed there was a discussion as to 
 what point should be fixed as the age of consent. Tliat discussion 
 ended in a compromise, and the age of consent was fixed at sixteen. 
 With the object of protecting women and girls against themselves the 
 Act of Parliament has made illicit connection with a girl under that 
 age unlawful ; if a man wishes to have such illicit connection he must 
 wait until the girl is sixteen, otherwise he breaks the law ; but it is 
 impossible to say that the Act, which is absolutely silent about aiding 
 or abetting, or solicitimg or inciting, can have intended that the girls 
 for whose protection it was passed should be punishable under it for 
 the offences committed upon themselves. I am of opinion that this 
 conviction ought to be quashed. 
 
 Mathew, .J. I am of the same opinion. I do not see how it would 
 be possible to obtain convictions under the statute if the contention for 
 the Crown were adopted, because nearly every section which deals 
 with offences in respect of women and girls would create an offence in 
 the woman or girl. Such a result cannot have been intended by the 
 legislature. There is no trace in the statute of any intention to treat 
 the woman or girl as criminal. 
 
 Grantham, Lawrance, and Collins, JJ., concurred. 
 
 Coninction quashed.
 
 404 COMMONWEALTH V. WILLARD. [CHAP. VI. 
 
 COMMONWEALTH v. WILLARD. 
 Supreme Judicial Court of Massachusetts. 1839. 
 
 [Reported 22 Pick. 476.] 
 
 This was a writ of habeas corpus to the sheriff of this county, to 
 bring before the Court the bodj' of George W. Richardson. 
 
 It appeared, that Richardson was summoned as a witness before the 
 grand jury for the purpose of proving that one Gould had sold to him 
 spirituous liquors, in violation of St. 1838, c. 157, § 1 ; that he re- 
 fused to testify on the ground that, as such sale was made a misde- 
 meanor by the statute, his testimony might criminate himself and 
 subject him, as the purchaser, to prosecution at common law for 
 inducing Gould to commit a misdemeanor ; and that he was thereupon 
 committed to prison b}- order of the Court of Common Pleas for 
 contempt. 
 
 Shaw, C. J.^ . . • The witness objected to testifying on the ground 
 that as the selling of spirituous liquors, without being a physician or 
 apothecary licensed for that purpose, was made a misdemeanor by 
 the statute, to purchase of such person necessarily implied an induce- 
 ment held out to commit such misdemeanor, and that to induce another 
 to commit a misdemeanor is an offence punishable at common law, to 
 which the Avitness would be exposed. But the Court are of opinion 
 that the witness would not be liable to any prosecution as such pur- 
 chaser, and therefore would not criminate himself or expose himself to 
 punishment by such a purchase. No precedent and no authority has 
 been shown for such a prosecution, and no such prosecution has been 
 attempted within the knowledge of the Court, although a similar law 
 has been in force almost from the foundation of the government, and 
 thousands of prosecutions and convictions of sellers have been had 
 under it, most of which have been sustained by the testimon}- of buyers. 
 That such a i)rosecution is unprecedented, shows very stronglj- what 
 has been understood to be the law upon this subject. 
 
 It is difficult to draw any precise line of distinction between the 
 cases in which the law holds it a misdemeanor to counsel, entice, or 
 induce another to commit a crime, and where it does not. In general, 
 it has been considered as applying to cases of felony, though it has 
 been held that it does not depend upon the mere legal and technical 
 distinction between felony and misdemeanor. One consideration, how- 
 ever, is manifest in all the cases, and that is, that the offence proposed 
 to be committed by the counsel, advice or enticement of another, is of 
 a high and aggravated character, tending to breaches of the peace or 
 other great disorder and violence, being what are usually considered 
 mala in se or criminal in themselves, in contradistinction to mala 
 
 1 Part of the opinion is omitted. — Ed.
 
 SECT. I.J COMMONWEALTH V. WILLARD. 405 
 
 prohibita, or acts otherwise indifferent than as they are restrained by 
 positive law. All the cases cited in support of the objection of tho 
 witness are of this description. 
 
 Rex V. Higgins, 2 East, 5, was a case where the accused had so- 
 licited a servant to steal his master's goods, and it was held to be 
 a misdemeanor. The crime, if committed pursuant to such solicitation, 
 would have been a felony. 
 
 Rex V. Phillips, 6 E^ast, 464, was a manifest attempt to provoke 
 another person by a letter to send a cliallenge to fight a duel. For 
 altliough the direct purpose of the letter of the defendant was to 
 induce the other part3' to send a challenge, which is technically a mis- 
 demeanor, yet the real object was to bring about a deed, which is a 
 high and aggravated breach of the public peace, and where it results 
 in the death of either party, is clearly murder. It was averred to be 
 done with an intent to do the party bodily harm and to break the 
 king's peace, and such intent was considered a material fact to be 
 averred and proved. 
 
 A case depending upon a similar principle in our own books is that 
 of Commonwealth v. Harrington, 3 Pick. 26, in which it was held 
 that to let a house to another, with an intent that it should be used 
 and occupied for the purpose of prostitution, with the fact that it was 
 so used, was a misdemeanor. The keeping of such a disorderly house 
 has long been considered a high and aggravated offence, criminal in 
 itself, tending to general disorder, breaches of the public peace, and of 
 common nuisance to the community. It is in cases of this character 
 onh', that the principle has been applied ; but we know of no case, 
 where an act, which, previously to the statute, was lawful or indifferent, 
 is prohibited under a small specific penalty, and where the soliciting or 
 inducing another to do the act, by which he may incur the penalty, is 
 held to be itself punishable. Such a case perhaps may arise, under 
 peculiar circumstances, in which the principle of law, which in itself is 
 a highl}^ salutary one, will apply ; but the Court are all of opinion 
 that it does not appl}- to the case of one who, b}' purchasing spirituous 
 liquor of an unlicensed person, does, as far as that act extends, induce 
 that other to sell in violation of the statute. 
 
 There is another view of the subject which we think has an im- 
 portant bearing on the question, if it is not indeed decisive. The 
 statute imposes a penalt\' upon an}- person who shall sell. But every 
 sale implies a purchaser ; there must be a purchaser as well as a seller, 
 and this must have been known and understood bv the legislature. 
 Now, if it were intended that the purchaser sliould be subject to any 
 penalty, it is to be presumed that it would have been declared in the 
 statute, either b}' imposing a penalty on the buyer in terms, or b}- ex- 
 tending the penal consequences of the prohibited act, to all persons 
 aiding, counselling, or encouraging the principal offender. There being 
 no such provision in the statute, there is a strong implication that 
 none such was intended by the legislature.
 
 406 COMMONWEALTH V. KOSTENBAUDEE. [CHAP, VI. 
 
 Ordered, tliat the prisoner be remanded to the custody of the sheriff 
 to abide the order of the Court of Common Pleas under which he 
 stands committed. 
 
 COMMONWEALTH v. KOSTENBAUDER. 
 
 Supreme Couut of Pennsylvania. 1886. 
 
 [Reported 20 Atlantic Reporter, 995.] 
 
 Certiorari to Court of Quarter Sessions, Lehigh County. 
 
 Kostenbauder, Houck, and Schweitzer induced Boehmer, a saloon- 
 keeper, to give them liquor on Sunday. Later Boelniier was sued for a 
 violation of the law, in which proceeding Kostenbauder, Houck, and 
 Schweitzer appear as witnesses against him. Boehmer, then alleging 
 that there had been a full understanding between the three to procure 
 from him the liquor and then proceed against him in order that they 
 mioht set the share coming to the informer in such cases, made an 
 information against Kostenbauder, Houck, and Schweitzer, and had 
 them arrested for conspirac}'. Upon return of the prosecution to the 
 Court of Quarter Sessions an indictment was drawn and presented to 
 the grand jury, which returned "a true bill," whereupon the defen- 
 dants moved to quash the bill of indictment, on the ground that it did 
 not charge an indictable offence. The court held that no indictable 
 offence was charged, and quashed the indictment. The following is a 
 cop3' of the opinion of the Quarter Sessions : — 
 
 " Albright, P. .J. If the law provided for the punishment of the 
 man who, on Sunday, buj-s or drinks, at a licensed public house, intox- 
 icating liquor, tlien these defendants could be held to answer this indict- 
 ment ; but, inasmuch as the man who buys or drinks the li(iuor is not 
 punishable, therefore the defendants cannot be held liable for conspiracy 
 to procure beer on Sunday from the saloon-keepers named in the indict- 
 ment. The law imposes the penalty on him who sells liquor on Sun- 
 day, or who, being a licensed public-house keeper, permits it to be 
 drank on his premises on that day. Tlie real offence charged in this 
 indictment is the conspiracy bv these three defendants to induce the 
 saloon-keeper to sell or give them drinks on Sunday, The further alle- 
 gations, that drink was obtained ; that it was the intention of getting 
 the informer's share of the penalties ; and that suits were brought for 
 the penalties, — add no strength to the charge. It was not unlawful 
 to accept the drink, nor to sue for the penalties. Counsel for the Com- 
 monwealth and for defendants agree that this is, in point of law, the 
 correct view of the question. It is Impossible to hold that persons are 
 guilty in law for conspiring to do an act, where the act imputed is such
 
 SECT. I.] COMMONWEALTH V. KOSTENBAUDEU. 407 
 
 that if the intention had been consummated no offence would have 
 been committed. If is not alleged that the defendants by furnishing 
 a stock of liquor, oi by any other means, instigated or furtliered the 
 illegal act of selUng or giving away on Sunday, nor that they consi)ired 
 by force or threats to coerce the saloon-keepers to sell. The latter were 
 free agents. Tliey sold or gave away the beer because they chose to dc 
 so. Where there is a confederacy, but nothing more than solicitations 
 to an intelligent free agent to conmiit a crime, it is not indictable 
 unless it is made so by statute. 2 Whart. Crim. Law (8th ed. ), § 2G91. 
 Chief Justice Gibson, in Shannon v. Com., 14 Pa. 22G, said that if 
 confederacy constituted conspiracy, witliout regard to the quality of 
 the act to be done, a party might incur the guilt of it by having agreed 
 to be the passive subject of a battery. Accordingly these defendants 
 would not have been nidictable if they had combined and agreed to- 
 gether to go to the prosecutor's house and solicit and induce him to 
 beat them. They are not indictable for having conspired to induce 
 him to give to them drinks on Sundav. Counsel for the Commonwealth 
 rely principally upon the case of Hazen v. Com., 23 Pa. 355. It is 
 asserted that it was there held that Hazen and three others had been 
 properly convicted upon an indictment charging tliat they had con- 
 spired to solicit, induce, and procure the officers of a bank to violate a 
 statute which made it a penal offence to issue notes of banks of otliei 
 states, of a denomination less than five dollars. The statute gave 
 the informer the one-half of the money penalty. But the counts upon 
 which riazen and his co-defendants were convicted charged more tlian 
 the mere conspiracy to procure the bank officers to issue the forbidden 
 notes. It was also charged, and found, that one of them had depos- 
 ited in the bank large sums of money, not for lawful business, and 
 drew them by checks for unequal sums, and required the checks to be 
 paid in bank-notes of less than $5, and that the defendants had threat- 
 ened to bring penal actions unless they were paid S3, 250 ; that it was 
 the purpose of the conspiracy to compel the bank officers unjustly and 
 unlawfully to pay large sums of money for the corrupt gain of Ibe 
 defendants. The Supreme Court said that they were left to infer that 
 such ' large sums of money' were to be obtained by some other means 
 than a fair prosecution of the offending bank officers ; that it was 
 charged that the money was to be drawn from the victiras by com- 
 pounding the offences ; that it had been found as a fact that the object 
 of the defendants was not the detection and suppression of crime, but 
 the promotion of their own corrupt gain ; that the defendants sought 
 to extort 'hush money' for suppressing the evidence of guilt. The 
 court also said that those who induced a violation of the law for the 
 purpose of compounding the offence and making gain by defeating 
 public justice were guilty of a gross wrong. In this case it is not 
 averred that the defendants offered to settle or compound the offences, 
 )ior that they obtained any part of the informer's share of the penal- 
 ties, nor even that the suits against the saloon-keepers were prosecuted
 
 408 COMMONWEALTH V. KOSTENBAUDER. [CHAP. VI. 
 
 to judgment. In that reference it is simply alleged that the defen- 
 dants, and others acting vviili them, have caused writs of summons to be 
 issued by the aldermen for the penalty of $50 in each case. The deci- 
 sion of the question presented in Hazen v. Com. does not warrant a 
 ruling that this indictment can be sustained, nor has any autiiority for 
 such a conclusion been found. The motion to quash must be sustained. 
 If counsel for the Commonwealth desire to obtain the decision of the 
 Supreme Court upon this question, it is probable that this court, upon 
 application of the district attorney, will make an order that the defen- 
 dants be held under bail until such decision has been obtained. They 
 are now under recognizance for their appearance at the next term. 
 How, December 26, 188.5, the indictment is quashed ; the recognizance 
 of defendants to remain in force unless discharged by order of tlie 
 
 court." 
 
 J. Marshall Wriffht, Dist. Atty., Henninger & De Walt, and E. J. 
 Lichtenivalner, for the Commonwealth. 
 
 Joh7i C. Merrill and Charles R. James, for Kosteubauder and 
 Houck. 
 
 W. J. Stein, for Schweitzer. 
 
 Per Curiam. The judgment of the court below is affirmed by a 
 divided court.
 
 SECT. II.] MEMORANDUM. 409 
 
 SECTION 11. 
 
 Innocent Agents. 
 MEMORANDUM. 
 
 [Reported Kelijng, 52.] 
 
 My Brother Twisden shewed me a report which he had of a charge 
 given by Justice Jones to the grand jury at the King's Bencli Bar in 
 Michaelmas Term, 9 Car. I., in which he said that poisoning another 
 was murder at common law. And the statute of 1 Ed. VI. was but 
 declaratory of the common law, and an affirmation of it. He cited 
 Vaux and Ridley's Case. If one drinks poison by the provocation or 
 persuasion of another, and dieth of it, this is murder in the person that 
 persuaded it. And he took this difference : If A. give poison to J. S. 
 to give to J. D., and J. S., knowing it to be poison, give it to J. D. 
 who taketh it in the absence of J. vS. and dieth of it, in this case J. S. 
 who gave it to J. D., is principal, and A., who gave the poison to J. S. 
 and was absent when it was taken, is but accessory before the fact. 
 But if A. buyeth poison for J. S., and J. S. in the absence of A. taketh 
 it, and dieth of it, in this case A., though he be absent, yet he is prin- 
 cipal. So it is if A. giveth poison to B. to give unto C, and B., not 
 knowing it to be poison, but believing it to be a good medicine, giveth 
 it to C. who dieth of it ; in this case. A., wlio is absent, is principal, 
 or else a man should be murdered and there should be no principal. 
 For B., who knew nothing of the poison is in no fault, though he gave 
 it to C. So if A. puts a sword into the hand of a madman, and bids 
 him kill B. with it, and then A. goeth away, and the madman kills B. 
 with the sword as A. commanded him, this is murder in A. though 
 absent, and he is principal ; for it is no crime in the madman who did 
 the fact, by reason of his madness. And he said this case was lately 
 before himself and Baron Trevor at the Assizes at Hereford. A woman 
 after she had two daughters by her husband, eloped from him and lived 
 with another man. And afterwards one of her daughters came to 
 her, and she asked her how doth your father, to which her daughter 
 answered, that he had a cold, to which his wife replied, here is a good 
 powder for him, give it him in his posset ; and on this the daughter 
 carried home the powder, and told all this that her mother had said to 
 her, and to her other sister, who in her absence gave the powder to 
 her father in his posset, of which he died. And he said that, upon 
 conference with all the judges, it was resolved that the wife was prin- 
 cipal in the murder, and also the man with whom she ran away, he 
 being proved to be advising in the poison ; but the two daughters were 
 in no fault, they both being ignorant of the poison. And accordingly, 
 the man was hanged, and the mother burnt.
 
 410 REGINA V. BANNEN. [CHAI 71. 
 
 REGINA V. BANNEN. 
 Crown Case Reserved. 1844. 
 
 [Reported 2 Moody, 309.] 
 
 The prisoner was tried before Mr. Barou Gurney, at tlie Spring 
 Assizes lor the county of Warwieli, 1844, on an indictment for feloni- 
 ously making a die, which would impress the flgure, stamp, and 
 apparent resemblance of the obverse side of a shilling. 
 
 Second count, for feloniously beginning to mai<e such a die. 
 
 Third count, for feloniously making a die which was intended to 
 impress the figure, stamp, and apparent resemblance of the obverse 
 side of a shilling. 
 
 It was proved by Charles Frederick Carter, a die-sinker at Birming- 
 ham, that the prisoner applied to him to sink two dies for counters for 
 two whist clubs, one at Exeter and the other at Blandford, stating 
 that it was their practice to play with counters with one side resem- 
 bling coins, and that they wished to have counters stamped by dies, 
 to be made in pursuance of the following directions : — 
 
 Four dies for whist counters ; obverse, head of Queen Victoria, as in 
 the shilling coin ; reverse, Blandford whist club, established 1800. 
 Obverse, one shilling, as in coin, with wreath, etc. ; reverse, Exeter 
 whist club, established in 1800. The obverse to be as much a. facsimile 
 as can be ; the letters on the reverse to vary in size ; all the dies to be 
 the same size, and fit either collar. 
 
 When Mr. Carter considered these directions, it occurred to him that 
 there was something very suspicious in them, and he applied to the 
 agent of the mint at Birmingham, and communicated the order to him. 
 The agent sent to the officers of the mint in London for instructions, 
 and Mr. Carter was by them directed to execute the prisoner's order. 
 He proceeded ; a long correspondence took place on account of the 
 work not being executed within the time expected. In the course of 
 the correspondence, the prisoner desired to have the obverse of one of 
 the pieces and the obverse of the other finished first, and they were 
 so. When they were finished, they formed a die for the coining of a 
 shilling, and an impression made by the dies was produced in court. 
 
 3Ir. Serjt. Adams, for the prisoner, objected that the prisoner could 
 not be convicted, as he had not himself done anything in the construc- 
 tion of the die, and that he was not answerable in this form of charge 
 for the act of Carter ; that Carter having acted under the instructions 
 of the mint, no felony whatever had been committed ; and that the 
 prisoner should have been indicted for a misdemeanor, in inciting 
 Carter to commit a felony. 
 
 The learned judge reserved the point for the opinion of the judges. 
 The jury found the prisoner guilty.
 
 SECT. II.] KEGINA V. BANNEN. 411 
 
 This case was argued in Easter term, 1844, before all the judges 
 except Coleridge, J., and Maule, J. 
 
 Whitehurst, for the prisoner. Tlie prisoner did not commit the offence 
 as charged in the indictment. The statute 2 W. IV., c. 34, s. 10, enacts 
 tliat "if any person sliall knowingly and without lawful authority (the 
 proof of which authority shall lie on the party accused) make, &c.,or 
 begin to make, any puncheon, &c., die, &c.,such person shall be guilty 
 of felony." Here no person has without lawful authority made or begun 
 to make a die. The only person who has in fact made or begun to 
 make a die is Carter. Before Carter begins, he applies to the mint. 
 He must be taken to have known the law, and applies to get their 
 authority to proceed. The officers of the mint gave him orders to pro- 
 ceed ; he therefore had lawful authority. If they had power to give 
 the authority, then there was no offence. If they had not, then Carter 
 is guilty of the felony as a principal, and the prisoner ought to have 
 been indicted as an accessory before the fact. If Carter was innocent, 
 the prisoner could not be an accessory, nor could he be a principal ; he 
 is not present ; and if another does the act for him in his absence, that 
 person must be altogether innocent; to be innocent he must be igno- 
 rant of any wrong in what he is doing. Suppose a person knowingly 
 employs an ignorant agent to deliver a forged note ; the delivery is 
 his, because the agent is ignorant ; so if a person employs an ignoi*- 
 ant agent to administer poison, that person ma}' be said himself to 
 administer. Carter here cannot be said to be ignorant. He knows 
 the use to which the dies are applicable and the guilty purpose for which, 
 they were intended by the prisoner. The dies are also made with the 
 knowledge of the mint. For these reasons Carter cannot be said to 
 be a mere ignorant agent of the prisoner, and therefore the prisonei 
 cannot be a principal felon. 
 
 Waddington, for the Crown. There is no doubt that, if Carter wa* 
 guilty of felony, this indictment fails. But it is impossible to contend 
 that on these facts Carter was a felon. Perhaps, strictly speaking, no 
 one could have lawful authority to make coining instruments ; certainly 
 not, if Carter had not. 
 
 [TiXDAL, C. J. The " having lawful authority " applies to the officei"? 
 and servants of the mint.] 
 
 It is agreed that in one sense he did the act knowingly ; but mere 
 knowledge is not enough. The statute means guilty knowledge ; and 
 that is the distinction clearly pointed out in Foster's "Discourse on 
 Accomplices," p. 349, etc. To be a felon there must be a guilty knowl- 
 edge. The cases of the child or madman are well established. Now 
 Carter certainly knew what he was doing, but had no intention of any 
 felony or furthering a felony ; and the authority and knowledge of the 
 mint would be clearly sufficient to make his knowledge innocent. 
 
 In Rex V. Palmer and Hudson, Russ. «fe Ry. 72, which is reported 
 with the judgment delivered by Rooke, J., 1 B. & P. New Rep. 97, 
 this distinction is carried out, and the case put of an uttering a forged
 
 412 REX V. BINGLEY. [CHAP. VI. 
 
 note by means of an agent ignorant of the forgery is stated to be law. 
 This has since been held to be law in Rex v. Giles, 1 Moody C. C. R. 
 166. The agent must be an innocent agent. The cases all turn on 
 the distinction of innocent knowledge or guilty knowledge. Carter 
 was clearly an innocent agent, and the prisoner was therefore the 
 principal. 
 
 Whitehurst, in reply. Here Carter, the agent, in fact does nothing 
 at all until he lias the orders of the mint. He is, throughout, the agent 
 of the mint, not of the prisoner. 
 
 All the judges present, except Cresswell, J., thought Carter an 
 innocent agent, and held the conviction good.^ 
 
 SECTION III. 
 
 Joirit Principals. 
 
 REX V. BINGLEY. 
 
 Crown Case Reserved. 1821. 
 
 [Reported Russell t^' Ryan, 446.] 
 
 The three prisoners were tried and convicted before Mr. Justice 
 .Richardson, at the Lent assizes for the county of Warwick, in the 
 year 1821, on an indictment the first count of which charged the 
 prisoners with forging and counterfeiting a £5 bank note, with intent 
 to defraud the Governor and Company of the Bank of England. The 
 third count charged them with falsel}- making, forging, and counter- 
 feiting, and causing and procuring to be falsely made, forged, and 
 counterfeited, and willingly acting and assisting in the false making, 
 forging, and counterfeiting, a promissory note, for the payment of 
 money, with the like intent. There were other counts for disposing 
 of, and putting awa^' scienter, &c. 
 
 It appeared in evidence that Bingley and Button, and one George 
 Peacock, an accomplice, agreed to take, and did take a house in Bir- 
 mingham, for the purpose of carrying on therein the manufacture of 
 forged bank notes. The first operation was the purchasing of proper 
 paper, 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 different part of Birmingliam, to be by him printed, and 
 he accordingl}' struck off in blank all the printed part of the notes, 
 
 1 See ace. Reg. v. Clifford, 2 C. & K. 202; Reg. v. Bleasdale, 2 C. & K. 765; Gregory 
 V. State, 26 Ohio St. 510 ; State v. Learnard, 41 Vt. 585. And see William.son v. State. 
 16 Ala. 431: Com. v. Hill, 145 Mass. 30.5. — Ed.
 
 SECT. III.] REX V. BINGLEY. 413 
 
 except the date line and the number. He also impressed on the paper 
 the wavy horizontal lines. 
 
 The blanks were then brought back to the house of Bingley, Button, 
 & Peacock, and there the water mark was introduced into the paper ; 
 after which Bingley, in the presence of Dutton and Peacock, impressed 
 the date line and the number, and Dutton added the signature. 
 
 Sometimes the date line and number were inserted before the signa- 
 ture was inserted, and sometimes the signature before the date line 
 and number ; but in a certain class of notes (of which the note in the 
 indictment was one) the accomplice said that the signature was added 
 last. 
 
 The notes were then complete, although they underwent another 
 operation, that of pressing them between plain sheets of tin, in order 
 to make the surface smooth, before the}- were put into circulation. 
 
 Peacock, the accomplice, did not know that Batkin was employed to 
 print the blank notes, nor did it appear that Batkin ever was present 
 when Bingley and Dutton filled up and completed the notes. 
 
 The accomplice stated that Bingley and Dutton were both present 
 when Bingley impressed the date line and number on that class of 
 notes of which the note stated in the indictment was one, but he said 
 he was not certain wliether Bingley was present when Dutton after- 
 wards added the signature to the class of notes. 
 
 The prosecutors elected to proceed on the counts for forging. 
 
 Upon this evidence the learned judge left it to the jury whether 
 the three prisoners did concur and co-operate in the joint design of 
 forging the five-pound note mentioned in the indictment (among other 
 notes) with intent to put it into circulation, and whether they all did 
 perform their respective part in the execution of that design within 
 the county of Warwick. If so, the learned judge advised them to find 
 them all guilty of the forgery. 
 
 The learned judge further directed them to find whether the two 
 prisoners, Bingley and Dutton, were present when the note mentioned 
 in the indictment was completed by adding the date line and the 
 signature. 
 
 The jury found that all three concurred and co-operated in the de. 
 sign and execution of the forgery, each taking his own part, within 
 the county. They also found that Bingley and Dutton acted together 
 in completing the notes, and therefore found all three guilty on the 
 counts for forging. 
 
 The learned judge passed sentence on the prisoners ; but respited 
 their execution, in order to submit to the judges the following ques- 
 tions : — 
 
 First, Do the acts of parliament which relate to the forging, &c., 
 and causing to be forged, &c., and acting and assisting in the forging, 
 &c., of promissory notes apply to Bank of England notes, which, 
 although they are undoubtedly promissory notes, are the subject of 
 distinct legislative provisions ?
 
 414 COMMONWEALTH V. LOWREY. [CHAP. VI. 
 
 Secondly, Upon the evidence and the finding of the juiT, was this 
 a joint offence of forging in tlie three prisoners, oi at least in the two 
 prisoners, Bingley and Dutton?^ 
 
 In Easter term, 1821, the judges met and considered this case. They 
 held that the conviction was right as to all the prisoners : the judges 
 were of opinion that, as each of the prisoners acted in completing 
 some part of the forgery, and in pursuance of the common plan, each 
 was a principal in the forgery ; and that although the prisoner Batkin 
 was not present when the note was completed by the signature, he 
 was equall}" guilty with the others. 
 
 COMMONWEALTH v. LOWREY. 
 
 Supreme Judicial Court of Massachusetts. 1893. 
 
 [Reported 158 AJass. 18.] 
 
 Holmes, J.^ The main question for us is whether there was any 
 evidence of a criminal breaking and entering. The jury were warranted 
 in finding that, in pursuance of a preconcerted scheme, the defendant 
 Johnson, making a pretence of a wish to purchase an article, got the 
 night clerk of the Theodore Metcalf Company to let him into the com- 
 pany's shop at about midnight ; that while the night clerk was in the 
 cellar getting the article, Johnson unbolted the door which had been 
 rebolted behind him after his admission, and let in the defendant 
 Lowre}', who concealed himself and remained behind when Johnson 
 left, and afterwards broke open the draw, etc. The court seems to 
 have required the jur}^ to find that Lowrey opened the door as a con- 
 dition to their finding him guilty. 
 
 It was not necessary that Lowre}' should have touched the door if he 
 procured himself to be let in by an accomplice and entered with feloni- 
 ous intent. He might have been convicted, even if the hand which he 
 made use of was innocent, as in case of a servant or constable. Le 
 Mott's case, J. Kel. 42 ; Farre & Chadwick's case, J. Kel. 43 ; Cassy 
 & Cotter's case, J. Kel. 62 ; Hawkins's case, 2 East P. C. 485 ; Hol- 
 land V. Commonwealth, 82 Penn. St. 306, 323 ; Johnston v. Common- 
 wealth, 85 Penn. St. 54, 64 ; State v. Rowe, 98 N. C. 629 ; State v. 
 Johnson, Phil. (N. C.) 186; Nicholls 7^ State, 68 AVis. 416, 421, 422 ; 
 Clarke v. Commonwealth, 25 Grat. 908, 913. The accomplice inside 
 the house is guilty of the same oflfence. Cornwall's case, 2 Strange, 
 881; 1 Hale, P. C. 553; 4 Bl. Com. 227; Rex v. Jordan, 7 C. & P. 
 432 ; Cooper v. State, 69 Ga. 761 ; Ray v. State, 66 Ala. 281, 282 ; 
 Breese v. State, 12 Ohio St. 146. 
 
 The argument for the defendants assumes that the door was not even 
 latched, and speaks of the defendants as having been invited into the 
 
 1 Part of the opinion is omitted. — Ea
 
 SECT. IV.] REX V. SKERRIT. 415 
 
 shop. In fact, the door would seem to have been bolted, and if there 
 can be said to be any invitation to enter a closed and bolted shop at 
 midnight, the invitation does not extend to thieves when let in by their 
 accomplices. 
 
 SECTION IV. 
 
 Principals in the /Second Degree. 
 
 ANONYMOUS. 
 
 Exchequer Chamber. 
 [Reported Y. B. 13 Hen. VII. 10, ph 7.] 
 
 A WOMAN brought an appeal for the death of her husband against 
 two, and alleged that one of the appellees held her husband and com- 
 manded the other to kill him, by reason of which the other struck him 
 to the heart so that he died at once. 
 
 And it was held by all the justices in the Exchequer Chamber that 
 both are principals, because both are parties to the blow. Quod nota. 
 
 REX V. SKERRIT. 
 
 Berkshire Assizes. 1826. 
 
 {Reported 2 C.Sr P. 427.] 
 
 The prisoners were jointly indicted for uttering a counterfeit shilling 
 having another counterfeit shilling in their possession. 
 
 It was proved that the prisoner, Eliza Skerrit, went into the shop of 
 James George, and there purchased a loaf, for which she tendered a 
 counterfeit shilling in payment; he secured her, but no more counter-, 
 feit money was found on her. The other prisoner, who had come with 
 her, and was waiting at the shop-door, then ran away, but was immC' 
 diately secured, and fourteen other bad shillings were found on her, 
 wrapped in gauze paper. ^ 
 
 Carrington, for the prisoners, objected, 2dl3', that the complete 
 offence was not proved against either of the prisoners ; as the one who 
 uttered the piece of money had no other counterfeit coin in her posses- 
 sion, and the other who had the coin, was not guilty of any uttering. It 
 might be said that the one who stayed outside the shop was guilty of 
 a joint uttering with the other who was in it ; like the case of two 
 thieves, one inside the shop and the other outside ; but the case of the 
 
 1 Only so much of the case as discusses the joint uttering is given. — Ed.
 
 416 COMMONWEALTH V. KNAPP. [CHAP. VI. 
 
 thieves differed from the present in this respect, viz. that the thief outside 
 might be there to co-operate by tlie removal of tlie stolen property or 
 the like. Now the prisoner, Priscilla Skerrit, by staying outside the 
 shop, could not by possibility be considered as aiding her sister in the 
 act of paying for a loaf inside the shop. And in the case of Rex v. 
 Else, Russ. & Ry. 142, it was held that if one person utter a bad piece of 
 mone^', having no more, in conjunction with another, who had more bad 
 money but who was absent and did not utter, neither was guilty of this 
 offence : however, in that case the persons were much further asunder 
 than the prisoners had been in the present. 
 
 Gakrow, B. With regard to the second objection, I think that the 
 two prisoners coming together to the shop, and the one staying outside, 
 they must both be taken to be jointly guilty of tlie uttering ; and it will 
 be for the Jury to say whether the possession of the remaining pieces 
 
 of bad money vras not joint. . . . 
 
 Verdict, Guilty. 
 
 COMMONWEALTH v. KNAPP. 
 Supreme Judicial Court of Massachusetts. 1830. 
 
 [Reported 9 Pickerin;;, 496 ] 
 
 John Francis Knapp was indicted as principal, together with 
 Joseph Jenkins Knapp and George Crowninshield as accessories, in 
 the murder of Joseph White of Salem, which was perpetrated on the 
 6th of April, 1830. The indictment alleged that Richard Crownin- 
 shield also was a principal, and that he had committed suicide. The 
 parties indicted were tried separately.^ 
 
 The evidence in the case tended to prove that Richard Crowninshield 
 alone entered the house of White and there perpetrated the murder, 
 and that the prisoner was in a street about 300 feet distant from the 
 house, aiding and abetting. 
 
 Putnam, J., delivered the opinion of the court. By the most ancient 
 common law, as it was generally understood, those persons only were 
 considered as principals in murder who actually killed the man, and 
 those who were present, aiding and abetting, were considered as ac- 
 cessories. So tliat if he who gave the mortal blow were not convicted, 
 he who was present and aiding, being only an accessory, could not be 
 put upon his trial. But the law was otherwise settled in the reign of 
 Henry IV. It was tlien adjudged that he who was present, aiding 
 and abetting him who actually killed, was to be considered as actually 
 killing, as much as if he himself had given the deadly blow. 
 
 [To the jury.] There is no evidence that the prisoner gave the 
 
 1 Part of the case, not involving the question of principal and accessory, is omitted. 
 — Ed.
 
 SECT. lY.J COMMONWEALTH V. KNAPP. 417 
 
 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 by 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 e3e 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 felony, 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. 32, s. 7 (7th ed.) being present in 
 judgment of the laic 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 by, 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, 
 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, by 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
 
 418 COMMONWEALTH V. KNAPP. [CHAP. VI, 
 
 also be proved that he wjis actnalh' aiding and abetting the perpe- 
 trator at the time of the minder. But if the abettor were consenting 
 to the murder, and in a situation in wliich he might render any aid, 
 by arrangement with tlie perpetrator, for the purpose of aiding and 
 assisting him in tlie murder, tlien it would 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 b}- 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 be 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. 
 Tlie fact of the conspirac}' being proved against the prisoner is to be 
 weighed as evidence in the case, having a tendencj' to prove that the 
 prisoner aided, but it is not in itself to be taken as a legal presump- 
 tion of his having aided unless disproved bj' him. It is a question of 
 evidence for the consideration of the jurj'. 
 
 If, however, the jur}' 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 conspirac}'. We are all of opinion that 
 these are the principles of the law applicable to the case upon trial.^ 
 
 1 Ace. Rex V. Owen, 1 Moody, 96; Rex v. Dyson, Riiss. & Ey. 523 ; Thomas v. 
 State, 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. Hildieth, 9 I red. 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 thi.s, whatever judgment you may think will be passed on the two." — Spig- 
 ONKL, J., in Y. B. 30 & 31 Ed. I. p. 108. — Ed.
 
 bECT. IV.] BREESE V. STATE. 419 
 
 BREESE V. STATE. 
 Supreme Court of Ohio. 1861. 
 
 [Reported 12 Ohio State, 146.] 
 
 Peck, J.* Did the court err in tliat portion of its charge to the } ^^ 
 which is stated in the bill of exceptions ? The charge, which is corned 
 into the statement of the case, and which, on account of its length, 1 
 do not propose to repeat here, was, substantially, that if the jury 
 should find, bej^ond 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, awa}' from the store in which he 
 usually slept, to a part}-, abouL 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- 
 structively present at the breaking and entry 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 say 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 presence, 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 b}^ 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 away, that 
 the man who has the goods may carry tliem 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 actually com« 
 
 1 Part of the opinion only is given.
 
 420 ACCESSORIES. [CHAP. VI. 
 
 mits the oflfence, although not actually present at the commission of 
 It, j'ct are at such convenient distance as to be able to come to the 
 assistance of their associates if required, or to watch to prevent sur- 
 prise or the like." 
 
 Bishop, in section 460, vol. i. of bis 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 principal rather than an acces- 
 sory is, whether 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 bm'glary 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 l)e 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 the 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 State v. Poynier, 36 La. Ann. 572 , State v. Hamilton, 13 Nev. 386. — Ed.
 
 SECT, v.] REGINA V. CLAYTON. 421 
 
 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 iiorse 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, bv 
 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 i-escues 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 husliand. 
 Yet if she be any way guilty of procuring her husband to commit ii, 
 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 accessory 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 ^- Kirwan, 128.] 
 
 Misdemeanor. — The prisoners were indicted for a misdemeanor In 
 having attempted to set fire to ?, 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 ; 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 
 
 J See TuUy v. Com., 11 Bush, 154; Wren's Case, 26 Gratt. 952. —Ed. 
 * See Harrel i;. State. 39 Miss. 702. — Ed.
 
 422 COMMONWEALTH V. PHILLIPS. [CHAP. VI. 
 
 Mary Mooney were proved which tended to show that she knew before- 
 hand that the fire was to take place. 
 
 «/. G. Phillimore, for the prisoners, submitted that there was no 
 case against the prisoner Mar}- 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.^ 
 
 Verdict, JVot guilty. 
 
 REGINA V. BROWN. 
 Bristol Assizes. 1878. 
 
 [Reported 14 Cox C. C. 144] 
 
 Frederick Brov^n 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 w. PHILLIPS. 
 
 Supreme Judicial Court of Massachusetts. 1820. 
 
 [Reported 16 Massachusetts, 423. J 
 
 Indictment at the last March term in this county, charging cue 
 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 
 Wlieat 460 (fitting out vessel for slave trade); Sanders v. State, 18 Ark. 198 (obstruct- 
 ing highway); Stevens v. People, 67 111. 587 (keeping gaming-house). — Ed. 
 
 * Arguments of counsel are omitted.
 
 SECT, v.] STARIN V. PEOPLE. 423 
 
 Parker, C. J., stated that the justices had carefully examined the 
 books upon the subject, and were unanimously of opinion that by the 
 common law an accessory cannot be put on his trial, but by his own 
 consent, until 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 ofliences, 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 
 us 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 w. State, 4 Ga. 465; Wliite- 
 head v. State, 4 Humph. 278 : State o. Pybass, 4 Humph. 442. See Hatchett v. Com., 
 75 Va. 925; Ogden i. State. 12 Wis. 532. — Ed. 
 
 ^ Part of the o])inion only is given.
 
 424 STAEIN V. PEOPLE. [CHAP. VI. 
 
 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 principal, while an acquittal 
 of the principal necessarily acquits the accessor}'. Wharton's Crira. 
 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., 246. 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's 
 Pleas of the Crown, 623, chap. 47. And in order to tr)- 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. siip?'a. 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. R. L. eh. 215, Sects. 3, 7. Whoever counsels, hires, or other- 
 wise procures a felony to be committed, ma}' be indicted and convicted 
 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. 
 
 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
 
 SECT. VI.] RULOFF V. PEOPLE. 425 
 
 the offence, or aids and abets in its commission, and whetlier present 
 or absent ; and a person vvlio directly 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 pi-eviously 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 demesne a good plea in trespass against them.' 
 
 RULOFF V. PEOPLE. 
 Court of Appeals of New York. 187L 
 
 [Reported 45 New York, 213.] 
 
 Allen, J.^ The jury have, by their verdict, found that the homicido 
 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 jur}', that the prisonei 
 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 
 
 1 See Reg. v. Jackson, 7 Cox C. C. 357 ; Reg. v. Salmon, 14 Cox C. C. 494, 
 supra. — Ed. 
 
 ^ Part of the opinion only is given.
 
 426 EULOFF V. PEOPLE. [CHAP. VI. 
 
 are credible, as the jury seem to have believed, is, that the accused, 
 in person, committed the homicide; and it is not improbable that, had 
 the jury been left to pronounce 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 oj 
 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.
 
 SECT. VI.J STATE V. ALLEN. 427 
 
 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. 
 Supreme Court of Errors of Connecticut. 1879. 
 
 [Reported 47 Connecdcuc, 121 ] 
 
 Beardsley, 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 themsslves 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 botl» 
 guilty of murder in the first degree. And in the opinion of the coui* 
 Allen would be guilty of murder in the first degree if, in the state o^ 
 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." 
 
 1 Ace. State v. Barrett, 40 Minn. 77 ; State v. Davis, 87 N. C. 514 -, State v. 
 Johnson, 7 Or. 210.— Ed. 
 
 ' Part of the opinion only is given.
 
 428 
 
 STATE V. ALLEN. [CHAP. VI. 
 
 We do not think that the objection 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 effect that he had 
 abandoned the enterprise, and Hamlin, supposing that 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, Hamh'n's misconstruction of his purpose in 
 leaving did not necessarily make his conduct of no importance. 
 
 Until the fatal shot there was the locus penitentim. 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.
 
 SECT. VI.1 STATE V. LUCAS. 429 
 
 STATE V. LUCAS. 
 Supreme Court of Iowa. 1880 
 
 iReported 55 Iowa, 321.) 
 
 Day, J. — R. G. Edwards, on behalf of the State, testified in sub- 
 stance that he was night vvatchman for Hemmingway & 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 landed 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 hmi 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,
 
 430 
 
 KEX V. HAWKINS. [CHAP. VI. 
 
 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 Barclay & Hemmingway'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 sufficiently 
 indifcated by the foregoing, without noticing consecutively the other 
 errors assigned and argued. 
 
 REX r. HAWKINS. 
 Worcester Assizes. 1828. 
 [Reported 3 C. S' P. 392.] 
 
 The indictment charged the prisoners, and a person named Williams 
 (who was not in custod}'), with robbing William Tucker. 
 
 It appeared that the prisoners were out poaching in the night in 
 company with Williams, and that Tucker, who was the game-keeper of 
 Mr. West, met them as he was going his rounds, when the whole part}' 
 set upon him and beat him till he was senseless ; and that, on his re- 
 covering, he missed his pocket-book and mone}-, and his gun. How- 
 ever, to connect some of the prisoners with the offence, an accomplice 
 was called, who stated that thev all beat the game-keeper, and left him 
 lying on the ground ; and that, after they had gone some little distance, 
 Williams returned and robbed him. 
 
 Park, J. It appears to me that WiUiaras is alone guilt}' of this 
 robbery. It appears that there was no common intent to steal the 
 keeper's property. They went out with a common intent to kill game, 
 and perhaps to resist the keepers ; but the whole intention of stealing 
 the property is confined to Williams alone. The\' must be acquitted of 
 the robbery. Verdict, Not Guilty. 
 
 1 See Lamb v. People, 96 111. 73 ; People v. Knapp, 26 Mich. 112; Mercersmith v. 
 State, 8 Tex. App. 211 ; Watts v. State, 5 W. Va. 532. — Ed.
 
 SECT. VI.] PEOPLE V. KEEFER. 431 
 
 PEOPLE V. KEEPER. 
 
 Supreme Court of California. 1884. 
 [Reported 65 Cal. 232]. 
 
 McKiNSTRT, J.^ Counsel for defendant asked the court to charge 
 the jury : — 
 
 ' ' If you believe from the evidence that the defendant James Keefer 
 was not present when the Chinaman Lee Yuen was killed by Chapman, 
 and did not aid and abet in the killing, and that defendant, at the time 
 or prior to the killing, had not conspired with Chapman to commit the 
 act, and that he had not advised and encouraged Chapman therein, and 
 tliat the killing was not done in pursuance of any conspiracy between 
 this defendant and Chapman to rob said Chinaman, and that this de- 
 fendant only assisted in throwing the dead body of the Chinaman into 
 the creek, then you are instructed that, under the indictment, you must 
 find the defendant not guilty." 
 
 It is to be regretted that the foregoing instruction was not given to 
 the jury. Of course, if defendant had done no act which made him 
 responsible for the murder, the mere fact that he aided in concealino- 
 the dead body would render him liable only as accessory after the 
 fact, — an offence of which he could not be found guilty under an in- 
 dictment for murder. However incredible the testimony of defendant, 
 he was undoubtedly entitled to an instruction based upon the hypothesia 
 that his testimon}' was entirely true. 
 
 Assuming the testimony of defendant to be true, there was evidenct 
 tending to show that no robbery was committed or attempted. In 
 robbery, as in larceny, it must appear that the goods were taken animo 
 furandi ; and there was evidence tending to prove that his propertj- 
 was not taken from deceased lucH causa, or with intent to deprive him 
 of it permanently. So also there was evidence tending to prove that 
 defendant was not personally present at the killing, and that the killing 
 was not done in pursuance of any agreement or understanding to which 
 defendant was a party, but that it was done by Chapman without the 
 knowledge, assent, or connivance of the defendant. 
 
 The testimony of defendant was to the effect that he did not advise 
 or encourage Chapman to follow and tie the deceased. But even if we 
 could be supposed to be justified in deciding the fact, in holding that 
 his conduct conclusively proved — notwithstanding his testimony to 
 the contrary — that he did encourage Chapman in his purpose to follow 
 and tie the deceased, such encouragement would not, of itself, make 
 him accessory to the killing. An accessory before the fact to a robbery 
 (or any other of the felonies mentioned in section 198 of the Penal 
 Code), although not present when the felony is perpetrated or at' 
 
 * Part of the opinion is omitted. — Ed.
 
 432 SPIES V. PEOPLE. [chap. VI. 
 
 tempted, is guilty of a murder committed in the perpetration or attempt 
 to perpetrate the felony. People v. Majors, April 1, 1884. This is by 
 reason of the statute, and because the law superadds the intent to kill 
 to the original felonious intent. People v. Doyell, 48 Cal. 94. One 
 who has only advised or encouraged a misdemeanor, however, is not 
 necessarily responsible for a murder committed by his co-conspirator, 
 not in furtherance, but independent of the common design. 1 Whart. 
 Crim. Law, § 229 and note. 
 
 In the case at bar, if defendant sirapl}' encouraged the tying of the 
 deceased, — a misdemeanor whicli did not and probably could not cause 
 death or an}' serious injury, — as the killing by Chapman was neither 
 necessarily nor probably involved in the battery or false imprisonment, 
 nor incidental to it, but was an independent and malicious act with 
 which defendant had no connection, the jur}' were not authorized to 
 find defendant guilty of the murder, or of manslaughter. If the de- 
 ceased had been strangled b}^ the cords with which he had been care- 
 lessl}' or recklessly bound by Chapman, or had died in consequence of 
 exposure to the elements while tied, defendant might have been held 
 liable. But, if the testimony of defendant was true, — and, as we have 
 said, he was entitled to an instruction based upon the assumption that 
 the facts were as he stated them to be, — the killing of deceased was 
 an independent act of Chapman, neither aided, advised, nor encouraged 
 b3' him, and not involved in nor incidental to an}' act by him aided, 
 advised, or encouraged. The court erred in refusing the instruction. 
 
 SPIES V. PEOPLE. 
 
 Supreme Court of Illinois. 1887. 
 
 [Reported 122 ///. 1.] 
 
 Magruder, J.,^ delivered the opinion of the Court: 
 
 This case comes before us by writ of error to the Criminal Court of 
 Cook county. The writ has been made a supersedeas. 
 
 Plaintiffs in error were tried in the summer of 1886 for the murder 
 of Matthias J. Degan, on Ma}' 4, 1886, in the city of Chicago, Cook 
 county, Illinois. On August 20, 1886, the jury returned a verdict 
 finding the defendants, August Spies, Michael Schwab, Samuel Fielden, 
 Albert R. Parsons, Adolph Fischer, George Engel, and Louis Lingg, 
 guilty of murder, and fixing death as the penalty. By the same ver- 
 dict they also found Oscar W. Neebe guilty of murder and fixed the 
 penalty at imprisonment in the penitentiary for fifteen years. 
 
 About the 1st day of May, 1886, the workingmen of Chicago and of 
 other industrial centres in the United States were greatly excited upon 
 the subject of inducing their employers to reduce the time during 
 
 ^ Part of the opinion only is given. — Ed.
 
 SECT. VI.] SPIES V. PEOPLE. 433 
 
 which they should be required to labor on each day to eight hours, 
 lu the midst of the excitement growing out of this eight-hour move- 
 ment, as it was called, a meeting was held on the evening of May 4, 
 1886, at the Haymarket, on Randolph street, in the West division of 
 the city of Chicago. This meeting was addressed by the defendants 
 Spies, Parsons, and Fielden. While the latter was making the clos- 
 ing speech, and at some point of time between ten and half-past ten 
 o'clock in the evening, several companies of policemen, numbering one 
 hundred and eighty men, marched into the crowd from their station on 
 Desplaines street, and ordered the meeting to disperse. As soon as 
 the order was given, some one threw among the policemen a dynamite 
 bomb which struck Began, who was one of the police officers, and 
 killed him. As the result of the throwing of the bomb and of the 
 firing of pistol shots, which immediately succeeded the throwing of the 
 bomb, six policemen besides Began were killed, and sixty more were 
 seriously wounded. 
 
 It is undisputed that the bomb was thrown and that it caused the death 
 of Began. It is conceded that no one of the convicted defendants 
 threw the bomb with his own hands. Plaintiffs in error are charged 
 with being accessories before the fact. There are sixty-nine counts in 
 the indictment. Some of the counts charge that the eight defendants 
 above named, being present, aided, abetted, and assisted in the throw- 
 ing of the bomb : others, that, not being present, aiding, abetting or 
 assisting, they advised, encouraged, aided, and abetted such throwing. 
 Some of the counts charge that said defendants advised, encouraged, 
 aided, and abetted one Rudolph Schnaubelt in the perpetration of the 
 crime ; others that they advised, encouraged, aided, and abetted an un- 
 known person in the perpetration thereof. 
 
 The Illinois statute upon this subject is as follows (chap. 38, div. 2, 
 sees. 2 and 3) : 
 
 "Sec. 2. An accessory is he who stands by, and aids, abets, or 
 assists, or who, not being present, aiding, abetting, or assisting, hath 
 advised, encouraged, aided, or abetted the perpetration of the crime. 
 He who thus aids, abets, assists, advises, or encourages shall be con- • 
 sidered as principal, and punished accordingl}'. 
 
 '' Sec. 3. Every such accessor}-, when a crime is committed within 
 or without this State, by his aid or procurement in this State, may be 
 indicted and convicted at the same time as the principal, or before, or 
 after his conviction, and whether the principal is convicted or amena- 
 ble to justice or not, and punished as principal." 
 
 This statute abolishes the distinction between accessories before the 
 fact and principals ; by it all accessories before the fact are made prin- 
 cipals. As the acts of the principal are thus made the acts of the aC' 
 cesser}-, the latter may be charged as having done the acts himself, 
 and may be indicted and punished accordingly. Baxter v. People, 3 
 Gilm. 368 ; Bempsey v. People, 47 111. 323. 
 
 If, therefore, the defendants advised, encouraged, aided, or abetted
 
 434 SPIES V. PEOPLE. [chap. VI. 
 
 the killing of Degan, they are as guilty as though they took his life 
 with their own hands. If any of them stood by and aided, abetted, or 
 assisted in the throwing of the bomb, those of them who did so are as 
 guilty as though they threw it themselves. 
 
 It is charged that the defendants formed a common purpose, and 
 were united in a common design to aid and encourage the murder of 
 the policemen among whom the bomb was thrown. If the}' combined 
 to accomplish such murder bj' concerted action, the ordinary law of 
 conspiracy is applicable, and the acts and declarations of one of them, 
 done in furtherance of the common design, are, in contemplation of 
 law, the acts and declarations of all. This prosecution, however, is 
 not for conspirac}- as a substantive crime. Proof of conspiracy is onh- 
 proper so far as it may tend to show a common design to encourage 
 the murder charged against the prisoners. It may be introduced for the 
 purpose of establishing the position of the members of the combination 
 as accessories to the crime of murder. 
 
 The questions which thus present themselves at the threshold of 
 the case are these : Did the defendants have a common purpose or 
 design to advise, encourage, aid, or abet the murder of the police? Did 
 thev combine together and with others with a view to carrying that 
 purpose or design into effect ? Did they or either or any of them do 
 such acts or make such declarations in furtherance of the common pur- 
 pose or design as did actually have the effect of encouraging, aiding, 
 or abetting the crime in question ? . . . 
 
 It is apparent from this review of the evidence that just such an at- 
 tack was made at the Haymarket as was contemplated and arranged for 
 by the conspiracy of Monday night. First, a bomb was thrown among 
 the policemen ; next, shots were fired into their ranks by armed men, 
 belonging to the organization heretofore described and who had been 
 gathered ai'ound the wagon during the evening. In the order of time, 
 the shooting occurred a few seconds after the bomb exploded. This 
 was the order in which the onset with the two diflferent kinds of 
 weapons was to be made, according to the terms of the conspiracy. 
 The mode of attack as made corresponded with the mode of attack 
 as planned. 
 
 It is true that the plan adopted contemplated the throwing of a 
 homb into each station and then shooting Jown the police, as they 
 should come out. This was to be done, however, not only at the 
 North avenue station, but at the stations " in other parts of the cit}'." 
 The Desplaines street station was a station ?n one of the "other 
 pai'ts of the city," and was as much embraced within the scope of the 
 plan as the rest of the stations. It was in sight of the speakers' 
 wao"on, and onlv a short distance south of it. If a bomb had been 
 thrown into the station itself and the policemen had been shot down 
 while coming out, a part of the conspirac}' would have been literally 
 executed just as it was agreed upon. It could make no difference ia 
 the guilt of those who were parties to the conspiracy that the man
 
 SECT. VI.J SPIES V. PEOPLE. '^'ob 
 
 who threw the bomb and his confederates who fired the shots waited, 
 before doing their work, until the policemen in the station had left it 
 and had advanced some three hundred feet north of it. 
 
 If A hire B to shoot C at the Sherman House in the city of Chicago 
 on a certain night, but B, seeing C enter the Tremont House on the 
 same night, shoots him there, A is none the less guilty of aiding, 
 abetting, advising, and encouraging the murder of C. If there is 
 a conspiracy to kill policemen at a station house, but the agents of the 
 conspiracy kill the policemen a short distance away from the station 
 house, there is no such departure from the original design as to relieve 
 the conspirators of responsibility. 
 
 A plan for the perpetration of a crime or for the accomplishment of 
 any action, whether worthy or unworthy, can not always be executed 
 in exact accordance with the original conception. It must suffer some 
 change or modification in order to meet emergencies and unforeseen 
 contingencies. . . . 
 
 Lmgg : 
 
 The jury were warranted in believing from the evidence that the 
 plaintiff in error, Louis Lingg, was a party to the Monday night 
 conspirac}'. . . . 
 
 Here is a man, connected with a certain organization, ensfaged in 
 arming and drilling for a conflict with the poUce. He is experimenting 
 with dynamite and in the construction of bombs under the direction of 
 armed members of that organization. He makes bomb shells, fills 
 them with dynamite, takes them to the meeting place of armed mem- 
 bers of that organization, puts them where access to them can be 
 easily had, using such precautions as such dangerous explosives natu- 
 rally require. At once, certain of these armed members, such as the 
 two large men of the Lehr und Wehr Verein already spoken of, come 
 forward and take bombs and go their several ways. In a httle more 
 than an hour afterwards, one of these very bombs is thrown into a 
 crowd of policemen and explodes and kills one of them. Was not the 
 conduct of this man, who thus coolly and carefully prepared the 
 weapons for one definite class of men to use in the murder of another 
 definite class of men, marked by "deliberation," as that term is defined 
 in the authorities? 
 
 It was a fair conclusion from the evidence that Lingg knew that the 
 bombs he was making would be thrown among the police. It was a 
 fair conclusion from the evidence that he intended the bombs he 
 placed in the hall-way to be used by the members of the International 
 groups, not only in the interest of the general movement against the 
 police with which he was connected, but in the interest of the particu- 
 lar conspiracy that was concocted on Monday night. 
 
 Even if he did not know the name of the particular individual who 
 was to throw the bomb, he knew that it would be thrown by some 
 one belonging to the sections or groups already described, and this
 
 436 sriES V. people. [chap. vi. 
 
 was sufficient to affect liim with the guilt of advising, encouraging, aid- 
 ing, or abetting the crime charged in the indictment. 
 
 He ma}- not have l^nown what particular policeman would be killed, 
 whether Matthias J. Degan, or another. But when he opened the 
 loaded satchel at Netfs Hall on Tuesday night, that act, viewed in the 
 light of all the antecedent, attendant, and subsequent occurrences, was 
 virtually a designation of the body or class of men who were to be 
 attacked. When one of such class was killed, the guilt was the same 
 as though a person bearing a particular name had been pointed out as 
 tlie victim. 
 
 Even if he did not know that one of the bombs would be thrown on 
 that evening at a particular place called the Haymarket, it was suffi- 
 cient that he knew it was to be used at that point in the city, where 
 a collision should occur between the workingmen and the police. 
 Such a collision did occur at the Haymarket. . . . 
 
 Fielden : 
 
 There is evidence of a very distinct and positive character that 
 Fielden shot at the police. . . . 
 
 It is true that Degan was killed by the bomb that was thrown and 
 not by the shots that were fired. But the attack at the Haymarket 
 was a joint attack made by a number of persons with two different 
 kinds of weapons in pursuance of a previously arranged conspiracy. 
 When Fielden lent himself to the execution of that conspiracy by par- 
 ticipating in the joint attack, he was just as guilty of the murder 
 of Degan by reason of firing his pistol as though he had thrown the 
 bomb. If the man who threw the bomb and the twenty men whom 
 officer Hanley saw running into the alley had stood up together and 
 the one had thrown his bomb and the others had fired their shots all at 
 the same time into the ranks of the police, and one of the policemen 
 had at once fallen dead, would not each of the twenty men have been 
 as responsible as the bomb-thrower for the death of the man killed, 
 whether such death was caused by the bomb or by the shots ? All had 
 the murderous intent. All were using deadly weapons in pursuance of 
 a common design to destroy life. The conduct of Fielden at the Hay- 
 market, considered in connection with his acts prior thereto and with 
 all the other facts, as herein set forth, certainly warranted the jury in 
 finding that he was one of the conspirators. 
 
 Parsons : 
 
 The jury were warranted in believing from the evidence that the 
 defendant Parsons was associated with the man who threw the bomb 
 and the men who fired the shots at the Haymarket, in a conspiracy to 
 bring about a social revolution in Chicago by force on or about May 1, 
 1886, or, in other words, to destroy the police and militia on or about 
 that date with bombs and revolvers or rifles. It is well settled that,
 
 SECT. VI.] SPIES V. PEOPLE. 437 
 
 when the fact of a conspirac}' is once established, any act of one of the 
 conspirators in the prosecution of the enterprise is considered the act 
 of all. Nudd v. Burrows, 91 U. S. 426 ; 1 Wharton's Am. Crim. Law 
 (6th ed.), sec. 702; 3 Greenleaf on Evidence, sec. 94. 
 
 It makes no difference, that Parsons may not have been present ia 
 the basement of Griefs Hall when the Monday- night conspirac}' was 
 planned. He belonged to the armed sections, whose representatives 
 entered into that conspiracy and was one of the absent members, who 
 were to be informed of its provisions. One of those provisions was 
 the holding of a meeting at the Ha3market. When he went to that 
 meeting in obedience to a summons from Rau, and there made an in- 
 cendiary speech, he joined the others in their execution of the con- 
 spiracy and thereb}- became a part}' to it. " Individuals who, though 
 not specifically parties to the killing, are present and consenting to the 
 assemblage, by whom it is perpetrated, are principals when the killing 
 is in pursuance of the common design." Wharton on Homicide (2d 
 ed.), sec. 201 ; Wharton's Am. Law of Homicide, 345, 346, etc. ; 
 Regina v. Jackson, 7 Cox, C. C. 357 ; Commonwealth v. Dale}', 4 
 Pa. L. J. 150. 
 
 The plan adopted on Monday night was merel}' a specific mode of 
 carrying out the more general conspirac}' to which Parsons and those 
 present on Monday nigbt were all parties. The adoption of the Mon- 
 day night plot was the act of those who were co-conspirators with 
 Parsons. It was therefore his act. He had advised the use of bombs 
 and arms against the police on or about May 1. The men who met 
 Monday night merely indicated more specificall}' the time when and 
 places where and mode in which such bombs and arms should be used, 
 so as to be most effective. " A man may be guilt}' of a wrong which 
 he did not specifically intend, if it came naturally or even accidentally 
 from some other specific, or a general, evil purpose. When, therefore, 
 persons combine to do an unlawful thing, if the act of one proceeding 
 according to the common plan terminates in a criminal result, though 
 not the particular result meant, all are liable." 1 Bishop on Crim. 
 Law, 636, and cases cited. 
 
 " There might be no special malice against the party slain, nor delib- 
 erate intention to hurt him ; but if the fact was committed in prose- 
 cution of the original purpose, which was unlawful, the whole party 
 will be involved in the guilt of him who gave the blow." (Foster, 
 p. 351, sec. 6.) " Where there is a conspiracy to accomplish an un- 
 lawful purpose, and the means are not specifically agreed upon or 
 understood, each conspirator becomes responsible for the means used 
 by any co-conspirator in the accomplishment of the purpose in which 
 they are all at the time engaged." State v. McCahill, 72 Iowa, 111. 
 
 He who enters into a combination or conspiracy to do such an un- 
 lawful act as will probably I'esult in the unlawful taking of human life, 
 must be presumed to have understood the consequences which might 
 reasonably be expected to flow from carrying it into effect, and also to
 
 438 SPIES V. PEOPLE [chap. VI. 
 
 have assented to the doing of whatever would reasonably or probably 
 be necessary to accomplish the objects of the conspiracy, even to the 
 taking of life. 1 Wharton on Crim. Law (9th ed.), sec. 225 a ; Bren- 
 nan et al. v. The People, 15 111. 511 ; Hanna v. The People, 86 id. 243 ; 
 Lamb v. The People, 96 id. 74, 
 
 Jnstruction. 
 
 According to the theory of this instruction/ the defendants conspired 
 to excite certain classes to tumult, riot, use of weapons, and taking of 
 life, "as a means to carry their designs and purposes into effect." 
 The instruction does not specify what those designs and purposes are, 
 because they had been stated in the two preceding instructions to be 
 the bringing about of a social revolution and the destruction of the 
 authorities of the cit}-. The ordinary workingman had two purposes 
 in view, first, to get an eight-hour day of labor, second, to keep the 
 police from interfering to })rotect non-union laborers against strikers. 
 The defendants in this case cared nothing about the eight-hour move- 
 ment or the contentions between union and non-uiiion men. Thej- 
 lookeil beyond to the social revolution. They sought to make use 
 of the excitement among the workingmen over the eight-hour moA'e- 
 ment and over the attacks of police upon strikers, in order to create 
 riot and tumult and thus precipitate the social revolution. The stirring 
 up of riot and tumult was with them a means to an end. There is 
 testimony tending to support this view. Tlie men who excited the 
 tumult and riot by print and speech ma}' have had a different end in 
 view from that sought by the classes whom they so excited. But the}'- 
 
 1 If these defendants, or any two or more of them, conspired together, with or not 
 with any other person or persons, to excite the people or classes of the people of this 
 city to sedition, tumult, and riot, to use deadly weapons against and talce tlie lives oJ 
 other persons, as a means to carry their designs and purposes into effect, and in pur 
 suauce of such conspiracy, and in furtherance of its objects, any of the persons so 
 conspiring, publicly, by print or speech, advised or encouraged the commission of 
 murder, without designating time, place, or occasion at which it should be done, and in 
 pursuance of, and induced by such advice or encouragement, murder was committed, 
 then all of such conspirators are guilty of such murder, whetlier the person who per- 
 petrated such murder can l)e identified or not. If such murder was committed in pur- 
 suance of sucli advice or encouragement, and was induced thereby, it does not matter 
 what change, if any, in the order or condition of society, or what, if any, advantage to 
 themselves or others the conspirators proposed as the result of their conspiracy; nor 
 does it matter whether such advice and encouragement had been frequent and long- 
 continued or not, except in determining whether the perpetrator was or was not acting 
 in pursuance of such advice or encouragement, and was or was not induced tliereby to 
 commit the murder. If there was such conspiracy as in this instruction is recited, 
 such advice or encouragement was given, and murder committed in pursuance of and 
 induced thereby, then all such conspirators are guilty of murder. Kor does it matter, 
 if there was such a conspiracy, how impracticable or impossible of success its end and 
 aims were, nor how foolish nor ill-arranged were the plans for its execution, except 
 as bearing upon the question whether there was or was not such conspiracy.
 
 SECT. VI.] PEOPLE V. ELDER. 439 
 
 were none the less responsible for murder that resulted from their aid 
 and encouragement. 
 
 If the defendants, as a means of bringing about tlie social revolution 
 and as a part of the larger conspiracy to effect such revolution, also 
 conspired to excite classes of workingmen in Chicago into sedition, 
 tumult, and riot and to the use of deadly weapons and the taking 
 of human life, and for the purpose of producing such tumult, riot, use 
 of weapons, and taking of life, advised and encouraged such classes by 
 newspaper articles and speeches to murder the authorities of the city, 
 and a murder of a policeman resulted from such advice and encourao-e- 
 ment, then defendants are responsible therefor. 
 
 Judgment affirmed. 
 
 PEOPLE V. ELDER. 
 
 Supreme Court of Michigan. 1894. 
 
 {Reported 100 Mich. 515.] 
 
 Hooker, J. Respondent appeals from a conviction of manslaugh- 
 ter. He was a bartender, and, in an altercation with the deceased, 
 struck him and knocked him down, whereupon one Nixon, a bystander, 
 kicked him, from which kick death resulted. The theory of the prosecu- 
 tion was that there was preconcert of action on the part of Nixon and 
 the respondent. The respondent denies this ; claiming that he had 
 no reason to expect an}- assistance from Nixon, or to anticipate his 
 interference, and that he did not induce it. 
 
 In his charge to the jury, the trial judge said, "On the part of the 
 defgndant, I give you the instructions which I now read." This was 
 followed b}- the reading of several requests, in which the law was 
 stated correctlv upon the subject. The fifth was as follows : 
 
 "If it shall appear to you from the evidence that Polder did not him- 
 self inflict the blow or do the injur}- which resulted in the death of 
 Lowden, and that Nixon, by his own motion, while the encounter 
 between Elder and Lowden was going on, rushed in, uninvited by Elder, 
 and inflicted the injuries which produced Lowden's death, then you 
 must acquit the prisoner." 
 
 To this the court added as follows : 
 
 "Unless you find that his assault upon Lowden contributed and pro- 
 duced the conditions that deprived the deceased of the power of resist- 
 ance, and enabled Nixon the better to inflict great bodily injury on the 
 deceased, if you find that the cause of death was the wounds or injury 
 he received on that occasion." 
 
 The requests upon the part of the respondent were followed by those 
 of the prosecution, twenty-two in number, most of which were given, and 
 which seem to have concluded the charge. The first was as follows:
 
 440 PEOPLE V. ELDER. [CHAP. VL 
 
 "If you find that the respondent assaulted Lowden, and felled him 
 to the floor, putting the body of the deceased in such a position that 
 he was helpless to protect himself from Nixon, and rendered it possible 
 for Nixon to kick him, such act upon the respondent's part was unlaw- 
 ful ; and if decedent's death was caused by the defendant's act, the 
 kicking given by Nixon, or both combined, then they are equally guilty 
 of the death caused." 
 
 This request, and the addition to respondent's fifth request, were in 
 direct contradiction of the earlier requests given upon respondent's 
 part, wherein the jury were instructed that the respondent could not be 
 convicted if the death was caused bj' acts of Nixon, for which respond- 
 ent was not responsible, and which he did not induce or anticipate. 
 The discussion of this subject, which appears to have been the impor- 
 tant point in the case, was left with the requests and the addition 
 which has been mentioned. 
 
 We fear that the jurors were misled by the first request of the prose- 
 cution, which in plain terms told them they might convict the respond- 
 ent it he had "assaulted Lowden and felled him to the floor, putting 
 his body in such a position that he was helpless to protect himself from 
 Nixon, and rendered it possible for Nixon to kick hitii," if such kick 
 caused death. Equally faulty- was the implication contained in the 
 addition to respondent's fifth request, — that if respondent's assault 
 " deprived the deceased of the power of resistance, and enabled Nixon 
 the better to inflict great bodily injury on the deceased," a conviction 
 might follow. 
 
 The case of People v. Carter, 96 Mich. 583, which seems to have 
 been relied upon by the prosecution, was quite a different case from 
 this. In that case the respondent felled the deceased by a blow while 
 he was engaged in a fight with another, whereupon that other im,medi- 
 ately kicked him. It was held that if the jury could find that the re- 
 spondent volunteered to aid another in his fight, for the purpose of 
 aiding him to whip the deceased, they were joint wrong-doers, respon- 
 sible for each other's acts. In this case the respondent's contention 
 was that he was not a volunteer in another's cause, but that the other 
 volunteered in his, without his request or expectation. He was entitled 
 to have his theory properly submitted to the jur}'. 
 
 The judgment must be reversed, and a new trial ordered. 
 
 The other Justices concurred.
 
 SECT. VI.J STATE V. TAYLOR. 441 
 
 STATE V. TAYLOR. 
 
 Supreme Court of Vermont. 1896. 
 
 [Reported 70 Vt. 1.] 
 
 Indictment for an assault with intent to kill and murder. Trial by 
 jury at the May Term, 1895, Windsor County, Taft, J., presiding. 
 Verdict and judgment of guilty, and sentence imposed at the respond- 
 ents' request. The respondents excepted. 
 
 MuNSON, J.^ The alleged assault was committed upon Paul Tinkham, 
 constable of Rochester, and three persons acting under him, while they 
 were effecting an arrest of the respondents and two others, without a 
 warrant, on suspicion of felony. 
 
 We think there was also error in the instruction given as to the 
 liability of all for the act of one. The court charged in substance that 
 if the four persons whom the officers were attempting to arrest were 
 acting together with a common purpose of resisting arrest, and any one 
 of the four shot an officer in the execution of that design and with an 
 intent to kill, and the other three were present, assisting in the assault, 
 all would be guilty of an assault with that intent. Assuming that the 
 charge as a whole was sufficient to require the finding of an actual in- 
 tent to take life on the part of one, it will be seen that the liability of 
 the others for an assault with intent to take life is made to depend 
 sole!}' upon the illegality of the resistance. It is doubtless true that 
 if all were combined for an unlawful resistance to the officers, and an 
 officer had been killed by one of their number, all would have been 
 guilty of the killing. But no one was killed ; and the liability of the 
 actual assailant, other than for a simple assault, depended upon the 
 existence of a specific intent to kill. We think the jur}- could not be 
 permitted to return a verdict of guilty of an assault with intent to mur- 
 der against all, on the mere finding of a common purpose to resist 
 arrest. It would doubtless be difl!'erent if it were found that they acted 
 upon a common understanding that the}' would do whatever might be 
 necessarj' to avoid arrest. 
 
 1 Only so much of the case as discusses the guilt of the accomplices is given. — Ed,
 
 442 CKIMES AGAINST THE PEKSON. [CHAP. VII. 
 
 CHAPTER VII. 
 CRIMES AGAINST THE PERSON. 
 
 SECTION I. 
 
 General Principles. 
 
 I Kale, Plea.*/ '/ the Crowu, 425. To make up the crime of homicide 
 OV warder tlier*^ 'aust be these three concurring circumstances : — 
 
 J. Tlie party must be killed. Anciently indeed a barbarous assault 
 with ai: ivitent to murder, so that the party was left for dead, but j'et 
 reco'.ered again, was adjudged murder and petit treason (15 E. 2, Coron. 
 383) ; but that holds not now, for the stroke without the death of the 
 party stricken, nor the death without the stroke or other violence 
 makes not the homicide or murder, for the death consummates the 
 crime. ... 
 
 Now what shall be said a killing and death within the year and 
 day? . . . 
 
 If a man, either by working upon the fancy of another or possibly by 
 harsh or unkind usage, puts another into such passion of grief or fear 
 tliat the part}' either dies suddenly, or contracts some disease whereof 
 he dies, though, as the circumstances of the case ma}' be, this ma}' be 
 murder or manslaughter in the sight of God, yet in foro hiunmio it 
 cannot come under the judgment of felony, because no external act of 
 violence was offered whereof the common law can take notice, and 
 secret things belong to God ; and hence it was, that before the statute 
 of 1 Jac. cap. 12, witchcraft or fascination was not felony, because it 
 wanted a trial, though some constitutions of the civil law make it 
 penal. ... 
 
 There are several ways of killing : 1. By exposing a sick or weak per- 
 son or infant unto the cold to the intent to destroy him (2 E. 3, 18 b), 
 whereof he dieth. 2. By laying an impotent person abroad, so that he 
 may be exposed to and receive moi'tal harm ; as laying an infant in an 
 orchard and covering it with leaves, whereby a kite strikes it, and kills 
 it. 6 Eliz., Crompt. de Pace 24 ; Dalt. ch. 93. 3. By imprisoning a 
 man so strictly that he dies, and therefore where any dies in gaol, the 
 coroner ought to be sent for to enquire the manner of his death. 4. By 
 starving or famine. 5. By wounding or blows. 6. By poisoning, 7. 
 By laying noisome and poisonous filth at a man's door, to the intent by
 
 SECT. I.] CKIMES AGAINST THE PERSON. 443 
 
 a poisonous air to poison him (Mr. Dalton, ch. 93, out of Mr. Coke's 
 reading). 8. By strangling or suffocation. Moriendi millefigurae. 
 
 A man infected witli tlie plague, having a plague-sore running upon 
 him, goes abroad ; this is made felon}- by the statute of 1 Jac. cap. 31 , but 
 is now discontinued ; but what if such person goes abroad, to the intent 
 to infect another, and another is thereby infected and dies? Whether 
 this be not murder b}' the common law might be a question ; but if no 
 such intention evidently appears, though de facto b}' his conversation 
 another be infected, it is no felony b}- the common law, though it be a 
 great misdemeanor ; and the reasons are : 1. Because it is hard to dis- 
 cern whether the infection arise from the party or from the contagion 
 of the air, — it is God's arrow ; and 2. Nature prompts ever}- man, in what 
 condition soever, to preserve himself, which cannot be well without 
 mutual conversation, 3. Contagious diseases, as plague, pestilential 
 fevers, small-pox, &c., are common among mankind b}- the visitation ; 
 and the extension of capital punishments in cases of this nature would 
 multiply severe punishments too far, and give too great latitude and 
 loose to severe punishments. 
 
 II. The second consideration that is common both to murder and 
 manslaughter is, who shall be said a person, the killing of whom shall 
 be said murder or manslaughter. 
 
 If a woman be quick or great with child, if she takes or another gives 
 her any potion to make an abortion, or if a man strike her, whereby- th« 
 child within her is killed, it is not murder nor manslaughter by the law 
 of England, because it is not yet in rerum natura, though it be a gre^ 
 crime, and by the judicial law of Moses was punishable with death 
 nor can it legall}- be made known, whether it were killed or not. 22 B 
 3, Coron. 263. So it is, if after such child were born alive, and bap 
 tized, and after die of the stroke given to the mother, this is not homi 
 cide. 1 E. 3, 23 b, Coron. 146. ... If a man kills an alien enemj 
 within this kingdom, yet it is felony, unless it be in the heat of war, an? 
 in the actual exercise thereof. 
 
 III. The third inquiry is, who shall be said a person killing. . . . 
 If there be an actual forcing of a man, as if A. by force take the arn 
 
 of B. and the weapon in his hand, and therewith stabs C. whereof ht 
 dies, this is murder in A. but B. is not guilty. Dalt. cap. 93, p. 242 
 Plowd. Com. 19 a. But if it be only a moral force, as by threatening,, 
 duress, or imprisonment, «fec., this excuseth not. 
 
 1 Hawkins, Pleas of the Crown, ch. 16, sect. 2. Rape is an offence 
 in having unlawful and carnal knowledge of a woman by force and 
 against her will. 
 
 Ibid., ch. 19. Robbery is a felonious and violent taking away from 
 the person of another goods or money to axiy value, putting him in fear. 
 
 Ibid., ch. 15, sect. 1, 2. Such hurt of any part of a man's body 
 whereby he is rendered less able, in fighting, either to defend himself 
 or to annoy his adversary, is properly a maim. And therefore the cut-
 
 444 REGINA V. RENSHAW. [cHAP. VII. 
 
 ting off or disabling or weakening a man's hand or finger, or striking 
 out his eye or fore-tooth, or castrating him, are said to be maims ; but 
 the cutting off his ear or nose, &c., are not esteemed maims, because 
 they do not weaken, but only disfigure him. 
 
 Ibid., eh. 15, sect. 1, 2. An assault is an attempt, or offer, with 
 force and violence, to do a corporal hurt to another ; as by striking at 
 him with or without a weapon ; or presenting a gun at him at such a 
 distance to which the gun will carry ; or pointing a pitchfork at him, 
 standing within the reach of it ; or by holding up one's fist at him ; or 
 by any other such-like act done in an angry, threatening manner: and 
 from hence it clearly follows that one charged with an assault and 
 battery may be found guilty of the former, and yet acquitted of the 
 latter. But every battery includes an assault ; therefore on an indict- 
 ment of assault and battery in which the assault is ill laid, if the de- 
 fendant be found guilty of the battery it is suflflcient. Notwithstanding 
 many ancient opinions to the contrary, it seems agreed at this day that 
 no words whatsoever can amount to an assault. 
 
 It seems that any injurv whatsoever, be it never so small, being 
 actually done to the person of a man in an angry, revengeful, rude, or 
 insolent manner, as by spitting in his face, or any way touching him in 
 anger, or violently jostling him out of the wa}', are batteries in the eye 
 of the law. 
 
 SECTION II. 
 
 Assault and Battery. 
 
 REGINA V. RENSHAW. 
 
 Sussex Assizes. 1847. 
 
 [Reported 2 Cox C. C. 285.] 
 
 Maria Renshaw was indicted for a misdemeanor. The indictment 
 contained also a count for a common assault.^ 
 
 Attree, for tlie prosecution, stated that the prisoner, having been 
 delivered of [a bastard] child ten days before, on the 26th of June left 
 the child, swathed in a large piece of flannel at the bottom of a dry 
 ditch, in a field in the parish of Bexhill, and then herself departed to 
 Hastings, a place ten miles distant, where she was afterwards found. 
 There was a pathway in the field by the ditch, and a lane separated 
 from the ditch by a hedge, neither of which was much frequented 
 The child was found alive. 
 
 The facts having been proved — 
 
 1 Only so much of the case as involves the question of assault is given. — Ed.
 
 SECT. II.] COMMONWEALTH V. WHITE. 445 
 
 Parke, B. (to the jury). There were no marks of violence on the 
 child, and it does not appear, in the result, that the child actually 
 experienced any injury or inconvenience, as it was providentially 
 found soon after it was exposed ; and therefore, although it is said in 
 some of the books that an exposure to the inclemency of the weather 
 may amount to an assault, yet if that be so at all, it can only be 
 when the person exposed suffers a hurt or injury of some kind or other 
 from the exposure. 
 
 COMMONWEALTH v. WHITE. 
 Supreme Judicial Court of Massachusetts. 1872. 
 
 [Reported 110 Massachusetts, 407.] 
 
 Complaint to a trial justice, alleging that the defendant " with force 
 and arms in and upon the body of Timothy Harrington an assault did 
 make, and him did then and there threaten to shoot with a gun, which 
 he then and there pointed and aimed at said Harrington." 
 
 At the trial, on appeal, in the Superior Court, before Pitman J., the 
 Commonwealth introduced evidence tending to show that the defend- 
 ant was driving in a wagon along a highway, which Harrington, one 
 Sullivan, and others were repairing; that Sullivan called out to the 
 defendant to drive in the middle of the road ; that the defendant made 
 an offensive reply ; that thereupon Sullivan came toward the defend- 
 ant and asked him what he meant ; that Sullivan and Harrington were 
 about fifteen feet from the defendant, who was moving along all the 
 time ; that the defendant took up a double-barrel gun which he had in 
 the wagon, pointed it towards Sullivan and Harrington, took aim at 
 them, and said, "I have got something here that will pick the eyes 
 of you." This was all the evidence of declarations or threats of the 
 defendant at the time of the alleged assault. 
 
 Sullivan testified that he had no fear and did not suppose the de- 
 fendant was going to do any harm ; but there was evidence tending to 
 show that Harrington was put in fear. The defendant testified that 
 the gun was not loaded. 
 
 The defendant asked the judge to rule that the complaint could 
 not be sustained because the Commonwealth had failed to prove the 
 offence as alleged in the complaint ; but the judge refused so to rule, 
 and ruled that it was not necessary to prove a threat to shoot as set 
 forth in the complaint. 
 
 The defendant also asked the judge to instruct the jury "that the 
 facts testified to did not constitute an assault; that at the time, the 
 defendant must have had an intention to do some bodily harm to Har- 
 rington and the present ability to carry his intention into execution ; 
 and that the whole evidence would not warrant the jury in finding a
 
 446 PEOPLE V. MOORE. [CHAP. VII. 
 
 verdict against the defendant." But the judge refused so to instruct 
 the jury, and instructed them " that an assault is any unlawful physical 
 force parti}' or fullj- put in motion, which creates a reasonable appre- 
 hension of immediate physical injury ; and that if the defendant, 
 within shooting distance, menacingly pointed at Harrington a gun, 
 which Harrington had reasonable cause to believe was loaded, and 
 Harrington was actuall}- put in fear of immediate bodily injur}' there- 
 from, and the circumstances of the case were such as ordinarily to 
 induce such fear in the mind of a reasonable man, that then an assault' 
 was committed, whether the gun was in fact loaded or not." The jury 
 returned a verdict of guilty, and the defendant alleged exceptions. 
 
 Wells, J.-^ The instructions required the jury to find that the acts 
 of the defendant were done "menacingly;" that Harrington had 
 reasonable cause to believe the gun pointed at him was loaded, and 
 was actually put in fear of immediate bodil}' injury therefrom ; and 
 that the circumstances were such as ordinarily to induce such fear in 
 t'de mind of a reasonable man. 
 
 Instructions in accordance with the second ruling pra3'ed for would 
 have required the jury also to find that the defendant had an intention 
 to do some bodily harm and the present abilit}' to carr}' his intention 
 into execution. Taking both these conditions literalh', it is difficult to 
 see how an assault could be committed without a batter}' resulting. 
 
 It is not the secret intent of the assaulting party nor the undisclosed 
 fact of his ability or inability to commit a battery, that is material ; but 
 what his conduct and the attending circumstances denote at the time 
 to the party assaulted. If to him they indicate an attack, he is justi- 
 fied in resorting to defensive action. The same rule applies to the 
 proof necessary to sustain a criminal complaint for an assault. It is 
 the outward demonstration that constitutes the mischief which is pun- 
 ished as a breach of the peace.^ Exceptions overruled. 
 
 PEOPLE V. MOORE. 
 
 Supreme Court of New York. 1888. 
 
 ^Reported .50 Hun, 356.] 
 
 Landon, J.' The material facts are not in dispute. The main ques- 
 tions are whether the conceded facts show that the defendant com- 
 
 ^ Arguments of counsel aud part of the opinion are omitted. 
 
 '•2 Ace. State v. Shepard, 10 la. 126; State v. Smith, 2 Humph, 457. Contra, 
 Chapman v. State, 78 Ala. 463 ; State v. Sears, 86 Mo. 169; State v. Godfrey, 17 Or. 
 300; aud .see a learned note, 2 Green Cr. L. Rep. 271. — Ed. 
 
 3 Only so much of the opinion is given as involves the question of assault.
 
 SECT. II.] PEOPLE V. MOORE. 447 
 
 mitted an assault upon the complainant, and if so, -whether the assault 
 was justifiable. 
 
 The defendant was in the employ of the Burden Ore and Iron 
 Company. This company owns a large tract oC land in Livingston, 
 Columbia county, and has, in the development of its business, created 
 upon its lands, the so-called village of Burden. This consists of the 
 company's ofiices, shops, sixty or seventy tenement-houses, occupied 
 by its servants and their families, a public store, schoolhouse and 
 chapel. A post-office is established there. An open road or street, 
 wholly upon the company's lands, leads from the public highway to 
 the village. The tenement-houses of the village are in rows upon both 
 sides of the village streets. All these streets and roads are open, and 
 to every appearance are public highways. The company, however, 
 retains title to the land, and the public authorities have not claimed 
 or assumed any authority over them. 
 
 The complainant Snyder was a peddler of milk and vegetables and 
 had customers for his supplies in this village. The company desired 
 him to discontinue his traffic in the village, and to give it to another 
 person. It notified him that the village and its streets were its private 
 property, and that he must not sell milk there any more. He refused 
 to discontinue. The company directed the defendant to keep him out 
 of the village, but to use no more force than was necessary for the 
 purpose, and to be careful not to do him personal injury. The defend- 
 ant, in pursuance of this direction, assisted by one Ahlers, on the 14th 
 day of March, 1887, intercepted Snyder upon the road leading from 
 the pubhc higliway to the village. Snyder was alone, was seated in 
 his sleigh driving his team of horses on his way to deliver milk to his 
 customers, and especially some apples which had been ordered by one 
 of them. The defendant told Snyder he was trespassing and that he 
 had orders to stop him. Snyder attempted to drive on. The defend- 
 ant then seized the lines in front of Snyder's hands, told Ahlers to 
 take the horses by the heads and turn them around, which Ahlers 
 immediately did, the defendant at the same time remarking that ''the 
 easiest way is the best way." When the team and sleigh, with Snydei 
 in it, had been turned around, defendant barred the passage towards 
 the village with an iron pipe. Snyder thereupon drove away. 
 
 Defendant urges that this was no assault, for the reason that there 
 was no intention to hurt Snyder; and that he did not lay his hands 
 upon him. It is plain, however, that the force which he applied to 
 the horses and sleigh just as effectually touched the person of Snyder, 
 as if he had taken him by his ears or shoulders and turned him right 
 about face. The horses and sleigh were the instruments with which he 
 directed and augmented his personal and physical force against, and 
 upon the body of Snyder. Snyder did receive bodily harm. One 
 receives bodily harm, in a legal sense, when another touches his person 
 against his will with physical force, intentionally hostile and aggressive, 
 or projects such force against his person. Here, for the moment, Sny-
 
 448 PEOPLE V. MOORE. [CHAP. VII. 
 
 der was deprived by the defendant of his own control of his own person ; 
 and he was controlled, intimidated, and coerced by the hostile, aggres- 
 sive physical force of the defendant. The offer to prove that bodily 
 harm was not intended was made in the face of the defendant's testi- 
 mony that he intended to do just what he did do. The obvious purpose 
 was to prove tliat there was no intention to wound or bruise the 
 defendant, or cause him physical pain. So long as this was not 
 claimed or proved on the part of the prosecution, disproof of it was 
 properly rejected for the reason that such disproof would have raised 
 or suggested a false and immaterial issue, tending possibly to the 
 miscarriage of justice. 
 
 We assume that if Snyder was a trespasser the assault was justifi- 
 able, for no more force was used than was reasonably necessary to 
 eject him from the premises ; but he was not a trespasser. The streets 
 leading to and about this village were made and opened by the Burden 
 Iron and Ore Company for such public use as was incident to the 
 wants, convenience, and happiness of the people residing there. To 
 the extent of this public use the company subjected its private property 
 to the law which regulates public rights. Munn v. Illinois, 94 U. S., 
 1 13. No doubt it can depopulate its village and restore its lands to 
 the solitude of its exclusive private dominion ; but as long as it enjoys 
 the benefits of public association and communication it must accept 
 the burdens necessarily and properly incident to them. By reserving 
 the legal title to the thoroughfares of its village, it does not reserve 
 autocratic powers over the people residing along them. To prevent 
 the members of its community from buying supplies of Snyder, or of 
 any tradesman not nominated by the company, would be to introduce 
 a condition of vassalage inconsistent with our free institutions. If 
 these families may buy of Snyder, then he may deliver his wares to 
 them, and use for the purpose the appropriate thoroughfares. The 
 assault was, therefore, not justifiable.
 
 SBCT. III.] COMMONWEALTH V. BURKE. 449 
 
 SECTION III 
 
 Mape. 
 
 COMMONWEALTH v. BURKE 
 
 Supreme Judicial Coukt of Massachusetts. 1870. 
 
 [Reported 105 Massachusetts, 376.] 
 
 Gray, J. — The defendant has been indicted and convicted for aiding 
 and assisting Dennis Green in committing a rape upon Joanna Caton. 
 The single exception taken at the trial was to the refusal of the presid- 
 ing judge to rule that the evidence introduced was not sufficient to 
 warrant a verdict of guilty. The instructions given were not objected 
 to, and are not reported in the bill of exceptions. The only question 
 before us therefore is, whether, under aii}^ instructions applicable to 
 the case, the evidence would support a conviction. 
 
 That evidence, which it is unnecessary to state in detail, was sufficient 
 to authorize the jury to find that Green, with the aid and assistance of 
 this defendant, had carnal intercourse with Mrs. Caton, without her 
 previous assent, and while she was, as Green and the defendant both 
 knew, so drunk as to be utterly senseless and incapable of consenting, 
 and with such force as was necessar}^ to efl^ect the purpose. 
 
 All the statutes of England and of Massachusetts, and all the text- 
 books of authority which have undertaken to define the crime of rape, 
 have defined it as the having carnal knowledge of a woman by force 
 and against her will. The crime consists in the enforcement of a 
 woman without her consent. The simple question, expressed in the 
 briefest form, is. Was the woman willing or unwilling? The earher and 
 more weighty authorities show that the words " against her will," in 
 the standard definitions, mean exactly the same thing as " without her 
 consent ; " and that the distinction between these phrases, as applied 
 to this crime, which has been suggested in some modern books, is 
 unfounded.
 
 450 COMMONWEALTH V. BURKE. [CHAP. VII. 
 
 The most ancient statute upon the subject is that of Westm. I. c. 13, 
 making rape (which had been a felony at common law) a misdemeanor, 
 and declaring that no man should " ravish a maiden within age, neither 
 by her own consent, nor without her consent, nor a wife or maiden of 
 full age, nor other woman, against her will," on penalty of fine and 
 imprisonment, either at the suit of a party or of the king. The St. of 
 Westm. II. c. 34, ten years later, made rape felony again, and provided 
 that if a man should "ravish a woman, married, maiden, or otlier 
 woman, where she did not consent, neither before nor after," he should 
 be punished with death, at the appeal of the party; "and likewise, 
 where a man ravisheth a woman, married lady, maiden, or other woman, 
 with force, although she consent afterwards," he should have a similar 
 sentence upon prosecution in behalf of the king. 
 
 It is manifest upon the face of the Statutes of Westminster, and is 
 recognized in the oldest commentaries and cases, that the words " with- 
 out her consent" and "against her will" were used synonymously; 
 and that the second of those statutes was intended to change the 
 punishment onl}-, and not the definition of the crime, upon any indict- 
 ment for rape — leaving the words " against her will," ^s used in the 
 first statute, an accurate part of tlie description. Mirror, c. 1, § 12; 
 c. 3, § 21 ; c. 5, § 5 ; 30 & 31 Edw. I. 529 532 ; 22 Edw. IV. 22 ; 
 Staunf P. C. 24 a. Coke treats the two plirases as equivalent ; for he 
 says : " Rape is felony by the common law declared by parliament, for 
 the unlawful and carnal knowledge and abuse of any woman above the 
 age of ten years against her will, or of a woman child under the age of 
 ten years with her will or against her will ; " although in the latter case 
 the words of the St. of Westm. I. (as we have already seen) were 
 " neither by her own consent, nor without her consent." 3 Inst. 60. 
 Coke elsewhere repeatedly' defines rape as "the carnal knowledge of a 
 woman by force and against her will." Co. Lit. 123 b ; 2 Inst. 180. A 
 similar definition is given by Hale, Hawkins, Comyn, Blackstone, East, 
 and Starkie, who wrote while the Statutes of Westminster were in force ; 
 as well as b\' the text-writers of most reputation since the St. of 9 Geo. 
 
 IV. c 31, I'epealed the earlier statutes, and, assuming the definition of 
 the crime to be well established, provided simply that "every person 
 convicted of the crime of rape shall suflfer death as a felon." 1 Hale P. 
 C. 628; 1 Hawk. c. 41 ; Com. Dig. Justices, S. 2 ; 4 Bl. Com. 210; 
 1 East P. C. 434; Stark. Crim. PL (2d ed.) 77, 431; 1 Russell on 
 Crimes (2d Am. ed.), 556, (7th Am. ed.) 675 ; 3 Chit. Crim. Law, 810 ; 
 Archb. Crim. PI. (10th ed.) 481 ; 1 Gabbett Crim. Law, 831. There 
 is authority for liolding that it is not even necessarj' that an indictment, 
 which alleges that the defendant "feloniously did ravish and carnally 
 know " a woman, should add the words " against her will." 1 Hale P. 
 C. 632; Harman v. Commonwealth, 12 S. & R. 69 ; Commonwealth 
 
 V. Fogerty, 8 Gray, 489. However that may be, the office of those 
 words, if inserted, is simply to negative the woman's previous consent. 
 Stark. Crim. PI. 431 note.
 
 SFCT. Iir.J COMMONWEALTH V. BURKE. 451 
 
 In the leading modern English case of The Qneen v. Camplin, the 
 great niajorit}- of the English judges held that a man who gave intoxi- 
 cating liquor to a girl of thirteen, for the purpose, as the jury found, 
 " of exciting her, not with the intention of rendering her insensible, 
 and then having sexual connection with her," and made her quite 
 drunk, and, while she was in a state of insensibilit}-, took advantaoe of 
 it, and ravished her, was guilt}' of rape. It appears indeed by the 
 judgment delivered by Patteson, J., in passing sentence, as reported in 
 1 Cox Crim. Cas. 220, and 1 C. «fe K. 746, as well by tlie contem- 
 poraneous notes of Parke, B., printed in a note to 1 Denison, 92, and 
 of Alderson, B., as read by him in The Queen v. Page, 2 Cox 
 Crim. Cas. 133, that the decision was influenced by its having been 
 proved at the trial that, before the girl became insensible, the man 
 had attempted to procure her consent, and had failed. But it further 
 appears by those notes tliat Lord Denman, C. J., Parke, B., and Pat- 
 teson, J., thought that the violation of any woman without her con- 
 sent, while she was in a state of insensibility and had no power over 
 her will, by a man knowing at the time that she was in that state, 
 was a rape, whether such state was caused by him or not ; for example, 
 as Alderson, B., adds, "in the case of a woman insensibly drunk in 
 the streets, not made so by the prisoner." And in the course of the 
 argument this able judge himself said that it might be considered 
 against the general presumable will of a woman, that a man should 
 have unlawful connection with her. The later decisions have estab- 
 lished the rule in England that unlawful and forcible connection with a 
 woman in a state of unconsciousness at the time, whether that state 
 has been produced by the act of the prisoner or not, is presumed to be 
 without ber consent, and is rape. The Queen v. Eyan, 2 Cox Crim. 
 Cas. 115; Anon, by Willes, J., 8 Cox Crim. Cas. 134; Regina v. 
 Fletcher, ib. 131; s. c. Bell, 63; Regina v. Jones, 4 Law Times 
 (n. s.) 154; The Queen v. Fletcher, Law Rep. 1 C. C. 39; s. c. 10 
 Cox Crim. Cas. 248 ; The Queen v. Barrow, Law Rep. 1 C. C. 156 ; 
 s. c. 11 Cox Crim. Cas. 191. Although in Regina v. Fletcher, ^ib^ 
 supra, Lord Campbell, C. J. (ignoring the old authorities and the 
 repealing St. of 9 Geo. IV.) unnecessarily and erroneously assumed 
 that the St. of Westm. II. was still in force ; that it defined the crime 
 of rape ; and that there was a difference between the expressions 
 " against her will " and "without her consent," in the definitions of 
 this crime, — none of the other cases in England have been put upon 
 that ground, and their judicial value is not impaired by his inaccuracies. 
 
 The earliest statute of Massachusetts upon the subject was passed in 
 1642, and, like the English Statutes of Westminster, used "without 
 consent" as synonymous with " against her will," as is apparent upon 
 reading its provisions, which were as follows: 1st " If any man shall 
 unlawfully have carnal copulation with any woman child under ten 
 years old, he shall be put to death, whether it were with or without the 
 girl's consent." 2d " If any man shall forcibly and without consent
 
 452 COMMONWEALTH V. BUKKE. [CHAP. VII. 
 
 ravish any maid or woman that is lawfully married or contracted, he 
 shall be put to death." 3d "If any man shall ravish an}- maid or 
 single woman, committing carnal copulation with her by force, against 
 her will, that is above the age of ten years, he shall be either punished 
 with death, or with some other grievous punishment, according to cir- 
 cumstances, at the discretion of the judges." 2 Mass. Col. Rec. 21. 
 Without dwelling upon the language of the first of these provisions, 
 which related to the abuse of female children, it is manifest that in the 
 second and third, both of which related to the crime of rape, strictly so 
 called, and diffei-od only in the degree of punishment, depending upon 
 the question whether the woman was or was not married or engaged to 
 be married, the legislature used the words ''without consent," in the 
 second provision, as precisely equivalent to " against her will," in the 
 third. The later revisions of the statute have abolished the difference 
 in punishment, and therefore omitted the second provision, and thus 
 made the definition of rape in all cases the ravishing and carnall}' 
 knowing a woman " b}' force and against her will." Mass. Col. Laws 
 (ed. 1660), 9, (ed. 1672) 15 ; Mass. Prov. Laws, 1692-93 (4 W. & M.) 
 c. 19, § 11 ; 1697 (9 W. III.) c. 18 ; (State ed.) 56, 296 ; St. 1805, c. 
 97, § 1; Rev. Sts. c. 125, § 18; Gen. Sts. c. 160, § 26. But they 
 cannot upon any proper rule of construction of a series of statutes in 
 pari materia, be taken to have changed the description of tlie offence. 
 Commonwealth v. Sugland, 4 Gray, 7 ; Commonwealth v. Bailey, 13 
 Allen, 541. 545. 
 
 We are therefore unanimously of opinion that the crime, which the 
 evidence in this case tended to prove, of a man's having carnal inter- 
 course with a woman, without her consent, while she was, as he 
 knew, wholly insensible so as to be incapable of consenting, and with 
 such force as was necessary to accomplish the purpose, was rape. If 
 it were otherwise, any woman in a state of utter stupefaction, whether 
 caused by drunkenness, sudden disease, the blow of a third person, or 
 drugs which she had been persuaded to take even by the defendant 
 himself, would be unprotected from personal dishonor. The law is not 
 open to such a reproach.^ JExcepUons overruled, 
 
 1 Ace. Reg. V. Champlin, 1 Den. C. C. 89 ; Reg. v. Fletcher, 8 Cox C. C. 131 (cf 
 Reg. V. Fletcher, 10 Cox C. C. 248) , Reg. v. Mayers, 12 Cox C. C. 311 ; Reg. v. Bar- 
 ratt, 12 Cox C. C. 498. But see a learned note on the subject, 1 Green Cr., L. Rep. 
 318. — Ed.
 
 SECT. IV.] MUKDER. 453 
 
 SECTION IV. 
 
 Murder. 
 
 1 Hawkins, Pleas of the Crown, ch. 13, Sects. 1, 2. The word 
 "murder" anciently signified only the private killing of a man, for 
 which, by force of a law introduced by King Canute for the preser- 
 vation of his Danes, the town or hundred where the fact was done was 
 to be amerced to the king, unless they could prove that the person slain 
 were an Englishman (which proof was called Engleschire), or could 
 produce the offender, etc. And in those days the open wilful killing 
 of a man tlnough anger or malice, etc., was not called murder, but 
 voluntar\- homicide. 
 
 But the said law concerning Engleschire having been abolished by 
 14 YAvf. III. c. 4. the killing of any Englishman or foreigner through 
 malice prepense, whether committed openly or secretl}", was b}- de- 
 grees called murder; and 13 Rich. II. c. 1, which restrains the 
 king's pardon in certain cases, does in the preamble, under the general 
 name of murder, include all such homicide as shall not be pardoned 
 without special words ; and, in the body of the Act, expresses the 
 same by " murder, or kiUing by await, assault, or malice prepensed." 
 And doubtless the makers of 23 Hen. VIII. c. 1, which excluded all 
 wilful murder of malice prepense from the benefit of the clergy, in- 
 tended to include open, as well as private, homicide within the word 
 murder. 
 
 23 Hen. VIII. ch. 1, Sect. 3. Be it enacted by the King our sover- 
 eign lord, and the lords spiritual and temporal, and the commons, in this 
 present parliament assembled, and by authorit}' of the same, That no 
 person nor persons, which hereafter shall happen to be found guilty 
 after the laws of this land, for any manner of petit treason, or for any 
 wilful murder of malice prepensed, or for robbing of anj- churches, 
 chapels, or other holy places, or for robbing of any person or persons 
 in their dwelling-houses, or dwelling-place, the owner or dweller in the 
 same house, his wife, his children, or servants then being within, and 
 put in fear and dread by the same, or for robbing of any person or 
 persons in or near about the highways, or for wilful burning of any 
 dwelling-houses, or barns wherein any grain or corn shall happen to 
 be, nor any person or persons being found guilty of any abetment, pro- 
 curement, helping, maintaining, or counselling, of or to any such petit 
 treasons, murders, or felonies, shall from henceforth be admitted to the 
 benefit of his or their clerg}-, but utterh' be excluded thereof, and 
 suffer death in such manner and form as the}' should have done for 
 any of the causes or oflJ'ences abovesaid if they were no clerks ; such 
 as be within holy orders, that is to say, of the orders of sub-deacon or 
 above, only except.
 
 454 KEX V. TOMSON. [CHAP. VII. 
 
 YONG'S CASE. 
 
 Queen's Bench. 1587. 
 
 ^Reported 4 Cole, 40 a.] 
 
 In this case it was held per totam curiam that if, upon an affray, the 
 constable and others in his assistance come to suppress the affray and 
 preserve the peace, and in executing their office the constable or any 
 of his assistants is killed, it is murder in law, although the murderer 
 knew not the party that was killed, and although the affray was sudden ; 
 because the constable and his assistants came by authority of law to 
 keep the peace, and prevent the danger which might ensue by the 
 breach of it; and therefore the law will adjudge it murder, and that 
 the murderer had malice prepense, because he set himself against the 
 Justice of the realm. So if the sheriff or any of his bailiffs or other 
 officers is "killed in executing the process of the law, or in doing their 
 duty, it is murder; the same law of a watchman, who is killed in the 
 execution of his office. 
 
 REX V. TOMSON. 
 Old Bailey. 1C6-. 
 
 [Reported Kelyng, 66.] 
 
 At the sessions in the Old Bailey holden after Hilary Term, Caroli 
 Secundi, Thomas Tomson was indicted for murdering of Allen Dawes, 
 and the jury found a special verdict to this effect, viz., that the day, 
 year, and place in the indictment mentioned, Thomas Tomson, the 
 prisoner, and his wife were fighting in the house of the said Allen 
 Dawes, who was killed, and the said Allen Dawes, seeing them fight- 
 ing, came in and endeavored to part them, and thereupon the said 
 Tomson thrust away the said Dawes, and threw him down upon a piece 
 of iroix, which was a bar in a chimney' which kept up the fire, and by 
 that one of the ribs of the said Dawes was broken, of which he died ; 
 and if the court judge this murder, they find so, or if manslaughter, 
 then they find so. 
 
 And I put this case to my Lord Chief Justice, Baron Hales and my 
 brother, and some other of my brethren, and we all agreed as it is 
 resolved in Young's case, Co. 4. Report, and also in Mackally's case, 
 Co. 9. Report, that if upon a sudden affray, a constable or watchman, 
 or any that come in aid of them, who endeavor to part them, are killed, 
 this is murder ; and we hold likewise that if no constable or watchman 
 be there, if any other person come to part them, and he be killed, this 
 is murder ; for every one in such case is bound to aid and preserve the
 
 SECT. IV.] grey's case. 455 
 
 king's peace. But in all those cases it is necessaiy that the part}' who 
 was fighting and killed him that came to part them, did know or had 
 notice give.i that the}' came for that purpose. As for the constable or 
 other person who cometh to part them, to charge them in the king's 
 name to keep the king's peace, by which they have notice of their 
 intents ; for otherwise if two are fighting, and a stranger runs in with 
 intent to part tliera, yet the part}' who is fighting may think he 
 cometh in aid of the other with whom he is fighting, unless some such 
 notice be given as aforesaid, that he was a constable and came to part 
 them : and that ap[)eareth by Mackally's case before cited, where in case 
 of an arrest by a sergeant, it is necessary, to make it murder, that the 
 sergeant tell him that he doth arrest, for else if he doth say nothing, 
 but fall upon the man and be killed by him, this is but manslaughter, 
 unless it appear that the person arrested did know him to be a sergeant, 
 and that he came to arrest him ; for as the case is there put, if one 
 seeing the shei-iff or a sergeant whom he knoweth hath a warrant to 
 arrest him, and to prevent it before the officer come so near as to let 
 him know he doth arrest him, he shoots again at him, and kills him, 
 this is murder; and in the principal case, though the jury find that 
 Dawes came to part the man and wife, yet it doth not appear whether 
 it is found that Toinson knew his intent, nor that Dawes spake any 
 words whereby he might understand his intention, as charging them to 
 keep the king's peace, etc., and so we held it to be only manslaughter, 
 which in law is properly chance-medley, that is, where one man upon a 
 sudden occasion kills another without malice in fact, or malice implied 
 by law. 
 
 GREY'S CASE. 
 
 Old Bailey. 1666. 
 
 ^Reported Kelyng, 64.] 
 
 John Grey being indicted for the murder of William Golding, the 
 jury found a special verdict to this efl!ect, viz. : We find that the day, 
 year, and place in the indictment mentioned John Grey, the prisoner, was 
 a blacksmith, and that William Golding, the person killed, was his ser- 
 vant, and that Grey his master commanded him to mend certain stamps, 
 being part belonging to his trade, which he neglected to do ; and the 
 said Grey, his master, after coming in asked him the said Golding, 
 why he had not done it, and then the said Grey told the said Golding, 
 that if lie would not serve him, he should serve in Bridewell, to which 
 the said Golding replied, that he had as good serve in Bridewell as 
 serve the said Grey his master ; whereupon the said Grey, without any 
 other provocation, struck the said Golding with a bar of iron, which 
 the said Gre}' then had in his hand, upon which he and Golding were
 
 456 grey's case. [chap. vii. 
 
 working at the anvil, and with the said blow he broke his skull, of 
 which he died; and if this be minder, etc. This case was found 
 speciall}' b\' the desire of my Brother Wylde, and I showed the special 
 verdict to all mv Bretliren, Judges of the King's Bench, and to m}' 
 Lord Bridgman, Chief Justice of the Common Pleas. And we were all 
 of opinion that this was murder. For if a father, master, or school- 
 master will correct his child, servant, or scholar, they must do it with 
 such things as are fit for correction, and not with such instruments as 
 ma}' probaI)ly kill them. For otherwise, under pretence of correction, 
 a parent might kill his child, or a master his servant, or a school- 
 master his scholar, and a bar of iron is no instrument for correction. 
 It is all one as if he had run him through with a sword ; and my 
 Brother Morton said he remembered a case at Oxford Assizes before 
 Justice Jones, then Judge of Assize, where a smith being chiding 
 with his servant, upon some cross ans^ver given by his servant, he 
 having a piece of hot iron in his hand run it into his servant's belly, 
 and it was judged murder, and the party executed. And my Lord 
 Bridgman said, that in his circuit there was a woman indicted for 
 murdering her child, and it appeared upon the evidence that she kicked 
 her and stamped upon her bell}', and he judged it murder. And my 
 Brother Twisden said he ruled such a case formerl}' in Gloucester Cir- 
 cuit;, for a piece of iron or a sword or a great cudgel, with which a 
 man probably may be slain, are not instruments of correction. And 
 therefore, when a master strikes his servant willingly with such things 
 as those are, if death ensue, the law shall judge it malice prepense ; and 
 therefore the statute of 5 H. IV. c. 5, which enacts that if any one does 
 cut out the tongue, or put out the eyes of any of the king's subjects of 
 malice prepense, it shall be felony. If a man do cut out the tongue of 
 another man voluntarily, the law 'judgeth it of malice prepense. And 
 so where one man killeth another without any provocation, the law 
 judgeth it malice prepense ; and in the L. Morley's case in this book, it 
 was resolved by all the judges, that words are no provocation to lessen 
 the offence from being murder, if one man kill another upon ill words 
 (riven to him. But if a parent, master, or schoolmaster, correct his 
 child, servant, or scholar, with such things as are usual and fit for 
 correction, and they happen to die, Poulton de Pace, p. 120, saith this 
 is b}' misadventure, and cites for authority, Keilwa}', 108, a, b, & 
 136, a. But that book which puts this case in Keilway is 136, a, saith 
 that if a master correct his servant, or lord his villain, and by force of 
 that correction he dieth. although he did not intend to kill him, yet this 
 is felony, because they ought to govern themselves in their correction 
 in such ways that such a misadventui-e might not happen. And I 
 suppose, because the word misadventure is there used, therefore Poul- 
 ton concludeth (it may be truly) that it is but misadventure. 
 
 And in this principal case, upon certificate [by] many persons of 
 good commendation of the general esteem that Grey had, I did certifie 
 the King that though in strictness of law his ofljence was murder, yet it
 
 SECT. IV.j REGINA V. SERN^. 457 
 
 was attended with such circumstances as niiglit render the person an 
 object of his Majesty's grace and pardon, lie having a very good report 
 among all liis own company of his own trade, and of all his neighbors ; 
 and upon this the King was pleased to grant him his pardon. 
 
 REGINA V. SERNE. 
 Central Criminal Court. 1887. 
 
 [Reported 16 Cox C. C. 311.] 
 
 The prisoners Leon Serne and John Henry Goldfinch were indicted 
 for the murder of a boy, Sjaak Serne, the son of the prisoner Leon 
 Serne, it being alleged that they wilfully set on fire a house and shop, 
 No. 274 Strand, London, by which act the death of the boy had been 
 caused. 
 
 It appeared that the prisoner Serne with his wife, two daughters, and 
 two sons were living at the house in question ; and that Serne, at the 
 time he was living there, in midsummer, 1887, was in a state of pecu- 
 niary embarrassment, and had put into the premises furniture and 
 other goods of but very little value, which at the time of the fire were 
 not of greater value than £30. It also appeared that previously to the 
 fire the prisoner Serne had insured the life of the boy Sjaak Serne, 
 who was imbecile, and on the first day of September, 1887, had in- 
 sured his stock at 274 Strand, for £500, his furniture for £100, and 
 his rent for another £100 ; and that on the 17th of the same month the 
 premises were burnt down. 
 
 Evidence was given on behalf of the prosecution that fires were seen 
 breaking out in several parts of the premises at the same time, soon 
 after the prisoners had been seen in the shop together, two fires being 
 in the lower part of the house and two above, on the floor whence 
 escape could be made on to the roof of the adjoining house, and in 
 which part w^ere the prisoners, and the wife, and two daughters of 
 Serne, who escaped ; that on the premises were a quantity of tissue 
 transparencies for advertising purposes, which were of a most inflam- 
 mable character : and that on the site of one of the fires was found a 
 great quantity of these transparencies close to other inflammable ma- 
 terials ; that the prisoner Serne, his wife and daughters, were rescued 
 from the roof of the adjoining house, the other prisoner being rescued 
 from a window in the front of the house, but that the boys were bui'nt 
 to death, the body of the one being found on the floor near the win- 
 dow from which the prisoner Serne, his wife, and daughters had 
 escaped, the body of the other being found at the basement of the 
 premises.
 
 458 REGINA V. SERNE. [CHAP. VII. 
 
 Stephen, J. Gentlemen, it is now my duty to direct your attention 
 to tlie hiw and the facts into which j'ou have to inquire. The two 
 prisoners are indicted for the wilful murder of the boy Sjaak .Serne, a 
 lad of about fourteen ^ears of age ; and it is necessary" that 1 should 
 explain to you, to a certain extent, the lavv of England with regaixl to 
 the crime of wilful murder, inasmuch as vou have heard souietiiing said 
 about constructive murder. Now that phrase, gentlemen, has no legal 
 meaning whatever. There was wilful murder according to the plain 
 meaning of the term, or there was no murder at all in the present case. 
 The definition of murder is unlawful homicide with malice aforethought, 
 and the words '' malice aforethought " are technical. You must not, 
 therefore, construe them or suppose that they can be construed by 
 ordinar}- rules of language. The words have to be construed according 
 to a long series of decided cases, which have given them meanings dif- 
 ferent from' those which might be supposed. One of those meanings is, 
 the killing of another person b}' an act done with an intent to commit a 
 felony. Another meaning is, an act done with the knowledge that the 
 act will probably cause the death of some person. Now it is such an 
 act as the last which is alleged to have been done in this case ; and if 
 you think that either or both of these men in the dock killed this bo}', 
 either by an act done with intent to commit a felony, that is to sa}', the 
 setting of the house on fire in order to cheat the insurance compan}-, or 
 by conduct which to their knowledge was likely to cause death and 
 was therefore eminently dangerous in itself, — in either of these cases 
 the prisoners are guilty of wilful murder in the plain meaning- of the 
 word. I will say a word or two upon one part of this definition, because 
 it is capable of being applied very harshly in certain cases, and also 
 because, though I take the law as I find it, I very much doubt whether 
 the definition which I have given, although it is the common definition, 
 is not somewhat too wide. Now when it is said that murder means 
 killing a man by an act done in the (-ommission of a felony, the mere 
 words cover a case like this, that is to say, a case where a man gives 
 another a push with an intention of stealing his watch, and the person 
 so pushed, having a weak heart or some other internal disorder, dies. 
 To take another ver^' old illustration, it was said tliat if a man shot at 
 a fowl with intent to steal it and accidentall}' killed a man, he was to be 
 accounted guilt}- of murder, because the act was done in the commis- 
 sion of a felony. I verv much doubt, however, whether that is really 
 the law. or whether the Court for the Consideration of Crown Cases 
 Reserved would hold it to be so. The present case, however, is not 
 such as I have cited, nor anything like them. In m}- opinion the defi- 
 nition of the law which makes it murder to kill by an act done in the 
 commission of a felony might and ought to he narrowed, while that part 
 of the law under which the Crown in this case claim to have proved a 
 case of murder is maintained. I think that, instead of saying that 
 any act done with intent to commit a felony and which causes death 
 amounts to murder, it would be reasonable to sa}' that any act known
 
 SECT. IV.] REGINA V. SERN^. 4.j9 
 
 to be dangerous to life and likeh- in itself to cause death, done for the 
 purpose of cominitt-ing a felony, which caused death, should be murder. 
 As an illuslratioM of this, suppose that a nuui, intending to commit a 
 rape u[)on a woman, but without the least wish to kill her, squeezed 
 her by tlie tliroat to overpovver her, and in so doing killed her ; that 
 would be murder. 1 tliink that every one would sa}', in a case like that, 
 that when a person began doing wicked acts for his own base purposes, 
 he risked his own life as well as that of otliers. Tliat kind of crime 
 does not ditfer in any serious degree from one committed by using a 
 deadl}' weapon, such as a bludgeon, a pistol, or a knife. If a man once 
 begins attacking the human body in such a way, he must take the con- 
 sequences if he goes further than he intended when he began. That 
 I take to be the true meaning of the law on the subject. In the present 
 case, gentlemen, you have a man sleeping in a house with his wife, 
 his two daughters, his two sons, and a servant, and you are asked to 
 believe that this man, with all these people under his protection, delib- 
 erately set fire to the house in three or four different places and thereby 
 burnt two of tlieni to death. It is alleged that he arranged matters 
 in such a way that an}' person of the most common intelligence must 
 have known perfecth' well that he was placing all those people in 
 deadly risk. It appears to me that if that were really done, it matters 
 very little indeed whether the prisoners hoped the people would escape 
 or whether they did not. If a person chose, for some wicked purpose 
 of his own, to sink a boat at sea, and thereby caused the deaths of the 
 occupants, it matters nothing whether at the time of committing the 
 act he hoped that the people would be picked up by a passing vessel. 
 He is as much guilty of murder, if the people are drowned, as if he had 
 flung every person into the water with his own hand. Therefore, gentle 
 men, if Serne and Goldfinch set fire to this house when the family were 
 in it, and if the boys were by that act stifled or burnt to death, then 
 the prisoners are as much guilty of murder as if they had stabbed the 
 children. I will also add, for my own part, that I think, in so saying, 
 the law of England lays down a rule of broad, plain common-sense. 
 Treat a murderer how you will, award him what punishment you 
 choose, it is your duty, gentlemen, if you think him really guilty of 
 murder, to say so. That is the law of the land, and I have no doubt 
 in my mind with regard to it. There was a case tried in this court 
 which you will no doubt remember, and which will illustrate my mean- 
 ins:. It was the Clerkenwell explosion case in 1868, when a man 
 named Barrett was charged with causing the deatli of several persons 
 bv an explosion which was intended to release one or two men from 
 custody ; and I am sure that no one can say truly that Barrett was not 
 justlv hanged. With regard to the facts in the present case, the very 
 liorror of the crime, if crime it was, the abomination of it, is a reason 
 for your taking the most extreme care in the case, and for not imputing 
 to the prisoners anything which is not clearly proved. God forbid that 
 I should, by what T say. produce on your minds, even in the smallest
 
 460 STATE V. SMITH. [CHAP. VII. 
 
 degree, any feeling against the prisoners. You must see, gentlemen, 
 that the evidence leaves no reasonable doubt upon your minds ; but 
 you will fail in the performance of your duty if, being satisfied with 
 the evidence, you do not convict one or both the prisoners of wilful 
 murder, and it is wilful murder of which they are accused. [The 
 learned judge then proceeded to review the evidence. In the result 
 the jury found a verdict of not guilty in respect to each of the 
 prisoners.] Verdict, not guilty. 
 
 STATE V. SMITH. 
 Court of Appeals of South Carolina. 1847. 
 
 [Reported 2 Strobhart, 77.] 
 
 James Carter, on horseback, overtook a large and noisy crowd of 
 men and women on foot. The prisoner, one of the crowd, fired a 
 pistol, apparently at Carter, but did not hit him. The bullet struck and 
 killed a negro boy who was sitting on a fence beside the road, unseen 
 by the crowd.-^ 
 
 The prisoner was found guilty of murder, and appealed, on the 
 grounds annexed : — 
 
 1. That his Honor, the presiding Judge, misdirected the jury m his 
 charge, by stating the law to be '' that if the prisoner shot at Carter, 
 designing some serious injury, as the falling from his horse, it is 
 murder." 
 
 2. That his Honor charged the jury that " if the prisoner shot at 
 Carter without intending to kill or hurt him, it is manslaughter." 
 
 3. That his Honor charged the jury that " they might find the 
 prisoner guilty of murder or manslaughter, or not guilty." 
 
 4. That the verdict was contrary to law and evidence. 
 Miller^ for the motion. 
 
 Mclver, Solicitor, contra. 
 
 Evans, J. delivered the opinion of the court. 
 
 The jury having found the prisoner guilty of murder, there is no 
 necessity to inquire whether he could have been convicted of man- 
 slaughter on this indictment. The first ground is, therefore, the onl}- 
 one necessary to be considered. The proposition presented b}' that 
 ground is whether, supposing the prisoner " shot at Carter, designing 
 to do him some serious injur}^ as the falling from his horse," he is 
 guilty of the crime of murder. It is not denied that this question is 
 the same as if he had killed Carter instead of the negro, for if one 
 design to kill A. but by accident kills B. his crime is the same as if 
 be had executed his intended purpose. It will be murder, or man- 
 
 1 This statement is condensed from that of the reporter.
 
 SECl. IV.] COMMONWEALTH V. WEBSTER. 461 
 
 slaughter, or self-defence, according to the circumstances. It is very 
 clear that the intent with which an act is done very often gives char- 
 acter to the crime, but there is a legal conclusion drawn from the facts 
 of the case, entirely independent of the intent of the party. Thus it is 
 said in 2d Starkie Ev. 950, that "where t!ie defence is that the death 
 was occasioned b}' accident, the nature of the act which produced the 
 death, and the real motive and intention of the prisoner, are the proper 
 subjects of evidence, but the conclusion as to the quality of the offence, 
 as founded upon such facts, is a question of law." Tlie whole doctrine 
 of constructive malice is founded on the same principle. If the act 
 which produced the death be attended with such circumstances as are 
 the ordinary symptoms of a wicked, depraved, and malignant spirit, the 
 law from these circumstances will imply malice, without reference to 
 what was passing in the prisoner's mind at the time he committed the 
 act. If one were to fire a loaded gun into a crowd, or throw a piece of 
 heav}- timber from the top of a house into a street filled with people, 
 the law would infer malice from the wickedness of the act ; so also the 
 law will imph' that the prisoner intended the natural and probable conse- 
 quences of his own act ; as, in the case of shooting a gun into a crowd, 
 the law will impl}', from the wantonness of the act, that he intended to 
 kill some one, although it might have been done in sport. If the 
 prisoner's object had been nothing more than to make Carter's horse 
 throw him, and he had used such means onl}' as were appropriate to 
 that end, then there would be some reason for applying to his case the 
 distinction that where the intention was to commit onl}- a trespass or 
 a misdemeanor, an accidental killing would be onl}' manslaughter. But 
 in this case the act done indicated an intention to kill ; it was calcu- 
 lated to produce that effect, and no other ; death was the probable 
 consequence, and did result from it, and I am of opinion there was no 
 error in the charge of the Circuit Judge, that if the prisoner shot at 
 Carter the crime was murder, although the prisoner may have designed 
 only to do Carter " some serious injur}', as the falling from his horse.'' 
 The motion is therefore dismissed. 
 
 RiciiARDSOx, J., O'Neall, J., Wardlaw, J., Frost, J., and Withers, 
 J., concurred. Motion dismissed. 
 
 COMMONWEALTH v. WEBSTER. 
 Supreme Judicial Court of Massachusetts. 1850. 
 [Reported 5 Cusli. 296.] 
 
 The defendant, professor of chemistry in the medical college in 
 Boston, attached to the university at Cambridge, was indicted in the 
 municipal court at the January term, 1850, for the murder of Dr. George 
 Parkman, at Boston, on the 23d of November, 1849. The indictment 
 having been transmitted to this court, as required by the Rev. Sts.
 
 462 COMMONWEALTH V. WEBSTER. [CHAP. VII. 
 
 c. 136, § 20, the defendant was tried at the present term, before the 
 Chief Justice, and Justices Wilde, Dewey, and Metcalf.^ 
 
 Tlie government introduced evidence that Dr. George Parkman, 
 quite peculiar in person and manners, and very well known to most 
 persons in the city of Boston, left his home in Walnut Street, in Bos- 
 ton, in the forenoon of the 23d of November, 1849, in good health and 
 spirits ; and that he was traced through various streets of the city until 
 about a quarter before two o'clock of that day, when he was seen going 
 towards and about to enter the medical college. That he did not return 
 to his home. That on the next day a very active, particular, and ex- 
 tended search was commenced in Boston and the neighboring towns 
 and cities, and continued until the 30th of November; and that large 
 rewards were offered for information about Dr. Parkman. That on the 
 30th of November, certain parts of a human body were discovered in and 
 about the defendant's laboratory in the medical college ; and a great 
 number of frasfments of human bones ami certain blocks of mineral teeth, 
 imbedded in slag and cinders, together with small quantities of gold, 
 which had been melted, were found in an assa}' furnace of the laboi'atory. 
 That in consequence of some of these discoveries the defendant was ar- 
 rested on the evening of the 30th of November. That the parts of a 
 bod}' so found resembled in ever}' respect the corresponding portions 
 of the body of Dr. Parkman, and that among them all there were no 
 duplicate parts ; and that they were not the remains of a body which 
 had been dissected. That the artificial teeth found in the furnace were 
 made for Dr. Parkman by a dentist in Boston in 1846, and refitted to 
 his mouth b}- the same dentist a fortnight before his disappearance. 
 That the defendant was indebted to Dr. Parkman on certain notes, 
 and was pressed by him for payment; that the defendant had said 
 that on the 23d of November, about nine o'clock in the morning, he 
 left word at Dr. Parkman's house that, if he would come to the medical 
 college at half-past one o'clock on that day, he would pay him ; and 
 that, as he said, he accordingly had an interview with Dr. Parkman at 
 half-past one o'clock on that da}', at his laboratory in the medical col- 
 lege. That the defendant then had no means of paying, and that the 
 notes were afterwards found in his possession. 
 
 The opinion of the court on the law of the case was given in the 
 charge to the jury as follows : — 
 
 Shaw, C. J. Homicide, of which murder is the highest and most 
 criminal species, is of various degrees, according to circumstances. 
 The term, in the largest sense, is generic, embracing every mode by 
 which the life of one man is taken by the act of another. Homicide 
 may be lawful or unlawful ; it is lawful when done in lawful war upon 
 an enemy in battle ; it is lawful when done by an oflScer in the execu- 
 tion of justice upon a criminal, pursuant to a proper warrant. It may 
 also be justifiable, and of course lawful, in necessary self-defence. But 
 
 1 Part of the case is omitted. — Ed.
 
 SECT. IV.J COMMONWEALTH V. WEBSTER. 463 
 
 it is not necessaiT to dwell on these distinctions ; it will be sufficient 
 to ask attention to the two species of criminal homicide, familiarly 
 known as murder and manslaiightei*. 
 
 In seeking for the sources of our law upon this subject, it is proper 
 to sa}', that whilst the statute law of the commonwealth declares (Rev. 
 Sts. c. 125, § 1) that "Every person who shall commit the crime of 
 murder shall suffer the punishment of death for the same," yet it no- 
 where defines the crimes of murder or manslaughter, with all their 
 minute and carefally-considered distinctions And qualifications. For 
 these, we resort to that great repository of rules, principles, and forms, 
 the common law. This we commonly designate as the common law of 
 England ; but it might now be properly called the common law of 
 Massachusetts. It was adopted when our ancestors first settled here, 
 by general consent. It was adopted and confirmed by an early act of 
 the provincial government, and was formally confirmed by the provis- 
 ion of the constitution (c, 6, art. 6) declaring that all the laws wliich 
 had theretofore been adopted, used, and approved, in the province or 
 state of Massachusetts ba}', and usuall3' practiced on in the courts of 
 law, should still remain and be in full force until altered or repealed by 
 the legislature. So far, therefore, as the rules and principles of the 
 common law are applicable to the administration of criminal law, and 
 have not been altered and modified by acts of the colonial or provincial 
 government, or by the state legislature, they have the same force and 
 effect as laws formallj' enacted. 
 
 By the existing law, as adopted and practiced on, unlawful homicide 
 is distinguished into murder and manslaughter. 
 
 Murder, in the sense in which it is now understood, is the killing of 
 any person in the peace of the commonwealth, with malice afore- 
 thought, either express or implied by law. Malice, in this definition, 
 is used in a technical sense, including not only anger, hatred, and 
 revenge, but every other unlawful and unjustifiable motive. It is not 
 confined to ill-will towards one or more individual persons, but is in- 
 tended to denote an action flowing from an}' wicked and corrupt 
 motive, a thing done malo anhno. where the fact has been attended 
 with such circumstances as carry in them the plain indications of a 
 heart regardless of social duty, and fatally bent on mischief. And 
 therefore malice is implied from any deliberate or cruel act against 
 another, however sudden. 
 
 Manslaugliter is the unlawful killing of another without malice ; and 
 may be either voluntary, as when the act is committed with a real 
 design and purpose to kill, but through the violence of sudden passion, 
 occasioned by some great provocation which, in tenderness for the 
 frailty of human nature, the law considers sufficient to palliate the 
 criminality of the oflfence ; or involuntar}', as when the death of another 
 is caused by some unlawful act, not accompanied by any intention to 
 take life. 
 
 From these two definitions it will be at once perceived that the
 
 464 COMMONWEALTH V. WEBSTER. [CHAP. VII. 
 
 characteristic distinction between murder and manslaugliter is malice, 
 express or implied. It tlierefore becomes necessar}' in every case of 
 homicide proved, and in order to an intelligent inquiry into the legal 
 character of the act, to ascertain with some precision the nature of legal 
 malice, and what evidence is requisite to establish its existence. 
 
 Upon lliis subject the rule, as deduced from the authorities, is that 
 the implication of malice arises in every case of intentional homicide ; 
 and, the fact of killing being first proved, all the circumstances of acci- 
 dent, necessit}", or infirmity, are to be satisfactorily established by the 
 party charged, unless they arise out of the evidence produced against 
 him to prove tlie homicide and the circumstances attending it. If there 
 are, in fact, circumstances of justification, excuse, or palliation, such 
 proof will naturally indicate them. But where the fact of killing is 
 proved by satisfactory evidence, and there are no circumstances dis- 
 closed tending to show justification or excuse, there is nothing to rebut 
 the natural presumption of malice. Tliis rule is founded on the plain 
 and obvious principle that a person must be presumed to intend to do 
 that which he voluntarily and wilfully does in fact do, and that he must 
 intend all the natural, probable, and usual consequences of his own 
 acts. Therefore, when one person assails another violently with a 
 dangerous weapon likely to kill, and which does in fact destroy the 
 life of the party assailed, the natural presumption is that he intended 
 death or other great bodily harm ; and, as there can be no presump- 
 tion of anj' proper motive or legal excuse for such a cruel act, the con- 
 sequence follows that, in the absence of all proof to the contrary, there 
 is nothing to rebut the presumption of malice. On the other hand, if 
 death, though wilfully intended, was inflicted immediatel}' after provo- 
 cation given by the deceased, supposing that such provocation consisted 
 of a blow or an assault, or other provocation on his part, which the law 
 deems adequate to excite sudden and angry passion and create heat of 
 blood, this fact rebuts the presumption of malice ; but still, the homi- 
 cide being unlawful, because a man is bound to curb his passions, is 
 criminal, and is manslaughter. 
 
 In considering what is regarded as such adequate provocation, it is 
 a settled rule of law that no provocation by words only, however 
 opprobrious, will mitigate an intentional homicide so as to reduce it to 
 manslaughter. Therefore, if, upon provoking language given, the party 
 immediately revenges himself by the use of a dangerous and deadly 
 weapon likely to cause death, such as a pistol discharged at the person, 
 a heavy bludgeon, an axe, or a knife, if death ensues, it is a homicide 
 not mitigated to manslaughter b}^ the circumstances, and so is homicide 
 b}' malice aforethought within the true definition of murder. It is not 
 the less malice aforethought, within the meaning of the law, because 
 the act is done suddenly after the intention to commit the homicide 
 is formed ; it is sufficient that the malicious intention precedes and 
 accompanies the act of homicide. It is manifest, therefore, that the 
 words " malice aforethought," in the description of murder, do not
 
 SECT. IV,] HADLEY V. STATE. 465 
 
 imply deliberation, or the lapse of considerable time between the mali- 
 cious intent to take life and the actual execution of that intent, but 
 rather denote purpose and design in contradistinction to accident and 
 mischance. 
 
 In speaking of the use of a dangerous weapon, and the mode of usino^ 
 it upon the person of another, I have spoken of it as indicating an in- 
 tention to kill him, or do him great bodily harm. The reason is this : 
 Where a man, without justification or excuse, causes the death of an- 
 other by the intentional use of a dangerous weapon likelj- to destroy 
 life, he is responsible for the consequences, upon tlie principle already 
 stated, that he is liable for the natural and probable consequences of 
 his act. Suppose, therefore, for the purpose of revenge, one fires a 
 pistol at another, regardless of consequences, intending to kill, maim, 
 or grievousl}' wound him, as the case may be, without any definite inten- 
 tion to take his life ; 3'et, if that is the result, the law attributes the 
 same consequences to homicide so committed, as if done under an actual 
 and declared purpose to take the life of the part}' assailed. . . . 
 
 The true nature of manslaughter is that it is homicide mitigated out 
 of tenderness to the frailty of human nature. Every man, when as- 
 sailed with violence or great rudeness, is inspired with a sudden impulse 
 of anger, which puts him upon resistance before time for cool reflec- 
 tion ; and if, during that period, he attacks his assailant with a weapon 
 likely to endanger life, and death ensues, it is regarded as done through 
 heat of blood, or violence of anger, and not through malice, or that 
 cold-blooded desire of revenge which more properly constitutes the 
 feeling,, emotion, or passion of malice. 
 
 The same rule applies to homicide in mutual combat, which is attrib- 
 uted to sudden and violent anger occasioned by the combat, and not to 
 malice. When two meet, not intending to quarrel, and angry words 
 suddenly arise, and a conflict springs up in which blows are given on 
 both sides, without much regard to who is the assailant, it is a mutual 
 combat. And if no unfair advantage is taken in the outset, and the oc- 
 casion is not sought for the purpose of gratifjing malice, and one seizes 
 a weapon and strikes a deadly blow, it is regarded as homicide in heat 
 of blood ; and though not excusable, because a man is bound to control 
 his angry passions, yet it is not the higher offence of murder. 
 
 HADLEY V. STATE. 
 Supreme Court of Alabama. 1876. 
 
 [Reported 55 Alabama, 31,] 
 
 Stone, J.^ — Mr. Wharton, the able author of the works on Criminal 
 Law, and on Homicide, has contributed an article to the " Forum," 
 April number, 1875, in which he attempts to show that there has been 
 
 ^ Part of the opinion only is given.
 
 466 HADLEY V. STATE. [CHAP. VII. 
 
 a revolution in criminal law, in the matter of presumed malice. In 
 his work on Homicide, 2d ed., § 671, he asserts the same doctrine, and 
 says, '" If it be said that the use of a weapon, likely to inflict a mortal 
 blow, implies, as a presumption of law, in its technical sense, a deadly 
 design, this is an error; and a fortiori is it so when it is said the use 
 of such a weapon implies a malicious design." 
 
 Malice, design, and motive, are, as a rule, but inferential facts. 
 They are inferred from facts and circumstances positively proven. If 
 direct, positive proof of them were required, it could rarely be given. 
 Still, we know they exist ; and when sufficient facts are in evidence to 
 justify us in drawing such inference, we rest as. securely in the convic- 
 tion as if it were forced upon us by positive proof The measure of 
 evidence, however, to justify such abiding conviction, must be very 
 full, — so full as to exclude every other reasonable hypothesis. 
 
 That every one must be held to intend the known consequences of 
 his intentional act, is a recognized canon of moral accountability, and 
 of municipal law. Malice, as an ingredient of murder, is but a formed 
 design, by a sane mind, to take life unlawfully, without such impending 
 danger, to be averted thereb};, as will render it excusable, and with- 
 out such provocation as will repel the imputation of formed design. 
 Hence, when life is taken b^' the direct use of a deadly weapon, the 
 canon, stated above, comes to its aid ; and, if there be nothing else in 
 the transaction — no qualifying or explanatory circumstance — the con- 
 clusion is irresistible that the killing was done pursuant to a formed 
 design, — in other words, with malice aforethought ; for malice, in such 
 connection, is but the absence of impending peril to life or member, 
 which would excuse the homicide, and of sufficient provocation to repel 
 the imputation of its existence. 
 
 In Foster's Crown Law, it is said, " In ever}' charge of murder, the 
 fact of killing being first proved, all the circumstances of accident, 
 necessity, or infirmity, are to be satisfactorily proved by the prisoner, 
 unless they arise out of the evidence produced against him ; for the law 
 presumeth the fact to have been founded in malice, until the contrary 
 appeareth ; and very right it is that the law should so presume." The 
 same doctrine is affirmed in all the older writers and adjudications on 
 criminal law. 
 
 Sir Wm. Blackstone (4 Com. 201) says: " We may take it for a 
 general rule that all homicide is malicious, and, of course, amounts 
 to murder, unless when justified, excused, or alleviated into man- 
 slaughter ; and all these circumstances of justification, excuse, or 
 alleviation, it is incumbent on the prisoner to make out to the satisfac- 
 tion of the court and jury." 
 
 In the case of Webster v. Commonwealth, 5 Cush. 206, the case 
 stood on the naked proof of the homicide, without an}' of the attendant 
 circumstances. Ch. J. Shaw declared the law as above quoted. 
 
 The case of People v. Schrj'ver, 42 N. Y. 1, is a very careful and 
 full collection and collation of authorities, English and American, and
 
 SECT. V.J DEGREES OF MUKDER. 467 
 
 fully sustains the doctrine above declared. See also Tweedv v. State, 
 5 Iowa, 433 ; Silvus v. State, 22 Ohio St. 90. Tlie case of Stokes v. 
 The People, 53 N. Y. 1G4, properly understood, is not materially 
 opposed to this view. The charge of the judge in that case invaded 
 the province of the juiy ; and, in addition to this, the case was made to 
 turn materially on the statutes of New York. The charge in that case 
 went much bejond the principle above copied from the old authors. 
 
 The charge in the present case is precisely that which was given in 
 the case of Murphy v. The State, 37 Ala. 142. In that case this court 
 held that the charge was free from error. We are unwilling to dei)art 
 from that decision, and, in doing so, from an old landmark whicli has 
 for centuries withstood the test of time, and the combined wisdom of 
 jurists on both sides of the Atlantic. There is a lamentable and grow- 
 ing laxity in the administration of the criminal law, which is seen and 
 deplored by all good men. Life is not sufficiently cared for; its 
 destruction not punished with sufficient severity. Until the reckless 
 and rash are taught, by firm judges and stern juries, that the slayer of 
 his brother can invoke the shield of self-defence only when, without 
 sufficient provocation from him, his life was in peril, or his body 
 exposed to grievous injury ; that homicide by him cannot be mitigated 
 to the lesser offence of manslaughter, unless the jury are convinced 
 that the killing was unpremeditated, and the result of sudden passion, 
 excited by present injury more grievous than words, we fear that the 
 calendar of bloody crimes is destined to know no diminution in its 
 numbers. The terrors of certain punishment are the onlj' sure means 
 of restraining the evil-minded. 
 
 SECTION V. 
 Degrees of Murder. 
 
 Revised Laws of Massachusetts, ch. 207, Sect. 1. Murder com- 
 mitted with deliberately premeditated malice aforethought or with 
 extreme atrocity or cruelty, or in the commission or attempted com- 
 mission of a crime punishable with death or imprisonment for life, is 
 murder in the first degree. Murder which does not appear to be in the 
 first degree is murder in the second degree. The degree of murder 
 shall be found by the jurj'. 
 
 Penal Code of New York, Sects. 183, 184. The killing of a human 
 being, unless it is excusable or justifiable, is murder in the first degree 
 when committed either from a deliberate and premeditated design to 
 eflfect the death of the person killed, or of another; or by an act 
 imminently dangerous to others, and evincing a depraved mind, regard
 
 468 LEIGHTON V. PEOPLE. [CHAP. VII. 
 
 less of human life, although without a premeditated design to effect the 
 death of any individual ; or without a design to effect death, by a 
 person engaged in the commission of, or in an attempt to commit a 
 felony, either upon or affecting the person killed or otherwise ; or when 
 perpetrated in committing the crime of arson in the first degree. Such 
 killing of a human being is murder in the second degree when com- 
 mitted with a design to effect the deatli of the person killed, or of 
 another, but without deliberation and premeditation. 
 
 LEIGHTON V. PEOPLE. 
 Court of Appeals of New York. 1882. 
 
 {Reported 88 New York, 117.] 
 
 Error to the General Term of the Supreme Court in the first judicial 
 department, to review judgment entered upon an order made May 20, 
 1881, w^hich affirmed a judgment of the Court of Oyer and Terminer 
 of the County of New York, entered upon a verdict convicting the 
 plaintiff in error of the crime of murder in the first degree. 
 
 The material facts appear in the opinion.^ 
 
 Danforth, J. At its close the prisoner's counsel " excepted to 
 all portions of the charge in reference to the question of the time 
 required for premeditation and deliberation." To bring the case within 
 the statutory definition of murder in the first degree it was necessary 
 tliat the crime should be " perpetrated from the deliberate and pre- 
 meditated design to effect the death of the person killed." Laws of 
 1873, chap. 644, § 5. An act co-existent with and inseparable from a 
 feudden impulse, although premeditated, could not be deemed deliberate, 
 as when under sudden and great provocation one instantl}-, although 
 intentionally, kills anotlier. But the statute is not satisfied unless the 
 intention was deliberated upon. If the impulse is followed by reflec- 
 tion, that is deliberation ; hesitation even may imply deliberation ; so 
 may threats against another and selection of means with which to per- 
 petrate the deed. If, therefore, the killing is not the instant effect of 
 impulse, if there is hesitation or doubt to be overcome, a choice made 
 as the result of thought, however short the struggle between the inten- 
 tion and the act, it is sufficient to characterize the crime as deliberate 
 and premeditated murder. 
 
 The charge upon this point was most favorable to the prisoner. 
 After stating the statute (sujyra) the judge said : " There must therefore 
 be, in order to establish the crime of murder in the first degree, delibera- 
 tion and premeditation ; but there is no time prescribed within which 
 
 1 Only so much of the case as relates to the degree of the murder is given.
 
 SECT, VL] lord MORLY'S CASE. 469 
 
 these operations of the mind must occur; it is sufficient if their exercise 
 was accomplished when the deed was done resulting in the death." 
 A";ain he said: ''It is enough if there is time for the mind to think 
 upon, to consider the act of killing, to meditate upon it, to weigh it, 
 and then to determine to do it." Immediately after this follows that 
 portion of the charge to which the learned counsel for the appellant 
 directs our attention. "For example," said the judge, " if I, having 
 from any reason, it matters not what, an enmity toward another, should 
 start from this point and walk to the corner of Chambers Street, weigh 
 in my mind, deliberate upon, and premeditate a deadl}- assault upon 
 another, and at that corner, meeting there the person toward whom my 
 thoughts were directed, I struck the deadly blow, that would be suffi- 
 cient deliberation and sufficient premeditation to perfect the crime of 
 murder in the first degree. It is enough that the mind operates in these 
 two respects to accomplish it and to present all the elements that are 
 necessary to establish murder in the first degree." 
 
 In this there was no error. Then followed a statement of the evi- 
 dence bearing upon the proposition just laid down. It has been recited 
 in the learned and elaborate opinion of the court below, its correctness 
 has not been denied by the appellant's counsel, and it need not be 
 repeated. It was in our opinion quite enough for submission to the 
 jury. 
 
 SECTION VI. 
 
 Manslaughter. 
 
 LORD MORLY'S CASE. 
 
 Resolution of the Judges. 1666. 
 
 [Reported Kelync/, 53.] 
 
 Memorandum, that upon Saturday the 28th of April, 1666, Ann. 18 
 Car. 2, all the judges of England, viz., myself J. K., Lord Chief Jus- 
 tice of the King's Bench; Sir Orl. Bridgman, Lord Chief Justice of 
 the Common Pleas ; Sir Matthew Hales, Chief Baron of the Exchequer ; 
 my brother Atkins, Brother Twisden, Brother Tyrell, Brother Turner, 
 Brother Browne, Brother Windham, Brother Archer, Brother Rainsford, 
 and Brother Morton, met together at Serjeant's Inn in Fleet Street, to 
 consider of such things as might in point of law fall out in the trial ot 
 the Lord Morly, who was on Monday to be tried by his peers for a 
 murder ; and we did all una voce resolve several things following : — 
 
 7.^ Agreed, that no words, be they what they will, are in law such 
 a provocation as, if a man kill another for words onl}', will diminish the 
 
 1 Only the 7th and 8th resolutions are given.
 
 470 huggett's case, [crap. vii. 
 
 offence of killing a man from murder to be manslaughter ; as suppose 
 one call another son of a whore, or give him the lie, and thereupon he 
 to whom the words are given, kill the other, this is murder. But if 
 upon ill words, both the parties suddenly fight, and one kill the otlier, 
 this is but manslaughter, for it is a combat betwixt two upon a sudden 
 heat, which is the legal description of manslaughter ; and we were all 
 of opinion that the statute of 1 Jac. for stabbing a man not having first 
 struck, nor having any weapon drawn, was only a declaration of the 
 common law, and made to prevent the inconveniencies of juries, who 
 were apt to believe that to be a provocation to extenuate a murder 
 which in law was not. 
 
 8. Agreed, that if upon words two men grow to anger, and afterwards 
 they suppress that anger, and then fall into other discourses, or have 
 other diversions for such a space of time as in reasonable intendment 
 their heat might be cooled, and some time after they draw one upon 
 another, and fight, and one is killed, this is murder, because being 
 attended with such circumstances as it is reasonably supposed to be a 
 deliberate act, and a premeditated revenge upon the first quarrel ; but 
 the circumstances of such an act being matter of fact, the jury are 
 judges of those circumstances. ^ 
 
 HUGGETT'S CASE. 
 
 Crown Case Reserved. 1666. 
 
 [Reported Kelyng, 59.] 
 
 » At a gaol-delivery at Newgate, 25 April, 1666, 18 Car. 2, upon 
 ^jj indictment of murder against Hopkin Huggett, a special verdict was 
 
 ^^und to this effect : We find that John Berr}-, and two others with 
 him, the day and place in the inquisition, had de facto, but without war- 
 rant (for aught appears to us), impressed a man whose name is not yet 
 known, to serve in his Majesty's service in the wars against the Dutch 
 nation ; that thereupon, after the unknown man was impressed, he with 
 the said John Berry, went together quietly into Cloth-fair ; and the said 
 Hopkin Huggett and three others, walking together in the rounds in 
 Smithfield, and seeing the said Berry and two others with the man im- 
 pressed, going into Cloth-fair, instantly pursued after them, and over- 
 taking Berr}' and the impressed man and the two other men, required 
 to see their warrant, and Berry showed them a paper which Hopkin 
 Huggett and the three others said was no warrant ; and immediately 
 the said H. Huggett and the three others drew their swords to rescue 
 the said man impressed, and did thrust at the said John Berr}- ; and 
 thereupon the said John Berrv and the two others with him did draw 
 their swords and fight together ; and thereupon the said H. Huggett 
 did give the wound in the inquisition to the said John Berry, whereof
 
 SECT. VI.J HUGGETT's CASE. 47x 
 
 he instanti}' died ; and if upon the whole matter, the said H. Hug- 
 gett be guilty of murder they find so ; if of manslaughter they find so, 
 &c. All the judges of England being met together, at Serjeant's Inn, 
 in Fleet Street, upon other occasions (and before that time having 
 copies of this special verdict sent unto them), after the other business 
 dispatched tlic}- were desired to give their opinions in this case, 
 whether they iield it to be murder or manslaughter. And the Lord 
 Chief Justice Bridgmau, Lord Chief Baron Hales, my brother Atkins, 
 Brother Tyrell, Brother Turner, Brother Browne, Brother Archer, and 
 Brother Rainsford, 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- 
 slaughter; and they 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 oth6r 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, in 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 him, this is murder; the law in 
 that case implying malice. And we find it was resolved by 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 bein g murder to be but raan- 
 slauohter. As if one calleth another son of a whore, and giveth him 
 the lie, and upon those words the other kill him that gave the words ; 
 this, notwithstanding those words, is murder ; and we thought those 
 words were apter to provoke a man to kill another than the bare see- 
 ing a man to be unduly 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 the 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 party himself who was impressed was quiet, and 
 made no resistance, and they who meddled were no friends of his, or
 
 472 huggett's case. [chap. vii. 
 
 acquaintance, but were strangers, and did not so much as desire them 
 which had him in custod}' to let him go, but presently 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 ; especially in a na- 
 tion where good laws are for thepunishment 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 sliall 
 not lessen the offence of A. fi'om being murder to be manslaughter 
 onl}' ; and to this the other judges did (as 1 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 off"ence of him who set upon him without prov- 
 ocation. 
 
 But we four held that if two men be quarrelling, and actuall}- fight- 
 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 fra}-, this 
 is but manslaughter ; for there is an open affra}', and actual force, which 
 is a sudden provocation, and so that death which ensueth is but man- 
 slaughter. Bat where people are at peace, there, if anotiier man upon 
 suspicion that an injur}' is done to one of them, will assault and kill 
 him whom he thinketh did the injury, this is murder, so that we hold 
 notliing but an open aff"ray 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- 
 slaugliter. 
 
 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, 3'et 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 
 Blackburn, J , printed in note IX. to Stephen's Digest of Cr Law. — Ed.
 
 SECT. VI.] REX V. THOMPSON. 473 
 
 REGINA V. STEDMAN. 
 Old Bailet. 1704. 
 
 [Reported Foster Cr. L. 292.] 
 
 There being an affray- in the street, one Stedman, a footsoldier, ran 
 hastily towards the combatants. A woman seeing liim run in that 
 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. Holt was at first of opinion, tliat 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 efl"usion 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 by 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 1 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
 
 474 REX V. THOMPSON. [cHAP. VII. 
 
 Southerden, with intent to murder; secondly, with intent to disable 
 iiim ; 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 
 offered 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 yard 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 ; 30U must go with me." 
 The prisoner, without saying anything, presented 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 inevitabl}- 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., Baylej', 
 J., Park, J., Garrow, B., Hullock, 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 awa}', and when the waiting to give notice might have enabled the 
 constable to complete the arrest, was such a provocation as, if death
 
 SECT. VI.] EEGINA V. WELSH. 475 
 
 had ensued, would have made the case manslaughter onl}-, and that 
 therefore the conviction was wrong. Holroyd, J., and Burrough, J., 
 thought otherwise. 
 
 REGINA V. WELSH. 
 
 Central Criminal Court. 1869. 
 
 [Reported 11 *Cox C. C. 336.] 
 
 The prisoner was indicted for that he feloniously and with malice 
 aforethought did kill and slay one Abraham. 
 
 Pater for the prosecution. 
 
 Ribton for the prisoner. 
 
 The prisoner had 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 the 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 readv," replied the deceased, " to pa\' what any indifferent person 
 ma}' say is due." " Not a'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 3'our 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. 
 
 Rxhton, for the prisoner, strove in cross-examination to elicit that 
 there was some blow or push bv 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. 
 
 R}bt07i, 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. 
 
 Keating, J., however, said he should tell the jury that the question
 
 476 REGINA V. WELSH. [CHAP. VII. 
 
 was, not merely whether there was passion, but whether there was 
 reasonable provocation. 
 
 Mibton 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 feloniousl}' and with 
 malice aforethought, that is to sa}' intentionally, without such provo- 
 cation as would have excused, or such cause as might have justified, 
 the act. Malice aforethought means intention to kill. AVhenever 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 b}' 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 \b prhna 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 the}' appear, 
 that the homicide took place under such circumstances as to reduce the 
 crime from murder to manslaughter. Homicide, which would he 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 an}" such evidence, then 
 it is for the jury whether it was such that they can attribute the act to 
 the violence of passion naturall}' arising therefrom, and likel}' to be 
 aroused thereby in the breast of a reasonable man. The law, therefore, 
 is not, as was represented b}' the prisoner's fcounsel, 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 b}' 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 sa}' that if a man, without suffi- 
 cient provocation, gives way to angry passion, and does not use hi& 
 reason to control it — the law does not say 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 a& 
 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. VI.] REGINA V. IIOTHWELL. 477 
 
 to discover in the evidence in this ease any provocation which would 
 sutlice, or approach to such as would suflice, 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 ahead}- 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 tliat 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. AVhat I am bound to tell you is that in law it is necessar}' 
 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 b}- the 
 deceased, but failed to do so. It does not appear that there was any- 
 tliing 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 1 educe the crime to manslaughter. 
 
 Guilty ; sentence, 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. 
 
 Cottmgham for the prosecution. 
 
 Torr for the defence.' 
 
 Blackburn, J., in summing up, said : A person who inflicted a 
 dangerous wound, that is to say, a wound of such a nature as he must 
 know to be dangerous, and death ensues, is guiltv 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 gre.at 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.
 
 478 
 
 MAHER V. PEOPLE. [CIIAP. VII. 
 
 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 liad committed adultery, and he having had no idea of such a 
 thing before, were thereupon to kill his wife, it might be manslaugliter. 
 Now, in this case, words spoken by 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 ordinary 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 concurrency 
 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 by 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 legal 
 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 the}' deserve : and that the court have 
 no right to withdraw the question from the jury by assuming to draw 
 
 1 Part of the opinion only is given.
 
 5EGT. VI. j MAKER V. PEOPLE. 479 
 
 the proper inferences from the whole or any part of the facts proved, 
 as presumption of hiw. If courts could do this, juries might be required 
 to find the fact of malice where they 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 wliich may 
 rest upon peculiar grounds of public 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 duty. 
 
 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 by 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 v. 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
 
 480 MAHEK V. PEOPLE. [CHAP. VII. 
 
 required to be aroused and reason obscured must be considerably short 
 of this, and never beyond that 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. 
 
 The 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 
 act, 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 than 
 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 eff'ect 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 ever}' case be held sufficient or reasonable because such a 
 state of excitement has followed from it j for then, b}^ 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 ver}' wickedness of heart which, in itself, constitutes 
 an aggravation both in morals and in law. 
 
 In determining whether the provocation is sufficient 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
 
 SKCT. VL] MAHER V. PEOPLE. 481 
 
 that the provocation must be one the tendency of which would be to 
 produce such a degree of excitement and disturbance in the minds of 
 ordinary men ; and if they sliould find such 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 my 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 theor}', 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 adequac}' 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. 676 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-
 
 482 MAHEK V. PEOPLE. [CHAP. VII. 
 
 manent or irreparable. The passion excited by a blow received in a 
 sudden quarrel, thougli perhaps equall}* 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 or 
 the dishonor of commercial 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 1860, pp. 7G8, 7G9, 774, 775. In Rex 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 many 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 sufficient for the passion to have cooled, 
 or so to instruct the jurj-, without error ; but the case should be very 
 cleai'. And in cases of applications for a new trial, depending upon tlie 
 discretion of the court, the question may very properly be considered by 
 the court. 
 
 It remains only to apply these principles to the present case. The 
 proposed evidence, in connection with what had alread}' been given, 
 would have tended strongly to show the commission of adultery b}' 
 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 impi'ess upon his mind the belief of tlie 
 adulterous purpose ; that he followed after them to the woods ; tliat 
 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 day before in the woods. I can
 
 SECT. VI. J MAKER V. PEOPLE. 483 
 
 not resist the conviction that this would have been sufficient evidence 
 of provocation to go to the jury, and from which, when talicn in con- 
 nection with the excitement and "great perspiration" exhibited on 
 entering the saloon, tlie hasty manner in which lie approached and 
 fired the pistol at Hunt, it would have been competent for the jury to 
 find that the act was conuuitted in consequence of the passion excited 
 b}- the provocation, and in a state of mind which, within the principle 
 already 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 the 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.
 
 484 ANONYMOUS. [CHAP. VIII. 
 
 CHAPTER VIII. 
 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. 
 
 [Reported Year Book, U Sf \2 Ed. III., 640.] 
 
 A FORESTER was indicted " that he feloniously cut down and carried 
 away trees." The justices would not arraign him, for the felling of trees 
 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 b}' the forester, they questioned 
 tlie 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. 
 
 2 12 Lib. Ass., 32, S. C.
 
 SECT. 1.] REX V. WODY, 485 
 
 REX V. WODY. 
 
 Exchequer Chamber. 1470. 
 
 [Reported Year Book, 10 Ed. IV., U.pl. 9, lO.J 
 
 One William Wody was indicted for that he feloniousl}- took and 
 carried away six boxes, with charters and muniments concerning the 
 inheritance of John Culpepper and Nicholas C, etc., contained in the 
 boxes. 
 
 Suh/nrd. 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 things touch 
 the inheritance of the realty, etc. 
 
 Nele. Ever}' 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 felon}'. 
 
 Golloxo. 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 tliat 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 om^ies justicios. 
 
 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 valentiam., etc., 
 lit supra., etc. 
 
 Littleton, J. The reason why those in the Chancery do not say ad 
 vale7itiani 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 tlie charters ; this, therefore, proves that they are of 
 value. And though the terms ad valentiam and ad dampmim 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, Aldersov, 
 B., said : " I suppose, then, that if a lion was stole in a cage, it would be said that the 
 cage wasye?cE nalurce." — Ed.
 
 486 ANONYMOUS. [CHAP. VIII. 
 
 And on an indictment for burglar}', sc. for breaking a house, one should 
 not say quod f regit doniuni ad €1116)11^171, etc. ; and, sir, so at common 
 law wilful burning of a house was felony, and yet one should not say ad 
 valentiam, etc. 
 
 Billing, C. J. Those are felonies of a different nature from rob- 
 ber}', etc. 
 
 IviTTLETON, J. Because charters concerning the inheritance are of 
 g^reater 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 j^w^Zos espervarios^ cepit, one should 
 state the price, but in trespass quare parcum f regit et damas, etc., 
 one should not state the price, etc., for it is not the use in the 
 Chancery. 
 
 Bingham, J. In your case quare pullos espervarios in nido, etc., 
 the plaintitf 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 fly out of your possession, etc. 
 
 Nedham, J. Felony is only of such thing as the country ma}' have 
 Aiotice 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. Felony 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 by 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 felony or not. And by Fitzherbert and Inglefield [JJ.] 
 it was said that it is not felony, because they are ferce naturm like 
 doves in a dove-cote ; and if the young of such doves are stolen, it is 
 not felony. 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. SEAKING. 487 
 
 And it was also agreed that apples taken out of the orchard which 
 were growing on the trees at the time of taking, or trees growing upon 
 the [soil?] at the time of taking, or grass cut and carried awa}*, is not 
 felony, and even where the}' are taken with felonious intent, because 
 these things at the time of taking are parcel of the franktenement ; but 
 if my trees are cut down bj^ me, or m}^ grass growing on my land is 
 by me cut and severed, and afterward another wdth felonious intent 
 steals it, that is felony. 
 
 FiTZjAMES [C. J.] and the other justices said that peacocks are 
 commonl}' of the same nature as hens or capons, geese or ducks, and 
 the owner has propert}' 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 JVbta. 
 
 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 iarcenj' 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.
 
 488 REGINA V. CHEAFOR. [CHAP. VIII. 
 
 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 July, 1851, the prisoner was indicted for felon- 
 iously stealing four tame pigeons, the propert}' of John Mansell. The 
 pigeons, at tlie time the^' were taken b^- the prisoner, were in the prose- 
 cuto)''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 prisoner's counsel 
 contended that the pigeons being at libcrtj' at an}- 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 b}' the prisoner's 
 counsel was correct, and that the pigeons were not properly the 
 subjects of larcen}'. The jury found the [)risoner guilty of larceny ; 
 but judgment was postponed to ask the opinion of this court whether 
 the learned chairman's direction to the jurj' 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 larceny of chickens, ducks, or any poultry. Whether 
 they were tame or not was a question for the jury. Luke's case (Rose. 
 Cr. Ev. 577) is said by Mr. Greaves i 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 the}- please. 
 
 Conviction affirmed. 
 
 1 The passage referred to is 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." — Rkp.
 
 BECT. I.] KEGINA V. WATTS. 489 
 
 REGINA V. WATTS. 
 Ceown Case Reserved. 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, 1853, 
 for stealing on the 3d da}' of May, 1853, a piece of paper, tlie propert}' 
 of the prosecutor, Francis Patteson, and was convicted. The 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 which 
 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- 
 ployed, 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 monej' 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 by the prisoner, it was, in reality, a subsisting 
 and valid agreement, and therefore not the subject of larceny (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 conviction 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 
 
 ^ The arguments are omitted.
 
 490 KEGINA V. WATTS. [CHAP. YIII. 
 
 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 larceny 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 tlie 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 tahulis ; 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 by 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 tiie agreement is still executory, and might be used by 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 wholly void, and those which may be rendered available at 
 any moment by having a stamp impressed upon them. There are 
 many cases in whicli 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 
 rio-ht. To an action on an agreement a plea that it was not stamped is 
 clearly bad, for the agreement may 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 larceny committed; but 
 it then had a potentiality of being rendered available, and it was 
 evidence of an agreement ; it was therefore evidence of a chose in 
 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 larceny 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 Ijy 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 larceny. 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.] KEGINA V. WATTS. 491 
 
 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. 
 
 Aldersox, B. I agree with Lord Campbell that this was an agree- 
 ment at the time it was stolen. If the writing only becomes an agree- 
 ment at the time when it is stamped, how is it that j'ou maj' declare 
 upon an unstamped agreement? If the agreement only dates from the 
 stamping, the cause of action does not arise until the time of stamping, 
 and, therefore, subsequently to the declaration. This seems to prove 
 that the thing has existence as an agreement, though without a stamp 
 it is not admissible in evidence. The reason why title-deeds and 
 choses in action are not the subject of larceny, is because the parch- 
 ment is evidence of the title to land, and the written paper is evidence 
 of a right ; and, though the instrument is stolen, the right remains the 
 same. It has, however, no existence in point of law, as a piece of 
 paper or parchment merely, but is to be considered as part of the right 
 or title ; and the extent to which this is carried appears from the 
 passage in Lord Coke (3 Inst. 109), in which even the box containing 
 tlie charters is treated as part of the title also. The paper becomes 
 evidence of a right, and ceases to have any existence as anything 
 else. 
 
 Coleridge, J. I am of the same opinion with Lord Campbell and 
 my brother Alderson. It is admitted that if this agreement had been 
 stamped, it would not have supported a charge of stealing a piece of 
 paper, a higher character having been given it, and its character as a 
 piece of paper having been thereby absorbed ; and, though unstamped, 
 I think that is still the case. If the objection was taken at Nisi Prius, 
 the judge would look at the paper to see what its character was ; it 
 would then appear to have written on it an agreement ; and, but for 
 the Stamp Act, it would be the evidence and the only evidence of the 
 agreement ; and even, though rendered inadmissible by that Act, it has 
 the effect of excluding all parole evidence of that contract. It is true 
 that it is not in a condition in which it can be effectually sued upon ; 
 but it is capable of being rendered complete as evidence, bj' being 
 stamped ; and it would not acquire any new character bj- the stamp- 
 ing; it would still be the same evidence of a chose in action, rendered 
 admissible in evidence by reason of the stamp. As soon as the instru- 
 ment is signed it becomes an agreement, and it is only because the 
 stamp laws interfere that it is prevented from being used in evidence. 
 The point is extremely subtle ; and one regrets that the fate of
 
 492 REGIN/iL V. SHICKLE. [CHAP. VIII. 
 
 parties in a court of justice should depend upon distinctions so nice ; 
 but upon the best consideration which I can give to the case, it seems 
 to me that the conviction is wrong. 
 
 Maule, J. I am of the same opinion. I think, indeed everybod}' 
 thinks, that this is an unstamped agreement ; and if it is an agreement, 
 it is not the subject of larceny. When one speaks of a piece of paper as 
 being an agreement, it means that the paper is evidence of the right ; 
 and as a right cannot be the subject of larceny, neither is the paper 
 which is evidence of it. 
 
 WiGHTMAN, J., and Cresswell, J., concurred. 
 
 Platt, 13. I, also, am of the same opinion. If an action were 
 brought upon this instrument, the declaration and all the pleadings 
 would describe it as an agreement; and it becomes so, in my opinion, 
 as soon as it is signed by both parties, though not available in evi- 
 dence witliout the impression of a stamp. The mode of taking tne 
 objection at Nisi Prius proves the same thing. The witness is asked 
 whether the agreement was not in writing ; and when he answers 
 " 3'es," and the instrument is produced, the judge looks at it, and 
 finding it to be an agreement (because upon no other ground could he 
 do so), rejects it for want of a stamp. It would surely be strange to 
 hold that it was no agreement until it was stamped, when the necessity 
 for a stamp arises from its being an agreement. According to that 
 argument, if tlie instrument is stamped the prisoner must be acquitted ; 
 but if not stamped, convicted. But it seems to me that that would be 
 to bring a man within the reach of the criminal law b}' a side wind, and 
 a degree of subtlet}' consistent neither with law or justice. 
 
 Williams, J., and Martin, B., concurred. 
 
 Crompton, J. I think there is sufficient proof that this was a sub- 
 sisting agreement ; and it wants stamping because it is an agreement. 
 
 Conviction reversed. 
 
 REGINA V. SHICKLE. 
 
 Crown Case Reserved. 1868. 
 [Reported L. R. 1 C. C. 7Z. 158; 11 Cox C. C. 189.] 
 
 The following case was stated by Cockburn, C. J. : — 
 
 James Shickle was tried before me at the last assizes for the County 
 
 of Suffolk on an indictment for larceny for stealing eleven tame 
 
 partridges. 
 
 There was no doubt that the prisoner had taken the birds a7iimo 
 
 furandi, but a question arose whether the birds in question could be the 
 
 subject of larceny ; and the prisoner having been convicted, I reserved 
 
 the point for the consideration of the court.
 
 SECT, l] REGINA V. SHICKLE. 493 
 
 The birds in question bad been reared from eggs which had been 
 taken from the nest of a hen partridge, and which had been pUiced 
 under a common lien. They were about three weeks old, and could fly 
 a little. The hen had at first been kept under a coop in the prosecu- 
 tor's orchard, the young birds running in and out, as the brood of a 
 hen so confined are wont to do. The coop had however been removed 
 and the hen set at liberty, but the young birds still remained about the 
 place with the hen as her brood and slept under her wings at night. 
 
 It is well known that birds of a wild nature, reared under a common 
 hen, when in the course of nature they no longer require the protection 
 and assistance of the hen and leave her, betake themselves to the 
 woods or fields, and after a short time diflfer in no respect from birds 
 reared under a wild lien of their own species. 
 
 The birds in question were neither tame by nature nor reclaimed. 
 If the}- could be said to be tame at all it was only that their instinct 
 led them during their age of helplessness to remain with the hen. On 
 their attachment to the hen ceasing, the wild instincts of their nature 
 would return and would lead them to escape from the dominion and 
 neighborhood of man. On the other hand, from their instinctive at- 
 tachment to the hen that had reared them, and from their inability to 
 escape, they were practically in the power and dominion of the prose- 
 cutor. The question is whether, under the circumstances, there can be 
 such property in birds of this description as can be the subject-matter 
 of larcen}'. 
 
 Douglas, for the prisoner. These birds areferce Jiaturce, and unless 
 reclaimed are not the subject of larceny. The case finds that they 
 were not tame nor reclaimed ; that they were restrained by their in- 
 stinct only from betaking themselves to the woods or fields, not being 
 confined in any way. They could not therefore be the subject of 
 larcen}-. 
 
 No counsel appeared for the Crown. 
 
 BoviLL, C. J. I am of opinion that upon the facts stated, the ques- 
 tion asked of us must be answered in the affirmative, and that the 
 conviction is right. The case states that " from their inability to es- 
 cape they were practically in the power and dominion of the prosecu- 
 tor." That is sufficient to decide the point. In Regina v. Cory, 10 Cox 
 C. C. 23, the law on the subject is very clearly laid down by my brother 
 Channell. He there says, speaking of pheasants, hatched under cir- 
 cumstances similar to those here: "These pheasants, having been 
 hatched by hens and reared in a coop, were tame pheasants at the 
 time they were taken, whatever might be their destiny afterwards. 
 Being thus, the prosecutor had such a property in them that they would 
 become the subject of larceny, and the inquiry for stealing them 
 would be of precisely the same nature as if the birds had been com- 
 mon fowls or any other poultry, the character of the birds in no way 
 affecting the law of the case, but only the question of identity." In 
 that statement of the law we all concur. The question here is. Were
 
 494 STATE V. TAYLOR. [CHAP. VIII. 
 
 these birds the subject of propert}'? They were so when first hatched, 
 and they remained so at the time they were taken by the prisoner, 
 though it might be that at a later period the}' would become wild 
 and cease to have an owner. The prisoner therefore was rightly 
 convicted. 
 
 Channell, B., concurred. 
 
 Byles, J. I am of the same opinion. The usual cases of larceny 
 of animals are those of animals which being at first wild have become 
 tame and reclaimed. In this case the only difference is that the birds 
 here are tame and have been so from their birth, though thej" may be- 
 come wild at a future time. 
 
 Blackburn and Lush, JJ., concurred. 
 
 Convictioji affirmed. 
 
 X 
 
 STATE V. TAYLOR. 
 Supreme Court of New Jersey. 1858. 
 
 [Reported 3 Butcher, 117.] 
 
 Green, C. J.^ The indictment charges the defendant with stealing 
 " eighteen bushels of oysters, of the value of eighteen dollars, of the 
 goods and chattels of one George Hildreth." It is objected that oysters 
 being animals ferce natiirce, there can be no property in them, unless 
 they be dead or reclaimed, or tamed, or in the actual power or posses- 
 sion of the claimant ; and that the want of such averment is a fatal 
 defect in the indictment. 2 Bla. Com. 390, 392 ; Arch. C. P. 116 ; 3 
 Chitty's Cr. L., 947 ; Wharton's C. L. §§ 1754-55. 
 
 The principle, as applied to animais/erce naturm, is not questioned. 
 But oysters, though usually included in that description of animals, 
 do not come within the reason or operation of the rule. The owner 
 has the same absolute property in them that he has in inanimate things 
 or in domestic animals. Like domestic animals, they continue perpetu- 
 ally in his occupation, and will not stray from his house or person. 
 Unlike animals/er^ /i«^Mrce, thev do not require to be reclaimed and 
 made tame by art, industry, or education ; nor to be confined, in order 
 to be within the immediate power of the owner. If at libert}-, the}- 
 have neither the inclination nor the power to escape. For tlie purposes 
 of the present inquirv, the}' are obviously more nearly assimilated to 
 tame animals than to wild ones, and. perhaps, more nearly to inanimate 
 objects than to animals of either description. The indictment could 
 not aver that the oysters were dead, for they would then be of no value ; 
 nor that they were reclaimed or tamed, for in this sense they were never 
 
 1 See also Regina f. Head, 1 F. & F. 350. 
 
 2 The opinion only is given ; it sufficiently states the case. Part of the opinion, not 
 involving any question of larceny, is omitterl 
 
 I
 
 SECT. I.] STATE V. TAYLOR. 495 
 
 wild, and were not capable of domestication ; nor that they were con- 
 fined, for that would be absurd. The only averment that could be 
 made is, that they had been gathered, or were in the actual possession 
 of the prosecutor, which certainly is not necessary in order to sustain 
 the indictment. Under our laws there may be property in oysters 
 growing naturally upon the laud of another person, and which the 
 owner may have acquired b}- purchase. In regard to these, it would 
 not be averred that they had ever been gathered or been under the con- 
 trol of the owner or in his possession, actual or constructive, further than 
 inanimate objects are in the possession of the owner, upon the principle 
 that property in personal chattels draws after it the possession. The 
 indictment is not defective. 
 
 The more material question in the cause is whether, upon the case 
 stated, the oysters in question were the subject of larceny. Was the 
 law upon this point correctly stated in the charge to the jury? The 
 jury were instructed that if the same oysters which were planted by 
 Hiidreth were unlawfully taken by the defendant, with the intent to 
 steal them : if the oysters so planted could be easily distinguished from 
 other oysters that grew in the sound ; if they were planted in a place 
 where oysters did not naturally grow ; if the place where they were 
 planted was marked and identified, so that the defendant and others 
 going into the sound for clams and oysters naturally growing there 
 could readily know that these oysters were planted and held as private 
 property, and were not natural oysters, or in or upon a natural oyster 
 bed, then the oysters were the subject of larceny, and the defendant 
 might be convicted. But if the jury believed that the oysters were 
 planted in or upon a natural bed, they should be considered as aban- 
 doned to the public, and not the property of Hiidreth ; or, if the jury 
 believed that the planted oysters were not marked and identified, as 
 before stated, the defendant should be acquitted. 
 
 'I'here is clearly nothing in the charge that conflicts with the well- 
 settled law of the State, as decided in Arnold v. Mundy, 1 Halst. 1, 
 namery, that arms of the sea, including both the waters and the land 
 under the waters, for the purposes of navigation, fishing, and all other 
 uses of the water and its products are common to all the people of the 
 State. Nor is there anything in the charge in conflict with the princi- 
 ples which appear to have been adopted by the court in the earlier case 
 of Shcpard and Layton v. Leverson, Penn. 391. The facts in evidence 
 clearly distinguish tlie present case from that of Shepard and Layton v. 
 Leverson. In that case it was not shown that the oysters taken by the 
 defendant were the identical oysters planted by the plaintiff ; nor was 
 there any mode by which the oysters of the plaintifi" could be idejitified. 
 Neither of those difficulties exists in the present case. 
 
 The oysters in question had once been the property of Hiidreth. The 
 only question is, whether the planting of these oysters in a public 
 sound, where all the inhabitants have a common right of fishery, was 
 necessarilv an abandonment, or a return of the property to the common
 
 496 STATE V. TAYLOR. [CHAP. VIII. 
 
 Stock. There was clearly no intention on the part of the owner to 
 abandon his property ; on the contrary, thej- were gathered and planted 
 expressl}- for the benefit of the owner. If an abandonment is to be 
 presumed, it will be a legal intendment directl}- 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, 7iot being willi?ig 
 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. Cora. 9, 402. 
 
 It was held by the Chief Justice, in the case of Shepard and La3'ton 
 V. Leverson, that the mere act of throwing the OA'sters into a public 
 river, where all the inhabitants have a common right of fisher}-, 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 may be known and resumed at pleasure, then the 
 intention may be made a question. Now this case finds that the oysters 
 in question could readil}' be identified ; that no oysters grew naturally 
 where the}- 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 naturall}' 
 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 v. Hegeman, 14 Wend. 42, it was held b}- the Supreme 
 Court of New York that oysters planted b}- an individual in a bed 
 clearl}' designated in a ba}' or arm of the sea, which is a common 
 fishery, are the property of him who planted them, and that, for taking 
 them away by another, trespass lies. This case was approved in Decker 
 y. 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 sU'Stain the instruction given to the jury 
 in the present case.
 
 SECT. I.] COMMONWEALTH V. SHAW. 497 
 
 COMMONWEALTH v. SHAW. 
 Supreme Judicial Court of Massachusetts. 1862. 
 
 [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 
 property, 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 b}' 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 compan}-, and to avoid paying for the gas, made a 
 connection b}^ 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 company. 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. 
 
 «/] J^. Pickeri7ig, 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 feloniousl}' 
 taken and carried away. It is a valuable article of merchandise, bought 
 and sold like other personal property, 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 companj- bv 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-
 
 498 MULLALY V. PEOPLE. [CHAP. YIII. 
 
 pany of their propert}-, and to appropriate it to her own use, clearly 
 constituted the crime of larcen}'. 
 
 It was suggested by the counsel for the defendant that, if she was 
 guilt}' of an}- offence, it was not larcenj', but embezzlement, inasmuch 
 as it appeared that the gas was intrusted to her possession b}- the corn- 
 pan}', 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.^ 
 
 Excejitions 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 S25. 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 i)ronounced at the general term leaves but little 
 to be written now. At common law the crime of larceny 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.
 
 SECT. I.J MULLALY V. PEOPLE. 499 
 
 Cr. Law (4tli ed.), § 1755; 4 Black. Cora. 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 mez'e whim and pleasure of their owners. When we 
 call to mind the small spaniel that saved the life of William of Orange, 
 and thus probably changed the current of modern history (2 IVIotley's 
 Dutch Repul)lic, 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 tliat 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 extrerael}' technical, and can scarcely be 
 said to have had a sound basis to rest on. AVhile 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 ferm naturcB, being re- 
 claimed, felony may be committed in respect of their noble and generous 
 nature and courage, serving oh vitm 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 
 the}^ 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 mutati- 
 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. that every person who shall be convicted of stealing
 
 500 MULLALY V. PEOPLE. [CHAP. VIII. 
 
 "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 
 he taken literally, and tliat the law-makers meant to make it the crime 
 of larceny to steal any chattel which had value and was recognized by 
 tlie 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 ma}- 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, bv 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 effect are the only judicial de- 
 cisions npon this subject which have been rendered in this State, so far 
 as thev have come to our knowledge. People v. Maloney, 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, 571 ; 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 affirmecV 
 
 1 Ace. Haywood v. State, 41 Ark. 479. See Hurley i^. State, 30 Tex. App. 
 333. — Ed.
 
 SECT. I.] KEGINA V. MOKEISON. 501 
 
 REGINA V. MORRISON. 
 
 Crown Case Reserved. 1859. 
 
 [Reported Btll C. C. 158.] 
 
 Crompton, J. We are of opinion that this conviction is right, and 
 onght to be affirmed. The question is whether a pawnbroker's ticket, 
 in tlie usual form, is the subject of larcen\-, and is properly described 
 either as a warrant for the delivery of goods, a pawnbroker's ticket, or 
 a piece of paper. AVe think that the instrument in question is a 
 ''warrant for the delivery of goods" within the meaning of the 7 & 8 
 Geo. 4, c. 29, s. 5, and that the stealing of such a document is an 
 offence subjecting the offender to the same punishment as if he had 
 stolen chattels of the like value as the value of the goods mentioned in 
 the document. . . .^ But, supposing such a ticket not to be a warrant 
 for the delivery of goods within the provisions of that statute, we are 
 of opinion, on the other point in the case, that the conviction was right 
 as for stealing a pawnbroker's ticket or piece of paper. It clearly is so 
 unless it fall within the rule of the common law by which certain docu- 
 ments of title, and certain documents concerning mere choses in action, 
 were not the subjects of larceny. We are not at liberty to infringe 
 a rule so long settled, and which has been acted upon until the presem; 
 time, but we should be very reluctant to extend such a rule, and we 
 ought to be careful not to apply it to cases to which the authorities do 
 not clearly shew it to be applicable. The state of the law in this le 
 spect was well remarked upon a hundred years ago by counsel — 
 Strange, 1135, Rex lk Westbeer. He says, " If I steal a skin of parch- 
 ment worth a shilling, it is a felony, but when it has 10,000/. added tr, 
 its value by what is written upon it, it is no offence to take it away ; " 
 and he proceeds to say, ''The use to be made of this observation is, 
 that so far as the law is settled, it is not to be altered ; but if it doe^t 
 not exempt this particular case, there is no reason to exclude it; " a^ir'. 
 in this remark we fully concur. Documents of title to real property ave 
 not the subject of larceny, but we find no rule extending such doctrine 
 to documents and tokens shewing a right to personal property ; aucf; 
 the way in which the rule is enunciated as to real property seems tj 
 shew that it does not apply to documents relating to personalty 
 Again, if it is a document relating to, or concerning a mere chose i,] 
 action, as a bond, bill, or note, that is, as I understand it, a matter 
 resting in contract, and giving a right by way of contract only, it is not 
 the subject of larceny. In the Queen i>. Watts, Dears. C. C. R. 326, 
 Alderson, B., asks, " Is not the reason why a chose in action is not the 
 subject of larceny this, because it is evidence of a right, and that you 
 cannot steal a man's right"? And Maule, J., page 335, observes: 
 1 The discussion on this point is omitted. — Eo.
 
 502 REGINA V. MORRISON. [CHAP. VIII. 
 
 " When one speaks of a piece of paper as being an agreement, it means 
 that the paper is evidence of a right, and, as a right cannot be the 
 subject of larceny, neither is the paper, which is evidence of it." 
 Wliere, however, the thing represented by the paper is not a mere 
 right of contract or chose in action, but is a personal chattel, to the 
 property and right of possession of which the party has a right to treat 
 himself as entitled, tiie rule does not seem to apply. The thing to 
 which the document has reference is personal property wliich may be 
 stolen ; and the words in which the rule is enunciated appear to us 
 to treat such documents as not within the exception. The rule will 
 be found laid down in the same, or nearly the same, words from the 
 earliest time; see Roscoe's Criminal Law, by Power, 612, and the 
 authorities there cited. This rule is stated to be "that bonds, bills, 
 and notes, which concern mere choses in action, were held at common 
 law not to be such goods whereof felony miglit be committed, being of 
 no intrinsic value, and not importing any property in possession of the 
 party from whom they are taken." This clearly excludes from the rule 
 documents of title importing property in possession of the party, and, 
 remembering the former pai-t of the rule, as to documents of title, so 
 carefully confined to realty, we think that such documents of title to 
 personalty cannot be considered within the rule. If it is a mere 
 agreement to deliver property, not tlie party's own, or not specific, it 
 would, we think, be within the rule. It v.-ould rest in agreement, 
 would confer a right of action only, and would be in every respect a 
 chose in action. But we look at the pawnbroker's tit;ket as importing a 
 property in possession. We had some doubt at first whether the 
 party could be said to have the right to the property in possession 
 according to the meaning of the rule ; but it is quite clear that the 
 possession of the bailee, or pawnee, is the possession of the bailor or 
 pawnor for the purpose of an indictment, and he has a right to lay the 
 goods pawned or bailed as his goods, that is, as goods his property and 
 in his possession : goods pawned, and the like, may be laid to be the 
 goods and chattels of the person to whom they are so entrusted, or of 
 the owner, at the option of the prosecutors; see Jervis Archbold, by 
 Welsby, 14th edition, 34, where the authorities on this subject are col- 
 lected. We think, therefore, that we should be extending the rule 
 further than we are warranted by any authority in doing if we were 
 to hold that it extended further than to cases where the document 
 concerns choses in action merely, and is only an agreement to deliver 
 personal property, not the party's own ; and we think that in the 
 present case the document relates to personal property to which the 
 party is entitled, and that he is not the less entitled to the possession 
 because there is a lien, which there is in so many cases of bailment, 
 where such lien does not interfere with the right of property or posses- 
 sion as far as concerns indictments. It should be observed that this 
 construction by no means makes the provisions of the 7 & 8 Geo. 4 
 useless, as that statute has the effect of making the stealing, which
 
 SECT. I.] KEGINA V. MORRISON. 503 
 
 might otherwise be the stealing of a chattel of extremely small value, 
 a stealing of a chattel of the like value as the value of the goods men- 
 tioned in the document; and as there may be cases of orders for the 
 delivery of goods which import no property in any specific goods, 
 and where the rights of the holder may only depend on a contract 
 to deliver some goods, so that the document is in effect the evidence 
 of a mere chose in action, and would not be the subject of larceny 
 if not within the provisions of the statute. We should add that it 
 would be very difficult to hold the present ticket not to be the subject 
 of larceny without overruling the case of Regina v. Boulton, 1 Den. C. 
 C. R. 508, a decision in this court binding upon us. It was there held 
 that a railway ticket in the usual form was a chattel, and the subject of 
 an indictment for obtaining goods under false pretences. That, like 
 the ticket in the present case, was in the nature of a token, and it evi- 
 denced the right of being carried on the railway without further 
 charge, and it was more in the nature of a mere agreement and 
 of a document concerning a mere chose in action than the present, 
 where it imported a right to personal property. The court held it, 
 however, to be a chattel, valuable as conferring the privilege of travel- 
 ling without further payment. If the ticket in the present case be the 
 subject of larceu}-, and not within the exception referred to, the 
 description of a "pawnbroker's ticket," or of a " piece of paper," is 
 clearly sufficient. For these reasons we think that the conviction is 
 right, and that it ought to be affirmed. Conviction Affirmed.
 
 504 REX V. WALSH. [chap. VIII. 
 
 SECTION 11. 
 
 Possession. 
 (a) The Act of Assuming 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, Januaiy, 1824, on an indictment 
 for stealing a leathern bag containing small parcels, the property of 
 William Ra}', the guard to the Exeter mail. 
 
 At the trial it appeared that tlie 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 b}- 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. 
 The}' 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.
 
 SECT. II.j REGINA V. WHITE. 505 
 
 REGINA V. WHITE. 
 CuowN Case Reserved. 1853. 
 
 [Reported 6 Cox C. C. 213 ; Deaislej/ C. C. 203.] 
 
 The prisoner was indicted at tlie last Quarter Sessions for Berwick- 
 upon-Tweed for stealing 5000 cubic feet of carburetted liydrogen gas of 
 tlie 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 
 supply of his house with gas to be paid for by 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 compan3'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 only to pay them for such 
 quantity of gas as appeared by the index of the meter to have passed 
 through it. The entrance and exit pipes were the property of the 
 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 company, 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 by shutting the stop-cock in the con- 
 necting pipe the supply was cut off. Tliis 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 b}- the consent of the compan}- as soon as 
 it had been let into his entrance pii)e out of their main, and that his 
 diverting the gas in its course to the meter was not an act of larcenj-. 
 I told the jury that if they were of opinion on the evidence that the 
 entrance pipe was used by the company- 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 
 by 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
 
 506 KEGINA V. WHITE. [CHAP. VIII, 
 
 in the entrance pipe to constitute an asportavit by the prisoner ; and 
 that if the gas was so abstracted with a fraudulent intent he was guilty 
 of larceny. The jury answered the questions put to them in the affir- 
 mative and found the prisoner guilty ; I 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 the 
 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. 
 
 Lord Campbell, C. J. He took the gas from the companj' 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 hardl}' have 
 been done if it had been regarded as a larceny. 
 
 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 b}- 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 guilt}' 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 onl}' the voucher of an ac- 
 count, and if there is a deliver}' according to contract on the one hand 
 and onl}' a fraudulent dealing with a voucher on the other, there is no 
 larcen}'. 
 
 Lord Campbell, C. J. I think that the conviction ought to be 
 affirmed and that the direction of the learned lecorder 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 the company. 
 Then, being in the possession of the company and their property, it is 
 taken away anir)xo furandi by the prisoner. If the propert}' 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 jurj' also
 
 SECT. II.] COMMONWEALTH V. BARRY. 507 
 
 have found — it was larceny. As to the Act of Parliament the legis- 
 lature has for convenience sake added a specific penalty, but that can- 
 not reduce the offence to a lower degree. My brother Maule has, 
 however, given a probable explanation of that provision. 
 
 Parke, B., Maulk, J., Talfoukd, J., and Maktin, B., concurred. 
 
 Conmction affirmed. 
 
 COMMONWEALTH v. BARRY. 
 Supreme Judicial Court of Massachusetts. 1878. 
 
 [Rejmrted 125 Jhissacfiusetts, 390.] 
 
 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 tiavelling 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 Maj'' 
 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 H ; 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 fiading
 
 508 COMMONWEALTH V. BARRY. [CHAP. VIII. 
 
 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 the trunk and valise, and that the asportation of the 
 trunk and its contents was done b}' some other person, they cannot 
 convict of larceny. 3. There is no evidence in the case to warrant the 
 jur}' in finding that the defendant did anything more than to change tlie 
 checks on the trunk and valise, having previously arranged with some 
 other person so to do. 4. If the jury find that tiie defendant arrangeil 
 with BriiTg-s that the former should change the checks on the trunk and 
 valise, and lie 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 sufficient, in order to convict the de- 
 fendant, that they should be satisfied beyond a reasonable doubt 
 " 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 corresi)onding 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 on 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^ Attorne}* General, for the Commonwealth. 
 
 Lord, 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 tlie 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 agenc}', by which the trunk and contents were to be 
 removed from the possession of the true owner, and put into the
 
 SECT II.j COMMONWEALTH V. BAKRY. 50'J 
 
 defendant's possession, and b^' means of such agency effected the 
 purpose ; and the temporaiy 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 as no question was raised 
 upon this subject, it is taken to be true tliat 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, b}' the instructions of the presiding judge, the jury were author- 
 ized to find the defendant guilt}- of larceny, 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 b}' 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 m}' horse, take out a 
 rei)levin, and thereb}' have the horse delivei-ed to him b}' the sheriff ; 
 or if one intending to rifle my goods get possession from the sheriff, 
 by 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, 
 by 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. Wilkins' 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 oflfender's own hand. 
 
 The case has been argued as if it was intended by 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. Tlie 
 real question was, whether the defendant at that time feloniously and 
 with intent to steal, set in motion an innocent agencj', b}' 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.
 
 510 EDMONDS V. STATE. [CHAP. VIII. 
 
 the offence of larcen}' was committed, such asportation having been 
 caused by him, b}' fraudulent means, and through an innocent agent, 
 unconscious of what, in fact, he was doing. As soon as the trunk was 
 placed on board the cars, checked, 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 when the 
 actual manual possession came into the hands of the parties important, 
 the}- having all the time the constructive possession and the real con- 
 trol of it. 
 
 The instructions prayed for b}' the 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 jurj' 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 of Alabama. 1881. 
 
 [^Reported 70 Alabama, 8.] 
 
 SoMKRviLLE, J. The indictment in this case charges the defendant 
 with the larceny of a hog, which, under the statute, is made a felon}', 
 without reference to the value of the animal stolen. Code, 1876, § 4358. 
 The onl}' evidence in the case, showing an}' caption, or asportation of the 
 animal, was the testimony of an accomplice, one Wadworth, who 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 the property, 
 if done feloniously, as was necessary to make out the offence of larceny. 
 
 We think the court erred in giving this charge, though the question 
 presented is not free from some degree of doubt and difficulty. The 
 usual definition of larceny is, " the felonious taking and carr}ing away
 
 SECT. II.j EDMONDS V. STATE. 511 
 
 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 property in 
 them." Rose. Cr. Ev. G22. 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 away, which may be accomplished by 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 frequently 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 v. 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 difBculty 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, § 805. 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 virtually 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
 
 512 THOMPSON V. STATE. [CHAP. VIII. 
 
 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 previously 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 judgment of the Circuit Court is reversed, Mid 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 linocked out of his hand or was taken by 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 carrvinsr awav of the 
 money, although defendant never got possession at any time of said 
 money." This cliarge 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 b}- 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, yet the offence is 
 not complete if the accused fails to acquire such dominion over the 
 property 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 money was knocked out of the owner's hand, if it fell 
 to the ground and the defendant never got possession of it. The defen- 
 dant was not guilt}^ of larcen}' if he did not get the money under his 
 control. If the attempt merel}' caused the money to fall from the 
 owner's hand to the ground, and the defendant ran oflT without getting 
 
 1 Ace. Hardeman v. State, 12 Tex. App. 207. See Croom v. State, 71 Ala 14; 
 Lnndj i-. State, 60 Ga. 143 ; State v. Alexander, 74 N. C. 232 — Ed.
 
 SECT. II.] PEOPLE V. MEYER. 513 
 
 it, the larceny was not consummated, as the dominion of the trespassei 
 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, 1 Keversed and remanded. 
 
 PEOPLE y. MEYER. 
 Supreme Court of California. 
 
 [Reported 75 Cal. 383.] 
 
 Sharpstein, J.^ — The defendant was tried on an information, in 
 which it was charged that he wilfully, unlawfully, and feloniously stole, 
 took, and carried away one overcoat, of the value of twenty dollars, 
 the personal property of Harris Joseph and Lewis Joseph. On the 
 trial Lewis Joseph testified as follows : — 
 
 " I had, as usual, placed and buttoned an overcoat upon a dummy 
 which stood on the sidewallc outside of my store. I was inside the 
 store and heard the chain of the dummy rattle, and on coming outside, 
 found defendant with said coat unbuttoned from the dummy and under 
 his arm, the same being entirely removed from the dummy, and about 
 two feet therefrom and from the place where it had been originally 
 placed on the dummy by me, and the accused was in the act of walking 
 off with said coat wlaen grabbed In' me, he being prevented from taking 
 it away because said coat was chained to the dummy by a chain which 
 ran through the coat-sleeve, and the dummy was tied to the building 
 by a string." 
 
 This was the only evidence introduced to prove the charge of lar- 
 ceny. The jury on this evidence returned a verdict of guilty of petit 
 larceny as charged, and the defendant, having pleaded guilty of prior 
 convictions of other petit larcenies, was sentenced to imprisonment in 
 the state prison for the term of two years. 
 
 He moved for a new trial, which was denied, and from that order 
 and the judgment this appeal is taken. 
 
 Appellant insists that the verdict is contrary to the evidence, which 
 it is claimed does not prove that the defendant carried away the coat 
 which he is charged with having stolen, but proves he did not. 
 
 " Larceny," as defined in the Penal Code of this state, " is the felo- 
 nious stealing, taking, carrying, leading, or driving away the personal 
 property of another." This is substantially the common-law defini- 
 tion, under which it was held that it must be shown that the goods 
 were severed from the possession or custody of the owner, and in the 
 
 1 Ace. Rex V. Farrel, 2 East P. C. 557 ; Com. v. Luckis, 99 Mass. 431. —Ed. 
 * Part of the case discussing a question of evidence is omitted. — Ed.
 
 514 . PEOPLE V. MEYER. [CHAP. VIIL 
 
 possession of the thief, though it be but for a moment. Thus where 
 goods were tied by a string, the other end of which was fastened to the 
 counter, and the thief took the goods and carried them towards the 
 door as far as the string would permit, and was then stopped, this was 
 held not to be a severance from the owner's possession, and conse- 
 quently no felony. (3 Greenl. Ev., sec. 155.) 
 
 " In the language of the old definition of larceny," says Bishop, 
 " the goods taken must be carried away. But they need not be re- 
 tained in the possession of the thief, neither need they be removed 
 from the ownei-'s premises. The doctrine is, that any removal, how- 
 ever slight, of the entire article, which is not attached either to the soil 
 or to anything not removed, is sufficient ; while nothing short of this 
 will do." (2 Bishop's Crim. Law, sec. 794.) 
 
 The attorney -general admits that this is the doctrine of the English 
 cases. 
 
 In State ii. Jones, 65 N. C. 395, the court says : " There must be an 
 asportation of the article alleged to be stolen to complete the crime of 
 larceny. The question as to what constitutes a sufficient asportation 
 has given rise to many nice distinctions in the courts of England, and 
 the rules there established have been generall}' observed by the courts 
 of this country." 
 
 People V. Williams, 35 Cal. 671, was not so clearly within the ruin 
 as this case is, but the court said that it did not feel at libert}' to 
 depart from a rule so long and so firrah' established b^- numerous deci- 
 sions. Tested by that rule, the evidence in this case was clearly in- 
 sufficient to justify the verdict, and the defendant is entitled to a new- 
 trial on that ground. Judgment and order reversed.
 
 SECT. n.J STATE V. HUNT. 515 
 
 STATE V. HUNT. 
 
 Supreme Court of Iowa. 1877. 
 
 [Reported 45 Ta. 673.] 
 
 Defendant was indicted and convicted of the crime of grand larceny, 
 and sentenced to confinement in the penitentiary for eighteen months. 
 His case is brought to this court on appeal. 
 
 Beck, J.^ The main objection to the conviction of defendant is based 
 upon the ground that the evidence does not support the verdict of the 
 iury. The property which defendant was charged with stealing was a 
 steer. It was impounded by the marshal of Independence, and adver- 
 tised for sale, under a city ordinance. At the day of sale, defendant, 
 who was employed as auctioneer to sell the animal and another in the 
 pound, claimed the steer and sold it to a butcher, by whom it was 
 killed. The owner of the steer, after it was butchered, identified it by 
 the hide and certain marks. There can be no doubt that it was his 
 property; in fact, this is not denied. Defendant, upon the owner 
 making claim to the property, paid him the sum he had received from 
 the butcher. It is insisted that the evidence fails to show a felonious 
 intent on the part of defendant, but establishes the fact that the prop- 
 erty was sold by defendant under the honest claim and belief that it 
 was his own. It is true that the defendant, after he had seen the steer 
 in the pound, did state that it was his property, and that it had strayed 
 from his possession. But accompanying this claim was an inquiry ad- 
 dressed to the marshal as to the consequences that would result if it 
 proved to be the property of another. He was informed that he would 
 be required to pay the owner the value of the animal. . . . 
 
 It is argued that there was no evidence of the taking of the ani- 
 mal—that if it be conceded the property was not defendant's and 
 was not sold in the belief of his ownership, the facts show simply a 
 sale of property by defendant which he did not own, and not a larceny. 
 But defendant asserted his ownership and claimed the possession by 
 the sale. And further, he authorized the butcher to take the steer 
 from the pound. This was a sufficient " taking," and as it was done 
 under defendant's authority it must be regarded as his act. 
 
 Affirmed, 
 1 Part of the opinion is omitted. — Ed.
 
 516 ALDRICH V. PEOPLE. [CHAP. VIIU 
 
 ALDRICH V. PEOPLE. 
 
 Supreme Court of Illinois. 1906. 
 [Reported 224 ///. 622.] 
 
 The record in this case brings up for review the judgment of convic- 
 tion of Roj- Aldrich for the crime of larcen}'. 
 
 The facts developed on the trial were, in substance, as follows : In 
 Jul}-, 1905, Miss Flora Ma}- Barr checked her trunk at Grand Haven, 
 Michigan, for Chicago, and took passage on one of the steamships 
 belonging to the Goodrich Transportation Company. She left Grand 
 Haven about 9.15 on the evening of July 10 and arrived at Chicago 
 about six o'clock on the morning of the 11th. At Chicago Miss Barr 
 gave the check for her trunk to a transfer company, with instructions 
 to transfer it to the Burlington depot and re-check it to Oakland, Cali- 
 fornia, which was done. Miss Barr saw the baggageman attach the 
 check to her trunk at Grand Haven, where she received a duplicate 
 check, but she did not see the trunk again before leaving Chicago for 
 Oakland. Upon her arrival at Oakland she gave her trunk check to 
 a transfer company, with instructions to deliver the trunk to her at 
 the place where she intended to stop. When the trunk was brought to 
 her she at once discovered that it was not her trunk. She refused to 
 receive the trunk, although it had a check attached to it correspond- 
 ing to the one which she had received for her trunk at Chicago. The 
 trunk which was sent to Oakland was a zinc-covered trunk with an 
 oval top, while Miss Barr's trunk was a canvas-covered trunk and of a 
 different shape. Miss Barr's trunk contained between $300 and $400 
 worth of wearing apparel and other articles of value which she intended 
 to take with her on her summer trip to California, while the trunk 
 which was brought to her at Oakland was afterwards found to contain 
 nothing except waste paper and rubbish. Slie immediatel}' notified 
 the Goodrich Transportation Comi)any of the loss of her trunk and 
 shipped the empty trunk back to Ciiicago. The Goodrich Transporta- 
 tion Company instituted a search for the missing trunk. About a week 
 or ten days after Miss Barr passed through Chicago an unknown man 
 appeared at the baggage room of the Goodrich Transportation Com- 
 pany in Chicago with two trunks, bought a ticket, and checked the 
 trunks to Milwaukee. The servants of the transportation company, in 
 handUng the two trunks, discovered that they were apparently empty, 
 — at least they were very light. It was also noticed that both of these 
 trunks had the locks broken and that they were fastened with ropes or 
 straps. When the boat arrived at Milwaukee plaintiff in error pre- 
 sented two checks and demanded the two trunks. The employees in 
 charge of the boat, suspecting that this transaction might not be all 
 right, refused to deliver the trunks to Aldrich in Milwaukee, but agreed 
 to re-check them for him back to Chicago, which they did. The trunks
 
 SECT. II.] ALDRICH V. PEOPLE. 517 
 
 were not called for after their return to Chicago for several daj's. 
 Finally plaintiff in error presented checks and demanded the two trunks. 
 The transportation company again refused to deliver the trunks to 
 plaintiff in error. Plaintiff in error called a second time and demanded 
 the trunks, and threatened legal proceedings unless they were delivered 
 to him. In the meantime one of the trunks had been positively identi- 
 fied as Miss Barr's lost trunk. It was afterwards learned that a man 
 by the name of Frank Bushre had hauled the two empty trunks from a 
 room occupied by plaintiff in error in a house at 128 Dearborn avenue, 
 Chicago. It is also shown that plaintiff in error and a woman known 
 as Daisy Dean occupied the room from which the trunks were obtained 
 by Bushre. Plaintiff in error was then arrested on a charge of larceny 
 of tlie Barr trunk and its contents. In the room occupied b}' plaintiff 
 in error and the woman were found substantially all of the articles 
 which Miss Barr had packed in her trunk in Grand Haven, Michigan, 
 and these articles were afterwards identified bv her as her property. 
 There was also found in this room a large quantity of other goods of 
 various description, among other things, two tickets from Grand Haven 
 to Chicago which had never been used. 
 
 The theor}' of the prosecution is, that plaintiff in eri'or, somewhere 
 between Grand Haven and Chicago, transferred the check from the 
 zinc-covered trunk to Miss Barr's trunk and from her trunk to the zinc- 
 covered trunk, and that the plaintiff in error secured possession of Miss 
 Barr's trunk by having the duplicate of the check that was originally 
 attached to the zinc-covered trunk. Plaintiff in error denies all con- 
 nection with the theft, and claims that he bought the stolen trunk, 
 together with another large trunk, from a man by the name of Doc. 
 Lebey. His explanation as to how he obtained possession of the lost 
 trunk is not corroborated by any testimony in the record or by facts 
 and circumstances. 
 
 The indictment charged the plaintiff in error with feloniously stealing 
 one trunk and various articles of personal property', the personal goods 
 and property of the Goodrich Transportation Compan}-, a corporation 
 of the State of Wisconsin. The jury found plaintiff in error guilty and 
 found the value of the property stolen to be $230. Motions for a new 
 trial and in arrest of judgment were made and severally overruled, and 
 plaintiff in error was sentenced to an indeterminate term of imprison- 
 ment in the penitentiary. 
 
 ViCKERs, J.^ . . . The Goodrich Transportation Company held the 
 trunk and its contents merely as bailee of the rightful owner, of which 
 plaintiff in error must, upon the theory of the prosecution, be presumed 
 to have had notice, and therefore such transportation company had no 
 authorit}' to consent to the title passing, with the possession, to plain- 
 tiff in error. But even if it could be held that the corporation could 
 have given such consent by its proper officers, it certainly cannot be 
 
 1 Part of the opinion is omitted. — Ed.
 
 518 ALDEICH V. PEOPLE. [CHAP. VIII. 
 
 said that the mere act of its servants in turning over the trunk to 
 plaintiff in error upon the mistaken supposition that he was entitled to 
 the possession thereof, would amount to such a consent as is necessary 
 to bring the case within the rule contended for by plaintiff in error. In 
 McClain on Criminal Law (vol. 1, sec. 558,) it is said : " The fact that 
 the servant in whose possession the property is, consents to its taking 
 will not prevent the act being larceny, he having no authorit}' to con- 
 sent, and the wrongdoer being aware of that fact." (State v. Mc- 
 Cartey, 17 Minn. 76 ; People v. Griswold, 64 Mich. 722 ; State v. 
 Edwards, 36 Mo. 394.) It seems clear, on principle, that if property 
 is obtained from an infant or an insane person, who is legall}- disquali- 
 fied from giving consent, with the felonious intent to steal the same, 
 such consent could not be availed of as a defence to a charge of larceny. 
 The same principle ought to apply to bailees, whose interest in the 
 property is known to the alleged thief. 
 
 In our opinion the case at bar is not controlled b}' the principle 
 contended for by the plaintiff in error. The case comes within the rule 
 laid down in Commonwealth v. Barr}', 125 Mass. 390. 
 
 It will thus be seen that an asportation may be effected by means of 
 innocent human agency as well as mechanical agency, or b}' the 
 offender's own hands. One may effect an asportation of personal prop- 
 ert}- so as to be guilty of larceny by attaching a gas-pipe to the pipes 
 of the company' and thus draw the gas into his house and consuming it 
 without its passing through the meter. (Clark and Marshall on Law of 
 Crimes, p. 446, and cases cited in note ; Woods v. People, 222 111. 293.) 
 From these cases the law appears to be well settled that where, with the 
 intent to steal, the wrongdoer emplo\'s or sets in motion any agency, 
 either animate or inanimate, with the design of effecting a transfer of 
 the possession of the goods of another to him in order that he may 
 feloniousl}' convert and steal them, the larceny will be complete, if in 
 pursuance of such agency the goods come into the hands of the thief 
 and he feloniously converts them to his own use, and in such case a 
 conviction may be had upon a common-law indictment charging a felo- 
 nious taking and carrying awa}- of such goods. If in the case at bar 
 the accused shifted the checks on the trunks, by means of which the 
 servants of the transportation company were innocently led to further 
 the criminal purpose bj* delivering the trunk in question to the accused, 
 who received and converted the same to his own use, and if there was 
 in the mind of the plaintiff in error a felonious intent to steal this 
 propert}' pervading the entire scheme and attending every step of it, 
 then he is guilt}' of larcen}', and the instruction under consideration as 
 applied to such a state of facts is a correct statement of the law and 
 there was no error in giving it to the jury. 
 
 Judgment affirmed. 
 
 y\
 
 SECT. 11.] ANONYMOUS. 519 
 
 SECTION II. {continued). 
 (6) Distinction between Possession and Custody. 
 
 Littleton, Tenures, Sect. 71. If I lend to one my 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 Assisarum, 137, pi. 39.] 
 
 One a. was arraigned with the mainor, 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 daj', 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 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 qmere vvhat 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, cju/a 
 tunc temporis voluntas reputabatur pro facto, <^-c." See ace. State v. Wilson, Coxe (N. J.) 
 439. — Ed.
 
 520 EEX V. CHISSERS. [CHAP. VIII. 
 
 ANONYMOUS. 
 Old Bailey. 1664. 
 
 [Reported Kelyng, 35.] 
 
 A SILK throster had men come to work in his own house, and deliv- 
 ered silk 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 it to 
 the part}', for it was delivered to him onh' 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 felon}' 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 jur}' find that, on the da}' 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 7s. ; whereupon the 
 said Abraham Chissers offered her 3s., 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 guilty, and that the goods were of the value 
 of 7s., and that he had no goods or chattels, etc. ; but if it be not 
 adjudged felony, we find him not guilty, nor that he filed 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, felleo a7iiino ; for the act 
 subsequent, namely, bis 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 ifi fraxidem legis, Co. 3 Inst. 
 108. So if an oflUcer cometh to a man, and telleth him that he is out- 
 lawed, when the oflScer knoweth the contrary to be true, and by color 
 thereof, takes his goods, it is felony : Dalton's OflSce of Sheriffs, cap. 
 
 1 See ace. U. S. v. Clew, 4 Wash. C. C. 700 ; Marcus v. State, 26 Ind. 101 ; Gill v. 
 Bright, 6 T. B. Mon. 130; State v. Jarvis, 63 N. C. 556; State v. Self, 1 Baj, 
 242. —Ed.
 
 SECT. II.] KEGINA V. SLOWLY. 521 
 
 121, fol. 489. And the case of one Far, in which I myself was a coun- 
 sel, was thus : Far, knovviug one Mrs. Steneer, living in St. Martin's 
 Lane, in Middlesex, to have considerable quantit}' of goods in her 
 house, procured an affidavit to be filed in the Common Pleas of the due 
 delivery of a declaration, in an action of ejectione Jirmce, in which he 
 was lessor, though he had no title, and thereupon got judgment, and 
 took out an habere facias possessionem for the house, directed to tlie 
 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 by 
 Mrs. Steneer to Sir Robert Hyde, 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 fraudemlegis. 
 
 2. Although these goods were delivered to Chissers b}' the owner, 3et 
 the}' 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. Yide 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, namel}', £3 16s. fo) 
 ready money, the prisoners saying, "You shall have 3'our monej 
 directly the onions are unloaded." 
 
 The onions were accordingly unloaded b}' the prosecutor and the 
 prisoners together, at a place indicated by 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 they had a receipt, and refused to 
 restore the onions or pay the price. 
 
 ' See Bassett v. Spofford, 45 N. Y. 387. —Ed.
 
 522 REGINA V. SLOWLY. [CHAP. VIII. 
 
 The next morning the prisoners offered the onions for sale at 
 Hastings. 
 
 The jury convicted both tlie prisoners of larceny, and said they 
 
 found that the prisoners never intended to pay 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. Barnard Byles. 
 
 Willoughhy, for the prisoners. The prisoners were not properly 
 convicted of larceny, for the prosecutor gave credit to the prisoners for 
 the X3 16s., and delivered the onions to tliem on such credit. [Kelly, 
 C. B. What credit was given? The case is like Reg. v. McGrath (39 
 L. J. 7, M. C. ; 11 Cox C. C. 347).] This is a different 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. & P. 46 ; Reg. i'. Stewart, 1 Cox C. C. 174 ; Reg. v. McKale, 37 
 L. J. 97, M. C. ; 11 Cox C. C. 32. 
 
 Pocock, for the prosecution, was not called upon to argue. 
 
 Kelly, C.B. I am of opinion that the conviction should be affirmed, 
 [f 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 
 tliem, 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
 
 SECT. II.J COMMONWEALTH V. O'MALLEY. 523 
 
 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 
 tlie 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 any, was larceny, 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 money 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 alleo-ed 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. animofurnndi, 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 oflf; and it was held that he was rightly convicted of larceny, 
 
 1 See Reg. v. Bramley, 8 Cox C. C. 468. —Ed. 
 
 2 The opinion only is given ; it sufficiently states the case.
 
 524 HILDEBKAND V. PEOPLE. [CHAP. VIII. 
 
 although 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 should take 
 it away from the shop till he should have made a bargain with the 
 owner, who was in another part of the shop, his carrying it oil' was held 
 to be larceny. Commonwealth v. Wilde, 5 Graj', 83. See also Regina 
 V. Thompson, 9 Cox Crim. Cas. 244; Regina v. Janson, 4 Cox Crim. 
 Cas. 82. In all such cases the temporary custody for the owner's pur- 
 poses, 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 sustained.^ 
 
 HILDEBRAND v. PEOPLE. 
 Court of 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 
 mone}'. 
 
 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 justifv 
 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 propert}'. This presents the 
 point of the case. When the possession and projDerty are delivered 
 voluntarily, witliout fraud or artifice to induce it, the animus furandi 
 will not make it larcen}', because in such a case there can be no tres- 
 pass, and there can be no larceny without trespass. 43 N. Y. 61. 
 But in this ease I do not think the prosecutor should be deemed to 
 have parted either with the possession of, or property 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 v. Johnson, 91 Cal. 265; People 
 ». Call, 1 Denio, 120. —Ed. 
 
 2 The opinion only is given ; it sufficiently states the case.
 
 SECT. II.] HILDEBKAND V. PEOPLE. 525 
 
 livery of the bill and the giving change were to be simultaneous acts, 
 and until the latter was paid the delivery was not coiuplote. The 
 prosecutor laid his bill upon the counter, and impliedly told the pris- 
 oner that he could have it upon delivering to, him S49.90. 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. This view is not without authoiity. 
 The case of Reg. v. McKale, 11 Cox C. C. 32, is instructive. The 
 prosecutrix put down two shillings upon the counter, expecting to 
 ceceive 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 money 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 they refused to 
 restore the oviions or pay the price. A conviction for larceny was held 
 right, the jury having found the original intention felonious. This wa» 
 upon the ground that the delivery and payment were to be siraulta 
 neous acts, that the property did not pass until payment, and tha' 
 no credit or trust was intended. See also id., 248, 257 ; 2 Russ. oi 
 Or., 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 Si nisi prius decision, and is not as authoritative for 
 that reason ; but the distinction between that case and this is the one 
 first suggested. There all control, power, and possession was parted 
 with, and the prisoner was intrusted with the money, and was not ex- 
 pected to return it. Here, as we have seen, the prosecutor retained the 
 control and legally the possession and propert} . The line of dis-
 
 526 COMMONWEALTH V. LANNAN. [CHAP, VIII. 
 
 tinction is a narrow one, but it is substantial and sufficiently well 
 defined. 
 
 The judgment must be affirmed. 
 
 All concur. Judgment affirmed} 
 
 COMMONWEALTH v. LANNAN. 
 Supreme Judicial Court of Massachusetts. 1891. 
 
 [Reported 153 Massachusetts, 2B1 .'] 
 
 Holmes, J. The defendant is indicted for the larceny 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 jury. 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 
 /lollars to go to the owners of the land, fifteen to Bent, the agent, with 
 tvhora the defendant communicated, and ten dollars to the defendant, 
 feeling 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, "Pay 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 twent3'-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 larcenj- if the}' 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 be 
 complete when the defendant, after thus getting possession of Teeling's 
 money and inducing him to count out one hundred and ninet}' 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 part}'. 
 The defendant did not receive it as representing the opposite part}' ; 
 he purported to be acting in the interest of Teeling. The jury would 
 
 1 Ace. Keg. V. Johnson, 5 Cox C. C. 372 ; Levy v. State, 79 Ala. 259 ; State v. Fenn, 
 41 Conn. 590 ; Huber r. State, 57 Ind. 341 ; State v. Anderson, 25 Minn. 66. See State 
 V. Watson, 41 N. H. 533 — Ed.
 
 SECT. II.] COMMONWEALTH V. LANNAN. 527 
 
 have been warranted in finding that Teeling impliedl}' authorized the 
 defendant to take up the money from the table, but they 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 innnediate direction and control. Therefore not 
 only the title to the money, but the possession of it, remained in Teel- 
 ing 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 larceny. Commonwealth v. Berrj-, 99 Mass. 
 428; Regina v. Cooke, L. R, l"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 Commonwealths. Donahue, 148 Mass. 529, 
 530, and cases cited. 
 
 The instructions made the defendant's liability 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 guilty of larceny, irrespective of the question whether 
 Teeling retained possession, according to the dicta in Commonwealth u. 
 Barry, 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 tho 
 owner does not part with the title, the offence is larceny. 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 r. 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 may 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 eighty-five to which he had no right. This argument 
 appears to have troubled some of the English judges in one case, 
 although they 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 technicality. 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 only by selecting specific bills to that amount. He had no
 
 528 reporter's note. [chap. viii. 
 
 property in the whole mass while undivided. If he appropriated the 
 bills as a whole, he stole the whole, and the fact that he might have 
 taken ten dollars does not help him, because he did not take any ten 
 dollars b}' that title, or in the onl}' way in which he had a right to take 
 it. The later English cases seem to admit that a man may be liable for 
 the larcen}' 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, ubl supra, where there is nothing due the 
 defendant; Regina v. Gumble, L. R. 2 C. C. 1 ; s. c. 12 Cox C. C. 
 248 ; Regina v. Bird, 12 Cox C. C. 257, 260. See further Hildebrand 
 u. People, 56 N. Y. 394. 
 
 Although the point is immaterial to the second ground of liability 
 which we have mentioned, we ma}' 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 custodj' into possession. That 
 right on his part was merel}- incidental to a different governing object, 
 and it would be importing into a ver}' simple transaction a complexity 
 which does not belong there to interpret it as meaning that the defen- 
 rlant held the bills on his own behalf with a lien upon them until he 
 could withdraw his pa}'. 
 
 It is not argued that the averment as to promissory notes is not 
 sustained. Commonwealth v. Jenks, 138 Mass. 484, 488. 
 
 Exceptions overruled. 
 
 REPORTER'S NOTE. 
 
 Common Pleas. 1487. 
 
 [Reported Year Book 3 Hen. VII., 12, pi. 9.] 
 
 HussEY 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. Haugh [J.] cited the case of Adam Goldsmith ol 
 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. 13 E. 
 4 f 3, P. 13 E. 4 f. 9, T. 22 E. 3 Coroii 256, what shall be called felony 
 of goods.
 
 SECT. II.] REPOKTER's NOTE. 529 
 
 REPORTER'S NOTE. 
 
 King's Bench. 1506. 
 
 [Reported Year Book 21 Hen.VIL, 14, pi. 21.] 
 
 In the King's Bench Cutler, Serjeant, and Pigot, a[)prentk5e, were 
 at the bar ; and Pigot put this question to Cutler : If I deliver a bag 
 of mone}' to m}' 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 my 
 house, or with me, whatever I have delivered to him is adjudged in my 
 possession. As my butler who has my plate in charge, if he flees with 
 it, it is felony ; the same law if he who keeps my horse goes away with 
 it ; and the case is, that they are at all times in my 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 carry to London, or to pay to some 
 one, or to buy something, and he flees with it, it is not felony ; for it 
 is out of my possession, and he comes lawfully by it. Pigot. — It 
 may well be, for the master in all these cases has a good action against 
 him, sc. detinue, or action of account. 
 
 REPORTER'S NOTE. 
 
 Common Pleas. 1533. 
 
 [Reported Dijer, 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 undet 
 the age of eighteen. — Ed.
 
 530 bazeley's case. [chap. viii. 
 
 sell them, and receive money for them, and go away, that is not within 
 the statute ; for he had not it by the delivery of his master, nor goes 
 off with the things deUvered to him. Qumre. 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 with them, that is felony ; for it shall be said my delivery. 
 And FiTZHERBEBT, J., Said that in the case of a bond, by gift of omnia 
 bona et catalla, bonds pass.'^ 
 
 tfcce 
 
 BAZELEY'S CASE. 
 
 Crown Case Reserved. 1799. 
 
 [Reported Leach, Ath ed. 835.] 
 
 At the old Bailey in February 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 Esdaile, 
 Sir Benjamin Hammett, William P^sdaile, 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 are four tellers, each of whom has a separate 
 money book, a separate money-drawer, and a separate bag. The 
 prisoner being the chief teller, the total of the receipts and payments 
 of all the other money-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. Tiie money 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, directly 
 before another clerk, who is called the cash book-keeper, who makes 
 an entry 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 j^ear had many bills drawn on him by the com- 
 
 1 But see, contra, on this last point, Calye's case, 8 Co. 33. — Ed.
 
 SECT. IL] BAZELEY'S CASE. 531 
 
 pany, and man}- bills drawn on other persons remitted to him by the 
 company. In the month of January, 1799, the prisoner had accepted 
 hills on account of the company, to the amount of £112 4s. \d and 
 had in his possession a bill of £166 7s. od. belonging to the company, 
 but which was not due until the 9lh February. One of the bills, amount- 
 ing to £100, which the prisoner had accepted became due on the 18th 
 January. 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 £122 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 money from George Cock, and 
 after entering the £137 in Mr. Gilbert's bank-book, entered the £15 
 tash in his own money-book, and put over the £22 in bank-notes into 
 die drawer behind him, keeping back the £100 bank-note, which he put 
 iito his pocket, and afterwards paid to a banker's clerk the same day 
 it 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 any 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 Jctckson, 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 bj- the prisoner, it amounted only 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 accordinglv argued before nine of the judges in the 
 Exchequer Chamber, on Saturday, 27th April, 1799, by Ccmst 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 larcen}^ 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 fi-oni the possession of another with his consent and will,
 
 532 bazeley's case. [chap. viii. 
 
 b}' means of some artful device, against the subtilt}' of which ccmmon 
 prudence and caution are not sufficient safeguards ; and, thirdly, that 
 breach of trust is the abuse or misusing of that property' which the 
 owner has, without an}' fraudulent seducement, and with his own ft-ee 
 will and consent, put, or permitted to be put, either 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 
 the prisoner is charged with having tortiously converted it to his own 
 use. 
 
 Secondl}', 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 tortiously taken it from that possession with a felonious 
 intention to steal it. 
 
 Tliirdly, That tlie relative sitiiation of the prosecutors and the pris- 
 oner makes this transaction merely a breach 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 tortious!}' 
 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 l>e, whether they had 
 the constructive possession of it ; or, in other words, whether the pos- 
 session of the servant 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 tlie 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
 
 SECT. II.] bazeley's case. 533 
 
 trover or detinue, the first of which presupposes the person against 
 whom it is brought to have obtained possession of the proi)erty 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- 
 structive I3', is in tlie person bringing it. The prisoner received this 
 note by the permission and consent of the prosecutors, while it was 
 passing from ^ 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 an}' 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 hut Jus proprietatis ; 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 money 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
 
 534 bazeley's case. [chap. viii. 
 
 Rex V. Meers, and is said to be reported by Gouldsborough, 186 ; but 
 I have been favored with a manuscript report of it, extracted from a 
 collection of cases in the possession of the late Mr. 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, 1G87, and argued in the King's Bench 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, 1797, 
 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 AVilliam 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 hne 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 and 
 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 Mary Bushman purchased of him 
 articles to the amount of four shillings and sixpence, for which she paid 
 him out of the money's she had so received, and returned the other shilling 
 to her mistress, Mary Hill : but neither of those women observed whether 
 the prisoner put either the whole or any 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 wlien they 
 observed the women come out, they went immediately into the shop, 
 where, on examining the prisoner's jwckets, they found among the 
 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 Mrs. Tilt had 
 taken one shilling in the shop and put it into the till during her hus- 
 band's absence ; so that the two shillings which had been left therein 
 in the morning, the one shilling which Mrs. Tilt had put into it, the
 
 SECT. II.] BAZELEY's CASE. 535 
 
 four shillings and sixpence laid out bj' Mary Bushman, and the five 
 shillings and sixpence marked money which was found in tlie prisoner's 
 poclief, made up the sum which ouglil to have been put into the till. The 
 prisoner upon this evidence was found guilty, and received sentence of 
 trans[)ortation ; but a case was reserved for the opinion of the twelve 
 judges. Whether, as Mr. Tilt had divested himself of this money bj' 
 giving it to Mary Hill, who had given it to her servants in the manner 
 and for the purpose above described, and as it did not appear that the 
 prisoner had on receiving it from them, put it into the till, or done any- 
 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 b}' putting it into his 
 pocliet could amount to the crime of larcen}-, 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 possessioii of the servant 
 is the possession of the master ; for, independent!}' of these authorities, 
 the lule that the possession of the servant is the possession of the 
 master cannot be extended to a case in which the property never was 
 Til the master's possession, however it ma}' be so construed in cases 
 where the identical thing stolen is delivered b}' the master, or where the 
 question is between the master and a third person. " If," sa^'s Sir Mat- 
 thew Hale, "I deliver my servant a bond to receive money, or deliver 
 goods to him to sell, and he receives the mone}' 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 money was not 
 delivered to him b}' the master." But he admits, that " if taken away 
 fi-om 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 
 V. Waite, 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 arsrnment for the prisoner upon the other points, and that for the Crown 
 are omitted. . 
 
 2 On consultation amon? the judges, some doubt was at first entertained; but at 
 last all assembled agreed that it was not felony, inasmuch as the note was never m 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 Kex v. Waite, Leach, 28, and Eex v. Bull, Leach, 841, 
 which turned on this consideration, that the thing was not taken by the prisoner out 
 of the possession of the owner ; and here it was delivered into the possession of the
 
 536 REGINA V. ROBINS, [CHAP. VIII. 
 
 REGINA V. ROBINS. 
 
 Crown Case Reserved. 1854. 
 
 [Reported Dearsly C. C. 418.] 
 
 The following case was reserved for the opinion of the Court of 
 Criminal Appeal, by W. H. Bodkin, Esq., sitting for the Assistant 
 Judge of the Middlesex Sessions. 
 
 John Robins was tried at the Middlesex Sessions, in September, 
 1854, upon an indictment which charged him with stealing five quar- 
 ters of wheat, the property of his masters, George Swaine and 
 another. 
 
 Tlie wheat in question was not the property of the prosecutors, but 
 part of a large quantity consigned to their care and deposited at one of 
 their storehouses. This storehouse was in the care of Thomas East- 
 wick, a servant of the prosecutors, who had authority to deliver the 
 wheat onl}' on the orders of the prosecutors, or of a person named 
 Callow, who was their managing clerk. 
 
 It was proved that on the 24th of June the prisoner, who was a ser- 
 vant of the prosecutors at another storeliouse, came to the storehouse 
 in question accompanied by a man with a horse and cart, and obtained 
 the ke}' of the storehouse from Eastwick by representing that he, the 
 prisoner, had been sent by the managing clerk Callow for five quar- 
 ters of wheat, which he was to carry to the Brighton Railway. East^ 
 wick, knowing the prisoner and believing his statement, allowed the 
 wheat to be removed, the prisoner assisting to put it into the cart, in 
 which it was conveyed from the prosecutors' premises, the prisoner 
 going with it. It was also proved that Callow had given no such au- 
 thority, the prisoner's statement being entirely false, and that the wheat 
 was not taken to the Brigliton Rxiilway, but disposed of, with the 
 privity of the prisoner, by other parties who had been associated with 
 him in the commission of the offence. 
 
 The counsel for the prisoner contended that the wheat was obtained 
 by false pretences, but the jury were directed, if they believed the 
 facts, that the offence amounted to larceny, and they found the pris- 
 oner guilty of that oflfence. The prisoner was sentenced to twelve 
 months' imprisonment, and is now confined in the House of Correction 
 at Coldbath Fields in execution of that sentence. I have to ask this 
 Honorable Court, whether the verdict was right in point of law. 
 
 This case was argued on the 11th of November, 1854, before Jervis, 
 C. J., Alderson, B., Coleridge, J., Martin, B., and Crowder, J.
 
 SECT. II.] REGINA V. ROBINS. 537 
 
 Metcalfe, for the prisoner. In this case the prisoner obtained thw 
 wheat by means of a false pretence, and was not guilty of larceny. 
 The general rule is, that in larceny the property is not partotl with, and 
 m false pretences it i.s. Here the prosecutor parted with the property 
 in the wheat. 
 
 Ai-L)EusoN, B. It was delivered to the prisoner for a special purpose, 
 namely, to be taken to the Brighton Railway. 
 
 Jekvis, C. J. He gets the key by a false pretence, and couiniits a 
 larceny of the wheat. 
 
 Metcalfe. Eastwick had the sole charge of the wheat ; and although 
 it was not delivered to the prisoner by the hand of the master, the 
 delivery by Eastwick must be taken to be a delivery by the master. 
 The decision in Regina v. Barnes, 2 Den. C. C. 59, is in favor of this 
 proposition. There the chief clerk of the prisoner's master, on the 
 production by the prisoner of a ticket containing a statement of a pur- 
 chase which, if it had been made, would have entitled the prisoner to 
 receive 2s. 'del., but which purchase had not in fact been made, paid 
 the prisoner the 26'. 3(L, and it was held that the prisoner was not in- 
 dictable for larceny-, but for obtaining money under false pretences. 
 
 Alderson, B. That is simply the case of one servant being induced 
 to give the property of the master to another servant by means of fi 
 false pretence ; but here the property- remained in Swaine throughout 
 as bailee. Suppose the prisoner had been really sent by Callow and 
 had not been guilty of an}- fraud, but on his way to the railway had 
 been robbed of the wheat, could not the wheat have been laid iu 
 Swaine? 
 
 3fetcalfe. Swaine was the bailee of the consignor ; he had onl}' & 
 special property, and that special property' he parted with to the 
 prisoner. 
 
 Martin, B. For the purposes of this case Swaine was the owner ol 
 the wheat. 
 
 Alderson. B. If the prisoner had told the truth, and, having 
 obtained the wheat without making any false pretence, had subse- 
 quently dealt with it as he has done, he would without doubt be 
 guilty of larceny ; and can it be said that he is not guilty of larceny 
 simplv because he told a falsehood? 
 
 Sleigh, for the Crown, was not called upon. 
 
 Conviction affirmed. ^ 
 
 1 Ace. Reg. V. Webb, .5 Cox C. C. 154; State v. McCartey, 17 Minn. 76. See Eex 
 V. Jackson, 1 Moo. C. C. 119. — Ed.
 
 538 i;ex v. bass. [chap. viii. 
 
 REX V. BASS. 
 Crown Case Reserved. 1782. 
 
 [Reported Leach, 4th ed., 251.] 
 
 At the Old Bailey, in May Session, 1782, William Bass was convicted 
 of stealing a quantitj- of goods, the property of John Gatfee. 
 
 The prisoner was servant and porter in the general employ of the 
 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 particular 
 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 o'f the package and putting 
 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 by the prisoner. The 
 master was to receive the money for them from the customer, and he 
 could at an}' time have countermanded the delivery of them. The 
 prisoner, therefore, by breaking open the package, tortiously took tliem 
 from the possession of the owner, and having by the sale converted 
 them animofurandi to his own use, the taking is felonious. 
 
 Many cases of this kind have occurred, and all of them have been 
 determined to l)e felonv- "" . - , 
 
 prisoner. That altliough to many purposes the note was in the actual possession of 
 the masters, yet it was also in the actual possession of the servant, and that possession 
 not to be impeached ; for it was a lawful one. Eyre, C. J., also observed that the 
 cases ran into one another very much, and were hardly to be distinguished ; that in 
 the case of Kex v. Spears, Leach, 825, the corn was in the possession of tlie master 
 under the care of the servant : and Loud Kenyon said that he relied much on the Act 
 of Parliament respecting the Banii not going further than to protect the Bank. 2 East, 
 C. L. 574. — Rkp. 
 
 1 " It was further mentioned as an additional circumstance, that the goods were 
 taken out of the package in which they had been delivered to the prisoner, and put 
 into a l)ag at the public house." 2 East P. C. 566. — Ed.
 
 SECT. II.] EEX ';. LA.VEXDER. 539 
 
 REX V. WATSON. 
 Crown Case Reserved. 1788. 
 
 [Reported 2 East P. C. 562.] 
 
 William Watson was tried on an indictment containing three counts : 
 tlie first stating, tliat the prisoner, as a servant, received £3 18s., the 
 mone}- of E. Covvper, his late master, wliich was delivered to him safel}' 
 to keep to the use of his said master ; and that afterwards the said 
 prisoner withdrew himself from his master with the mone}-, with an 
 intent to steal the same, and to defraud his said master thereof. The 
 second count stated that the prisoner, having received the said mone}' 
 in the manner above stated, and being with his master, had converted 
 the same to his own use ; and both concluded against the form of the 
 statute. The third count vvas for larceny generally. It appeared that 
 Cowper, who was a surrogate, had sent the prisoner, who was his ser- 
 vant, to buy some blank licenses, and had delivered him the £3 18s. 
 for that purpose ; but the prisoner ran away with the money, and being 
 convicted, a question was reserved for the opinion of the judges, whether 
 the evidence supported any of the counts. And in Easter Term, 1788, 
 all the judges but the Chief Baron held that this case was not within 
 the statute, for to keej> means to keep for the use of the master, and to 
 return to him. As^to the count for larcen}-, all the judges held this 
 could not be felon}- at common law ; for to make it felony there must 
 TFe'some act done by the prisoner, a fraudulent obtaining of the possesi 
 sion, with intent to steal. 
 
 / 
 
 REX V. LAVENDER. 
 Crovtn Case Reserved. 1793. 
 
 [Reported 2 East P. C. 566.] 
 
 John Lavender was indicted for larcen}^ at common law of a certain 
 sum of money belonging to John Edmonds. The prisoner was a ser- 
 vant to Edmonds, who had delivered him the money in question to 
 carr}^ to the house of one Thomas Flawn, and there to leave the same 
 with him, he having agreed to give Edmonds bills for the mone}- in a 
 few days. The prisoner did not cany the money to Flawn as directed, 
 but went away with it, purchased a watch and other things with part, 
 and part remained in his possession when he was apprehended. Being 
 found guilt}', sentence was respited for the opinion of the judges, 
 whether this were a felon}' or a breach of trust ; and in Easter Term, 
 1793, all the judges held this was a felony, and that the last point in 
 Watson's case above referred to was not law. In Trinitv Term follow
 
 540 REGINA V. TOLLETT AND TAYLOR. [CHAP. VIII. 
 
 ing this case was again under the consideration of the judges, when 
 the}^ adhered to their former opinion, and some said that the distinc- 
 tion between this case and Watson's, if there were any, was, that in 
 "Watson's case the money was not delivered to the prisoner to be paid 
 specifically to any other person ; but if the prisoner had laid out his 
 own mone}' to the same amount in buying licenses, it would have been 
 a compliance with the order. He was commissioned to merchandise 
 with the money. But they admitted that the distinction, if any, was 
 extremely nice, and Bdller, J., thought there was none, and recog- 
 nized the case of R. v. Paradice, before Gould, J., as good law.^ 
 
 REGINA V. TOLLETT AND TAYLOR. 
 Oxford Assizes. 184L 
 
 [Reported Carrington Sf- Marshman, 112.] 
 
 Coleridge, J.^ (in summing up). There is no doubt that the prop- 
 erty found in the possession of the prisoner at Abingdon was tlie 
 propert}' of the prosecutor Henry Eltham, and that it was taken from 
 his house on the night of Saturday, the 31st of October, and that it 
 was found at Abingdon in the same state in which it was taken ; and 
 it seems also to be clear that neither of the prisoners was in possession 
 of the keys which unlocked the boxes. With respect to the prisoner 
 ToUett, I think that the evidence is insufficient to affect him as a prin- 
 cipal. The evidence, as it affects the other prisoner, is therefore that 
 which you will principally have to attend to. It is proved by the 
 prosecutor, that he and his wife had been upon bad terms, and that 
 she had threatened to leave him and go to service ; and the wife herself 
 says that she twice met the prisoner Taylor at Mrs. Hayward's, which 
 she does not know to be a house of ill fame, and there arranged with 
 the prisoner Taylor that she should elope witli him, and that they 
 should live at Gloucester as man and wife. She says that on these 
 two occasions she was with the prisoner in a bedroom for half an hour 
 each time, but that nothing improper passed between them ; slie also 
 says that the prisoner Taylor desired her to bring all the money she 
 could, and that she was to get the money and the boxes ready on the 
 Saturday night, and he would come for them and take her away with 
 him also. She further states that she sat up after her husband had 
 gone to bed, in expectation of his coming ; that he did come, and that 
 she took him into the room in which her husband was asleep, and 
 that he took the boxes away in the cart of the other prisoner, Tollett, 
 and that if her husband had remained asleep she would have gone off 
 
 1 Ace. State v. Schin^en, 20 Wis. 74. — Ed. 
 
 2 The charge only is given ; it sufficiently states the case.
 
 REGINA V. TOLLETT AND TAYLOR. 541 
 
 with the prisoner Taylor ; but as her husband awoke she was obliged 
 to sta}', and she gave information which led to the apprehension of the 
 prisoners at Abingdon. Now, by law there is such a unity of interest 
 between husband and wife, that ordinarily the wife cannot steal the 
 goods of the husband, nor can an indifferent person steal the goods of 
 the husband by the delivery of them by the wife. If, therefore, the 
 prisoner Taylor had been an indifferent person, and the wife of the 
 prosecutor had delivered this mone}- and these goods to him to convert 
 to his own use, that would in point of law have been no larceny.^ But 
 if the pei'son to whom the goods are delivered by the wife be an adul- 
 terer, it is otherwise, and an adulterer can be propei'l^- convicted of 
 stealing the husband's goods, though the}- be delivered to him by the 
 wife. On this evidence, it does not appear that the criminal purpose 
 had been carried into eflect ; but if that criminal purpose had not been 
 completed, and these goods were removed b}- the w^ife and the prisoner 
 Taylor with an intent that she should elope with him and live in adul- 
 tery with him, I shall direct 3'ou in point of law that the taking of them 
 was a larceny, Mr. Carrington has said that if the wife eloped with 
 an adulterer, it would be no larcen}' in the adulterer to assist in carry- 
 ing awa}' her clothes. I do not agree with him, for I think that if she 
 elopes with an adulterer, who takes her clothes with them it is larceny 
 to steal her clothes, w'hich are her husband's property, just as much as 
 it would be a larceny to steal her husband's wearing apparel, or an}'- 
 thing else that was his propert}'. However, the evidence in this case 
 goes further than that ; for it is proved that the prisoner told her to 
 bring with her all the money that she could, and a sum of money is 
 contained in one of the boxes. Mr. Carrington also contends that, 
 except on the evidence of the wife, there is no proof that the prisoner 
 Ta3'lor was anything more than a friend ; and if there was a larceny in 
 the stealing of these goods, the wife is an accomplice, and requires con- 
 firmation. Taking that to be so, we find that she is confirmed as to all 
 the main facts of the case ; and she certainly appears to have no motive 
 to blacken her own character ; and it seems reasonable, therefore, to 
 belicA'c her as to the criminal intention on her part. Mr. Carrington 
 also says that the conduct of the two prisoners was not that of thieves, 
 as they stayed at Abingdon, where they were known ; and that certainly 
 ought to weigh in favor of the prisoners. It is also said that they did 
 not break bulk ; but I think that tliat does not amount to much, because, 
 if the scheme was for the wife of the prosecutor to live with the prisoner 
 Taylor at Gloucester, there would be no object in opening the boxes at 
 Abingdon. It is further said that Taylor did not know what was in 
 the boxes. How^ever, if a man take away any property at all belonging 
 to another, having arranged to elope with the wife of that other, and 
 having told the wife to bring all the money she could, it will be for you 
 to say whether he did not intend to steal the property thus taken away, 
 
 1 Ace. Lamphier r. State, 70 Ind. 317, semhh. — Ed.
 
 542 REGINA V. NORVAL. [CHAP. VIII. 
 
 though he might not at the time of the taking know exactly of what the 
 property consisted. If you are satisfied that the prisoner Taylor took 
 any of the husband's property, there then being a criminal intention, or 
 there having been a criminal act between that prisoner and the wife, it 
 is a larceny, and you ought to find the prisoner guilty ; but if you think 
 that the prisoner took away the boxes merel}' to get the wife awa}- as a 
 friend only, and without an}' reference to any criminal connection be- 
 tween the prisoner and the wife, either actual or intended, you ought to 
 acquit him. 
 
 The jury found the prisoner Taylor guilt}-, and the prisoner Tollett 
 not guilty.^ 
 
 REGINA V. NORVAL. 
 
 Central Criminal Court. 1844. 
 
 [Reported 1 Cox C. C. 95.] 
 
 The prisoners were indicted for feloniousl}' stealing certain deer- 
 horns, the property of one Kirkman. 
 
 It appeared in evidence that the prisoner Norval was in the employ 
 of Kirkman, who was a carman. The goods in question were lying in 
 the docks, and the owner delivered to Kirkman the dock warrants, in 
 order that he might receive them and cart them up to town. Kirkman 
 accordingly gave the warrants to the prisoner Norval, with the neces- 
 sary instructions, and he (Norval) went with a cart to the docks, the 
 deer-horns were put into it, and on the passage back to London several 
 of them were abstracted, Norval colluding with the other prisoner for 
 that purpose. 
 
 Balla7iti?ie, for the prisoner Norval, contended, that upon this state 
 of facts tlie charge should have been one of embezzlement as against 
 him, and not one of felony. The goods had never been in the master's 
 possession. The prisoner obtained them lawfull}' in the first instance, 
 so that there could be no tortious taking, which was an essential ingre- 
 dient in the proof of felony. 
 
 Mr. Commissioner Bullock consented to reserve the point, and the 
 prisoner was convicted. 
 
 The learned commissioner subsequentl}^ stated that he had consulted 
 Mr. Baron Gurney on the subject, who was of opinion that the con- 
 viction was proper. True it is that the making away by a servant with 
 goods that have never been in the possession of the master, is embez- 
 zlement ; but here there is a constructive possession, and that accrued 
 at the moment when the goods were placed in the master's cart. 
 
 1 Ace. Rex V. Willis, 1 Moody C. C. 375 ; Reg. v. Classic, 7 Cox C. C. I ; Reg. v 
 Kenny, 13 Cox C. C. 397 ; People v. Schuyler, 6 Cow. 572. — Ed. 
 
 c
 
 SECT. IT.] EEGINA V. EEED. 543 
 
 REGINA V. REED. 
 Crown Case Reserved. 1853. 
 
 [Reported 6 Cox C. C. 284.] 
 
 The following case was reserved b}- the Court of Quarter Sessions 
 for the count}' of Kent. 
 
 At the General Quarter Sessions of the Peace for the county of Kent, 
 holden at Maidstone, on the 4th January, 1853, before Aretus Akers, 
 Edward Burton, and James Espinasse, Esqrs., justices appointed to try 
 prisoners in a separate court, Abraham Reed was tried upon an idict- 
 ment for felonioush' stealing 200 lbs. weight of coals, the property of 
 William Newton, his master, on the 6th December, 1852 ; and James 
 Peerless was charged in the same indictment with receiving the coals, 
 knowing tlie same to have been stolen, and was acquitted. 
 
 The evidence of the prosecutor, Wilham Newton, was as follows : — 
 "I am a grocer and miller, at Cowden, and sell coals b}' retail. The 
 prisoner, Reed, entered nn' service last year, about three weeks before 
 the 6th December. On that day I gave him directions to go to a cus- 
 tomer to take some flour, and thence to the station at Edenbridge, for 
 12cwt. of coals. I deal with the Medwaj' Company', who have a wharf 
 there, Holman being wharfinger. I told Reed to bring the coals to mj^ 
 house. Peerless lives about 500 yards out of the road from the station 
 to my house. Reed went about nine a.m., and ought to have come 
 back between three and four p. m. ; but as he had not come back, I 
 went in search of him at half-past six, and found him at Peerless's, 
 The cart was standing in the road opposite the house, and the two- 
 prisoners were taking coals from the cart in a truck basket. It was 
 dark. I asked Reed what business he had there ; he said, ' to deliver 
 half a hundredweight for which he had received an order from Peer- 
 less.' Reed had never before told me of such an order, and had no 
 authority from me to sell coals. Later that evening I went and asked 
 Peerless what coals he had received from my cart ; he said, half a hun. 
 dred weight. I then asked him how the}- were carried from the cart ; 
 he said, in a sack. I weighed the coals when brought home, and found 
 the quantit}' so brought a quarter of a hundredweight and four pounds 
 short. I went to Peerless's next da}- and found some coals there, 
 apparently from half to three quarters of a hundredweight." Upon his 
 cross-examination he stated as follows: " I believe Peerless had some- 
 times had coals from me. When I came up the\' were shutting the tail 
 of the cart, but some coals were in a truck-basket at their feet. Reed 
 said at once that he had received an order from Peerless. It was two 
 hours later when I asked Peerless, and when he said he had ordered 
 them. Reed said he had carried two hundredweight in, but that was 
 two hours after." On his re-examination he said: "I think Peerless 
 had had some coals from me about a fortnight before the 6th." James
 
 544 REGINA V- REED. [CHAP. VIII. 
 
 Holman, another witness for the prosecution, said : "I am wharfinger 
 to the Medway Compan}', at the Edenbridge station, and Newton deals 
 there for coals. Reed came on the 6th December, and asked for half a 
 ton for Newton, and I supplied him. I entered them at the time to 
 Newton, and now produce the book with the entr^'." James HandlcA', 
 another witness for the prosecution, said, " I am superintendent of the 
 Sevenoaks division. On the 7th December, I went to Peerless's, and 
 asked him how much coals he had received from Reed ; he said he had 
 ordered half a hundredweight three weeks before ; Reed, when I asked 
 him afterwards, said, three days before ; Reed said he had received 
 two glasses of wine from Peerless." On his cross-examination, he 
 said, "This was about four p. m., 7th December." Newton was then 
 re-examined and said : " Reed came to me in the morning of the 7th ; 
 I told him 2| cwts. were missing. He then said one sack had been 
 left at the wharf b}' mistake ; I therefore charged him with only three- 
 quarters of a hundredweight." Holman, upon re-examination, said: 
 " Reed left a sack behind him ; but it was an empty one.'' This being 
 the case for the prosecution, Mr. Ribton, counsel for the prisoner, sub- 
 mitted that there was no case to go to the jury ou the charge of larcenj-, 
 inasmuch as the coals left at Peerless's had never been in the possession 
 of Newton, the master. Mr. Rose, counsel on the part of the prosecu- 
 tion, contended that the coals were constructively in the possession of 
 Newton, and that the offence was properh- charged as larceny ; but that, 
 under the provisions of the act 14 & 15 Vict. c. 100, s. 13, it was imma- 
 terial whether the offence were larcen}- or embezzlement, as the jury 
 might find a verdict either for larceny or embezzlement. Mr. Ribton 
 then proposed that it should be left to the jur}- as a charge of embezzle- 
 ment ; but to this Mr. Rose objected, on the ground that the receiver 
 must then be acquitted. The court were of opinion that there was a 
 constructive possession in the master, and left the case to the jury as a 
 case of larceny upon the evidence, who thereupon found the prisoner, 
 Abraham Reed, guilty. Mr. Ribton then applied to the court to sub- 
 mit the case to the Court of Criminal Appeal, contending that the 
 conviction was wrong in law ; as, if any ofience had been committed, it 
 was embezzlement, and not larceny. The court acceded to the appli- 
 cation, and respited judgment, and discharged Reed, upon his entering 
 into recognizances — himself in £20, and one surety in £20 — to receive 
 judgment at the next Court of Quarter Sessions for Kent. 
 
 This case was first argued on the 23d April, 1853, before Jervis, 
 C. J., Parke, B., Alderson, B., Wightman, J., and Cresswell, J., 
 when the court took time to consider their judgment. The court 
 afterwards directed that tlie case should be argued before all the judges ; 
 and, in pursuance of that direction, the case was again heard on the 
 19th November, 1853. 
 
 Ribton, for the prisoners. The conviction is wrong. To constitute 
 larceny there must, according to all the definitions of that offence, be a 
 taking from the possession of the owner. Formerly, it was supposed
 
 SECT. II,"] REGINA V. KEED. 545 
 
 that the takuig must be out of the actual possession of the owner, as 
 appears b}- the recital of the earliest Embezzlement Act (21 Hen. VIII. 
 c. 7), which was passed to provide for the punishment of servants con- 
 verting goods or money entrusted to their keeping by their masters 
 (Dalton's Country Justice, 496) ; but it is now settled that the posses- 
 sion may be either actual or constructive. In either case the taking 
 constitutes a trespass, which is essential to larceny. Qonstructive pos- 
 session is of two kinds : first, where property has been given by the 
 master to the servant for a special purpose, or is put under the ser- 
 ^vanl!&_cliaj:g^e or custody ; second!}-, where a third person has given 
 ^oods to the servant, and the servant has determined his own exclusive 
 possession by some act which vests the possession in the master. The 
 constructive possession in this case, if any, was of the second kind ; but 
 there was, in truth, no possession by the master at all. 
 
 Parke, B. If the goods were the propert}- of the master before the 
 deliver}' of them to the servant, an}- act whereby they are reduced into 
 the master's possession is sufficient. 
 
 Hibton. Yes ; but not a mere right to the actual possession. The 
 criterion is, whether the goods have reached the place of their ultimate 
 destination ? The distinction is between the actual possession and the 
 right to the actual possession. In Waite's case (1 Leach, 28 ; 2 East 
 P. C. 570), a cashier of the Bank of England abstracted an India bond ; 
 but, as the bond had not been previously placed by him in the cellar of 
 the bank, the place of its ultimate destination, the act was held to be 
 not one of larceny. So, in the present case, the act is not one of lar- 
 ceny, because the coals, though the master had a right to the possession 
 of them, had not reached the place of their final deposit. In R. v. 
 Bazeley (2 Leach, 835 ; 2 East P. C. 571), money was received by a 
 banker's clerk at the counter, and, instead of putting it into the proper 
 drawer, he purloined it ; and that was held not to be larceny, because as 
 against him there was no possession by the master. [Lord Campbell, 
 C. J. — On the former argument, my brother Parke suggested that that 
 was money, the subject of account. Platt, B. — Suppose it to be the 
 duty of the clerk to put the money into a drawer and lock it up, must 
 the drawer be pushed home and locked up before the money has got 
 into the possession of the master?] The drawer on the premises of the 
 master is the ultimate place of deposit. [Lord Campbell, C. J. — Sup- 
 pose that the servant leaves the horse and cart on the road ; has he then 
 determined his duty, so that if he comes back he may steal them ?] If 
 he had, it would be embezzlement. R. v. Bull, 2 Leach, 841 ; R. v. 
 Poorer, cited in R. v. Meeres, 1 Show. 50 ; R. v. Walsh, 4 Taunt. 
 258, 276; R. & R. 215; 2 East P. C. 177; and R. v. Spears there 
 cited. [Lord Campbell, C. J. — In the report in 4 Taunt. 276, 
 Heath, J., says, "That case went upon the ground that the corn was 
 in the prosecutor's barges, which was the same thing as if it had been 
 in his granarv."] The report in East is not so. He also cited R. y. 
 SuUens, 1 Moo. C. C. 129, and R. v. Masters, 8 Cox Crira. Cas, 178;
 
 546 REGINA V. REED. [CHAP. VIII. 
 
 1 Den. 332. [Pollock, C. B. — Suppose he had had to take the coals 
 to a customer at once. How would it be then? In respect to the 
 master, the cart would be the final place of deposit.] The customer's 
 house would have been the final place of deposit. [Lord Campbell, 
 C. J. — How do you define the place of final deposit?] That depends 
 on the particular circumstances of each case. In this one, for instance, 
 it is the house of the master. [Lord Campbell, C. J. — When the 
 coals passed the threshold, or the cart passed the gate? A farm-house 
 is at the extremity of a field ; does the constructive possession cease at 
 the gate of the field, or at the door of the house ? Platt, B. — The cart 
 was in the possession of the master. If he had taken that, it would 
 have been larceny. Parke, B. — The cart is but the means of transit to 
 the master's house, which was the ultimate place of destination.] In 
 R. V. Hayward (1 Car. & K. 518) straw tlirown down at a stable door 
 was considered to have reached a place of final deposit. If a banker's 
 clerk collects bills, puts them into his pocket, and abstracts one, the 
 propert}' of his master, which he afterwards converts to his own use, 
 that is embezzlement, not larceny. [Jervis, C. J. — How do 30U distin- 
 guish the cases of R. v. Spears and R. v. Abrahat (2 Leach, 828)? 
 Lord Campbell, C. J. — R. v. Spears is on all-fours with this case. 
 Parke, B. — In R. v. Spears it is uncertain, looking at the reports in 
 East and Leach, and the difference between the two editions of Leach, 
 whether the judgment did not turn on the fact that the master had 
 bought the whole cargo.] In that case the master would have had a 
 title and constructive possession before delivery to the prisoner. 
 
 Hose, contra. The act of the prisoner was an offence at common 
 law. The embezzlement statutes are affirmative, and, so soon as a 
 trespass is proved, a larceny is established. There was a trespass in this 
 case ; for, as the coals were asked for in the master's name, charged to 
 the master in the bill, put into the master's sacks, and the sacks put 
 into the master's cart, the master had constructive possession before 
 the servant had actual exclusive possession. Com. Dig. "Trespass," 
 B. 4. [Lord Campbell, C.J. — The constructive possession of the 
 master need not be distinct from the actual possession of the servant.] 
 What act before the taking in this case divested the master of his con- 
 structive possession? Robinson's case (2 East P. C. 565), Paradice's 
 case (ib.), proceed on the principle that, despite the manual possession 
 of the servant, the constructive possession is in the master. So, if the 
 servant had left the cart and coals, had returned suddenly' in the night, 
 and had taken the coals, would he not have been guilty of stealing his 
 master's property? The case of R. v. Spears is not to be distinguished 
 from this. In commenting on Waite's case and Bazele3''s case, East 
 reconciles them b}' sa3-ing that there is no constructive possession with- 
 out the possession of the servant. In R. v. Bull the case was one of 
 money, which constitutes matter of account, and trespass would not 
 lie. Higgs V. Holliday, Cro. Eliz. 746. This is not like the case of a 
 gift to the master, where he never gets possession until delivery to the
 
 SECT. II.] REGTNA V. REED. 547 
 
 servant. [Lord Campbell, C. J. — Spears' case is to be taken from 
 the second edition of Leach, as is shown b}- Heath, J., in 4 Taunt. 
 27G. Parke, B. — If we take it from Abrahat's case, the corn was 
 clearly purchased by the master before.] Suppose that another servant 
 had been sent ; that he had delivered the order ; that the coals had been 
 weighed out ; and that the prisoner had then been sent with the cart for 
 the coals, and had stolen some of them, — that must have been larceny-. 
 In R. V. Harding (R. & R. 125) property which the prosecutor had 
 bought was weighed out in the presence of his clerk, and delivered to 
 the carter's servant to cart, and a fraudulent conversion by the carman 
 was held larceny. 
 
 Eibton, in reply. In R. v. Harding the property had been in the 
 actual possession of the master. In R. v. Watts (2 Den. C. C. 14), the 
 defendant divested himself of possession in favor, so to say, of his 
 employers. In this case the prisoner has not so divested himself by 
 any distinct act. In R. v Watts, the distinct act was the receipt had 
 of the cheque by the prisoner ; it being his duty to his employers to 
 receive it. In this case the coals had not reached their final destina- 
 tion. Cur. adv. vult. 
 
 Lord Campbell, C. J. There lies before me a judgment that I had 
 prepared for myself at a time when there was reason to suppose that 
 there might be one, if not more dissenting judges. I have reason to 
 believe now that there will not be any dissent ; but still this judgment 
 must be considered only as embodying the reasons I give for my 
 opinion, because I have no authoritj- to say that m^' brothers concur in 
 that opinion, and the reasons for it. For convenience, I have written 
 my judgment, and my learned brothers will say how far they concur or 
 dissent. I am of opinion that the prisoner has been properly convicted 
 of larceny. There can be no doubt that, in such a case, the goods 
 must have been in the actual or the constructive possession of the mas- 
 ter ; and that, if the master had no otherwise the possession of them 
 THan "By the bare receipt of his servant upon the delivery of another for 
 the master's use, although as against third persons this is in law a 
 'receipt of the goods by the master, 3-et in respect of the servant himself 
 this will not support a charge of larceny-, because as to him there was 
 no tortious taking in the first instance, and consequentl}- no trespass. 
 Therefore, if there had been a quantity of coals delivered to the pris- 
 oner for the prosecutor, and the prisoner, having remained in the 
 personal possession of them, as by carrying them on his back in a 
 bag, without anything having been done to determine his original ex- 
 clusive possession, had converted them aniv%o furandi^ he would have 
 been guilt}' of embezzlement, and not of larceny. But if the servant 
 has done anything which determines his original exclusive possession 
 of the goods, so that the master thereby comes constructively into 
 possession, and the servant afterwards converts them animo furandi, 
 he is guilty of larceny, and not merely of a breach of trust at common
 
 548 EEGINA V. REED. [CHAP. VIH. 
 
 law, or of embezzlement under the statute. On this supposition he 
 subsequently takes the goods tortiously in converting them, and com- 
 mits a trespass. We have therefore to consider whether the exclusive 
 possession of the coals continued with the prisoner down to the time 
 of the conversion. I am of oi)iuion that this exclusive possession 
 was determined when the coals were deposited in the prosecutor's 
 cart, in the same manner as if thej- had been deposited in the prose- 
 cutor's cellar, of whicli the prisoner liad the charge. The prosecutor 
 was undoubtedly in possession of the cart at the time when the coals 
 were deposited in it ; and if the prisoner had carried off the cart animo 
 farandi, he would have been guilty of larcen}'. That is expressly 
 determined in Robinson's case (2 East, 565). There seems considera- 
 ble difficulty in contending that, if the master was in possession of the 
 cart, he was not in possession of the coals which it contained, the coals 
 being his property, and deposited there by his order, for his use. Mr. 
 Ribton argued that the goods received b}' a servant for his master 
 remain in the exclusive possession of the servant till the3' have reached 
 their ultimate destination. Bat he was unable, notwithstanding his 
 learning and ingenuity, to give any definition of " ultimate destination," 
 when so used. He admitted that the master's constructive possession 
 would begin before the coals were deposited in the cellar, when the cart 
 containing the coals had stopped at his door, and even wlien it had 
 entered liis gate. But I consider the point of time to be regarded is 
 that when the coals were deposited in the cart. Thenceforth the pris- 
 oner had only the custody or charge of the coals, as a butler has of his 
 master's plate, or a groom has of his master's horse. To this conclu- 
 sion, with the most sincere deference to an}- of ni}' learned brothers 
 who ma}- at any time have taken a different view, — to this conclusion 
 1 should have come on principle ; and I think tliat Spears' case is an 
 express authority for it. The following is an exact copy of the state- 
 ment of that case, signed by Buller, J., in pp. 181, 182, and 183 of the 
 2d volume of the Black Book, containing the decisions of the judges in 
 Crown cases, deposited with the Chief Justice of the Queen's Bench for 
 the time being: "John Spears was convicted before me at Kingston, 
 for stealing forty bushels of oats of James Broune & Co. in a barge on 
 the Thames. Broune & Co. sent the prisoner with their barge to Wil- 
 son, a corn ineter, for as much oats only as the barge would carry, 
 and which were to be brought in loose bulk. The prisoner received 
 from Wilson 220 quarters in loose bulk, and five quarters in sacks ; the 
 prisoner ordering that quantity to be put into sacks. The quantity in 
 the sacks was afterwards embezzled by the prisoner ; and the question 
 reserved for the opinion of the judges is, whether this was felony, the 
 oats never having been in the possession of the prosecutor; or whether 
 it was not like the case of a servant receiving change or buving a thins 
 for his master, but never delivering it." Then there is a reference made 
 to Dy. 5, and 1 Show. 52 ; and then this is signed by Sir J. Buller ; and 
 then is added, " 25th April, 1798. Conviction affirmed." Now that
 
 SECT. II.] REGINA V. REED. 549 
 
 is an exact cop}- from the Black Book. In that case the question arose 
 whether the corn, while in the prosecutor's barge, in which it was to be 
 brought by the prisoner to the prosecutor's granary, was to be consid- 
 ered in the possession of the prosecutor ; and the judges unanimously 
 held, that from the time of its being put into the barge it was in the 
 prosecutor's possession, although the prisoner had the custody or charge 
 of it. That case has been met at the bar by a suggestion that the 
 whole cargo of corn, of which the quantity put on board this barge was 
 a part, was or might have been purchased by the prosecutor, so that he 
 might have had a title and constructive possession before the delivery 
 to the prisoner. But the very statement of the case in the Black Book, 
 and the authorities referred to, show that the judges turned their atten- 
 tion to the question whether the exclusive possession of the servant had 
 not been determined before conversion ; and during the argument of 
 Rex V. Walsh (4 Taunt. 276) we have the 7-atio decidendi in Spears' 
 case explicitly stated by one of the judges who concurred in the 
 decision : " Heath, J. — That case went upon the ground that the corn 
 was in the prosecutor's barge, which was tlie same thing as if it had 
 been in his granary." Read " cart " for '^ barge," " coals " for " corn," 
 and "cellar" for "granary," and the two cases are for this purpose 
 precisely the same. There is no conflicting authority ; for in all the 
 cases relied upon by Mr. Ribton, the exclusive personal possession of 
 the prisoner had continued down to the time of the wrongful conver- 
 sion. It is said there is great subtlety in giving such an effect to the 
 deposit of the coals in the prosecutor's cart ; but the objection rests on 
 a subtlety wholly unconnected with the moral guilt of the prisoner, for 
 as to that it must be quite immaterial whether the property in the coals 
 had or had not vested in the prosecutor prior to the time when they 
 were delivered to the prisoner. We are to determine whether this 
 would have been a case of larceny at common law before there was any 
 statute against embezzlement ; and I do not think that there would have 
 been any reproach to the administration of justice in holding that the 
 subtlety arising from the prosecutor having had no property in the sub- 
 ject of the larceny before its delivery to the prisoner, who stole it, was 
 sufficiently answered by the subtlety that when the prisoner had once 
 parted with the personal possession of it, so that a constructive posses- 
 sion by the prosecutor began, the servant who subsequently stole it 
 should be liable to be punished, as if there had been a prior property 
 and possession in the prosecutor, and that the servant should be ad- 
 judged liable to be punished for a crime, instead of being allowed to 
 say that he had only committed a breach of trust, for which he might be 
 sued in a civil action. In approaching the confines of different offences 
 . created by common law or by statute, nice distinctions must arise, and 
 must be dealt with. In the present case it is satisfactory to think that 
 the ends of justice are effectually gained by affirming the conviction ; 
 for the only objection to it is founded upon an argument that he ought 
 to have been convicted of another offence of the same character, for 
 which he would have been liable to the same punishment.
 
 550 COMMONWEALTH V. RYAN. [CHAP. VIII. 
 
 Jervis, C. J. I concur in the judgment of the Lord Chief Justice. 
 I had originally written a judgment concurring in the view taken by 
 mv lord ; but ultimately I have not found it necessary to read it. It is 
 admitted that the cart was in the possession of the servant for a special 
 purpose ; if he had taken the cart, he would have been guilty of lar- 
 ceny ; and if the cart for this purpose continued the cart of the muster, 
 the delivery of the coals into the cart was a delivery to the master, and 
 makes the otfence a larceny. 
 
 Parke. B. I certainly had differed from the view of this case which 
 has l)een taken by Lord Campbell at a time when it was uncertain 
 what the case of Spears actually was, and treating this case as res 
 nova. The book in which the opinions of the judges are written, and 
 which is always in the custody of the Lord Chief Justice, was mislaid ; 
 and the case of John Spears was differently reported in the two editions 
 of Leach, and also in P^ast's Crown Law ; and that case could not for a 
 long time be found. However, since it has been found, I have satisfied 
 myself; and I entertain no doubt upon it. I should have delivered my 
 reasons at length ; but it is unnecessary now to do so. The cases of 
 Rex V. Abrahat and Rex v. Spears having been discovered, and having 
 read that case with the explanation of Heath, J., I find the point de- 
 cided ; and though, therefore, if this were res nora, I should have 
 pronounced an opinion that this was not larceny, yet as that case is a 
 decided authority, by the authority of that case I am bound ; and it is 
 unnecessary for me to deliver my reasons at any greater length. 
 
 The other judges concurred. Conviction affirmed. 
 
 i 
 
 COMMONWEALTH v. RYAN. 
 Supreme Judicial Court of Massachusetts. 1892. 
 
 [Rej)orte(l 155 Massachusetts, 523.] 
 
 Holmes, J.^ This is a complaint for embezzlement of nione3\ 
 The case for the government is as follows : The defendant was em- 
 ployed by one Sullivan to sell liquor for him in his store. Sullivan 
 sent two detectives to the store, with marked money of Sullivan's, to 
 make a feigned purchase from the defendant. One detective did so. 
 The defendant dropped the money into the money drawer of a cash 
 register, which happened to be open in connection with another sale 
 made and registered by the defendant, but he did not register this sale, 
 as was customary, and afterward — it would seem within a minute or 
 .Jwo — he took the money from the drawer. The question presented is 
 ' whether it appears, as matter of law, that the defendant was not guilty 
 of embezzlement, but was guilty of larceny, if of anything. The de- 
 
 1 The opinion only is given ; it sufficiently states the case.
 
 SECT. II.] COMMONWEALTH V. RYAN". 551 
 
 fendant asked rulings to that effect on two grounds : first, that after the 
 money was put into the drawer it was in Sullivan's possession, and there- 
 fore the removal of it was a trespass and larceny ; and secondly', that 
 Sullivan's ownership of the money, in some wa^' not fully explained, 
 prevented the offence from being embezzlement. We will consider 
 these positions successively. 
 
 We must take it as settled that it is not larceny for a servant to con- 
 vert property delivered to him by a third person for his master, provided 
 he does so before the goods have reached their destination, or some- 
 tliing more has happened to reduce him to a mere custodian (Com- 
 monwealth V. King, 9 Cush. 284) ; while, on the other hand, if the 
 propert}' is delivered to the servant by his master, the conversion is 
 larceny. Commonwealth t>. Berry, 99 Mass. 428 ; Commonwealth v. 
 Davis, 104 Mass. 548. 
 
 This distinction is not very satisfactor}', but it is due to historical 
 accidents in the development of the criminal law, coupled, perhaps, 
 with an unwillingness on the part of the judges to enlarge the limits of 
 a capital offence. 2 Leach (4th ed.), 843, 848, note ; 1 Leach (4th ed.), 
 35, note ; 2 East P. C. 568, 571. 
 
 The history of it is this. There was no felony when a man received 
 possession of goods from the owner without violence. Glanv., bk. 
 10, c. 13; Y. B. 13 Edw. IV. 9, pi. 5; 3 Co. List. 107. The early 
 judges did not always distinguish clearly in their language between 
 the delivery of possession to a bailee and the giving of custody to a 
 servant, which indeed later judges sometimes have failed to do. E. g. 
 Littleton in Y. B. 2 Edw. IV. 15, pi. 7; 3 Hen. VII. 12, pi. 9; 
 Ward V. Macaulej', 4 T. R. 489, 490. When the peculiar law of mas- 
 ter and servant was applied either to the master's responsibilily or to 
 his possession, the test seems to have been whether or not the servant 
 was under the master's eye, rather than based on the notion of status 
 and identit}' of person, as it was at a later day. See BN'ington i\ 
 Simpson, 134 Mass. 1G9, 170. Within his house a master might be 
 answerable for the torts of his servant, and might have possession of 
 goods in his servant's custody, although he himself had put the goods 
 into the servant's hands ; outside the house there was moi'e doubt ; as 
 when a master intrusted his horse to his servant to go to market. Y. B. 
 21 Hen. VII. 14, pi. 21 ; T. 24 Edw. III. ; Bristol in Molloy, De Jure 
 Maritimo, bk. 2, c. 3, § 16 ; Y. B. 2 Hen. IV. IS, pi. G ; 13 Edw. IV. 
 10, pi. 5; s. c. Bro. Altr. Corone, pi. 160; Staundforde, I., c. 15, fol. 
 25; c. 18, fol. 26; 1 Hale, P. C. 505, note. See Heydon & Smith's 
 case, 13 Co. Rep. 67, 69 ; Drope ik Theyar, Popham, 178, 179 ; Combs 
 V. Bradley, 2 Salk. 613 ; and, further, 42 Ass. pi. 17, fol. 260 ; 42 Edw. 
 IIL 11, pi. 13; Ass. Jerus. (ed. 1690), cc. 205, 217. It was settled 
 by St. 21 Hen. VIII. c 7, that the conversion of goods delivered to a 
 servant b}' his master was felon}', and this statute has been thought to 
 1)6 only declaratory of the common law in later times, since the distinc- 
 tion between the possession of a bailee and the custody of a servant
 
 652 COMMONWEALTH V. EYAN. [CHAP. VIII. 
 
 has been developed more fully, on the ground that the custody of the 
 servant is the possession of the master. 2 East P. C. 564, 565 ; The 
 King V. Wilkins, 1 Leach (4th ed.), 520, 523. See Kelyng, 35 ; Fitzh. 
 Nat. Brev. 91 E ; Blosse's case, Moore, 248 ; s. c. Owen, 52, and 
 Gouldsb. 72. But probably when the act was passed it confirmed the 
 above mentioned doubt as to the master's possession where the servant 
 was intrusted with property at a distance from his master's house in 
 cases outside the statute, that is, when the chattels were delivered by a 
 third person. In Dyer, 5a, bb, it was said that it was not within the 
 statute if an apprentice ran off with the money received from a third 
 person for his master's goods at a fair, because he had it not by the 
 delivery of his master. This, very likely, was correct, because the 
 statute only dealt with delivery by the master ; but the case was taken 
 before long as authority for the broader proposition that the act. is not 
 a felony, and the reason was invented to account for it that the servant 
 has possession, because the money is delivered to him. 1 Hale P. C. 
 667, 668. This phrase about delivery seems to have been used first in 
 an attempt to distinguish between servants and bailees. Y. B. 13 
 Edw. IV. 10, pi. 5 ; Moore, 248 ; but as used here it is a perverted 
 remnant of the old and now exploded notion that a servant away from 
 his master's house always has possession. The old case of the servant 
 converting a horse with wliich his master had intrusted him to go to 
 market was stated and explained in the same way, on the ground that 
 the horse was delivered to the servant. Crompton, Just. 35^, pi. 7. 
 See The King v. Bass, 1 Leach (4th ed.), 251. Yet the emptiness of 
 the explanation was shown by the fact that it still was held felony when 
 the master delivered property for service in his own house. Kelyng, 
 35. The last step was for the principle thus qualified and explained 
 to be applied to a delivery by a third person to a servant in his master's- 
 shop, although it is possible at least that the case w^ould have been 
 decided differently in the time of the Year Books (Y. B. 2 Edw. IV. 
 15 pi. 7; Fitzh. Nat. Brev. 91 E) ; and although it is questionable 
 whether on sound theory the possession is not as much in the master as 
 if he had delivered the property himself. Rex v. Dingley (1687), stated 
 in The King v. Bazeley, 2 Leach (4th ed.), 835, 841, and in The King 
 V. Meeres, 1 Show. 50, 53 ; Waite's case (1743), 2 East P. C. 570 ; s. c. 
 1 Leach (4th ed.), 28, 35, note ; Bull's case, stated in The King v. 
 Bazeley, 2 Leach (4th ed.), 885, 841 ; s. c. 2 East P. C. 571, 572 ; The 
 King V. Bazele}', ubi sxipra; Regina v. Masters, 1 Den. C. C. 332; 
 Regina v. Reed, Dears. C. C. 257, 261, 262. 
 
 The last mentioned decisions made it necessary to consider with care 
 what more was necessary, and what was sufficient, to reduce the servant 
 to the position of a mere custodian. An obvious case was when the 
 property was finally deposited in the place of deposit provided by the 
 master, and subject to his control, although there was some nice discus- 
 sion as to what constituted such a place. Regina v. Reed, Dears. C. C. 
 257. No doubt a final deposit of money in the till of a shop would
 
 SECT. II.] COMMONWEALTH V. RYAN. 553 
 
 have the effect. Waite's case, 2 East P. C. 570, 571 ; s. c. 1 Leach 
 (4th ed.), 28, 35, note ; Bull's case, 2 East P. C. 572 ; s. c. 2 Leach (4th 
 ed.), 841, 842; The King v. Bazeley, 2 East P. C. 571, 574; s. c. 2 
 Leach (4th ed.), 835, 843, note ; Regina v. Wright, Dears. & Bell, 431, 
 441. But it is plain that the mere physical presence of the money there 
 for a moment is not conclusive while the servant is on the spot and has 
 not lost his power over it ; as, for instance, if the servant drops it, and 
 instantly picks it up again. Such cases are among the few in which 
 the actual intent of the party is legally important ; for, apart from 
 other considerations, the character in which he exercises his control 
 depends entirely upon himself. Sloan v. Merrill, 135 Mass. 17, 19 ; 
 Jefferds v. Alvard, 151 Mass. 94, 95 ; Commonwealth v. Drew, 153 
 Mass. 588, 594. 
 
 It follows from what we have said that the defendant's first position 
 cannot be maintained, and that the judge was right in charging the 
 jur}' that, if the defendant before he placed the money in the drawer 
 intended to appropriate it, and with that intent simph' put it in the 
 drawer for his own convenience in keeping it for himself, that would 
 hot make his appropriation of it just afterwards larcen}'. The distinc- 
 tion may be arbitrary-, but, as it does not affect the defendant otherwise 
 than by giving him an opportunity, whichever offence he was convicted 
 of, to contend that he should have been convicted of the other, we have 
 the less uneasiness in applying it. 
 
 With regard lo the defendant's second position, we see no ground for 
 contending that the detective in his doings was a servant of Sullivan, 
 or that he had not a true possession of the money, if that question were 
 open, which it is not. The onl}' question reserved by the exceptions is 
 whether Sullivan's ownership of the money prevented the defendant's 
 act from being embezzlement. It has been supposed to make a differ- 
 ence if the right of possession in the chattel converted by the servant 
 has vested in the master previous to the delivery to the servant b}- the 
 third person. 1 Eng. Crim. Law Com'rs Rep. (1834), 31, pi. 4. But 
 this notion, if anjlhing more than a defective statement of the decisions 
 as to deliver}^ into the master's barge or cart (Rex v. Walsh, 4 Taunt. 
 258, 266, and Regina v. Reed, ubi supra), does not apply to a case 
 like the present, which has been regarded as embezzlement in England 
 for the last hundred years. Bull's case, stated in The King v. Bazele)', 
 2 Leach (4th ed.), 835, 841 : s. c. 2 East P. C. 571, 572; The King 
 V. Whittingham, 2 Leach (4th ed.), 912 ; The King v. Headge, 2 Leach 
 (4th ed.), 1033 ; s. c. Russ. & Ry. 160; Regina v. Gill, Dears. C. C. 
 289. If we were to depart from the English decisions, it would not be 
 in the way of introducing further distinctions. See Commonwealth v. 
 
 Benaett, 118 Mass. 443, 454. 
 
 Exceptions overruled
 
 554 EEX V. MUCKLOW. [CHAP. VIII. 
 
 SECTION II. {co7itinued). 
 (c) Possession in case of Finding. 
 
 REX V. MUCKLOW. 
 Crown Case Reserved. 1827. 
 
 [Reported 1 3Ioodf/ C. C. 160.] 
 
 The prisoner was tried before Mr. Justice Holro3'd, at the Spring 
 assizes for tlie county of Warwiclv, in the year 1827, upon an indict- 
 ment which charged him with stealing a bill of exchange for ten 
 pounds eleven shillings and sixpence, the first count stating it to 
 1)6 the property of John Lea and others, and the second count as the 
 property of one other James Mucklow. There were two other counts 
 stating it to be a warrant for the payment of ten pounds eleven shil- 
 lings and sixpence, instead of a bill of exchange. 
 
 The instrument in question was a draft drawn by John Lea and 
 Sons, on the da}' it bears date, at Kidderminster (where the}^ carried 
 on business), on their bankers at the same place, and was as follows : — 
 
 Kidderminster, Dec. 1. 1826. 
 Messrs. Wakeman and Turner, Bankers, Kidderminster : 
 
 Pay Mr. .James Mucklow, or. bearer, ten pounds eleven shillings and 
 sixpence. 
 
 £10. lis. 6d. John Lea and Sons. 
 
 This draft was unstamped, and was written on the same sheet of 
 paper with a letter, directed " James Mucklow, Saint Martin's Lane, 
 Birmingham," and was sent b}' Lea and Sons by the post to Birming- 
 ham, which is eighteen miles from Kidderminster. 
 
 No person of that name being found or heard of to be living in 
 Saint Martin's Lane, Birmingham, and the prisoner living in a house 
 about a dozen yards from Saint JNIartin's Lane, with his father, Joseph 
 Mucklow (who was also inckided in the same indictment, but ac- 
 quitted), the postman, on the second of the same December, called 
 with the letter at their house when the}' were out, and left a message 
 that there was a letter for them which the}- were to send for : and it 
 was in consequence thereof, on the same day, delivered to the father, 
 and afterwards came to the hands of the prisoner his son, who appro- 
 priated the draft to his own use, and received payment of it, under cir- 
 cumstances proved b}' evidence arising from the contents of the letter, 
 and otherwise, that satisfied the jur}' be knew the letter and draft were 
 not intended for him, but for another person, and upon which they 
 found him guilt}' of the larceny. 
 
 The letter and draft were intended for another Mr. James Mucklow, 
 then of New Hall Street, Birmins-ham, to whom Messrs. Lea and Sons
 
 SECT. TI.] MERRY V. GREEN. 555 
 
 were then indebted, to the amount of the sum contained in the draft, 
 for goods sold and delivered : but it was misdirected to Saint Martin's 
 Lane by mistake, and sent by the post, in consequence of an appli- 
 cation by letter by tliat James Mucklow to them for payment, as the 
 goods were sold for cash. 
 
 It was objected that this could not in law amount to larceny, as the 
 possession of the letter and draft had been voluntarily parted with by 
 Lea and Sons, and also by the postman, and without any fraud on the 
 part of the prisoner; and Story's case, Russ. & Ry. C. C. R. 81, and 
 Walsh's case, ibid. 215, were cited. ^ 
 
 The learned judge respited the judgment, to take the opinion of the 
 judges on these points. 
 
 At a meeting of the judges in Easter Term, 1827, this conviction 
 was held wrong, on the ground that it did not appear that the prisoner 
 had any animus furancK when he first received the letter ; and a 
 pardon was recommended. 
 
 MERRY V. GREEN. ' 
 Exchequer. 1841. 
 {Reported 7 Meeson ^ Welsby, 623.] 
 
 Trespass for assault and false imprisonment. Pleas : first, not guilty, 
 whereupon Issue was joined ; second)}-, that the plaintiff had feloniously 
 stolen, taken, and carried awaj^ a certain purse filled with coin, etc., of 
 the goods and chattels of one Francis Tunnicliffe, wherefor the 
 defendants had given the plaintiff in charge to a peace-officer, and the 
 plaintiff was therefore arrested and detained a reasonable time, which 
 are the alleged trespasses in the declaration mentioned.^ To this plea 
 the plaintif!* replied de injuria, whereupon issue was joined. 
 
 At the trial before Tindal, C. J., at the last Warwickshire Assizes, 
 the following appeared to be the facts of the case : Messrs Mammatt 
 and Tunnicliffe, who had for some time resided together at Ashby-de- 
 la-Zouch, in the same house, and keeping the same table and servants, 
 in October, 1839, broke up their establishment and sold their furniture 
 (which was partly joint and partly separate property) b}' public auction. 
 At that sale the plaintiff, who was a shoemaker also residing in Ashb}', 
 became the purchaser, at the sum of £1 65., of an old secretary or 
 bureau, the separate property of Mr. Tunnicliffe. The plaintiff kept the 
 bureau in his house, and on the 18tli of November following, he sent 
 for a bo}^ of the name of Garland, a carpenter's apprentice, to do some 
 repairs to the bureau. While Garland was so engaged he remarked to 
 
 ^ Two other objections urged by the defendant are omitted. 
 2 The substance only of the second plea is stated.
 
 556 MEKRY V. GREEN. [CHAP. VIII. 
 
 the plaintiff that he thought there were some secret drawers in the 
 bureau, and touching a spring he pulled out a drawer which contained 
 a quantity of writings. The plaintiff then discovered another drawer, 
 in which was a purse containing several sovereigns and other coins, and 
 under tiie purse a quantity of bank-notes. Of this property the plain- 
 tiff took possession, and telling Garland that the notes were bad, he 
 opened the i)urse and gave him one of the sovereigns, at the same 
 time charging him to keep the matter secret. Garland being interro- 
 gated by his parents how he came by the possession of the sovereign, 
 the transaction transpired ; and it being subsequently discovered that 
 the plaintiff had appropriated the property to his own use, falsely 
 alleging that he had never had possession of a great portion of it, the 
 defendants (one of whom was the solicitor of Mr. Tunniclitfe) went with 
 a police officer to the plaintiff's house, took him into custody, and con- 
 veyed him before a magistrate, on a charge of felony. The plaintiff 
 was ultimatel}' discharged, the magistrate doubting whether a charge 
 of felony could be supported. At the trial, a witness of the name of 
 Hannah Jenkins was called on behalf of the plaintiff, who deposed 
 that she was present at the auction and remembered the piece of furni- 
 ture in question being put up for sale and bought by the plaintiff; that 
 after it was sold an observation was made by some of the bystanders 
 to the effect that the plaintiff* might have bought something more than 
 the bureau, as one of the draw^ers would not open, upon which the 
 auctioneer said, "So much the better for the buyer;" adding, "I 
 have sold it with its contents, and it is his." This statement was op- 
 posed by the evidence of the auctioneer, who stated, on cros.s-exami- 
 nation by the defendant's counsel, that there was one drawer which 
 would not open, and that what he had said was, "That is of no 
 consequence ; I have sold the secretar}^ and not its contents." It did 
 not appear that any person knew that the bureau contained anything 
 whatever. 
 
 The learned cliief justice, in summing up, told the jury that, as the 
 propert}' had been delivered to the plaintiff as the purcliaser, he 
 thought there had been no felonious taking ; and left to them the ques- 
 tion of damages only, reserving leave for the defendant to move to 
 enter a nonsuit. The jury found a verdict for the plaintiff with £50 
 damages. 
 
 In Michaelmas Term, Whitehurst obtained a rule to show cause wh}' 
 the verdict should not be set aside and a nonsuit entered or a new 
 trial had.^ 
 
 Parke, B. In this case there was clearly no bailment, because there 
 was no intention to part with the property in question. It amounts 
 therefore, only to a finding, and comes within the modern decisions on 
 
 1 Arguments of counsel are omitted. During the argument for the plaintiff Parke, 
 B., said : " Suppose a person finds a cheque in the street, and in the first instance takes 
 it up merely to see what it is : if afterwards he cashes it, and appropriates the monej 
 to his own use, that is a felony, though he is a mere finder till he looks at it." — Ed.
 
 SECT. II 1 MERRY V. GREEN. 557 
 
 that subject. It is a matter fit for our serious consideration, and we 
 will speak to the chief justice before we deliver our judgment. No 
 doubt the same evidence is necessary in the present case as would be 
 required to support an indictment. Cur. adv. vult. 
 
 The judgment of the court was now delivered by — 
 
 Parke, B. M}- Lord Chief Justice thought in this case that, even 
 assuming the facts of which evidence was given by the defendant to 
 be true, the taking of the purse and abstracting its contents was not a 
 larcen}^ ; and that is the question which he reserved for the opinion of 
 the court, giving leave to move to enter a nonsuit. After hearing the 
 argument, we have come to the conclusion that, if the defendant's case 
 was true, there was sufficient evidence of a larceny by the plaintiff"; but 
 we cannot direct a nonsuit, because a fact was deposed to on the part 
 of the plaintiff which ought to have been left to the jury, and which, if 
 believed by them, would have given a colorable right to him to the con- 
 tents of the secretary as well as to the secretary itself; namely, the 
 declaration of the auctioneer that he sold all that the piece of furniture 
 contained with the article itself; and then the abstraction of the con- 
 tents could not have been felonious. There must therefore be a new 
 trial, and not a nonsuit. 
 
 But if we assume, as the defendant's case was, that the plaintiff had 
 express notice that he was not to have an}- title to the contents of the 
 secretary if there happened to be anything in it, and indeed without 
 such express notice, if he had no ground to believe that he liad bought 
 the contents, we are all of opinion that there was evidence to make 
 out a case of larceny. 
 
 It was contended that there was a deliver}' of the secretary and the 
 money in it to the plaintiff as his own property, which gave him a 
 lawful possession, and that his subsequent misappi'opriation did not 
 constitute a felony. But it seems to us that, though there was a deliv- 
 ery of the secretary, and a lawful property in it tliereby vested in the 
 plaintiff, there was no delivery so as to give a lawful possessit)n of the 
 purse and money. The vendor had no intention to deliver it, nor 
 vendee to receive it ; both were ignorant of its existence ; and when 
 the plaintiff discovered that there was a secret drawer containing the 
 purse and money, it was a simple case of finding, and the law applica- 
 ble to all cases of finding applies to this. 
 f^ The old rule, that "if one lose his goods and another find them,^ 
 though he convert them anhno furandi to his own use, it is no larceny," 
 / has undergone in more recent times some limitations ; one is, that if the 
 / finder knows who the owner of the lost chattel is, or if, from any mark 
 / upon it or the circumstances under which it is found, the owner could 
 I be reasonably ascertained, then the fraudulent conversion anhno 
 \ furandi constitutes a larceny. Under this head fall the cases where 
 \ the finder of a pocket-book with bank-notes in it with a name on them 
 converts them a7iimo furandi ; or a hackney coachman who abstracts
 
 558 KEGINA V. THURBORN. [CHAP. VIII. 
 
 the contents of a parcel which has been left in his coach by a pas- 
 senger, whom he could easily ascertain ; or a tailor who finds and ap- 
 plies to his own use a pocket-book in a coat sent to him to repair b}- a 
 customer, whom he must know ; all these have been held to be cases of 
 larceny ; and the present is an instance of the same kind and not dis- 
 tinguishable from them. It is said that the offence cannot be larceuN' 
 unless the taking would be a trespass, and that is true ; but if tlie 
 finder, from the circumstances of the case, must have known who was 
 the owner, and instead of keeping the chattel for him, means from the 
 first to appropriate it to his own use, he does not acquire it by a rightful 
 title, and the true owner might maintain trespass ; and it seems also 
 from Wynne's case that if, under the like circumstances, he acquire 
 possession and mean to act honestly, but afterwards alter his mind 
 and open the parcel with intent to embezzle its contents, such unlavyful 
 act would render him guilty of larceny. 
 
 We therefore think that the rule must be absolute for a new trial, in 
 order that a question may be submitted to the jury whether the plain- 
 tiff had reason to believe that he bought the contents of the bureau, 
 if an}-, and consequently had a color of right to the property,^ 
 
 Rule absolute for a new trial. 
 
 REGINA V. THURBORN. 
 Crown Case Reserved. 1849. 
 [Reported 1 Denison C. C. 387.2] 
 
 The prisoner was tried before Parke, B., at the summer assizes for 
 Huntingdon, 1848, for stealing a bank-note. 
 
 He found the note, which had been accidental!}- dropped on the high 
 road. Tl].ere was no name or mark on it, indicating who was the 
 owner, nor were there any circumstances attending the finding which 
 would enable him to discover to whom the note belonged when he 
 picked it up ; nor had he any reason to believe that the owner knew 
 where to find it again. The prisoner meant to appropriate it to his 
 own use, when he picked it up. The day after, and before he had dis- 
 posed of it, he was informed that the prosecutor was the owner, and 
 had dropped it accidentally ; he then changed it. and appropriated the 
 money taken to his own use. The jurj- found that he had reason to 
 believe, and did believe it to be the prosecutor's property, before he 
 thus changed the note. 
 
 The learned Baron directed a verdict of guilt}-, intimating that he 
 
 1 Ace. Cartwright v. Green, 8 Ves. 40.5 ; Robinson);. State, 11 Tex. App 40.3 See 
 Dnrfee v. Jones, 11 R. I. 588 ; s. c. 1 Gray's Cases on Prop. 380. — Ed. 
 ' This case was reported as Reg. v. Wood, 3 Cox C. C. 453. — Ed.
 
 SECT. II.] REGINA V. THURBORN. 559 
 
 should reserve the case for further consideration. Upon conferring 
 with Maule, J., the learned Baron was of opinion that the original 
 taking was not felonious, and that in the subsequent disposal of it 
 there was no taking, and he therefore declined to pass sentence, and 
 ordered the prisoner to be discharged, on entering into his own recog- 
 nizance to appear when called upon. 
 
 On the oOth of April, a. d. ISiO, the following judgment was read 
 by Parke, B : — 
 
 A case was reserved by Parke, B., at the last Huntingdon Assizes. 
 It was not argued by counsel, but the judges who attended the sitting 
 of the court after Michaelmas Term, 1848, namely, the L. C. Baron, 
 Patteson, J., Rolfe, B., Cresswell, J., Williams, J., Coltman, J., and 
 Parke, B., gave it much consideration on account of its importance, 
 and the frequency of the occurrence of cases in some degree similar in 
 the administration of the criminal law, and the somewhat obscure state 
 of the authorities upon it. [The learned Baron here stated the case.] 
 
 In order to constitute the crime of larceny, there must be a taking of 
 the cha,ttel of another animo furandi, and against the will of the 
 owner. This is not the full definition of larceny, but so much only of 
 it as is necessary to be referred to for the present purpose ; bj; the term 
 animo furandi is to be understood the intention to take, not a partic- 
 ular temporary, but an entire dominion over the chattel, without a 
 color of right. As the rule of law founded on justice and reason is 
 that actus non facit reum nisi mens sit rea, the guilt of the accused 
 must depend on the circumstances as they appear to him, and the crime 
 of larceny cannot be committed unless the goods taken appear to have 
 an owner, and the part}- taking must know or believe that the taking is 
 against the will of that owner. 
 
 In the earliest times it was held that chattels which were apparently 
 without an owner, " nuUius in bonis," could not be the sul)ject of 
 larceny. Stamford, one of the oldest autliorities on criminal law, who 
 was a judge in the reign of Philip and Mary, says, B. 1 ch. 16, "Treas- 
 ure trove, wreck of the sea, waif or stray, taken and carried away is 
 not felony." "Quia dominus rerum non apparet, ideo cujus sunt 
 incertum est." For this he quotes Fitz. Abr. Coron. p. 187, 265 ; these 
 passages are taken from 22 Ass. 99; 22 Ed. III., and mention only 
 "treasure trove," "wreck," and "waif" and Fitz. says the punish- 
 ment for taking such is not the loss of life or limb. The passage in 3 
 Inst. 108, goes beyond this; Lord Coke mentions three circumstances 
 as material in larceny : first, the taking must be felonious, which he 
 explains ; secondly, it must be an actual taking, which he also ex- 
 plains ; and thirdly, " it is not by trover or finding ; " he then proceeds 
 as follows: "If one lose his goods and another find them, though he 
 convert them ' animo furandi,' to his own use, it is not larceny, for the 
 first taking is lawful. So if one find treasure trove, or waif or stray 
 (here ' wreck ' is omitted and ' stray ' introduced), and convert them 7it 
 supra, it is no larceny-, both in respect of the finding, and that ' dom-
 
 560 REGINA V. THURBORN. [CHAP. VIII. 
 
 inus rerum non apparet.'" The only authority given is that before 
 mentioned : 22 Ass. 99 ; 22 Ed. III. 
 
 Now treasure trove and waif seem to be subject to a different con- 
 struction from goods lost. Treasure trove is properly money supposed 
 to have been hidden by some owner, since deceased, the secret of the 
 deposit having perished, and therefore belongs to tlie Crown ; as to 
 waif, the original owner loses his right to the property by neglecting to 
 pursue the thief. The very circumstances under which these are 
 assumed to have been taken and converted shew that they could not 
 be taken from any one, there being no owner. Wreck and stray are 
 not exactly on the same footing as treasure trove and waif; wreck is 
 not properly so called if the real owner is known, and it is not for- 
 feited until after a year and a day. 
 
 The word " estray " is used in the books in different senses, as may 
 be seen in Com. Dig. Waife, F., where it is used in the sense of cattle 
 forfeited after being in a manor one year and one day without chal- 
 lenge, after being proclaimed, where the property vests in the Crown, 
 or its grantee of estrays ; and also of cattle straying in the manor, 
 before they are so forfeited. Blackstone, vol. 2, 501, Stephens' ed., 
 defines estrays to be " such valuable animals as are found wandering 
 in any manor or lordship, and no man knoweth the owner of them, in 
 which case the law gives them to the Sovereign." 
 
 In the passage in Stamford no doubt the word is used, not exclu- 
 sively in the former sense, but general!}' as to all stray cattle not 
 seized by the lord. Now treasure trove and waif, properly so called, 
 are clearly " bona vacantia, nullius in bonis," and but for the preroga- 
 tive would belong to the first finder absolutely'. 
 
 " Cum igitur thesaurus in nullius bonis sit, et antiquitus de jure 
 natural! esset inventoris, nunc de jure gentium efficitur ipsius domini 
 regis." Bracton, Coron. L. 3, c. 3, p. 126. Wreck and stray, in the 
 sense we ascribe to those words, are not in the same situation, for the 
 right of the owner is not forfeited until the end of a 3'ear and a day ; 
 but Lord Colve, in Constable's case, 5 Rep. 108 a, treats wreck also as 
 "nullius in bonis;" and estrays, "animalia A'agantia," he terms 
 " vacantia," because none claims the property'. Wreck and estra}', 
 however, before seizure, close!}' resemble goods lost, of which the 
 owner has not the actual possession, and afford an analogy to which 
 Lord Coke refers in the passage above cited. 
 
 Whether Lord Coke means, what the language at first sight imports, 
 that under no circumstances could the taker of goods really lost and 
 found l)e guilty of larcen}', is not clear ; but the passage is a complete 
 and salisfactor}' authority that a person wlio finds goods which are 
 lost ma}' convert them aninio furandi under some circumstances so as 
 not to be guilty of larceny. The two reasons assigned by him are, that 
 the person taking has a right in respect of the finding, and also that 
 they are apparently without an owner, " dominus rerum non apparet,'' 
 an owner, " or " the owner does not appear.
 
 SECT. II.] KEGINA V. THTJRBORN. 561 
 
 The first of these reasons has led to the opinion that the real mean- 
 ing of Lord Coke was not that every finder of lost goods who takes 
 animo furandi is not guilty of felony, but that if one finds, and inno- 
 centl}' takes possession, meaning to keep for the real owner, and after- 
 wards changes his mind and converts to his own use, he is not a felon, 
 on the principle that Lord Coke had previously laid down, viz., that 
 " the intent to steal must be when the thing stolen cometh to his 
 possession, for if he hath the possession of it once lawfully, though he 
 hath anintuin furandi afterwards, and carr3'eth it away afterwards, it 
 is no larceny ; " and Lord Coke also cites Glanville, " P'urtum non est 
 ubi initium habet detentionis per dominium rei." 
 
 It is said therefore that the case of finding is an instance of this, — 
 begirniing with lawful title, which consequently cannot become a felony 
 by subsequent conversion ; but if it be originally taken, not for the true 
 owner, but with intent to appropriate it to his own use, it is a felony ; 
 and of this opinion the commissioners for the amendment of the crimi* 
 nal law appear to have been, as stated in their first report. 
 
 This opinion appears to us not to be well founded ; for Lord Coke 
 puts the case of lost goods on the same footing as waif and treasure 
 trove, which are really hona vacantia, goods without an owner, and 
 with respect to which we apprehend that a person would not be guilty 
 of larceny, though he took originall}' animo furandi, that is, with tha 
 intent, not to take a partial or temporary possession, but to usurp the 
 entire dominion over tbem ; and the previous observations have refer- 
 ence to cases in which the original possession of the chattel stolen is 
 with the consent of or by contract with the owner. But any doubt on 
 this question is removed by what is said by Lord Hale, 1 P. C. 506 : 
 " If A. find the purse of B. in the highway and take and carry it away, 
 and hath all the circumstances that may prove it to be done animo 
 furandi, as denying or secreting it, yet it is not felony. The like in 
 case of taking of a wreck or treasure trove," (citing 22 Ass. 99), " or a 
 waif or stray." Lord Hale clearly considers that if lost goods are 
 taken originally animo furandi, in the sense a-bove mentioned, the 
 taker is not a felon ; and when it is considered that by the common 
 law, larceny to the value of above twelve pence was punishable by 
 death, and that the quality of the act in taking animo furandi goods 
 from the possession of the owner, difl'ers greatly from that of taking 
 them when no longer in his possession, and quasi derelict, in its 
 injurious effect on the interests of society (the true ground for the 
 punishment of crimes), it is not surprising that such a rule should be 
 established, and it is foimded in strict justice ; for the cases of abstrac- 
 tion of lost property being of rare occurrence, when compared with 
 the frequent violations of property in the possession of an owner, there 
 was no need of so severe a sanative, and the civil remedy might be 
 deemed amply sufficient. Hawkins, B. 1, ch. 19, s. 3, Curwood's ed., 
 says : " Our law, which punishes all theft with death, if the thing stolen 
 be above the value of twelve pence, and with corporal punishment if
 
 562 KEGINA V. THURBORN. [CHAP. VIII. 
 
 under, rather chooses to deal with them {e.g., cases of finding, and 
 of appropriating b}^ bailees) as civil than criminal offences, perhaps 
 for this reason, in the case of goods lost, because the party is not much 
 affsrieved where nothino; is taken but what he had lost before." It 
 cannot indeed be doubted that if at this day the punishment of death 
 was assigned to larceny and usually carried into effect, the appropria- 
 tion of lost goods would never have been held to constitute that offence ; 
 and it is certain that the alteration of punishment cannot alter the 
 definition of the offence. To prevent, however, the taking of goods 
 from being larceny, it is essential that the}- should be presumably lost ; 
 that is, that they should be taken in such a place and under such cir- 
 cumstances as that the owner would be reasonabh- presumed by the 
 taker to have abandoned them, or at least not to know where to find 
 them. Therefore if a horse is found feeding on an open common or on 
 the side of a public road, or a watch found apparently hidden in a hay- 
 stack, the taking of these would be larceny, because the taker had no 
 right to presume that the owner did not know where to find them ; and 
 consequently had no right to treat them as lost goods. In the present 
 case there is no doubt that the bank-note was lost, the owner did not 
 know where to find it, the prisoner reasonably believed it to be lost, he 
 had no reason to know to whom it belonged ; and therefore, though he 
 took it with the intent not of taking a partial or temporar}-, but the 
 entire dominion over it, the act of taking did not, in our opinion, con- 
 stitute the crime of larceny. Whether the subsequent appropriation of 
 it to his own use b}^ changing it, with the knowledge at that time that 
 it belonged to the prosecutor, does amount to that crime, will be after- 
 wards considered. 
 
 It appears, however, that goods which do fall within the category of 
 lost goods, and which the taker justh' believes to have been lost, maj' 
 be taken and converted so as to constitute the crime of larceny, when 
 tlie party finding may be presumed to know the owner of them, or 
 there is any mark upon them, presumably known b}' him, by which the 
 owner can be ascertained. Whether this is a qualification introduced 
 in modern times or which alwa3's existed, we need not determine. It 
 ma}' have proceeded on the construction of the reason of the old rule, 
 " quia dominus rerum non appai'et, ideo cujus sunt incertum est," and 
 the rule is held not to appl}^ when it is certain who is the owner ; but 
 the authorities are man}-, and we believe this qualification has been 
 generall}' adopted in practice, and we must therefore consider it to be 
 the established law. There are man}' reported cases on this subject, 
 some where the owner of the goods may be presumed to be known, 
 from the circumstances under which they are found ; amongst these are 
 mentioned the cases of articles left in hackney coaches by passengers, 
 which the coachman appropriates to his own use, or a pocket-book, 
 found in a coat sent to a tailor to be repaired, and abstracted and 
 opened by him. In these cases the appropriation has been held to be 
 larceny. Perhaps these cases might be classed amongst those in
 
 SECT. II.] KEGINA V. THURBORN. 563 
 
 which the taker is not justified in concluding that the goods were lost, 
 because there is little doubt he must have believed that the owner 
 would know where to find them again, and he had no pretence to con- 
 sider them abandoned or derelict. Some cases appear to have been 
 decided on the ground of bailment determined by breaking bulk, 
 which would constitute a trespass, as Wynne's case, Leach C. C. 
 460, but it seems diflicult to ajjply that doctrine which belongs to bail- 
 ment, where a special property is acquired b}- contract, to any case of 
 goods merely lost and found, where a special propert}- is acquired by 
 finding. 
 
 The appropriation of goods by the finder has also been held to be 
 larceny where the owner could be found out In- some mark on them, as 
 in the case of lost notes, checks, or bills, with the owner's name upon 
 them. 
 
 This subject was considered in the case of Merry r. Green, 7 M. & 
 W. 623, in which the Court of Exchequer acted upon the authority of 
 these decisions ; and in tlie argument in that case difficulties were sug- 
 gested, whether the crime of larceny could be connnitted in the case of 
 a marked article, a check for instance, with the name of the owner 
 on it, where a person originally took it up, intending to look at it and 
 see who was the owner, and then, as soon as he knew whose it was, 
 took \l animo fiirandi ; as, in order to constitute a larcen}-, tlie taking 
 must be a trespass ; and it was asked when in such a case the trespass 
 was committed. In answer to that inquiry the dictum attributed to 
 me in the Report was used : that in such a case the trespass must be 
 taken to have been committed, not when he took it up to look at it 
 and see whose it was, but afterwards, when he appropriated it to his 
 own use animo furandi. 
 
 It is quite a mistake to suppose, as Mr. Greaves has done (vol. 2, 
 c. 14), that I meant to lay down the proposition in the general terms 
 contained in the extract from the Report of the case in 7 M. & W., 
 which, taken alone, seems to be applicable to ever}' case of finding 
 unmarked, as well as marked property. It was meant to apply to the 
 latter only. 
 
 The result of these authorities is, that the rule of law on this sub- 
 ject seems to be, that if a man find goods that have been actually lost, 
 or are reasonably supposed by him to have been lost, and appropriates 
 them with intent to take the entire dominion over them, really believ- 
 ing when he takes them that the owner cannot be found, it is not 
 larceny. But if he takes them with the like intent, though lost, or 
 reasonabh' supposed to be lost, but reasonabh- believing that the owner 
 can be found, it is larcen}'. 
 
 In applying this rule, as indeed in the application of all fixed rules, 
 questions of some nicet}' ma}' arise, but it will generally be ascertained 
 whether the person accused had reasonable belief that the owner could 
 be found, by evidence of his previous acquaintance with the ownership 
 of the particular chattel, the place where it is found, or the nature ol
 
 564 REGINA V. PRESTON. [CHAP. VIII. 
 
 the marks upon it. In some cases it would be apparent, in otheif 
 appear only after examination. 
 
 It would probably be presumed that the taker would examine the 
 chattel as an honest man ought to do, at the time of taking it, and if 
 he did not restore it to the owner, the jury might conclude that he took 
 it, when he took complete possession of it, animo furandi. The mere 
 taking it up to look at it would not be a taking possession of the 
 chattel. 
 
 To apply these rules to the present case : the first taking did not 
 amount to larceny, because the note was really lost, and there was no 
 mark on it or other circumstance to indicate then who was the owner, 
 or that he might be found, nor any evidence to rebut the presumption 
 that would arise from the finding of the note as proved, that he 
 believed the owner could not be found, and therefore the original 
 taking Avas not felonious ; and if the prisoner had changed the note or 
 otherwise disposed of it before notice of the title of the real owner, he 
 clearly would not iiave been punishable ; but after the prisoner was in 
 possession of the note, the owner became known to him, and he then 
 appropriated it anwio furandi, and the point to be decided is whether 
 that was a felony. 
 
 Upon this question we have felt considerable doubt. 
 
 If he had taken the chattel innocently, and afterwards appropriated 
 it without knowledge of the ownership, it would not have been larceny ; 
 nor would it, we think, if he had done so, knowing who was the owner, 
 for he had the lawful possession in both cases, and the conversion 
 would not have been a trespass in either. But here the original taking 
 was not innocent in one sense, and the question is does that make a 
 diff"erence? We think not; it was dispunishable as we have already 
 decided, and though the possession was accompanied by a dishonest 
 intent, it was still a lawful possession and good against all but the real 
 owner, and the subsequent conversion was not therefore a trespass in 
 this case more than the others, and consequently no larceny. 
 
 We therefore think that the conviction was wrong. ^ 
 
 REGINA V. PRESTON. 
 Crown Case Reserved. 1851. 
 
 [Reported 5 Cox C. C. 390.] 
 
 The following case was reserved by the Recorder of Birmingham : — 
 Michael Preston was tried before me, at the last Michaelmas Ses- 
 
 1 Ace. Reg. V. Scully, 1 Cox C. C. 189; Reg. v. Dixon, 7 Cox C. C. 35; Reg. 
 V. Shea, 7 Cox C. C. 147; Reg. v. Cliri.stopher, 8 Cox C. C. 91 ; Reg. v. Clyde, 11 
 Cox C. C. 103; Reg. v. Deaves, 11 Cox C. C 227; Bailey v. State, 52 Ind. 462; 
 Wolfiiigton V. State, 53 lud. 343 ; State v. Dean, 49 la. 73. — Ed.
 
 SECT. II.J KEGINA V. PRESTON. 565 
 
 sions for the borough of Birmingham, upon an indictment which 
 charged him in the 1st count with stealing, and in tlie 2d count 
 with feloniously receiving, a £50 note of the Bank of England. It 
 was proved that the prosecutor, Mr. Collis, of Birmingham, received 
 the note in question, with others, on Saturday, the ISth of October, 
 from a Mr. Ledsam, who, before he handed it to the prosecutor, wrote 
 on the back of it the words, " Mrs. Collis." It was further proved that 
 Collis was a very unusual surname in Birmingham, and almost, if not 
 quite confined to the family of the prosecutor, a well-known master 
 manufacturer. About four or five o'clock the same afternoon the prose- 
 cutor accidentally dropped the notes in one of the public streets of 
 Birmingham, and immediately gave information of his loss to the 
 police, and also caused handbills, ofl!'ering a reward for their recover}-, 
 to be printed and cii'culated about the town. On Monday the 20tli, 
 about three o'clock in the afternoon, the prisoner, who had been 
 living in Birmingham fourteen 3ears, and keeping a shop there, went 
 to one of the police stations, and inquired of a policeman if there was 
 not a reward publicly offered for some notes that had been lost, and 
 whether their numbers were known, stating that he was as likely as 
 an}' person to have them offered to him, and if he heard anything of 
 them he would let the police know. He also inquired if the policeman 
 could give him a description of the person who was supposed to have 
 found them, and the policeman gave him a written description of such 
 person, who was described therein as a tall man. Afterwards, between 
 three and four o'clock on the same afternoon, the prisoner went to the 
 shop of Mr. Nickle}-, in Birmingham, and, after inquiring if he 
 (Nickley) had heard of the loss of a £50 note, stated that he (the 
 prisoner) thought he knew parties who had found one ; and he asked 
 Nickle}' whether the finders would be justified in appropriating it to 
 their own use, to which Nickley replied that the}- would not. At 
 four o'clock the same afternoon the prisoner changed the note, and 
 was, later in the same evening, found in possession of a consider- 
 able quantity of gold, with regard to which he gave several false 
 and inconsistent accounts. He was then taken into custody, and 
 on the following day, October 21, stated to a constable that when 
 he was alone in his own house on Sunday, a tall man, whom he did 
 not know, came in and offered him a £50 note, for which he (the 
 prisoner) gave him fifty sovereigns. The police officers previously 
 told the prisoner that the}' wei'e in possession of information that one 
 Tay, who was known to the prisoner, had found the note, but Tay was 
 not called, nor was any evidence given as to the part (if any) which 
 betook in the transaction. Upon these facts I directed the jury that 
 the important question for them to consider was, at what time the 
 prisoner first resolved to appropriate the note to his own use. If they 
 arrived at the conclusion that the prisoner either knew the owner, or 
 reasonably believed that the owner could be found at the time when he 
 first resolved to appropriate it to his own use, that is, to exercise com-
 
 566 REGINA V. PRESTON. [CHAP. VIII 
 
 plete dominion over it, then he was guilt}' of larcen}'. If, on the other 
 hand, he had formed the resohition of appropriating it to his own use 
 before he knew the owner, or had a reasonable belief that the owner 
 could be found, then he was not guilt}' of larceny. I also told the jur}' 
 that there Wiis no evidence of any other person having possession of the 
 note after it was lost, except the prisoner, but that even though the 
 prisoner might not be the original finder, still, if he were the first 
 person who acted dishonestly with regard to it, and if he began to act 
 dishonestly b}' forming the resolution to keep it for his own use after 
 he knew the owner, or reasonably believed that the owner could be found, 
 he would be guilty of larceny. Tlie jury found the prisoner guilty 
 upon the 1st count, and I request the opinion of the judges as to 
 the validity of the conviction. The prisoner was discharged on the 
 recognizances of liimself and two sureties, to appear and receive 
 judgment at the next sessions. 
 
 Bittleston,'^ for the Crovvn. The case of R. v. Thurborn was brought 
 under the consideration of the Recorder ; and construing his direction 
 with reference to the facts stated, it does in substance follow the rule 
 there laid down. It only means that the prisoner would be guilt}' of 
 larceny if, when he first took complete possession of the note animo 
 farandi^ he then knew or had the means of knowing the owner. 
 [Alderson, B. — The direction does not exclude the supposition that 
 the prisoner in the first instance received the note with an honest 
 intention, but afterwards altered his mind, and in a day or two resolved 
 to appropriate it to his own use. But my brother Parke, in Thurborn's 
 case, decided that the dishonest intention must exist as soon as the 
 finder has taken the chattel into his possession so as to know what 
 it is.] It is conceded that the very first moment of taking is not 
 that at which the animus furcmdi and knowledge of the owner must 
 exist to constitute larceny ; because the chattel must be taken into the 
 hand to ascertain what it is. The original possession, therefore, must 
 necessarily be lawful in every case ; and if the dishonest intention 
 arising at the next minute may make the finder guilty of larceny, why 
 may not the same dishonest intention arising afterwards haA^e the same 
 effect? What is a proper time for examining the thing may vary in 
 different cases ; and, if a man takes time to make inquiries, for the 
 purpose of satisfiying himself whether he can keep the chattel without 
 risk of discovery, and ultimately resolves to appropriate it, is he to be 
 held not guilty of larceny because he did not immediately make up his 
 mind to deprive the owner of it? It is stated generally in the text- 
 books (1 Bl. Com. 295, 5th ed.) that the finder of lost goods has a 
 special property in them ; and so, according to Armory v. Delamirie 
 (1 Stra. 505), he has against all but the true owner ; but as against the 
 true owner he has no property whatever ; and it is submitted, at all 
 events with regard to marked property, that as between the finder and 
 
 ^ The argument of O'Brien for the prosecution is omitted.
 
 SECT. II.] REGINA V. PKESTON. 567 
 
 the loser, the possession of the former is, in law, that of the latter, so 
 long as the latter intends to act honestly. He holds merel}' for the 
 true owner ; he had a bare custody : but as soon as he resolves to 
 appropriate the goods to his own use he then converts that lawful 
 custody into an unlawful possession ; he commits a trespass ; and 
 is guilty of larcen}-, according to that class of cases where the owner, 
 by delivering goods to the prisoner, does not part with the possession, 
 but gives him the charge or custody of them only. [Alderson, B. — 
 What do you say to tliat part of the direction which supposes that the 
 prisoner was not the original finder?] It makes no difference whether 
 the prisoner himself picked up tlie lost note, or whether the person 
 who did, brought it to him and informed him of all the circumstances. 
 That intermediate person might act with perfect honesty ; and the 
 prisoner receiving it under those circumstances would be in the 
 situation of a finder. [Martin, B. — Suppose a man takes an umbrella 
 by mistake, and, after keeping it for a few days, finds the owner, but 
 does not return it; is there a felonious taking? Lord Campbell, 
 C. J. — You must contend that there is.] Yes, there would be no change 
 in the possession until the dishonest intention arose. [Lord Campbell, 
 C. J. — Can there be a mental larceny? Alderson, B. — There must be 
 a taking, and it must be a taking animo furandi ; but the taking and 
 the intent are distinct things.] In tlie cases of carriers, where the 
 bailment is determined b}' breaking bulk, there is in truth no fresh 
 taking. The carrier has possession of all the goods delivered to him 
 for the purpose of carriage ; but when he begins to deal dishonestl}^ 
 with them there is a constructive taking ; and Parke, B., from the 
 observation which he makes on Wynne's case, in Merrj' v. Green, 
 seems to have thought so. 
 
 Lord Campbell, C. J. I am of opinion that this conviction can- 
 not be supported. Larcen}^ supposes a taking animo furandi. There 
 must always be a taking ; but in the i^resent case it is quite consistent 
 with the direction of the learned Recorder that the prisoner might be 
 guilt}' of larceny though, when he took possession of it, with a full 
 knowledge of the nature of the chattel, he honestl}' intended to return 
 it to the owner whensoever he should be found ; because he puts 
 it that the important question is, at what time the prisoner first 
 resolved to appropriate it to his own use. But when was the taking? 
 It is said that whenever he changed his mind, and formed the dishonest 
 purpose of appropriating the note to his own use, that then he took it 
 constructively fi'om the possession of the owner; but that dishonest 
 purpose ma}' have first come into his mind when he was lying in bed 
 at a distance of man}' miles from the place where the note was. It 
 seems to me that that operation of the mind cannot be considered a 
 taking, and that, as there was no taking except the original taking, 
 which might have been lawful, the conviction must be reversed. It is 
 unnecessar}' to go into authorities upon this subject, after the elaborate 
 judgment of m}' brother Parke in Thurborn's case.
 
 568 REGINA V. WEST. [CHAP. VIII. 
 
 Alderson, B. In order to constitute larceny, there must be a taking, 
 as well as an intention to steal. The difficulty I feel in this case is to 
 know how a taking, honest at first, can be converted into a dishonest 
 taking by the subsequent alteration of intention. It is clear, in this 
 case, that the learned Recorder left it open to the jury to convict the 
 prisoner, even if they thought that at first he took the note hon- 
 estl}', but that he afterwards changed his mind, then knowing the 
 owner ; and it is argued that the formation of the dishonest intention 
 alters the character of the possession, though the taking may have 
 been a week before ; but I think that that is a degree of refinement 
 which would destroy the simplicity of the criminal law. 
 
 The other judges concurred. 
 
 Conviction quashed.^ 
 
 REGINA V. WEST. 
 Crown Case Reserved. 1854. 
 
 [Reported Dearsley C. C. 402.] 
 
 Jervis, C. J.^ The question is whether, under the circumstances 
 stated in this case, the prisoner was properl}- convicted of larcen}', 
 and we are all of opinion that she was properly convicted. The 
 prisoner keeps a stall in the Leicester market. The prosecutor went 
 to that stall, left his purse there, and went away. The purse was 
 pointed out to the prisoner b}- another person, and she then put it in 
 her pocket, and treated it as her own, and on the prosecutor returning 
 to the stall and asking for the purse, she denied all knowledge of it. 
 Two questions were left to the jury : first, did the prisoner take the 
 \^ purse knowing that it was not her own, and intending to appropriate 
 
 it to her own use? This the jur}' said she did. Secondly, did the 
 prisoner then know who was the owner of the purse? This the jury 
 said she did not. If tliere had been any evidence that the purse 
 and its contents were lost pi'opert}', properly so speaking, and the 
 jury had so found, the jury ought further to have been asked whether 
 the prisoner had reasonable means of finding the owner, or reasonably 
 believed that the owner could not be found ; but there is in this case 
 no reason for supposing that the property was lost at all, or that the 
 prisoner tliought it was lost. On the contrary-, the owner, having left 
 it at the stall, would naturally return there for it when he missed it. 
 
 There is a clear distinction between property lost and property 
 merely mislaid, put down, and left b}- mistake, as in this case, under 
 circumstances which would enable the owner to know the place where 
 
 1 Ace. Reg V. Matthews, 12 Cox C. C. 489. But see Beatty v. State, 61 Mis& 
 18 — Ed. 
 
 2 The opinion only is given ; it sufficiently states the case.
 
 SECT. II.] REGINA V. KOWE. 569 
 
 he had left it, and to which he would naturally return for it. The 
 question as to possession by finding, therefore, does not arise. 
 
 The other learned judges concurred.^ Conviction affirmed. 
 
 REGINA V. ROWE. 
 Crown Case Reserved. 1859. 
 
 [Reported Bell C. C. 93.'-2] 
 
 The following case was reserved by the Chairman of the Glamorgan- 
 shire Quarter Sessions : — 
 
 At the Glamorganshire Midsummer Quarter Sessions, 1858, William 
 Rowe was indicted for stealing 16 cwt. of iron of tlie goods and chat- 
 tels of The Company of Proprietors of the Glamorganshire Canal 
 Navigation. 
 
 It appeared b}' the evidence that the iron had been taken from the 
 canal by the prisoner, who was not in the emplo}- of the Canal Com- 
 pany, while it was in process of being cleaned. The manager of 
 the canal stated that, if the property found on such occasions in the 
 canal can be identified, it is returned to the owner. If it cannot, it is 
 kept by the compan}'. 
 
 It was objected that, as the Canal Compan}' are not carriers, but only 
 find a road for the conveyance of goods hy private owners, the property 
 was not properly laid as that of the Canal Compan}-. The prisoner 
 was convicted, and sentenced to two calendar months' imprisonment in 
 the House of Correction at Cardiff, but was released on bail. 
 
 This case was considered, on 22d November, 1858, by Pollock, 
 C. B., Wightman, J., Williams, J., Channell, B., Byles, J., and 
 Hill, J. 
 
 No counsel appeared. Cur. adv. vult. 
 
 On 5 th Februar}', 1859, the judgment of the court was given by — 
 Pollock, C. B. The judges who have considered this case are unan- 
 imously of opinion that the conviction should be affirmed. The case 
 finds that some iron had been stolen b}' the prisoner from the canal 
 while the canal was in process of cleaning, and while the water was 
 out. The prisoner was not in the emplo}' of the Canal Company, but 
 a stranger ; and the property of the company in the iron before it was 
 taken awa}' b}' the prisoner was of the same nature as that which a 
 
 1 Ace. Reg. V. Coffin, 2 Cox C. C. 44 ; Reg. v. Pierce, 6 Cox C. C. 117 ; Reg. i'. 
 Moore, 8 Cox C. C. 416; State v. McCann, 19 Mo. 249; People v. McGarren, 17 
 Wend. 460; Lawrence v. State, 1 Humph. 228. See McAvoy v. Medina, 11 All. 548; 
 8. c. 1 Gray's Cases on Prop. 378. — Ed. 
 
 * 3. c. 1 Gray's Cases on Prop. 375.
 
 570 COMMONWEALTH V. TITUS. [CHAP. VIII. 
 
 landlord has in goods left behind by a guest. Propert}' so left is in 
 the possession of the landlord for the purpose of delivering it up to 
 the true owner ; and he has sufficient possession to maintain an indict- 
 ment for larceny.^ Conviction affirmed. 
 
 COMMONWEALTH v. TITUS. 
 Supreme Judicial Court of Massachusetts. 1874. 
 
 [Reported 116 Massachusetts, 42.] 
 
 Indictment against Lucian M. Titus and Elbridge F. Horr, charging 
 them jointly Avith the larcen}' of certain articles of personal property 
 alleged to be the property of Nanc}' Meacham. 
 
 Trial in the Superior Court, before Aldrich, J., who allowed the 
 following bill of exceptions: "The defendant Horr pleaded guilt}'. 
 Titus pleaded not guilty. Upon his trial the government introduced 
 evidence tending to prove the ownership of the property as alleged in 
 the indictment ; and that the owner, while riding on one of the public 
 highways in Athol, lost the wallet or travelling bag containing the 
 articles mentioned in the indictment ; that the defendants, passing 
 along the same highwa}' not long after the loss of the bag, discovered 
 it, picked it up, and afterwards appropriated the contents of the bag to 
 their own use, and destroyed the l)ag bj' cutting it in pieces and con- 
 cealing the same in a wood-lot remote from the place of finding. 
 
 " As bearing upon the question of the intent with which the defend- 
 ant Titus originally took the bag and its contents, the government, 
 against his objection, was permitted to introduce evidence to show 
 what Titus said and did about the property and his possession of it, 
 subsequent!}' to the original finding and taking. This evidence was 
 oflTered by the government and admitted by the court for the single 
 purpose of proving, so far as it tended to do that, the intent with 
 ■which Titus originally took the property into liis possession at the time 
 of finding it. And the jury were instructed that they could properh' 
 make no other use of this evidence as against the defendant. 
 
 '• The defendant's counsel asked the court to rule that lost propert}' 
 cannot be the subject of larcen}-. This ruling the court declined to 
 give ; but did instruct the juxy that to authorize a conviction of the 
 defendant Titus, the}- must be convinced by the evidence in the case 
 beyond all reasonable doubt : first, that at the time of the finding of 
 the property by the defendant and the taking of it into his possession 
 he had a felonious intent of appropriating the property to his own use 
 and depriving the owner of it ; secondly, that he then knew who the 
 
 1 See Elwes v. Brigg Gas Co., 33 Ch. D. 562; Goodard v. Winchell (la.), 52 N. W. 
 1124. — Ed.
 
 SECT. II.] COMMONWEALTH V. TITUS. 571 
 
 owner was, or then had reasonable means of knowing or ascertaining 
 who the owner was. 
 
 " The court further instfucted the jur}' that if the evidence failed to 
 satisfy tiiem beyond every reasonable doubt that, at the time of finding 
 the property, Titus knew or had reasonable means of knowing who the 
 owner was ; or if tliey sliould find that he did not originally take the 
 property with the felonious intent of converting it to his own use, but 
 formed such purpose afterwards, it would be their duty to acquit him. 
 
 " To the admission of the evidence objected to, the refusal to rule 
 as requested, and the foregoing instructions, the defendant objected. 
 Other and appropriate instructions, not objected to, in relation to the 
 nature of the offence charged, and in relation to tlie evidence, the 
 burden of proof, &c., were given. 
 
 ''The jury returned a verdict of guilty, and the defendant alleged 
 exceptions." 
 
 F. T. Blackmer, for the defendant, cited 2 East P. C. 663 ; Regina 
 y. Wood, 3 Cox C. C. 453 ; Regina v. Preston, 2 Den. C. C. 353 ; s. c. 
 5 Cox C. C. 390; Regina v. Dixon, 7 ib. 35; Regina v. Christopher, 
 8 ib. 91; Regina v. Moore, ib. 416; Regina v. Glyde, 11 ib. 103; 
 People V. Anderson, 14 Johns. 294 ; People v. Cogdell, 1 Hill, 94 ; 
 Porter v. State, Mart. & Yerg. 226; Tyler v. People, Breese, 227; 
 State V. Weston, 9 Conn. 527. 
 
 C. E. Train, Attorney General, for the Commonwealth, cited, in 
 addition to some of the above cases, Regina v. Thurborn, 1 Den. C. C. 
 387; 2 Bennett & Heard's Lead. Crim. Cas. (2d ed.) 409, 417; 
 Regina v. Shea, 7 Cox C. C. 147; Commonwealth v. Mason, 105 
 Ma°ss. 163. 
 
 Gray, C. J. The rulings and instructions at the trial were quite as 
 favorable to the defendant as the great weight, if not the unanimous 
 concurrence, of the cases cited on either side at the argument would 
 warrant. 
 
 The finder of lost goods may lawfully take them into his possession, 
 and if he does so without any felonious intent at that time, a subse- 
 quent conversion of them to his own use, by whatever intent that 
 conversion is accompanied, will not constitute larceny. But if, at the 
 time of first taking them into his possession, he has a felonious intent 
 to appropriate them to his own use and to deprive the owner of them, 
 and then knows or has the reasonable means of knowing or ascertain- 
 ing, by marks on the goods or otherwise, who the owner is, he may be 
 found guilt}- of larceny. 
 
 It was argued for the defendant that it would not be sufficient that 
 he might reasonably have ascertained who the owner was ; that he 
 must at least have known at the time of taking the goods that he had 
 reasonable means of ascertaining that fact. But the instruction given 
 did not require the jury to be satisfied merely that the defendant might 
 have reasonably ascertained it, but that at the time of the original 
 taking he either knew or had reasonable means of knowing or ascer-
 
 572 EEGINA V. FINLAYSON. [CHAP. VIII. 
 
 taining who the owner was. Such a finding would clearK imp!}- that 
 he had such means within his own knowledge, as well as within his 
 own possession or reach, at that time. 
 
 It was further argued that evidence of acts of the defendant, subse- 
 quent to the original finding and taking, was wrongly admitted, because 
 such acts might have been tlie result of a purpose subsequently formed. 
 But the evidence of the subsequent acts and declarations of the 
 defendant was offered and admitted, as the bill of exceptions distinctly 
 states, for the single purpose of proving, so far as it tended to do so, 
 the intent with which the defendant originall}' took the property into 
 his possession at the time of finding it. And the bill of exceptions 
 does not state what the acts and declarations admitted in evidence 
 were, and consequently does not show that any of them had no tendency 
 to prove that intent, nor indeed that an}- acts were proved except such 
 as accompanied and gave significance to distinct admissions of the 
 intent with which the defendant originally took the goods. ^ 
 
 Exceptions overruled. 
 
 REGINA V. FINLAYSON. 
 Supreme Court op New South Wales. 1864. 
 
 [Reported 3 New South Wales S. C. Reports, 301.] 
 
 Stephen, C. J.^ It appears that the prisoner was driving a mob of 
 horses, when the horse in question (a branded animal, the ownership, 
 therefore, of which was ascertainable in the neighborhood) joined the 
 others — it being near the owner's run. Whether the prisoner (who 
 was two or three hundred yards behind, having assistants ahead or at 
 the side) saw at the time that this horse had joined his own horses, did 
 not appear. But it was proved that the next morning, as the custom 
 was, the prisoner counted over the entire mob, and then drove the 
 whole on together to their destination. The learned judge, in sub- 
 stance, told the jury that assuming this to be a case of finding, yet the 
 prisoner need not have formed the intent to appropriate the animal at 
 the moment of its junction with the others, or of the then continued 
 driving onward of the horses, but that it was necessary to show that 
 such intent existed at the moment of taking. He left the question to 
 them, therefore, whether the intent existed when the prisoner first did 
 some act, or gave some direction by which he treated the horse as part 
 of his own mob of horses, or incorporated it therewith. I am of 
 opinion that this direction was right ; and it seems to be doubtful 
 
 1 Ace. Rountree v. State, 58 Ala. 381 ; Grie:^s v. State, 58 Ala. 425 ; State v. Levj, 
 23 Minn. 104; State v. Clifford, 14 Nev. 72 ; Baker v. State, 29 Oh. St. 184; Brooks v 
 State, 35 Oh. St. 46.— Ed. 
 
 2 The opinion only is given ; it sufficiently states the case.
 
 BECT. II.] REGINA V. ASHWELL. 573 
 
 whether the prisoner's case was one of finding at all. If it merely 
 strayed, it was not lost, and could not therefore be found. But it 
 appears that the next morning the prisoner counted the horses, and he 
 therefore then saw this one among them, and determined to take pos- 
 session of it. By the same act, he took possession, and determined 
 to a[)propriate it. 
 
 Wise, J., concurred. Conviction sustained} 
 
 REGINA V. ASHWELL. , 
 Crown Case Reserved. 1885. 
 [Reported 16 Cox C. C. 1.] 
 
 Case reserved for the opinion of the court by Denman, J., at the 
 January Assizes, 1885, for the county of Leicester, which stated the 
 following facts : — 
 
 On the *23d of January, 1885, Thomas Ashwell was tried for the 
 larceny of a sovereign, the money of Edward Keogh. 
 
 Keogh and Ashwell met at a public house on the 9th of Januar}'. 
 
 At about eight p. m. Ashwell asked Keogh to go into the yard, and 
 when there requested Keogh to lend him a shilling, saying that he had 
 money to draw on the morrow, and that then he would repay him. 
 Keogh consented, and putting his hand into his pocket, pulled out 
 what he believed to be a shilling, but what was in fact a sovereign, and 
 handed it to Ashwell, and went home, leaving Ashwell in the yard. 
 About nine the same evening Ashwell obtained change for the sovereign 
 at another public house. 
 
 At 5.20 the next morning (the 10th) Keogh went to Ashwell's house 
 and told him that he had discovered the mistake, whereupon Ashwell 
 denied having received the sovereign, and on the same evening he gave 
 false and contradictor}' accounts as to where he had become possessed 
 of the sovereign he had changed at the second public house on the 
 night before. But he afterwards said, " I had the sovereign and spent 
 half of it, and I sha'n't give it him back, because I only asked him to 
 lend me a shilling." 
 
 Mr. Sills, for the prisoner, submitted that there was no evidence of 
 larcenv, no taking, no obtaining by trick or false pretence, no evidence 
 that the prisoner at the time he received the sovereign knew it was 
 not a shilling. He referred to Regina v. Middleton, L. Rep. 2 C. C. R. 
 43, 45. 
 
 Mr. A. K. Loyd, for the prosecution, called m}' attention to 
 Stephen's Criminal Law Digest, art. 299, and to the cases relating to 
 larcen}' of propertv found. 
 
 I declined to withdraw the case from the jur}', thinking it desirable 
 
 1 Ace. Reg. V. Riley, 6 Cox C. C. 88 ; Dears. 149, !Vj/"m. — Ed.
 
 574 REGINA V. ASHWELL. [CHAP. VIII. 
 
 ihat the point raised should be decided by the Court of Criminal Appeal. 
 The passage in Stephen's Digest referred to is as follows : " Theft may 
 be committed by converting property which the owner has given to the 
 offender under a mistake which the offender has not caused, but which 
 he knows at the time when it is made, and of which he fraudulent!}' 
 takes advantage. But it is doubtful whether it is theft fraudulently to 
 convert property' given to the person converting it under a mistake of 
 which that person was not aware when he received it." 
 
 The jury found that the prisoner did not know that it was a sovereign 
 at the time he received it, but said they were unanimously of opinion 
 that the prosecutor parted with it under the mistaken belief that it was 
 a shilling, and that the prisoner, having soon after he received it dis- 
 covered that it was a sovereign, could have easily restored it to the 
 prosecutor, but fraudiilentlj' appropriated it to his own use and denied 
 the receipt of it, knowing that the prosecutor had not intended to part 
 with tiie possession of a sovereign, but only of a shilling. They added 
 that, if it were competent to them, consistently with these findings and 
 with the evidence, to find the prisoner guilty, they meant to do so. 
 
 I entered a verdict of guilty, but admitted the prisoner to bail, to 
 come up for judgment at the next assizes if this court should think that 
 upon the above facts and findings the prisoner could properly be found 
 guilty of larceny. 
 
 March 21. Before Lord Coleridge, C. J., Grove, Lopes, Stephen, 
 and Cave, JJ.^ 
 
 J'ane 13. This case was reargued before the following learned 
 judges: Lord Coleridge, C. J., Grove and Denman, JJ., Pollock, B., 
 Field, J., Huddleston, B., Manisty, Hawkins, Stephen, Mathew, Cave, 
 Day, Smith, and Wills, JJ. 
 
 Smith, J., read the following judgment: The prisoner in this case 
 was indicted for the larceny of a sovereign, the moneys of Edward 
 Keogh. The material facts are as follows : Keogh handed to the 
 prisoner the sovereign in question, believing it was a shilling and not 
 a sovereign, upon the terms that the prisoner should hand back a shil- 
 ling to him when he (the prisoner) was paid his wages. At the time 
 the sovereign was so handed to the prisoner he honesth' believed it to 
 be a shilling. Some time afterwards the prisoner discovered that the 
 coin he had received was a sovereign and not a shilling, and then and 
 there fraudulently appropriated it to his own use. Is this larceny at 
 common law or by statute? To constitute the crime of larcen}- at 
 common law, in my judgment, there must be a taking and carrying 
 away of a cliattel against the will of the owner, and at the time of such 
 taking there must exist a felonious intent in the mind of the taker. 
 If one or both of the above elements be absent, there cannot be larceny 
 at common law. The taking must be under such circumstances as 
 would sustain an action of trespass. If there be a bailment or delivery 
 
 ^ Argjuments of counsel are omitted.
 
 SECT. II.] REGINA V. ASHWELL. 575 
 
 of the chattel b}' the owner, inasmuch as, among other reasons, trespass 
 will not lie, it is not larcen}' at common law. In c. 19, § 1, at p. 
 142 of vol. i. of Hawkins' Pleas of the Crown, it is stated: " It is 
 to be observed that all felony includes trespass, and that every indict- 
 ment of larceny must have the wonla/'elonice cepit as well as asportuvit. 
 AVhence it follows that if the party be guilty of no trespass in taking 
 the goods he cannot be guilty of felony in carrying them awav." As 1 
 understand, the counsel for the Crown did not reall\- dispute the above 
 definition, and indeed, if he had, upon further referring to the 3d In- 
 stitutes, chap, xlvii., p. 107, and the 1st Hale's Pleas of the Crown, 
 p. 61, it would be found to be fully borne out by those writers. The 
 two cases cited in argument. Rex v. Mucklow, 1 Moody's Crown Cases, 
 IGl, and Regina v. Davies, Dears. 640, are good illustrations of what I 
 have enunciated ; and if other cases were wanted there are plenty in 
 the books to the same effect. In the present case it seems to me, in the 
 first place, that the coin was not taken against the will of the owner, 
 and if this be so, in my judgment it is sufficient to show that there was 
 no larceny at common law ; and secondly, it being conceded that there 
 was no felonious intent in the prisoner when he received the coin, this, 
 in my judgment, is also fatal to the act being larceny at common law. 
 As to this last point, the law laid down by Cockburn, C J., Blackburn, 
 Mellor, Lush, Gi'ove, Denman, and Archibald, JJ., in the case of 
 Regina v. Middleton, L. Rep. 2 C. C. 45, is very pertinent; it is as 
 follows: " We admit that the case is undistinguishable from the one 
 supposed in argument of a person handing to a cabman a sovereign I)}' 
 mistake for a shilling ; but after a careful weighing of the opinions to 
 the contrary, we are decidedly of opinion that the property in the 
 sovereign would not vest in the cabman, and the question whether the 
 cabman was guilty of larceny or not would depend upon this, — whether 
 at the time he took the sovereign he was aware of the mistake and had 
 then the guilty intent, the animus furandi." I believe the above to 
 be good law. The contention, however, of the Crown was that, although 
 the above might be correct, 3'et the present case was to be likened to 
 those cases in which finders of a lost chattel have been held guiltv of 
 larceny'. The principle upon which a finder of a lost chattel has been 
 held guilt}' of larceny is that he has taken and carried away a chattel, 
 not believing that it had been abandoned, and at the time of such taking 
 has had the felonious intent, — the proper direction to be given to a 
 jury being, as I understood, "Did the prisoner, at the time of finding 
 the chattel intend to appropriate it to his own use, then believing that 
 the true owner could be found, and that the chattel had not been 
 abandoned?" See Regina v. Thurborn, 1 Denison's Crown Cases, 388, 
 and Regina v. Glyde, L. Rep. 1 C. C. 139. If he did, he would be 
 guilt}' of larceny ; aliter he would not. Then it was argued, as argued 
 it was by the counsel for the Crown, that the prisoner in this case was 
 on the same footing as a finder of a chattel. In my judgment the facts 
 do not support it. Keogh, in the present case, intended to deliver the
 
 576 REGINA V. ASHWELL. [CHAP. VIII. 
 
 coin to the prisoner and the prisoner to receive it. The chattel, 
 namely, the coin, was delivered over to the prisoner by its owner, and 
 the prisoner received it honestly. He always knew he had the coin in 
 his possession after it had been delivered to him. The only thing which 
 was subsequently found was that the coin delivered was worth 240f/., 
 instead of 12d., as had been supposed. This argument, as it seems to 
 me, confounds the finding out of a mistake with the finding of a chattel. 
 In some cases, as above pointed out, the finder of a chattel may be 
 guilt}- of larcen}- at common law ; but how does that show that the 
 finder out of a mistake maj- also be guilty of such a crime? A mistake 
 is not a chattel. The chattel (namely, the coin) in this case never was 
 lost ; then how could it be found ? In my judgment the argument upon 
 the point for the Crown is wholly fallacious and fails. It was further 
 urged for the Crown that the present case was covered by autliority, 
 and the cases of Cartwright v. Green, 8 Ves. 405, and Merry v. Green, 
 7 M. & W. 623, were cited in this behalf. I fail to see that either case 
 is an authority' for the point insisted upon b}' the Crown. In the first 
 case, Cartwright v. Green, 8 Ves. 405, the question arose upon demurrer 
 to a bill in Chancery as to whether a felon}' was disclosed upon the face 
 of the bill. Lord Eldon, as he states in his judgment, decided the case 
 upon the ground that, inasmuch as the bureau in question had been 
 delivered to the defendant for no other purpose than repair, and he had 
 broken open a part of it which it was not necessary to touch for the 
 purpose of repair with the intention of taking and appropriating to his 
 own use whatever he should find therein, it was larceny. I conceive 
 this to be distinctly within the principle I have above stated, — there 
 was the taking against the will of the owner with the felonious intent 
 at the time of taking. The other case, namel}-. Merry v. Green, 7 M. 
 & "W., 623, which was also the case of a purse in a secret drawer of a 
 bureau which had been purchased at a sale, was clearl}' decided by 
 Parke, B., who delivered the judgment of the court, upon the principles 
 applicable to a case of finding. The learned Baron says: " It seems 
 to us that though there was a delivery of the secretary and a lawful 
 property in it thereby vested in the plaintiflT, there was no delivery so 
 as to give a lawful possession of the purse and mone}'. The vendor 
 had no intention to deliver it nor the vendee to receive it ; both were 
 ignorant of its existence ; and when the plaintiff discovered that there 
 was a secret drawer containing the purse and money, it was a case of 
 simple finding, and the law applicable to all cases of finding applies." 
 I understand the learned Baron, when he sa^'s " the law applicable to 
 all cases of finding applies," to mean the law applicable to the cases of 
 finding a chattel ; for there are no cases extant as to finding out a 
 mistake to which his remark could appl}-. That, too, is the distinction 
 between the present case and that before Parke, B. In Merry v. 
 Green, 7 M. &*W. 623, no intention to deliver the chattel (namel}', 
 the purse and money) at all ever existed, whereas in the present case 
 there was every intention to deliver the chattel (namely, the coin), and
 
 SECT. II.] REGINA V. ASIIWELL. 577 
 
 it was delivered and honestly received. In my judgment a man who 
 honestly receives a chattel by delivery thereof to him b}- its true owner 
 cannot be found guilty of larceny at common law, and in my opinion 
 the prisoner in this case is not guilty of that offence. The second 
 point has now to be considered, namely, was he guilt}' of larceny as a 
 bailee within the true intent of § 3 of 24 & 25 Vict. c. 96? To consti- 
 tute a person bailee of a chattel there must be a bailment and not a 
 mere delivery of the chattel. There must be a delivery of a chattel 
 upon contract express or implied to return the chattel or obey the 
 mandate witli which the delivery is clogged, or in other words, a delivery 
 upon condition. The question as it seems to me is this, Is the law in 
 the present case to imply a condition when we know perfectly well that 
 at the time of the delivery of the coin no condition at all was in the 
 contemplation of the parties, excepting that a coin of like value should 
 be returned to Keogh when the prisoner had drawn his wages? No 
 condition to return the coin delivered to the prisoner was ever thought 
 of, and in ni}- judgment, such a condition cannot be implied. Should, 
 however, an}' condition be implied as to what was to be done if or 
 when an}' mistake not then contemplated should be discovered, my 
 opinion is that the only condition, if any, which could be implied would 
 be that the prisoner would not spend or use for his own purposes 19s. out 
 of the 205. ; and I am of opinion that if the prisoner had, upon finding 
 out the mistake, taken to Keogh 19s., he would have been strictly 
 within his rights. The case of Regina v. Hassall, L. & C. 58, is an 
 express authority to the effect that a person is not a bailee within the 
 statute unless he is under obligation to return the identical chattel 
 deposited with him. In my judgment the prisoner was not a bailee of 
 the sovereign for the reasons above given. I am fully alive to the 
 remark which has been made, that if the present case is not one of 
 larceny, it sliould be. Whether this remark is well founded or not I 
 do not pause to inquire ; but it seems to me that the observations of 
 Bramwell, B., in Regina v. Middleton, L. Rep. 2 C. C. 38, on this head 
 are well worthy of consideration. Believing, however, as I do, that 
 according to the law of England, as administered from the earliest 
 times, the present case is not a case of larceny at common law, I cannot 
 hold otherwise than I do ; and as for the reasons given above, the 
 prisoner is not, in my opinion, guilty of larceny as a bailee, my judg- 
 ment is that the conviction should be quashed.^ 
 
 Cave, J. (As the learned judge was unable to attend, the following 
 judgment, written by him, was read by Lord Coleridge, C. J.) The 
 question we have to decide is, whether under the circumstances stated 
 in the case the prisoner was rightly convicted of larceny, either at 
 common law or as a bailee. It is undoubtedly a correct proposition 
 that there can be no larceny at common law unless there is also a tres- 
 
 1 Concurring opinions were delivered by Mathew, Field, Manisty, and Stephen, 
 JJ. Day and Wills, JJ., also concurred.
 
 578 REGINA V. ASHWELL. [CHAP. VIII. 
 
 pass, and that there can be no trespass where the prisoner has obtained 
 lawful possession of the goods alleged to be stolen ; or in other words, 
 the thief must take the goods into his possession with the intention of 
 depriving the owner of them. If he has got the goods lawfully into his 
 possession before the intention of depriving the owner of them Is 
 formed, there is no larceny. Applying that principle to this case, if the 
 prisoner acquired lawful possession of the sovereign when the coin was 
 actually handed to him by the prosecutor, there is no larceny, for at 
 that time the prisoner did not steal the coin ; but if he only acquired 
 possession when he discovered the coin to be a sovereign, then he is 
 guilty of larcen}', for at that time he knew that he had not the consent 
 of the owner to his taking possession of the sovereign as his own, and 
 the taking under those circumstances was a trespass. It is contended 
 that, as the prosecutor gave and the prisoner received the coin under 
 the impression that it was a shilling and not a sovereign, the prosecutor 
 never consented to part with the possession of the sovereign, and con- 
 sequenth' there was a taking by the prisoner without his consent ; but 
 to mj- mind, it is impossible to come to the conclusion that at the time 
 when the sovereign was handed to him, the prisoner, who was then 
 under a bona Jide mistake as to the coin, can be held to have been 
 guilty of a trespass in taking that which the prosecutor gave him. It 
 seems to me that it would be equally logical to say that the prisoner 
 would have been guilty of a trespass if the prosecutor, intending to slip 
 a shilling into the prisoner's pocket without his knowledge, had by 
 mistake slipped a sovereign in instead of a shilling. The onl}- point 
 which can be made in favor of the prosecution, so far as I can see, is 
 that the prisoner did not actually take possession until he knew what 
 the coin was of which he was taking possession, in which case, as he 
 then determined to deprive the prosecutor of his property, there was a 
 taking possession simultaneously with the formation of that intention. 
 Had tlie coin been a shilling, it is obvious that the prisoner would liave 
 gained the property in and the possession of the coin when it was handed 
 to him by the prosecutor ; as there was a mistake as to the identity of 
 the coin no property passed, and the question is whether the possession 
 passed when the coin was handed to the prisoner or when the prisoner 
 first knew that he had got a sovereign and not a shilling. Tiicre are 
 four cases which it is important to consider. The first is Cartwright v. 
 Green, 8 Ves. 405, which, however, differs slightly from the present, 
 because in that case there was no intention to give the defendant 
 Green either the property in or the possession of the guineas, but only 
 the possession of the bureau, the bailor being unaware of the existence 
 of the guineas. If the bailee in that case had, before discovering the 
 guineas in the secret drawer, negligently lost the bureau with its con- 
 tents, it is difficult to see how he could have been made responsible for 
 the loss of the guineas. In Merry v. Green, 7 M. & W. 623, the facts 
 were similar to Cartwright v. Green, 8 Ves. 405, except that the bureau 
 had been sold to the defendant. In that case Parke, B., says that though
 
 SECT. II.] REGINA V. ASH WELL. 579 
 
 there was a delivery of the bureau to the defendant, there was no de- 
 livery so as to give a lawful possession of the purse and money in the 
 secret drawer. If these cases are rightly decided, as i believe them 
 to be, tiiey establish the principle tliat a man has not possession of tliat 
 of the existence of which he is unaware. A man cannot without his 
 consent be made to incur the responsibilities toward the real owner 
 wliich arise even from the simple possession of a chattel without further 
 title, and if a chattel has without his knowledge been placed in his 
 custody, his rights and liabilities as a possessor of that chattel do not 
 arise until he is aware of the existence of the chattel and has assented 
 "to the possession of it. A case much urged upon us on beliulf of the 
 prisoner was Rex ?;. Mucklow, 1 Moody's Crown Cases, IGO. In that 
 case a letter containing a draft for £10 lis. Q>d. had been delivered to 
 the prisoner, although really meant for another person of the same name, 
 and tlie prisoner appropriated tlie draft, and was tried and convicted of 
 larceny. The conviction, however, was held wrong on the ground that 
 he had no animus furandi when he first received the letter. Here, as 
 in the two previous cases, the prisoner was not at first aware of the 
 existence of the draft, and when he became aware of it he must have 
 known that it was not meant for him, yet the judges seem to have held 
 that he got possession of the draft at the time when the letter was 
 handed to him. In Regina v. Davies, Dearsley's Crown Cases, 640, the 
 facts were similar to those in Mucklow's case, 1 Moody's Crown Cases, 
 161 ; and Erie, C. J., then Erie, J., who tried the case, directed the 
 jury that if at the time the prisoner received the order he knew it was 
 not his property but the property of another person of known name and 
 address, and nevertheless determined to appropriate it wrongfulh' to 
 his own use, he was guilty of larceny, and that in his opinion the 
 prisoner had not received it until he had discovered, bj' opening and 
 reading the letter, whether it belonged to him or not. " I considered," 
 says the judge, " that the law of larcen}- laid down in respect of articles 
 found was applicable to the article here in question." The court, 
 however, quashed the conviction on the authorit}' of Mucklow's case, 
 1 Mood3-'s Crown Cases, 160. In Regina r. Middleton, L. Rep. 2 
 C. C. 38, in which it was held by eleven judges against four that, where 
 there was a delivery of monej' under a mistake to the prisoner, who 
 received it animo furandi^ he was guilty of larceny, there occurs a 
 passage in the judgment of some of the judges who formed the majorit}', 
 which is as follows: "We admit that the case is undistinguishable 
 from the one supposed in the argument, of a person handing to a 
 cabman a sovereign by mistake for a shilling ; but after carefuU}' 
 weighing the opinions to the contrar}', we are decidedly' of opinion that 
 the propert}^ in the sovereign would not vest in the cabman, and that 
 the question whether the cabman was guilty of larceny or not would 
 depend upon this, — whether he, at the time he took the sovereign, was 
 aware of the mistake, and had then the guilty intent, the animus 
 furandi." For my part, I am quite unable to reconcile the cases of
 
 580 REGINA V. ASHWELL. [CHAP. VIII. 
 
 Rex V. Mucklow, 1 Moody C. C. 161 and Regina v. Davies, Dears. 
 C. C. 640, and the passage I have cited from Reghia v. Middleton, 
 L. Rep. 2 C. C. 38, with those of Cartwright v. Green, 8 Ves. 405 and 
 Merry v. Green, 7 M. & \V. 623 ; and being compelled to choose be- 
 tween them, 1 am of opinion that the law is correctly laid down in 
 Merry v. Green, 7 M. & W. 623, for the following reasons : The accept- 
 ance by the receiver of a pure benetit unmixed with responsibility may 
 fairly be, and is in fact, presumed in law until the contrary is shown ; 
 but the acceptance of something which is of doubtful benefit should not 
 be and is not presumed. Possession unaccompanied by ownership is 
 of doubtful benefit ; for although certain rights are attached to the 
 possession of a chattel, they are accompanied also by liabilities toward 
 the absolute owner which maj- make the possession more of a burden 
 than a benefit. In my judgment, a man cannot be presumed to assent 
 to the possession of a chattel ; actual consent must be shown. Now a 
 man does not consent to that of which he is wliolly ignorant ; and I 
 think, therefore, it was rightly decided that the defendant in Merry v. 
 Green, 7 M. & W. 623, was not in possession of the purse and money 
 until he knew of their existence. Moreover, in order that there may be 
 a consent, a man must be under no mistake as to that to which he 
 consents ; and I think, therefore, that Ashwell did not consent to the 
 possession of the sovereign until he knew that it was a sovereign. 
 Suppose that while still ignorant that the coin was a sovereign he had 
 given it away to a third person, who had misappropriated it, could he 
 have been made responsible to the prosecutor for the return of 20s.? 
 In my judgment he could not. If he had parted with it innocently, 
 while still under the impression that it was only a shilling, I think he 
 could have been made responsible for the return of a shilling and a 
 shilling only, since he had consented to assume the responsibilit}' of a 
 possessor in respect of a shilling only. It may be said that a carrier is 
 responsible for the safe custody of the contents of a box delivered to 
 him to be carried, although he may be ignorant of the nature of its 
 contents ; but in that case the carrier consents to be responsible for the 
 safe custody of the box and its contents, whatever they may happen to 
 be ; and, moreover, a carrier is not responsible for the loss of valuable 
 articles if he has given notice that he will not be responsible for such 
 articles unless certain conditions are complied with, and is led by the 
 consignor to believe that the parcel given to him to carry does not 
 contain articles of the character specified in the notice. Batson v. 
 Donovan, 4 B. & A. 21. In this case, Ashwell did not hold himself 
 out as being willing to assume the responsibilities of a possessor of the 
 coin, whatever its value might be ; nor can I infer that at the time of 
 the deliver}' he agreed to be responsible for the safe custod}' and return 
 of the sovereign. As, therefore, he did not at the time of delivery 
 subject himself to the liabilities of the borrower of a sovereign, so also 
 I think that he is not entitled to the privileges attending the lawful 
 possession of a borrowed sovereign. When he discovered that th«
 
 SECT. II.] REGINA V. FLOWERS. 581 
 
 coin was a sovereign, he was, I think, bound to elect, as a finder would 
 be, whether he would assume the responsibilities of a possessor ; but 
 at the moment when he was in a position to elect, he also determined 
 fraudulently to convert the sovereign to his own use ; and I am there- 
 fore of opinion that he falls within the principle of Regina v. Middleton, 
 L. Rep. 2 C. C. 45, and was guilty of larceny at common law. For these 
 reasons, I am of opinion that the conviction was right.^ , jw* 
 
 REGINA V. FLOWERS. 
 
 Crown Case Reserved. 1886. 
 
 [Reported 16 Cox C. C. 33.] 
 
 Case reserved by the learned Recorder for the borough of Leicester, 
 at the last Epiphany Quarter Sessions for that borough, upon the trial 
 of an indictment which charged one Charles Flowers with having, on 
 the 31st day of October, 1885, while being servant to one Samuel Len- 
 nard and another, feloniously stolen, taken, and carried away certain 
 money to the amount of seven shillings and one penny halfpenny, the 
 property of the said Samuel Lennard and another, his masters. 
 
 It appeared from the case that the prisoner had been for about three 
 months next preceding the 31st day of October, 1885, a chcker in the 
 service of Messrs. Lennard Brothers, a firm of shoe manufacturers in 
 Leicester, in whose establishment the following mode of payment of 
 the wages of their employees was adopted, namely : — 
 
 The amount of wages due to each workman was calculated from the 
 time-book and entered into the wages-book. Each amount was then 
 made up and put into a small paper bag, which was then sealed ; and 
 the bags so secured were sent to the various rooms in which the men 
 worked. The foreman of each of such rooms then distributed the bags 
 containing the wages among the men under his charge. When a mis- 
 take occurred the workman affected thereby took his bag to one Francis 
 Cuflain (the clerk) to have the mistake rectified. 
 
 On the 31st day of October there was due to the prisoner the sum 
 of sixteen shillings and eight pence, and after the workmen had been 
 paid their wages the prisoner came to Cufflin and said that he was 
 three pence short, and gave him the bag into which his money had 
 been put. The top of the bag had been torn oflT, and the bag was 
 empty. Another workman named Jinks had also come to Cuflflin for 
 a correction in his money, stating that fivepence or sixpence was due 
 
 1 Concurring opinions were delivered by Lord Coleridge, C. J., and Denman, J. 
 Grove and Hawkins, JJ., Pollock and Huddleston, BB., also concurred. 
 
 In accordance with the opinion of Smith, J., see Reg. v. Jacobs, 12 Cox C. C 
 151 ; Bailey v. State, 58 Ala. 414. 
 
 In accordance with the opinion of Cave, J., see State v. Ducker. 8 Or. 394. — Ed,
 
 582 KEGINA V. FLOWERS. [CHAP. VIII. 
 
 to liim, and had handed to Cufflin his bag with seven shillings and 
 eleven pence halfpenny in it. Cufflin thereupon gave the prisoner by 
 mistake Jinks's bag, and also three pence in copper, into his hand, and 
 the prisoner, having received Jinks's bag, went away immediately, 
 and in tlie presence of one of his fellow-workmen emptied the contents 
 of Jinks's bag into his hand, saying, ^-Thu biter has got bit: he has 
 paid me double wages." He then turned to another man and said, 
 " Come on, we "11 go and have a drink on it." 
 
 At the close of the case for the prosecution, it was submitted on 
 behalf of the prisoner that there was no case to go to the jury, as the 
 evidence failed to sliow that the prisoner at the time he received the 
 seven shillings and eleven pence halfpenny from Cufflin had the ani- 
 mus furandi, or guilty mind, essential to constitute the offence of lar- 
 ceny, and that any subsequent fraudulent appropriation of the money 
 by the prisoner was immaterial in so far as the offence of larceny was 
 concerned. 
 
 The learned Recorder, however, held that there was evidence to go 
 to the jury of the prisoner having the animus furandi at the time he 
 received from Cufflin the money, and he also ruled, in deference to the 
 opinion of certain of the learned judges in Regina v. Ashwell, 53 
 L. T. Rep. N. S. 773 ; 16 Cox C. C. 1 ; 16 Q. B. Div. 190 ; 55 L. J. 
 65, M. C, that if the prisoner received the money innocently but after- 
 wards fraudulently appropriated it to his own use, he was guilty of larceny. 
 Having directed tlie jury to this effect, he put to them the following 
 questions, name!}' : — 
 
 1. Did the prisoner, from the time he received from Cufflin the bag 
 containing the seven shillings and eleven pence halfpenny, know that 
 it did not belong to him? To this the jury answered, No. 
 
 2. Did the prisoner, having received the bag and its contents inno- 
 cently, afterwards fraudulently appropriate them to his own use? And 
 to this the jur}' answered, Yes. 
 
 The learned Recorder thereupon directed a verdict of guilty to be 
 entered on the first count of the indictment, which was that above set 
 out, and reserved the question for the consideration of this court 
 -whether, the jury not having found afflrmatively that the prisoner had 
 the animus furandi at the time he received the seven shillings and 
 eleven pence halfpenny from Cufflin, he could be rightly convicted of 
 larceny by reason of the subsequent fraudulent appropriation by him 
 of the said money to his own use. 
 
 No one appeared on behalf of the prosecution or the prisoner. 
 
 Lord Coleridge, C. J. This case miglit have raised a very subtle 
 and interesting question. The manner in which the learned Recorder 
 has stated it, however, rkises a question which is distinguishable from 
 that which was raised in the case of Regina v. Ashwell. Now, in that 
 case, the judges who decided in favor of the conviction never meant 
 to question that which has been the law from the beginning, and to 
 hold that the appropriation of chattels which had previously be_eninno-
 
 SECT. II.] REGINA V. FLOWERS. 583 
 
 cently received should amount to the offence of larceny. If that case 
 is referred to, it will be seen that I myself assumed it to be settled law 
 that where there has been the delivery of a chattel from one person to 
 another, subsequent misappropriation of that cliattel by the person 
 to whom it has been delivered will not make him guilty of larceny 
 except by statute. In the present case, however, the learned Recorder 
 appears to have directed the jury that, if the prisoner received the 
 7.S. ll^d. innocently, but afterwards fraudulently appropriated the 
 money to his own use, he was guilty of larceny. But no such rule 
 was intended to be laid down in Regina v. Ash well, and the direction 
 of the learned Recorder was not, in my opinion, in accordance with 
 that decision. It is quite possible for the jury to luive considered con- 
 sistently with that direction that a fraudulent appropriation, six months 
 after the receipt of the money, would justify them in fuiding the pris- 
 oner guilty of larceny. The question we are asked is, whether the jury 
 not having found affirmatively that the prisoner had the animus farandi 
 at the time he received the money, he was rightly convicted of larceny 
 by reason of the subsequent fraudulent appropriation. In my opinion 
 he was not. The judgment of those judges who affirmed the convic- 
 tion in Regina v. Ash well, if carefully read, shows that they considered 
 that to justify a conviction for larceny there must be a taking posses- 
 sion simultaneously with the formation of the fraudulent intention to 
 appropriate, and that was not the case here. 
 
 "Manistt, J. I am of the same opinion. The difference of opinion 
 among the judges who decided the case of Regina v. Ashwell was in 
 the appplication to the particular facts in that case of the settled prin- 
 ciple of law that the innocent receipt of a chattel, coupled with the 
 subsequent fraudulent appropriation of that chattel, does not amount 
 to larceny. And while certain of the judges were of opinion that there 
 had been a fraudulent taking and not an innocent receipt, and held that 
 Ashwell had been guilty of larceny, the others, on the contrary, wxn-e 
 of opinion that there had been an innocent receipt, and that therefore 
 there had been no larceny. I am glad to think that the old rule of law 
 re mains u n affe c ted . 
 
 Hawkins, J. The old rule of law was not questioned by any of 
 the judges in Regina v. Ashwell. This case is distinguishable, for 
 here the learned Recorder told the jury that if the prisoner received 
 the 7s. l\\d. innocently but afterwards fraudulently appropriated that 
 money to his own use, he was guilty of larceny. It appears clear to 
 me that that direction could not be right, and that the learned Recorder 
 misapprehended the rule of law. 
 
 Day, J. I was one of those who dissented from affirming the con- 
 viction in Regina v. Ashwell, and have only to add that,.in my opinion, 
 this conviction cannot be supported. 
 
 Grantham, J. I am of the same opinion. 
 
 Conviction quashed.
 
 i»" / 
 
 \ 
 
 584 REGINA V. HEHIR. [CHAP. VIII. 
 
 REGINA V. HEHIR. 
 
 Court of Crown Cases Reserved, Ireland. 1895. 
 
 [Reported 18 Cox C. C. 267.1] 
 
 Case reserved by the Right Hon. the Lord Chief Baron, as follows: 
 At the Assizes for the Munster Winter Assize Count}', 1894, held at 
 Cork under the provisions of the Munster Winter Assize County Order, 
 1864, Denis Hehir was tried before me and a common jury for the 
 larceny of " nine pounds sterling, of the goods and chattels of one 
 John Leech ; " but during the course of the trial, upon the application 
 of Mr. Bourke, Q. C, counsel for the Crown, I allowed the indictment 
 to be amended by striking out the wOrds " nine pounds sterling," and 
 substituting theiefor the words ''a ten pound note." A copy of the 
 indictment is contained in the Appendix. 
 
 Evidence was given that John Leech, the master of the brigantine 
 Uzziah, which was then in Liiaenck, engaged the prisoner, Denis 
 Hehir, to assist in the discharge of the cargo. On the 20th day of 
 September last Leech owed Hehir for work done in such discharge the 
 sum of 21. 8s. 9d. For the purpose of paying this sum Leech, on said 
 20th day of September, handed the prisoner nine shillings in silver and 
 two bank notes, each of which both Leech and the prisoner believed to 
 be a U. note. One of these notes was in fact a lOl. note. The prisoner 
 left taking away the two notes with him. Within twenty minutes after- 
 wards Leech discovered his mistake and went in search of the prisoner, 
 whom be found within half an hour after he had given him the notes. 
 Leech told the prisoner that he had given him a 10/. note instead 
 of a 1/. The prisoner alleged that he had already changed both the 
 notes. There was evidence that at the time when the pi'isoner first 
 became aware that the note was for 10^. (which was a substantial 
 period after it had been handed to him by Leech) he fraudulently and 
 without colour of right intended to convert the said note to his own use, 
 and to permanently deprive the said John Leech thereof, and that to 
 effectuate such intention the said prisoner shortly afterwards changed 
 the said note and disposed of the proceeds thereof. 
 
 Mr. Bourke referred xr.e to Reg. v. Ash well (16 Cox, C. C. 1) and 
 Reg. V. Flowers (16 Cox C. C. 33 ; 54 L. T. Rep. 547). 
 
 In order to have an authoritative decision upon the question, upon 
 which the Court for Crown Cases Reserved in P^ngland was, in Reg. v. 
 Ashwell, equally divided, I left the case to the jury, who found the 
 prisoner guilty, and I reserved for this Court the question hereinafter 
 fctated. I allowed the prisoner to remain out on bail to come up for 
 sentence at the next assizes for the county of the city of Limerick. 
 
 1 The official report (1895), 2 Ir. 709, gives the opinions at length. — Ed.
 
 SECT. II.] KEGINA V. HEIIIR. 585 
 
 I request the opinion of tliis Court upon the question, " Whether I 
 ought to have directed a verdict of acquittal by reason of the prisoner 
 not having had the animus furaiidl when Leech handed him the 10/. 
 note?" 
 
 Madden, J., said : I consider the conviction in the present case was 
 good at common law. The law being the same in both countries, the 
 English cases are applicable. We are not, however, absolved b}- Reg. 
 V. Ashwell from the duty of forming an independent judgment. Does 
 the evidence show the taking hy Hehir to liave been invito dominif 
 If the handing of the note b}' Leech to Hehir amounted to delivery, no 
 fraudulent intention would suffice to constitute larceny. There was a 
 fiscal transfer. Men are presumed to know the consequences of their 
 own acts. Does the transfer of physical possession, made under such 
 a mistake, amount to a delivery of legal possession? I think not, if it 
 is accepted under a common mistake. If the owner intends the specific 
 property to pass, it is not larceu}'; but where there is a mistake as to 
 identity, it is different. There must be intelligent delivery, and not the 
 mere physical fact from which intelligence is absent. I rest my judg- 
 ment on the fact that the mistake was not one of value, but of identit}'; 
 not the paper ^:>6?- se, but the monej' it represents. The case would be 
 plainer if the excliange were carried on, as in some nations, by means 
 of shells or precious stones. A mistake between a 10/. note and a 1/. 
 is the same. Any consent given or act done in consequence of such 
 mistake can have no legal value whatever. The case of Merry v. 
 Green presents no substantial or essential difference to the present 
 case. It was a case of transfer of ph3'sical possession. Deliver}" was 
 there made in ignorance of the existence of the chattel. In either case 
 the domiiuis remained invitus, for the element of intelligent delivery 
 was wanting. Cases of finding do not throw much light on the ques- 
 tion. Assuming tlie donibtvs to be invitus, was there an}' felonious 
 taking of tlie money at all? In Reg. v. Middleton the question was not 
 as to the effect of knowledge coincident with the taking. The rule 
 which governs this case is simple : it is, " A man to whom a chattel is 
 delivered under a mistake as to its identity does not thereby obtain 
 legal possession ; and if he subsequently learns the mistake and retains 
 its possession, he is guilty of larceny." 
 
 Gibson, J., said : On the question of consent or non-consent there is 
 no substantial difference between a bank-note and any other chattel. 
 First, as to acquisition. Legal possession imports knowledge. Here 
 there was a physical delivery without knowledge. Until knowledge 
 the law should not attribute to the taker the object of taking without 
 consent. If upon discovei-y he elects to return the chattel, then it 
 amounts to custod}' rather than possession ; if he appropriates, then 
 either the possession becomes wrongful, or then and there, for the first 
 time, there is a taking out of possession of the owner of the chattel, 
 which previously was lost ; he commits a tort. Secondly-, as to the 
 lawfulness of the possession. Consent to possession obtained by fraud
 
 586 EEGINA V. HEHIR. [CHAP. VIII. 
 
 or force aiiiino furandi is unlawful. Physical delivery is evidence of 
 consent, but is rebuttable. Even without animus furandi a taker who 
 at delivery is aware of a mistake, his possession is not innocent. The 
 taker there is not misled. The question of consent is one of substance, 
 not of form. Delivery under mistake does not work an estoppel. The 
 taker is bound to give up the chattel on demand. The protection 
 given to mistake does not extend to wilful fraud. I express no opin- 
 ion on tlie question of bailment ; it was not argued. Of seven cases 
 relating to tliis princii)le of mistake, only two are against the view I 
 take. The cases on lost property are distinguishable. The bureau 
 cases seem in direct conflict with the post-office cases. Hehir, who is 
 morally a rogue, is legally a thief 
 
 Holmes, J., said : All acts to carry legal consequences must be acts 
 of the mind. The prosecutor did not intend to give, or know that he 
 was giving, and Hehir did not intend to receive, or know he was receiv- 
 ing; therefore possession remained in the owner. When the taker 
 discovers that he has a chattel which the owner did not intend to give, 
 he then takes it the first time, and if he retains it he is guilty of 
 larceny. 
 
 Murphy, J., said : As to the moral aspect of the defendant's conduct 
 it was clearly just as bad as if he had picked the owner's pocket. But 
 it is said that in consequence of the means he adopted he is not guilty 
 of larceny. The case is governed by Reg. v. Ashwell, where fourteen 
 judges were equall}' divided. 
 
 Johnson, J., said : In my opinion Hehir is not guilty, because a man 
 who honestly receives a chattel with consent of the true owner cannot 
 be found guilty of larceny. Larceny by common law is felonious taking 
 and carrying away from a person. It must be felonious, and this intent 
 to steal must be when it comes to his hand. There must be an actual 
 taking. Hawkins, in his " Pleas of the Crown," adopts Coke's defini- 
 tion of larceny. We are not here concerned with what the law of 
 dishonesty is ; the severity of tlie ancient criminal law led to the dis- 
 tinction I refer to, but still the principle of law remains to-day the 
 same. Where no trespass is there is no larceny at common law. Here 
 there was no trespass. Leigh gave Hehir two notes, 11. and \0l. He 
 intended to give Hehir the property in one of the notes ; what dif- 
 ference is there from the giving of the other note at the same time? 
 Hehir had no animus furandi when he took the notes and obtained 
 possession of them. 
 
 Andrews, J., said: I think the conviction ought to be quashed. 
 I think the property in the note immaterial in this case ; no doubt it 
 did not pass to the prisoner. When Leech handed the notes to Hehir 
 he intended to give Hehir possession of the thing he handed. His 
 intention arose from mistake ; that does not show that the intention 
 does not exist. In fact, he handed the note to Hehir, knowing that he 
 was handing it to him. A man can take and be in possession of a
 
 SECT. II.] • REGINA V. HEHIR. 587 
 
 chattel of which he does not know the value, or believes it to be of a 
 different vakie or qualit}' from its real value or quality. As regards 
 taking, it is an absohite fiction to sa}- tliat, although Ilehir actually 
 took the note when handed to him, he did not then take it, but onlj' at 
 a subsequent time when he discovered it was something different, and 
 that he then took it, when he really did not take it at all, for he had it 
 for some time in his possession. This is to ignore tlie actual taking, 
 and make a mere movement of the mind amount to an actual takins;. 
 At the time Hehir received possession of the note he got lawful posses- 
 siOTTont, and committed no trespass whatever. He took the lOZ. note 
 innocently and with the consent of the owner, not fraudulently ; there- 
 fore he is not guilty of larcen}'. In Reg. v. Ashwell the conviction was 
 not affirmed, but stood merel}' because it was not quashed. It is for 
 the Legislature to make this transaction larceny. 
 
 O'Brien, J., said : Tlie question of consent did not exist in the owner's 
 mind, as to the 10/. B}' his own act he put it into the possession of 
 Hehir. The latter was not guilty of larceny. In order to make him out 
 so, we must hold that he " feloniously took," when in fact he did not 
 take at all. We must invent a new criminal category ; he is a " finder- 
 out,'' by an operation of mind. The asportavit disappears altogether 
 in this case. The corporeal transfer cannot be left out in the idea of 
 larcen}-. What was the position of Hehir between the taking of the 
 article and the discover}' of the mistake b}' him? Excusable detention, 
 I suppose. He is then a party innocent at first, and afterwards guilt}'. 
 I do not consider that Reg. v. Ashwell levels all the previous cases. It 
 was a divided judgment. No crime has been committed in this case, 
 only a moral transgression, as to which the law has not hitherto given 
 effect to the views of those who think to compass the sea bv undertak- 
 ing to push the confines of crime into the boundless regions of dis- 
 honesty. The conviction should be reversed. 
 
 Palles, C. B., said : I admit that the prisoner in this case was a dis- 
 honest one, but it is punishable not In' the judges but b}- the Legislature. 
 Reg. '-•. Mucklow, Reg. v. Davies, and Reg. v. Middleton are all against 
 the conviction. Reg. v. Ashwell said the two first were overruled. In 
 it the opinion of seven judges was adverse to a conviction in a ease like 
 the present. For fifty-eight years there was an unbroken series of de- 
 cisions that acts similar to that of the prisoner were not larceny. In 
 Reg. V. Ashwell a technical rule maintained the conviction. Cartwright 
 V. Green and Merrj^ v. Green, cited for the Crown, are civil cases. 
 I doubt the right of the Court for Crown Cases Reserved in England 
 to reverse a previous decision of their own Court in a previous case. 
 There is no inconsistenc}' between these two civil cases (neither of 
 which was decided by a court of equal authorit}' with that of the Court 
 for Crown Cases Reserved) and the criminal cases. In both the bailor 
 and bailee were ignorant of the existence of the chattel. There was no 
 intentional manual delivery of the chattel. There was that knowledge
 
 588 KEGINA V. HEHIE. [CHAP. VIII. 
 
 in the present case. Reg. v. Ashwell has not a single prior case to 
 support it. It was a case of first impression. The ground upon which 
 it was arrived at is given in the judgment of Coleridge, C. J., in whose 
 mind there must have been some serious misapprehension. I hold that 
 it would not be competent to the court in England to uphold the con- 
 viction in Reg. v. Ashwell, and it is only by following that case that it 
 can be upheld in the present case. As regards written contracts, see 
 Scott V. Littledale (8 E. & B. 815). In written instruments the inten- 
 tion must be gathered from the writing. Why should a man not be 
 held to intend that which is the consequence of his act? So long as 
 Hehir believed the note to be for 11., the prosecutor cannot be heard 
 to say that he had not the intention of parting with it, and till the dis- 
 cover3' of the mistake Hehir had lawful possession of it. There is no 
 difference between the case here and that of a person counting notes 
 and giving nine notes instead of ten. Hehir might lawfully detain the 
 101. note till he had an opportunity of changing it and giving back 9/. 
 to Leech. Hehir must have had lawful possession antecedent to the 
 discover}' of the mistake, and that discovery cannot b}' relation back 
 change the character of the antecedent possession, which was Ilehir's 
 possession, into that of Leech. Hehir was not guilt}- of larceny at 
 common law. 
 
 Sir Peter O'Brien, Bart, C. J., in agreeing with the Chief Baron, 
 referred to Reg. v. Flower, and said: "The innocent receipt of a 
 chattel and its subsequent appropriation does not constitute larcen}'. 
 Leech gave unreservedl}', Hehir honestly received. The fact of his 
 mistaken belief made Leech give the note without any reservation 
 whatever. Reg. v. Mucklow was recognized in Reg. v. Davies, although 
 not argued at the Bar. It was a moot point among the judges. It is 
 not consistent with Cartwright v. Green. There was here no felonious 
 taking. However we dislike the law we must follow it. 
 
 The conviction was accordingly quashed.
 
 SECT. II.J REGINA V. TOWNLEY. 589 
 
 SECTION II. (continued). 
 
 (d) Tortious Possession. 
 
 REGINA V. TOWNLEY. 
 Crown Case Reserved. 1871. 
 
 [Reported 12 Cox C. C. 59.] 
 
 Case reserved for the opinion of this court by Mr. Justice Black- 
 burn. 
 
 The prisoner nnd one George Dunkley were indicted before me at the 
 Kortlianipton Spring Assizes for steaUng 126 dead rabbits. 
 
 In one count they were laid as the propei'ty of William HoUis ; in 
 another as being the property of the Queen. 
 
 There were also counts for receiving. 
 
 It was proved that Selsey Forest is the proi)erty of her Majesty. 
 
 An agreement between Mr. Ilollis and the Commissioners of the 
 Woods and Forests on behalf of her Majesty was given in evidence, 
 which I thought amounted in legal eflfect merel}' to a license to Mr, 
 Hollis to kill and take away the game, and that the occupation of the 
 soil and all rights incident thereto remained in the Queen. No point, 
 however, was reserved as to the proof of the property as laid in the 
 indictment. 
 
 The evidence showed that Mr. Hollis's keepers, about eight in the 
 morning on the 23d of September, discovered 126 dead and newly killed 
 rabbits and about 400 yards of net concealed in a ditch in the forest 
 behind a hedge close to a road passing through the forest. 
 
 The rabbits were some in bags and some in bundles, strapped to- 
 gether by the legs, and had evidently been placed there as a place of 
 deposit b}' those who had netted the rabbits. 
 
 The keepers lay in wait, and about a quarter to eleven on the same 
 day Townle}' and a man, who escaped, came in a cab driven b}' Dunk- 
 ley along the road. Townley and the man who escaped left the cab in 
 charge of Dunkley and came into the forest and went straight to the 
 ditch where the rabbits were concealed and began to remove them. 
 
 The prisoners were not defended by counsel. 
 
 It was contended b}- the counsel for the prosecution that the rabbits 
 on being killed and reduced into possession by a wrong-doer became 
 the propert}' of the owner of the soil, in this case the Queen (Blades v. 
 Higgs, 7 L. T. N. S. 798, 834) ; and that even if it was not larceny to 
 kill and carry away the game at once, it was so here, because the kill- 
 ing and carrj'ing awa}' was not one continued act. 
 
 1 Hale, P. C. 510, and Lee v. Risdon, 7 Taunt. 191, were cited. 
 
 The jurv, in answer to questions from me, found that the rabbits 
 
 1^
 
 590 REGINA V. TOWNLEY. [CHAP. VIII. 
 
 bad been killed by poachers in Selsej- Forest, on land in the same occu- 
 pation and ownership as the spot where tliey were found hidden. 
 
 That Townle-y removed them, knowing that tljey had been so killed, 
 but that it was not proved that Dunkle}' had any such knowdedge. 
 
 I thereupon directed a verdict of not guilt\- to be entered as regarded 
 Dunklcy, and a verdict of guilty as to Townley, subject to a case for 
 the Court of Criminal Appeal. 
 
 It is to be taken as a fact that the poachers had no intention to 
 abandon the wrongful possession of the rabbits which the^- had acquired 
 by taking them, but placed them in the ditch as a place of deposit till 
 the}' could conveniently remove them. 
 
 The question for the court is, whether on these facts the prisoner 
 was properly convicted of larceny'. 
 
 The prisoner was admitted to bail. 
 
 Colin Blackburn. 
 
 No counsel appeared to argue on either side. 
 
 BoviLL, C. J. {after stating the facts). The first question that 
 arises is as to the nature of the property. Live rabbits are animals 
 ferm naturoe^ and are not the subject of absolute propert}' ; though at 
 the same time they are a particular species of propert}' ratione soli, — 
 or rather the owner of the soil has the right of taking and killing them, 
 and as soon as he has exercised that right the}' become the absolute 
 property of the owner of the soil. That point was decided in Blades v. 
 Higgs, siipra, as to rabbits, and in Lonsdale v. Rigg, 26 L. J. 196, 
 Ex., as to grouse. In this case the rabbits having been killed on land 
 the property- of the Crown, and left dead on the same ground, would 
 therefore in the ordinar}' course of things have become the property of 
 the Crown. But before a person can be convicted of larceny of a thing 
 not the subject of larcen}' in its original state, as, e. (/., of a thing at- 
 tached to the soil, there must not only be a severance of the thing froni 
 the soil, but a felonious taking of it also after such severance. Such 
 is the doctrine as applied to stealing trees and fruit therefrom, lead from 
 buildings, fixtures, and minerals. But if the act of taking is continu- 
 ous with the act of severance, it is not larcen}'. The case of larceny of 
 animals fei'ce natiirce stands on the same principle. Where game is 
 killed and falls on another's land, it becomes the property of the owner 
 of the land ; but the mere fact that it has fallen on tlie land of another 
 does not render a person taking it up guilty of larcen}', for there must 
 be a severance between the act of killing and the act of taking the game 
 away. In the present case we must take it that the prisoner was one 
 of the poachers or connected with them. Under these circumstances 
 we might come to the conclusion that it was a continuous act, and that 
 the poachers netted, killed, packed up, and attempted to carry away 
 the rabbits in one continuous act, and therefore that the prisoner ought 
 not to have been convicted of larcen3^ 
 
 Martin, B. I am of the same opinion. It is clear that if a person
 
 SECT. II.J REGINA V. TOWNIEY. 591 
 
 kills rabbits and at the same tiim; carries them awa}', he is not gniltv 
 of larceny. Then, when he kills rabbits and goes and hides them and 
 conies back to carry them away, can it be said that is larceny? A 
 passage from Hale's P. C. 010, "• If a man comes to steal trees, or the 
 lead off a church or house, and sever it, and after about an hour's time 
 or so come and fetch it away, it is felony, because the act is not con- 
 tinuated, but interpolated, and in that interval the property lodgeth in 
 the right owner as a chattel, and so it was argued by the Court of King's 
 Bench, 9 Car. 1, upon an indictment for stealing the lead off West- 
 minster Abbey," was relied on by the prosecution. There is also a 
 dictum of Gibbs, C. J., to the same effect in Lee v. Risdon, 7 Taunt. 
 191. I am not insensible to the effect of those dicta; but here we 
 must take it as a fact that the poachers had no intention to abandon 
 possession of the rabbits, but put them in the ditch for convenience 
 sake ; and I concur in thinking that the true law is that, when the 
 poachers go back for the purpose of taking them away, in continuation 
 of the original intention, it does not amount to larcenj". 
 
 Bramwell, B. Our decision does not appear to me to be contrary 
 to what Lord Hale and Gibbs, C. J., have said in the passages referred 
 to. If a man having killed rabbits on the land of another, gets rid of 
 them because he is interrupted and then goes awaj' and afterwaids 
 comes back to remove the rabbits, that is a larceny ; and so, if on being 
 pursued, he throws them awaj' ; and it is difficult to perceive any dis- 
 tinction where the owner of a chattel attached to the freehold finds it on 
 his land severed, and the person who severed it having abandoned it 
 afterwards comes and takes it away. It is in those cases so left as to 
 be in the possession of the true owner, and the act is not, as Lord Hale 
 expresses it, continuated. In this case, however, the rabbits were left 
 by the poachers as trespassers in a place of deposit, though it hap- 
 pened to be on the land of the owner ; and it is just the same as if they 
 had been taken and left at a public house or upon the land of a neigh- 
 bor. If they had been left on the land of a neighbor or at a public 
 house, could it have been said to be larceny? Clearly not ; and if not 
 why is it larceny because the poachers left them in a place of deposit 
 on the owner's own land? It seems to me that the case is not within 
 the dicta of Lord Hale and Gibbs, C. J., but tliat here the act was con- 
 tinuous, and that there was an asportation by the poachers to a place 
 of deposit, where they remained not in the owner's possession. 
 
 Byles, J. I cannot say that I have not entertained a doubt in this 
 case ; but upon the whole I think that this was not larceny. The 
 wrongful taking of the rabbits was never abandoned by the poach- 
 ers, for some of the rabbits were in their bags. It could hardly be said 
 that if a poacher dropped a rabbit and afterwards picked it up that 
 could be converted into larceny, yet that would follow if the conviction 
 were upheld. 
 
 Blackburn, J. I am of the same opinion. Larceny has alwa3's been 
 defined as the taking and carrying away of the goods and chattels of
 
 592 KEGINA V. TOWNLEY. [CHAP. VIII. 
 
 another person ; and it wjis ver}' early settled where the thing taken was 
 not a chattel, as where a tree was cut down and carried away, that was 
 not larceny, because the tree was not taken as a chattel out of the owner's 
 possession and because the severance of the tree was accompanied by 
 the taking of it away. The same law applied to fruit, fixtures, min- 
 erals, and the lilve tilings, and statutes have been passed to make steal- 
 ing in such cases larcen}'. Though in the House of Lords, in Blades v. 
 Higgs, it was decided that rabbits killed upon land became the prop- 
 erty of the owner of the land, it was expressly said that it did not fol- 
 low that ever}' poacher is guilty of larceny, because, as Lord Cranworth 
 said, "Wild animals whilst living, though they are, according to Lord 
 Holt, the property of the owner of the soil on which they are living, are 
 not his personal chattels so as to be the subject of larceny. They par- 
 take while living of the quality of the soil, and are, like growing fruit, 
 considered as part of the realty*. If a man enters my orchard and fills 
 a wheelbarrow wath apples, which he has gathered from m}' trees, he is 
 not guilty of larceny, though he has certainl}' possessed himself of m}' 
 property ; and the same principle is applicable to wild animals." The 
 principle is as old as 11 Year Book (par. 33), where it is reported that 
 a forester who had cut down and carried away trees could not be ar- 
 raigned for larceny though it was a breach of trust ; but it was said it 
 would have been a different thing if the lord of the forest had cut down 
 the trees and the forester had carried them awa}-, then that would have 
 been larceny. So that in the case of wild animals if the act of killing 
 and reducing the animals into possession is all one and continuous, 
 the offence is not larcen}-. The jury have found in this case that the 
 prisoner knew all about the killing of the rabbits, and that the}' were 
 Iving in the ditch. It is clear that during the three hours the}' were 
 lying there, no one had any physical possession of them and that they 
 were still left on the owner's soil ; but I do not see that that makes any 
 difference. Then there is the statement from Hale's P. C. 510, where 
 it is said that larceny cannot be committed of things that adhere to the 
 freehold, as trees, or lead of a house, or the like, yet that the Court of 
 Kind's Bench decided that where a man severed lead from Westminster 
 Abbey and after about an hour's time came and fetched it away, it was 
 felony, because the act is not continuous but interpolated; and Lord 
 Hale refers to Dalton, c. 103, p. 166; and Gibbs, C. J., expressed 
 the same view very clearly in Lee v. Risdon. Now if that is to be un- 
 derstood as my brother Bramwell explained, I have no fault to find with 
 it; but if it is to be said that the mere fact, that the chattel having been 
 left for a time on the land of the owner has thereby remained the 
 owner's property, and that the person coming to take it away can be 
 convicted of larceny, I cannot agree with it as at present advised. If 
 we are to follow the view taken by my brother Bramwell of these authori- 
 ties, they do not apply here, for no one could suppose that the poachers 
 ever parted with the possession of the rabbits. I agree that in point 
 of principle it cannot make any difference that the rabbits were left an
 
 ^ 
 
 SECT. II.] REGINA V. FOLEY. 593 
 
 hour or so in a place of deposit on the owner's land. The passage from 
 Lord Hale may be understood in the way my brother Bramwell has 
 interpreted it, and if so the facts do not bring this case within it. 
 
 Conviction (juashed.^ 
 
 REGINA V. FOLEY. 
 Crown Case Reserved, Ireland. 1889. 
 
 [Reported 26 Law Reports (Ireland), 299.] 
 
 Case reserved by Mr, Justice Gibson as follows for the opinion of 
 this court : — 
 
 The accused, Edward Foley, was tried before me at Maryborough 
 
 Summer Assizes, 1889, for the Queen's County, for larceny of hay. 
 
 The indictment was at common law. 
 
 /■ Foley had been tenant to a Mr. Kemmis of part of the lands of 
 
 / Ballyadams in said county, but his tenancy had been determined by a 
 
 / civil-bill decree in ejectment, dated the 1st January, 1888, which was 
 
 I duly executed, and possession taken on the 27th April, 1888, when the 
 
 ; house on the premises was levelled. 
 
 On August the 10th, 1888, the accused was seen by the police cutting 
 
 meadow on the said lands with a scythe. On the llth he was again 
 
 '^'' j seen cutting meadow there. A police constable went to him there and 
 
 said, "He was glad some one would be responsible for the cutting," 
 
 when Foley replied, " He might as well have it as the landlord." 
 
 On the 13th August Foley proceeded to rake up the hay, which was 
 then lying scattered in the field, and put it into a cart. He took 
 altogether ten or twelve cwt., and brought it awa^^ in the direction of 
 Athy. 
 
 Mr. Leamy, counsel for the prisoner, contended that there was no 
 
 \ larcen}', as the indictment was at common law, and the taking was one 
 
 Vcontinuous act : relying on The Queen v. Townle}', L. R. 1 C. C. R. 315. 
 
 ^■^Mr. Molloy, Q. C, for the Crown, contra, contended that the hay 
 
 was to be deemed in the possession of Mr. Kerpmis at the time when 
 
 the prisoner removed it. 
 
 In reply to a question put by me the jury said that the prisoner did 
 not abandon possession of the grass cut between the time of cutting 
 and time of removing the same. 
 
 It must be taken tliat Mr. Kemmis was in possession of the evicted 
 farm at the time when the grass was cut and removed. There was no 
 evidence of any act done by Mr. Kemmis, or an}^ person on his behalf, 
 on the evicted farm from the date of eviction until the removal of the 
 hay ; nor was there any evidence of any act done by the prisoner in 
 reference to the farm or the grass cut, save as above stated. 
 
 1 Ace. Reg. V. Fetch, 14 Cox C. C. lift. — Ed.
 
 594 REGINA V. FOLEY. [CHAP. VIII. 
 
 Mr. MoUoy, Q. C, further contended that there was no evidence to 
 support the special finding. 
 
 I advised the jury to convict the prisoner, which they did, but I did 
 not sentence him, and he stands out on his own recognizance, pending 
 the decision of this case. 
 
 The question for the court is, whether, on these facts, the prisoner 
 was properly convicted of larceny. 
 
 J, G. Gibson.* 
 
 E. Leamy, for the prisoner. 
 
 Molloy, Q. C, with him T. P. Law, Q. C, for the Crown. 
 Gibson, J.^ I reserved this case for the purpose of settling a ques- 
 tion arising, or supposed to arise, on the decision in Reg. v. Townle}', 
 L. R. 1 C. C. R. 315. The evidence is meagre. Assuming that the 
 cutting of the meadow by the accused was some evidence of an assump- 
 tion of possession of the grass cut, there was no evidence, in my opinion, 
 of any effective possession by him of the grass so cut and left lying on 
 the owner's ground from that time until it was carried away, — though 
 it must be taken that Foley did not intend to abandon such grass. On 
 these facts prisoner's counsel, relying on Reg v. Townle}^, L. R. 1 C. C. 
 R. 315, contended that the prisoner could not be convicted of larceny. 
 The authorities cited by Mr. Molloy, Q. C. (to which may be added 
 East, PI. Cr., vol. 2, p. 587, and Gabbett, Grim. Law, p. 557), estabUsh 
 that where a thief, after severing things parcel of the realty, left the 
 chattels so severed on the proprietor's soil, and after an interval came 
 again and took them away he would be guilty of larceny at common law, 
 the chattels being at the time of removal in the constructive possession 
 of the rightful owner. The principle of common law would seem to be 
 that, when the wrong-doer's actual and effective possession ceases he 
 cannot be deemed to be in constructive possession, and that such con- 
 structive possession of the severed chattels, crops, fixtures, or other- 
 wise, becomes vested in the rightful owner, on whose land they are 
 left, by virtue of his right to possession. 
 
 For the prisoner it was argued that Townley's case, L. R. 1 C. C. R. 
 315, is an authority against this view, and that if wrongful possession is 
 once acquired by the thief, the fact that he may afterwards before re- 
 moval cease to be in effective occupation and control is immaterial, if he 
 does not intend to relinquish the wrongful possession, and in pursuance 
 of his original intent comes and takes away the property. 
 
 That this contention may not be entirely without color is shown by 
 the way Townley's case, L. R. 1 C C. R. 315, is treated by well-known 
 writers. Thus, Mr. R. S. Wright, in his Essay on Possession, at p. 231, 
 says : " It was formerly supposed that the mere leaving of the thing by 
 the taker on the owner's premises for a time of itself vested a posses- 
 sion in the owner, so as to make a re-occupation by the taker a trespass 
 
 1 Arguments are omitted. 
 
 2 Johnson, J., and Morris, C. J., delivered opinions in favor of conviction, and 
 Harrison, O'Brien, and Andrews, JJ., concurred with the majority of the court.
 
 SECT. II.] REGINA V. FOLEY. 595 
 
 and {miimus furaiuU being present) a theft. But it seems clear that 
 sucli a relinquisliment is merely evidence of an abandonment, general or 
 to the owner, more or less conclusive according to the circumstances." 
 So in the last edition of Archbold Criminal Law, at p. 363, it is 
 stated there is no larceny unless tlie " wrong-doer had between the 
 severance and the taking away intended to abandon his wrongful pos- 
 session of the article severed." In my opinion Townley's case, L. R. 
 1 C. C. R. 315, does not decide what is supposed. The continuity of 
 transaction contemplated by the common law as excluding larceny may 
 be considered from the point of view of time, act, and possession. The 
 principal element being possession, if the thief is in continuous posses- 
 sion, the occurrence of an interval of time between the taking and the 
 carrying away can of itself make no difference. Townley's case, L. R. 
 I'C C. R 315, only decides : (1) that where tliere is evidence of actual 
 possession continuing, the fact that there is an interval of time between 
 the taking and carrying away does not constitute larceny where the 
 wrong-doer's intention is not abandoned and the transaction is in sub- 
 stance continuous ; (2) that chattels may be in the thief s possession, 
 though left on the owner's land (tlie chattels there being rabbits which 
 were not subject of property until killed). The expressions " abandon " 
 and '* intention to abandon," found in the report of Townley's case, L. 
 R. 1 C. C. R. 315, though not inappropriate when read with reference to 
 the special facts of that case, are liable to misconstruction if emi)loyed 
 in reference to such a case as that before us. Wliere chattels after 
 severance are left on the property of the true owner, no matter what 
 the wrong-doer's intention may be, he cannot escape the common-law 
 doctrine, if his possession is not in fact continuous. Continuity of 
 intention is not the equivalent of continuity of possession. The 
 transaction here was not continuous, and the conviction is right. 
 
 Holmes, J. I think that the solution of the question reserved in 
 this case depends upon whether there is any evidence that the grass or 
 hay was not in the possession of the true owner in the interval between 
 the severance and removal. When the grass was growing it belonged 
 to the owner of the land ; but although he was in possession of it as 
 part of the land, he was not in possession of it as a personal chattel. 
 It first became capable of being the subject of larceny when it was 
 severed. It is, I think, clear that where it is severed by a wrong-doer, 
 and, as part of one continuous transaction, it is carried away by him, 
 there is no larceny. In such a case it has never, as a personal chattel, 
 been in the possession, actual or constructive, of the true owner. It 
 has been continuously in the actual, though perhaps not always in 
 the physical, possession of the wrong-doer. In the case before us the 
 defendant, having cut the grass, left it on the lands. Beyond the 
 severance he did no act of any kind evidencing actual possession on 
 his part, and for two days the owner of the land had, it seems to me, 
 precisely the same kind of possession of it as he would have had if it 
 had been cut and left there by his own servant.
 
 596 REGINA V. FOLEY. [CHAP. VIII. 
 
 There cannot, I conceive, be constructive as distinguished from 
 actual possession b3'^ a wroug-doer ; and when he returned at the end 
 of the period I have mentioned he would be guilty of larcen}', unless 
 he was in actual possession in the interval. Tliere is not, however, a 
 particle of evidence of such actual possession, and therefore I hold the 
 conviction right. This conclusion is in strict accordance with the 
 authorities previous to The Queen v. Townley, L. R. 1 C. C. R. 315, 
 referred to b\' Mi-. MoUoy, and does not, I think, in any way con- 
 flict with that decision. In that case there was abundant evidence 
 that tiie whole transaction was a continuous act, or in other words, 
 that the wrong-doer had never been out of actual possession ; and 
 under the circumstances the fact, upon the assumption of which the 
 case was stated, that the poachers had no intention to abandon the 
 wrongful possession of the rabbits which they acquired, but placed 
 them in the ditch as a place of deposit till they could conveniently 
 remove them, was decisive in the prisoner's favor. I consider, how- 
 ever, that that decision has no application to the present case. 
 
 Palles, C. B. I am unable to concur with the other members of the 
 court. In m}- opinion the conviction was wrong, and ouglit to be 
 quashed. We all appear to agree that if the thing taken and carried 
 away is for the first time rendered capable of being stolen by the act 
 of taking, and if the taking and carr3'ing awa}' constitute one continu- 
 ous act, such taking and carrying away is not theft at common law. 
 We also appear to agree that the rule applies as well to the grass in 
 question here as to the rabbits in The Queen v. Townley, L. R. 1 C. C. 
 R. 315, and that the reason of the rule is not that the thing taken was 
 not at the time of the taking the property of the prosecutor, but be- 
 cause, at the moment at which it became that class of propert}' which 
 can be the subject of larcen}' — i, e. a personal chattel — it was in 
 the possession, not of the true owner, but of the trespasser. On the 
 other hand, I admit that although the possession of the chattel was in 
 the trespasser by the act of taking, yet, if such possession ceased in 
 fact, by its abandonment by the trespasser, the possession upon such 
 cesser became constructiveh' that of the true owner ; and that if, 
 during the continuance of such constructive possession, the trespasser 
 again took possession, animo furandi, such last-mentioned taking 
 would 1)6 larceny. 
 
 The question, then, for decision is, whether on the facts of the present 
 case, and notwithstanding the finding of the jury on the question left 
 to them, we can say, as a matter of law, tliat the cutting and carrying 
 away did not constitute one continuous act ; or, in other words, that 
 the possession of the prisoner of the severed grass had ceased prior to 
 its removal on the 13th August. As to what constitutes a cesser of 
 possession, it seems clear that it cannot be said that it necessarily takes 
 place the moment the trespasser abandons physical control over the 
 chattel. In The Queen v. Townley, L. R. 1 C. C. R. 315, the rabbits 
 were lying in a ditch for three hours during the absence of the poachers,
 
 SECT. II.] KEGINA V. FOLEY. 597 
 
 and were consequently for that period out of their physical power and 
 control ; yet it was held that the question of the cesser or abandon- 
 ment of the trespasser's possession was one not of law, but uf I'act ; 
 and that a verdict negativing — as the jury have here negatived — 
 intention to abandon amounted to not guilty. Tiie decision there, 
 therefore, involved the determination that during the entire period 
 whilst the rabbits lay in the ditch, they were in law in the possession, 
 not of the true owner, but of the absent poachers, and were so by 
 reason of the absence in the minds of the poachers of intention to 
 abandon. 
 
 The same conclusion was arrived at in Reg. v. Fetch, 14 Cox C. C. 
 116, in which the period during which the dead rabbits were hidden in 
 a hole in the earth must have been nearly an entire da}-, viz. from half- 
 past eleven on one morning to early on the following morning. I am 
 not quite sure that I understand the exact meaning which Mr. Justice 
 Gibson attaches to the word "effective" when he conceives it to be 
 a principle of the common law that when the wrong-doer's actual and 
 effective possession ceases, he cannot be deemed to be in constructive 
 possession. If by "effective" he means something different from 
 " actual" and for this reason distinguishes the present case from The 
 Queen v. Townley, L. R. 1 C. C. R. 315, and The Queen v. Fetch, 14 
 Cox C. C. 116, I am unable to follow his reasoning. If it can be said, 
 as a matter of law, that the possession of the severed grass by the 
 prisoner in the present case, although actual, was not " effective" so, 
 too, should have been held the possession for a day of the trapper in 
 The Queen v Fetch, 14 Cox C. C. 116, and that for three hours of the 
 poachers in The Queen v. Townley, L. R. 1 C. C. R. 315. On the 
 other hand, if by "effective" he means no more than is involved in 
 " actual," then, although I agree in his view, I cannot distinguish the 
 present case from Townley's case, L. R. 1 C. C. R. 315, and Fetch's 
 case, 14 Cox C. C. 116. On that supposition it would not be sufficient 
 that the facts should be such that the jury might have found that the 
 actual possession of the prisoner had ceased. No doubt they might, 
 but they have not done so. They have found the contrary. Fetch's 
 case, 14 Cox C. C. 116 is a clear authority that if the period which 
 elapsed between the cutting the grass and its ultimate carrying awa}' 
 did not amount to more than a day, the prisoner, in the present case 
 (having regard to the finding) would not have been guilty. But if the 
 exact length of the interval be material, we, as distinct from the jurors, 
 cannot determine the exact time, measured in hours or in days, the 
 existence of which will make .that larceny, which would not have been 
 so had the interval been something less. We cannot say that if the 
 interval be twenty-three hours it may not be, but that if it be in- 
 creased to twenty-five hours, or three days, it necessarily must be 
 larcen}'. 
 
 The question involved is, as decided in Townle^^'s case, L. R. 1 C. 
 C. R. 315, one of intention. Such a question is usually exclusively foi
 
 598 EEGINA V. FOLEY. [CHAP. VIII. 
 
 a jurj'. If time be, as admittedly it is, material in determining this 
 intention, the only periods between which the common law can recog- 
 nize a distinction are between those which are and which are not 
 reasonable. This is the view taken b}' Mr. Justice Stephen in his 
 Digest (4th ed. Art. 296). " It seems," he says, " that the taking and 
 carrying away are to be deemed to be continuous if the intention to 
 carry away after a reasonable time exists at the time of the taking." 
 If this be, as I think it is, the true rule, the jurors alone can, in a 
 case such as the present, determine within which class the period of 
 time in question here must range ; and the question of reasonable 
 time not having been left to the jury or found, considerations arising 
 from the length of the interval cannot, as it seems to me, be relied 
 upon. If, therefore, the conviction, under the circumstances proved, 
 be riglit, so must it have been had the interval been three hours, or 
 one da}', instead of three days ; and unless there be some other dis- 
 tinction between this and Townley's case, L. R. 1 C. C. R. 315, and 
 Fetch's case, 14 Cox C. C. 116, the present case would appear to be 
 ruled by them. Is there, then, an}' distinction? I think not. It is 
 said that here there is an absence of intention, by which I suppose 
 is meant absence of affirmative evidence of intention in the prisoner 
 to remain in possession. Even were this so it would not justif}' the 
 judge in withdrawing from the jury the prisoner's intention; for the 
 material thing is, not the absence of intention to retain possession, 
 but the presence of affirmative intention to abandon. The mere act 
 oT cutting was some evidence that the prisoner cut the grass for him- 
 self, and intended to use it. He told the police constable that he (the 
 prisoner) might as well have it as the landlord. This declaration, 
 though made on the 11th, is some evidence of his intention at the 
 time of the original cutting, on the 10th. It was competent, too, to 
 tlie jury to have regard to the character of the act done, and to find 
 that the reason the prisoner refrained for three days from carrying it 
 away was that it might become dry, and that he might carry it away as 
 ha}'. 
 
 Mr. Molloy, as I understand, contests the proposition laid down by 
 Mr. Justice Stephen, to which I have already referred, and for that 
 purpose relies mainly upon 1 Hale P. C, p. 510, and Lee v. Risdon, 7 
 Taunt. 191. In the first it is said : " If a man come to steal trees, or 
 the lead of a church or house, and sever it, and after about an hour's 
 time or so come and fetch it away, this hath been held felony, because 
 the act is not continuated but interpolated, and so it was agreed by the 
 Court of King's Bench, 9th Car. II., upon an indictment for stealing the 
 lead of Westminster Abbey." This passage may mean no more than 
 that such an act is capable of being a felony, if so found by the jury ; 
 and that the jury should so find, if they were of opinion that the act 
 was not continuated but interpolated. In Lee v. Risdon, 7 Taunt. 191, 
 the distinction drawn by Gibbs, C. J., is as to that of which felony can, 
 and that of which it cannot, be committed. "Felony," he says, " can-
 
 SECT. II.J REGINA V. FOLEY. 599 
 
 not be committed of those things " {i. e. things attached to the freehold), 
 " but if the thief severs the property, and instantly carries it off, it is 
 no felon}' at common law. If, indeed, he lets it remain after it is 
 severed, any time, then the removal of it becomes a felon}'." The true 
 meaning, however, of these passages was determined by The Queen v. 
 Townley, L. R. 1 C. C. R. 315. Martin, B., explains them in these 
 words: "Those statements may be perfectly correct, and ought, per- 
 haps, to be followed, in cases exactly similar in their facts, where there 
 has been an actual abandonment of possession of the things taken ; 
 but here it is expressly found that there was no abandonment ; and 
 where the act is merely interrupted, I think it is more reasonable to 
 hold that there is no larceny." This judgment is valuable as showing 
 two things: (1) That the authorities relied upon by Mr. Molloy are 
 applicable only where an actual abandonment of the thing taken has 
 been found or admitted ; (2) That the question of abandonment, in 
 fact, depends upon intention to abandon. There, the fact admitted 
 was that the poachers had no intention to abandon ; and that is treated 
 by Martin, B., as an express finding that there was no abandonment 
 in fact. Bramwell, B., also treats the case as depending upon inten- 
 tion. " I think our decision," he says, " is consistent with the pas- 
 sage cited from Hale, and the dictum of Gibbs, C. J., referred to, which 
 appear to me to be quite correct. If a man were unlawfully to dig 
 his neighbor's potatoes, and from being disturbed in his work, or any 
 other cause, were to abandon them in the place where he had dug them, 
 and were afterwards, with a fresh intention, to come back and take 
 them away, I think the case would be the same as if, during this interval 
 of time, the potatoes had been locked in a cupboard by the true owner." 
 Byles, J., in the same way treats the fact that the poachers had no 
 intention to abandon as involving that their possession never had been 
 abandoned in fact. Blackburn, J., says: "There is the fact that the 
 rabbits, after being killed, were left hidden in a ditch upon the land for 
 nearly three hours. I should myself have thought that that made no 
 difference in the case." As to the passages cited from Lord Hale, and 
 the dictian of Chief Justice Gibbs, he adds: "If we are to under- 
 stand those passages in the sense put upon them by my brother Bram- 
 well, as applying only to a case in which the wrong-doer has abandoned 
 and lost all property and possession in the things in question, I have no 
 quarrel with them, and they do not apply to the present case. But if 
 those passages mean that the mere cessation of physical possession is 
 sufficient to make the subsequent act of removal larceny, then they do 
 apply to the present case, and in that case, great as is my respect for 
 Lord Hale, I cannot follow him." 
 
 The clear answer, then, to the argument of Mr. Molloy, appears to 
 me to be that if the passages he has relied upon are to be read in the 
 sense for which he contends, they are inconsistent with, and have been 
 overruled by The Queen v. Townley, L. R. 1 C. C. R. 315. 
 
 Upon the whole, I am of opinion that the decision in The Queen
 
 600 COMMONWEALTH V. STEIMLING. [CHAP. VIII. 
 
 V. Townley, L. R. 1 C. C. R. 315, as applied to the present case, in- 
 volves the following propositions : — 
 
 1. That the mere leaving by the prisoner of the field in which he cut 
 the grass was not, per se, and irrespective of every other consideration, 
 sufficient to make his subsequent act of removal larceny. 
 
 2. That the prisoner's omission for three days to take away the hay 
 was evidence from which a jury might, if they thought fit, have found an 
 abandonment b}- the prisoner of that possession which he had acquired 
 by the unlawful act of severance. 
 
 3. That such question of abandonment involved the intention of the 
 prisoner and his object in leaving the grass lying upon the field for 
 three days. 
 
 4. That such abandonment was essential to a valid conviction ; and 
 that, in the present case, in which instead of being found it has been 
 negatived, the conviction cannot be sustained. See Reg. v. Barry, 2 
 Cox C. C. 294. 
 
 COMMONWEALTH v. STEIMLING. 
 
 Supreme Court of Pennsylvania. 1893. 
 
 [Repo7-ted 27 Atlantic Reporter, 297.] 
 
 Williams, J.^ It appeared on the trial that Bower, the prosecutor, 
 was the owner of a farm which was crossed by Mahanoy Creek. Some 
 distance up the stream coal mines were in operation, and had been for 
 many years. The culm and waste from the mines and breaker, which 
 had been thrown into, or piled upon the bank of, the creek, had been 
 carried down the stream by the current and the floods, and deposited 
 in the channel and along the shores in considerable quantities. This 
 material, having been abandoned by its original owners, belonged to 
 him on whose land the water left it. The water, dropping the heavy 
 pieces first, and carrying the smaller particles and dust along in tlie 
 current, served as a screen ; and, as the result of this process, consid- 
 erable quantities of coal suitable for burning were lodged along the 
 channel and the banks of the stream, throughout its course over the 
 prosecutor's farm. The defendant, descending the stream with a flat- 
 boat, entered upon the lands of Bower, and began to gather coal from 
 the surface. He was provided with a scoop or shovel made of strong 
 wire or iron rods, with which he gathered up the coal. The sand and 
 gravel passed through the me.shes of the scoop, leaving the pieces of 
 coal within it. When the gravel was all sifted out, the cleaned coal 
 was emptied upon the flatboat. This process was continued until a 
 boat-load was obtained. The boat was then towed or pushed to some 
 bins on the shore opposite to Bower's house, and the coal was trans- 
 
 1 Part only of the opinion is given.
 
 SECT. II.] COMMONWEALTH V. STEIMLING. 601 
 
 ferred from the boat to the bins. This was repeated until from eight 
 to twelve tons of coal had been gathered, cleaned, deposited on the 
 boat, transported to the bins, and unloaded. This coal was afterwaids 
 delivered to purchasers, or taken for consumption, from the bins. 
 Here was a taking with intent to carry awa}^ and convert, a carrying 
 away, and an actual conversion, which, the commonwealth held, sus- 
 tained the indictment for larceny. The learned judge, however, 
 instructed the jury that the process of collecting, cleaning, loading 
 upon the flatboat, transporting to the bins, and unloading the coal into 
 them, must be regarded as one continuous act, like the act of him who 
 tears a piece of lead from a building and carries it off, or who, passing 
 an orchard, plucks fruit and takes it away, and that the defendant was 
 therefore a trespasser only. The distinction in the mind of the learned 
 judge was that between real and personal estate. The coal lying upon 
 the^surface he held to be real estate. The lifting it up in the shovel 
 was, on this theory, a severance, which forcibly changed its character, 
 and made it personal. The loading into the flatboat, the transporta- 
 tion to the bins, and unloading of the boat, all of which acts were 
 done within the lines of the prosecutor's land, and occupied hours of 
 time for each boat-load, were so connected with the severance as to 
 make but a single act. For this reason he held that the defendant was 
 guilty of a trespass only. The common law did distinguish between 
 things that are connected with or savor of the real estate and those 
 that are personal goods. An apple growing upon a tree was con- 
 nected with the land by means of the tree that bore it, and so held to 
 partake of the nature of the land, and to be real estate. One who 
 plucked it from the tree, and at once ate or carried it away, was there- 
 fore a trespasser ; but if he laid it down, and afterwards carried it 
 away, so that the taking and the asportation were not one and the 
 same act, then, if the carrying away was done cmimo furandi, the ele- 
 ments of larceny were present. Blackstone tells us, in volume 4, p. 
 233, of the Commentaries, that larceny cannot be committed of things 
 that savor of the realty, because of " subtility in the legal notions of 
 our ancestors." He then explains the subtile distinction as follows : 
 " These things [things that savor of the realty] were parcel of the 
 real estate, and therefore, while they continued so, could not by any 
 possibility be the subject of theft, being absolutely fixed and immov- 
 able ; and if they were severed by violence, so as to be changed into 
 movables, and at the same time, by one and the same continued act, 
 carried off by the person who severed them, they could never be said 
 to be taken from their proprietor in their newly acquired state of 
 mobility." But he explains that if the act of severance and that of 
 carrying away be separated, so that they do not constitute "one and 
 the same continued act," the subtile distinction between personal goods 
 and those that savor of the real estate ceases to protect the wrong-doer 
 from a criminal prosecution, and a charge of larceny can be sustained. 
 The question whether this coal, lying loose upon the surface, like other
 
 602 COMMONWEALTH V. STEIMLING. [CHAP. VIII. 
 
 drift of the stream, was real or personal estate, does not seem to have 
 been raised in the court below, and it is not before us. The real ques- 
 tion presented is whether this case, upon its facts, is one for the appli- 
 cation of the common-law rule. Have we here a severance and an 
 asportation that constitute " one and the same continuous act?" If 
 the picking of the coal from the surface be treated as an act of sever- 
 ance, we have next the act of cleaning and sifting ; then the deposit 
 of the cleaned coal upon the flatboat, little by little ; then the trans- 
 portation of the boat-load to the bins ; then the process of shovelling 
 the coal from the boat into the bins. The acts, occupying consider- 
 able time for each boat-load, were all done within the inclosures of the 
 prosecutor. It is as though one should come with team and farm- 
 wagon into his neighbor's corn-field, and pluck the ears, load them 
 hito the wagon, and, when the wagon would hold no moi-e, draw the 
 corn away to his own corn-house, and then return again, and continue 
 the process of harvesting in the same manner until he had transferred 
 his neighbor's crop to his own cribs. If such acts were done under a 
 bona fide claim of title to the crop, they would not amount to larceny, 
 but, if done afiimo furandi, all the elements of larceny would be pres- 
 ent. In the case before us, it is conceded that the coal belonged to 
 Bower, and was in his possession as part of his real estate. The 
 defendant entered his lands for the purpose of collecting coal, and 
 carrying it away. He makes no bona fide claim of title ; no offer to 
 purchase ; sets up no license ; but rests on the proposition that, like 
 the man who plucks an apple from a tree, and goes his way, he is 
 liable only as a trespasser. If this be true, he could gather the coal 
 from Bower's land as often as the stream made a sufficient deposit to 
 justify the expenditure of time necessary to gather, clean, transport, 
 and put it in bins. Upon the same principle, he might gather all the 
 crops growing on Bower's farm, as they matured, and, by hauling each 
 load away when it was made up, defend against the charge of larceny 
 on the ground that the gathering from the tree, the stalk, or the hill, 
 the loading into wagons, and the carrying of the loads away, though 
 occupying hours for each load, and many days for the crop, was "one 
 and the same continuous act " of trespass. We cannot agree to such an 
 extension of the common-law rule, but are of the opinion that this case 
 should have gone to the jury, on the existence of the animo furandi.
 
 SECT, IL] REGINA V. RILEY. 603 
 
 REGINA y. RILEY. 
 Crown Case Reserved. 1853. 
 
 [Reported 6 Cox C. C. 88; Dearsly, C. C. 149.] 
 
 At the General Quarter Sessions of the Peace for the county of 
 Durham, held at the city of Durham, before Rowland Burdon, Esq., 
 Chairman, on the 18th day of October, in the year of our Lord 1852, 
 the prisoner was indicted for having, on the 5th day of October, 1852, 
 stolen a lamb, the property of John Burnside. The prisoner pleaded 
 not guilty. On the trial it was proved that on Friday, the 1st day of 
 October, in the year of our Lord 1852, John Burnside, the prosecutor, 
 put ten white-faced lambs into a field in the occupation of John Clarke, 
 situated near to the town of Darlington. On Monday, the 4th day of 
 October, the prisoner went with a flock of twenty-nine black-faced 
 lambs to John Clarke, and asked if he might put them into Clarke's 
 field for a night's keep, and upon Clarke's agreeing to allow him to do so 
 for one penny per head, the prisoner put his twenty-nine lambs into 
 the same field with the prosecutor's lambs. At half-past seven o'clock 
 in the morning of Tuesda}-, the 5th day of October, the prosecutor went 
 to Clarke's field, and in counting his lambs he missed one, and the pris- 
 oner's lambs were gone from the field also. Between eight and nine 
 o'clock in the morning of the same day, the prisoner came to the farm 
 of John Calvert, at Middleton St. George, six miles east from Darling- 
 ton, and asked him to buy twenty-nine lambs. Calvert agreed to do 
 so, and to give 8s. apiece for them. Calvert then proceeded to count 
 the lambs and informed the prisoner that there were thirty instead of 
 twenty-nine in the flock, and pointed out to him a white-faced lamb ; 
 upon which the prisoner said, " If you object to take thirty, I will 
 draw one." Calvert, however, bought the whole and paid the prisoner 
 £12 for them. One of the lambs sold to Calvert was identified by the 
 prosecutor as his property and as the lamb missed by him from Clarke's 
 field. It was a half-bred, white-faced lamb, marked with the letter 
 " T," and similar to the other nine of the prosecutor's lambs. The 
 twenty-nine lambs belonging to the prisoner were black-faced lambs. 
 On the 5th of October, in the afternoon, the prisoner stated to two of the 
 witnesses that he never had put his lambs into Clarke's field, and had 
 sold them on the previous afternoon, for £11 12s., to a person on the 
 Barnard Castle road, which road leads west from Darlington. 
 
 There was evidence in the case to show that the prisoner must have 
 taken the lambs from Clarke's field early in the morning, which was 
 thick and rainy. 
 
 It was argued by the counsel for the prisoner, in his address to the 
 jury, that the facts showed that the original taking from Clarke's field 
 was by mistake ; and if the jury were of that opinion, then, as the 
 original taking was not done animo furandi, the subsequent appro- 
 priation would not make it a larceny, and the prisoner must be
 
 604 REGINA V. EILEY. [CHAP. VIII. 
 
 acquitted. The chairman, in summing up, told the jury that though 
 they might be of opinion that the prisoner did not know that the lamb 
 was in his flocli until it was pointed out to him by Calvert, he should 
 rule that in point of law the taking occurred when it was so pointed 
 out to the prisoner and sold by him to Calvert, and not at the time of 
 leaving the field. The jury returned the following verdict : ^ The jury 
 say that at the time of leaving the field tbe prisoner did not know that 
 the lamb was in his flock, and that he was guilty of felony at the time 
 it was pointed out to him." 
 
 The prisoner was then sentenced to six months' hard labor in the 
 house of correction at Durliam : and being unable to find bail, was 
 thereupon committed to prison until the opinion of this court could be 
 taken upon the question whether Charles Riley was properly convicted 
 of larceny.^ 
 
 Pollock, C. B. We are all of opinion that the conviction is right. 
 The case is distinguishable from those cited. R. v. Thristle decides 
 only that if a man once gets into rightful possession, he cannot by a 
 subsequent fraudulent appropriation convert it into a felony. So in 
 R. V. Thurborn, in the elaborate judgment deUvered by my brother 
 Parke on behalf of the court, of which I was a member, the same rule 
 is laid down. It is there said that the mere taking up of a lost 
 chattel to look at it would not be a taking possession of it ; and no 
 doubt that may be done without violating any social duty. A man 
 may take up a lost chattel and carry it home, with the proper object of 
 endeavoring to find the owner ; and then afterwards, if he yields to 
 the temptation of appropriating it to his own use, he is not guilty of 
 felony. In Leigh's case, also, the original taking was rightful, but 
 here the original taking was wrongful. I am not desirous of calling in 
 aid the technicality of a continuing trespass ; and I think this case 
 may be decided upon the ground either that there was no taking at all 
 by the prisoner in the first instance or a wrongful taking, and in either 
 case, as soon as he appropriates the property, the evidence of felony is 
 complete. 
 
 Parke, B. I think that this case may be disposed of on a short 
 ground. The original taking was not lawful, but a trespass, upon 
 which an action in that form might have been founded ; but it was not 
 felony, because there was no intention to appropriate. There was, 
 however, a continuing trespass up to the time of appropriation, and at 
 that time, therefore, the felony was committed. Where goods are 
 carried from one countj' to another the}' may be laid as taken in the 
 second county, and the difference between this and Leigh's case, as 
 well as the others cited, is that the original taking was no trespass. 
 It was by the implied license of the owner, and the same thing as if he 
 had been entrusted by the prosecutor with the possession of the goods. 
 
 Williams, Talfourd, and Crompton, JJ., concurred. 
 
 Conviction affirmed. 
 ^ Argument of counsel is omitted.
 
 SECT. II.] STATE V. COOMBS. 605 
 
 STATE V. COOMBS. 
 Supreme Judicial Court of Maine. 1868. 
 
 [Reported 55 Maine, 477.] 
 
 DiCKERSON, J.^ Exceptions. The prisoner was indicted for the 
 larcen}' of a horse, sleigh, and buffalo robes. The jury were instructed 
 that, if the prisoner obtained possession of the team by falsely and 
 fraudulently pretending that he wanted it to drive to a certain place, 
 and to be gone a specified time, when in fact he did not intend to go 
 to such place, but to a more distant one, and to be absent a longer 
 time, witliout intending at the time to steal the propert}^ the team was 
 not lawfull}' in his possession, and that a subsequent conversion of it 
 to his own use, with a felonious intent while thus using it, would be 
 larceny. 
 
 It is well settled that where one comes lawfully into possession of 
 the goods of another, with his consent, a subsequent felonious conver- 
 sion of them to his own use, without the owner's consent, does not 
 constitute larceny, because the felonious intent is wanting at the time 
 of the taking. 
 
 But how is it when the taking is fraudulent or tortious, and the 
 property is subsequently converted to the use of the taker with a 
 felonious intent? Suppose one takes his neighbor's horse from the 
 stable, without consent, to ride him to a neighboring town, with the 
 intention to return him, but subsequently sells him and converts 
 the money to his own use, without his neighbor's consent, is he a mere 
 trespasser, or is he guilty of larceny? In other words, must the 
 felonious intent exist at the time of the original taking, when that is 
 fraudulent or tortious, to constitute larceny? 
 
 When property is thus obtained, the taking or trespass is continu- 
 ous. The wrong-doer holds it all the while without right, and against 
 the right and without the consent of the owner. If at this point no 
 other element is added, there is no larceny. But if to such taking 
 there be subsequently superadded a felonious intent, that is, an intent 
 to deprive the owner of his property permanently without color of 
 right, or excuse, and to make it the property of the taker without the 
 owner's consent, the crime of larceny is complete. " A felonious 
 intent," observes Baron Parke, in Regina v. Holloway, 2 C. & K., 942, 
 "means to deprive the owner, not temporarih', but permanently of 
 his own property, without color of right or excuse for the act, and to 
 convert it to the taker's use without the consent of the owner." 
 
 The case of Eegina v. Steer, 2 C. & K., 988, is in harmony with 
 this doctrine. The prosecutor let tlie prisoner have his horse to sell for 
 him ; he did not sell it, but put it at a livery stable. The prosecutor 
 directed the keeper of the stable not to give up the horse to the prisoner, 
 
 ^ The opinion only is given ; it sufficiently states the case.
 
 606 STATE V. COOMBS. [CHAP. VIII. 
 
 and told the prisoner he must not have the horse again ; to which the 
 prisoner replied, *'Well." The prisoner got possession of the horse 
 by telling a false story to the servant of the keeper of the stable, and 
 made off with him. The case was reserved, and the court held the 
 prisoner guilty of larcenj'. Commonwealth v. White, 11 Cush. 483. 
 
 In the case at bar, the prisoner obtained possession of the property' 
 by fraud. This negatives the idea of a contract, or that the possession 
 of the prisoner was a lawful one when he sold the horse. He was not 
 the bailee of the owner, but was a wrong-doer from the beginning ; and 
 the owner had a right to reclaim his propert}' at an}' time. It has been 
 decided that when a person hires a horse to go to a certain place, and 
 goes beyond that place, the subsequent act is tortious and that trover 
 may be maintained, on the ground of a wrongful taking and con- 
 version. Morton v. Gloster, 46 Maine, 520. 
 
 In contemplation of law, the wrongful act was continuous, and 
 when to that act the prisoner subsequently added the felonious intent, 
 that is, the purpose to deprive the owner of his property permanently-, 
 without color of right or excuse, and to convert it to his own use with- 
 out the consent of the owner, the larceny became complete from that 
 moment. The color of consent to the possession obtained by fraud, 
 does not change the character of the offence from larceny to trespass 
 or other wrongful act. In such case it is not necessary that the feloni- 
 ous intent should exist at the time of the original taking to constitute 
 larceny, the wrongful taking being all the while continuous. 
 
 It is to be observed that this principle does not apply in cases where 
 the owner parted with his propert}-, and not the possession merely, as 
 in the case of a sale procured b}- fi-aud or false pretences. In such 
 instances there is no larceny, however gross the fraud by which the 
 property was obtained. Mawrey v. Walsh, 8 Cowen, 238; Ross v. 
 The People, 5 Hill, 294. "It is difficult to distinguish such a case 
 from larceny," remarks Mr. Justice Cowen, in Ross v. The People ; 
 " and were the question res nova in this court, I, for one, would follow 
 the decision in Rex v. Campbell, 1 Mood. Cr. Cases, 179. The deci- 
 sions, however, are the other way, even in England, with the single 
 exception of that case, and they have long been followed here. There 
 is nothing so palpably absurd in this as to warrant our overruling 
 them." 
 
 We are unable to discover any error in the instructions of the 
 presiding judge. ^Exceptions overruled. 
 
 Judgment for the State. 
 
 Kent, Walton, Barrows, Danforth and Tapley, JJ., concurred.^ 
 
 1 Ace. Weaver v. State, 77 Ala. 26; Com. v. White, 11 Cush. 483. — Ed.
 
 SECT. II.] ANONYMOUS. 607 
 
 WARD V. PEOPLE. 
 Supreme Court of New York. 1842. 
 
 [Reported 3 Hill, 395.] 
 
 Error to the Oneida general sessions, where Ward was convicted of 
 petit larceny, second offence. The indictment charged the prisoner 
 with having stolen twenty-five pounds of butter, the property of one 
 John Flagg. On the trial Flagg testified that he bought the butter in 
 question "of the captain of a canal boat. The prisoner's counsel pro- 
 posed to ask the witness if he, or if he and the canal boat captain 
 together, did not steal the butter. This question was objected to, 
 and the objection sustained, whereupon the prisoner's counsel ex- 
 cepted.^ it appeared in the course of the trial that the butter stolen 
 from Flagg had been previously stolen from firkins on a canal boat, and 
 the evidence tended strongly to connect Flagg with the larceny. 
 
 W. M. Allen, for the plaintiff in error. 
 
 W. C. Noyes, for the people. 
 
 By the Court, Nelson, C. J. The question put to Flagg was pro- 
 perly overruled. If the question had been answered in the aflflrmative, 
 the fact would have been immaterial, because possession of property 
 in the thief is sufficient to make it the subject of larceny ; and the title 
 may be laid either in the owner or the thief. Thus if A. steal goods 
 from B., and C. afterwards steal the same goods from A., C. is a felon 
 both as to A. and B. 2 East's Cr. L. 654 ; 2 Russ. 156 ; 1 Hale's 
 P. C. 507.'' 
 
 ANONYMOUS. 
 King's Bench. 1406. 
 
 [Reported Year Boole 7 Hen. IV., 43, pi. 9.] 
 
 A MAN was appealed of larceny in Middlesex, while the felony was 
 done in London. And the court was informed that the appellee after 
 the felony done had carried the goods into the county of Middlesex. 
 And the court said that for that reason the appeal was well taken, for 
 when a man robs another of his goods, and carries them into divers 
 counties, he commits the robbery in each county, and the appeal is 
 maintainable in whatever county the plaintiff will. And note that the 
 felon with the mainor was taken in London, and the body and the 
 mainor were made come before the king. 
 
 1 Only so much of the case as relates to this exception is given. 
 
 2 Affirmed 6 Hill, 144, Foster, Sen., dissenting on this point. See ace. Regina « 
 Wade, I C. & K. 739 ; Com. v. Finn. 108 Mass. 466. — Ed.
 
 608 ANONYMOUS. [CHAP. VIII. 
 
 ANONYMOUS. 
 
 Exchequer Chamber. 1489. 
 
 [Reported Year Book 4 Hen. VII., 5, pi. 1.] 
 
 One was arraigned upon an indictment, for that he had stolen cer- 
 tain goods, etc., in the count}' of Surre}-. And the defendant said 
 that he was indicted for taking the same goods on the same day in the 
 county of Middlesex, and was acquitted, which was the same felon}'. 
 And prayed judgment, if for that, etc. 
 
 Fisher. It is no plea, because it shall be taken most beneficiall}' 
 for the king, and they may have been stolen twice well enough. 
 
 Frowike., to the contrary. For where goods are stolen in one count}-, 
 and carried into another county, he may be indicted in each county, 
 and shall have judgment of life ; and therefore it is reason that if he 
 should be acquitted in one county, he should be acquitted in the other 
 county. And if one should be beaten in one county, and after die in 
 another county, and indictment in both counties, it is reason that if he 
 should be acquitted in one county that should help him in the other 
 county, etc. 
 
 Husset, C. J. It seems no plea. And as I understand, trespass 
 for battery committed in one county cannot be found in another county 
 on pain of attaint ; and the same law of goods taken and carried out 
 of the county where they were taken, it can be found only in the county 
 where the taking occurred, and that on pain of attaint. But the 
 law is otherwise in appeal ; for there he may bring an appeal in each 
 county where the goods are carried. And this has been a diversity, 
 for the appeal is to recover his goods, and affirms property continually 
 in the party, etc., but it is otherwise of trespass ; for it is not to recover 
 the goods, but damages for the goods, etc. And, sir, I take it, if one 
 steals my goods, and another steals the goods from him, I shall have 
 an appeal against the second felon ; but it is otherwise of trespass. 
 And notwithstanding the appeal lies in each county where the goods 
 are carried, still he cannot be indicted except where the taking was 
 made, for the indictment is not to have the goods, etc. ; and that has 
 been the diversity between indictment and appeal. And so here, not- 
 withstanding he submits that it is the same felony, that cannot be 
 tried ; for if it should be tried, it ought to be tried by both counties, 
 and here neither of them can give evidence to the other, for the takings 
 are so several that one cannot give evidence nor notice to the other ; 
 and therefore, notwithstanding mischief shall happen to the party, such 
 mischief shall be borne ; for in one county, etc., without cause ; and 
 yet he ought to answer. 
 
 Fairfax, J., agreed to the diversity between appeal, indictment, and 
 trespass, etc., and said that the allegation that it is the same felony 
 could not be tried by both counties when he is acquitted in one county,
 
 SECT. II.] REX V. POWERS. 609 
 
 and those of that county cannot give evidence of any felony in that 
 county. 
 
 And then Mordant pleaded the plea, and prayed that it be allowed ; 
 and as to the felony, not guilty. 
 
 And the Chief Justice said that he should have the plea, because it 
 is matter in law, and the other matter in fact. lilt tota Curia contra 
 eum. 
 
 And it was held by all the justices and barons that in a writ of 
 trespass in Middlesex it is no plea to say that he has recovered for a 
 trespass committed in the county of Surrey, because it could not be 
 understood as the same trespass ; but some at the bar held that it is 
 different in felony, because it is felony in every county where the goods 
 are, or come, etc. 
 
 Froivike said : For the same reason that they may find him guilty in 
 appeal for a felony in another county, for the same reason they shall 
 acquit of felony conceived in another county. R. See T. 25 E. 3 f. 44. 
 A. 8 H. 5.1 
 
 EEX V. POWERS. 
 Crown Case Reserved. 1832. 
 
 [Reported I Moodi/ C. C. 349.] 
 
 The prisoner was tried and convicted before Mr. Selwyn, K. C, at 
 the spring Assizes for the County of Dorset in the year 1832, and 
 ordered to be transported for seven years ; but the execution of the 
 sentence was respited in order that the opinion of the judges might 
 be taken on the case. 
 
 The indictment charged the prisoner with stealing at Dorchester, in 
 the county of Dorset, a quantity of wearing apparel, the property of 
 Thomas Cundy. The things had been taken by the prisoner from a 
 box of the prosecutor's at St. Helier's in the island of Jersey, while 
 the prosecutor was absent at his work at a short distance, and without 
 his leave ; they were shortly afterwards found in the possession of the 
 prisoner at Weymouth, in the county of Dorset, where he had been 
 apprehended on another charge. 
 
 A doubt occurred whether the original taking was such whereof the 
 common law could take cognizance ; and if not whether the case fell 
 within the statute 7 & 8 G-. IV. c. 29, s. 76 ; or in other words whether 
 the island of Jersey could [be] considered as part of the United King- 
 dom. 2 Russell, 175. If the original taking be such whereof the 
 common law cannot take cognizance, as if the goods be stolen at sea, 
 the thief cannot be indicted in any county into which he may carry 
 them. 3 Inst. 113 ; 1 Haw. P. C. 33, s. 92. A similar exception pre- 
 
 1 See 22 Lib. Ass. pi. 32. — Ed.
 
 610 COMMONWEALTH V. HOLDER. [CHAP. VIIL 
 
 vailed formerly where the original taking was in Scotland or Ireland ; 
 and it appears to have been holden that a thief who had stolen goods 
 in Scotland could not be indicted in the county of Cumberland, where 
 he was taken with the goods. Rex v. Anderson and others, Carlisle 
 summer Assizes, 17G3; and before the judges, November, 1763; 2 
 East, 772, c. 16, s. 156. 
 
 This case was considered at a meeting of all the judges (except Lord 
 Lyndhurst, C. B., and Taunton, J.) in Easter Term, 1832; and they 
 held unanimously that the conviction was wrong and that the case was 
 not within 7 & 8 G. IV. c. 29, s. 76.i 
 
 PEOPLE V. GARDNER. 
 Supreme Court of Neav York. 1807. 
 
 [Reported 2 Johnson, 477.] 
 
 The prisoner was indicted and convicted of felony at the sessions in 
 Washington County, for stealing a horse. On the trial it appeared 
 that the original taking of the horse was in the State of Vermont, but 
 that the prisoner was apprehended in Washington County, with the 
 horse in his possession. The question was submitted to the court, 
 whether the prisoner could be tried and punished in this state for the 
 felony. 
 
 Pe7' Curiam. We are of opinion that the prisoner cannot be tried 
 for this offence in this state. AVhen the original taking is out of the 
 jurisdiction of this state, the offence does not continue and accompany 
 the possession of the thing stolen, as it does in the case where a thing 
 is3tolen in one county, and the thief is found with the propert3- in 
 another county. 2 East's Pleas of the Crown, 774. The prisoner can 
 he considered only as a fugitive from justice, from tlie State o ' 
 Vermont. 
 
 4 
 
 COMMONWEALTH v. HOLDER. 
 Supreme Judicial Court of Massachusetts. 1857. 
 
 [Reported 9 Gray, 7.] 
 
 Indictment for stealing at Milford in tliis county goods of Henry W. 
 Dana. At the trial in the Court of Common Pleas there was evidence 
 that the defendant broke and entered the shop of said Dana at 
 
 1 Arc. Case of the Admiralty, 13 Coke, 51 ; Rex v. Anderson, 2 East P. C. 772; 
 Reg. V. Debruiel, 11 Cox C. C. 207; Reg. v. Carr, 15 Cox C C. 131 n.— Ed. 
 
 U)
 
 SECT. II.] COMMONWEALTH V. HOLDER. 611 
 
 Smithfield in the State of Rhode Island, and stole the goods mentioned 
 in the indictment, and brought them into this county. The defendant 
 asked that the jury might be instructed that the indictment could not 
 be maintained, because the courts of this state could not take cogni- 
 zance of a larceny committed in another state. But Mellen, C. J., 
 refused so to instruct the jur\', and instructed them that the evidence, 
 if believed, was sufHcient to support the indictment. The defendant 
 being convicted alleged exceptions. 
 
 G. F. Verri/, for the defendant. 
 
 J. IT. Clifford (Attorney General), for the Commonwealth. 
 
 Shaw, C. J. A majority of the court are of opinion that this case 
 must be considered as settled by the case of Commonwealth v. Up- 
 richard, 3 Gra}', 434, and the principles stated and the precedents 
 cited. Though to some extent these colonies before the Revolution 
 were distinct governments and might have different laws, it was not 
 unreasonable, as they all derived their criminal jurisprudence from the 
 English common law, to regard the rule applicable to a theft in an 
 English count}' of goods carried by the thief into another as analogous, 
 and adopt it. We are of opinion that Massachusetts did adopt it, and 
 this is established by judicial precedent, before and since the Revolu- 
 tion, and is now settled by authority as the law of this state. 
 
 Thomas, J. The real question in this case is, whether the defendant 
 can be indicted, convicted, and punished in this Commonwealth for a 
 larcen}- committed in the State of Rhode Island. If it were a new 
 question, it would be enough to state it. The obvious, the conclusive 
 answer to the indictment would be that the offence was committed 
 within the jurisdiction of another, and, so far as this matter is con- 
 cerned, independent state, of whose law onl}- it was a violation, and 
 of which its courts have exclusive cognizance. B}- the law of that 
 state the offence is defined and its punishment measured ; by the law 
 which the defendant has violated he is to be tried. Whether the acts 
 done b}' him constitute larceny, and, if so, of what degree, must be 
 determined by that law. Its penalties only he has incurred ; its means 
 of protection and deliverance he may justly- invoke, and especiall}' a 
 trial b}' a jur^' of his peers in the vicinage where the offence was 
 committed. 
 
 This obvious view of the question will be found upon reflection, I 
 think, to be the only one consistent with the reasonable securitv of the 
 subject or the well-defined relations of the states. It is well known 
 that the laws of the states upon the subject of larceny materiall}' differ. 
 In most of them the common law of larceny has been greath' modified 
 by statutes. The jurisprudence of all is not even based on the common 
 law ; in several the civil law obtains. 
 
 In cases where a difterence of law exists, by which law is the defend- 
 ant to be judged, — the law where the offence (if an}-) was committed, 
 or where it is tried? For example, the defendant is charged with 
 taking with felonious intent that which is parcel of the realty, as the
 
 CI:? COMMONWEALTH V. HOLDER. [CHAP. VIII. 
 
 gearing of a mill or fruit from a tree. By the St. of 1851, c. 151, the 
 act is lareeii}- in this Commonwealth. If it appears that in the state 
 where the act was done it was, as under the common law, but a tres- 
 pass, which law has the defendant violated and by which is he to be 
 tried? Or suppose the defendant to be charged with the stealing of 
 a slave, — a felony in the state where the act is done, but an offence 
 not known to our laws. The ditfieulty in both cases is the same. You 
 have not only conflicting jurisdictions, but different rules of conduct 
 and of judgment. 
 
 But supposing the definitions of the offence to be the same in the 
 two states, the punishments may be very different. Where such differ- 
 ence exists, which penalty has the defendant justly incurred, and which 
 is he to suffer? For example, the offence is punishable by imprison- 
 ment in Rhode Island, say for a year ; in this state the same oflTence is 
 punishable by imprisonment from one to five years ; is the defendant 
 liable to the heavier punishment? Or suppose he has been convicted 
 in Rhode Island, and in consideration of his having indemnified the 
 owner for the full value of the goods taken, his punishment has been 
 more mercifully measured to him, can he, after he has sufl"ered the 
 punishment, and because the goods were, after the larceny, brought 
 into this state, be made to suffer the penalty of our law for the same 
 ofl'ence? Or suppose him to have been convicted in Rhode Island and 
 a full pardon extended to him, can he be tried and convicted and pun- 
 ished here? 
 
 Again : the power to indict, convict, and punish the offence in this 
 state proceeds upon the ground that the original caption was felonious. 
 If the original taking was innocent or but a trespass, the bringing into 
 this state "would not constitute a larceny. You must, therefore, look at 
 the law of the state where the first caption was made. And how is the 
 law of another state to be ascertained? What is the law of another 
 state is a question of fact for the jury. The jury in this way are in a 
 criminal case made not only to pass upon the law, but to pass upon it 
 as a matter of evidence, subject, strictly speaking, neither to the 
 direction nor the revision of the court. 
 
 Again : the defendant is indicted here for the larceny committed in 
 Rhode Island : wliile in custody here awaiting his trial, he is demanded 
 of the Executive of this state by the Executive of Rhode Island as 
 a fugitive from the justice of that state, under the provisions of the 
 Constitution of the United States, art. 4, § 2, and the U. S. St. of 
 1793, c. 45. Is he to be tried here, or surrendered up to the state 
 where the offence was committed, and tried there? Or if he has been 
 already tried and convicted and punished in this state, is he to be sent 
 back to Rhode Island to be tried and punished again for the same 
 offence? And would his conviction and punishment here be any 
 answer to the indictment there? Or if he has been fully tried and 
 acquitted here, and then demanded by the Executive of Rhode Island, 
 is he, upon requisition, to be sent to that state to be again tried, to
 
 SECT. II.] COMMONWEALTH V. HOLDER. Gl 
 
 9 
 
 be twice put in jeopardy for the same offence? It is quite plain no 
 ground in law would exist for a refusal to surrender. 
 
 The defendant was indicted for larceny, not for the offence of bring- 
 ing stolen goods nito the Commonwealth. He was, under the instruc- 
 tion of tlie presiding judge, tried for the larceny in Riiode Island, was 
 convicted for the larceny in Rliode Island, and must be punished, if 
 aTall, for the larceny in Rhode Island. And under the rule given to 
 the jury is presented a case where, for one and the same moral act, 
 for one and the same violation of the rights of property, the subject 
 may be twice convicted and punished. Nay, more, if a man had stolen 
 a watch in Rhode Island and travelled with it into every state of the 
 Union, he miglit, under the rule given to the jury, if his life endured 
 so long; be indicted and punished in thirt3--two states for one and the 
 same offence. 
 
 And it is well to observe that it is the retention of the property 
 which is the cause of the new offence, and the carrying of it from the 
 place of caption into another state. If the defendant had stolen prop- 
 erty in Rhode Island and consumed or destroyed it, and then had 
 removed to Massachusetts, but one offence would have been committed, 
 and that in Rhode Island. 
 
 Such are some of the more obvious difficulties attending the position 
 that an offence committed in one state may be tried and punished in 
 anotlier. The doctrine violates the first and most elementary princi- 
 j)les of government. No state or people can assume to punish a man 
 for violating the laws of another state or people. The surrender of 
 fugitives from justice, whether under the law of nations, treaties with 
 foreign powers, or the provisions of the Constitution of the United 
 States, proceeds upon the ground that the fugitive cannot be tried 
 and punished by any other jurisdiction than the one whose laws have 
 been violated. Even in cases of the invasion of one country by the 
 subjects of another, it is the violation of its own laws of neutrality 
 that the latter country punishes, and not the violation .of the laws of 
 the countr}- invaded. The exception of piracy is apparent rather than 
 real. Piracy may be punished by all nations because it is an offence 
 against the law of nations upon the seas, which are the highways of 
 nations. 
 
 The ruling of the learned Chief Justice of the Common Pleas was, I 
 may presume, based upon the decisions of this court in Commonwealth 
 V. CuUins, 1 Mass. 116, and Commonwealth v. Andrews, 2 Mass. 14. 
 
 It is certainly the general duty of the court to adhere to the law as 
 decided. Especially is this the case where a change in the decision 
 would impair the tenure by which the rights and property of the sub- 
 ject are held. But even with respect to these, where it is clear a case 
 has been decided against the well settled principles of law and of 
 reason, it is the duty and the practice of the courts to revise such 
 decision, and to replace the law on its old and solid foundation. This 
 is peculiarly the duty of the courts where such decision works its in'
 
 G14 COMMONWEALTH V. HOLDER. [CHAP. VIII. 
 
 justice by impairing the personal rights of the citizen, or by subjecting 
 him to burdens and penalties which he never justly incurred. 
 
 In my judgment, the courts of this Commonwealth have not, and 
 never had, under the Constitution of the United States or otherwise, 
 the rightful power to try a man for an offence committed in another 
 state. It is in vain, it seems to me, to attempt to preserve and make 
 rules of conduct decisions founded upon wholly erroneous views of the 
 relations which tlie states of the Union bear to each other under the 
 Constitution, and in contlict with well settled principles of constitu- 
 tional and international law. 
 
 I should be content to rest my dissent from the judgment of the 
 court in the case at bar upon the principles affirmed in the recent case 
 of Commonwealth v. Uprichard, 3 Gray, 434. In effect that case 
 overrules, as its reasoning thoroughh^ undermines, the earlier cases. 
 The}' cannot stand together. 
 
 But as the decision in the case at bar rests upon the authority of 
 the cases in the first and second of Massachusetts Reports, it may be 
 well to examine with care the grounds upon which the}' rest. Such 
 an examination will show, I think, not only that the cases were put 
 upon erroneous views as to the relation of the states, but that they 
 W'cre also unsound at common law. 
 
 In the case of Commonwealth v. Cullins, a jury trial where three 
 judges of the court were present, the evidence showing that the goods 
 were taken in the State of Rhode Island, Mr. Justice Sedgwick, who 
 charged the jury, said that " the court were clearly of opinion that 
 stealing goods in one state and conveying stolen goods into another 
 state was similar to stealing goods in one county and conveying the 
 stolen goods into another, which was always holden to be felony in 
 both counties." Whatever the points of similarity, there was_ tins 
 obvious and vital difference, to wit, that conviction in one_coii[nt}ijyas 
 a bar to conviction in another, and that conviction in one state is no 
 bar to conviction in another state. 
 
 It was a doctrine of the common law that the asportation of stolen 
 goods from one county to another was a new caption and felony in 
 the second county, — a legal fiction devised for greater facility in con- 
 Yicting the offender where it was uncertain where the first caption took 
 place. The foundation of the rule was that the possession of the owner 
 continued, and that every moment's continuance of the trespass may 
 constitute a caption as well as the first taking. But in what respect 
 was the taking in one state and conveying into another state similar to 
 the taking in one county and conveying into another county? It could 
 onlv be " similar" because the legal relation which one state bears to 
 another is similar to that which one county bears to another ; because, 
 under another name, there was the same thing. If a man is to be con- 
 victed of crime by analogy, the analogy certainly should be a close 
 one. Here it was but a shadow. In the different counties there was 
 one law, one mode of trial, the same interpretation of the law, and the
 
 SECT. II.] COMMONWEALTH V. HOLDER. 615 
 
 same punishment. The rule, mode of trial, and jurisdiction were not 
 
 changed. 
 
 The states of the Union, it is quite plain, hold no such relation to 
 each other. As to their internal police, their law of crimes and punish- 
 ments, the}' are wholly independent of each other, having no common 
 law and no common umpire. The provision indeed in the Constitu- 
 tion of the United States for surrendering up fugitives from justice by 
 one state to another is a clear recognition of the independence of the 
 states of each other in these regards. It excludes the idea of any 
 jurisdiction in one state over crimes committed in another, and at the 
 same time saves any necessity or reason for such jurisdiction. Nor 
 is there any provision in the Constitution of the United States which 
 impairs such independence, so far as the internal police of the states 
 is concerned. On the other hand, the widest diversity exists in the 
 institutions, the internal police, and the criminal codes of the several 
 states, some of them, as Louisiana and Texas, having as the basis 
 of their jurisprudence the civil and not the common law. In the 
 relation which Louisiana holds to this State can any substantial analogy 
 be found to that which Surrey bears to Middlesex? 
 
 An analogy closer and more direct could have been found in the 
 books when Commonwealth v. Cullins was decided. It was that of 
 Scotland to England, subject both to one crown and one legislature ; 
 yet it had been decided that when one stole goods in Scotland and 
 carried them to England, he could not be convicted in the latter 
 country. Rex v. Anderson (1763), 2 East P. C. 772; 2 Russell on 
 Crimes (7th Amer. ed.), 119. Or an analogy might have been found 
 in the cases of goods stolen on the high seas and brought into the 
 counties of England, of which the courts of common law refused to 
 take cognizance because they were not felonies committed within their 
 jurisdiction. 1 Hawk. c. 33, § 52 ; 3 Inst. 113. In these cases a 
 test would have been found, applicable to the alleged larceny of Cullins, 
 to wit, the offence was not committed in a place within the jurisdiction 
 of the court, but in a place as foreign to their jurisdiction, so far as 
 this subject-matter was concerned, as England or the neighboring 
 provinces. The case of Commonwealth v. Cullins has no solid principle 
 to rest upon. 
 
 The case of Commonwealth v. Andrews, two years later, may be 
 held to recognize the rule laid down in Commonwealth v. Cullins, 
 though it was an indictment against Andrews as the i-eceiver of goods 
 stolen by one Tuttle in New' Hampshire ; and though there is, at the 
 least, plausible ground for saying that there was a new taking by 
 Tuttle at Harvard in the county where the defendant was indicted and 
 tried. Indeed, Mr. Justice Parker takes this precise ground ; though 
 he adds that " the common-law doctrine respecting counties may well 
 be extended by analogy to the case of states united, as these are, 
 under one general government." If that union was with reference to 
 or concerned the internal police or criminal jurisprudence of the several
 
 616 COMMONWEALTH V. HOLDER. [CHAP. VIII. 
 
 States ; if it was not obviously for other different, distinct, and well 
 defined purposes ; and if we could admit the right of the court to 
 extend by analogy the provisions of the criminal law and so to enlarge 
 its jurisdiction, — there would be force in the suggestion. As it is, we 
 must be careful not to be misled by the errors of wise and good men. 
 
 Judge Thatcher puts the case wholly on the felonious taking at 
 Harvard. 
 
 Mr. Justice Sedgwick, though having the same view as to the taking 
 at Harvard, does not rest his opinion upon it, but upon the ground 
 that the continuance of the trespass is as much a wrong as the first 
 taking. This doctrine applies as well where the original caption was 
 in a foreisn country as in another state of the Union. If you hold 
 that every moment the thief holds the property he commits a new 
 felon^', you may multiply his offences ad infinitum ; but in so carrying 
 out vvhat is at the best a legal fiction, 3'ou shock the common-sense of 
 men and their sense of justice. Mr. Justice Sedgwick will not admit 
 the force of the objection that the thief would be thus twice punished, 
 but regards with complacency' such a result. But as we are to pre- 
 sume that the punishment is graduated to the offence, and, as far as 
 punishment may, expiates the wrong, the mind shrinks from such a 
 consequence. But saying that whatever he might think upon this 
 question if it were 7'es integra, he puts his decision upon the case of 
 Paul Lord, decided in 1792, and that of Commonwealth v. Cullins. 
 
 Chief Justice Dana relies upon the cases before stated and a 
 general practice, and also upon the principle that every moment's 
 felonious possession is a new caption. 
 
 Such was the condition of the law in this state when the case of 
 Commonwealth v. Uprichard came before the court. In that case the 
 original felonious taking was in the province of Nova Scotia. The 
 bringing of the stolen goods into this Commonwealth was held not to 
 be a larceny here. But if it be true that every act of removal or change 
 of possession is a new caption and asportation, that every moment's 
 continuance of the trespass is a new taking, — if this legal fiction has 
 any life, it is difficult to see why the bringing of the goods within 
 another jurisdiction was not a new offence. No distinction in principle 
 exists between this case and a felonious taking in another state and 
 bringing into this. So far as the law of crimes and punishments is 
 concerned, the states are as independent of each other as are the States 
 and the British Provinces. 
 
 The case of Commonwealth v. Uprichard rests, I think immovably, 
 upon the plain grounds that laws to punish crime are local and limited 
 to the boundaries of the States which prescribe them ; that the com- 
 mission of a crime in another State or country is not a violation of our 
 ^aw, and does not subject the offender to any punishment prescribed by 
 our law. These are principles of universal jurisprudence, and as sound 
 as they are universal. 
 
 It is sometimes said that after all the offender is only tried and con-
 
 / 
 
 SECT. IL] STANLEY V. STATE. 617 
 
 victed for the offence against our laws. This clearl}- is not so. It is 
 only by giving force to the law of the country of the original caption 
 that we can establish the larcen}'. It is the continuance of the caption 
 felonious b}' the law of the place of caption. In tiie directions given 
 to the jur}' such etlect is given to the laws of Rhode Island. The jury 
 were instructed that if the defendant broke and entered into the shop 
 of Henry W. Dana in Sinithfield in Khode Island and thence brought 
 the goods into this count}', the indictment could be maintained. The 
 felonious taking in Rhode Island is the inception and groundwork of 
 the offence. The proceeding is in substance and effect but a mode of 
 enforcing the laws of and assuming jurisdiction over offences committed 
 in another state. 
 
 For the reasons thus imperfectlj' stated, I am of opinion that the 
 instructions of the Court of Common Pleas were erroneous, that the 
 exceptions should be sustained, the verdict set aside, and a new trial 
 granted. Exceptions overruled. 
 
 / ■■ ■ 
 
 STANLEY V. STATE. 
 
 Supreme Court of Ohio. 1873. 
 
 [Reported 24 Ohio State, 166.] 
 
 McIlvaine, J.^ At the November term, 1873, of the Court of 
 Common Pleas of Cuyahoga County, the plaintiff in error, "William 
 Stanle}', was convicted of the crime of grand larceny, and sentenced 
 for a term of years to the penitentiarj*. 
 
 The indictment upon which he was convicted charged " that AVilliam 
 Stanle}', late of the count}' aforesaid, on the twentieth day of June, in 
 the year one thousand eight hundred and seventy-three, at the county 
 aforesaid, with force and arms," certain silverware, " of the goods and 
 chattels and property of George P. Harris, then and there being, then 
 and there unlawfully and feloniously did steal, take, and carry away," 
 etc. 
 
 The following facts were proven at the trial: 1. That the goods 
 described in the indictment belonged to Hai'ris, and were of the value 
 of one hundred and sixty-five dollars. 2. That they were stolen from' 
 Harris on the 20th of June, 1873, at the city of London, in the domin- 
 ion of Canada. 3. That they were afterward, on the 26th day of same 
 month, found in the possession of the defendant, in said county of 
 Cuyahoga. It is also conceded that, in order to convict, the jury must 
 have found that the goods were stolen by the defendant in the dominion 
 of Canada, and carried thence by him to the State of Ohio. 
 
 Upon this state of facts, was the prisoner lawfully convicted ? In 
 
 1 The opinion only is given ; it sufficiently states the case.
 
 618 STANLEY V. STATE. [CHAP. VIII. 
 
 other words, if property be stolen at a place be3'ond the jurisdiction of 
 this state and of tlie United States, and afterward brought into this 
 state b}' the thief, can he be lawfully convicted of larceny in this 
 state ? 
 
 In view of the free intercourse between foreign countries and this 
 state, and the immense immigration and importation of propert}' from 
 abroad, this question is one of very great importance ; and I may add 
 that its determination is unaided by legislation in this state. 
 
 In resolving this question we have been much embarrassed b}' a 
 former decision of this court, in Hamilton v. The State, 11 Ohio, 435. 
 In that case it was held by a majorit}' of the judges that a person 
 having in his possession in this state propert}- which had been stolen 
 by him in another state of the Union, might be convicted here of 
 larceny'. 
 
 The decision appears to have been placed upon the ground " that a 
 long-sustained practice, in the criminal courts of this state, had settled 
 the construction of the point, and established the right to convict in 
 such cases." 
 
 Whether that decision can be sustained upon the principles of the 
 common law or not, it must be conceded that for more than thirt}' 
 years it has stood, unchallenged and unquestioned, as an authoritative 
 exposition of the law of this state. And although it has received no 
 express legislative recognition, it has been so long followed in our 
 criminal courts, and acquiesced in b^- other departments of the govern- 
 ment, that we are inclined to the opinion that it ought not now to be 
 overruled ; but, on the other hand, its rule should be applied and sus- 
 tained, in like cases, upon the principle of stare decisis. 
 
 Before passing from Hamilton v. The State, it should be added that 
 the same question has been decided in the same way by the courts of 
 several of our sister States. The State v. Ellis, 3 Conn. 185 ; The 
 State V. Bartlett, 11 Vt. 650 ; The State v. Underwood, 49 Maine, 181 ; 
 Watson V. The State, 36 Miss. 593 ; The State v. Johnson, 2 Oregon, 
 115; The State v. Bennett, 14 Iowa, 479 ; FerrelH'. Commonwealth, 
 1 Duvall, 153; Commonwealth v. Cullins, 1 Mass. 116. The same 
 point has been decided the same way in several subsequent cases in 
 Massachusetts. 
 
 The exact question, however, now before us has not been decided by 
 this court ; a.nd we are unanimously of opinion that the rule laid down 
 in Hamilton v. The State should not be extended to cases where the 
 propert}' was stolen in a foreign and independent sovereignt}'. 
 
 We are unwilling to sanction the doctrine or to adopt the practice, 
 whereb}' a crime committed in a foreign country, and in violation of 
 the laws of that country only, may, by construction and a mere fiction, 
 be treated as an offence committed within this state and in violation of 
 the laws thereof. In this case the goods were stolen in Canada. They 
 were there taken from the custod}' of the owner into the custody of the 
 thief. The change of possession was complete. The goods were
 
 SECT. II.J STANLEY V. STATE. 619 
 
 afterward carried b}' the thief from the Dominion of Canada to tlie 
 State of Ohio. During the transit his possession was continuous and 
 uninterrupted. Now, the theory upon which this conviction is sought 
 to be sustained is that the legal possession of the goods remained all 
 the while in the owner. If this theory be true, it is true as a fiction of 
 the law only. The fact was otherwise. A further theory in support 
 of the conviction is that as soon as the goods arrived within the State 
 of Ohio, the thief again took them from the possession of the owner 
 into his own possession. This theory is not supported b}' the facts, 
 nor is there an}' presumption of law to sustain it. 
 
 That the right of possession, as well as the right of property, 
 remained all the time in the owner is true as matter of law. And it is 
 also true, as a matter of fiction, that the possession of the thief, 
 although exclusive as it must have been in order to make him a thief, 
 is regarded as the possession of the owner, for some purposes. Thus, 
 stolen goods, while in the possession of the thief, may be again stolen 
 by another thief; and the latter may be charged with taking and carry- 
 ing away the goods of the owner. And for the purpose of sustaining 
 such charge, the possession of the first thief will be regarded as the 
 possession of the true owner. This fiction, however, in no way changes 
 the nature of the facts which constitute the crime of larceny. 
 
 "What we deny is that a mere change of place by the thief, while he 
 continues in the uninterrupted and exclusive possession of the stolen 
 -jDropert}-, constitutes a new " taking " of the property, either as matter 
 of fact or of law. 
 
 Larcen}-, under the statute of this state, is the same as at common 
 law, and may be defined to be the felonious taking and carrying awav 
 of the personal propertj' of another. But no offence against this stat- 
 ute is complete until ever}- act which constitutes an essential element 
 in the crime has been committed within the limits of this state. The 
 act of "taking" is an essential element in the crime, and defines the 
 act b}' which the possession of the property is changed from the owner 
 to the thief. But tlie act of " taking " is not repeated after the change 
 of possession is once complete, and while the possession of the thiet 
 continues to be exclusive and uninterrupted. Hence, a bailee or finder 
 of goods, who obtains complete possession without any fraudulent 
 intent, cannot be convicted of larceu}- b}' reason of anj- subsequent 
 appropriation of them. 
 
 We fully recognize the common-law practice, that when propert}' is 
 stolen in one county, and the thief is afterward found in another 
 count}' wuth the stolen propei-ty in his possession, he may be indicted 
 and convicted in either county, but not in both. This practice obtained 
 notwithstanding the general rule that every prosecution for a criminal 
 cause must be in the county where the crime was committed. The 
 reason for the above exception, to the gener'al rule is not certainly 
 known, nor is it important in this case that it should be known, as it 
 relates to the matter of venue only, and does not affect the substance
 
 620 STANLEY V. STATE. [CHAP. VIII. 
 
 of the offence. We ai*e entirelj' satisfied, however, that the right to 
 prosecute the thief in an}' count}' wherein he was found in possession 
 of tlie stolen jjroperty, was not asserted by tlie Crown, because of the 
 fact that a new and distinct larceny of the goods was committed when- 
 ever and wherever the tliief might pass from one county into ^mother. 
 His exemption from more than one conviction and punishment makes 
 this proposition clear enough. The common law provided that no 
 person should be twice vexed for the same cause. It was through the 
 operation of this principle that the thief who stole property in one 
 county, and was afterward found with the fruits of his crime in another, 
 could not be tried and convicted in each county. He was guilty of one 
 offence only, and that offence was complete in the county where the 
 property was first " taken " by the thief, and removed from the place 
 in which the owner had it in possession. 
 
 When goods piratically seized upon the high seas were afterward 
 carried by the thief into a county of P^ngland, the common-law judges 
 refused to take cognizance of the larceny, " because the original act — 
 namely, the taking of them — was not any offence whereof the com- 
 mon law taketh knowledge ; and by consequence, the bringing them 
 into a county could not make the same a felony punishable by our 
 law." 13 Coke, 53 ; 3 Inst. 113 ; 1 Hawk. c. 19, sec. 52. 
 
 The prisoner was charged with larceny at Dorsetshire, where he had 
 possession of the stolen goods. The goods had been stolen by him in 
 the island of Jersey, and afterward he brought them to Dorsetshire. 
 The prisoner was convicted. All the judges (except Raymond, C. B., 
 and Taunton, J., who did not sit) agreed that the conviction was 
 wrong. Rex v. Prowes, 1 Moody C. C. 349. 
 
 Property was stolen by the prisoner in France, and was transported 
 to London, where it was found in his possession. Parke, B., directed 
 the jury to acquit the prisoner on the ground of the want of jurisdic- 
 tion, which was done. Regina v. Madge, 9 Car. & P. 29. 
 
 A similar decision was made in a case where the property was stolen 
 in Scotland and afterward carried by the thief into England. 2 East 
 P. C. 772, c. 16, sec. 156. 
 
 This rule of the common law was afterward superseded, in respect to 
 the United Kingdom, by the statutes of 13 Geo. III., c. 21, sec. 4, and 
 7 and 8 Geo. IV., c. 29, sec. 76, whereby prosecutions were authorized 
 in any county in w-hich the thief was found, in possession of property 
 stolen by him in any part of the United Kingdom. 
 
 In Commonwealth v. Uprichard, 3 Gray, 434, the property had been 
 stolen in the province of Nova Scotia, and thence carried by the thief 
 into Massachusetts. The defendant was convicted of larceny charged 
 to have been committed in the latter state. This conviction was set 
 aside by a unanimous court, although two decisions had been made by 
 the same court affirming convictions where the property had been 
 stolen in a sister state, and afterward brought by the thief into that 
 commonwealth. Without overruling the older cases, Chief-Justice
 
 SECT. Il.J STANLEY V. STATE. 621 
 
 Shaw, in delivering the opinion of the court, distinguished between the 
 two classes of cases. 
 
 The following cases are in point, that a state, into which stolen 
 goods are carried by a thief from a sister state, has no jurisdiction to 
 convict for the larceny of the goods, and a fortiori when the goods 
 were stolen in a foreign country: In New York : People w. Gardner, 
 2 Johns. 477 ; People v. Schenk, 2 Johns. 479. The rule was after- 
 ward changed in that state by statute. New Jersey: The State v. 
 Le Blanch, 2 Vroom, S'2. Pennsylvania: Simmons v. Commonwealth, 
 5 Binn. 617. North Carolina: The State v. Brown, 1 Ilayw. 100. 
 Tennessee: Simpson ;;. The State, 4 Humph. 45G. Indiana: Beall w. 
 The State, 15 Ind. 378. Louisiana: The State v. Reonnals, 14 L. 
 An. 278. 
 
 There are two cases sustaining convictions for larcen}' in the States, 
 where the property had been stolen in tlie British Provinces : The 
 States. Bartlett, 11 Vermont, G50, and The State v. Underwood, 49 
 Maine, 181. In Bartlett's case, the principle is doubted, but the prac- 
 tice adopted in cases where the property was stolen in a sister state 
 was followed, and the application of the principle thereby extended. 
 Underwood's case was decided bv a majorit}- of the judges. 
 
 After reviewing the cases, we think the weisfht of authoritv is against 
 the conviction and judgment below. And in the light of principle, we 
 have no hesitanc}' in liolding that the court below had no jurisdiction 
 over the offence committed by the prisoner. 
 
 The judgment below is wrong, unless ever}' act of the defendant 
 which was necessary to complete the offence was committed withia 
 the State of Ohio and in violation of the laws thereof. This proposition 
 is not disputed. It is conceded hy the prosecution that the taking as 
 well as the removal of tlie goods anirno furandi^ must have occurred 
 within the limits of Ohio. It is also conceded that the first taking, as 
 well as the first removal of the goods alleged in this case to have been 
 stolen, was at a place be^'ond the limits of the state, and within tho 
 jurisdiction of a foreign and independent sovereignty. Now, the doc^ 
 trine of all the cases is that the original '' taking " and the origina'. 
 asportation of the goods b}' the prisoner must have been under such 
 circumstances as constituted a larceny. If the possession of the goods 
 by the defendant before they were brought into this state was a lawful 
 possession, there would be no pretence that the conviction was proper. 
 The same, if his possession was merel}' tortious. The theory of the 
 law upon which the propriety* of the conviction is claimed is based on 
 the assumption that the propert}- was stolen in Canada b}' the prisoner. 
 
 B}' what rule shall it be determined whether the acts of the prisoner, 
 whereby he acquired the possession of the goods in Canada, consti- 
 tuted the crime of larceny? B3' the laws of this state? Certainly 
 not. The criminal laws of this state have no extra-territorial opera- 
 tion. If the acts of the prisoner, wherebj' he came in possession of 
 the property described in the indictment, were not inhibited by the
 
 622 STANLEY V. STATE. [CHAP. VIII. 
 
 laws of Canada, it is perfectl}' clear that he was not guilt}- of laroen}- 
 there. It matters not that the}' were such as would have constituted 
 larceny if the transaction had taken place in this state. 
 
 Shall the question whether or not the " taking" of the property b}- 
 the prisoner was a crime in Canada be determined by the laws of that 
 country? If this be granted, then an act which was an essential ele- 
 ment in the combination of facts of which Stanley' was found guilty 
 was in violation of the laws of Canada, but not of this state ; and it 
 was because the laws of Canada were violated that the prisoner was 
 convicted. If the laws of that country had been different, though the 
 conduct of the prisoner had been the same, he could not have been 
 convicted. I can see no wa}' to escape this conclusion, and if it be 
 correct, it follows that the acts of the prisoner in a foreign country, as 
 well as his acts in this state, were essential elements in his offence ; 
 therefore, no complete offence was committed in this state against the 
 laws thereof 
 
 I have no doubt the legislature might make it a crime for a thief to 
 bring into this state property stolen by him in a foreign countr}'. And 
 in order to convict of such crime, it w^ould be necessar}' to prove tlie 
 existence of foreign laws against larcen}'. The existence of such 
 foreign laws would be an ingredient in the statutorj' offence. But that 
 offence would not be larceny at common law, for the reason that larceny 
 at common law contains no such element. It consists in taking and 
 cari-ying away the goods of another person in violation of the rules of 
 the common law, without reference to uny other law or the laws of an}' 
 other country. 
 
 It may be assumed that the laws of meum et tuuni prevail in every 
 country, whether civilized or savage. But this state has no concern in 
 them further than to discharge such duties as are imposed upon it by 
 the laws of nations, or through its connection with the general govern- 
 ment, by treaty stipulations. 
 
 Our civil couits are open for the reclamation of property which may 
 have been brought within our jurisdiction, in violation of the rights of 
 the owner ; but our criminal courts have no jurisdiction over offences 
 committed against the sovereignty of foreign and independent states.^ 
 
 Judgment reversed and cause remanded. 
 
 Day, C. J., Welch, Stone, and White, JJ., concurring. 
 
 1 In addition to the cases cited in this opinion .see the following : That conviction 
 may not be had when the property was first taken outside the jurisdiction, Lee v. 
 State, 64 Ga. 203 ; People ?;. Loughridge, 1 Neb. 11. That conviction may be had, 
 Stinson v. People, 43 111. 397 ; Worthington i\ State, 58 Md. 403 ; State v. Newman, 9 
 Nev. 48; State v. Hill, 19 S. C. 435. See also State v. Somerville, 21 Me. 14. — Ed.
 
 SECT. III.] REX V. RAVEN. 623 
 
 SECTION III. 
 
 Taking after Deliver^/. 
 
 (a) Larceny by Bailee. 
 
 1 Hawkins Pleas of the Crown (7th ed., 1795), 209. In general, 
 where the delivery of the property is made for a certain, special, and 
 particular purpose, the possession is still supposed to reside unparted 
 with in the first proprietor. Therefore . . . if a watch-maker steal a 
 watch delivered to him to clean (O. B. 1779, No. 83) ; or if one steal 
 clothes delivered for the purpose of being washed (O. B. 1758, No. 18) ; 
 or goods in a chest delivered with the key for safe custody (O. B. 1779, 
 Nc. 83) ; or guineas delivered for the purpose of being changed into 
 half-guineas (Ann Atkinson's Case, Leach Crown Cas, 247, notes) ; or 
 a watch delivered for the purpose of being pawned (Leach Crown Cas. 
 320) ; in all these instances, the goods taken have been thought to 
 remain in the possession of the proprietor, and the taking of them away 
 held to be felony.^ 
 
 REX V. RAVEN. 
 
 Newgate Sessions. 1662. 
 
 [Reported Kelyng, 24.] 
 
 Mary Raven, alias Aston, was indicted for stealing two blankets, 
 three pair of slieets, tliree pillowbiers, and other goods of William 
 Cannon. And upon the evidence it appeared that she had hired lodg- 
 ings and furniture with them for three months, and during that time 
 conveyed away the goods which she had hired with her lodgings, and 
 she herself ran away at the same time. And it was agreed by my 
 Lord Bridgeman, myself, and my brother Wylde, Recorder of London, 
 then present, that this was no felony, because she had a special prop- 
 erty in them by her contract, and so there could be no trespass ; and 
 there can be no felony where there is no trespass, as it was resolved in 
 the case of Holmes, who set fire on his own house in London, which 
 was quenched before it went further. 
 
 1 These cases were first cited in the 6th edition of the treatise (1787) in the notes 
 and were brought up into the text in the 7th edition. The citations of the cases are all 
 (with perhaps one exception) wrong, and it is difficult to identify them. The first 
 case appears to be Rex v. Vansas, O. B. 1779, No. 88. The prisoner was journeyman 
 to a watchmaker, and was given the watch by him to repair, and pawned it ; in his 
 defence he said, " The watch was given into my care ; I appeal to your Lordship and 
 the jury whether this is stealing." He was convicted. The second case cannot be 
 identified. The third case is really Rex v. More, O. B. 1758, No. 18. A woman who 
 had been sent to prison gave the key of her chest to the defendant, who stole goods 
 from it ; the chest was apparently left in the prosecutor's house. Atkinson's Case was 
 a case of larceny by a servant. The last case cannot be found in Leach, but is Rex w. 
 Bradley, O. B. 1784, No. 613. It is a case of larceny by trick. — Ed.
 
 624 ,' <::1lEX V. BANKS. [CHAl'. Vlli. 
 
 LEIGH'S CASE. 
 
 Crown Case Reserved. 1800. 
 
 [Reported 2 East P. C. 694.] 
 
 Elizabeth Leigh was indicted at Wells assizes, in the summer of 
 1800, for stealing various articles, the property of Abraham Dyer. It 
 appeared that the prosecutor's house, consisting of a shop containing 
 muslin and other articles mentioned in the indictment, was on fire ; and 
 that his neighbors had in general assisted at the time in removing his 
 goods and stock for their securit}'. The prisoner probably had removed 
 all the articles which she was charged with having stolen when the 
 prosecutor's other neighbors were thus employed. And it appeared 
 that she removed some of the muslin in the presence of the prosecutor 
 and under his observation, though not b}' his desire. Upon the prose- 
 cutor's applying to her next morning, she denied that she had any of 
 the things belonging to him ; whereupon he obtained a search warrant, 
 and found his property in her house, most of the articles artfully con- 
 cealed in various ways. The jury found her guilty ; but it was sug- 
 gested that she originally took the articles with an honest purpose, as 
 her neiglibors had done, and that she would not otherwise have taken 
 some of them in the presence and under the view of the prosecutor ; 
 and that therefore the case did not amount to felon}-. The jur}^ were 
 instructed that whether she took them originallj' with an honest 
 intent was a question of fact for their consideration ; that it did not 
 necessarily follow from the circumstances mentioned that she took 
 them with an honest intent. But even if they were of that opinion, 
 yet that her afterwards hiding the goods in the various ways proved, 
 and denying that she had them, in order to convert them to her own 
 use, would still support the indictment. The jury found her guilty ; 
 but said that, in their opinion, when she first took the goods from the 
 shop she had no evil intention, but that such evil intention came upon 
 her afterwards. And upon reference to the judges, in Michaelmas 
 Term, 1800, all (absent, Lawrence, J.) held the conviction wrong ; for if 
 the original taking were not with intent to steal, the subsequent con- 
 version was no felon}', but a breach of trust. -^ 
 
 REX V. BANKS. 
 
 Crown Case Reserved. 1821. 
 
 [Reported Russell ^ Ryan, 441.] 
 
 The prisoner was tried and convicted before Mr. Justice Bayley, at 
 the Lancaster Lent Assizes, in the year 1812, for horse-stealing. 
 
 1 Ace. Reg. V. Reeves, 5 Jut. N. S. 716. — Ed.
 
 SECT. III.] REGINA V. THRISTLE. 625 
 
 It appeared that the prisoner borrowed a horse, under pretence of 
 carrying a child to a neighboring surgeon. Whether he carried the 
 child thither did not api)ear ; but the day following, after the purpose 
 for which he borrowed the horse was over, he took the horse in a 
 different direction and sold it. 
 
 The prisoner did not offer the horse for sale, but was applied to to 
 sell it, so that it was possible he might have had no felonious intention 
 till that application was made. 
 
 The jury thought the prisoner had no felonious intention when he 
 took the horse ; but as it was borrowed for a special purpose, and that 
 purpose was over when the prisoner took the horse to the place where 
 he sold it, the learned judge thought it right upon the authority of 
 2 East P. C. 690, 694, and 2 Russ. 1089, 1090,- tc submit to the con- 
 sideration of the judges whether the subsequent disposing of the horse, 
 when the purpose for which it was borrowed was no longer in view, did 
 \iot in law include in it a felonious taking. 
 
 In Easter Term, 1821, the judges met and considered this case. 
 They were of opinion that the doctrine laid down on this subject in 
 ■2 East P. C. 690 & 694, and 2 Russell 1089 & 1090, was not correct. 
 They held that if the prisoner had not a felonious intention when he 
 originally took the horse, his subsequent withholding aud disposing of 
 it did not constitute a new felonious taking, or make him guilty of 
 felony ; consequently the conviction could not be supported. 
 
 fi 
 
 REGINA V. THRISTLE. 
 CROw^J Case Reserved. 1849. 
 
 [Reported 3 Cox C. C. 573.] 
 
 The two following cases were reserved by the Worcestershire Court 
 of Quarter Sessions : — 
 
 FIRST CASE. 
 
 The prisoner, William Thristle, was indicted at the Worcester Quar- 
 ter Sessions, 1.5th October, 1849, for steahng one watch, the propert}* 
 of Robert Warren. 
 
 It appeared in evidence that the prosecutor, in 1848, met the pris- 
 oner, who was a watchmaker at Malvern. The prosecutor asked pris- 
 oner if he was going as far as prosecutor's house ; the prisoner said 
 
 1 In 2 Russ. 1089, it is said that, " In the case of a delivery of a horse upon hire or 
 loan, if such delivery were obtaiued bond fide, no subsequent wrongful conversion 
 pending the contract will amount to felony ; and so of other goods. But when the 
 purpose of the hiring or loan for which the delivery was made has been ended, 
 felony may be committed by a conversion of the goods." — Rep. 
 
 /:,cv-i^-' 
 
 14 ' 'm;^U^-^I "^^-^ -'■
 
 626 KEGINA V. THRISTLE. [CHAP. VIII. 
 
 "3^es," if the prosecutor had anything for him. The prosecutor said 
 his watch wanted regulating, if prisoner would call. 
 
 The prisoner went to the prosecutor's house, and after examining 
 the watch, told the prosecutor's wife that he could do nothing with it 
 there, but must take it to his own house. The prisoner tlien took it 
 and on his way home met the prosecutor, to whom he mentioned that 
 he was taking the watch to his own house and would return it in two 
 or three days. Prosecutor made no objection. 
 
 In a few weeks after, prisoner left the neighborhood without returning 
 prosecutor's watch, and it was not afterwards heard of. The prisoner, 
 on being taken into custody, said, " I have disposed of the property, 
 and it is impossible to get it back." 
 
 The jury returned a verdict of guilty, but the chairman being of 
 opinion that there was no evidence of a felonious taking when the 
 prisoner first took the watch from the prosecutor's house, with the 
 knowledge and in the presence of the prosecutor's wife, and entertain- 
 ing doubt whether the prisoner's subsequent appropriation of the watch 
 could under the circumstances above detailed, constitute larceny, re- 
 quests the opinion of this court as to the correctness of the conviction 
 in point of law. 
 
 SECOND CASE. 
 
 The same prisoner was also indicted at the same Sessions for steal- 
 ing one watch, the property of the prosecutor, Thomas Reynolds. It 
 appeared in evidence that the prisoner, who was a watchmaker at Mal- 
 vern, received from the prosecutor some time in January, 1848, his 
 silver watch to repair. The prisoner returned it to the prosecutor. A 
 few days after the prisoner had so returned it the prosecutor told the 
 prisoner that the watch gained. The prisoner said that if the prose- 
 cutor would let him have it again, he would regulate it and return it 
 in a day or two. The prosecutor thereupon gave the watch to the 
 prisoner, who in eight or nine days left Malvern with the prosecutor's 
 watch in his possession, and was not again heard of until he was 
 arrested on the present charge some time afterwards. 
 
 The prosecutor was unable to say whether he had paid for the repairs 
 of his watch or not, but stated that the prisoner, when he left Malvern, 
 had other repairs of the prosecutor's on hand and unfinished. 
 
 The prisoner, when taken into custody, said, "I have disposed of 
 the property, and it is impossible to get it back." 
 
 The jury found a verdict of guilty, but the chairman being of opinion 
 that there was no evidence of a felonious taking on the part of the 
 prisoner when he received the watch from the prosecutor to regulate 
 it, and entertaining a doubt whether the subsequent departure of the 
 prisoner from Malvern with the prosecutor's watch in his possession 
 could under the circumstances above detailed, constitute larceny, re- 
 quests the opinion of this court, as in the former case.^ 
 
 1 The statement of authorities in point is omitted.
 
 SECT. III.] REGINA V. PKATT, 627 
 
 These cases were not argued b}- counsel but were considered by the 
 following judges : Pollock, C. B., Patteson, J., Wightman, J., Piatt, B., 
 and Taltbunl, J, 
 
 Pollock, C. B., delivered the judgment of tlie court. Tiie indict- 
 ment was for stealing a watch, and the circumstances set out in the 
 case do not, on the question of fact, justify the verdict of guilty ; but 
 in giving our judgment that the conviction is wrong, we do not proceed 
 merely upon the facts stated. The question put to us in the conclusion 
 of the case seems to be this : The chairman doubted whether a subse- 
 quent ap[)ropriation could make the entire transaction a larcen}-, there 
 not having been at the time of the taking any animus farandi ; and 
 I think we are bound to take it that he directed the jury that the 
 subsequent appropriation might render the transaction larceny, though 
 there was not any intention to steal at the time of the taking ; and in- 
 deed, the chairman's opinion seems to have been that there was not 
 \he animus fura7icU at the time of the taking; and the question is, 
 whether he was right in his direction. We think not, for unless there 
 was a taking animo fwandi, no dishonest appropriation afterwards 
 r^ouldjnake it larceny. Conviction reversed} / 
 
 -.i-' 
 
 .i-'L/C-J 
 
 nI 
 
 REGINA V. PRATT. / 
 
 Crown Case Reserved. 1854. 
 [Reported 6 Cox C. C. 373.] 
 
 The prisoner was tried at the last January Sessions for the borough 
 of Birmingham, upon a charge of having feloniously stolen, taken, and 
 carried away on the 18th May, in the 16th year of our Sovereign Lady 
 the Queen, one die lathe, the goods of P^dward Barker and another ; 
 and on the 19th Ma}', in the same year, ten lathes, the property of the 
 said Edward Barker and another, the goods and chattels of the prose- 
 cutors ; and was found guilty. 
 
 The prisoner was a thimble-maker and manufacturer, carrying on his 
 business in two mills, one a thimble-mill and the other a rolling-mill, 
 in the borough of Birmingham ; and before the occurrence hereinafter 
 mentioned he was the owner and proprietor of the propert}' mentioned 
 in the indictment. 
 
 On the 14th of Ma}', 1853, the prisoner, being in pecuniary difficul- 
 ties, arranged with the prosecutors, P^dward Barker and William Wayte, 
 creditors of the prisoner, and with Mi-. Collis, an attorney-at-law who 
 acted on their behalf, to execute an assignment to trustees for the 
 
 1 Ace. Rep:. V. Reynolds, 2 Cox C. C. 170; Reg. v. Hey, 3 Cox C. C. .583 (overruling 
 Reg. V. McNamee, 1 Moo. C. C. 368, and Reg. w. Jackson, 2 Moo. C. C 32) ; State v. 
 England, 8 Jones, 399; Hill v. State, 57 Wis. 377. See Murphy v. People, 104 111 
 528, and ca.ses cited (statutory). — Ed.
 
 628 EEGINA V. PKATT. [CHAP. VIII. 
 
 benefit of his creditors ; and on the 18th of Ma}- a deed of assignment 
 was executed by him, whereby the prisoner assigned to the prosecutors, 
 as trustees for the purposes therein mentioned, certain property by the 
 description following: "all and every the engines, lathes, boilers, fur- 
 naces, horses, carts, machinery, tools, and implements of trade, the 
 stock-in-trade, goods, wares, merchandise, household furniture, fixtures, 
 plate, linen, china, books of account, debts, sum and sums of monej-, 
 and all securities for mone}', vouchers, and other documents and writ- 
 ings, and all other the personal estate and effects whatsoever and 
 wheresoever, save and except leasehold estates of the said David Pratt, 
 in possession, I'eversion, remainder, or expectanc}-, together with full 
 and free possession, right and title of entr}' in and to all and every of 
 the mills, works, messuages, or tenements and premises wherein the 
 said several effects and premises then were : to have and to hold the 
 said engines, and other the premises, unto the said William Barker 
 and William Wayte, their executors, administrators, and assigns, 
 absolutely." 
 
 The deed was executed by the prisoner in the presence of, and was 
 attested by James Rous, who was a clerk of Mr. Colhs, and who was 
 not an attorney or solicitor. 
 
 On the 29th of Maj' the said deed was again executed by the prisoner 
 in the presence of the said Mr. Collis and in all respects in conformity 
 with the provisions of the 68th section of the Bankrupt Law Consolida- 
 tion Act, 1849, with the view of preventing the deed from operating as 
 an act of bankruptcy. The deed had been duly stamped on its first 
 execution, but no second stamp was aflSxed on its second execution, 
 which omission was made the ground of objection to its receipt in evi- 
 dence. I admitted it, however, subject to the opinion of this honorable 
 court, which I directed should be taken if it became necessarj'. At the 
 time of the first interview with Mr. Collis on the 14th Ma}', the pris- 
 oner said he had stopped work altogether, but on the 16th it was 
 arranged between him and Mr. Collis that the rolling business should 
 be allowed to go on to complete some unfinished work. Mr. Collis 
 then told him to keep an account of the wages of the men employed on 
 the rolling work and to bring it to the trustees. This the prisoner did, 
 on the 19th May, when the wages were paid by the trustees and the 
 rolling business finalh' stopped. 
 
 In the nights of Monday, the 16th Ma}', and of every other day 
 during that week, the prisoner removed property conveyed by the deed 
 — including the articles mentioned in the indictment — from the thimble 
 and rolling mills (some of the heavier machines being taken to pieces 
 for the purpose of removal), and hid them in the cellar and other parts 
 of the house of one of his workmen. Some time afterwards, and after 
 the sale by the trustees of the remainder of the property, a Mr. Walker, 
 who had been a large purchaser at the sale, recommenced the business 
 at the thimble and rolling mills, and the prisoner acted as his manager, 
 when the property which formed the subject of the indictment was by 
 the prisoner's directions brought back at intervals to the mills.
 
 SECT. III.] REGINA 0. PRATT. 629 
 
 No manual possession of the [)roperty was taken b}- the prosecutors 
 prior to its removal from and back to the mills, but the prisoner re- 
 mained in possession after the execution of the deed, in the same 
 manner as before. 
 
 I asked the jury three questions : 1st. Did the prisoner remove the 
 property after the execution of the deed of assignment? 2dly. Did 
 he so act with intent fraudulently to deprive the parties beueficially 
 entitled under the deed of the goods? ;3dly. Was he at the time of 
 such removal in the care of and custody of such goods as the agent of 
 the trustees under the deed ? 
 
 I put these tliree questions to the jury separately, and they separately 
 answered them as follows : 1st. He did remove the property after the 
 execution of the assignment. 2dly. He did so remove it with fraudu- 
 lent intent. And, lastly, he was not in the care and custody of the 
 goods as the agent of the trustees. And thereupon (being of opinion 
 that tlie two affirmative answers would support a conviction, notwith- 
 standing the third answer in the negative), I directed the jury to find 
 the prisoner guilty, which they did. 
 
 The questions for the opinion of the court are: 1st. Whether the 
 deed of assignment ought to have been received in evidence. 2d. 
 Whether my direction to the jury was correct. And, lastly, whether 
 the conviction is valid. 
 
 Bittleston {Field with him), for the prisoner. The conviction is 
 wrong. 1st. The prisoner was in lawful possession of the goods, and 
 a taking by him did not constitute larceny. Furtum non est uhi 
 initium habet detentionis per dominum rei. The trustees had not 
 even a constructive possession for this purpose, though they probably 
 had for the purpose of maintaining a civil action of trespass against 
 a third person. The doctrine of constructive possession underwent 
 consideration in R. v. Reed, 23 L. J. 25, M. C, where a servant was 
 sent to fetch coals ; and it was held tliat the servant's possession was 
 only determined when he had placed the coals in his master's cart, 
 which was the same thing for that purpose as the master's warehouse. 
 If this case is put upon the ground that the prisoner was a bailee and 
 broke bulk the jury have negatived a bailment, 2d. Under the 68th 
 section of the Bankrupt Act, the re-execution constituted a material 
 alteration of the deed, which therefore required to be restamped. [Lord 
 Campbell, C. J. — Was not the re-execution a mere nullity ?] Probably 
 that is so. 
 
 A. Wills, contra. This is a case of bailment. The trustees per- 
 mitted the prisoner to continue in possession, and by so doing consti- 
 tuted him a bailee. [Lord Campbell, C. J. — The jury have found the 
 contrary.] They have only found that he was not their agent ; and 
 there is a distinction between an agent and a bailee. 
 
 Lord Campbell, C. J. It is found that he had not the care or cus- 
 tody of the goods as their agent ; and that clearly negatives a bailment ; 
 and that is the only ground upon which this case could be put. The
 
 630 carrier's case. [chap. viii. 
 
 prisoner, therefore, was in lawful possession of the goods and cannot 
 be convicted of larceny. 
 
 Aldekson, B. This is a case of a man stealing goods out of his 
 own possession. Conviction quashed. 
 
 SECTION III. (conti?iued). 
 (b) Larceny by Breaking Bulk, && 
 
 CARRIER'S CASE. 
 Star Chamber and Exchequer Chamber. 1473. 
 
 [Reported Year Book, 13 Ed. IV., 9, pi. 5]. 1 
 
 In the Star Chamber before the King's Council such matter was 
 shown and debated : where one has bargained with another to carry 
 certain bales with, etc., and other things to Southampton, he took them 
 ailcTcarried them to another place and broke up {debrusa) the bales 
 and took the goods contained therein felouiousl}-, and converted them 
 to his proper use, and disposed of them suspiciously ; if that may be 
 called felony or not, that was the case. 
 
 Brian, C. J. I think not, for where he has the possession from the 
 party b}' a bailing and delivery lawfully, it cannot after be called felony 
 nor trespass, for no felony can be but with violence and vi et armis, 
 and what he himself has he cannot take with vi et armis nor against the 
 peace ; therefore it cannot be felony nor trespass, for he ma}' not have 
 any other action of these goods but action of detinue. 
 
 Hussey, the King's Attorney. Felony is to claim feloniously th'd 
 property without cause to the intent to defraud him in whom the prop- 
 erty is. animo furandi., and here notwithstanding the bailment ut 
 supra the property remained in him who bailed them, then this property 
 can~be feloniously claimed by him to whom they were bailed as well as 
 by a stranger ; therefore it may be felony well enough. 
 
 The Chancellor [Booth]. Felony is according to the intent, and 
 his intent may be felonious as well here as if he had not the possession 
 
 llolineux, ad idem. A matter lawfully done may be called felony 
 or trespass, according to the intent ; sc. if he who did the act do not 
 pursue the cause for which he took the goods, as if a man distrain for 
 damage feasant or rent in arrear, and then he sell the goods and kill the 
 beasts, this is tort now where at the beginning it was good. So if a 
 man come into a tavern to drink it is lawful ; but if be carry away the 
 piece or do other trespass, then all is bad. So although the taking was 
 lawful in the carrier ut supra, etc., yet when he took the goods to 
 
 1 Translation of Pollock and Wright, Possession, p. 134.
 
 SECT. III.] CARRIEK's CASE. 631 
 
 another place ut supra he did not pursue his cause, and so by his act 
 after it may be called felony or trespass, according to the intent. 
 
 Brian, C. J. Where a man does an act out of his own head, it 
 may be a lawful act in one case and in another not, according to his act 
 afterwards, — as in the cases which you have put, — for tliere his intent 
 shall be judged according to his act ; but where I have goods b}' your 
 bailment, this taking cannot be made bad after by anything. 
 
 Vavisour. Sir, our case is better than a bailment, for here the 
 things were not delivered to him, but a bargain that he should carry the 
 goods to Southampton ut supra, and then if he took them to carry 
 them tliither he took them warrantable' ; and the case put now upon the 
 matter shows, that is, his demeanor after shows, that he took them as 
 felon and to another intent than to carrj' them, ut supra, in which case 
 he took them without warrant or cause, for that he did not pursue the 
 cause, and so it is felon}'. 
 
 Choke, J. I think that where a man has goods in his possession 
 b}' reason of a bailment, he cannot take them feloniously, being in pos- 
 session ; but still it seems here that it is felony, for here the things 
 which were within the bales were not bailed to him, — onlj' the bales as 
 an entire thing were bailed ict supra to carrj', — in which case if he had 
 given the bales or sold them, etc., it is not felony ; but when he broke 
 them, and took out of them what was within, he did that without war- 
 rant, -;— as if one bailed a tun of wine to carry ; if the bailee sell the tun 
 it is not felony nor trespass ; but if he took some out it is felon}' ; and 
 here the twent}' pounds were not bailed to him, and peradventure he 
 knew not of them at the time of the bailment. So is it if I bail the 
 key of my chamber to one to guard my chamber, and he take my 
 goods within this chamber, it is felony ; for they were not bailed to 
 him. 
 
 Jt was then moved that the case ought to be determined at common 
 law.^ The matter was afterwards argued before the judges in the 
 Exchequer Chamber. 
 
 And there it was holden bj- all but Nedham, J., that where goods 
 are bailed to a man he canno^t take them feloniously ; but Nedham 
 held the contrary, for he might take them feloniously as well' as an- 
 otlier ; and he said it had been held that a man can take his own goods 
 felonioush', as if I bail goods to a man to keep and I come privil}' — 
 intending to recover damages against him in detinue — and I take the 
 goods privily, it is felon}-. And it was holden that where a man has 
 possession and that determines, he can then be felon of the things, as 
 if I bail goods to one to carry to my house and he bring them to my 
 house and then take them thereout, it is felony, for his possession is 
 determined when they were in my house ; but if a taverner serve a man 
 with a piece, and he take it away, it is felony, for he had not possession 
 of this piece, for it was put on the table but to serve him to drink 
 
 1 So much of the case as relates to this motion is omitted.
 
 632 tunnard's case. [chap. viii. 
 
 And so is it of my butler or cook in m}' house ; they are but ministers 
 to serve me, and if they carry it awa}' it is felon}- ; for they had not 
 possession, but the possession was all the while in me ; but otherwise 
 perad venture if it were bailed to the servants so that they are in pos- 
 session of it. 
 
 Laicon, J. I think there is a diversity between bailment of goods 
 and a bargain to take and carry, for by the bailment he has deliver}' of 
 possession ; but by the bargain he has no possession till he take them, 
 and this taking is lawful if he takes them to carry, but if he take them 
 to another intent than to carr}- them, so that he do not pursue his cause, 
 I think that shall be called felonv well cnouoh. 
 
 Brian, C. J. I think that it is all one, a bargain to carry them and 
 a bailment, for in both cases he has authority of the same person in 
 whom the property was, so that it cannot be called felon}', M. 2 E. 
 III., in an indictment "felonice abcluxit unutn equum" is bad, but it 
 should be cepit ; so in eyre at Nott., 8 E. III. ; and in this case the 
 taking cannot be feloniousl}', for that he had the lawful possession ; so 
 then the breaking the bales is not felon}', vide 4 E. II. in trespass, for 
 that plaintiff had bought a tun of wine of defendant, and while it was in 
 defendant's guard defendant came with force and arms and broke the 
 tun and carried away parcel of the wine and filled up the tun with 
 water. 
 
 And for that it appeared he had possession before, the writ, being 
 m et ai'mis, was challenged ; and yet it was held well, and he pleaded 
 not guilty, and then the justices reported to the Chancellor in Council 
 that the opinion of the most of them was that it was felony.^ 
 
 TUNNARD'S CASE. 
 Old Bailey. 1729. 
 
 [Reported Leach {4th ed.) 214, ?i.] 
 
 John Tunnard was tried before Lord Chief Justice Raymond, pres- 
 ent Mr. Baron Hale and Mr. Justice Denton, for stealing a brown 
 mare, the property of Henry Smith. It appeared in evidence the 
 prosecutor lived in the Isle of P^ly ; that he lent the prisoner the mare 
 to ride to a place three miles distant ; but that instead of riding three 
 miles according to agreement the prisoner rode her up to London, and 
 sold her. Lord Chief Justice Raymond left it with the jury quo animo 
 he had ridden the mare to London, and they found him guilty. 
 
 The Court. The finding of the jury will make this case felony be- 
 
 1 Ace. State v. Fairclough, 29 Conn. 47 ; Robinson v. State, 1 Coldw. 120. See 
 Keljng, 82 ; 2 East P. C. 695 : Chaplin Crim. Cas. 298 ; 6 Harv. L. Rev. 250. — Ed.
 
 SECT. III.] 'REX V. MADOX. tJ33 
 
 cause he rode the mare fartlier than he had agreed to do ; for if there 
 had been no special agreement the privity would have remained, and 
 it could not have been felony. 
 
 REX V. MADOX. 
 
 Crown Case Reserved. 1805. 
 
 [Reported Russell Sj- Rijan, 301.] 
 
 This was an indictment for a capital offence on the 24 G. II. c. 45, 
 tried before Mr. Baron Graham at the summer Assizes at Winchester, 
 in the year 1805. 
 
 The first count was for stealing at West Cowes six wooden casks 
 and one thousand pounds' weight of butter, value £20, the goods of 
 Richard Bradley and Thomas Clayton, being in a certain vessel called 
 a sloop in the port of Cowes, the said port being a port of entry and 
 discharge, against the statute. The second count was for grand lar- 
 ceny. The third count was like the first except as to the property 
 in the goods, which was laid in one Richard Lashmore ; and the 
 fourth count was for grand larceny of the goods of the said Richani 
 Lashmore. 
 
 The butter stolen was part of a cargo of 280 firkins or casks, 
 shipped at Waterford, in Ireland, on board a sloop, the " Benjamin," 
 of which the prisoner was master and owner, bound to Shoreham and 
 Newhaven in Sussex, — two hundred and thirty of the casks being 
 consigned to Bradley and Clayton at Shoreham, and fifty of them to 
 Lashmore at Brighthelmstoue. 
 
 It appeared that the ordinary length of this voyage, with fair winds, 
 was a week or nine days, but in winter sometimes a month or five 
 weeks. In the present instance the voyage had been of much longer 
 duration. 
 
 The vessel first touched at Sheepshead, in Ii'eland, in distress. The 
 prisoner went on shore at Beerhaven, where he signed a protest, bear- 
 ing date on the 20th December, 1804. From thence they proceeded to 
 Lundy Island and to Tenby in Wales, where they arrived in February, 
 1805, and at which place the prisoner went on shore and stayed four 
 or five weeks, the winds being foul. From thence they proceeded to 
 Scilly and then to Cowes, where they arrived on the last day of 
 March or the 1st of April, 1805. Cowes was in their course, but they 
 had previously met with very foul weather and had been driven to the 
 westward of Madeira, during which time the vessel had been often in 
 great distress ; but no part of the butter had at any time been thrown 
 overboard. Upon the arrival at Cowes the prisoner went on shore 
 and shortly afterwards applied to one Lallow, a sailmaker, for a suit of
 
 634 EEX V. MADOX. [CHAP. VIII. 
 
 sails. Lallow went aboard the vessel and took measure for the sails ; 
 and after his return to Cowes the prisoner called upon him again and 
 bespoke a hammock, and then stated that he had thirteen casks of 
 batter on board the vessel, belonging to himself, and requested Lallow 
 to send for them and deposit them in his sail-loft until the prisoner 
 returned from Newhaveu. At the same time he gave Lallow a note 
 or order for the mate of the vessel, by which the mate was required 
 to deliver thirteen casks of butter to the bearer. Lallow dispatched 
 some of his men with the order and a boat to the vessel, where they 
 arrived in the night, and after having delivered the order to the mate, 
 received from him seven casks of butter in the first instance, being as 
 much as the boat would carry ; and upon their return to the vessel, 
 during the night, received from the mate the otlier six casks. The 
 order did not require the mate to deliver any particular casks ; and it 
 appeared by the evidence of the mate that he took them as they came 
 to hand. The casks had been originally stowed in the hold and upon 
 the half-decks as they came on board, and those delivered to Lallow's 
 men were taken from the half-decks, the others being battened down. 
 The seven casks first delivered by the mate were taken to Lallow's 
 premises and deposited there ; the other six casks were seized by the 
 custom-house officers. The prisoner was at Cowes and was informed 
 by Lallow of the seizure, at which he expressed anger, speaking of the 
 seizure as a robbery and of the casks so seized as his own property 
 and venture. He also spoke of going to claim his property, and after- 
 wards told Lallow that he would give him an order to claim it, as he 
 must himself go away. The prisoner afterwards went to the vessel 
 and passed the rest of the night on board. The remainder of the 
 cargo was delivered at Shoreham and Newhaven. 
 
 The protest made by the prisoner, and bearing date at Beerhaven, 
 the 20th of December, 1804, purported, among other things, that 
 the prisoner had been obliged to tln-ow overboard several casks of 
 butter ; and it appeared that he had held the same language to the 
 consignees as his excuse for delivering short of their respective 
 consignments. 
 
 Upon this case the counsel for the prisoner raised two objections : 
 first, that no larceny had been committed by the prisoner ; and sec- 
 ondly, that the offence was not capital, — the larceny, if any, being of 
 goods in his own vessel. 
 
 Upon the first objection it seemed to be admitted that if the mate, 
 by the order of the prisoner, had broken bulk by taking the casks 
 from those which were battened down, it might have been larceny in 
 the prisoner ; and the learned judge thought, that as the casks were 
 taken from the half-deck, where they were originally stowed, there was 
 jno material difference. It was then contended that the prisoner went 
 into Cowes without any necessity, and out of the course of his voyage ; 
 and the case was compared to those wherein it had been held, that if 
 goods are delivered to a carrier to carry to a certain place, and he
 
 SECT. III.] REGINA V. POYSER. y 635 
 
 carries them elsewhere and embezzles them, it is no felony. 1 Hale, 
 504, 505 ; 2 East P. C. 693, 095, 696. But the learned judge thought 
 that the severance of a part from the rest, and the formed design of 
 doino- so, took the case out of tliose authorities, if they could be con- 
 sidered as applying to the present case. 
 
 Upon ttie second objection, those cases were cited wherein it had 
 been held that the 12 Anne St. 1, c. 7, against larceny in a dwelling- 
 house, to the value of forty shillings, does not extend to a stealing by 
 a man in iiis own house (2 East P. C. 644) ; but the learned judge 
 thought, that though this might be the law as to a person stealing the 
 goods of another under tlie protection of his own house, yet the case 
 of a man stealing the goods of auotlier laden on board his own vessel 
 was different, as in such case the vessel for the voyage might be con- 
 sidered as the vessel of the freighter ; and that if the owner should 
 take the command of tlie vessel, the stealing the goods committed 
 to his care would be an aggravation of his offence. And he further 
 observed that the words and occasion of the two statutes would admit 
 of a distinction. 
 
 The whole case was therefore left to the jury, who found the pris- 
 oner guilty ; but the sentence was respited, in order that the opinion of 
 the judges might be talvcn. 
 
 In Michaelmas term, 1805, the case was considered by the judges, 
 who were of opinion that it was not larceny ; and that if it were 
 larceny, it would not have amounted to a capital offence within the 
 statute 24 G. II. e. 45. 
 
 REGINA V. POYSER. 
 
 Crown Case Reserved. 1851. 
 
 [Reported 2 Denison C. C. 23.3.] 
 
 The prisoner was tried before Mr. Baron Alderson, for larceny, at 
 the spring Assizes, a. d. 1851, for the county of Leicester. It ap- 
 peared at the trial that the prisoner was employed by the prosecutor, 
 who was a tailor, to sell clothes for him about the country, and upon 
 the following terms : The prosecutor fixed the price of each article, 
 and the prisoner was entrusted to sell them at that fixed price, and 
 ^•h^n he had done so he was to bring back the money and the re- 
 mainder of the clothes unsold, and was to have three shillings in the 
 pound on the moneys received for his trouble. On the 12th of February 
 last he took away a parcel of clothes upon these terms, and instead of 
 disposing of them according to the above arrangement, he fraudulently 
 pawned a portion of them for his own benefit, and having so done he 
 afterwards fraudulently appropriated the residue to his own use. These 
 facts having appeared, the learned baron directed the jury, that the 
 
 !. I ^
 
 636 REGINA V. POYSER. [CHAP. VIII. 
 
 original bailment of the goods by the prosecutor to the prisoner was 
 determined by his unlawful act in pawning part of them, and that the 
 subsequent fraudulent appropriation by the prisoner of the residue of 
 the goods to his own use would in point of law amount to larceny. 
 Upon this direction the prisoner was found guilty, and the questioa 
 for this court was, whether this direction was right. 
 
 On the 26th of April this case was argued by O'JBrien, for the 
 prisoner. 
 
 The contract with the prisoner was distinct and separate with regard 
 to each article entrusted to him. The fact of his receiving all the 
 articles at one time was a mere accident, which makes no legal differ- 
 ence in the case ; each article had a separate price affixed to it. After 
 he had pawned some of the articles, when was the original bailment of 
 the others determined? 
 
 Lord Campbell. The case states, that on the 12th of February, he 
 took away a parcel of clothes ; we must, therefore, regard the delivery 
 of that parcel as one bailment of all the articles contained in the 
 parcel. 
 
 O'Brien. The prisoner had authority to break the bulk ; the con- 
 tract imposed on him the necessity of opening it in order to take out 
 each article and deal with it separately. 
 
 Coleridge, J. Why may not there be a single contract embracing 
 several particulars, as for instance, where a carrier is entrusted with 
 earious articles to leave at different places, all of which articles are 
 placed in one bag ; if he wrongfully deals with any one, is it not a 
 breaking bulk of the whole? 
 
 O'Brieti. The doctrine of breaking bulk turns on there being no 
 authority to open the parcel and deal with any one of the articles 
 separately from the rest. 
 
 Alderson, B. If you can make out this to be like the case of a 
 carrier entrusted with several parcels under several distinct contracts, 
 then certainly it is no larceny. 
 
 Lord Campbell, C. J. I think the conviction was right. The case 
 must be considered as tliough it was a single bailment. If there had 
 been several bailments, then the wrongful dealing with one of the 
 articles so bailed would not affect the case as to any Other article. But 
 it makes no difference that in one parcel there were several articles. 
 The law has resorted to some astuteness to get rid of the difficulties 
 that might arise in the case of a wrongful dealing with one or more of 
 several articles, all of which, when entrusted, had been contained in 
 one bulk. 
 
 Alderson, B., and Platt, B., concurred. 
 
 Coleridge, J. The fact of different prices being affixed to each 
 article makes no difference in the case.
 
 SECT. III.] COMxMONWEALTH V. JAMES. 637 
 
 COMMONWEALTH v. JAMES. 
 Supreme Judicial Colkt of Massachusetts. 1823. 
 
 [Reported 1 Pickeriti;;, 375.] 
 
 An indictment was found in this case as follows : ^ " The jurors, 
 etc., present, that Noali James, of, etc., miller, on, etc., at Boston afore- 
 said, witli force and arms, three tons weight of barilla of the value, etc., 
 of the goods and chattels of one Thomas Park, in his possession then 
 and there being, diil then and there feloniously steal," etc. 
 
 The prisoner was convicted and sentenced at the Municipal Court 
 and he appealed to this court. 
 
 At the trial in November term, 1822, before Parker, C. J., it was 
 in evidence that. Park having a quantity of barilla which he wished to 
 have ground, sent it to a mill kept by the prisoner for grinding plaster 
 of Paris, barilla, and other articles ; that after it was ground, a mixture 
 consisting of three-fourth parts of barilla and one-fourth part of plaster 
 of Paris was returned by the same truckman who carried the barilla to 
 the mill, lie being on both occasions in the employment of Park. 
 
 The prisoner's counsel contended, that it appearing that the barilla 
 was sent to and brought from the mill by a truckman, who for aught 
 appearing in the case was alive and within the reach of the process of 
 the court at tlie time of trial, without his testimony there was no legal 
 proof that the barilla was ever delivered to the prisoner or the mixture 
 received from him. But there being evidence that the barilla was 
 ground at the prisoner's mill, by his order, he being sometimes present, 
 and a bill of the expense of grinding having been made out and pre- 
 sented by liim, and the money received by him, there being also evi- 
 dence tending strongly to show that he had practised a fraud upon the 
 barilla, the objection was overruled ; and whether the mixture was 
 accidental or fraudulent, and whether it was caused by the prisoner or 
 not, were questions left to the jury to decide, upon a great deal of cir- 
 cumstantial evidence, no person having seen him do it, and the laborei 
 who had the immediate charge of the grinding having sworn that no 
 mixture was made except what was accidental. 
 
 It was likewise contended, that supposing the facts to be as the evi- 
 dence on the part of the government tended to prove them, the case 
 made out was not larceny but only a breach of trust, or at most a fraud, 
 with which the prisoner was not charged in the indictment. On this 
 point the jury were instructed that if they were satisfied from the evi- 
 dence that the prisoner had taken from the parcel of barilla any quan- 
 tity with a view to convert it to his own use, introducing into the mass 
 an article of inferior value for the purpose of concealing the fraud, he 
 was guilty of larceny. 
 
 ^ The caption of the indictment is omitted.
 
 638 COMMONWEALTH V. JAMES. [CHAP. VIII. 
 
 The jury having found a verdict against the prisoner, he moved for a 
 new trial on account of these directions of the judge. -^ 
 
 Putnam, J., delivered the opinion of the court. 
 
 To constitute the crime of larcen}', there must be a felonious taking 
 and carrying awa}' of the goods of another. It is supposed to be vi et 
 armis, invito domino. But actual violence is not necessary ; fraud 
 may supply' the place of force. 
 
 The jurN' have found that the defendant took the goods with an intent 
 to steal them ; and the verdict is well warranted, if at the time the 
 defendant took them, the}' were not lawfuU}' in his possession with tlie 
 consent of the owner, according to a subsisting special contract, in con- 
 sequence of an original delivery obtained without fraud. If that was 
 the case, the inference which the counsel for the defendant draw would 
 follow, that such a taking would not be felony but a mere breach of 
 trust, for which a civil action would He, but concerning which the pub- 
 lic have no right to inquire by indictment. 
 
 The counsel for the defendant have referred us to 1.'3 Ed. IV., fol. 9, 
 as the authority upon this point. The case was as follows.'^ 
 
 I have been thus minute in examining this case, as it is referred to as 
 the foundation upon which many subsequent decisions rest. It will be 
 perceived that here may be found the distinctions which are recognized 
 in the text books upon this subject. Thus, if the party obtain the 
 delivery of the goods originall}' without an intent to steal, a subsequent 
 conversion of them to his own use while the contract subsisted would 
 not be felony ; but if the original intent was to steal, and the means 
 used to obtain the delivery were merely colorable, a taking under such 
 circumstances would be felon\'. So if the goods were delivered origi- 
 nali}' upon a special contract, which is determined b\' the fraudulent 
 act of him to whom the}' were delivered, or b\' the completion of the 
 contract, a taking a^dmo furandi afterwards should be adjudged to be 
 felony. 
 
 In the application of these general rules to the cases which arise, it 
 is obvious that shades of difference, like the colors of the rainbow, so 
 nearl}- approach each other as to render it extremely difficult to dis- 
 criminate them with satisfactory precision. The humane rule of the 
 law is, that in cases of doubt the inclination should be in favor of the 
 defendant. The seeming, perhaps real, contradictions to be met with 
 in the English decisions may have been influenced b}' the desire to save 
 human life. 
 
 The case of Rex v. Channel, 2 Str. 793, cited for the defendant, was 
 an indictment against a miller employed to grind wheat, stating that 
 he with force and arms vnlmofidly did take and detain part of it. 
 The indictment was held bad upon demurrer. The reasons assigned in 
 the book are, that there was no actual force laid and that this was a 
 
 1 Arguments of counsel and part of the opinion not relating to the question of 
 larceny, have been omitted. 
 
 2 The learned judge here stated the Carrier's case, supra.
 
 SECT. III.] COMMONWEALTH V. JAMES. 639 
 
 matter of a private nature -, but a better reason seems to us to have 
 been that tliere was no averment that the defendant took the wheat 
 JhIo?iiouslij. 
 
 The case of The King v. Ha^'nes, cited for the defendant from 4 M. 
 & S. 214, was an indictment for a fraud asfainst a miller for delivering 
 oatmeal and burle\- instead of wheat which was sent to be ground. Jt 
 is not for a felon}-. The court thought no indictable offence was !<et 
 forth. The question whether if the miller had taken an}- of the corn, 
 which was sent to be ground, tvith an intent to steal it, was not then 
 under consideration. 
 
 In the case at bar, the goods came lawfnll}- into the hands of the 
 defendant bj- the delivery of the owner. If he is to be convicted, it 
 must be on the ground that he took the goods as a felon after the spe- 
 cial contract was determined.^ 
 
 In Kelj-ng, 35. a silk throwster had men to work in his own house, 
 and delivered silk to one of them to work, and the workman stole away 
 part of it ; and it was held to be felony notwithstanding the deliveiy. 
 East, in his Crown Law, supposes that if the silk had been delivered to 
 be carried to the house of the workman, and he had there converted a 
 part of it to his own use, it could not have been felony ; but that as it 
 was to be worked up in the house of the owner, it might be considered 
 as never in fact out of his possession. But Kelyng seems to put the 
 case upon the ground of the special contract, " that the silk was deliv- 
 ered to him only to work, and so the entire propert}- remained in the 
 
 owner." 
 
 But whatever may be the true ground of decision in that case, there 
 is a case in 1 Roll. Abr. 73, pi. 16, which is recognized as good law by 
 Hawkins, East, and other writers, which is very applicable to the case 
 at bar. "If a man sa^-s to a miller who keeps a corn mill, thou hast 
 stolen three pecks of meal, an action lies ; for althougli the corn was 
 delivered to him to grind, nevertheless if he steal it, it is felony, being 
 taken from the rest." Langley v. Bradshawe, in Error, 8 Car. B. R. 
 That decision proceeded upon the ground of a determination of the 
 privity of the bailment. Hawkins observes (l)k. i. c. 33, § 4) that such 
 possession of a part distinct from the whole was gained by wrong and 
 not delivered by the owner ; and also, that it was obtained baseh', 
 fraudulently, and clandestinelv. 
 
 This remark is peculiarly applicable to the case at bar ; for there is 
 no evidence that the owner intended to divest himself of his property 
 by the delivering of it to the defendant. The defendant did not pursue 
 the purpose for which it was delivered to him, but separated a part from 
 the rest, for his own use, without pretence of title ; and by that act the 
 contract was determined. From thenceforward the legal possession 
 was in the owner, and a taking of the part so fraud ulentl}- separated 
 from the rest, animo furandi, must be considered as larcen}'. 
 
 ^ The learned judge here stated the case of Rex v. Charlewood, 2 East P. C. 689. — 
 Ed.
 
 640 REX V. SHARPLESS. [CHAP. VIII. 
 
 SECTION IV. 
 
 Taking with Consent. 
 
 (a) What Constitutes Consent. 
 
 EEX V. SHARPLESS. 
 Ckown Case Reserved. 1772. 
 
 [Reported Leach (Ath ed.), 92.] 
 
 At the Old Bailey in Ma}- Session, 1772, John Sharpless and Samuel 
 Greatrix were convicted before Mr. Justice Gould, present Mr. Baron 
 Adams, of stealing six pair of silk stockings, the property- of Owen 
 Hudson ; but a doubt arising whether the offence was not rather a 
 fraud than a felony-, the judgment was respited, and the question 
 referred to the consideration of the judges upon the following case : 
 
 On the 14th March, 1772, Samuel Greatrix, in the character of 
 servant to John Sharpless, left a note at the shop of Mr. Owen 
 Hudson, a hosier in Bridge Street, Westminster, desiring that he 
 would send an assortment of silk stockings to his master's lodgings, at 
 the Red Lamp in Queen Square. The hosier took a variety of silk 
 stockings according to the direction. Greatrix opened the door to him, 
 and introduced him into a parlor, where Sharpless was sitting in a 
 dressing-gown, his hair just dressed, and rather more powder all over 
 his face than there was any necessity for. Mr. Hudson unfolded his 
 wares, and Sharpless looked out three pair of colored and three pair 
 of white silk stockings, the price of which, Mr. Hudson told him, was 
 14s. a pair. Sharpless then desired Hudson to fetch some silk pieces 
 for breeches, and some black silk stockings with French clocks. 
 Hudson hung the six pair of stockings which Sharpless had looked 
 out, on the back of a chair, and went home for the other goods ; but no 
 positive agreement had taken place respecting the stockings. During 
 Hudson's absence Sharpless and Greatrix decamped with the six pair 
 of stockings, which were proved to have been afterwards pawned by 
 Sharpless and one Dunbar, an accomplice in some other transactions 
 of the same kind, for which the prisoners were indicted. 
 
 The judges were of opinion that the conviction was right ; for the 
 whole of the prisoners' conduct manifested an original and preconcerted 
 design to obtain a tortious possession of the property. The verdict of 
 tTie jury imports that in their belief the evil intention preceded the 
 leaving of the goods ; but, independent of their verdict, there does not 
 appear a sufficient delivery to change the possession of the property.^ 
 
 1 Ace. U. S. V. Rodgers, 1 Mack. 419. — Ed.
 
 SECT. IV.] REGINA V. EDWARDS. 't ' 641 
 
 r 
 
 REGINA V. LOVELL. 
 Crown Case Reserved. 1881. y 
 
 [Reported 8 Queen's Bench Division, 185.] 
 
 The following case was stated for the opinion of this court by the 
 Chairman of the W orcestersliire Quarter vScssions : — 
 
 The prisoner was tried before me at the last Worcestershire Quarter 
 Sessions on an indictment which charged him in the first count with 
 stealing the sum of bs. Gc/., the property of P^liza Grigg, and in the 
 second count with demanding with menaces from the said Eliza Grio-o- 
 .the sum of 5s. Qd. with intent to steal the same. The facts were these : 
 The prisoner was a travelling grinder. He ground two pairs of scis- 
 sors for the prosecutrix, for which he charged her fourpence. She then 
 handed him six knives to grind. He ground them and demanded 
 5s. 6J. for the work. She refused to pay the amount on the ground 
 that the charge was excessive. The prisoner then assumed a menacing 
 attitude, kneeling on one knee, and threatened prosecutrix, saying, 
 ''You had better pay me, or it will be worse for you," and " I will 
 make you pay." The prosecutrix was frightened and in consequence 
 of her fears gave the prisoner the sura demanded. Evidence was given 
 that the trade charge for grinding the six knives would be Is. 3cZ. 
 
 It was contended for the prisoner that as some money was due, the 
 question rested simply on a quantum meruit^ and that there was no 
 larcen}' or menacing demand with intent to steal. 
 
 I overruled the objection and directed the jui-y on the authority of 
 Regina v. M'Grath, Law Rep. 1 C. C. R. 205, that if the money was 
 obtained by frightening the owner, the prisoner was guilty of larceny. / ^ 
 
 The jury found that the money was obtained from the prosecutrix by 
 menaces and that the prisoner was guilty. 
 
 I reserved for the consideration of this court the question whether 
 upon the facts stated he was properly convicted. 
 
 Per Curiam. The conviction in this case was right. Regina v. 
 M'Grath is conclusive of the matter.^ 
 
 REGINA V. EDWARDS. 
 
 Crown Case Reserved. 1877. 
 
 [Reported 13 Cox C. C. 384.] 
 
 The prisoners were tried at the West Kent Quarter Sessions, held at 
 Maidstone, on the 5th of January, 1877, on an indictment charging 
 
 1 Ace. Reg. V. MacGrath, 11 Cox C. C. 347 ; Reg. v. Hazell, 11 Cox C. C. 597; 
 State V. Bryant, 74 N. C. 124. See U. S. v. Murphy, McA. & M. 375. —Ed.
 
 642 REGINA V. EDWARDS. [CHAP. "VIII. 
 
 them with stealing three dead pigs, the property of Sir William Hart 
 Dyke, Bart. 
 
 The evidence was to the following effect : The three pigs in question 
 having been bitten b}' a mad dog. Sir William Hart Dyke, to whom 
 the}' belonged, directed his steward to shoot them. The steward 
 thereupon shot them each through the head and ordered a man named 
 Pavlis to bury them behind the barn. Tlie steward stated that he had 
 no intention of digging them up again or of making an}- use of tliem. 
 Paylis buried the pigs, pursuant to directions, behind the barn on land 
 belonging to Sir William Hart Dyke, in a place where a brake-stack 
 is usuall}' placed. The hole in which the pigs were buried was three 
 feet or more deep, and the soil was trodden in over them. 
 
 The prisoner Edwards was employed to help Paylis to bur}- the pigs. 
 Edwards was seen to be covering the pigs with brakes, and in answer 
 to Paylis's question why he did so, said that it would keep the water 
 out, and it was as well to bury them " clean and decent." 
 
 The two prisoners went the same evening and dug up the pigs, and 
 took them to the railwa}* station, covered up in sacking, with a state- 
 ment that the}' were three sheep, and sent them off for sale to a sales- 
 man in the London Meat Market, where they were sold for £9 3s. 9f/., 
 whicli was paid to the prisoners for them. 
 
 The counsel for the prisoners submitted that there was no evidence 
 in support of the charge to go to the jury, on the following grounds : 
 firstly, that the property w-as not proved as laid in the indictment, as 
 Sir William Hart Dyke had abandoned his property in the pigs ; 
 secondly, that under the circumstances the buried pigs were of no 
 value to the prosecutor ; an 1, thirdly, that under the circumstances 
 the buried pigs were attached to the soil, and could not be the subject 
 of larceny. 
 
 The Chairman, however, thought that the case was one for the jury, 
 and directed them, as to the first point, tliat in his opinion th ere ha d 
 been no abandonment, as Sir AVilliam's intention was to prevent. tUfi. 
 pigs being made any use of; but that if the jury were of opinion that 
 Ee had abandoned the property they should acquit the prisoners. He 
 also told the jury that he thought there was nothing in the other two 
 objections. 
 
 The jury found the prisoners guilty. 
 
 The question for the consideration of the court is whether, having 
 reference to the objections taken by prisoners' counsel, there was evi- 
 dence on which the jury were justified is convicting the prisoners of 
 larceny. 
 
 If the answer to this question be in the negative, then the conviction 
 to be quashed, otherwise affirmed. 
 
 No counsel appeared to argue on either side. 
 
 By the Court : Conviction affirmed.
 
 SECT. IV.] KEGINA V. HANDS. . 643 
 
 REGINA V. HANDS. 
 Ckown Case Reserved. 1887. 
 
 [Reported 16 Cor C. C. 188.] 
 
 Case reserved by the Quarter Sessions for the Count}' of Gloucestci 
 as follows : — 
 
 Prisoners Hands and Phelps were severally indicted for that on the 
 29th day of November, 1886, they did feloniously steal, take, and cany 
 away one cigarette, of the goods and chattels of Edward Sheuton, 
 against the peace of our said Lad}' the Queen. 
 
 Prisoner Jenner w^as indicted for an attempt to steal, etc. 
 Prisoners Jenner and Phelps pleaded guilty. 
 
 Prisoner Henry Hands pleaded not guilt}- and was given in charge to 
 the jury. 
 
 This is a case of larcen}^ from what is known as an " automatic box," 
 and the circumstances are as follows : — 
 
 Mr. Edward Shenton is the lessee of the Assemblj- Rooms at Chel- 
 tenham, and has fixed against the wall of the passage leading from the 
 Hiuh Street to the rooms an " automatic box." 
 
 This box presents the appearance of a cube of about eight or ten 
 inches, and in the upper right-hand corner (facing the operator) of the 
 front face there is a horizontal slit, or opening, of sufficient size to admit 
 a penny piece. 
 
 In the centre of the face is a projecting button or knob about the 
 size of a shilling. 
 
 In the lower left-hand corner is a horizontal slit, or opening, of suffi- 
 cient size to allov.- of the exit of a cigarette. 
 
 There is an inscrii)tion on the face of the box: " Only pennies, not 
 halfpennies." 
 
 Also : " To obtain an Egyptain Beauties cigarette, place a penny in 
 the box and push the knob as far as it will go." 
 
 If these directions are followed a cigarette will be ejected from the 
 lower slit on to a bracket placed to receive it. 
 
 The box is the property of the Automatic Box Company. The cig- 
 arettes with which it was charged belonged to Mr. Shenton. 
 
 For some time past Mr. Shenton has found on clearing the box, 
 which he did once or twice a day, that a large number of metal disks 
 (brass and lead) of the size and shape of a penny had been put in, and 
 a corresponding number of cigarettes had been taken out. 
 
 In consequence of this discovery a watch was set upon the box, and 
 upon the day named in the indictment, the box having been pi-eviously 
 cleared, two gentlemen were seen to go to it ; each put something in 
 and each took a cigarette as it appeared.
 
 644 - EEGINA V. HANDS. [CHAP. VIII. 
 
 The box was then examined and found to contain one English penny 
 and one French penn}-. These coins were left in. The box was locked 
 and the watch was again set. 
 
 Shortly after this, three lads (afterwards proved to be the three pris- 
 oners) were seen to come to the entrance of the passage. One of them 
 oame in, went to the box, put something in, obtained a cigarette, and 
 then rejoined tlie other two at the entrance. This was repeated a 
 second time. Tlie third time it was observed that the box would not 
 ivork, and while the lad, who afterwards was found to be the prisoner 
 •^enner, was pushing at the knob the watchman came from his place of 
 concealment and put his hand upon him. 
 
 The box was tlien opened and a piece of lead was discovered stuck 
 \n the " valve," which had the effect of preventing the machinery of the 
 box from working. 
 
 It was then found that the box contained (besides the English and 
 French pennies already' mentioned) two disks of brass about the size 
 nnd shape of a penny. 
 
 No other coin or metal piece was found in the box, and no one (but 
 *,he tliree lads as above mentioned) had approached it after the two 
 gentlemen who had put in the English and French pennies. 
 
 The prisoner Jenner was given in charge to the police, and the two 
 *)ther prisoners were subsequent!}' apprehended. 
 
 Upon being brought together at the police station the prisoners all 
 made statements more or less implicating themselves and each other. 
 
 The prisoner Hands said: "Me and Jenner met Phelps about 7.45 
 V. M. Phelps said : ' I want to go to Dodwell's.' I did not ga and we 
 went down into the High Street. Phelps and Jenner stopped by the 
 Assembly Rooms and went in ; I remained outside. I believe Jenner 
 was caught at the box. Mr. Shenton's man took him inside. I after- 
 wards put a penny in the box and had a cigarette myself. The pieces 
 of brass produced are cut in our shop, the blacksmith's sliop at Mr. 
 Marshall's." 
 
 In leaving the case to the jury the learned chairman told them that 
 they would have to consider: First, was there a theft committed ; that 
 is, was Mr. Shenton unlawfully deprived of his property without his 
 knowledge or consent? Secondly, if that were so, were they satisfied 
 that the prisoner (Hands) took any part in the robbery? He also told 
 tliem that if they thought that the prisoner was one of the three lads 
 wlio came to the entrance of the passage, and that he was there with the 
 others for the common purpose of unlawfully taking the cigarettes from 
 the box ; or that he afterwards partook of the proceeds of the robberj- ; 
 or that he had taken a part in making the disks, knowing for what 
 purpose they were to be used, — that they would be justified in find- 
 ing him guilt}' although he might not actually have put the disks into 
 the box or have taken out a cigarette. 
 
 The jur}' found the prisoner (Hands) guilty, and upon motion in ar- 
 rest of judgment on the ground that " the facts as disclosed by the evi-
 
 SECT. IV.] MITCHUM V. STATE. 645 
 
 dence were not sufficient to constitute a larceu}-," all the prisoners were 
 allowed to stand out on bail until the next (Quarter Sessions. 
 
 The question for the court was whether the facts as disclosed bj' the 
 evidence were sufficient to constitute a larceny. 
 
 No one appeared on either side. 
 
 Lord Coleridge, C. J. In tliis case a person was indicted for coraA 
 niitting a larceny from what is known as an " automatic box," which * 
 was so constructed that if you put a penny into it and pushed a knob 
 in accordance with the directions on the box a cigarette was ejected on 
 to a bracket and presented to the giver of the penny. Under these 
 circumstances there is no doubt that the prisoners put in the box a 
 piece of metal which was of no value, but which produced the same 
 effect as the placing a penu}' in the box produced. A cigarette was j- 
 ejected, which the prisoners appropriated ; and in a case of that class f 
 it appears to me there clearly was larcen}-. The means by which the 
 cigarette was made to come out of the box were fraudulent and the 
 cigarette so made to come out was appropriated. It is perhaps as well 
 to say that the learned chairman somewhat improperly- left the question 
 to the jur}- . He told them that if they thought that the prisoner Hands 
 was one of the three lads who came to the entrance of the passage and 
 that he was there with the others for the common purpose of unlawfully 
 taking the cigarettes from the box, or that he afterwards partook of the 
 proceeds of the robbery, they would be justified in finding him guilty, 
 — he did not say larcenously or feloniouslj' ; and he further directed 
 them that if the}- thought the prisoner had taken a part in making the 
 disks, knowing for what purpose they were to be used, they would be 
 justified in finding him guilty although he might not actually have put 
 the disks into the box or have taken out a cigarette. Now I am not 
 quite sure that simply the fact of doing an unlawful thing, as joining in 
 the manufacture of a disk that some one else was to use, would make 
 him guilty of larceny. He might be guilty of something else, but I 
 doubt very much whether he could be convicted of larceny. As upon 
 the facts of the case, however, I do not think that the jury could have 
 been misled, and as upon the facts there was undoubtedly a larceny ' 
 committed, I am not disposed to set aside the conviction. ^ 
 
 Pollock, B., Stephen, Mathew, and Wills, JJ., concurred. 
 
 Conviction affirmed^ \ 
 
 MITCHUM V. STATE. 
 
 Supreme Court of Alabama. 1871. 
 
 ^Reported 45 Alabama, 29.] 
 
 Appeal from Circuit Court of Shelby. Tried before Hon. Charles 
 Pelham. The facts material to the point decided will be found in the 
 opinion.
 
 646 MITCHUM V. STATE. fCHAP. VIII. 
 
 Cobb & Lewis, for appellant. The testimon}' shows that the 
 matches were placed upon the counter for the use of the public, and 
 the accommodation of the public, that any and every person had the 
 right to take the matches without limit, to light their pipes and cigars. 
 The defendant certainly had the right to take tlie matches to light his 
 pipe or cigar, and he had the right to use the entire box in this way. 
 The fact that he may have used them for a different purpose would not 
 make the taking felonious. There can be no larceny where the owner 
 consents to the taking. The taking must be without authority and 
 ao-ainst the will of the owner. If the taking is not felonious, although 
 the property may be converted to an improper use, yet the defendant 
 is not guilt}' of larceny. 
 
 John W. A. Sanford, Attorney General, contra. 
 
 Saffold, J. The defendant was indicted for petit larceny. On 
 the trial the evidence material to the exception taken by him was that 
 the box of matches, tlie subject of the larceny, was placed on the 
 counter of the store, to be used by the public in lighting their pipes and 
 cigars in the room, and for their accommodation, and was taken there- 
 from by the defendant. The court was requested by the prisoner to 
 charge the jury that if the matches were placed on the counter of the 
 store-house for the use of customers, or the public, and they were 
 taken while there for such use, the defendant was not guilty. The 
 charge was refused, and the defendant excepted. 
 
 Larceny may be committed of property under the circumstances 
 attached to the box of matches. The owner had not abandoned his 
 right to them. They could only be appropriated in a particular manner 
 and iu a very limited quantity with his consent. Taking them by the 
 ITdxful without felonious intent would have been a trespass, and with 
 it^ a larceny. The ownership was sufficiently proved. 
 The judgment is affirmed.
 
 SECT. IV.] KEX V. PEAK. 647 
 
 SECTION IV (continued). 
 
 Taking with Consent. 
 
 (h) Larceny by Trick. 
 
 REX V. PEAR. 
 Crown Case Reserved. 1779. / 
 
 {^Reported 2 East P. C. 685.] 
 
 John Pear was indicted for stealing a black mare, the property oi^ 
 Samuel Finch. On the 2d eTul}', 1779, the prisoner hired the mare of ^ 
 Finch, who lived in London, for that day, in order to go to Sutton in 
 SufFe}", and told him that he should return at eight o'clock the same / - 
 
 evening. Finch, before he let the prisoner the mare, inquired of him L / 
 where he lived, and whether he were a housekeeper ; to which he f 
 answered, that he lived at No. 25 in King Street, and was onh' a lodger. \ 
 The prisoner not returning as he had promised, the prosecutor went \ 
 the next day to inquire for him according to the direction he had given ; J 
 but no such person was to be found. It turned out that the prisoner / 
 had in the afternoon of the same 2d of July sold the mai-e in Smithfield. 
 In summing np this evidence to the jury, Mr. Justice Ashhurst, who 
 tried the prisoner, told them that if they were of opinion that the pris- ^q 
 oner hired the mare with an intent of taking the journey mentioned, 
 and" afterwards changed that intention, then as she was sold whilst the 
 pnvity of contract subsisted, they ought to acquit the prisoner. But 
 iflhey were of opinion that the journey was a mere pretence to get the 
 jtnari^Tnto his possession, and that he hired her with an intention of 
 stealing Her, they ought to find him guilty : and he would save the 
 point for the opinion of tlie iudges. The jury found the prisoner guilty. 
 This case underwent a great deal of discussion, and the judges delivered 
 tlieir opinion seriatim upon it, on the 4th February, 1780, at Lord C. 
 J. Ue Grey's house ; and on the 2^d of the same month — 
 
 Mr. Baron Perryn delivered their opinion at the O. B. as follows : * 
 (After stating the indictment, evidence, and finding of the jury as above 
 
 1 Ace. Cora. V. Brown. 4 Mass. 580: Nichols v. People, 17 N. Y. 114. — Ed. 
 
 2 This juds^meut was settled and approved by several of the judges before it was 
 delivered. (East's note.i
 
 648 KEX V. PEi.ll. [chap. VIII. 
 
 stated.) This case has been maturely considered by all the judges, 
 and eleven ^ of them, who met for the purpose, delivered their opinions 
 at large upon the subject : seven of them held the offence to be a clear 
 felony ; two of them were of opinion that it was not felony ; and the 
 other two entertained great doubts at the last; which doubts were 
 founded upon two statutes which he should take notice of. Three out 
 of the four dissenting judges agreed with the seven, that by the princi- 
 ples of the common law this was felony. But the doubts and opinions 
 of those four judges were founded chiefly on the statutes 33 H. 8 and 30 
 G. 2, against obtaining goods by false tokens or false pretences. Two 
 of the judges thought that as the delivery of the mare was obtained 
 from the owner by means of asserting that which was false, viz. that 
 the prisoner wanted to go a journey which he never intended to take 
 at all ; and as the two statutes before mentioned had made the oftence 
 of obtaining goods by false tokens or false pretences punishable as 
 a misdemeanor only, and the stat. 33 H. 8, had distinguished the 
 case of obtaining goods by false tokens from the case of obtaining 
 goods by stealth ; they were bound by those statutes to say, that the 
 prisoner s offence was not felony. One of them also held that this 
 was not felony by the common law ; because there was no actual tak- 
 ing of the mare by the prisoner. But ten out of the eleven judges. 
 hekl it to be clear that the offence would have been felony by the 
 common law, if the statutes had never existed ; and seven of them held 
 that it was not within or at all affected by the statutes of H. 8 or G. 2. 
 That larceny was defined by Lord Coke to mean a felonious and fraud- 
 ulent taking and carrying away of the goods of another. But it was- 
 settled by old authorities, that the taking need not be by force. If a 
 carrier or porter received goods to carry from one place to another, and 
 he opened the pack and sold them, that was felony ; yet in that case 
 there was no taking by force, but on a delivery by the owner. That, 
 the reason assigned for the determination in Kel. 82 was because the 
 opening and disposing of them declared that his intent originally was 
 not to take the goods upon the agreement and contract of the party, 
 but only with a design of stealing them. So if A. cheapened goods of 
 B.'s, and B. delivered them to A. to look at, and A. ran away with them, 
 this was felony by the apparent intent of A. T. Ray. 276 ; Kel. 82. So 
 if a horse were upon sale, and the owner let the thief mount him in 
 order to try him, and the thief rode away with him, it was felony. Kel. 
 82. So in the case of one Tunnard, tried at the O. B. in October- 
 Sessions, 1729, who was indicted for stealing a brown mare of Henry 
 Smith's : and upon the evidence it appeared, that Smith lived in the 
 Isle of Ely, and lent Tunnard the mare to ride three miles ; but he, 
 instead of riding three miles only, rode her up to London and sold her : 
 this was holden to be felony. And Lord C. J. Raymond, who tried 
 
 1 Mr. Justice Blackstone, the other judge, who was absent on account of illness, 
 always held that it was felony. (East'o note. )
 
 SECT. IV.] REX V. PEAR. 649 
 
 the prisoner, left it to the jur3' to consider, Whether Tunnard rode away 
 with her with an intent to steal her? and tlie jury found him giult3-. 
 That here the same directions were given to the jurj' by the learned 
 judge who tried the prisoner, and the jurj' had given the same verdict. 
 That even in the case of burglary, which the law defined to be the 
 breaking into a house in the night time with intent to commit felony, if 
 a man procured the door of a house to be opened by fraud, and bj' that 
 means entered into the house through the door-way without any actual 
 breaking, it had been adjudged to be burglary. That in all these cases 
 the intention was the thing chiefly regarded, and fraud supplied the 
 place of force. That what was the intention was a fact, which in every 
 case must be left upon the evidence to the sound judgment of a jury. 
 Anttin this case the jury had found that at the time when the prisoner 
 obtained the possession of the mare, he intended to steal her. That 
 the obtaining the possession of the mare, and afterwards disposing of 
 her in tlie manner stated, was in the construction of law such a takiuo- 
 as would have made the prisoner liable to an action of trespass at the 
 suit of the owner, if he had not intended to steal her. For she was 
 delivei-ed to the prisoner for a special purpose only, viz. to go to Sutton, 
 which he never intended to do, but immediately sold her. That in tliis 
 light the case would be similar to what was laid down by Littleton, sect. 
 71, who says, " If 1 lend to one my sheep to dung his land, or my 
 oxen to plough the land, and he killeth my cattle, I may have trespass 
 notwithstanding the lending." That if in such a case trespass would 
 have lain, there could be no doubt but that in this case, where the 
 felonious intent at the time of obtainiug the possession was found by 
 the jury, that it was felony" by tiie common law. That ten of the 
 judges out of the eleven, therefore, were of opinion, that^ if a person 
 obtained the delivery of a thing by fraud and falsehood, intending at 
 the time that he so obtained the delivery to steal it ; upon the principle 
 oT the common law and the adjudged cases which had been mentioned, 
 if the statutes had not existed, his offence would be felon}-.^ Tliat the 
 iiext question was, Whether this offence were within or at all affected 
 by the statutes of H. S and G. 2.- Seven of the judges were of 
 opinion that it was not. That the stat. of H. 8 was confined to the 
 
 1 On the debate of this case, Ashurst, J., said, " Wlierever tliere is a real and bona 
 fide CMiitract and a delivery, and afterwards the goods are converted to tlie party's 
 own use, that is not felony. But if there be no real and bona fide contract, if the 
 understanding of the parties be not the same, the contract is a mere pretence, and the 
 taking is a taking with intent to commit felony. (East's note.) 
 
 2 On the debate in this case Eyre, B., adverting to these statutes, said he doubted 
 if there were not a distinction in this respect between the owner's parting with the 
 possession and with the property in the thing delivered. That where goods were de- 
 livered upon a false token, and the owner meant to part with the property absolutely 
 and never expected to have the goods returned again, it might be difficult to reach the 
 case otherwise than through the statutes ; aliter, wherehe parted with the possession 
 only: for there if the possession were obtained by fraud, and not taken according to 
 the agreement ; it was on the whole a taking against the will of the owner ; and if 
 done animo furandi, it was felony. (MS. Buller, J.)
 
 650 EEGINA V. BUNCE. [CHAP. VIII. 
 
 cases of obtaining goods in other men's names, by false tokens or 
 counterfeit letters, made in any other man's name. The stat. of G. 
 2 extended tliut law to all cases where goods were obtained by false 
 pretences of any kind. But both these statutes were coiitined to cases 
 where credit was obtained in the name of a third person ; and did not 
 extend to cases where a man. on his own account, got goods with an 
 intention to steal them. That besides, the seven judges held that 
 neither of those statutes were intended to mitigate the common law, 
 or to make that a less offence which was a greater before. On the 
 contrary, the legislature, by those statutes, meant to inflict a severer 
 punishment in the cases of fraud than the common law had done. That 
 in many cases it was extremel}' difficult, and sometimes impossible to 
 prove what the offender's original intention was. The circumstances 
 evidencing a felonious intent, or the contrary, were so various, that 
 Hale, p. 509, says it is impossible to prescribe them ■, the}' must be left 
 to the consideration of a judge and jury. That where an original 
 felonious intent appeared, the statutes did not apply. Where no such 
 intent appeared, if the means mentioned in the statutes were made use 
 of, the legislature had made the offender answerable criminally, who 
 before by the common law of the land was only answerable civilly. 
 That in the prisoner's case the intention was apparent, and the jury 
 had rightly found that it was felonious. The crime then was felony, 
 and of a nature which the statute law had made punishable with, 
 death.^ 
 
 EEGINA V. BUNCE. 
 Oxford Assizes. 1859. 
 
 [lieported 1 Foster t^- Finlason, 523.] 
 
 The prisoner, a gypsy woman, surrendered to take her trial upon a 
 charge of stealing £10 9s. 4fZ., and various articles, the property of 
 John Prior, at Witne}-, on the 13th of January, 1859. 
 
 It had been usual, on this circuit, to charge offences, of this nature 
 as obtaining mone}^ by false pretences; but on this occasion, in defer- 
 ence to a suggestion thrown out by Crompton, J., in addressing the grand 
 jury, the offence was charged as one of larceny, as consisting in obtain- 
 ing possession of the goods hy a trick or fraud. 
 
 R. Sawyer appeared for the prosecution. 
 
 Griffits defended the prisoner. 
 
 The prisoner was a gj'ps}- woman who had succeeded in getting a 
 
 1 Acr. Rex v. Semple, Leach, 691 ; State j;. Woodruff, 47 Kas. 151 ; Justices v. People, 
 90 N. Y. 12 ; State v. Gorman, 2 N. & McC. 90; Starkie v. Com., 7 Leigh, 752. Contra 
 Felter v. State, 9 Yer^. 397 ; but .see Defrese v. State, 3 Heisk. 53 ; HoU v. State, 6 
 Baxt. 522 (statutory). — Ed.
 
 SECT. IV.] KEGINA V. BUNCE. 651 
 
 large amount of property from the wife of the prosecutor, by pretend- 
 ing that she possessed supernatural powers and was able to procure 
 for her dupe the sum of £170. On tlie 12th of January last, tlie pris- 
 oner went to the house of the prosecutor (who was out), saw his wife, 
 and addressed her, saying, "•Mrs. Prior, you are looking very ill. I 
 have got something to tell you. There is some property left for you 
 that you have been cheated out of, and I can get it for 3'ou." The 
 prisoner then said that she had got a book, and she could raise the 
 spirits and lay them if Mrs. Prior would put half a crown on a certain 
 spot in the book which she pointed out. Mrs. Prior said to the pris- 
 oner that she had heard of such things, and she thought that spirits 
 could be raised, and was induced to put some money in the book. 
 The prisoner went away, and returned the next daj-, and said she had 
 been working all night, and that her husband's mone^' would not do, 
 and she must have sovereigns ; and she then required her to give her 
 all the money she had got, and promised she would bring it back the 
 next Monday, and also the sum of £170, which she said belonged to 
 her. On these representations, the wife gave her all the money she 
 could get, amounting to £10 9s. 4(?. Mrs. Prior, who appeared to be 
 a very nervous woman, and afraid, even now, to look at the jjrisoner 
 in the dock, said she was so frightened at what the prisoner told her, 
 that she felt she must go and get the monej- she wanted, and that she 
 let her have it because she believed from what she said she could do 
 her good or evil and was so afraid of her. When Mrs. Prior gave the 
 prisoner the money, she required a shift to wrap the monej' up in, and 
 also Mrs. Prior's shawl. These were given her, on her promise to 
 return them on the Monday. The prisoner then wanted a cloth to 
 fasten it all up in, saying she must bury it. This was given, and also 
 Mrs. Prior's gold wedding-ring, a silver thimble, a brass ring, and five 
 old silver coins, the prisoner saying she must have everything Mrs. 
 Prior had got that was valuable. All these things were given to the 
 prisoner on her promise to bring them all back on the Monda}-, to- 
 gether with the £170, and to have a cup of tea. The prisoner was to 
 have £5 for her trouble. 8he never returned, and was taken into cus- 
 tody, on the 12th February, with Mrs. Prior's shawl upon her. On her 
 cross-examination, Mrs. Prior said the prisoner always came when her 
 husband was out, and that she had never told him anything about it. 
 A friend of the prisoner's had since returned £5 to the prosecutor, and 
 had promised £3 more. 
 
 Griffits submitted that there was no case for the jury. 
 
 Channell, B., after consulting Crompton, J., ruled that there was. 
 
 Griffits (to the jury) contended there was nothing to show that she 
 had got possession of the goods with a felonious intent, but only with a 
 view to practice her art as a witch, in which the prosecutrix, lil^e many 
 other people, was foolish enough to believe, and possibly the prisoner 
 may have believed. And if this was the original intention, then, 
 although it was afterwards altered, there would be no larceny.
 
 652 SMITH V. PEOPLE. [CHAP. VIII. 
 
 Channeix, B., to the juv}-. It is for you to sa}' whether or not the 
 prisoner obtained possession of the goods with a felonious intent. If 
 the original intention was as suggested, there would be no larceny j but 
 if it was a mere trick to get the goods with no intention to return them 
 it would be larceny.^ Verdict guilty . 
 
 SMITH V. PEOPLE. 
 Court of Appeals of New York. 1873. 
 
 {Reported 53 New York, 111. J 
 
 Error to the General Term of the Supreme Court in the first 
 judicial department to review judgment, afHrming judgment of the 
 Court of General Sessions in and for the city and county of New York, 
 entered upon a verdict convicting plaintiff in error of the crime of 
 grand larceny. 
 
 Upon the 19th day of July, 1872, the plaintiff in error called upon 
 one Sarah March and informed her that her husband, Charles March, 
 was arrested and locked up on a charge of striking a man over the head 
 with a chair, and that her husband had sent him to her to get some 
 money, twelve dollars, and unless she sent it he would be locked up all 
 night. Not having any money, and, upon the solicitation of the pri- 
 soner, believing his statement to be true, she gave him a watch, chain, 
 and a locket or cross, and two dollars in money, belonging to her 
 husliand, which propert}' he was to pawn and give the ticket and money 
 to her husband. The property was given to him and he left. The 
 statement of the prisoner was false. Charles March, the husband, 
 never had been arrested, never sent him for anv money, and did not 
 know him. The plaintiff in error appropriated the propert}' so obtained 
 to his own use. 
 
 The court charged the juiy, in substance, that if they believed the 
 evidence of the prosecution, and that the prisoner at the time of the 
 taking had the felonious intent to appropriate the property, it was 
 larceny, to which the prisoner's counsel excepted. The jury rendered 
 a verdict of guilty.^ 
 
 William F. Kintzing, for the plaintifl'in error. 
 
 Menjcwxin K. Phelps, for the defendants in error. 
 
 Allen, J. The accused obtained the custody of the chattels and 
 money of the prosecutor from his wife by a fraudulent device and trick, 
 and for a special purpose, connected with the falsely represented 
 necessities of the owner, with the felonious intent to appropriate the 
 same to his own use. He did not pawn or pledge the goods, as he 
 
 1 See Cantwell v. Peo. (111.), 28 N. E. 964. — Ed. 
 
 2 Arguments of counsel are omitted.
 
 SECT. IV.] SMITH V. PEOPLE. P53 
 
 proposed to do, but did appropriate the same to his own use, in 
 pursuance of the felonious intent with which he received them. 
 This constitutes the crime of larceny. The owner did not part with 
 the pr operty in the chattels, or transfer the legal possession. The ac- 
 cused had merely the custody ; the possession and ownership remain- 
 ing" in the original proprietor. The proposition is elementary that 
 larcenj' vaay be committed of goods obtained from the owner by 
 delivery, if it be done animo furandi. Per Cowen, J., Gary v. 
 Hotailing, 1 Hill, 311 ; Am. Crim. Law, by Wharton, § 1847, et seq. ; 
 Keg. V. Smith, 1 C. & K. 423 ; Reg. v. Beaman, 1 C. & M. 595 ; Reg. 
 V. Evans, id. 632. 
 
 The rule is, that when the delivery of goods is made for a certain 
 special and particular purpose, the possession is still supposed to reside, 
 not parted with, in the first proprietor. It is stated that if a watch- 
 maker steal a watch delivered him to clean, or if a person steals clothes 
 delivered for the purpose of being washed, or guineas delivered for the 
 purpose of being changed into half guineas, or a watch delivered for 
 the purpose of being pawned, the goods have been thought to remain 
 in the possession of the proprietor, and the taking them awaj' held to 
 be a felony. 1 Hawk. P. C 33, § 10 ; 2 Russell on Crimes, 22. A 
 distinction is made between a bare charge or special use of the goods, 
 and a general bailment ; and it is not larcen}' if the owner intends 
 to part with the propert}-, and deliver the possession absolutely, 
 although he has been induced to part with the goods b3- fraudulent 
 meaiis. If b}' trick or artifice the owner of property is induced to part 
 with the custody or naked possession to one who receives the property 
 animo furandi^ the owner still meaning to retain the right of property, 
 the taking will be larceny ; but if the owner part with not only the 
 possession, but the right of property also, the offence of the party 
 obtaining them will not be larceny, but that of obtaining goods by false 
 pretences. Ross v. People, 5 Hill, 294; Lewer v. Commonwealth, 15 
 S. & R. 93 ; 2 Russell on Crimes, 28. Here the jury have found the 
 intent to steal at the time of taking, which is all that is required to 
 constitute larceny, where the mere possession is obtained b}' fraud or 
 trick. Wilson k People, 39 N. Y. 459 ; People v. Call, 1 Den. 
 120; People v. McDonald, 43 N. Y. 61. 
 
 The conviction was right, and the judgment must be affirmed. 
 
 All concur. Judgment affirmed? 
 
 1 Ace. Soltau r. Gerdau, 119 N. Y. 380; State v. McRae, 111 N. C. 665; State v 
 Lindenthall, 5 Rich. 237. — Ed.
 
 654 COMMONWEALTH V. RUBIN. [CHAP. VIII. 
 
 COMMONWEALTH v. RUBIN. 
 
 Supreme Judicial Court of Massachusetts. 1896. 
 
 [Reported 165 Mass. 453.] 
 
 Holmes, J. The defendants have been convicted on a count for 
 larceny of a horse, the property and in the possession of one Perkins, 
 in Natick, in the county of Middlesex. The question presented by the 
 exceptions is whether the evidence justified a conviction. The horse 
 bad been bought for Perkins, and a bov had been engjaired bv Perkins's 
 servant to take it from the sale stable in Boston to Framingham. On 
 his way the bo}' fell in with the defendants driving, and the}- took him 
 into their wagon. While driving, they said the}- would deliver the 
 horse for him. He assented. They paid him what he was to receive 
 from Perkins, and he left the horse with them at Wellesley, in the 
 county of Norfolk. The defendants misappropriated the horse wlii^h 
 afterwards was found on their premises at Natick. The boy was 
 innocent. • 
 
 If the boy had converted the horse, inasmuch as it jhad been delivered 
 to him by a third person and had not reached its destination, the offence 
 would not have been larceny by reason of the ancient anomaly sanc- 
 tioned by Commonwealth v. King, 9 Gush. 204, and explained in Com- 
 monwealth V. Ryan, 155 Mass. 523. But that is in consequence of 
 the ambiguous attitude of the law toward his custody, which prevents 
 it from regarding his conversion as a trespass. There is no such 
 trouble when a third person converts the chattel. It is larceny equally 
 when he takes the thing from a bailee, t'rom a servant, or from the 
 owner himself. Commonwealth v. O'Hara, 10 Gray, 469. Common- 
 wealth tK Lawless, 103 Mass. 425. Commonwealth v. Sullivan, 104 
 Mass. 552. Of course the title had passed to Perkins, and for most 
 purposes the possession also, and this being so, either tliere is no ques- 
 tion of pleading or variance, or the statute disposes of it, if a larceny 
 is proved. Pub. Sts. c. 214, § 14. 
 
 But the horse was delivered to the defendants, and the question 
 remains whether their conduct falls under any recognized exception to 
 the requirement of a taking by trespass. One such exception is when 
 the possession of a chattel, but not the title, is gained l)y a trick or 
 fraud with intent to convert it. Commonwealth v. Barry, 124 Mass. 
 325. Commonwealth v. Lannan, 153 Mass. 287, 289. It may be 
 assumed that acceptance of a chattel upon a contract or promise, with 
 intent not to carry out the promise but to convert the chattel, is within 
 this exception. Commonwealth v. Barry, ubi supra. 2 Bish., Crim. 
 Law, (8th ed.) § 813. So that the question is narrowed to whether 
 there was any evidence of intent at the time when the defendants re- 
 ceived the horse, the only fact bearing upon the matter being what
 
 SECT. IV.] COMMONWEALTH V. RUBIN. 655 
 
 the}' did shortl}' afterwards. This has been settled, so far as precedent 
 can settle it, from very early days, although the principle has been 
 disguised in an arbitrary seeming form. The rule that, if a man abuse 
 an authority given him by the law, he becomes a trespasser ab initio^ 
 although now it looks like a rule of substantive law and is limited to a 
 certain class of cases, in its origin was only a rule of evidence by which, 
 when such rules were few and rude, the original intent was presumed 
 conclusively from the subsequent conduct. It seems to have applied 
 to all cases where intent was of importance. Hill, J., in Y. B. 11 Hen. 
 IV. 75, pi. 16; 13 Ed. IV. 9, pi. 5. The Six Carpenters' case, 8 Co. 
 Rep. 146 a, b. See Y. B. 9 Hen. VI. 29, pi. 34. (Compare as to bur- 
 glary, 1 Hale P. C. 559, 560; Stark. Cr. Pi. 177; 2 East P. C. 509, 
 510, 514.) This rule was mentioned in the well known case in which 
 it was decided that a carrier breaking bulk is guilty of felony : Y. B. 
 13 Ed. IV. 9, pi. 5 ; and in the time of Charles II. even was thought 
 to explain the decision there. J. Kel. 81, 82. It is true that this ex- 
 planation hardly can be accepted. 2 East P. C. 696. It was repu- 
 diated by the judges who decided the case. But seemingly the reason 
 for the repu'3iation was that at that time the intent of the bailee was 
 supposed to be. always immaterial, and that as yet, and indeed as late 
 as Lord Coke and Lord Hale, no exception had been made to the gen- 
 eral rule that delivery by the owner prevents a conversion from being 
 felonv. Y. B. 13 Ed. IV. 9, pi. 5. See 8 Co. Rep. 146 b ; 1 Hale P. 
 . ,C. 504; Y. B. 12 Ed. IV. 8, pL 20; 21 PM. IV. 75, 76, pi. 9. Prob- 
 ^ably the first suggestion that intent can be important when there is a 
 ■■"'bailment is in J. Kel. 81, 82, just cited, and there are man}- cases in 
 the past where the intent of the bailee was open to question but was 
 not tried : e. g. Raven's case, J. Kel. 24 ; Tunnard's case, 2 East P. 
 C. 687, 694. Since the law has changed or has been developed, the 
 carrier's case in 13 Ed. IV. 9, sometimes has tended to make confusion. 
 2 East P. C. 695-698, c. 16, § 115. The rule as to trespass ab mitio 
 having been held not to apply to bailments when the intent of the 
 bailee made no difference, still was not applied to them after the intent 
 was held material. In this way it became ossified and took on the 
 appearance of a limited and technical rule of a substantive law. See 
 Esty V. Wilmot, 15 Gray, 168; Smith v. Pierce, 110 Mass. 35, 38. 
 But since it has been settled that the intent may be decisive as to lar- 
 ceny, the less extreme and more rational proposition which led to the 
 technical rule, namely, that the subsequent conduct is some evidence 
 of the original intent, has been acted on frequently in England by 
 leavins; the case to the iurv when the whole evidence consisted of an 
 ambiguous receipt and a subsequent conversion. J. Kel. 81, 82. Pear's 
 case, 2 East P. C. 685, 687. The King v. Charlewood, 1 Leach (4th 
 ed.) 409 ; S. C. 2 East P. C. 689. Leigh's case, 2 East P. C. 694 ; S. 
 C. 1 Leach, (4th ed.) 411 note (a). Armstrong's case, 1 Lewin, 195. 
 Spence's case, 1 Lewin, 197. Rex v. Gilbert, 1 Moody C. C. 185. The
 
 656 REGINA V. MIDDLETON. [CHAP. VIII. 
 
 Queen v. Cole, 2 Cox C. C. 340. See also Chisser's case, T. Raytn. 275, 
 276, and 2 East P. C. 697, citing 2 MS. Sum. 233. Cases like those 
 mentioned in 1 Hawk. P. C. Larcenj-, c. 33, § 10, of a watchmaker steal- 
 ing a watch delivered to him to clean, and the like, cannot be explained 
 on the ground suggested, that the possession remains in the owner, 
 but it would seem must be accounted for on the same ground as the 
 last. See 2 East P. C. 683, 684, c. 16, § 110. 
 
 In the case at bar, the conversion followed hard upon the receipt of 
 the'' horse, and the inference is not unnatural that the intent existed 
 from the beginning, as it is proved to have existed a very short time 
 afterwards. There is the less cause for anxiety upon the point, in view 
 of the merel}' technical distinction between larceny and embezzlement. 
 
 Of course, if the defendants received the horse with felonious intent 
 in Norfolk, and carried it away into Middlesex, they could be indicted 
 in the latter county. Exceptions overruled. 
 
 *h 
 
 ■ SECTION IV (continued). 
 
 (c) Delivery by Mistake. 
 
 REGINA V. MIDDLETON. 
 
 Crown Case Reserved. 1873. 
 
 [Reported Law Reports, 2 Crown Cases Reserved, 38.] 
 
 Case stated by the Common Sergeant of London. 
 
 At the session of the Central Criminal Court held on Monday, the 
 23d of September, 1872, George Middleton was tried for feloniously 
 stealing certain mone}- to the amount of £8 16s. 10c?. of the moneys of 
 the Postmaster-General. 
 
 The ownership of the money was laid in other counts in the Queen 
 and in the mistress of the local post-office. 
 
 It was proved by the evidence that the prisoner was a depositor in a 
 post-oflSce savings-bank, in which a sum of lis. stood to his credit.
 
 SECT. IV.] REGINA V. MIDDLETON, 657 
 
 In accordance with the practice of the bank, he duly gave notice to 
 withdraw lO.s., stating in such notice the number of his depositor's book, 
 the name of tlie post-ollice, and the amount to be withdrawn. 
 
 A warrant for 10s. was duly issued to the prisoner, and a letter of 
 advice was duly sent to the post-office at Notting lldl to pay the pris- 
 oner 10s. He presented himself at tliat post-office and handed in his 
 depositors book and the warrant to the clerk, who, instead of referring 
 to the proper letter of advice for 10s., referred by mistake to another 
 letter of advice for £8 16s. lOcL, and placed upon the counter a £5 
 note, three sovereigns, a half-sovereign, and silver and copper, amount- 
 ino- altogether to £8 IGs. lOd. The clerk entered the amount paid, viz., 
 £8 16s. lOd. in the prisoner's depositor's book and stamped it, and the 
 prisoner took up the money and went away. 
 
 The mistake was afterwards discovered, and the prisoner was brought 
 back, and upon his being asked for his depositor's book, said he had 
 burnt it. Other evidence of the prisoner having had the money was ^ 
 given. 
 
 It was objected by counsel for the prisoner that there was no larceny, 
 because the clerk parted with the property and intended to do so, and 
 because the prisoner did not get possession by any fraud or trick. 
 
 The jury found that the prisoner had the animus furandi at the mo- 
 ment of taking the mone}- fro_m the counter, and that he knew the money 
 to be the money of the Postmaster-General when he took it up. 
 "^ A verdict of guilty was recorded, and the learned Common Sergeant 
 reserved for the opinion of the Court for Crown Cases Reserved the 
 question whether under the circumstances above disclosed the prisoner 
 was properly found guilty of larceny. 
 
 Nov. 23, 1872. The Court [Kelly, C. B. Martin, B., Brett, Grove, 
 and Quain, JJ.] reserved the case for the opinion of all the judges. 
 
 Jan. 25, 1873. The case was argued before Cockburn, C. J., Bovill, 
 C. J., Kelly, C. B., Martin, Bramwell, Pigott, and Cleasby, BB., 
 Blackburn, Keating, Mellor, Brett, Lush, Grove, Quain, Denman, and 
 Archibald, JJ. 
 
 No counsel appeared for the prisoner. 
 
 Sir J. D. Coleridge, AM. (JSIetcalfe and Slade with him), for the 
 prosecution. 
 
 The arguments and the cases cited sufficiently appear from the 
 judgments. 
 
 Jan. 28. Per Curiam. The majority of the judges think that the 
 conviction ought to be affirmed, for reasons to be stated hereafter. 
 
 June 7. The following judgments were delivered : — 
 
 BoviLL, C. J., read the judgment of Cockburn, C. J., Blackburn, 
 Mellor, Lush, Grove, Denman, and Archibald, JJ., as follows: ^ — 
 
 We agree that according to the decided cases it is no felon}' at com- 
 mon law to steal goods if the goods were alread}' lawfully in the pos- 
 
 * Part of this opinion is omitted.
 
 658 EEGINA V. MIDDLETON. [CHAP. VIII. 
 
 session of the thief; and that, therefore, at common law a bailee of 
 goods, or a person who finds goods lost, and not knowing or having the 
 moans of knowing whose they were, takes possession of them, is not 
 guilty oC larceny if he subsequently, with full knowledge and felonious 
 intention, converts them to his own use. 
 
 It is, to say the least, very doubtful whether this doctrine is either 
 wise or just; and the legislature, in the case of bailees, have by statute 
 enacted that bailees stealing goods, &c., shall be guilty of larceny, with- 
 out reference to the subtle exceptions engrafted by the cases on the old 
 law. But in such a case as the present there is no statute applicable, 
 and we have to apply the common law. 
 
 Now, we find that it has been often decided that where the true owner 
 did part with the physical possession of a chattel to the prisoner, and 
 therefore in one sense the taking of the possession was not against his 
 will, yet if it was proved that the prisoner from the beginning had the 
 intent to steal, and with that intent obtained the possession, it is suffi- 
 cient taking. We are not concerned at present to inquire whether 
 originally the judges ought to have introduced a distinction of this sort, 
 or ought to have left it to the legislature to correct the mischievous nar- 
 rowness of the common law, but only whether this distinction is not now 
 established, and we think it is. The cases on the subject are collected 
 in Russell on Crimes, 4th ed. vol. '2, p. 207 ; perhaps those that most 
 clearly raise the point are Rex v. Davenport, 2 Russell on Ci'imes, 4th 
 ed. at p. 201, and Rex v. Savage, 5 C. & P. 143, 2 Russell on Crimes, 
 4th ed. at p. 201. 
 
 In the present case the finding of the jury, that the prisoner, at the 
 moment of taking the mone}^ had the animus farandi and was aware 
 of the mistake, puts an end to all objection arising from the fact that 
 the clerk meant to part with the possession of the mone^'. 
 
 On the second question, namely, whether, assuming that the clerk 
 was to be considered as having all the authority of the owner, the in- 
 tention of the clerk (such as it was) to part with the property prevents 
 this from being larceny, there is more difficult}', and there is, in fact, a 
 serious difference of opinion, though the majorit}', as already stated, 
 think the conviction right. The reasons which lead us to this conclu- 
 sion are as follows : At common law the property in personal goods 
 passes b}' a bargain and sale for consideration, or a gift of them accom- 
 panied by delivery ; and it is clear from the very nature of the thing 
 that an intention to pass the property is essential both to a sale and to 
 a gift. But it is not,at all true that an intention to pass the propert}', 
 even though accompanied b}' a delivery, is of itself equivalent to either 
 a sale or a gift. We will presently explain more fully what we mean, 
 and how this is material. Now, it is established that where a bargain 
 between the owner of the chattel has been made with another, b}' which 
 the property is transferred to the other, the property actually passes, 
 though the bargain has been induced by fraud. The law is thus stated 
 in the judgment of the Exchequer Chamber in Clough v. London and
 
 SECT. IV.] EEGINA V. MIDDLETON. 659 
 
 Nortliwestern R3'. Co., Law Rep. 7 Ex. 26, at pp. 34, 35, where it is 
 said, " We agree completely with what is stated by all the judges be- 
 low, that the property' in tlie goods passed from the London Pianoforte 
 Co. to Adams bj' tlie contract of sale ; the fact that the contract was 
 induced by fraud did not render the contract void, or prevent the prop- 
 erty from passing, but merely gave the party defrauded a riglit, on dis- 
 covering tlie fraud, to elect whether he would continue to treat tlie 
 contract as binding, or would disaflirm the contract and resume his [)rop- 
 erty. . . . We think that so long as he lias made no election, he retains 
 the right to determine it either way, subject to this, that if in the inter- 
 val, whilst he is deliberating, an innocent third party has acquired an 
 interest in the property, or if, in consequence of his delay, the position 
 even of the wrong-doer is affected, it will preclude him from exercising 
 his right to rescind." 
 
 It follows obviously from this that no conversion or dealing with the 
 goods, before the election is determined, can amount to a stealing of 
 the vendor's goods ; for the^' had become the goods of the purchaser, 
 and still remained so when the supposed act of theft was committed. 
 There are, accordingh', many cases, of which the most recent is Reg. v. 
 Prince, Law Rep. 1 C. C. 150, which decide that in such a case the 
 guilty party must be indicted for obtaining the goods b}' false pre- 
 tences, and cannot be convicted of larceny. In that case, however, 
 the money was paid to the holder of a forged check pav'able to bearer, 
 and therefore vested in the holder, subject to the right of the bank to 
 divest the property. 
 
 In the present case the property' still remains that of the Postmaster- 
 General, and never did vest in the prisoner at all. There was no con- 
 tract to render it his which required to be rescinded ; there was no gift 
 of it to him, for there was no intention to give it to him or to any one. 
 It was simply a handing it over by a pure mistake, and no property 
 passed. As this was money, we cannot test the case b}- seeing whether 
 an innocent purchaser could have held the property. But let us sup- 
 pose that a purchaser of beans goes to the warehouse of a merchant 
 with a genuine order for so many bushels of beans, to be selected from 
 the bulk and so become the property of the vendee, and that by some 
 strange blunder the merchant delivers to liim an equal bulk of coffee. 
 If that coffee was sold (not in market overt) by the recipient to a third 
 person, could he retain it against the merchant, on the ground that he 
 had bought it from one who had the property in the coffee, though sub- 
 ject to be divested? We do not remember any case in which such a 
 point has arisen, but surely there can be no doubt he could not ; and 
 that on the principle enunciated by Lord Abinger, in Chanter v. Hop- 
 kins, 4 M. & W. at p. 404, when he says : " If a man off'ers to buy peas 
 of another, and he sends him beans, he does not perform his contract, 
 but that is not a warrant}' ; there is no warranty that he should sell 
 him peas ; the contract is to sell peas, and if he sends him anything 
 else in their stead, it is a non-performance of it."
 
 660 REGINA V. MIDDLETON. [CHAP. VIII. 
 
 We admit that the case is undistinguishable from the one supposed 
 in the argument, of a person handing to a cabman a sovereign by mis- 
 take for a shilling ; but after carefully weighing the opniions to the 
 contrary, we are decidedly of opinion that the property in the sovereign 
 would not vest in the cabman, and that the question whether the cab- 
 man was guilty of larcen}" or not. would depend upon this, whether he, 
 at the time he took the sovereign, was aware of tlie mistake and had 
 then the guilty intent, the animus furandi 
 
 But it is further urged that if the owner, having power to dispose 
 of the property, intended to part with it, that prevents the crime 
 from being that of larceny, though the intention was inoperative, and 
 no property passed. In almost all the cases on the subject, the propert}' 
 had actually passed, or at least the court thought it had passed ; but 
 two cases. Rex v. Adams, 2 Russell on Crimes, 4th ed. at p. 200, and 
 Rex V, Atkinson, 2 East P. C. 673, appear to have been decided on 
 the ground that an intention to pass the property, though inoperative, 
 and known by the prisoner to be inoperative, was enough to prevent 
 the crime from being that of larceny. But we are unable to perceive 
 or understand on wliat principles the cases can be supported if Rex v. 
 Davenport, 2 Russell on Crimes, 4ta ed. at p. 201, and the others in- 
 volving the same principle are law ; and tliough if a long series of cases 
 had so decided, we should think we were bound by them, yet we think 
 that in a court such as this, which is in effect a court of error, we 
 ought not to feel bound by two cases which, as far as we can perceive, 
 stand alone, and seem to us contrary both to principle and justice. 
 
 BoviLL, C. J., delivered the judgment of himself and Keating, J., as 
 follows : — 
 
 The proper definition of larceny according to the law of England, 
 from the time of Bracton downwards, has been considered to be the 
 wrongful or fraudulent taking and carrying away b^' any person of the 
 personal goods of another, from any place, without an}' color of right, 
 with a felonious intent to convert them to the taker's own use, and 
 make them his own property, without the consent and against the will 
 of the owner. And the question for our-consideration is, whether the 
 facts of the present case bring it within that definition. 
 
 Under the act for establishing post-office savings-banks, 2-1 & 25 
 Vict. c. 14, deposits are received at the post-offlces authorized by virtue 
 of that act, for the purpose of being remitted to the principal office 
 (§ 1). By § 2 the Postmaster-General is to give an acknowledgment 
 of such deposits, and by the 5th section all money's so deposited with 
 the Postmaster-General are forthwith to be paid over to the Commis- 
 sioners for the Reduction of the National Debt. By the same section 
 all sums withdrawn by depositors are to be repaid out of those moneys 
 through the office of the Postmaster-Gencral. By § 3 the authority of 
 the Postmaster-General for such repayment shall be transmitted to the 
 depositor, who is to be entitled to repayment at a post-office within ten 
 days.
 
 SECT. IV.] REGINA V. MIDDLETON, 661 
 
 It appears to us that the moneys received by the postmasters at 
 their reepective offices, by virtue of this act, are the property of the 
 Crown or of the Postmaster-General, and that neither the postmasters, 
 nor the clerks at the post-offices, have any power or authority either 
 general or special, to part with the property in, or even the possession 
 of, the moneys so deposited, or any part of them, to any person except 
 upon the special authority of the Postmaster-General. 
 
 In this case the prisoner had received a warrant or authority from 
 the Postmaster-General, entitling him to repayment of 10s. (being part 
 of a sum of U.S. which he had deposited) from the post-office at Not- 
 ting Hill, and a letter of advice to the same effect was sent by tlie 
 Postmaster-General to that post-office, authorizing the payment of the 
 10s. to the prisoner. 
 
 Under these circumstances we are of opinion that neither the clerk 
 to the postmistress, nor the postmistress personally, had any power or 
 authority to part with the £5 note, three sovereigns, the half-sovereign, 
 and silver and copper, amounting to £8 16s. lOt?., which the clerk 
 placed upon the counter, and which was taken up by the prisoner. 
 
 In this view the present case appears to be undistinguishable from 
 other cases where obtaining articles animo furancli from tlie master of 
 a post-office, though he had intentionally delivered them over to the 
 prisoner, has been held to be larceny, on the principle that the post- 
 master had not the property in the articles, or the power to part with 
 the property in them. For instance, the obtaining the mail bags by 
 pretending to be the mail guard, as in Rex v. Pearce, 2 East P. C. 
 p. 603 ; the obtaining a watch from the postmaster by pretending to be 
 the person for whom it was intended, as in Reg. v. Kay, Dears. & B. 
 Cr. C. 231 ; 26 L. J. (M. C.) 119 (where Rex v. Pearce, 2 East P. C. 
 p. 603, was relied upon in the judgment of the court) ; and the obtain- 
 ing letters from the postmaster under pretence of being the servant of 
 the party to whom they were addressed, as in Reg. v. Jones, 1 Den. 
 Cr. C. 188, and in Reg. v. Gillings, 1 F. & F. 36, were all held to be 
 larceny. 
 
 The same principle has been acted upon in other cases, where the 
 person having merely the possession of goods, without any power to 
 part with the property in them, has delivered them to the prisoner, 
 who has obtained them animo fur andi ; for instance, such obtaining of 
 a parcel from a carrier's servant by pretending to be the person to 
 whom it was directed, as in Rex v. Longstreeth, 1 Mood. Cr. C. 137; 
 or obtaining goods through the misdelivery of them by a carman's ser- 
 vant, through mistake, to a wrong person, who appropriated them 
 animo furancli, as in Reg. v. Little, 10 Cox Cr. C. 559, were, in like 
 manner, held to amount to larceny. 
 
 In all these and other similar cases, many of which are collected in 
 2 Russell on Crimes, 211 to 215, the property was considered to be 
 taken without the consent and against the will of the owner, though the 
 possession was parted with by the voluntary act of the servant, to
 
 662 EEGINA V. MIDDLETON. [CHAP. VIII. 
 
 whom the property had been intrusted for a special purpose. And 
 where property is so taken by the prisoner knowingly, with intent 
 to deprive the owner of it and feloniously to appropriate it to himself, 
 he may, in our opinion, be properly convicted of larceny. 
 
 The case is very different where the goods are parted with by the 
 owner himself, or by a person having authority to act for him, and 
 where he or such agent intends to part with the property in the goods ; 
 for then, although the goods be obtained by fraud, or fn-gery, or false 
 pretences, it is not a taking against the will of the owner, which is 
 necessary in order to constitute larceny. 
 
 The delivery of goods by the owner upon an order which was in fact 
 forged, as in Reg. v. Adams, 1 Den. Cr. C. 38, the payment of money 
 bv a banker's cashier on a check which turned out to be a forgery, as 
 in Reg. r. Prince, Law Rep. 1 C. C. 150, and the delivery up of pledges 
 by a pawnbroker's manager by mistake and through fraud, as in Rex 
 V. Jackson, 1 Mood. Cr. C. 119, are instances of this kind, and where 
 the intent voluntarily to part with the property in the goods, by a per- 
 son who had authority to part with the property in them, prevented the 
 offence being treated as a larceny. 
 
 In the present case, not only had the postmistress or her clerk no 
 power or authority to part with the property in this money to the pris- 
 oner, but the clerk, in one sense, never intended to part with the 
 £8 165. lOcZ. to the person who presented an order for only 10s., and 
 he placed the money on the counter by mistake, though at the time he 
 (by mistake) intended that the prisoner should take it up, and by mis- 
 take entered the amount in the prisoner's book. When the money was 
 Iving upon the counter the prisoner was aware that he was not entitled 
 to it, and that it could not be, and was not, really intended for him ; 
 yet, with a full knowledge on his part of the mistake, he took the 
 money up and carried it away, intending at the time he took it to 
 deprive the owner of all property in it, and feloniously to appropriate it 
 to his own use. 
 
 There was, therefore, as it seems to us, a wrongful and fraudulent 
 taking and carrying away of the whole of this money by the prisoner, 
 without any color of right, cmimo furandi, and against the will of the 
 real owner; and for these reasons, and upon the authorities before 
 stated, we think the prisoner was properly convicted of larceny.^ 
 
 PiGOTT, B. I agree in the judgment of the majority of the court, 
 except that I do not adopt the reasons which are there assigned for 
 holding that the mistaken intention of the clerk did not, under the cir- 
 cumstances here, prevent the case from being one of larceny on the 
 part of the prisoner. I quite accede to that proposition, but my rea- 
 son is that, in the view I take of the facts, the intention and acts of the 
 clerk are not material in determining the nature of the prisoner's act 
 and intent, because the transaction between them stopped short of 
 
 1 Kelly, C. B., delivered an opinion concurring with that of Bovill, C. J.
 
 SECT. IV.] EEGINA V. MIDDLETON. 663 
 
 placing the money completely in the prisoner's possession, and could in 
 110 way have misled the prisoner. 
 
 The case states that the clerk placed the money on the counter. He 
 then entered the amount of it in the prisoner's book and stamped it. 
 This, no doubt, gave the prisoner the opportunity of taking up the 
 money, and he did so in the presence of the clerk ; but before doing so 
 he nuist have seen by the amount that the clerk was in error, and that 
 the money could not really be intended in payment of his order, and 
 therefore was not for him, but for another person. It was with full 
 knowledge of this mistake that he resolved to avail himself of it, and in 
 fact to steal the money. The interval afforded him the opportunity of 
 conceiving, and he did in fact conceive, the animus fiirandi, while as 
 yet he had not got the money in his manual possession. 
 
 The dividing line may appear to be a fine one, but it is, I think, very 
 distinct and well defined in fact, for it was with this formed intention 
 in his mind that he took possession of the money. If complete posses- 
 sion had been given by the clerk to the prisoner, so that no act of the 
 latter was required to complete it after his discovery of the mistake and 
 his own formed intention to steal it, I should not feel myself at liberty 
 to affirm this conviction. In that case the prisoner would have done 
 nothing to defraud the clerk, and the latter, intending (to the extent to 
 whicli he had such intention) as much to pass the property as the 
 possession in the money, there would be nothing to deprive the matter 
 of the character of a business transaction fully completed. 
 
 I desire to adhere to the law as stated in the 3d Institute, page 110: 
 " The intent to steal must be before it cometh to his hands or posses- 
 sion, for if he hath the possession of it once lawfull}', though he hath 
 animus furandi afterwards and carrieth it away, it is no larceny." 
 But the facts satisf}' me, and the jur}- have found upon them, that the 
 prisoner had the animus furandi while the monej' was yet on the 
 counter, and that at the moment of taking it uj) he knew the money to 
 be the Postmaster-General's. The case is therefore very much like that 
 of a finder who, immediately on finding it, knows, or has the means of 
 knowing, the owner, yet determines to steal it. 2 Russell on Crimes, 
 4th cd. p. 169. The same facts satisfy' the requirements in the defi- 
 nition of larceu}', that the taking must be invito domino. The loser 
 does not intend to be robbed of his property, nor did the clerk in this 
 case, and the prisoner's conduct is unaffected by the clerk's apparent 
 consent in ignorance of its real nature. I affirm the conviction. 
 
 Bramwell, B. As the prisoner has now undergone his nominal 
 sentence, I should think it better that the small minority in this case, 
 of whom I am one, should give up their opinions to the majoritj^, if the 
 case turned on its own particular circumstances and no principle was 
 involved. But in my opinion great and important principles not only of 
 our law but of general jurisprudence arise here, on which I feel bound 
 to state iny views. 
 
 It is a good rule in criminal jurisprudence not to multiply crimes, to
 
 664 REGINA V. MIDDLETON. [CHAP. VIII. 
 
 make as few matters as possible the subject of the criminal law, and 
 to trust as much as can be to the operation of the civil law, for the pre- 
 vention and remedy of wrongs. It is also a good rule not to make 
 that a crime which is the act, or partly the act, of the party complain- 
 ing. Volenti non fit injuria : As far as he is willing, let it be no 
 crime. Here the taking was consented to. This is undoubtedly a rule 
 of the English common law. Obtaining goods by false pretences was 
 no offence at common law. Ordinary cheating was not. Embezzle- 
 ment, &c., by servants was not larcenous. Breaches of trust by trus- 
 tees and bailees were not. So also fraudulently simulating the husband 
 of a married woman, and having connection with her, was not. And 
 most particularly was and is this the case in larceny, for the definition 
 of it is that the taking must be invito domino. 
 
 Whether this law is good or bad is not the question. We are to 
 administer it as it is. I think those statutes that have made offences 
 of such matters as I have mentioned improved the law, because the 
 business of life cannot be carried on without trusting to representations 
 that we cannot verify, and without trusting goods to others in such a 
 way that the owner loses all power of watching over them ; and it is 
 reasonable that the law should protect persons who do so, by making 
 criminals of those who abuse that confidence. But something was to 
 be said in favor of the old law, viz., that the opportunity for the crime 
 was afforded by the complainant. Further, there is certainly a differ- 
 ence between the priv}^ taking of property without the knowledge of 
 the owner, or its forcible taking, and its taking with consent by means 
 of a fraud. The latter, perhaps, ma^' properly be made a crime ; but 
 it is a different crime from the other taking. 
 
 I say, then, that on principles of general jurisprudence, on the gen- 
 eral principles of our law, and on the particular definition of larceny, the 
 taking must be invito domino. That does not mean contrary to or 
 against his will, but without it. All he need be is ^?ivitus. This 
 accounts for how it is that a finder of a chattel ma}- be guilt}' of lar- 
 ceny. The dominus is invitus. So in the case of a servant who steals 
 his master's property. There are certain cases apparently inconsistent 
 with this, but which are brought within the rule indeed, but by reason- 
 ing which ought to have no place in criminal law. I mean such cases 
 as where a carrier broke bulk and stole the contents or part, and was 
 guilty of larceny, but would not have been had he taken the whole 
 package, and cases where possession was fraudulently obtained, animo 
 furandi., from the owner, who did not intend to part with the property. 
 In such cases it has been held that the breach of trust by the carrier 
 in breaking bulk re-vested the possession in the owner ; and in the 
 other case the obtaining of possession was a fraud, and so null ; and 
 that therefore in such cases the possession reverted to or remained in 
 the true owner, and so there was a taking invito dom.ino. So also 
 cases where the custody is given to the alleged thief, but not pos- 
 session or pi'operty, as when the price of a chattel delivered is to be
 
 SECT. IV.J KEGINA V. MIDDLETON. 665 
 
 paid In ready money, Reg. v. Cohen, 2 Den. Cr. C. 249. These are 
 not exceptions to tlie rule, but are brought within it by artificial, tech- 
 nical, and unreal reasoning. But where the doininus has voluntarily 
 parted with the possession, intending to part with the property in the 
 chattel, it has never yet been held that larceny was committed, what- 
 ever fraud may have been used to induce him to do so, nor whatever 
 may be the mistake he committed ; because in such case the dominus is 
 not invitus. So also where the possession has been parted with in such 
 way as to give the bailee a special property. See 2 Russell on Crimes, 
 4th ed. p. 191, citing 2 East P. C. p. 682 ; Reg. v. Smith, 2 Russell on 
 Crimes, 4th ed. p. 191 ; Reg. v. Goodbody, 8 C. & P. GG5. It is not 
 necessary that the property should pass, the intent it should is enough. 
 See Rex"y. Coleman, 2 East P. C. 672. 
 
 But it is argued that here there was no intent to part with the prop- 
 erty, because the post-office clerk never mtended to give to Middleton 
 ■what did not belong to him. A fallacy is involved in this way of 
 statino- the matter. No doubt the clerk did not intend to do an act of 
 the sort described and give to Middleton what did not belong to him, 
 yet he intended to do the act he did. What he did he did not do 
 involuntarily nor accidentally, but on purpose. See what would follow 
 from such reasoning. A. intends to kill B. ; mistaking C. for B., he 
 shoots at C. and kills him. According to the argument, he is not 
 guilty of intentional murder ; not of B., for he has not killed him ; not 
 of C, for he did not intend to kill him. There is authority of a very 
 cogent kind against this argument. A man in the dark gets into bed 
 to a woman, who, erroneously believing him to be her husband, lets him 
 have connection with her. TLiis is no rape, because it is not without her 
 consent, yet she did not intend that a man not her husband should 
 have connection with her. I have noticed this above as another illus- 
 tration of how the common law refuses to punish an act committed 
 with the consent of the complainant. 
 
 To proceed with the present matter : If the reasoning as to not 
 intending to give this money is correct, then, as it is certain that the 
 post-office clerk did not intend to give Middleton 10s., it follows that 
 he intended to give him nothing. That cannot be. In truth, he in- 
 tended to give him what he gave, because he made the mistake. This 
 matter may be tested in this way : A. tells B. he has ordered a wine 
 merchant to give B. a dozen of wine ; B. goes to the wine merchant, 
 bo7iu fide receives, and drinks a dozen of wine. After it is consumed 
 the wine merchant discovers he gave B. the wrong dozen, and demands 
 it of B., who, having consumed it, cannot return it. It is clear the 
 wine merchant can maintain no action against B., as B. could plead 
 the wine merchant's leave and license. But it is said that if B. knew 
 of the mistake, and took tlie wine animo furcmdi, then he would have 
 taken it hivito domino ; so that whether the dominus is invitus or not 
 depends, not on the state of his own mind, but of that of B. 
 
 It is impossible to say that there was a taking here sufficient to con-
 
 666 REGINA V. MIDDLETON. [CIIAP. VIII. 
 
 stitute larceny because the money was picked up, but that if it had 
 been put in tlic prisoner's hand there was not such a taking. 
 
 But for the point, then, I am about to mention, I submit the domi» 
 nus was not invitus, that he consented to the taking, and that it was 
 partly his act. No doubt the prisoner was a dishonest man, maybe 
 what he did ought to be made criminal, but his act was different from 
 a priv}' or forcible taking ; he was led into temptation ; the prosecutor 
 had ver}' much himself to blame, and I certainh* think that Middleton, 
 if punished, should be so on different considerations from those which 
 should govern the punishment of a larcenous thief. 
 
 But a point is made for the prosecution on which I confess I have 
 had the greatest doubt. It is said that here the dominus was invitus ; 
 that the dominus was not the post-office clerk, but the Postmaster- 
 General or the Queen ; and that therefore it was an unauthorized act 
 in the post-office clerk, and so a trespass in Middleton invito dotnino. 
 I think one answer to this is, that the post-office clerk had authorit}' to 
 decide under what circumstances he would part with the mone^- with 
 which he was intrusted. But I also think that, for the purposes of 
 this question, the lawful possessor of the chattel, having authority' to 
 transfer the property, must be considered as the dominus within this 
 rule, at least when acting bond fide. It is unreasonable that a man 
 should be a thief or not, not according to his act and intention, but 
 according to a matter which has nothing to do with them, and of which 
 he has no knowledge. 
 
 According to this, if I give a cabman a sovereign for a shilling by 
 mistake, he taking it animo furandi., it is no larcenj' ; but if I tell ray 
 servant to take a shilling out of m}^ purse, and he by mistake takes a 
 sovereign, and gives it to the cabman, who takes it animo furandi., 
 the cabman is a thief It is ludicrous to say that if a man, instead of 
 himself paying, tells his wife to do so, and she gives the sovereign for 
 a shilling, the cabman is guilt}' of lai'ceny, but not if the husband gives 
 it. It is said that there is no great harm in this ; that a thief in mind 
 and act has blundered into a crime. I cannot agree. I think the 
 criminal law ought to be reasonable and intelligible. Certainly a man 
 who had to be hung owing to this distinction might well complain, and 
 it is to be remembered that we must hold that to be law now which 
 would have been law when such a felony was capital. Besides, juries 
 are not infallible, and may make a mistake as to the animus furandi, 
 and so find a man guilty of larceny when there was no theft and no 
 ani'mus furandi. Moreover, Reg. v. Prince, Law Rep. 1 C. C. 150, is 
 contrary to this argument, for there the banker's clerks had no author- 
 ity to pay a forged check if they knew it ; they had authority to 
 make a mistake, and so had the post-office clerk. And suppose in this 
 case the taking had been bond fide, — suppose Middleton could neither 
 write nor read, and some one had made him a present of the book 
 without telling him the amount, and he had thought the right sum was 
 given him, — would his taking of it have been a trespass ? I think
 
 SECT. IV.] REGINA V. MIDDLETON. 667 
 
 not, and that a demand would have been necessary before an aetioq 
 of conversion could be maintained.^ 
 
 Cleasby, B.'^ The cases establish that, where there is a complete 
 dealing or transaction between the parties for the purpose of passing 
 the property, and so the possession parted with, there is no taking, 
 and the case is out of the category of larceny. 
 
 I believe the rule is as I have stated, and that it is not limited to 
 cases in which the property in the ciiattel actually passes by virtue of 
 the transaction. I have not seen that limitation put upon it in any text- 
 book on the criminal law, and there are, unless I am mistaken, many 
 authorities against it. The cases show, no doubt, be3'ond question that 
 whore the transaction is of such a nature that the property iu the chat- 
 tel actually passes (though subject to be resumed by reason of fraud 
 or trick), 1)here is no taking, and therefore no larceny. But thej' do 
 not show the converse, viz., that when the property does not pass 
 there is larceny. On the contrary, they appear to me to show that 
 where there is an intention to part with the property along with the 
 possession, though the fraud is of such a nature as to prevent that 
 intention from operating, there is still no larceny. This seems so 
 clearly to follow from the cardinal rule that there must be a taking 
 against the will of the owner, that the cases rather assume that the 
 intention to transfer the property governs the case than expressly 
 decide it. For how can there be a taking against the will of the 
 owner where the owner hands over the possession, intending by doing 
 so to pari with the entire property? 
 
 As far as my own experience goes, many of the cases of fraudulent 
 pretences which I have tried have been cases in which the prisoner has 
 obtained goods from a tradesman upon the false pretence that he 
 came with the order from a customer. In these cases no property 
 passes either to the customer or to the prisoner, and I never heard 
 such a case put forward as a case of larceny. And the authorities are 
 distinct, upon cases reserved for the judges, that in such cases there 
 is no larceny. In Reg. v. Adams, 1 Den. Cr. C. 38, the prisoner was 
 indicted for stealing a quantity of bacon and hams, and it appeared 
 that he went to the shop of one Aston, and said he came from Mr. 
 Parker for some hams and bacon, and produced the following note, 
 purporting to be signed by Parker : — 
 
 Have the goodness to give the bearer ten good thick sides of 
 bacon, and four good, showy hams, at the lowest price. I shall be in 
 town on Thursday next, and will come and pay you. 
 
 Yours respectfully, T. Parker, 
 
 Aston, believing the note to be the genuine note of Parker (who 
 occasionally dealt with him), delivered the articles to Adams. The 
 
 1 The remainder of the opinion is omitted. Martin and Cleasby, BB., and 
 Brett, J., delivered concurring opinions. 
 ■^ Part only of the opinion is given.
 
 668 WOLFSTEIN V. PEOPLE. [cHAP. VIII. 
 
 jury convicted, but upon a case reserved, upon the question whether 
 the offence was larceny, the judges were all of opinion that the con- 
 viction was wrong. Rex v. Coleman, 2 P2ast P. C. p. G72, is to the 
 same effect. In that case the prisoner got some silver as change, 
 falsely pretending to come from a neighbor for it ; and it was held not 
 to be a case of larceny. Rex v. Atkinson, 2 East P. C. p. 673, was 
 a similar one, and the prisoner was convicted ; but on a reference to 
 the judges after conviction, all present held that it was no felony, on 
 the ground that the property was intended to pass by the delivery 
 of the owner. 
 
 I do not think a man ought to be exposed to a charge of felony 
 upon a transaction of this description, which is altogether founded 
 upon an unexpected blunder of the clerk. The prisoner was undoubt- 
 edly at the office for an honest purpose, and finds a larger sum of 
 money than he demanded paid over to him and charged against him. 
 A man may order and pay for certain goods, and by mistake, a larger 
 quantity than was paid for may be put in the package and he may 
 take them away. Or he may pay in excess for that which is ordered 
 and delivered. Is the person receiving to be put in the peril of a con- 
 viction for felony in all such cases, upon the conclusion which may be 
 arrived at as to whether he knew, or had the means of knowing, and 
 had the animus furandi? I think not; I think such cases are out of 
 the area of felony, and therefore the animus furandi is inapplicable, 
 and ought not to be left to the jury. And any conclusion, founded 
 upon the finding of the jury upon a question which ought not to be 
 left to them must be erroneous, because the foundation is naught. I 
 think the conviction was against law and ought to be quashed. 
 
 Conviction affirmed} 
 
 WOLFSTEIN V. PEOPLE. 
 
 Supreme Court of New York. 1875. 
 
 [Reported 6 Hun, 121.] 
 
 Writ of error to the Court of General Sessions for the city and 
 county of New York, to review the conviction, of the plaintiff in error, 
 of the crime of grand larceny. 
 
 Charles W. Brooke, for the plaintiff in error. 
 
 Benjamin K. Phelps, for the defendants in error. 
 
 Westbrook, J. The plaintiff in error having been convicted in the 
 Court of General Sessions of the city and county of New York during 
 the month of April, 1875, of the crime of grand larceny, has, by writ 
 of error, brought the proceedings into this court for review. 
 
 1 But see Com. v. Hays, 14 Gray, 62. — Ed.
 
 SECT. IV.] WOLFSTEIN V. PEOPLE. 669 
 
 By the evidence given upon the trial and the verdict of the jury, the 
 following facts were established : The prisoner was the possessor of a 
 draft, dated February lOtli, 1875, drawn payable to his order by one L. 
 Boell, on IIei(leU)ach, Frank, & Co., for the sum of seventy-four dollars 
 in gold. It was accepted by the parties upon whom it was drawn, on 
 the Otli day of March, 1875, and made payable on demand at the 
 German American Bank. On the day of its acceptance it was presented 
 by the accused at the bank for payment, and the paying teller, who was 
 unable to read the French language in which it was written, and who 
 read the figures upon the draft as $742, paid to the prisoner that sura 
 of money in gold. The party to whom the money was paid, knowing 
 tEat he was entitled to receive only seventy-four dollars, took the larger 
 sum ($742) thus paid to him by mistake, and, without disclosing the 
 error, concealed and denied the over-payment, and feloniously appro- 
 priated it to his own use. 
 
 The case then presents this question : If a party who receives from 
 another money to which he knows he is not entitled, and which he 
 knows has been paid to him by mistake, should conceal such over- 
 payment and appropriate the money to his own use, intending thus to 
 cheat and defraud the owner thereof, would he or not be guilty of the 
 cnTne' of larceny? If it be answered that he would not, can the ele- 
 ment needed to make it such, and which is absent, be pointed out? 
 "ThcMnoncy, in excess of that which he is entitled to receive, is taken 
 without the owner's consent, and that which is thus taken is appropri- 
 ated to the taker's use with intent, fraudulently, to deprive the owner 
 thereof. These two elements make the crime of theft, and they are 
 both present here. 
 
 It will not do to say that the owner parts with the property volun- 
 tarily, and therefore there is no unlawful taking. There may be the 
 physical act of the owner handing that which is his to another, but 
 there is absent the intellectual and intelligent assent to the transfer, 
 upon which the consent must necessarily depend. Where money or 
 property is obtained from the owner by another upon some false pre- 
 tence, for a temporary use only, with the intent to feloniously appro- 
 priate it permanently, the taking, though with the owner's consent, 
 is larceny. Wherein do the cases differ? In both there is a physical 
 delivery by the owner, and in both the taker knows that it was given 
 for no such purpose as he has in mind, and yet he, unlawfully and 
 wickedly, in both cases, seeks to deprive the owner thereof. If the one 
 case is larceny, the other is also. 
 
 So, too, the finder of property, if he knows the owner and conceals 
 such finding, and appropriates it to his own use, with intent to deprive 
 the owner thereof, is guilty of larceny. So in this case, if the prisoner 
 found, on counting the money, that in his possession to which he knew 
 he was not entitled, and which he also knew the owner did not intend 
 to deliver to him, he was bound to return it to the owner, and if he did 
 not, but concealed its possession and sought to deprive the owner 
 thereof, the crime was complete.
 
 670 WOLFSTEIN V. PEOPLE. [CHAP. VIII. 
 
 From the evidence in this case, and the verdict rendered, we are 
 bound to assume that the mistake was noticed and discovered bj- the 
 prisoner at some time. If the over-payment was observed in the bank 
 when the money was delivered, and the prisoner took it witli the intent 
 to cheat and defraud the owner, the crime was then complete.' If, how- 
 ever, the error was not then noticed, but was afterward, and the intent 
 of felonious appropriation was then formed and executed, the legal 
 guilt of the prisoner was at that time incurred. As in the case of the 
 finder of the lost article, the original taking may be lawful, but legal 
 accountability as for crime begins when the owner is discovered and 
 the intent formed unlawfully and feloniously to deprive him of the 
 possession thereof. 
 
 The questions which the case involves, and the points to be found by 
 the jury before a verdict of guilty could be rendered, were properly stated 
 by the recorder, and the finding was well warranted by the testimony. 
 
 The request to charge, made b}^ the counsel of the prisoner at folio 
 eighty-two, was amended, and as amended was charged. There is no 
 error here. The conviction of the prisoner is therefore affirmed. 
 
 Davis, P. J., and Daniels, J., concurred.^ 
 
 Convictio7i affirmed. 
 
 1 See Com. v. Eichelberger, 119 fa. 25-i. — Eu.
 
 SECT. IV.J REGINA V. LITTLE. 67i 
 
 EEGINA V. LITTLE. 
 Central Criminal Court. 1867. 
 
 [Reported 10 Co.r C. C. 559.] 
 
 George Cohen Little and William p]ustace were charo;ed with 
 stealing 276 yards of carpet, the property of the Midland Railway 
 
 Compan}-. 
 
 Three bales of carpet were entrusted to Froome, a carman in the 
 service of the Midland Railwaj' Company, for delivery- to Easten &, 
 Co., Addle Street. From something F'roome heard in Addle Street he 
 went to 7 Philip Lane, which leads out of Addle Street. There was no 
 name up at No. 7, but it appeared as if it had been newly done up. 
 At No. 7 Froome saw the prisoner Little and asked him whether tliat 
 was Easten's of Addle Street. Little said, "Yes." Froome told him 
 he had three trusses of carpet, and showed him the way-bill, which indi- 
 cated that three bales marked E. 959-61 were to be delivered to Pias- 
 ter! & Co. of Addle Street. Little told him to bring them in, and they 
 were brought in and signed for by " T. C. Little." Eustace appeared 
 to have rented the premises on wdiicli the goods were left, and became 
 acc^uainted with the fact of their being in his house shortly after they 
 were so left, and according to his own account had sold them to a man 
 from whom he had received no money, although by his own statements 
 to a witness he had said they had been left at this place in mistake, and 
 did not belong to him. 
 
 Sleigh^ on behalf of Eustace, submitted that there was no case of 
 larcen}' made out, — the Railway Company-, in whom the property' was 
 laid, having parted not onl}' with the possession, but also with the prop- 
 erty in the goods, and no trick having been shown to have been used 
 b}' Eustace in order to get possession of them. 
 
 Poland contended that the Railway Company, having authority to 
 deliver to Easten & Co., had no power to part with the property in the 
 goods to any other parties ; that the mistake of the carman in leaving 
 them at the wrong premises did not deprive the company of their prop- 
 erty in them ; and that the subsequent conversion of them by Eustace 
 to his own purposes was in fact a larceny of the goods of the company, 
 just as much as if he had taken them out of the cart himself. 
 
 Besley, on the same side, argued that as the goods came into the 
 possession of Little, he bj' accepting possession of them might be 
 deemed a bailee for the owner, and that directly Eustace became ac- 
 quainted with the circumstances and co-operated with him he was acces- 
 saiy with him as bailee ; and then if, contraiy to that bailment, the}' 
 jointl}' converted the goods to their own purposes, a case of larceny 
 would be established. He referred to Regina v. Robson, 9 Cox C. C. 29. 
 
 The Recorder said he should leave the case to the jury, not upon 
 the ground that the prisoners were bailees, but that the propei'ty in the
 
 672 REX V. MOORE. [chap. VIII. 
 
 goods had not been parted with. The carman had the limited author- 
 it3' to part with them to Easten & Co. only, and by leaving them in 
 mistake the property was not really parted with. 
 
 Ckiilty, 
 
 SECTION V. 
 
 \/ 
 
 > / 
 
 Traiiifer of Title, 
 
 REX V. MOORE. 
 Crown Case Reserved. 1784. 
 
 [Reported Leach {4tli ed.), 314.] 
 
 This was a case reserved for tlie opinion of the twelve judges by Mr. 
 Sergeant Adair, Recorder, at the Old Bailey, in April Session, 1784, 
 upon the trial of an indictment for stealing twenty guineas, and four 
 pieces of foreign gold coin called doubloons, the property' of John 
 Field, in the dwelling-house of John Brown. 
 
 The material circumstances of this case, as they appeared in evidence, 
 were as follow : The prosecutor, John Field, a soldier, just returned 
 from the war in America, was walking along James Street, Covent 
 Garden, when a stranger joined company with him. As they walked in 
 friendly conversation with each other down Long Acre, the stranger sud- 
 denly stopped and picked up a purse which was lying at a door. After 
 they had proceeded about forty yards, " Come," says the stranger, " we 
 will go and drink a pot of porter, and see what we have picked up." 
 The prosecutor was persuaded to comply ; and they accordingly M'ent 
 into a private room in an adjacent public house, where the stranger 
 pulled out the purse, and from one end of it produced a receipt, signed 
 "W. Smith," for £210 "for one brilliant diamond-cluster ring," and 
 from the other end he pulled out the ring itself. A conversation 
 ensued upon the subject of their good fortune, during which time the 
 prisoner, Humphrey INIoore, entered the room ; and being shewed the 
 ring, he praised the beauty of its lustre, and offered to settle the divi- 
 sion of its value. Upon the stranger's lamenting that he had no money 
 about him, the prisoner asked the prosecutor if he had any. The prose- 
 cutor replied that he had forty or fifty pounds at home. " Tiiat sum 
 will just do,-' said the prisoner. A coach was immediately called, and 
 all three were driven to the prosecutor's lodgings at Chelsea. The 
 prosecutor and the stranger went into the house together, leaving the 
 prisoner at the Five Fields. The prosecutor took his money from his 
 bureau, put it into his pocket, and returned with the stranger to a 
 public house in the Five Fields, Chelsea, kept by John Brown, where 
 they again met the prisoner, who said, " I will give you your share of 
 the ring, if you will be content till to-morrow." The prosecutor put 
 down twenty guineas and four doubloons, which the stranger took up,
 
 SECT, v.] REX V. MOORE. 673 
 
 and in return gave the prosecutor the ring, desiring that he would 
 meet him at the same place on the next morning at nine o'clock, and 
 promising that he would then return the twenty guineas and the four 
 doubloons to the prosecutor, and also one hundred guineas for his share 
 of the ring. The prisoner and the stranger went away together. The 
 prosecutor attended the next morning pursuant to the appointment,- 
 but neither of the parties came. The ring was of a very trilling value. 
 
 It was left with the jury to consider whether the prisoner and the 
 other man were not confederated together, for the purpose of ol)taining 
 money on pretence of sharing the value of the ring, and whether he 
 had not aided and assisted the other man to obtain the money by the 
 means that were used for that purpose. And the jury were of opinion 
 that the prisoner was confederating with the person unknown for the 
 purpose of obtaining the money by means of the ring, and did therefore 
 aid and assist the person unknown in obtaining the twenty guineas and 
 the four doubloons from the prosecutor. They accordingly found him 
 guilt}- of stealing, but not in the dwelling-house, subject to the opinion 
 of the twelve judges whether it was felony. 
 
 On the first day of Michaelmas Term, 1784, all the judges, except 
 Lord Mansfield, assembled at Lord Loughborough's chambers to con- 
 sult upon this case ; and in the December Session following, Mr. Jus- 
 tice AViLLES delivered their opinion at the Old Bailey to the following 
 effect: all the judges agreed that in considering the nature of larceny 
 it was necessary- to attend to the distinction between the parting 
 with the possession onl}', and the parting with the property ; that in 
 the first case it is felony, and in the last case it is not. Upon the cir- 
 cumstances of the present case two of the judges^ were of opinion 
 that the doubloons were to be considered as monej', and that the whole 
 was a loan on the security of the ring, which the prosecutor believed to 
 be of much greater value than the mone}- he advanced on it, and there- 
 fore that he had voluntaril}- parted with the property as well as with 
 the possession of the doubloons. But nine of the judges were clearl}'' 
 of opinion that it was felony, for the\' thought the tw-ent}- guineas and 
 the four doubloons were deposited in the nature of a pledge till the half 
 of the supposed value of the ring was paid to the prosecutor, and not as 
 a loan ; and therefore he had parted with the possession only, and not 
 with the propert}', — more especially as to the doubloons, which he 
 clearlj- understood wei'e to be returned the next day in specie ; and the}' 
 could not distinguish this case from The King v. Patch in this court in 
 February Session, 1782, and the King v. Pear, in September Session, 
 1779. The majorit}- of the judges, therefore, were of opinion that 
 this case had been properly- left to the jury, and that the prisoner waa 
 guilty of felony. 
 
 The prisoner was accordingly transported. 
 
 1 Lord Loughborough, and Skinner, C. B.
 
 (374 REGINA V. PRINCE. [CHAP. VIII. 
 
 REX V. ATKINSON. 
 Crown Case Reserved. 1799. 
 
 [Reported 2 East P. C. 673.] 
 
 James William Atkinson was indicted for stealing two bank-notes, 
 the property of William Dunn, against the statute. It appeared that 
 the prisoner sent one Dale (to whom he was unknown) with a letter 
 directed to Dunn ; bidding Dale to tell Dunn that he brought the 
 letter from Mr. Broad, and to bring the answer to him (the prisoner) 
 in the next street, where he would wait for him. Dale accordingly 
 carried to Dunn the letter, which was written in the name of Broad, 
 a friend of Dunn's, soliciting the loan of £3 for a few days, and 
 desiring that the money might be inclosed back in the letter imme- 
 diately. Dunn thereupon sent the bank-notes in question, inclosed in 
 a letter directed to Broad, and delivered the same to Dale, who deliv- 
 ered them to the prisoner as he was first ordered. The letter turned 
 out to be an imposition. It Avas objected at the trial that this was no 
 felony, because the absolute dominion of the property was parted 
 with by the owner, though induced thereto by means of a false and 
 fraudulent pretence. And on reference to the judges after conviction, 
 all present held that it was no felony, on the ground that the property 
 was intended to pass by the delivery of the owner ; and that this case 
 came within the Stat. 33 H. 8. c. 1, against false tokens, which partic- 
 ularly speaks of counterfeit letters.^ 
 
 REGINA V. PRINCE. 
 Crown Case Reserved. 1868. 
 
 [Reported Law Reports 1 Crown Cases Reserved, 150.] 
 
 The following case was stated by the Common Sergeant : — 
 The prisoner was tried before me at the August session of the Cen- 
 tral Criminal Court on an indictment charging him, in the first count, 
 with stealing money to tlie amount of £100, the property of Henry 
 Allen ; in the second count, with receiving the same, knowing it to 
 have been stolen ; and in two other counts the ownership of the money 
 was laid in the London and Westminster Bank. 
 
 It appeared in evidence that the prosecutor, Henry Allen, had paid 
 moneys amounting to £900 into the London and Westminster Bank 
 on a deposit account in his name, and on the 27th of April, 1868, that 
 
 1 Ace. Rex V. Colman, Leach (4th ed.) 303 n. ; Kelly v. People, 6 Hun, 509; 
 Kellogg V. State, 26 Oh. St. 15. See Reg. v. Middleton, L. R. 2 C. C. 38, ante. — 'ED.
 
 SECT. V.J REGINA V. PRINCE. (i75 
 
 sum was standing to his credit at that bank. On that day the wife of 
 Henry Allen presented at the banlc a forged order purporting to be 
 the order of the said Henry Allen, for payment of the deposit, and the 
 casiiier at the bank, believing the authority to be genuine, paid to 
 her the deposit and interest in eight bank notes of £100 each, and other 
 notes. Among the notes of £100 was one numbered 72,799, dated the 
 19th of November, 1867. 
 
 On the first of July, 18G8, the wife of Henry Allen left him and 
 his house, and she and the prisoner were shortly afterwards found on 
 board a steamboat at Queenstown on its wa}' from Liverpool to New 
 York, passing as Mr. and Mrs. Prince, Mrs. Allen then having in her 
 possession nearly all the remainder of the notes obtained from tlie 
 bank. The note for £100, No. 72,799, was proved to have been paid 
 away b}' the prisoner in payment for some sheep in Ma}', 1868, and 
 he said he had it from Mrs. Allen. 
 
 Upon this evidence it was objected by prisoner's counsel that the 
 counts alleging the property to be in Henr}' Allen must fail, as the note 
 had never been in his possession ; and that as to the other counts the 
 evidence did not show any larcen}' of the note from the bank by the 
 wife, but rather an obtaining !)}• forgery or false pretences b}' her, and 
 that the- receipt by the prisoner from her was not a receipt of stolen 
 property. I held, however, that the forged order presented by the wife 
 was under the circumstances a mere mode of committing a larceny 
 against the London and Westminster Bank, and that the prisoner was 
 liable to be convicted on the fourth count. 
 
 The jury found the prisoner guilty on that count and I respited judg- 
 ment and reserved for the consideration of the court the question 
 whether the obtaining the note from the bank by Mrs. Allen under the 
 circumstances stated was a larceny by her ; if not, the conviction must 
 be reversed.^ 
 
 BoviLL, C. J. I am of opinion that this conviction cannot be sus- 
 tained. The distinction between larcen}- and false pretences is mate- 
 rial. In larceny the taking must be against the will of the owner. That 
 is of the essence of the offence. The cases cited by Mr. Collins on be- 
 half of the prisoner are clear and distinct upon this point, showing that 
 the obtaining of property' from its owner or his servant absolute!}' au- 
 thorized to deal with it by false pretences will not amount to larceny. 
 The cases cited on the other side are cases where the servant had only 
 a limited authority from his master. Here, however, it seems to me 
 that the bank clerk had a general authority to part with both the prop- 
 erty in and possession of his master's money on receiving what he be- 
 lieved to be a genuine order, and that as he did so part with both the 
 property in and possession of the note in question the offence commit- 
 ted by Mrs. Allen falls within the cases which make it a false pretence 
 and not a larceny, and therefore the prisoner cannot be convicted of 
 knowingly receiving a stolen note. 
 
 1 Arguments of counsel are omitted.
 
 676 EEGINA V. PRINCE. [CHAP. VIII. 
 
 Channell, B. I am of the same opinion. The cases cited on one 
 side and the other are distinguishable on the ground that in one class 
 of cases the servant had a general authority to deal with his master's 
 property, and in the other class merelj' a special or limited authorit}-. 
 If the bank clerk here had received a genuine order he would have paid 
 the mone}- for his master and parted with the property, and the trans- 
 action would have really been what it purported to be. If, however, 
 the clerk makes a mistake as to the genuineness of a signature, never- 
 tlieless he has authority to decide that point; an.i if he pays money on 
 a forged order the property therein passes from the master and cannot 
 be said to have been stolen. 
 
 Byles, J. I am of the same opinion. I would merely saj' that I 
 ground m}- judgment purel}' on authority'. 
 
 Blackburn, J. I also am of the same opinion. I must say I can- 
 not but lament that the law now stands as it does. The distinction 
 drawn between larceny and false pretences — one being made a felony 
 and the other a misdemeanor, and yeX, the same punishment attached 
 to each — seems to me, I must confess, unmeaning and mischievous. 
 The distinction arose in former times, and I take it that it was then held 
 in favor of life that in larcen}- the taking must be against the will of the 
 owner, larceny then being a capital offence. However, as the law now 
 stands, if the owner intended the propertj' to pass, though he would not 
 so have intended had he known the real facts, that is sufficient to pre- 
 vent the offence of obtaining another's property' from amounting to 
 larcen}' ; and where the servant has an authority co-equal with his 
 master's and parts with his master's property, such property cannot be 
 said to be stolen inasmuch as the servant intends to part with the 
 propert}' in it. If, however, the servant's authority is limited, then he 
 can onl}- part with the possession, and not with the propert}' ; if he is 
 tricked out of the possession the offence so committed will be larcen}'. 
 In Regina v. Longstreeth, 1 Moody, C. C. 137, the carrier's servant had 
 no authorit}' to part with the goods except to the right consignee. His 
 authorit}' was not generally' to act in his master's business, but limited 
 in that way. The ofTence was in that case held to be larceny on that 
 ground, and this distinguishes it from the pawnbroker's case Regina v. 
 Jackson, 1 Mood}' C. C. 119, which the same judges, or at an}' rate 
 some of them, had shortly before decided. There the servant from 
 whom the goods were obtained had a general authority to act for his 
 master, and the person who obtained the goods was held not to be 
 guilty of larceny. So in the present case the cashier holds the money 
 of the bank with a general authority from the bank to deal with it. 
 He has authority to part with it on receiving what he believes to be a 
 genuine order. Of the genuineness he is the judge ; and if under a 
 mistake he parts with money he none the less intends to part with 
 the property in it, and thus the offence is not, according to the cases, 
 larceny, but an obtaining by false pretences. The distinction is in- 
 scrutable to my mind, but it exists in the cases. There is no statute
 
 SECT, v.] EEGINA V. BUCKMASTEK. 677 
 
 enabling a count for lareen}- to be joined with one for false pretences ; 
 ami as the prisoner Wiis indicted for tlie felon}' the conviction must be 
 quashed. 
 
 Lusii, J. I also agree that the conviction must be quashed. I 
 ground my judgment on the distinction between the cases which has 
 been pointed out. The cashier is placed in the bank for the very pur- 
 pose of parting with the money of the bank. lie has a general author- 
 ity to act for the bank, and therefore that which he does, his masters the 
 bankers do themselves through him. Conciction quashed} 
 
 REGINA V. BUCKM ASTER. 
 
 Crow^n Case Reskrved. 1887. 
 
 [Reported 16 Cox C. C. 339.] 
 
 This was a case stated for the opinion of the Court by the Chair- 
 man of the Court of Quarter Sessions for the County of Berks, which 
 was as follows : — 
 
 1. At the General Quarter Sessions for the County of Berks, held on 
 the 27th day of June, 1887, Walter Buckraaster was tried before me 
 upon an indictment, omitting formal parts, which charged that he 
 did on the 9th day of June, 1887, feloniously steal, take, and carry 
 away certain money of the moneys of John Rymer. 
 
 2. It was proved that the prisoner and another man, at about 3 p. m. 
 on the 9th day of June last, during the Ascot Race Meeting, were the 
 only persons standing upon a platform or stand made to represent 
 "safes." or iron safe chests. The words " Griffiths, the Safe Man," 
 were printed upon it. The stand was outside the course, on a spot on 
 Ascot Heath where carriages were placed, and was not within any 
 betting inclosure or ring. 
 
 3. The prisoner, with a book in his hand, was calling out, " Two to 
 one against the field," just before a race was about to be run. Rymer 
 went up to him and asked, " What price Bird of Freedom? " to which 
 he replied, " Seven to one to win." Rymer then deposited five shillings 
 with Buckmaster, who told him that if the horse won he (Rymer) would 
 win thirty-five shillings and get his own five shillings back. He also 
 deposited another five shillings with Buckmaster, who told him that he 
 would have fifteen shillings back, including his own five shillings, if the 
 horse was first or second. The man who was with Buckmaster and 
 was acting with him, received the money, and the latter, with whom 
 all the conversation took place, appeared to take down the bet in his 
 book, and gave Rymer a card-ticket with the words " GriflSths, Safe 
 Man" upon it. 
 
 1 See People v. McDonald, 43 N. Y. 61. — Ed.
 
 678 REGINA V. BrCKMASTER. [CHAP, VIII. 
 
 4. While the race was being run, the prisoner and the other man 
 were seen by one of the witnesses to walk quietly away. They were 
 followed for about twenty yards, and on the witness at once returning, 
 the stand had gone. The horse Bird of Freedom won the race, 
 and thereupon Rymer went back to the place where the stand had been, 
 and he found that the prisoner and the other man had gone. He waited 
 there for half an hour and then left. Much later in the afternoon 
 Rymer saw the prisoner on another part of Ascot Heath and said, " 1 
 want £2 lbs. from you." The prisoner said he knew nothing about it. 
 Upon being told by Rymer that he would be detained, he admitted the 
 bet and said he had not the money, but that he M-as only the clerk 
 and could take the prosecutor to the man who had it. He was then 
 taken into custody, and upon him were found card-tickets with the 
 words " GriHiths, the Safe Man" upon them. It was elicited from 
 Rymer in cross-examination that he would have been satisfied if he did 
 not receive back the same particular coins he had deposited. 
 
 5. At the close of the case for the prosecution, on behalf of the 
 prisoner it was submitted that Rymer having parted voluntarily with 
 the money there was no evidence of larceu}' nor of any taking by 
 prisoner, and none of obtaining by false pretence or trick. 
 
 The learned chairman declined to withdraw the case from the jury, 
 but assented to state this case. No evidence at all was called on the 
 part of the prisoner, and a verdict of guilty was returned. 
 
 The question for the opinion of the court was whether there was any 
 evidence to be left to the jury. 
 
 Keith-Frith, for the prisoner. In this case the prisoner might per- 
 haps have been convicted of obtaining money by false pretences. But 
 he has not been indicted for false pretences ; and although upon an 
 indictment for false pretences a prisoner can be convicted of larceny, 
 he cannot upon an indictment for larceny be convicted of false pre- 
 tences. There was no larceny here, because here there was no taking 
 invito domino. [Lord Coleridge, C.J. — Why cannot it be larceny 
 by a trick?] In larceny by trick, although the possession is parted 
 with, the ownership does not pass. But here the prosecutor did intend 
 to part with the ownership of the specific coins he gave the prisoner, 
 and therefore the ownership in them passed. [Hawkins, J. — No ; the 
 prosecutor merely intended to give the prisoner the coins as a deposit 
 to abide the event of the race.] If that were so, then the person who 
 makes a bet with a Geo. III. sovereign can insist upon that particular 
 coin being returned to him if he wins. [Smith, J. — Although the 
 whole thing was a sham, do you say that the prosecutor intended to 
 part with his coin?] No ; but if the ownership was obtained by means 
 of a trick as well as the possession, the prisoner ought to have been 
 indicted for false pretences. Here the prosecutor said he would have 
 been satisfied had he not got the same coins back ; therefore he clearly 
 intended that the property in the particular coins should pass. [Haw- 
 kins, J. — Is not Rex v. Robson, Russ. & Ry. 413, an authority that the
 
 SECT, v.] RROINA. V. BUCKMASTER. 679 
 
 property did not pass under the circumstances?] No; for there the 
 notes were never intended to be changed ; they were merely deposited 
 as a stake. Suppose here that Bird of Freedom had lost, the 
 prisoner would have been entitled to keep the 5.s. and could not have 
 been iudicted for stealing his own property ; and therefore as the 
 property passed, there could be no larceny, and the conviction should 
 be quashed. 
 
 No counsel appeared on behalf of the prosecution. 
 
 Loud Coleridge, C. J. 1 am of opinion that in this case the con- 
 viction is right and should be atlirmed. The only question left to us 
 by the learned chairman is, whether there was any evidence that the 
 prisoner had been guilty of larceny to be left to the jury. In my 
 opinion there was abundant evidence from which the jury might infer 
 that the prisoner was guilty. On behalf of the prisoner it has been 
 argued that there is no doubt that the money was intended to be parted 
 with, and that not only was the possession of the money parted with 
 but the property in it was also intended to be parted with ; and that 
 therefore, as the property was intended to be parted with, there could 
 be no larceny, but only the offence of obtaining money by false pre- 
 tences ; and that, although the prisoner, if he had been indicted for the 
 false pretences, could have been convicted of larceny, the converse does 
 not hold good, and he cannot, upon an indictment for larceny, be con- 
 victed of obtaining money by false pretences. To that there seems to 
 me to be two answers : the first, that, supposing there was an intention 
 on the part of the prosecutor to part with the property in the coin, in 
 order to pass the property from him to the prisoner there must have 
 been a contract under which it could pass ; for a change of property 
 could only have taken place by virtue of a contract of some sort, and 
 a contract, by the very meaning of the word, must be the bringing 
 together of two minds. Now, here there never was any bringing 
 together of the minds of the prosecutor and the prisoner in the shape 
 of a contract ; for supposing the prosecutor to have intended to have 
 parted with his money, he only intended to do so on the assumption 
 that the prisoner intended to deal honestly with the money ; whereas, 
 on the contrary, the prisoner never intended to do that, but as the 
 evidence shows clearly, intended to do that which the prosecutor never 
 for a moment consented to. No contract ever existed therefore ; and 
 there is high authority that, under such circumstances, the property in 
 the article does not pass. In Rex v. Oliver, Russ. on Crimes, vol. ii. 
 p. 170, which was a case tried before Wood, B., the prosecutor there 
 had a quantity of bank-notes, which he wanted to change, and the 
 prisoner offered to change them for him. The prosecutor gave him the 
 bank-notes, on which the prisoner decamped, and the prosecutor never 
 got any money in return. It was argued that, as the prosecutor clearly 
 intended to pass the property in the bank-notes to the prisoner, he 
 could not be convicted of larceny. But Wood, B., held that the case 
 clearly amounted to larceny if the jury believed that the intention of
 
 580 KEGINA V. BUCKMASTEK. [CHAP. VIII. 
 
 the prisoner was to run away with the notes and never to return with the 
 gold, and that whether the prisoner had at the time the animus furandi 
 was the sole point upon which the question turned, for if the prisoner 
 had at the time the animus furandi, all that had been said respecting 
 the property having been parted with by the delivery was without 
 foundation, as the property in truth had never been parted with at all. 
 The learned judge further said that " a parting with the property in 
 goods could only be effected by contract, which required the assent of 
 two minds ; but that in this case there was not the assent of the mind, 
 either of the prosecutor or of the prisoner, the prosecutor only meaning 
 to part with his notes on the faith of having the gold in return, and the 
 prisoner never meaning to barter, but to steal." It appears to me that 
 that is not only good sense but very sound law, and it is decisive of 
 the point raised here. I am of opinion therefore that there is evidence 
 of larceny here, and that the true view to take of this case is that the 
 property did not pass. The second answer appears to me to be found in 
 the case of Rex v. Robson, Russ. & Ry. 413, which is even more like this 
 case than the case I have already cited. In Rex v. Robson the prose- 
 cutor was induced by the prisoner's confederates to make a bet with one 
 of them and to part with a number of bank-notes to another of the 
 confederates, who passed it on to the prisoner to hold as stake-holder. 
 The prosecutor having apparently lost the bet, the money was given by 
 the prisoner to the confederate with whom the bet was made, and he 
 went away. Upon these facts it was held that, where there is a plan 
 to cheat a man of his property under color of a bet, and he parts 
 with the possession only to deposit the property as a stake with one of 
 the confederates, the taking by such confederates is felonious. The 
 case was tried by Bayley, J., who told the jury that if they thought, 
 when the notes were received, there was a plan and concert between 
 the prisoners that the prosecutor should never have them back, but 
 that they should keep them for themselves, under the false color and 
 pretence that the bet had been won, he was of opinion that in point of 
 law it w^is a felonious taking by all. The jury convicted, but the 
 learned judge thought proper, as the case came very near Rex v. 
 Nicholson, 2 East P. C. 669, to submit it to the consideration of the 
 judges, making the distinction between the cases that in Rex v. Robson, 
 at the time the prisoners took the prosecutor's notes, he parted with 
 the possession only and not the property ; and that the property was- 
 only to pass eventually, if the confederate really won the wager ; and 
 chat the prosecutor expected to have been paid had the confederate 
 guessed wrongly. Ten of the judges considered the case and held the 
 conviction right, because at the time of the taking the prosecutor 
 parted only with the possession of the money. Now, the true view of 
 the case here is exactly like the view which the judges took in that 
 case. In this case the prosecutor deposits money with the prisoner, 
 never intending to part with that money, but being told that in a certain 
 event he was to have that money and something more added to it givea
 
 SECT. V.j EEGINA V. BUCKM ASTER. 681 
 
 back to him. The prisoner, on the other hand, took the money, never 
 intending to give it back, and decamped with it. It appears to me, 
 therefore, that the possession only of the money was parted with, and 
 that the prosecutor never intended to part with tlie property in it. No 
 doubt had lie had money given back to him, he would not have inquired 
 into the question whether his own iJs. came back to him or not. But 
 that does not affect the question whether, when he placed the coins 
 in the prisoner's hands, he intended to pass the property in them to the 
 prisoner. At all events there was plenty of evidence from which 
 the jury could find that such was not his intention ; and in my opinion 
 the conviction should be alHrmed. 
 
 Pollock, B. I have nothing to add. 
 
 Manisty, J. I have very few words to say. I take it on the author- 
 ities cited by my Lord that it is settled law that if a man parts with the 
 possession of money but does not intend to part with the property in 
 it, and the person receiving the money intends at that time to steal the 
 money in a certain event, that there then is larceny. That is the 
 ground on which I think that, as in this case the prosecutor never 
 intended to part with his 5s. except in the event which did not occur 
 and the prisoner never intended to return the money, the prisoner was 
 guilty of larceny. 
 
 Hawkins, J. The only question for our determination is, whether 
 there was any evidence to go to the jury. I am of opinion that there 
 was abundant evidence. I think the evidence pointed to this, that the 
 whole of the prisoner's conduct pointed to an original and preconcerted 
 plan of the prisoner to obtain possession of and keep the money of 
 the prosecutor ; and that the prosecutor never intended on such terms 
 to part with the property in his os. I think therefore that there was 
 abundant evidence of larceny in this case, and that the conviction should 
 be affirmed. 
 
 Smith. J. I think that it is clear the prosecutor never intended to 
 part with the property in the 5s. except on condition that a bova fide 
 bet was made. I think also that there is evidence that at the time the 
 prosecutor handed the 5s. to the prisoner, the prisoner intended to keep 
 possession of the money, whether Bird of Freedom lost or won. He 
 therefore obtained the possession of the prosecutor's money by means 
 of a preconcerted and premeditated fraud ; in other words, by a trick. 
 There was therefore abundant evidence of larceny, and in my opinion 
 the conviction should be affirmed.^ Conviction affirmed. 
 
 1 Stinson v. People, 43 111. 397 ; Grnnson v. State, 89 Ind. 533 ; Miller v. Com., 
 78 Ky. 15 ; People v. Shaw, 57 Mich. 403 ; Loomis v. People, 67 N. Y. 322. But see 
 Rex V. Nicholson, Leach (4th ed.), 610; Peg. v. Riley, 1 Cox C. C. 98. — Ed.
 
 682 KEGINA V. SOLOMONS. [CHAP. VIII. 
 
 REGINA V. SOLOMONS. 
 Crown Case Reserved. 1890. 
 
 [Reported 17 Cox C. C. 93.] 
 
 Case stated b}' the Deputy-chairinau of the London County Quarter 
 Sessions, as follows : — 
 
 The above prisoner was tried before me on the 20th day of February, 
 1890, upon an indictment which charged that he " did on the 2d day of 
 February, 1890, feloniously steal, take, and cany away three shillings 
 and sixpence, the property of Edward Davy." The second count 
 charged him " with feloniously receiving the same, well knowing it was 
 stolen." 
 
 The prosecutor Edward Dav}' deposed as follows : — 
 
 That on the 2d da}- of February in this year I was near Aldgate, 
 when the prisoner came up to me. At that time there was another man 
 standing a little way off selling purses. The prisoner said, " I '11 show 
 you how the trick is done." He then opened a purse which he had in 
 his hand, and putting three shillings in his other hand said, " You see 
 tliere are three shillings there." I said, " Yes." He then dropped them, 
 or appeared to do so, into the purse. He then asked nie if I would 
 give him one shilling for the three shillings and the purse. I hesitated, 
 but afterwards gave him a shilling for the three shillings and the 
 purse, and put the purse into my pocket. He then pulled out another 
 purse, and showing two half-crowns in his hand, put them, or appeared 
 to put them, into the purse, and asked me if I would give him half a 
 crown for the two half-crowns and the purse. I gave him half a crown. 
 The prisoner then said, " Just to show that I am not cheating, and to 
 let the public see it, you had better give me one-and-sixpence for my- 
 Bclf " which I did. I then walked a little distance awaj- and opened 
 the first purse which he had said contained three shillings, and found 
 only three halfpence. In the second purse, which was said to contain 
 two half-crowns, I found two penu}' pieces onl^'. 
 
 In cross-examination the prosecutor stated that the prisoner prom- 
 ised him three shillings for one shilling, that he bought the three 
 shillings and the purse, that he did not buy on speculation, and that 
 he was willing to take the half-crown, if the prisoner was willing to 
 part with it ; that he never said that he parted with his money to see 
 how the trick was done, and that at the time he was on his way to the 
 Tabernacle to hear Mr. Spurgeon. 
 
 Another witness, named Norfolk, in every particular corroborated the 
 story, but his evidence will be unnecessary to give in detail. 
 
 A constable named Burnett was also called, and stated that he took 
 the prisoner into custody for stealing three shillings and sixpence. 
 Prisoner in reply said, " Serve him right; more fool he to bu}' them." 
 On being searched there were found on prisoner seven purses and 
 eleven shillings in silver. The prosecutor on being recalled stnted that
 
 SECT, v.] EEGINA V. SOLOMONS. 683 
 
 he did not care for the purses, but that he wanted the money which 
 the prisoner promised. 
 
 Upon this state of facts it was argued b^- counsel for the prisoner 
 that the prisoner ought not to liave been indicted for larceny, because 
 the prosecutor voluntarily i)arte(l with his mone}-, both the possession 
 and the ownership, in return for the money which he hoped to get- 
 Cases were quoted in support of this statement. 
 
 I overruled the objection, and pointed out tliat in mj' opinion there 
 was no difference between the present state of facts and the crime of 
 larceny as coniraitled in the case of ''ring dropping," and that although 
 tlie indictment might have been framed for obtaining money by false 
 pretences, the present one was equally good to maintain the crime of 
 larceny' by a trick. 
 
 The verdict was as follows: " We find the prisoner guilt}' of ' ob- 
 taining' the mone}- b}' a trick." I asked the jurj- wliat they meant; 
 did the}' mean tliat the prisoner committed the crime of larcen}' by 
 a trick as explained by me? and the}' answered in the affirmative. 
 
 I, considering it of importance to have it determined whether this 
 form of crime came within the misdemeanor of obtaining goods by false 
 pretences, or whether it was a felony, decided to state this case, which 
 I respectfully do, for the consideration of the Court of Criminal 
 Appeal. 
 
 The question for the opinion of the court is, whether I was right in 
 holding and directing the jury tliat the prisoner might be convicted of 
 larceny by trick. 
 
 Keith Frith, on behalf of the prisoner. There was no larceny or 
 trick here, for wherever the ownership as well as the possession of 
 goods is parted with, there can be no larceny. The prisoner should 
 have been indicted for obtaining the coins by false pretences. Where 
 it has been held that there has been larceny by a trick, such as the 
 confidence trick, the possession and not the ownership has been parted 
 with. [Lord Coleridge, C.J. — In Reg. v. Robson (R. & R. 413) 
 money was deposited for a pretended bet, and it was held to have 
 been a case of larceny.] That was because there the money was only 
 deposited, and though the possession was parted with the ownership 
 of the money did not pass. In Reg. v. Wilson (8 C. & P. Ill), the 
 ring-dropping case, it was held to be a case of false pretences. [The 
 court here adjourned, and upon re-assembling on the 17th day of May, 
 called upon the counsel for the prosecution to support the conviction.] 
 
 3ray Xlth. Slade Butler for the prosecution. The question here 
 is, whether or not this particular trick comes within the definition of 
 larceny. It is said that it does not, because the prosecutor intended 
 to part with the ownership of the coins. But the intention in the mind 
 of the prosecutor cannot alter the nature of the crime. The question is 
 really what was the intention of the prisoner when he took the coins ; 
 and there can be no doubt but that he intended to obtain them wrong- 
 fully. The point is concluded by the case of Reg. v. Middleton (28 L. T. 
 Rep. N. S. 777 ; 12 Cox C. C. 417 ; L. Rep. 2 C. C. R. 38 ; 42 L. J. 73,
 
 684 KEGINA V. SOLOMONS. [CHAP. VIII. 
 
 M. C). There must be a genuine contract in order to pass the prop- 
 erty, and here there was never an}" contract. The prosecutor here 
 never intended to contract for what he obtained. He also cited Reg. v, 
 Buckmaster (57 L. T. Rep. N. S. 720 ; 16 Cox C. C. 339.; 20 Q. B. 
 Div. 182; 57 L. J. 25, M. C). 
 
 LoKD Coleridge, C.J. This case is really upon consideration too 
 clear for me to entertain an}- doubt about it. Of course one hesitates 
 to let off a man if he is guilt}' of a gross fraud, and it is matter for 
 regret to have to let off a man who is really guilty of something. But as 
 long as we have to administer the law we must do so according to the 
 law as it is. We are not here to make the law, and by the law of 
 England, though it is enacted by 24 & 25 Vict. c. 96, s. 88, that a man 
 indicted for false pretences shall not be acquitted if it be proved that 
 he obtained the property with stealing which he is charged in any such 
 manner as to amount in law to larceny, unfortunately the statute stops 
 there, and does not go on to say that if upon an indictment for larceny 
 the offence committed is shown to be that of false pretences, the prisoner 
 tnay be found guilty of the latter offence. The statute not having said 
 it, and the one offence being a misdemeanor while the other is a felony, 
 you cannot according to the ordinary principles of the common law 
 convict for the misdemeanor where the prisoner is indicted for the 
 felony. Now the law is plain that, where the property in an article is 
 intended to be parted with, the offence cannot be that of lai-ceny. Here 
 it is quite clear that the prosecutor did intend to part with the property 
 in the piece of coin, and the case is not like any of those cases in which 
 the prosecutor clearly never intended to part with tlie property in the 
 article alleged to have been stolen. Whether or not the prosecutor 
 here intended to part with the property in the coin does not signif}- if 
 what he did was in effect to part with it for something which he did 
 not get. I have already said that you cannot convict of false pretences 
 upon an indictment for larceny, and as the offence here was, if an}''- 
 thing, that of false pretences, and the indictment was for larceny, it 
 follows that this man must get off upon this indictment. I am there- 
 fore of opinion that this couA'iction must be quashed. 
 
 Hawkins, J. I cannot myself imagine a clearer illustration of the 
 difference between the offence of false pretences and that of larcenj' 
 than is afforded by this case. It is perfectly clear that the prosecutor 
 intended to part with the property in the coins, and that being so, the 
 case is clearly not that of larceny. The conviction must therefore be 
 quashed. 
 
 Mathew, J. This is a case of false pretences, if anything, and not 
 of larceny ; and I am of opinion therefore that the conviction must be 
 quashed. 
 
 Day, J. I entirely concur with my Lord. 
 
 Grantham, J. I am of the same opinion. 
 
 Conviction quashed} 
 
 1 Ace. Reg. V Williams, 7 Cox C. C. 355 ; Reg. v McKale, 11 Cox C. C. 32 ; Reg. v. 
 Twist, 12 Cox C. C. 509 ; Reg. v. HoUis, 15 Cox C. C. 32. — Ed.
 
 SECT, v.] REGINA V. RUSSETT. 685 
 
 REGINA V. RUSSETT. 
 Crown Case Reserved. 1892. 
 
 [Reported [189^] 2 Q. B. 312.] 
 
 Case stated by the Deputy-chairmau of the Gloacestersliire Quarter 
 Sessions : — 
 
 The prisoner was tried and convicted upon an indictment, charging 
 him with having feloniously stolen on March 26, 1892, the sum of £8 
 in money of the moneys of James Brotherton. It appeared from the 
 facts proved in evidence that on the day in question the prosecutor 
 attended Winchcomb fair, where he met the prisoner, who offered to 
 sell him a horse for £2-1 ; he subsequently agreed to purchase the 
 horse for £23, £8 of which was to be paid down, and the remaining 
 £ir> was to be handed over to the prisoner either as soon as the pros- 
 ecutor was able to obtain the loan of it from some friend in the fair 
 (which he expected to be able to do) or at the prosecutor's house at 
 Little Hampton, where the prisoner was told to take the horse if the 
 balance of £15 could not be obtained in the fair. The prosecutor, his 
 son, tlie prisoner, and one or two of his companions, then went into a 
 public house where an agreement in the following words was written 
 out by one of the prisoner's companions, and signed by prisoner and 
 prosecutor: " 2Gth March, G. Russett sell to Mr. James and Brother 
 [sR-] brown horse for the sum of £23 Os. Od. Mr. James and Brother 
 pay the sum of £8, leaving balance due £15 Os. Od. to be paid on 
 delivery." The signatures were written over an ordinary penny stamp. 
 The prosecutor thereupon paid the prisoner £8. The prosecutor said 
 in the course of his evidence : " I never expected to see the £8 back, 
 but to have the horse." Tlie prisoner never gave the prosecutor an 
 opportunity of attempting to borrow the £15, nor did he ever take or 
 send the horse to the prosecutor's house ; but he caused it to be 
 removed from the fair under circumstances from which the jury in- 
 ferred that he had never intended to deliver it. 
 
 It was objected on behalf of tlie prisoner that there was no evidence 
 to go to the jury, on the ground that the prosecutor parted absolutely 
 with the £8, not only with the possession but with the property in it; 
 and, consequently, that the taking by the prisoner was not larceny, 
 but obtaining money by false pretences, if it was a crime at all ; the 
 objection was overruled. In summing up, the Deputy-chairman directed 
 the jury that if they were satisfied from the facts that the prisoner 
 had never intended to deliver the horse, but had gone through the 
 form of a bargain as a device by which to obtain the prosecutor's 
 money, and that the prosecutor never would have parted with his £8 
 had he known what was in the prisoner's mind, they should find the 
 prisoner guilty of larceny.
 
 686 REGINA V. RUSSETT. [CHAP. VIII. 
 
 Tlie question for the court was whether the Deputy-chairman was 
 right in leaving the case to the jury. 
 
 Gwynne James, for the prisoner. The conviction was wrong. The 
 only offence disclosed was that of obtaining money by false pretences. 
 There was no evidence to go to the jury upon a charge of larceny. 
 The property in the money passed to the prisoner at the time when it 
 was handed to him by the prosecutor, who admittedly never expected to 
 see it again ; the receipt given for the money is strong evidence of the 
 chauge of property. The case is distinguisliable from Keg. v. Buck- 
 master, 20 Q. B. D. 182 ; for in that case the question was whether 
 the prosecutor expected to have his money back. There is in the 
 present case a breach of contract, for which the prosecutor has a civil 
 remedy, and it is immaterial that the prisoner in making the contract 
 had a fraudulent intent. Rex v. Harvey, 1 Leach, 467. For the fact 
 that the contract was induced by fraud did not render the contract 
 void, or prevent the property from passing. Clough v. Loudon and 
 North Western Ry. Co., Law Rep. 7 P^x. at p. 34. The principle of 
 law is stated in Roscoe's Criminal Evidence, 11 th ed. at p. 620, where it 
 is said : " The doctrine is clearly established that, if the owner intends 
 to part with the property in the goods, and in pursuance of such inten- 
 tion delivers the goods to the prisoner, who takes them away, and the 
 property becomes his, this is not larceny, even though the prisoner has 
 from the first a fraudulent intention." 
 
 Stroud, for the prosecution, was not called upon. 
 
 Lord Coleridge, C. J. I am of opinion that this conviction must 
 be supported. The principle which underlies the distinction between 
 larceny and false pretences has been laid down over and over again, 
 and it is useless for us to cite cases where the facts are not precisely 
 similar when the principle is always the same. When the question is 
 approached it will be found that all the cases, with the possible excep- 
 tion of Rex V. Harvey, 1 Leach, 467, as to which there may be some 
 slight doubt, are not only consistent with, but are illustrations of, tlie 
 principle, which is shortly this : if the possession of the money or 
 goods said to have been stolen has been parted with, but the owner did 
 not intend to part with the property in them, so that part of the trans- 
 action is incomplete, and the parting with the possession has been 
 obtained by fraud — that is larceny. This seems to me not only good 
 law, but good sense, and this principle underlies all the cases. If, 
 however, authority be wanted, it is to be found in two cases which we 
 could not overrule without the very strongest reason for so doing : the 
 first is Reg v. McKale, Law Rep. 1 C. C. 125, where Kelly, L.C.B., 
 said, " The distinction between fraud and larceny is well established. 
 In order to reduce the taking under such circumstances as in the 
 present case from larceny to fraud, the transaction must be complete. 
 If the transaction is not complete, if the owner has not parted with 
 the property in the thing, and the accused has taken it with a fraudu- 
 lent intent, that amounts to larceny." The distinction, in which I
 
 SECT. V.J REGINA V. KUSSETT, 687 
 
 entirely concur, is there expressed in felicitous language by a very 
 high authority. The other case is that of Reg. v. Buckmaster, 20 
 Q. B. D. 182, which seems to me directly in point; that decision was 
 grounded on Rex v. Oliver, 2 Russell on Crimes, 170, and Rex v, 
 Robson, Russ. & Ry. 413, where the same principle w^is applied, and 
 the same conclusion arrived at. 
 
 Pollock, B I agree in the conclusion at which the court has 
 arrived, and would add nothing to the judgment of my Lord but that I 
 wish it to be understood that this case is decided on a ground which 
 does not interfere with the rule of law which has been so long: 
 acted on : that where the prosecutor has intentionally parted with the 
 property in his money or goods as well as with their possession there 
 can be no larceny. My mind has therefore been directed to the facts 
 of the case, in order to see whether the prosecutor parted with his 
 money in the sense that he intended to part with the property in it. 
 In my opinion, he certainly did not. This was not a case of a payment 
 made on an honest contract for tlie sale of goods, which eventually 
 may, from some cause, not be delivered, or a contract for sale of a 
 chattel such as in Rex v. Harvey, I Leach, 4G7 ; from the first the 
 prisoner had the studied intention of defrauding the prosecutor ; 
 he put forward the horse and the contract, and the prosecutor, believ- 
 ing in his bona fides, paid him £8, intending to complete the purchase 
 and settle up that night. The prisoner never intended to part with the 
 horse, and there was no contract betw^een the parties. The money 
 paid by the prosecutor was no more than a payment on account. 
 
 Hawkins, J. I am entirely of the same opinion. In my judgment 
 the money was merely handed to the prisoner by way of deposit, to 
 remain in his hands until completion of the transaction by delivery 
 of the horse. He never intended, or could have intended, that the 
 prisoner should take the money and hold it, whether he delivered the 
 horse or not. The idea is absurd; his intention was that it should be 
 held temporarily by the prisoner until the contract was completed, 
 while the prisoner knew well that the contract never would be com- 
 pleted, by delivery ; the latter therefore intended to keep and steal the 
 money. Altogether, apart from the cases and from the principle which 
 has been so frequently enunciated, I should not have a shadow of 
 doubt that the conviction was right. 
 
 A. L. Smith, J. The question is whether the prisoner has been 
 guilty of the offence of larceny by a trick or that of obtaining money 
 by false pretences ; it has been contended on his behalf that he could 
 only have been convicted on an indictment charging the latter offence ; 
 but I cannot agree with that contention. The difference between the 
 two offences is this : if possession only of money or goods is given, 
 and the property is not intended to pass, that may be larceny by a 
 trick ; the reason being that there is a taking of the chattel by the 
 thief against the will of the owner ; but if possession is given and it 
 is intended by the owner that the property shall also pass, that is not
 
 688 REX V. TIDESWELL. [CHAP. VIII. 
 
 larceny by a trick, but may be false pretences, because in that case 
 there is no taking, but a handing over of the chattel by the owner. 
 This case, therefore, conies to be one of fact, and we have to see 
 whether there is evidence that, at the time the £8 was handed over, 
 the prosecutor intended to pass to the prisoner the property in that 
 sura, as well as to give possession. I need only refer to the contract, 
 which provides for payment of the balance on delivery of the horse, to 
 shew how impossible it is to read into it an agreement to pay the £8 
 to the prisoner wliether he gave delivery of the horse or not ; it was 
 clearly only a deposit by way of part payment of the price of the 
 horse, and there was ample evidence that the prosecutor never intended 
 to part with the property in the money when he gave it into the 
 prisoner's possession. 
 
 Wills, J. I am of the same opinion. As far as the prisoner is 
 concerned, it is out of tlie question that he intended to enter into a 
 binding contract ; the transaction was a mere sham on his part. The 
 case Is not one to which the doctrine of false pretences will apply, and 
 I agree with the other members of the court that tlie conviction must 
 be affirmed. Conviction affirmed.^ 
 
 REX V. TIDESWELL. 
 
 Court for Crown Cases Reserved. 1905. 
 
 [Reported \90^, 2 K. B. 273.] 
 
 Case stated by the cliairman of the Staffordshire Quarter Sessions 
 for the consideration of the Court for Crown Cases Reserved. 
 
 1. The prisoner was tried on an indictment charging him — ■ 
 
 («) With feloniously stealing 1 ton 10 cwt. of casters' ashes on Jan- 
 uary 28, 1904, the property of Allen Everitt & Sons, Limited. 
 
 (b) With receiving the said goods on the date aforesaid well knowing 
 them to have been stolen. 
 
 (c) With feloniously stealing 1 ton 6 cwt. of casters' ashes on April 
 21, 1904, tlie property of the said Allen Everitt & Sons, Limited. 
 
 (d) With receiving the last-mentioned goods on the said date well 
 knowing them to have been stolen. 
 
 2. It was proved tliat the prisoner had been a customer of Allen 
 Everitt & Sons, Limited, for a number of years, purchasing waste and 
 residual metal products from them. A man named Ephraim Kaye was 
 emplo^-ed b}' Allen Everitt & Sons, Limited, as general metal weigher, 
 and it was his duty to weigh out waste and residuals, and to enter in a 
 book, called the residual metal book, a record of such weights for the 
 purpose of enabling the customers to be charged in the books of the 
 company with the proper weights. It was also the duty of Ephraim 
 Kaye to keep another book, called the receipt book, in which he took 
 
 1 Ace. People v. Rae, 66 Cal. 423. See People i-. Raschke, 73 Cal. 378. — Ed. 
 
 'it. 
 
 1
 
 SECT, v.] REX V. TIDESWELL. 689 
 
 from the customers signed receipts for the weights of waste and resid- 
 uals taken by them. 
 
 3. On January 23, 1904, Ephraim Kaye weighed and delivered into 
 trucks of the railway company a quantity of casters' ashes, a residual 
 metal product, tlie property of Allen P^veritt & Sons, Limited, weighino- 
 m fact 32 tons 13 cwt. Ephraim Kaye made out a receipt for these 
 casters' ashes by the prisoner in his receipt-book, describing them as 
 weighing 31 tons 3 cwt. only, and tljis receipt was, on January 23, 
 signed by the prisoner, who was charged with that amount only in the 
 books of the company. On January 20 and 23 the prisoner made out 
 tu-o consignment notes to the railway company in his own handwriting 
 for 19 tons 9 cwt. and 13 tons 4 cwt. respectively of casters' ashes, 
 amounting together to 32 tons 13 cwt. 
 
 4. On April 21, 1904, Ephraim Kaye weighed and delivered into 
 two trucks of the railway company a quantit}' of casters' ashes, the 
 property of Allen Everitt & Sons, Limited, weighing in fact 12 tons 16 
 cwt. 2 qrs. The prisoner on April 20 signed a receipt made out by 
 Ephraim Kaye in his receipt-book for 11 tons 10 cwt. 2 qrs. only, and 
 was charged witli that weight in the books of the company. The pris- 
 oner on April 21 made out a consignment note to the railwaj' company 
 in his own handwriting for 12 tons 16 cwt. 2 qrs. of casters' ashes. 
 
 5. Ephraim Kaye, who, on being charged with the aforementioned 
 felonies before magistrates at petty sessions, pleaded guilty, and was 
 sentenced to three months' imprisonment, was called on behalf of the 
 prosecution, and stated that he entered the lesser weights in the resid- 
 ual metal book and receipt-book intentionallj', and that he kept a pri- 
 vate book, to which he referred at the trial, in which he entered all the 
 correct weights of goods weighed out to the prisoner, who obtained 
 these correct weights from him, or through being present at the time 
 they were entered. He said that he had no previous arrangement or 
 understanding with the prisoner that he was to be charged for less 
 casters' ashes than were to be sent, and that he could not say that he 
 iiad ever told the prisoner that he was being charged for less than the 
 actual weights on any occasion, and that there was no understanding as 
 to any particular deduction from weights, though (he added) deductions 
 were as a matter of fact made; but the prisoner had given him sums 
 of money from time to time as a reward for these s.ervices generally, 
 though not as a payment in respect of any particular transaction. All 
 the casters' ashes that were put into the railway company's trucks were 
 loaded in the ordinar}' course of business between Allen Everitt & Sons, 
 Limited, and the prisoner. 
 
 6. On this evidence it was objected by counsel for the prisoner that 
 the indictment was not supported by the evidence, on the ground that 
 there was no proof of the larceny or receiving b}' the prisoner of any 
 specific goods. 
 
 7. I overruled the objection, but consented to reserve the point for 
 the consideration of the Court for Crown Cases Reserved. I told the
 
 690 REX V. TIDESWELL. [CHAP. VIII. 
 
 jury that if they believed the evicience for the prosecution, their duty 
 was to find the prisoner guilty. The jury found the prisoner guilty. 
 
 March 18. Vachell, for the prisoner. The ashes put into the trucks 
 were never divided, so that it was impossible to say which particular 
 tons or hundredweight were stolen. " In larceny some particular arti- 
 cle must be proved to have been stolen ; " per Alderson, B., Reg. v. 
 Lloyd Jones (1838), 8 C. & P. 288. Secondly, the evidence shews that 
 the property in the whole of the ashes weighed out by Kaye passed fromi 
 the prosecutors. Sale of Goods Act, 1893, § 18, rule 3. 
 
 B. W. Coventry, for the prosecution. It is enough to specify the 
 amount stolen, although it forms part of a larger bulk. Kaye had no 
 authority from the prosecutors to transfer the property in any portion 
 of the ashes except to the extent of the entry made by him in the resid- 
 ual metal book. And the prisoner, knowing that he had no such 
 authority, got no property in the excess. Reg. v. Hornby (1844), 
 1 C. & K. 305. 
 
 The Court ordered the case to be remitted to the quarter sessions 
 with directions that the following questions should be answered : — 
 
 (a) Was there any previous or contemporary contract between the 
 prisoner and Allen Everitt & Sons, Limited, or any authorized agent 
 or servant of Allen Everitt & Sons, Limited, other than Kaye, either 
 for the sale of these ashes or the sale of any quantities of ashes ? If so, 
 the particulars of the terms of the contract should be set out. 
 
 {b) Was there any contract between the prisoner and Kaye for the 
 sale of the ashes on either of the dates laid in the indictment? If so, 
 the particulars of the contract should be set out. 
 
 In accordance with that order the chairman stated as follows : — 
 
 The evidence at the trial did not disclose any such contract as re- 
 ferred to in paragraph (a) or in paragraph {b). The managing director 
 of the prosecutors stated in evidence that the prisoner was a customer 
 as buyer of residuals, and that he had sold as much as 3000/. in value 
 to the prisoner, and that he had known the prisoner fifteen years in 
 the way of business. The practice appears to have been that when 
 Allen Everitt & Sons, Limited, had an accumulation of waste residuals 
 or ashes they sent for the prisoner, who saw the managing director and 
 arrano-ed verbally with him to buy so much as he should require of the 
 bulk at so much per ton. No specific quantities would be mentioned, 
 the understanding being that the quantities purchased should be de- 
 fined by the weighing. The ashes, the subject of the indictment, formed 
 part of one of these accumulations. 
 
 May 20. R. W. Coventry^ for the prosecution. 
 
 Vachell, for the prisoner. The property in the whole of the truck- 
 loads passed to the prisoner as soon as they were separated from the 
 bulk and weighed and put into the trucks for the prisoner. For noth- 
 ing else remained to be done to pass the property. Whatever fraud 
 was afterwards perpetrated could not alter the fact. The prosecutors 
 intended the whole of the goods to go to the prisoner, for, by the terms
 
 SECT, v.] REX V. TIDESWELL. 691 
 
 of the arrangement, he was to take as much as he pleased. What the 
 prosecutors were deprived of was not a certain quantit}' of goods, but 
 a part of the price. 
 
 Lord Alverstone, C. J. Upon the point reserved for our consid- 
 eration upon the case as originally stated, namely, whether the indict- 
 ment for larceny could be supported in the absence of proof of larceny 
 of any specific portion of the goods, I entertained no doubt whatever. 
 But in the course of the argument a question was raised as to whether 
 the property in the goods had not already passed to the prisoner at the 
 time of the fraudulent entry in the weight-book, and whether conse- 
 quentl}', whatever other criminal offence he might have committed, he 
 could be properly charged with larceny ; and as we thought the case 
 did not sufficiently state the facts with respect to that matter, we sent 
 it back to be restated. The question whether tlie prisoner's offence 
 amounts to larcenj- must depend upon the circumstances under which 
 he received the goods. Suppose the owner of a flock of sheep were to 
 offer to sell, and a purchaser agreed to buy, the whole flock at so 
 much a head, the owner leaving it to his bailiff to count the sheep and 
 ascertain the exact number of the flock, and subsequently the purchaser 
 were to fraudulently arrange with the bailifl' that whereas there were in 
 fact thirty sheep they should be counted as twenty-five, and the pur- 
 chaser should be charged with twenty-five only, there would be no 
 larceny, because the property would have passed to the purchaser 
 before the fraudulent agreement was entered into. On the other hand, 
 if the owner were to leave it to his bailiff to arrange the sale, author- 
 izing him to sell as many sheep out of the fiock as the purchaser should 
 be willing to buy, then if the contract of sale arranged between the 
 bailiff and the purchaser was expressed to be for twenty-five sheep, 
 and the whole tiiirty were fraudulently delivered to the purchaser, the 
 obtaining possession of the five sheep as to which there was no contract 
 of sale would amount to larceny. In the present case, as restated, it 
 appears that there was no contract wTtli the managing director that the 
 prisoner should buy the whole of the ashes in the trucks, but only such 
 a quantity as should be defined by the weighing ; in other words, there 
 was no contract of purchase except that made with Kaye. That being 
 so, the case is governed by the principle of Reg. v. Hornby, 1 C. & K. 
 305, where the prisoner received goods from the servant of the owner 
 under color of a pretended sale, and it was held that the fact of his 
 having received the goods with the knowledge that the servant had no 
 authority to sell, and was in fact defrauding his master, was sufficient 
 to support an indictment for larceny. I am of opinion that the convic- 
 tion in this case must be upheld. 
 
 Lawrance, J. I am of the same opinion.
 
 692 KEX V. TIDESWELL. ' [CHAP. VIII. 
 
 Kennedy, J. I agree in the statement of the law by m}' Lord, and 
 I also think that upon the ease as originally stated it was not clear 
 that the facts shewed the prisoner to have been guilty of larceny within 
 that statement. It was contended that what took place was an ar- 
 rangement whereb\- the property passed to the prisoner. If there had 
 been a completed contract with the managing director, or some other 
 official of the company covering all the goods in the trucks, tiien no 
 doubt the property would have passed, and no subsequent fraud would 
 make the receipt of the goods larceny. The offence in such a case 
 would be only a conspiracy' to defraud the sellers of part of the price. 
 But here, on the facts as now stated, there was no intention by the 
 prosecutors to pass the propert}' except in such goods as should bi- 
 ascertained by the weighing, — that is to sa3-, in the smaller quantity. 
 Conseqently there was a larceny of the balance. 
 
 Channell, J. I agree. It appears to me that the question whether 
 the prisoner could properly be convicted of larceny depends upon 
 whether there was a contract between Allen Everitt & Sons, Limited, 
 and the prisoner for the sale of the casters' ashes other than a contract 
 made through the agenc}' of the fraudulent man Kaye. To take the 
 illustration given during the argument of the sale of sheep. If a farmer 
 sells all the sheep in a field to a purchaser at so much per head, but not 
 knowing for certain how many sheep there are, sends his servant with 
 the purchaser to count them, and the servant and the purchaser fraud- 
 ulently agree to say that there were onlj' nineteen sheep when there 
 really were twenty, there is no larceny because all the sheep have been 
 sold by their owner to the purchaser, but the purchaser and the servant 
 have conspired to defraud the owner of the price of one sheep. If, 
 however, a farm bailiff, having authority to sell his master's sheep in 
 the ordinary wa}', says to a purchaser, " There are twenty sheep in the 
 field belonging to my master, but he does not know how man}- there 
 are ; you can take them all. I will tell my master you had nineteen 
 only, and you can pay him for nineteen and give me a present for 
 myself," there is clearly a, larceny of one sheep, and that whether the 
 bailiff professes to sell the twenty sheep, or whether he professes to sell 
 nineteen onl}', for the fraud of the servant is known to the purchaser, 
 and no property passes in the twentieth sheep by the act so known to 
 be fraudulent, even if the bailiff professes to part with the property in 
 it. Reg. V. Hornb}', 1 C. & K. 305, is a distinct authority' for this. It 
 is a decision of Coltman, J., alone, but it appears to be good law. Reg. 
 V. Middleton (1873), L. R. 2 C. C. 38, also supports this view, and so 
 do all the cases as to what is usually called larceny by a trick. In the 
 case supposed it would be impossible to say which of the twent}' sheep 
 was the one which had been stolen, but it could not be said that that 
 would prevent a conviction. The suggested difficulty in the present
 
 SECT. VI.] REX V. WILKINSON. 693 
 
 case of identifjing the ton and a half of casters' ashes which was stolen 
 is, in my opinion, no more fatal than the difficulty as to the sheep 
 would be. In the present case the jury must be taken to have found 
 that the prisoner was a partj' to the fraud, and though he maj- not have 
 known what quantity was on any particular occasion to be given to him 
 without paying for it, or even that on a particular parcel being handed 
 to him some part would be so given to hira (for Kaye doubtless would 
 only commit the fraud when the circumstances presented a reasonable 
 probability of its being done without detection), yet the prisoner must 
 be taken to have known before the transactions the subjects of this 
 indictment that Kaye would probably do on this occasion what he liad 
 clearly done on others, and in the cases when he did so there would be 
 a larcen}' committed by both, though in the other cases, when the stuff 
 was correctly weighed, there would be none. On these points I find 
 no difficult}', but in the case as originally stated there was nothing to 
 shew whether the whole transaction of the sale of the casters' ashes 
 was carried through by Kaj'e, or whether the limited company by any 
 other officer or agent made a contract for the sale. 
 
 Phillimore, J. I entirely agree. Convictioti affirmed. 
 
 SECTION VI. 
 
 Animus furandi. 
 
 REX V. WILKINSON. 
 Crown Case Reserved. 1821. 
 
 [Reported Russell Sf Ryan, 470.] 
 
 The prisoners were tried before Mr. Justice Park (present Lord 
 Chief Justice Abbott) at the Old Bailey Sessions, October, 1821, on 
 an indictment for stealing six thousand six hundred and ninety- six 
 pounds' weight of nux vomica, value thirty pounds, the property of 
 James Marsh, Henry Coombe, and John Young, in a certain boat 
 belonging to them in the port of London, being a port of entry and 
 discharge. 
 
 It appeared in evidence that the prosecutors were lightermen and 
 agents, and were employed by a Mr. Cooper, a merchant, who delivered 
 them warrants properly filled up to enable them to pass the nux 
 vomica through the custom house for exportation to Amsterdam. 
 The quantity was thirty bales of nux vomica, consisting of seven 
 hundred and fift}' bags. 
 
 For exportation this commodity paid no duty ; but for home con- 
 sumption there was a duty of two shillings and sixpence on the pound
 
 694 REX V. WILKINSON. [cHAP. VIII. 
 
 weight, though the article itself was not worth above one penny per 
 pound. 
 
 Messrs. Marsh & Co. entered the bales for a vessel about to sail to 
 Amsterdam, called the "York Merchant," then lying in the London 
 dock ; and having done what was necessary delivered back the cocket 
 bill and warrants to Cooper, considering him as the owner, and Marsh 
 & Co. gave a bond to Government with Cooper under a penalty to export 
 these goods. Marsh & Co. were to be paid for lighterage and for their 
 services. 
 
 After this Marsh & Co. employed the prisoner AVilkinson as their 
 servant, who was a lighterman (and who had originally introduced 
 Cooper to them to do what was necessary respecting the nux vomica), 
 to convey the goods from Bon Creek, where they were, to the " York 
 ]\Ierchant " at the London docks, and lent their boat witli the name 
 '•Marsh & Co." upon it to enable him so to do. 
 
 The prisoner Wilkinson accordingly went and got the nux vomica by 
 an order commanding the person who had the possession of it to de- 
 liver it to Mr. John Cooper. The bales were marked C. 4 to 33. 
 
 When Wilkinson received the cargo, instead of taking it to the " York 
 Merchant" he, one William Marsden, and the other prisoner, Joseph 
 Marsden, took the boat to a Mr. Brown's, a wharfinger at Lea Cut in 
 the county of Middlesex, and there unloaded it into a warehouse which 
 William Marsden had hired three weeks before, and which they had 
 used once before. The two prisoners and William Marsden were 
 there employed a long time in unpacking the bales, taking out the 
 nux vomica, repacking it in smaller sacks, and sending it by a wagon 
 to London, and refilling the marked bales with cinders and other 
 rubbish which they found on the wharf. 
 
 The prisoner Wilkinson then put the bales of cinders, etc., on board 
 the boat, took them to the "York Merchant," hailed the vessel, and 
 said he had thirty bales of nux vomica, which were put on board and 
 remained so for two or three days when the searcher of the customs 
 discovered the fraud. 
 
 Marsh & Co. admitted that they had not been called on for any du- 
 ties nor sued upon the bond, though the bond remained uncancelled. 
 
 The defence was, and which Cooper was called to prove, that the 
 goods were not his (Cooper's), but that he had at William Marsden's 
 desire lent his name to pass the entry ; and that he had done so, but 
 did not know why ; that he did not know it was a smuggling trans- 
 action, or that the object was to cheat Government of the importation 
 duties. 
 
 If these were to be considered as the goods of Cooper then it should 
 seem a felony was committed upon them by Wilkinson and the two 
 Marsdens by taking them in the manner described out of the hands of 
 Marsh & Co. without their knowledge or consent, who as lightermen 
 or carriers had a special property in them, and who were also liable to 
 Government to see the due exportation of them.
 
 r 
 SECT. VI.] KEGINA V. WEBSTER. 695 
 
 Even if they were the goods of William Marsden, who superintended 
 the shifting of them from the bales to the sacks, the question for the 
 judges to consider was whether this can be done by an owner against 
 a special bailee who has made himself responsible that a given thing 
 shall be done with the goods, and which the owner, without the knowl- 
 edge or consent of such bailee, had by a previous act entirely 
 prevented. 
 
 The learned judge told the jury that he would reserve this point for 
 the opinion of the judges ; but desired them to say whether they 
 thought the general property in the goods was in Cooper or William 
 Marsden. 
 
 The jury found the prisoners guilty, and that the property was Wil- 
 liam Marsden's. 
 
 In Michaelmas Term, 1821, eleven of the judges (Best, J., being ab- 
 sent) met and considered this case. Four of the judges, namely, 
 Richardson, J., Bukkough, J., Wood, B., Graham, B., doubted 
 whether this was larceny because there was no intent to cheat Marsh 
 & Co. or to charge them, but the intent was to cheat the Crown. 
 Seven of the judges, namely, Garrow, B., Holroyd, J., Park, J., 
 Bayley, J.. Richards, C. B., Dallas, C. J., Abbott, L. C. J., held it 
 a^larceu}^ because Marsh & Co. had a right to the possession until the 
 goods reached the ship ; they had also an interest in that possession, 
 "snid' the intent to deprive them of their possession wrongfully and 
 against their will was a felonious intent as against them, because it 
 'exposed them to a suit upon the bond. In the opinion of part of the 
 "seven judges this would have been larceny although there had been 
 no felonious intent against Marsh & Co., but only an intention to 
 defraud the Crown. ^ 
 
 cA) 
 
 REGINA V. WEBSTER. 
 Crown Case Reserved. 1861. 
 
 [Reported 9 Cox C. C. 13.] 
 
 Case reserved for the opinion of this court by the Chairman of the 
 West Riding Sessions, held at Sheffield. 
 
 William Webster was indicted at the AVest Riding of Yorkshire 
 Spring intermediate sessions, held at Sheffield, on the 22d May, 1861, 
 for stealing, on the 11th of May, at Ecclesfield, three sovereigns and 
 one half-sovereign, the property of Samuel Fox and others. 
 
 It was proved on the trial that James Holt was in possession of a 
 shop, where goods were sold for the benefit of a society called the 
 *' Stockbridge Band of Hope Co-operative Industrial Society.'* 
 
 1 Vide Fost. 124— Rep.
 
 696 EEGINA V. WEBSTER. [CHAP, VIII. 
 
 Each member of the society partook of the profit, and was subject 
 to the loss arising from tlie shop. Holt (being himself a member) 
 had the sole management, and was answerable for the safety of all 
 the property and money coming to his possession in the course of 
 such management. The prisoner, also a member of the society, 
 assisted in the shop without salary. 
 
 On the occasion of the alleged larceny Holt had marked some sover- 
 eigns and half-sovereigns, and placed them in the till. The prisoner 
 was suspected of taking some of them, and when charged with this he 
 admitted that he had taken the coins which formed the subject of 
 this charge, and produced them from his pocket. 
 
 The prosecution failing to prove that this was a friendly society 
 duly enrolled, elected to amend the indictment by substituting the 
 name of James Holt for that of Samuel Fox and others, and the same 
 was amended accordingly. 
 
 The counsel for the prisoner put in a copy of the rules of the 
 society, with the name of John Tidd Pratt printed at the end thereof, 
 and proved that this copy had been examined with the original copy, 
 signed and sealed by the registrar of friendly societies, but which was 
 not produced. He also put in a conveyance of the shop and premises 
 to Samuel Fox and other as trustees. 
 
 No other evidence of the trusteeship was given. 
 
 The counsel for the prosecution objected that in order to prove the 
 society to be a friendly society under the 18 & 19 Vict. c. 63, it was 
 necessary to produce the original copy signed by the registrar, or to 
 account for its absence sufficiently to justify the admission of secondary 
 evidence. 
 
 I overruled this objection, and admitted this evidence as proof that 
 the society was duly enrolled. 
 
 It was contended for the prisoner that Fox and others were the 
 trustees ; that this was a friendly society, and that the property should 
 be laid in Fox and others, and not in Holt, and that the prisoner 
 could not therefore be convicted on the indictment as amended ; that 
 as to any special property Holt might have in the money taken, he 
 was joint owner of it with the prisoner, and as partner with him was 
 equally in possession of it, and could not therefore be convicted. 
 
 The court overruled these last mentioned objections, and the 
 prisoner was convicted and sentenced to be imprisoned in the house 
 of correction at Wakefield for nine calendar months, subject to the 
 opinion of the Court of Criminal Appeal whether under the circum- 
 stances the conviction was right. 
 
 The prisoner was admitted to bail to await the decision of the Court 
 of Criminal Appeal. 
 
 A copy of the rules of the society accompanies this case, and is to 
 be taken as incorporated therewith. 
 
 Wilson Overend, Chairman.
 
 SECT. VI.] KEGINA V. WEBSTER. 697 
 
 T. Camjjbell Foster, for the prisoner. It is contended that the in- 
 dictment as amended was not proved, and that the property ought to 
 have been laid as in Fox and others, the trustees of the friendly 
 society. The prosecutor having failed to prove that the property was 
 rightly laid in Fox and others, and the court having amended the 
 indictment by substituting Holt's name instead of Fox and others, the 
 prisoner produced the proper evidence to show that Fox and others 
 were the trustees of the society, and then objected to the indictment as 
 amended, on the ground that by the 18 & 19 Vict, c. 6S, s. 18, the 
 property of the friendly society was vested in the trustees. Sect. 19 
 empowers the trustees to bring or defend, or cause to be brought or 
 defended any action, suit or prosecution in any court of law or 
 equity, touching or concerning the property, right or claim to property 
 of the society, " and such trustees shall and may, in all cases con- 
 cerning the real or personal property of such society, sue and be 
 sued, plead and be impleaded in their proper names as trustees of 
 such society without other description." 
 
 Martin, B. What evidence was there to show that Holt was not 
 in possession of these sovereigns as of his own lawful property? 
 
 WiGHTMAN, J. Again, he was a partner, and had the personal 
 possession of these moneys. 
 
 T. Campbell Foster. It is submitted that the only possession Holt 
 had was that of a servant to the friendly society. If he had taken 
 and appropriated any of the moneys received b}' him, he might have 
 been indicted for embezzlement, and therefore he was a servant, and 
 his possession was that of the society his masters. 
 
 WiGiiTMAN, J. He was not a servant ; he was an owner, and had 
 the sovereigns in his personal possession. 
 
 Martin, B. He had the sole management of the shop, and was 
 answerable for the safety of all the property and money coming to 
 his possession in the course of such management. 
 
 T. Camjybell Foster. Then the prisoner, being also a member of the 
 the society, was a partner, and could not be convicted of stealing his 
 own propert}'. 
 
 Williams, J. There is the well-known case of a man, when the 
 hundred was liable, being convicted of stealing his own money from 
 his own servant. Foster, 123, 124. 
 
 WiGHTMAN, J. These sovereigns were not part of the goods in the 
 shop, but money for which Holt had to account. He cannot be treated 
 as a servant, because it would then follow that he was one of the 
 persons appointing himself. 
 
 Martin, B. Holt had got the sovereigns in his own pocket, as it 
 were, and suppose that while walking in the street some one had 
 picked his pocket of them, could not the thief have been indicted 
 for stealing his money? 
 
 T. Campbell Foster. The prisoner was assisting in the shop as a 
 partner without salary.
 
 698 ADAMS V. STATE. [CH\1*. VlII. 
 
 WiGHTMAN, J. No. Holt had the sole management of the shop. 
 
 Williams, J. IIow does this case differ from Rex v. Bramley, R. 
 & R. 478, where a member of a benefit society entered the room of a 
 person with whom a box containing the funds of the society was 
 deposited, and took and carried it away, and it was held to be 
 (arceny, and the property to be well laid in the bailee? 
 
 Pollock, C. B. No doubt a man who has pawned his watch with a 
 pawnbroker may be indicted for stealing it from the pawnbroker. 
 The present case finds that Holt was in possession of the shop, and 
 had the sole management, and was answerable for the safety of all 
 tEe"property and money coming to his possession in the course of such 
 management, and therefore he may, quoad hoc, be treated as the 
 owner. 
 
 By the Court : Conviction ajirmed. 
 
 ADAMS V. STATE. 
 Supreme Court of New Jersey. 1883. 
 
 [Reported 45 New Jerseij Law, 448.] 
 
 Knapp, J. The plaintiff in error was indicted for grand larceny at 
 the May term of the Union Oyer and Terminer, the indictment charg- 
 ing her with having feloniously stolen certain goods and chattels as 
 the property of Thomas W. Sloan, above the value of $20. She was 
 tried before the Quarter Sessions of that county, convicted upon the 
 trial, and sentenced to nine months' imprisonment at hard labor. The 
 property was levied upon by Sloan as the property of Catherine 
 Adams, under an execution which Sloan held, as constable, against 
 Eef ', the constable allowed the goods to remain at the house of the 
 plaintiff in error, the place of the levy, she being informed of the levy. 
 Before the time for sale under the execution, the plaintiff in error 
 took and disposed of the goods. 
 
 The case comes up on exceptions to the refusal of the court to 
 charge as requested, and upon the charge as made. The assignments 
 of error present the question whether larceny may be committed by the 
 general owner of property in taking it from one who has the special 
 ownership, without felonious intent in such taking. 
 
 It is impossible, under ordinary circumstances, for one to commit 
 larceny in taking possession of his own property, and the general 
 owner of goods, in their lawful possession, has full dominion and con- 
 trol over such goods ; but it seems to be well settled in the law that 
 larceny may be committed by a man stealing his own property, if the 
 taking be animo farandi, or with a fraudulent design to charge the 
 bailee with the value of it. There is a passage found, as early as 
 the time of the Year Books, in which it is said, " If I bail to you 
 
 ' - Tin. I
 
 SECT. VI.] ADAMS V. STATE, 699 
 
 certain goods to keep, and then retake them feloniously, that I should 
 be hung for it, and yet the property was in me." ^ This passage is 
 found repeated in all the leading criminal treatises, but with the 
 addition that the goods be taken witli the fraudulent design to charge 
 the bailee with their value. 1 Hale P. C. 513 ; 4 Bl. Com. 334 ; 2 
 East P. C. 558 ; Ros. Crim. Ev. 650. As if one delivers his goods to 
 another, as his servant or bailee, and then steals them from such 
 servant or bailee, with a fraudulent intent to charge him with their 
 value, this would be larceny in the owner, although he might have 
 had their possession through the lawful assertion of his title. On an 
 indictment for larceny against such general owner, the property in the 
 goods stolen may be laid as that of the special owner. The general 
 property of goods levied on by execution is in the debtor, and remains 
 in him until they are sold for the purpose of satisfying the execution ; 
 but the officer who levies acquires a special property in those goods, 
 which entitles him to their possession until satisfaction be made of the 
 execution. Dilleuback v. Jerome, 2 Cow. 293 ; Smith v. Burtis, 6 
 Johns. 196. The defendant asked the court to charge the jury that 
 there was a variance in the allegation of property in Sloan, and the 
 proof upon the trial ; that, therefore, the defendant should not be 
 convicted. This the court refused to charge, and the evidence is 
 brouglit here for examination as to the correctness of the court's 
 action in so refusing ; but upon tlie evidence it appears that Sloan, as 
 already stated, had a special property in the goods, and they were 
 therefore properly laid as his goods in the indictment. There was 
 no error in refusing so to charge.^ 
 
 The next exception is as to wliat the court did charge on the subject 
 of ownership. By the bill of exceptions it appears that the court said 
 that by virtue of the execution and levy " the constable became the 
 owner of the goods levied upon until sold by him, and that if she took 
 the goods, or assisted an\- one else in the taking, she is guilt}'." The 
 part of the charge contained in this bill of exceptions is all we have of it. 
 It would seem to be a sufficient statement of the law defining the rights 
 which the constable acquires in virtue of a lev}-. It was made by the 
 court in answer to the objection that the true ownership was not alleged 
 in the indictment, and as respects that question the instruction of 
 the court was correct. The constable's ownership was a qualified one, 
 it is true, but it was sufficient to support the averment. The further 
 statement in that portion of the charge, namely, " that if she took the 
 ^oods or assisted any one else in taking them, she is guilty," may be 
 subject to more criticism. It certainly' is not a full presentation of the 
 law. It is not every sort of taking of these goods that would make her 
 criminally liable. It might have amounted to no more than a trespass 
 or a conversion of the property as against the officer. The goods were 
 left in her custody by the officer. As between them she may have been 
 
 1 Y. B. 7 Hen. VI. 43.— Ed. 
 
 8 Ace. People v. Long, 50 Mich. 249; Palmer v. People, 10 Wend. 165. — Ed.
 
 700 ADAMS V. STATE. [CHAP. VIII. 
 
 considered as a mere receiptor for the goods, with the right in the officer 
 to deprive her of her possession and assume it himself. But she not only 
 had their actual custod}^ but was as well the general owner, and could 
 at any time before sale, by paying the judgment, remove the officer's 
 hands entirely from her propert}-. Now, unless her taking the goods 
 was under such circumstances as in some way to fraudulently charge 
 him with their value, it is difficult to find any recognized rule of criminal 
 law that would hold her answerable for larceny. 
 
 This case fails in resemblance to that of Palmer v. People, 10 Wend. 
 166, in this important feature: Palmer was convicted of having felo- 
 niously stolen property of one Jennings, who, as constable, had levied 
 upon property b}^ virtue of an execution against Palmer. The goods, by 
 the officer's consent, remained with Palmer, who subsequently sold the 
 shingles and charged the constable with having taken them awa}', and 
 brought suit against him for their value upon that false allegation. 
 This proof was held sufficient, on the ground that it charged a felo- 
 nious taking of his own property, with intent to charge the constable 
 with the value of it, bringing the case within the rule above stated as 
 the ground of criminal liability. In this charge is found the broad 
 proposition that any sort of taking or conversion by the general owner 
 of propert}' left in her possession by a constable possessed of the rights 
 which a levy gives him, is a criminal act, and that of larcen^^ No 
 fraudulent or evil design existing in the mind of the defendant is 
 charged or intimated to be a necessary element of guilt. It would not 
 be every taking by a mere stranger of these goods from the possession 
 of the constable that would amount to larceny-. A felonious intent 
 would be a requisite ingredient in such crime. A conversion of the 
 goods by a stranger who had been appointed their keeper by a con- 
 stable, would not have been a crime but a civil wrong merely. To hold 
 the general owner in possession to a severer rule seems to me to savor 
 of illegal severity. I am unable, in the researches I have made, to 
 find an}' case wliich warrants the ascription of criminality to such facts. 
 The case of Rex v. Wilkinson, Russ. & Ry. 470, which goes as far as 
 any other that I have found, presented the features of flagrant fraud on 
 the part of the defendants, who were the real owners of the property, 
 upon either the prosecutors or upon the Crown. As to which, the judges 
 were divided in opinion. If we are permitted to look into the evidence 
 which is handed us with the record, one can scarcely escape the conclu- 
 sion that if the rule had been stated to the jury with the proper quali- 
 fication, the}' must have failed to find in it evidence of such felonious 
 design as would have raised the offence above that of a mere civil 
 injury. 
 
 Whether the judge in other parts of his charge qualified the expres- 
 sions in the opinion excepted to, we have no means of knowing ; the 
 charge is not before us. We have nothing but this pointed statement 
 of his views of the law. We must assume that this embraced his entire 
 instruction to the jury upon the legal requisites of guilt, and it was
 
 SECT. VI.] KEX V. CABBAGE. 701 
 
 erroneous in a way that must have prejudiced the defendant in her 
 trial. I tliinli the judgment, for this error, should be reversed and 
 a new trial ordered. 
 
 REX V. CABBAGE. 
 
 Crown Case Reserved. 1815. 
 
 [Reported Russell Sp Ryan, 292.] 
 
 The prisoner was tried before Thomson, C. B., at the Lent Assizes 
 for the county of Lancaster in the year 1815, on an indictment for 
 feloniously stealing, taking, and leading away a gelding, the property 
 of John Camplin. 
 
 The second count charged the prisoner with feloniousl}', unlawfully, 
 wilfitll}', and maliciously killing and destroying a gelding, the property' 
 of the said John Camplin, against the statute, etc. 
 
 The counsel for tlie prosecution elected to proceed upon the first 
 count. 
 
 It appeared that the gelding in question was missed by the prosecu- 
 tor from his stables on Monday, the 28th of Februar}', 1815. The 
 stable-door, it appeared, had been forced open. The prosecutor went 
 the same da}' to a coal-pit, about a mile from the stable, where he saw 
 the marks of a horse's feet. This pit had been worked out and had a 
 fence round it, to prevent persons from falling in ; one of the rails of 
 this fence had been recently' knocked off. A man was sent down into 
 the pit, and he brought up a halter, which was proved to be the halter 
 belonging to the gelding. In about three weeks after the finding of 
 the halter, the gelding was drawn up from the coal-pit in the presence 
 of the prosecutor, who knew it to be his. The horse's forehead was 
 ver}' much bruised, and a bone stuck out of it. It appeared that at 
 the time this gelding was destro3ed, a person of the name of Howarth 
 was in custod}' for having stolen it in August, 1813, and that the prose- 
 cutor, Camplin, had recovered his gelding again about five weeks after 
 it was taken. Howarth was about to take his trial for this offence 
 wlien the gelding was destro3'ed in tlie manner stated. The prisoner 
 Cabbage was taken into custody on the 27th of March, 1815 ; and on 
 his apprehension he said that he went in company with Anne How^arth 
 (the wife of Howarth, who was tried for stealing the said gelding) to 
 Camplin's stable-door, and that tlie}' together forced open the door and 
 brought the horse out. They then went along the road till thej- came 
 to the coal-pit before mentioned, and there they backed the horse into 
 the pit. 
 
 It was objected b}' the prisoner's counsel that the evidence in this 
 case did not prove a larceny committed of the horse ; that the taking
 
 702 REX V. MORFIT. [chap. VIII. 
 
 appeared not to have been done with intention to convert it to the use 
 of the taker, aainio furandi et lucri causa. 
 
 Thomson, C. B., overruled the objection, and tlie prisoner was con- 
 victed upon the first count of the indictment for stealing the horse. 
 Judgment was passed on liim, but the learned Chief Baron respited the 
 execution to take the opinion of the judges as to the propriety of the 
 conviction. 
 
 In Piaster Term, 1815, the judges met to consider this case, and the 
 majority of the judges held the conviction right. Six of the learned 
 judges, namel}', Richards, B., Bayley, J., Chambke, J., Thomson, 
 C. B., GiBBs, C. J., and Lord Ellenborough, held it not essential to 
 constitute the offence of larcenj' that the taking should be lucri causa ; 
 the}' thought a taking fraudulently, with an intent wholly to deprive" 
 the owner of the propert}-, sufficient; but some of the six learned 
 judges thought that in this case the object of protecting Howarth by 
 the destruction of this animal might be deemed a benefit, or lucri 
 causa. Dallas, J., Wood, B., Graham, B., Le Blanc, J., and Heath, 
 J., thought the conviction wrong. ^ 
 
 /\ 
 
 REX V. MORFIT. 
 Crown Case Reserved. 1816. 
 
 [Repoited Russell Sf Ryan, 307.] 
 
 The prisoners were tried before Mr. Justice Abbott, at the Maid- 
 stone Lent Assizes, in the 3'ear 1816, upon an indictment for feloni- 
 ouslv stealing two bushels of beans, value five shillings, the goods of 
 John Wimble. 
 
 On the trial it was proved that the prisoners were servants in hus- 
 bandry to Mr. Wimble and had the care of one of his teams ; that Mr. 
 Wimble's bailiff was in the habit of delivering out to the prisoners at 
 stated periods, from a granary belonging to him, and of which his 
 bailiff kept the key, such quantity of beans as Mr. Wimble thought fit 
 to allow for the horses of this team. The beans were to be split and 
 then given by the prisoners to the horses. It appeared that the gran- 
 ary-door was opened by means of a false key procured for that purpose, 
 which was afterwards found hid in the stable; and that about two 
 bushels of beans were taken away on the day after an allowance had 
 been delivered out as usual, and nearly that quantity of whole beans 
 
 1 Ace. "Williams v. State, 52 Ala. 411 ; People v. Juarez, 28 Cal. 380; Keely v. 
 State, 14 lud. 36 (semhle) ; Warden v. State, 60 Miss. 638; Delk y. State, 64 Miss. 
 77 ; State v. Kyan, 12 Nev. 401 ; State v. Caddie, 35 "W. Va. 73. Contra, Pence v 
 State, llOlnd. 95 ; People v. Woodward, 31 Hun, 57. See also Hamilton ;•. State, 34 
 Miss. 214; State v. Slingerland, 19 Nev. 1?5; State v. Davis, 38 N. J. L. 176; State v. 
 Brown, 3 Strob. 508 (semWe). — Ed.
 
 SECT. VI.] REX V. DICKINSON. 703 
 
 was found in a sack, concealed under some chaff in a chaff-bin in the 
 stable. 
 
 The learned judge desired the jury to saj' whether they thought both 
 the prisoners were concerned in taking the beans from the granary ; 
 and also whether they intended to give them to Mr. Wimble's horses. 
 The jur}' answered both questions in the affirmative. 
 
 Mr. Justice Bayley had, at the same Assizes, directed a verdict of 
 acquittal under circumstances of the like nature ; but Abbott, J., was 
 informed that the late Mr. Justice Heath had man}' times held this 
 offence to be larceny- ; and that there had been several convictions 
 before him ; and also that to a question put by the grand jury at Maid- 
 stone to the late Lord Chief Baron Macdonald, he had answered that 
 in his opinion this offence was a larceny. 
 
 On account of this contrariet}' of opinion, the learned judge before 
 whom this case was tried thought it advisable to submit the question 
 to all the judges, the offence being a very common one ; a verdict of 
 guiltv was taken, but judgment respited until the ensuing Assizes. 
 
 In Easter Term, 1816, eleven of the judges met and considered this 
 case. Eight of the judges held that this was felony ; that the purpose 
 to which the prisoners intended to apply the beans did not vary the 
 case. It was, however, alleged b}' some of the judges that the addi- 
 tional quantit}- of beans would diminish the work of the men who had 
 to look after the horses, so that the master not only lost his beans, or 
 had them applied to the injury- of the horses, but the men's labor was 
 lessened, so that the lucri causa, to give themselves ease, was an 
 ingredient in the case. Graham, B., Wood, B., and Dallas, J., 
 thought this not a felony, and that the conviction was wrong. ^ 
 
 REX V. DICKINSON. / 
 
 Crown Case Reserved. 1820. 
 
 [Reported Russell ^ Ryan, 420.] 
 
 The prisoner was tried and convicted before Mr. Justice Bayley at 
 the summer Assizes for the county of Lancaster, in the year 1820, for 
 stealing a straw bonnet, some other articles of female apparel, and 
 a box. 
 
 It appeared that the prisoner entered the house where the things 
 were in the night, through a window which had been left open, and took 
 the tilings, which belonged to a very young girl whom he had seduced, 
 and carried them to a hay- mow of his own, where he and the girl had 
 twice before been. 
 
 The jury thought the prisoner's object was to induce the girl to go 
 
 I Ace. Reg. V. Privett, 1 Den. C. C. 193. See Stat. 26 and 27 Vict. c. 103, § 1 — Eix
 
 704 REGINA V. SPURGEON. [CHAP. VIIl. 
 
 again to the hay-mow that he might again meet her there, but that he 
 cfid not mean ultimately to deprive her of them. 
 
 The learned judge doubted whether this was a felony, and discharged 
 the prisoner upon bail, and reserved the case for the consideration of 
 the judges. 
 
 In Michaelmas term, 1820, the judges met. They held that the 
 taking was not felonious, and directed application to be made for a 
 pardon.^ 
 
 REX V. CRUMP. 
 
 Worcester Assizes. 1825. 
 
 [Reported 1 Carrington Sf Payne, 658.] 
 
 This prisoner was indicted for stealing a horse, three bridles, two 
 saddles, and a bag, the property of Henry Bateman. 
 
 It appeared that he got into the prosecutor's stable, and took away 
 the horse and the other property all together ; but that, when he had 
 got to some distance, he turned the horse loose, and proceeded on foot 
 to Tewkesbury, where he was stopped attempting to sell the saddles. 
 
 Gaurow, B., left it to the jury to say, whether the prisoner had any 
 intention of stealing the horse ; for that, if he intended to steal the 
 other articles, and only used the horse as a mode of carrying off the 
 other plunder more conveniently, and, as it were, borrowed the horse 
 for that purpose, he would not be, in point of law, guilty of stealing 
 the horse. 
 
 Verdict, Not guilty of stealing the horse; Guilty of stealing the rest 
 '^^Of the property.^ 
 
 REGINA V. SPURGEON. 
 Central Criminal Court. 1846. 
 
 [Reported 2 Cox C. C. 102.] 
 
 The prisoner was indicted for stealing a bag and some papers, the 
 property of John Philpotts. From the evidence it appeared that the 
 prosecutor, who was an attorney's clerk, had left the bag on a bench 
 in the outer room of the Master's office of the Queen's Bench while he 
 went into the inner office to transact some business. On entering the 
 latter he saw the prisoner, who was asking charity, and who in a few 
 
 1 Ace. Cain v. State, 21 Tex. App. 21. And see Reg. v. Jones, 1 Uen. C C 18S; 
 U. S. V. Durkee, 1 McAli. 196. — Ed. 
 3 Ace. Dove V. State, 37 Ark. 261 ; State v. York, 5 Harr. 493. — Ed.
 
 SECT. VI.] EEGINA V. GARDNER. 705 
 
 minutes quitted the room. Shortly afterwards the prosecutor, on re- 
 turning to the place where the bag had been left, discovered that it 
 was gone. As he was returning to his employer's chambers, he met 
 the prisoner in the street with the bag in his possession. On being 
 given into custody the prisoner said that he took the bag believing 
 that it had been accidentally left in the office by the owner, and that 
 his intention was to restore it to him. It appeared that on a former 
 occasion some papers which had been missed by the prosecutor were 
 brought to his office by the prisoner, who received a shilling for his 
 trouble. 
 
 The Recorder (after consulting Mr. Justice Erie), in summing up 
 the case to the jury. — You must be satisfied that the prisoner took 
 this property against the consent of the owner, and for the purpose 
 of gain. I am of opinion that it is not essential to the sustaining this 
 charge, that he had an intention of converting this bag permanently 
 to his own use. 1 will ask 3'ou, first, whether you think he took it 
 with the intent to exact a reward from the owner for its restoration, 
 and with a determination not to restore it unless such reward were 
 given him. If such is your view of the circumstances, I shall have no 
 hesitation in saying that the prisoner has committed larceny. Or, 
 secondly, do you think, that having reasonable grounds for believing 
 that the bag belonged to some person in the inner office, who had 
 deposited it there for a short time until he should return for it, the 
 prisoner took it with an intention of returning it absolutely, and at 
 all events taking the chance of any reward being given him for the 
 pretended service ? P^ven in this case I am of opinion that he would 
 be guilty of larceny ; but I would reserve that question for the opinion 
 of the judges before I passed sentence. 
 
 The jury returned the following verdict : — 
 
 Gtdlty of taking the property in order to exact a reward^ and the 
 prisoner loould not have delivered it up without such reward.^ 
 
 REGINA V. GARDNER. 
 
 / 
 Crown Case Reserved. 1862. 
 
 [Reported 9 Cox C. C. 253.] 
 
 The following case was reserved at the Middlesex Sessions. 
 
 Edward Gardner was tried on an indictment charging him in the first 
 count with stealing one banker's cheque and valuable security for the 
 payment of £82 195., and of the value of £82 19s., and one piece of 
 stamped paper of the property of James Goldsmith. 
 
 1 Ace. Reg. V. O'Donnell, 7 Cox C. C. 337 ; Com. v. Mason, 105 Mass. 163 ; Berry a 
 State, 31 Oh. St. 219. — Ed.
 
 706 REGINA V. GARDNER [CHAP. VIH 
 
 In the second count the property was stated to be the property of 
 Thomas Boucher. 
 
 It appeared from the evidence of Thomas Boucher, a lad of fourteen, 
 that he found the cheque in question ; that having met the prisoner, 
 Gardner, in whose service he had formerly been, he showed it to him ; 
 that the prisoner (Thomas Boucher being unable to read) told him it 
 was only an old cheque of the Roj'al British Bank: that he wished to 
 show it to a friend, and so kept the cheque ; that Boucher very sliortly 
 on the same day went to prisoner's shop and asked for the cheque ; 
 that the prisoner from time to time made various excuses for not giving 
 up the cheque, and that Boucher never again saw the cheque. 
 
 It also appeared that the prisoner had an interview with Goldsmith, 
 in which he said that he knew the cheque was Goldsmith's, asked what 
 reward was offered, and upon being told 5s., said he would rather light 
 his pipe with it than take 55. 
 
 The cheque has never been received either by Goldsmith or Boucher, 
 though there was some evidence (not satisfactory) by the prisoner's 
 brother of its having been inclosed in an envelope and put under the 
 door of Goldsmith's shop. 
 
 The jury found ''That the prisoner took the cheque from Thomas 
 Boucher in the hopes of getting the reward ; and, if that is larceny, we 
 find him guilt}'." 
 
 Thereupon the judge directed a verdict of guilty to be entered, and 
 reserved for the opinion of this court whether upon the above finding 
 the prisoner was properly convicted. 
 
 November 15. J^est (with him Lesley) for the prisoner argued that 
 the finding of the jur^' disproved the felonious intent. In Reg. v. York, 
 3 Cox Crim. Cas. 181, a similar finding of the jury was held to amount 
 to " Not Guilty." (He was then stopped.) 
 
 Kemp^ for the prosecution. The defendant read the cheque, and 
 knew the owner. In this respect the case differs from Reg. v. Christo- 
 pher, 8 Cox Crim. Cas. 91 ; 28 L. J. 35, M. C. , and resembles Reg. v. 
 Moore, 8 Cox Crim. Cas. 416 ; 30 L. J. 77, M. C. As against all the 
 world but the true owner, the boy, Boucher, was the owner, and the 
 prisoner took the cheque from him against his will, and may be con- 
 victed on the second count. 
 
 Pollock, C. B. That is the case of Armor}' v. Delamirie, Str. 505, 
 where a boy was held entitled to sue his master for a jewel which he 
 had found and his master had taken from him. It was not supposed 
 that the master was guilty of felony. There the jewel was not ear- 
 marked, but every one who can read can tell to wliom a cheque 
 belongs. Properly speaking a cheque is not a chattel, and is not 
 the subject of larcen}'. We must take it that the cheque was stamped, 
 and being stamped it was not a piece of paper, — it was a cheque. 
 
 Cur. adv. vult. 
 
 November 22. Pollock, C. B. In this case the prisoner was con- 
 victed of stealing a cheque. He took the cheque awav from a boy who
 
 SECT. VI.] KEGINA V. TKEBILCOCK, 707 
 
 found it, and did not immediately give information to the owner, but 
 witliUeld it in the expectation of getting a reward. The taking of the 
 cheque from the finder was not a felonious taking, and the merely with- 
 holding it in the expectation of a reward was not a larceny. 
 
 The rest of the court concurring. ^ Conviction quashed. 
 
 REGINA V. TREBILCOCK. 
 Crown Case Reserved. 1858. 
 
 [Reported 7 Cox C. C. 408.] 
 
 At the General Quarter Sessions of the Peace holden in and for the 
 borough of Plymouth, on the 1st day of January, 1858, before Charles 
 Saunders, Esq., Recorder, the prisoner, William Trebilcock, was tried 
 on an indictment which charged him, first, with a larceny upon the 
 Stat. 20 & 21 Vict. c. 54, § 4,^ in having as bailee of plate, the property 
 of the prosecutor, fraudulently converted it to his own use ; secondly, 
 with a common larceny of the same plate. The jury found the prisoner 
 guilty on both counts of the indictment, but recommended him to mercy, 
 believing that he intended ultimately to return the property. The 
 question for the opinion of the court is v^^hether, consistently with the 
 ground upon which the jury recommended the prisoner to mercy, the 
 conviction was right upon both or either of the counts. 
 
 The case was this : The prosecutrix, Miss Palmer, resided at Ply- 
 mouth, and going to London for eight or ten days, deposited with the 
 prisoner, a tradesman at Plymouth, who had offered to take care of 
 anything for her during her absence, a chest of valuable plate for safe 
 custody till she returned. The prisoner had been told that the prose- 
 cutrix would leave a parcel with him, which he said that he would put 
 in his iron chest to keep for her. When the chest of plate was placed 
 in the prisoner's hands it was locked (the prosecutrix keeping the key), 
 then covered with a wrapper sewed together, and sealed in a great num- 
 ber of places, and then tied with cord. The prisoner was not informed 
 of the contents of this parcel, nor was any key given to him. In a day 
 or two after the prosecutrix left for London, he had uncorded the chest, 
 broken the seals, taken off the wrapper, procured a key, opened the 
 chest, and taken out a part of the plate, and offered it to one Woolf, at 
 Plymouth, as a security for the advance of £50. The pawnbroker took 
 up one of the pieces of plate which bore the crest and also a superscrip- 
 
 1 Ace. Reg. V. York, 3 Cox C. C. 181 ; Micheaux v. State, 30 Tex. App. 660. — Ed. 
 
 2 The section is as follows : " If any person being a bailee of any property shall 
 fraudulently take or convert it to his own use, or the use of any person other than 
 the owner thereof, although he shall not break bulk or otherwise determine the bait 
 ment, he shall be guilty of larceny." 
 
 1
 
 708 EEGINA V. TREBILCOCK. [CHAP. VIII. 
 
 tion with the name of Su- George Magrath upon it, and expressing his 
 dislike to have anything to do with it, the prisoner said that he was 
 under an engagement to be married to Lady Magrath. The prosecutrix 
 had lived with Sir George Magrath, and when he died the plate, among 
 other property, came into her possession. Woolf ultimately declined 
 any advance upon it. The prisoner then communicated by letter with 
 another pawnbroker named Druiff, at Newport in Monmouthshire, with 
 whom the prisoner had before had bill transactions. Druiff came to 
 the prisoner at Plymouth and advanced him £200, taking bills for the 
 amount, and the whole chest of plate worth from £500 to £600, as a 
 collateral security for the loan. Druiff took the plate away with him 
 to Newport. The prisoner, by way of accounting to Druiff for the 
 possession of the plate, represented to him that he was going to get 
 married to the lady of the late Sir George Magrath, and that she had 
 given him the plate to take care of till they were married. The prose- 
 cutrix went to London on the 8th day of November, and returned on 
 the 17th of the same month. On her return the prosecutrix tried often 
 to see the prisoner, but could not do so till the 26th. When she first 
 saw him and asked him for the parcel, the prisoner said he would send 
 it to her the same evening. It was not sent. The prosecutrix went 
 often backwards and forwards to the prisoner's shop and private resi- 
 dence to see the prisoner, but could not see him again till the 2d ot 
 December, when the prosecutrix insisted upon instantly having hei^ 
 parcel. The prisoner said she could not have it as it was out of town, he 
 had sent it to Bristol ; then he said it was now farther than Bristol, that 
 it was in Wales, but that he would write a letter and she should have 
 it on Friday. The parcel did not arrive. The prisoner refused to tell 
 in whose hands it was, but the prosecutrix had learned from the 
 prisoner's father that Druiff had it. The inspector of police went to 
 Newport and found the chest of plate there, but Druiff refused to give 
 it up unless upon payment of the £200 for which it had been deposited 
 with him as security. The prisoner could not redeem it, and upon the 
 facts being made known to the prosecutrix she had the prisoner taken 
 into custody on a charge of stealing, and the police took possession 
 of the chest of plate as stolen property. 
 
 Upon the finding of the jury, with the recommendation to mercy 
 above stated, the counsel for the prisoner contended that to support 
 either of the counts in the indictment, it was necessary tliat the pris- 
 oner should have intended permanently to deprive the prosecutrix of 
 her property, and that, as the jury believed that his intention was 
 ultimately to return it, the verdict was wrong. 
 
 The prisoner was committed to prison, and sentence deferred until 
 the opinion of the judges shall have been obtained upon the question 
 raised. If the court shall be of opinion that the ground upon which 
 the jury recommended the prisoner to mercy may consist with the 
 verdict upon both or either of the counts of the indictment, the verdict 
 to stand upon both or either of the counts accordingly. If the recom-
 
 SECT. M.] KEGINA V. TKEBILCOCK. 709 
 
 mendation may not consist with the verdict on either count, then the 
 verdict to be set aside, and a verdict of not guilty to be recorded. 
 
 E. W. Cox, for the prisoner. The question is whether the recent 
 statute 20 & 21 Vict. c. 54, § 4, alters the general law of larceny in 
 any other respect than making a bailee liable. 
 
 LoKD Campbell, C. J. If this was larceny at all, it was larceny at 
 common law. The statute would make no difference in this respect. 
 
 Coleridge, J. If not a larceny at common law, the new statute 
 would not make it such ; so that the only question is whether the pris- 
 oner could properly be convicted of larceny at common law. The jury 
 have found him guilty. 
 
 E. W. Cox. Yes ; but they recommended him to mercy on a 
 ground which shows that a verdict of guilty is wrong. They found 
 ;\hat he intended ultimately to return the property to the owner. 
 
 Crowder, J. That is, if he could get it back again. 
 
 E. W. Cox. The law on this subject is distinctly laid down in R. v, 
 Holloway, 3 Cox C. C. 145 ; and still more recently in R. v. Poole 
 and Yeates, 7 Cox C. C. 373. In R. v. Holloway, Parke, B., said, 
 that in order to constitute larceny there must be the intention to de- 
 prive the owner wholly of his property, to usurp the entire dominion 
 over the chattels taken, and to make them his own ; and Lord Denman 
 ased similar language, putting the case of a man taking a horse, with 
 the intention of riding him tliroughout England, and then returning 
 him. 
 
 Coleridge, J. But in this case the jury do not say that at the time 
 of the taking the prisoner intended to return the plate. 
 
 Lord Campbell, C. J. On the contrary they negative it by finding 
 him guilty. 
 
 E. W. Cox. It is necessarily implied in their statement that when 
 he parted with it to the pledgee, he had it in his mind to get it back 
 again and restore it to the owner. 
 
 Lord Campbell, C. J. Your general proposition of law is right 
 enough, but it does not apply to this case. 
 
 ^. W. Cox. If the court interprets the expression used by the jury 
 as meaning only that at some time after the larceny the prisoner in- 
 tended to return the property, the argument founded on R. v. Holloway 
 necessarily fails. But that could not be the meaning of their finding. 
 The alleged larceny was complete at the moment of depositing the plate 
 with the pledgee. It was for that he was tried, and to that alone was 
 the attention o? the jury directed. They had nothing to do with any 
 subsequent intent. Their conclusion could have had reference only to 
 the felonious act charged in the indictment, and to the moment of 
 committing it, and if they were of opinion that he had then an inten- 
 tion to return it, of which there is no doubt, he is not guilty of 
 larceny. 
 
 Carter, for the prosecution, was not called upon. 
 
 Lord Campbell, C. J. The general proposition contended for by
 
 710 KEGINA V. TREBILCOCK. [CHAP. VIII. 
 
 Mr. Cox is perfectly correct. To constitute larceny, there must be an 
 intention on the part of the thief completely to appropriate the property 
 to his own use ; and if at the time of the asportation his intention is to 
 make a mere temporary use of the chattels taken, so that the dominus 
 should again have the use of them afterwards, that is a trespass, but 
 not a felony ; but that law does not apply to this ease. Here there 
 was abundant evidence of a larceny at common law ; abundant evidence 
 from which the jury might find that the prisoner feloniously stole the 
 plate ; and the jury have found a verdict of guilty. But they have 
 recommended him to mercy, and accompanied that recommendation with 
 a statement as to the prisoner's intention to return the stolen property. 
 Now, I doubt whether what the jury say in giving their reason for 
 recommending the prisoner to mercy, is to be considered as part of 
 their finding ; but even assuming it to be so, all that they say is, that 
 he intended ultimately to return the property ; not that at the time of 
 the wrongful taking he originally intended to make a merely temporary 
 use of it. 
 
 Coleridge, J. I am of the same opinion. There is no question 
 about the law in this case ; but the question is merely as to the facts. 
 And upon the facts it appears that the prisoner had put it out of his 
 power to return the plate which he had taken. Then what must we do 
 in order to make sense of the finding of the jury? It is to be observed 
 that the recommendation to mercy in itself assumes that the verdict of 
 guilty is correct ; but the jury seem to have thought that the prisoner 
 had it in his mind at some uncertain time, if he could get hold of it 
 again, to restore the property, and they might consider that a sufficient 
 reason for recommending him to mercy. That interpretation makes 
 sense of their finding, whilst the construction put upon it by Mr. Cox 
 renders their conduct quite inconsistent and insensible. 
 
 Martin, B. I am of opinion that the recommendation to mercy 
 and the words which accompanied it were no part of the verdict at all, 
 and that when the jury said guilty there was an end of the matter, so 
 far as the verdict was concerned. But I also think that even if it did 
 form part of the verdict, it would not have the effect of bringing it 
 within the principle of the cases on which Mr. Cox relies. It seems to 
 me quite clear that this prisoner stole the plate, and then pledged it for 
 £200, and I think that in so doing he " usurped the entire dominion of 
 it " within the meaning of that expression as used by Parke, B., in the 
 case cited. If, therefore, a special verdict had been found in the very 
 terms used by the jury, when they recommended the prisoner to mercy, 
 I should have said that he was still guilty of larceny. 
 
 Crowder, J. It seems to me, also, that upon the facts of this case 
 no other rational conclusion could be arrived at, except that the prisoner 
 stole the plate. He broke open the box, and took out the plate, and 
 stole it, but the jury recommended him to mercy because they thought 
 that he had an intention of ultimately restoring it. Probably it very 
 often happens that when stolen goods aie pawned, there is an intention
 
 SECT. VI.] EEGINA V. HOLLOWAY. 711 
 
 to get them back again, if the person pawning them should ever be able 
 to do so, and in tliat ease to return them ; but such an intention affords 
 no ground for setting aside a verdict of guilty, when the offence of 
 larceny is satisfactorily proved by the evidence. 
 
 Watson, B. I also think that this is the clearest case of larceny 
 possible, though the jury have recommended the prisoner to mercy, 
 because they thought that he would ultimately have restored the 
 property if he could have got it back. 
 
 Conviction affirmed.^ 
 
 REGINA V. HOLLOWAY. 
 Crown Case Reserved. 1849. 
 
 [Reported Z Cox C. C. 241.] 
 
 The prisoner, William Holloway, was indicted at the General Quar- 
 ter Sessions, holden in and for the borough of Liverpool, on Decem- 
 ber 4th, 1848, for stealing within the jurisdiction of the court one 
 hundred and twenty skins of leather, the property of Thomas Barton 
 and another. 
 
 Thomas Barton and another were tanners, and the prisoner was one 
 of many workmen employed by them at their tannery, in Liverpool, to 
 dress skins of leather. iSkins when dressed were delivered to the fore- 
 man, and every workman was paid in proportion to and on account of 
 the work done by himself. The skins of leather were afterwards stored 
 in a warehouse adjoining to the workshop. The prisoner, by opening 
 a window and removing an iron bar, got access clandestinely to the 
 warehouse, and carried away the skins of leather mentioned in the in- 
 dictment, and which had been dressed by other workmen. The pris- 
 oner did not remove these skins from the tannery ; but they were seen 
 and recognized the following day at the porch or place where he usually 
 worked in the workshop. It was proved to be a common practice at 
 the tannery for one workman to lend work, that is to say, skins of 
 leather dressed by him, to another workman, and for the borrower in 
 such case to deliver the work to the foreman and get paid for it on his 
 own account, and as if it were his own work. 
 
 A question of fact arose as to the intention of the prisoner in taking 
 the skins from the warehouse. The jury found that the prisoner did 
 not intend to remove the skins from the tannery and dispose of them 
 elsewhere, but that his intention in taking them was to deliver them to 
 the foreman and to get paid for them as if they were his own work ; 
 and in this way he intended the skins to be restored to the possession 
 of his masters. 
 
 ^ vSee Reg. v. Phetheon, 9 C. & P. 552 ; Peg. v. Medland, 5 Cox C. C. 292. — En.
 
 712 REGINA V. HOLLOWAY. [CHAP. VIII. 
 
 The jury, under direction of the court, found the prisoner guilty ; 
 and a point of law raised on behalf of the prisoner was reserved, and 
 is now submitted for the consideration of the justices of either Bench 
 and barons of the Exchequer. 
 
 " The question is, whether, on the finding of the jury, the prisoner 
 ought to have been convicted of larceny. 
 
 " Judgment was postponed, and the prisoner was liberated on bail 
 taken for his appearance at the next or some subsequent Court of 
 Quarter Sessions to receive judgment, or some final order of the 
 court." 
 
 Lowndes, in support of the conviction. The finding of the jury 
 shows that the prisoner committed larceny. 
 
 Parke, B. Is not this case governed by R. v. Webb, 1 Moody 
 C. C. 431? 
 
 Lowndes. The cases are distinguishable. In that case, miners 
 employed to bring ore to the surface, and paid by the owners accord- 
 ing to the quantity produced, removed from the heaps of other miners 
 ore produced by them, and" added it to their own heaps, the ore still 
 remaining in the possession of the master ; and it was held not to be a 
 larceny. Here the skins were removed from the place in which they 
 had been put by the master for custody into a place in which they 
 were, in fact, in the prisoner's custody. In R. v. Webb, the ore was 
 never out of the master's custody ; in this case, the skins were dis- 
 tinctly out of the master's custody. 
 
 Coleridge, J. In the case of R. v. Webb there was the interval in 
 which the ore passed from one heap to the other ; was it not then out 
 of the master's custody? 
 
 Loimdes. There was no intent to injure the owner in that case. 
 
 Coleridge, J. There was the intent to obtain payment for ore 
 which ihe miner had not dug from the earth. 
 
 Parke, B. It is essential that the taking should be with the intent 
 to deprive the owner of the property in the thing taken ; the jury did 
 not find that in this case, but only that the intention of the prisoner 
 was to get paid for the skins, as if they had been his own work. 
 
 Low7ides. It is not necessary that there should be the intention 
 wholly to deprive the owner of the property ; it is enough if the 
 chattel is taken for the purpose of getting a benefit different from the 
 mere use of it. In this case, though there was an intention to return 
 the skins, there was not the intention that the owner should be put 
 into the situation in which he was before the taking ; for though he 
 was to have the skins, he was to have them minus the wages. 
 
 Parke, B. The taking must be with intent to acquire the entire 
 dominion to the taker. 
 
 Lowndes. The taking must be treacherous, — for evil gain. 
 
 Parke, B. East's definition is, " The wrongful or fraudulent taking 
 or carrying away by any person of the mere personal goods of another 
 person anywhere, with a felonious intent to convert them to his (the
 
 SECT. YI.] KEGINA V. HOLLOWAY. 713 
 
 takers) own use and make them bis property, without the consent of 
 the owner." 2 East Fl. Cr. 553. 
 
 Loivndes. In 3 lust. 107, Lord Coke defines larceny to be "the 
 felonious and fraudulent taking and carrying away, by any man or 
 woman, of the mere personal goods of another, neither from the person 
 nor by night in the house cf the owner." Bracton and Fleta describe 
 it as " Coutractatio rei alieuiti frauduleuta, cum aniuio furandi, invito 
 illo domino, cujus res ilia fuerat." Bracton, lib. iii. c. 32, fol. 150; 
 Fleta, lib. i. c. 36 ; Glanville, lib. vii. c. 17 ; lib. x. c. 15 follows Brac- 
 ton. The "Mirror" give? the word " treachereusement ; " that is, 
 without a bona fide claim. In 4 Blackst. Com. 232, it is said that the 
 taking must be "felonious; that is, done animo furandi, or, as the 
 civil law expresses it. hicri causa." Blackstone, therefore, uses these 
 phrases as synonymous. 
 
 Lord Denman, C. J. Suppose a man takes the horse of another 
 with intent to keep him for a year, ride him through all the counties 
 of England, and then return him; is that a larceny? 
 
 Pakke, B. There must be an intention in the taker to acquire the 
 whole dominion over the thing, to make it his own ; to do what he 
 likes with it. 
 
 Lowndes. The facts in this case show a taking lucri causa. 
 
 Parke, B. The case of R. v. Webb has decided otherwise. 
 
 Alderson, B. This is rather an obtaining money by false pretences 
 than a larceny. 
 
 Lowndes. If this is not a larceny it would follow that if chattels 
 were taken for the purpose of obtaining money for them by false 
 pretences from the owner, and in that way converted to the use of 
 the taker, he would not commit larceny. If the statement does not 
 sufficiently show what offence has been committed, the case may be 
 restated. 
 
 Lord Denman, C. J. No. The facts on which we are to decide 
 must be stated at once. This court is not to be used to keep these 
 cases alive. 
 
 Alderson, B. This will not prevent you from bringing an indict- 
 ment for obtaining money under false pretences. 
 
 Loivndes. No money was obtained. 
 
 Alderson. B. The attempt to commit a misdemeanor is a misde- 
 meanor ; and if the removal of the skins amounted to such an attempt, 
 the indictment may be preferred. The ou4y question here is, whether 
 the Recorder ought to have directed the jury to find a verdict of not 
 guilty. 
 
 Lord Denman, C. J. If I thought the question was open after the 
 authorities, I must say that a great deal might be urged in support of 
 the proposition that these facts show a larceny to have been com- 
 mitted ; because the owner is deprived of his property for some time, 
 and the probability is that the intent distinguishing the case from lar- 
 ceny may be altered. The case which I put, of borrowing a horse for
 
 714 REGINA V. HOLLOW AY. [CHAP. VIII. 
 
 a year, without the owner's consent, with intent to ride it through 
 England and then return it, shows this. But if we say that borrowing 
 alone would constitute larceny, we are met by similar cases the other 
 way. With regard to the definition of larceny, we have of late years 
 said that there must be an intention to deprive the owner permanently 
 of his property, which was not the intention in this case. We are not 
 disposed to encourage nice distinctions in the criminal law ; yet it is an 
 odd sort of excuse to say to the owner, " I did intend to cheat you in 
 fact and to cheat my fellow-workmen afterwards." This, however, is 
 not an act which is not punishable ; for if it is not a misdemeanor, 
 which at the first sight it appears to be, it is an act done toward com- 
 mitting that misdemeanor. We must abide by former decisions, and 
 hold that a conviction for larceny cannot in this case be supported. 
 
 Parkk, R. I am of the same opinion. We are bound by the authori- 
 ties to say that this is not larceny. There is no clear definition of lar- 
 ceny applicable to every case ; but the definitions that have been given, 
 as explained by subsequent decisions, are sufficient for this case. The 
 definition in least's " Pleas of the Crown" is, on the whole, the best; 
 but it requires explanation, for what is the meaning of the phrase 
 "wrongful and fraudulent"? It probably means "without claim of 
 right." All the cases, however, show that, if the intent was not at the 
 moment of taking to usurp the entire dominion over the property and 
 make it the taker's own, there was no larceny. If therefore a man 
 takes the horse of another with intent to ride it to a distance and not 
 return it, but quit possession of it, he is not guilty of larceny. So in 
 R. V. Webb, in which the intent was to get a higher reward for work 
 from the owner of the property. If the intent must be to usurp the 
 entire dominion over the property, and to deprive the owner wholly of 
 it, I think that that essential part of the offence is not found in this 
 case. 
 
 Alderson, B. I cannot distinguish this case from R. v. Webb. 
 ' Coleridge, J., concurred. 
 
 CoLTMAN, J. We must not look so much to definitions, which it is 
 impossible a priori so to frame that they shall include every case, as to 
 the cases in which the ingredients that are necessary to constitute the 
 offence are stated. If we look at the cases which have been decided, 
 we shall find that in this case one necessary ingredient — the intent to 
 deprive entirely and permanently — is wanting. 
 
 Convictio7i reversed.^ 
 
 ^ Ace. Rex V. Webb, 1 Moo. C. C. 431 ; Reg. i'. Poole, 7 Cox C. C. 373. Contra. 
 Fort V. State, 82 Ala. 50. — Ed.
 
 SECT. VI.] REGINA V. HALL. 715 
 
 REGINA V. HALL. 
 
 Crown Cases Reserved. 1849. 
 
 [Reported 3 Cox C. C. 245.] 
 
 The following case was reserved by the Recorder of Hull : — 
 
 John Hall was tried at the last Ei)iphany Quarter Sessions for the 
 borough of Hull on an indictment charging him with stealing fat and 
 tallow, the property of John Atkin. 
 
 John Atkin, the prosecutor, is a tallow-chandler, and the prisoner 
 at the time of the alleged offence was a servant in his employment. 
 On the morning of the Gth of December last, the prosecutor, in conse- 
 quence of something that had occurred to excite his suspicions, marked 
 a quantity of butcher's fat, which was deposited in a room immedi- 
 ately above the candle-room in his warehouse. In the latter room was 
 a pair of scales used in weighing the fat, which the prosecutor bought 
 for the purposes of his trade. At noon the foreman and the prisoner 
 left the warehouse to go to dinner, when the former locked the doors 
 and carried the keys to the prosecutor. At that time there was no fat 
 in the scales. In about ten minutes the prisoner came back and asked 
 for the keys, which the prosecutor let him have. The prosecutor watched 
 him into the warehouse and saw that he took nothing in with him. In 
 a short time he returned the keys to the prosecutor and went away. 
 The prosecutor then went into the candle-room and found that all the 
 fat which he had marked had been removed from the upper room, and 
 after having been put into a bag had been placed in the scales in the 
 candle-room. The prosecutor then went into the street and waited 
 until a man of the name of Wilson came up, who was shortly followed 
 by the prisoner. The latter on being asked where the fat came from 
 that was in the scales, said it belonged to a butcher of the name of 
 Robinson ; and Wilson, in the prisoner's presence, stated that he had 
 come to weigh the fat which he had brought from Mr. Robinson's. 
 The prosecutor told Wilsc)n that he would not pay him for the fat until 
 he had seen Mr. Robinson, and left the warehouse for that purpose. 
 Wilson immediately ran away, and the prisoner, after offering to the 
 prosecutor's wife if he was forgiven to tell all, ran away too, and was 
 not apprehended until some time afterwards, at some distance from 
 Hull. 
 
 I told the jury that if they were satisfied that the prisoner removed 
 the fat from the upper room to tlie candle-room, and placed it in the 
 scales with the intention of selling it to the prosecutor as fat belong- 
 ing to Mr. Robinson, and with the intention of appropriating the 
 proceeds to his own use, the offence amounted to larceny. 
 
 The jury found the prisoner guilty. 
 
 Dearsley, for the prisoner. There was no larceny in this case. 
 The offence was an attempt to commit a statutable misdemeanor, and
 
 716 EEGINA V. BEECHAM. [CHAP. VIII. 
 
 only punishable as such. The case of R. v. Holloway, 13 Cox C. C. 
 241, decides it. There was an asportation, but no intention to dispose 
 of the property, for it was part of the very scheme that the owner 
 should not be deprived of his property in the fat. There must to con- 
 stitute larceny be a taking with intention of gain and of depriving the 
 owner of the property forever. The last ingredient is wanting here. 
 (He cited R. v. Morfit, R. & R. 307.) 
 
 Alderson, B. If a man takes my bank note from me, and then 
 brings it to me to change, does he not commit a larceny? 
 
 Dearsley. A bank note is a thing unknown to tlie common law, and 
 therefore the case put could not be larceny at common law. 
 
 Lord Denman, C. J. The taking is admitted. The question is 
 whether there was an intention to deprive the owner entirel}' of his 
 property ; how could he deprive the owner of it more effectually than 
 by selling it? To whom he sells it cannot matter. The case put of 
 the bank note would be an ingenious larceny, but no case can be more 
 extreme than this. 
 
 Parke, B. In this case there is the intent to deprive the owner of 
 the dominion over his property, for it is put into the hands of an 
 intended vendor, who is to offer it for sale to the owner, and if the 
 owner will not buy it, to take it away again. The case is distinguish- 
 able from that of R. v. Holloway by the existence of this intent, and 
 further by the additional impudence of the fraud. 
 
 Alderson, B. I think that he who takes property from another 
 intends wholly to deprive him of it, if he intend that he shall get it 
 back again under a contract by which he pays the full value for it. 
 
 Coleridge, J., and Coltman, J., concurred. 
 
 Conviction affirmed. 
 
 \ 
 
 REGINA v. BEECHAM. 
 
 Oxford Assizes. 1851. 
 
 [Reported 5 Cox C. C. 181.] 
 
 The indictment in the first count charged the prisoner with the 
 larceny, on the 8th of February, 1851, of three railway tickets of the 
 value of six pounds three shillings, and three pieces of pasteboard of 
 the value of one penny, the property of the London and North Western 
 Railway Company. 
 
 In a second count the tickets were described as the property of the 
 station-master at the Banbury Road station. 
 
 It appeared in evidence that the prisoner was employed by the rail- 
 Way company as a porter in the goods department of the Banbury 
 
 1 Ace. Reg. V. Manning, 6 Cox C. C. 86. — Ed.
 
 SECT. VI.J REGINA V. BEECHAM. 717 
 
 Road station. On the evening of the 8th of February he was drinking 
 beer at the station with a witness of the name of Hazell, who was a 
 horsekeeper employed at the station by an innkeeper. The station- 
 clerk having about half-past eight o'clock in the afternoon left his office 
 to work the electric telegraph in anotlier compartment of the station, 
 the prisoner went into the ticket-office, took out three first-class tickets 
 for the journey Ironi Banbury Road station to York, and stamped them 
 in the machine for the " 8th February-." The last train for York for 
 that day had been despatched a considerable time, and the prisoner 
 tried to alter the stamping machine so as to re-stamp the tickets with 
 another date, but failed in the attempt. He then gave one of the tickets 
 to Hazell, saying, "• There, you fool, when 30U want to go a long 
 journe}- 30U need not pay ; come here and do this." 
 
 Hazell mentioned the circumstance on the following da}- to the 
 station-clerk, who went to the prisoner and taxed him with the offence, 
 saying, "You have railway tickets in your pocket." The prisoner at 
 first denied it, then said if he had them he did not know it, and eventu- 
 ally took the two tickets from bis pocket. He immediately afterwards 
 went to the station-master and told all the matter to him ; the 
 latter said the prisoner should pay for the tickets or be reported. A 
 few days afterwards he was suspended from his employment and given 
 into custod}' on this charge. It appeared in evidence that tickets 
 stamped for one da}- might be re-stamped for another day and so 
 become available. 
 
 At the close of the case for the prosecution, 
 
 Williams, for the prisoner, submitted that the second count of the in- 
 dictment could not be sustained. The station-master had no property 
 in the tickets, as he was the servant of the railwa}' company-, and 
 merely had the custody of the tickets. 
 
 Patteson, J., expressed his assent to that proposition. 
 
 Williams then objected with respect to the first count, that as the 
 prisoner must have intended, supposing he took the tickets with a view 
 to their use, that they should be returned to the company at the end of 
 the journey, there was no such absolute taking away without an inten- 
 tion of restoration as was necessary to constitute a felon}-. 
 
 Patteson, J., said his opinion was that it was a question for the jury 
 to say whether the prisoner took the tickets with an intention to con* 
 vert them to his own use and defraud the company of them. 
 
 Williams then addressed the jury, submitting to them that the pris- 
 oner took the tickets in a foolish incautious way as a joke, and without 
 any intention whatever to defraud the company. 
 
 The learned judge in summing up told the jury that if the prisoner 
 took the ticikets with intent to use them for his own purposes, whether 
 to give to friends or to sell them or to travel b}' means of tliem, 
 it would not be the less larceny though they were to be ultimately 
 returned to the company at the end of the journey. 
 
 Verdict, not ffnilty.
 
 718 NELSON V. KEX. [CHAP. VIII. 
 
 NELSON V. REX. 
 Judicial Committee of the Privy Council. 1902. 
 
 [Reported 1902, A. C. 250.] 
 
 Appeal from a conviction by the above Court (Nov. 19, 1900) on 
 an indictment charging the appellant with unlawfully and fraudulently 
 taking and applying to his own use and benefit moneys and securities 
 belonging to the Dumbell's Banking Company, Limited, of which he 
 was a director, and against the sentence of five 3'ears' penal servitude 
 passed upon such conviction bj' the said Court. That charge was 
 made under s. 218 of a Statute of the Isle of Man Legislature, which 
 section is as follows : — 
 
 " Whosoever being a director, member, or public officer of any body 
 corporate or public company shall fraudulently take or apply for his 
 own use or benefit or for an}' use or purposes other than the use or 
 purposes of such body corporate or public company any of the property 
 of such body corporate or public company shall be guilty of a misde- 
 meanor, and being convicted thereof shall be liable at the discretion of 
 the Court to any of the punishments which the Court may award as 
 hereinbefore last mentioned." 
 
 The charge related to sums drawn upon an account called the 
 "C. B. Nelson Trust Account" between April 5, 1887, and August 7, 
 1892. It appeared that the cheques were openly drawn at the head 
 j)fflce at Douglas upon this account. The account was open to inspec- 
 tion of the bank officials, and was returned amongst other accounts, 
 weekly or monthly, to the head offiice in Douglas ; and in the returns 
 the name of the account and its total amount of indebtedness were set 
 forth. 
 
 The overdraft on this account was for the purpose of the purchase of 
 Allsopp's Brewery shares ; and on each occasion of the resale of these 
 shares the amount was placed to the credit of the account, and up to 
 December, 1892, moneys were paid into and out of this account. 
 
 The appellant at the trial put in, and proved, a statement shewing 
 bis financial position on December 31, 1893 (more than sixteen months 
 after the drawing of the last cheque set out in the indictment upon 
 which he was convicted), by which it appears that at that time the 
 appellant's assets exceeded his total liabilities by the sum of 19,123^. 
 
 Thereupon Deemster Shee remarked, "I don't see the materiality of 
 all this. It does not matter what wealth a man has if he illegally uses 
 the money of the bank." In summing up, he said: "Nelson made 
 a strong point : how could he have been fraudulent when he took these 
 overdrafts; he was solvent. If the jury thought it a satisfactory 
 answer that it was not fraudulent, it was their duty to say so, and he 
 •was entitled to a verdict of ' Not guilty.' But that was a dangerous 
 doctrine. Supposing these securities had been deposited with the
 
 SECT. VI. J NELSON V. REX. 719 
 
 bank, the argument would have been stronger. It was a dangerous 
 doctrine to allow one director to do what another director could not ; 
 even though he thought himself solvent though he was not." 
 
 The jur}', after being absent for six hours, informed the Court they 
 were divided and unable to come to a verdict. The foreman said, 
 " We differ on what in this case constitutes fraud within the meanins 
 of the law. Some of the jurors are of opinion the defendants were 
 solvent at the time of incurring the liabilities, and therefore not guilty 
 of fraud." Deemster Shee thereupon said, '' Is that the onlj- difficulty 
 you have?" and tlie foreman replied, "I tliink so, practically." 
 Whereupon tl>e Deemster gave the following ruling: — 
 
 Deemster Shee : " Well, solvenc}- alone would not be sufficient evi- 
 dence thej^ were not guilty. It might be a matter for 30U to consider, 
 but in my opinion solvency alone would not be evidence they were 
 not guilty of fraud. It is an element for you to consider whether 
 there was fraud. You have to consider the whole of the circumstances 
 in the case : the date of the account ; the fact that there were other 
 overdrafts of the defendants ; the size of the overdrafts ; the way in 
 which they were kept ; and the account the prisoners have given of 
 how they embarked in these transactions. All the circumstances in 
 the case have to be taken into your consideration. To sa}', simply 
 because one of the defendants was solvent that therefore he could not 
 be guilty of fraud, would not be right. You must consider about the 
 circumstances ; and, considering the importance of the case, I should 
 advise his Excellency to ask you to retire to consider your verdict 
 again." 
 
 Finally a verdict was returned, " Guilty on the Nelson Trust Ac- 
 count on]}'," with a recommendation to mercy. 
 
 The judgment of their Lordships was delivered by 
 
 Lord Halsbury, Lord Chancellor. This was a charge against 
 the defendant of having fraudulently appropriated to his own use 
 money of the Dumbell's Banking Compau}-. Tlieir Lordships are of 
 opinion that there was no sufficient legal evidence against the defend- 
 ant of that offence, and under those circumstances their Lordships will 
 I'ecommend that this part of the conviction, the only one on which 
 leave to appeal has been given, should be set aside. 
 
 It is impossibe not to notice that the mode in which the question has 
 been propounded fi'ora time to time, both by counsel and, one regrets 
 to saj', also by the learned Deemster himself, who presided, confuses 
 what is the nature of the charge made with the general charge of 
 irregularity in the conduct of the proceedings of the bank. That is 
 not the criminal charge which was preferred by the indictment, and 
 which ought to have been found b}' the jury. The charge was of 
 fraudulent!}' appropriating money of the bank. 
 
 The facts sufficiently shew that for a period of some 3"ears, beginning 
 at all events as earh' as 1887, and going down to 1893, the person con- 
 victed was in the habit of drawing partly upon his own private account
 
 720 NELSON V. KEX. [CHAP. VIII. 
 
 and parth' on an account which was called a trust account, but still in 
 liis name, and that from time to time that account was operated upon 
 in the ordinary and natural wa}' in which the account of a customer of 
 a bank is treated. Money was paid in and money was paid out, at 
 one time a ver}- large overdraft, and at another time that overdraft 
 reduced to an amount of something like 300^. or 400i^., down to the 
 period of two or three years after the trust account had first begun. 
 Then it is suggested that after a period of six jears altogether has 
 elapsed it is possible to pick out some of the earlier drafts that have 
 been made under the circumstances^ and treat a particular draft as 
 having been itself an offence — that is to say, a misappropriation of 
 the money of the bank to the use and purposes of the person who 
 drew it. The real truth is that, if what is suggested as the offence 
 had been committed, every cheque was itself a theft. I use the phrase 
 compendiously, because, although it is not stealing in the language of 
 the statute, the elements of stealing must exist in it, and, in order to 
 determine whether this offence has been committed in the sense which 
 the law requires in order to sustain the conviction, one must see 
 whether it is true to saj' that every one of those cheques so drawn, and 
 the money obtained by reason thereof, was a theft. 
 
 Their Lordships are of opinion that there was no legal evidence of 
 any such proposition. It may have been extremely irregular, and 
 mav have been wrong, and was wrong under the circumstances, of 
 this bank to allow the account to have been entered into at all. The 
 board ought to have been consulted, and the board ought to have 
 given its consent in writing that such an account should be entered 
 into, or, at all events, that overdrafts should not have been allowed on 
 it ; but that each of these transactions which is made the subject of 
 indictment was practicall}' a stealing of the money obtained by tlie 
 cheque there appears to be no evidence whatever, and their Lordships 
 are unable to see that the question was ever properly before the jury 
 at all. It was a natural and proper inquiry by the jury which they 
 made of the learned Deemster, whether or not they ought to have 
 some guidance as to what was a fraud within the meaning of the law, 
 because, as they explained, they were anxious to learn. Some of them 
 thought there could be no fraud at the time, because the person wa? 
 solvent who was drawing these cheques, to which inquiry no answe. 
 apparently was given by the learned Deemster in the language which 
 the jury required, but he goes on to say that it is not conclusive that 
 the defendant was not guilty because he was solvent — an entire inver- 
 sion, their Lordsliips regret to observe, of what ought to have been 
 told the jury at the time. Strictly, and as a matter of verbal accu- 
 racy, indeed it is not conclusive that the person M-^as not guilty; but 
 the question which the jurymen obviously desired to have answered 
 was whether or not, given the circumstances of this case, the man 
 being perfectly solvent at the time and having ample assets to answer 
 the cheque which he was drawing, the\' ought to infer from the nature
 
 SECT. VI.] PEOPLE EX RELATIONE PERKINS V. MORSE. 721 
 
 of the transaction that it was a taking or misappropriation within the 
 meaning of the statute. Upon that it is impossible to say the jury 
 received any guidance whatever. 
 
 In the result their Lordships are of opinion that there may have 
 been ample evidence that the account was improperly obtained, and 
 it may have been in one sense fraudulently obtained, but there is no 
 evidence justifying the charge that this money was appropriated to the 
 use of the person who drew the cheque in fraud of the right of the 
 bank to have the money, and therefore that the offence contemplated 
 by the statute was committed, or at all events there was no evidence 
 of its being committed so as to justify the verdict of " guilty." For 
 these reasons their Lordsliips will humbly advise His Majesty that the 
 conviction of November 19, 1900, should be set aside. 
 
 There will be no order as to costs against the Crown. 
 
 PEOPLE ex relatione PERKINS v. MORSE. 
 Court of Appeals of New York. 1907. 
 [Reported 187 N. Y. 410.] 
 
 Appeal from an order of the Appellate Division of the Supreme 
 Court in the first judicial department, entered May 25, 1906, which 
 reversed an order of Special Term dismissing a writ of habeas corpus 
 and directed the discharge of the relator from custody.^ 
 
 Gray, J. ... If the magistrate issued the warrant of arrest without 
 sufficient evidence in the particular case, the process is a nullity. The 
 question, always, must be whether the magistrate acquired jurisdiction 
 to cause an arrest of the person and the court, upon the habeas corpus 
 proceeding, will look back of his warrant and see if the facts stated in 
 the depositions of the prosecutor and his witnesses support his warrant. 
 (Code Crim. Proc. sec. 149 ; Church Hab. Corp. sec. 236.) If they 
 did not furnish reasonable and just ground for a conclusion that the 
 crime charged had been committed and that the defendant committed 
 it, then jurisdiction was lacking to hold the prisoner in custody for any 
 time. (Code Crim. Proc. sec. 150.) 
 
 The relator had the absolute right to question, in this way, the suffi- 
 ciency of the facts laid before the magistrate to constitute the crime of 
 larceny. That crime is defined in section 528 of the Penal Code, which 
 reads, as far as material, as follows : " A person who, with the intent 
 to deprive or defraud the true owner of his property, or of the use and 
 benefit thereof, or to appropriate the same to the use of the taker, or of 
 any other person, . . . having in his possession, custody, or control, 
 as a bailee, servant, attorne}', agent, clerk, trustee, or officer of any 
 person, association, or corporation, . . . any money, property, evi- 
 
 1 The detailed statement of facts is omitted ; the facts will be found stated in the 
 opinious. Part of each opinion is omitted. — Ed.
 
 722 PEOPLE EX RELATIONE PERKINS V. MORSE. [CHAP. VIIL 
 
 dence of debt or contract, article of value of any nature, or thing in 
 action or possession, appropriates tlie same to liis own use, or tliat of 
 any person other than the true owner or person entitled to the benefit 
 thereof, steals such property, and is guilty of larceny." 
 
 It is apparent that what constitutes the crime of taking the property 
 of another for the use of the taker, or of that of any other person than 
 the leo-al owner, is the intention with which the act is committed. 
 Under the statute, the crime of larceny no longer necessitates a tres- 
 pass ; but it does need, as an essential element, that the " intent to 
 deprive or defraud " the owner of his property, or of its use, shall 
 exist. The intent, by necessary implication, as from its place in the 
 penal statute, must be felonious ; that is to say, an intent without an 
 honest claim of right. It is not now essential, as it was under the 
 Roman and early English law, that the intention of the taker shall be 
 to reap any advantage from the taking. The statute makes the crime 
 to consist in the intent to despoil the owner of his property. That is 
 necessary to complete the offence, and if a man, under the honest im- 
 pression that he has a right to the property, takes it, it is not larceny 
 if there be a colorable title. (See Code Crim. Proc. sec. 548 ; People 
 V. Grim, 3 N. Y. Cr. Rep. 317; Bisliop's Crim. Law, sees. 297, 851; 
 Wharton's Crim. Law, sees. 883, 884.) The charge of stealing prop- 
 erty is only substantiated by establishing the felonious intent. Without 
 it there is no crime ; for it would be a bare trespass. It is the criminal 
 mind and purpose going with the act which distinguish the criminal 
 trespass from a mere civil injury. (1 Hale's P. C. 509 ; McCourt v. 
 People, 64 N. Y. 583.) Doubtless, if the particular act was specified 
 in the penal statute, an honest belief that it was right, while it would 
 purge the act from immorality, would not relieve it from indictabilit^'. 
 But when there is no statute on the subject and the act is not one which 
 concerns the State directly, because affecting the peace, order, comfort, 
 or health of the community, then the wrong done is private in its 
 character and must be redressed by private suit. The act of the presi- 
 dent of the insurance company, which the relator may be regarded as 
 abetting (Sec. 29, Penal Code), that is the contribution of corporate 
 funds for the purposes of a political campaign, was not malum pro- 
 hibitum, or a prohibited wrong ; for it was not until two years later 
 that it was made a misdemeanor by the law of 1906. (L. 1906, ch. 
 239.) The legislature may make that criminal whicli was not so before, 
 but we may not reason back of the enactment and predicate crime of 
 an act which was lacking in criminal intent. It is of the very nature 
 of crime that the criminal act shall involve the violation of a public law, 
 or a wrong, which, because grossly immoral and vicious, affects the 
 public injuriousl3% 
 
 If we turn then to a consideration of the facts, upon which the mag- 
 istrate ordered the relator to be arrested, it is impossible, reasonably 
 speaking, to find that criminal element which the statute makes aneceS' 
 sary one, the intent of the accused to steal.
 
 SECT, VI.] PEOPLE EX KELATIONE PERKINS V. MORSE. 723 
 
 When summed up the evidence amounts to this : that the president of 
 the company, in vvhom was vested, and who had for years been exercising, 
 the power to make disbursements of tlie corporate funds upon his sole 
 authority, had agreed that the insurance company would contribute to 
 the presidential campaign fund of the Republican national committee 
 up to the amount of $50,000 and that, to protect the compain- against 
 other demands for political puri)Oses, he requested the relator, one of 
 the company's trustees, to personally carry out the agreement by ad- 
 vancing the moneys. The relator acquiesced in the president's request, 
 advanced the money, and, subsequentl\", the president brought up the 
 subject of his reimbursement informally before a full attendance of the 
 members of the finance committee of the compan}'. The president's 
 purpose was not that the finance committee should take official action 
 in the matter, but that the trustees should be informed of what he had 
 done, and that he miglit have their opinions upon the matter. It was 
 the general opinion that the president should cause the relator to be 
 reimbursed for his advances out of the corporate funds. The facts 
 stated by the witnesses showed that what was brought before this body 
 of the company's trustees was the claim, or right, of Mr, Perkins to be 
 repaid the mone3S which he had paid out b}' the procui'ement of the 
 president, in order that the latter's agreement on behalf of the company 
 might be carried out, and that the president, exercising the executive 
 power, with which he appears to have been clothed, directed the 
 treasurer of the companj- to draw the check for the amount of the 
 relator's claim. Furthermore, the prosecution in making use before 
 the magistrate of the relator's letter to the district attorney as an admis- 
 sion of the fa(rts of the transaction complained of, not only made the 
 fact clear tliat the moneys were paid out to satisfy the relator's claim, 
 but, also, caused it to appear, afHrmativeh', that the I'elator had acted 
 in the honest belief that he was benefiting the company and had derived 
 no personal advantage. The magistrate was not bound to accept the 
 letter as establishing the innocence of the accused, but as a part of 
 the evidence used to make out the charge, he had his statements explain- 
 ing the transaction and stating his honest motives. It was equivalent 
 to his examination. 
 
 It is unqnestionabh' true that the purpose for which the mone3-s of 
 thecompan}- were promised was foreign to the chartered purposes of the 
 corporation ; but that fact does not make the pa3'ment a criminal act. 
 The act not being Tnalum prohibitum^ nor inalum in se, the innocent 
 motive of indirect!}' promoting the corporate affairs, through the sup- 
 posed advantage of the continuance in power of the Republican admin- 
 istration, purged the act of immorality, and it lacked the criminal intent. 
 The compan}^ had not the right, under the law of its existence, to agree 
 to make contributions for political campaigns any more than to agree to 
 do other things foreign to its charter ; but it had capacity to make 
 agreements, if not prohibited or inherentl}' wicked. Its act would 
 aflfect the interests of those concerned with the conduct of the corporate
 
 724 PEOPLE EX RELATIONE PERKINS V. MORSE. [CHAP. VIII. 
 
 business and effect a private wrong ; but it would not be a public 
 offence, or illegal, in the sense of violating any public interest. (Bis- 
 sell V. M. S. & N. I. R. R. Co., 22 N. Y. 258 ; 'tlolmes v. Willard, 125 
 ib. 75 ; Moss v. Cohen, 158 ib. 240.) If making the agreement to 
 contribute from the corporate funds was an illegal act, it was because 
 of the limitations upon the corporate powers and not because of con- 
 siderations of the disadvantage to the company of the act. There are 
 a great many things which those intrusted with the management of 
 corporate properties are known to do and which tliey ought not to do, 
 whatever th^ir good motives, not because some statute forbids, l)ut 
 because they are not within the scope of the chartered powers. Their 
 own sense of rectitude and of what is due to those who trust them 
 should admonish them of the wrongful nature of their conduct. It has 
 been well observed that the ultimate welfare of the citizen demands 
 that he shall conform his conduct to the moral law, and it concerns him 
 that every one else should conform to it. A moral obligation should be 
 none the less authoritative in the conduct of life that it is binding only 
 upon the conscience of the person as a duty, and is imperfect in law 
 from the absence of legal sanction. Courts, however, may not sit to 
 judge the conduct of a defendant by any moral code or rules of ethics. 
 Their sphere is to ascertain if the facts shown establish the crime 
 charged against him. In the facts stated in these depositions, I find 
 none upon which criminality can be predicated. The essential element 
 of the "intent to deprive and defraud" is nowhere to be found, and 
 there is no just basis for the inference. There was no concealment 
 about the transaction, and knowledge of it was conveyed to the other 
 trustees. That the relator ma}' have made a mistake of law, which will 
 not relieve him from liability in a civil action, may be true, and he 
 expressly disclaimed in his letter an}^ intention to dispute such a 
 liability ; but this was a case where the intent, or good faith, was in 
 issue and then knowledge of the law is immaterial. (Knowles v. City 
 of N. Y., 176 N. Y. at p. 439 ; Goodspeed v. Ithaca St. Ry. C, 184 
 ib. at p. 354.) The relator came to the aid of the president of the com- 
 pany who, as such, had agreed to contribute moneys to the campaign 
 fund, and advanced the moneys temporarily. Having done so, for no 
 other reason than for the supposed advantage of the company, his 
 claim to be reimbursed from the treasury of the company is openly 
 presented and it is paid. But within the spirit, if not the letter, of 
 section 548 of the Penal Code, that was not larceny. The section pro- 
 vides that " upon an indictment for larceny it is a sufficient defence 
 that the property was appropriated openly and avowedU', under a claim 
 of title preferred in good faith, even though such claim is untenable." 
 This section is an expression of the emphasis which the statute la^'s 
 upon the intent with which the property of another is taken. It is a 
 qualification of the provisions of section 528 of the Penal Code, defining 
 what shall constitute the crime of larceny. It is of considerable sig- 
 '.nificance, as illustrating the legislative understanding, that when, in
 
 SECT. VI.] PEOPLE EX KELATIONE PERKINS V. MORSE. 725 
 
 1906, the legislature dealt with the question specifically the offence was 
 declared to be a misdemeanor, not a larceny. 
 
 The question in this case was whether the facts evidenced the com- 
 mission of a crime, and that was a question of law, which went to the 
 jurisdiction of the magistrate. The}- showed that the design to injure, 
 the motive to despoil the company, the wrongful purpose, were all lack- 
 ing in the information which was laid before the magistrate, and upon 
 which the warrant issued. This being so, the act of the magistrate was 
 wholly without jurisdiction, and the warrant and all proceedings under 
 it were absolutely void. (Hewitt -y. Newberger, 141 N. Y.«538, 543). 
 
 For these reasons I advise the affirmance of the order appealed from. 
 
 HiscocK, J. I concur with Judge Gray in the affirmance of the 
 order appealed from. 
 
 Stripped of an}' collateral and immaterial considerations, such as 
 that of the consequences which may result to the magistrate issuing a 
 warrant without any legal basis therefor, the naked question is whether 
 any evidence was presented to such magistrate which showed reason- 
 able ground for believing that the defendant had committed the crime 
 of larceny. Unquestionably if there was no evidence justifying the 
 inference of such guilt, the magistrate was without jurisdiction and the 
 relator should be discharged. 
 
 This court seems to be wholly or practically unanimous in the opin- 
 ion that the evidence presented to the magistrate would not be sufficient 
 to sustain a conviction of the defendant for the alleged crime, and that 
 he should be discharged if convicted thereon. The nature of this 
 case, the attention which it has received, and the facts and circum- 
 stances disclosed render not at all violent the presumption that the 
 district attorney has now presented all the evidence within his reach, 
 and, therefore, it is quite probable that the really practical question 
 involved is whether the relator shall be discharged at the present or at 
 a subsequent stage of the proceedings. But however this may be, it 
 will be conceded, as is argued in behalf of the appellants, that if even 
 a slight degree of evidence of the relator's guilt was produced — " some- 
 thing upon which the judicial mind was called upon to act in determin- 
 ing the question of probable cause," the magistrate had jurisdiction, 
 the warrant was valid and the order appealed from should be reversed. 
 
 We are all agreed upon certain fundamental principles pertaining to 
 this case. The contribution by the president of the New York Life 
 Insurance Company from its funds of $50,000 to a political campaign 
 committee, even in the absence of any statutory prohibition, was abso- 
 lutely beyond the purposes for which that corporation existed, and was 
 wholly unjustifiable and illegal. And while the contribution was sug- 
 gested and made by the authority and direction of the president of the 
 company rather than by the relator, still the latter was so a party to 
 the execution of the act that he must be regarded as having aided and 
 abetted it, and, therefore, is criminally responsible if the crime was 
 committed.
 
 726 PEOPLE EX RELATIONE PERKLVS V. MORSE. [CHAP. VIII. 
 
 Further than this, the assumption will be made without critical 
 anal3'sis of its correctness in all respects, that because the relator 
 understood when he advanced his own funds to Mr. Bliss that the same 
 would be repaid to him with moneys of the corporation, he was from 
 tlie beginning a part}' to the plan to appropriate such corporate funds 
 to an unauthorized purpose, and that, therefore, when payment was 
 made to him he did not occupy the position of a bona fide though mis- 
 taken claimant, and does not come within those provisions of section 
 548 of the Criminal Code which provide that it is a defence to an indict- 
 ment for larceny " that the propert}' was appropriated openly and 
 avowedly under a claim of title preferred in good faith, even though 
 such claim is untenable." 
 
 But, confessedly, these facts and considerations alone are insufficient 
 tojustify the charge which has been laid against the relator. At the 
 time of his arrest there was no statute making the contribution of cor- 
 porate funds to political purposes of itself a crime, and, therefore, there 
 must be some evidence that the relator in doing what he did was 
 actuated b}' a felonious, criminal intent. It is agreed upon all sides 
 that the crime of larceny may not be committed unintentionally, uncon- 
 sciously or by mistake, but that in order to accomplish it the perpe- 
 trator must have the intent referred to. It may be difficult at all times 
 exaetlj' and satisfactorily to define this intent, but the requirement for 
 it as applicable to this case means that when the relator took part in 
 tlie appropriation of the money's in question, he must have had in some 
 degree that same conscious, unlawful, and wicked purpose to disregard 
 and violate the property rights of another which tlie ordinary burglar 
 has when he breaks into a house at night with the preconceived design 
 of stealing the property of its inmates. There is, as there ought to be 
 in the absence of statutor}' enactment, a long distance between the act 
 which is unauthorized and illegal, and which subjects the trespasser to 
 civil liability, and the one which is really wicked and criminal and 
 which subjects the offender to imprisonment. It is on this point of 
 criminal intent that I think the district attorney has failed to furnish 
 any evidencr whatever on which the magistrate might act, although the 
 burden affirmativeh' rested upon him so to do. 
 
 At the outset it must be borne in mind that some of the circumstances 
 which surround this charge are merely accidental and superficial, and 
 not at all decisive. The fact that this contribution was made by the 
 officers of one of those corporations whose management recently has 
 been subjected to grave criticism, and even that it was made for a pur- 
 pose properly subjected to condemnation and now absolutely prohibited, 
 are of no legal significance. However public opinion or ethics might 
 distinguish them, the legal principles which control the consideration 
 of this case are the same which would be applicable if the president of 
 a manufacturing corporation had contributed from its funds toward the 
 erection of a church supposed to be for the benefit of its employees, or 
 the officers of a railroad company had contributed its funds or the use
 
 SECT. VI.] PEOPLE EX RELATIONE PEKKINS V. MORSE. 727 
 
 of its property and transportation facilities for the temporarj relief of 
 the sufferers from some sudden and great calamity. We probably 
 should be compelled to say in each case ihat the contribution was 
 beyond the purposes of the corporation and unautliorized and illegal, 
 and the officers making the same civilly liable, but it certainly would be 
 a matter of grave import to hold, in the absence of something else, 
 that the}' might be prosecuted for stealing. 
 
 It, therefore, seems to me that we are justified in scrutinizing with 
 care the depositions presented to the magistrate for the purpose of ascer- 
 taining whether they do in fact disclose any intent to commit a crime. 
 
 These facts are all established and must be accepted by the prosecu- 
 tion as true, and there is wanting every one of those circumstances of 
 personal gain, furtive secrecy in the commission of the act and of con- 
 cealment after commission which, as essential elements, ordinarily 
 attend the crime of larcen}-, and if there is any evidence here of a 
 criminal intent, it is found simply and solely in the fact that the officers 
 of the corporation have contributed some of its funds to an unauthor- 
 ized purpose. As already indicated it does not seem to me that this 
 fact is sufficient to sustain the burden thus cast upon it. 
 
 In McCourt v. People (64 N. Y. 583) the plaintiff in error stopped at 
 a house and asked the daughter of the owner for a drink of cider, offer- 
 ing to pay for it. She refused to let him have it, and he thereupon 
 opened the cellar door, and, although forbidden to do so by her, went in 
 and drew some cider. He was indicted for burglary and larcen}', and 
 it was held that the trial court committed error in refusins: to direct his 
 acquittal. It was said : " Every taking by one person of the personal 
 property of another without his consent is not larceny ; and this, 
 although it was taken without right or claim of right, and for the pur- 
 pose of appropriating it to the use of the taker. Superadded to this, 
 there must have been a felonious intent, for without it there was no 
 crime. It would, in the absence of such an intent, be a bare trespass, 
 which, however aggravated, would not be a crime. It is the criminal 
 mind and purpose going with the act which distinguishes a criminal 
 trespass from a mere civil injury." And then further, as applicable 
 to the particular circumstances of that case, "There was not only 
 an absence of the usual indicia of a felonious taking, but all of the 
 circumstances proved are consistent with the view that the transaction 
 was a trespass merely. To find this transaction a larceny it is neces- 
 sary to override the ordinary presumption of innocence and to reject a 
 construction of the prisoner's conduct, which accounts for all the 
 circumstances proved without imputing crime, and to impute a criminal 
 intention in the absence of the ear marks which ordinarily attend and 
 characterize it." 
 
 It is true that this was said with reference to the evidence produced 
 upon a trial, but a decision denying as matter of law to given facts the 
 requisite probative force must be applicable at any other stage where 
 there is need for such proof.
 
 728 PEOPLE EX RELATIONE PERKINS V. MORSE. [CHAP. VIII. 
 
 CuLLEN, C. J. . . . Something is also said in the opinion below of 
 the beneficent character of the purpose to which the money was appro- 
 priated. Of that we can hardly take judicial notice. Probably at all 
 times it would be regarded as beneficent in Vermont and maleficent 
 in Georgia, while in New York its character would vary from year to 
 year. The meritorious character of the object to which the money was 
 appropriated has no bearing on the question of larceny. The gist of 
 that offence is not the application of money to a bad purpose, but 
 taking money that does not belong to the taker to appropriate to an 
 object good or bad. It is the fraudulent deprivation of an owner of his 
 property that constitutes larcen}'. It is a crime to steal, even though 
 with the intent to give away in charity and relieve distress. (Regina 
 V. White, 9 C. & P. 434.) I do not assert that it is immaterial which 
 party is in control of the government of the nation, and that the subject 
 is a matter of indifference to the citizen. If this were so, the profession 
 of political faith would be mere hypocris_v. If the citizen, with his 
 own means, contributes to legitimate political expenses to secure the 
 success of the party which he deems will most inure to the welfare of 
 the nation, his action is laudable, and even if the inducement be the 
 belief that the success of that party will inure to the advancement of 
 his personal interest, as distinguished from that of the country at large, 
 it may be justifiable ; but to apply the mone\' of another without his 
 consent to such an object is neither laudable nor justifiable, but dis- 
 honest. The money given to Bliss belonged neither to the president 
 nor to the relator, but was simply in their custody. Its legal owner 
 was the artificial being, the corporation ; its beneficial owners were the 
 policy-holders. With the immense business carried on by the corpora- 
 tion, policies issued in every part of the country and to persons of every 
 political party, both the relator and the president must have well known 
 that the universal assent of the policy-holders, the only thing which could 
 have justified, even morally (not legally), the payment to Bliss, could 
 never be obtained and that at all times a substantial minority would be 
 opposed to such payment. But though there was an illegal misai)pro- 
 priation of the corporate funds bv the relator, this does not necessarilj' 
 prove that he was guilty of larceny. It may have been simply a tres- 
 pass for which he is only civilly liable. I agree with Judge Gray that 
 to constitute larceny there must be what is termed a felonious intent, 
 but we do not make progress towards the determination of the question 
 before us unless we ascertain what is a felonious intent. The question 
 has given rise to much discussion in text books and in judicial opinions. 
 Whether "intent" is the proper term to employ may be doubted. 
 Though a man may commit many statutory offences unwittingly, no 
 one can become a thief or an embezzler accidentally or b}' mistake. 
 To constitute the offence there must be in the perpetrator the con- 
 sciousness of the dishonesty of the act. This, however, as frequently 
 turns on the knowledge or belief of the party as to his authority as on 
 his intent regarding the disposition of the property. It is not neces-
 
 SECT. VI.] PEOPLE EX RELATIONE PERKINS U. MORSE. 729 
 
 sary either at common law or under the statute that the intent should 
 be the profit of the taker, for as alread3' said, it is theft to take prop- 
 erty to give away as well as to keep for oneself. In the present case 
 no one will doubt that had a clerk taken from tlie company's till a sum 
 of money to give to the Republican club of his ward, it would have 
 been larceny. Whatever distinction there may be between the hypo- 
 thetical case and that of this relator does not lie in the object for which 
 the moneys were appropriated, for that in each case would be the same, 
 but in the difference between the authority over the corporate funds 
 possessed bj- the mere clerk and l)y tlie president and vice-president. 
 The clerk, of course, would know that he had no authority to so divert 
 the corporate funds ; the president and the relator might, though thej' 
 should have known to the contrar}-, possibly have entertained a dif- 
 ferent view on the subject. This brings us to the real and, to my 
 mind, the onl}- question in this case. As has been alreadv said, the 
 relator and the president of the company, without the authority of the 
 corporation and knowing that all the beneficial owners would never 
 assent to the act, took the moneys of the companj' without considera- 
 tion and appropriated them to the exclusive use of a third party. The 
 relator must be presumed to have known the law and to have intended 
 the natural consequences of his acts, wliicb was to deprive the company 
 of the money. If he knew the illegality of his act and his intention was 
 solely to benefit either Mr. Bliss personally or the political organization 
 which he represented, then he was guilt}' of larcenj-. If, however, as 
 asserted in his statements to the district attorne}', he believed that the 
 expenditure would be for the benefit of the compau}' and that the presi- 
 dent had the power to make the same, then, however mistaken on the 
 subject, he was not guilty. This was necessaril}* and properly a ques- 
 tion of fact to be determined bj' the magistrate, not one of law. Though 
 the prosecution put in evidence before the magistrate the written state- 
 ment of the relator, the magistrate was at liberty to believe it or to 
 reject it in whole or in part. (People v. Van Zile, 143 N. Y. 368; 
 Becker v. Koch, 104 id. 394 ; President, etc., Manhattan Co. v. Phil 
 lips, 109 id. 383.) The indirect method in which the payment to Blisi 
 was made and the fact concealed b}- having the money in the first in- 
 stance advanced by the relator instead of by the company, and the 
 method in which the relator was reimbursed b}' a check, not to him 
 personally, but to the order of J. P. Morgan & Companv, a banking' 
 firm with which tlie corporation ma}' have large legitimate dealings, 
 casts suspicion on the good faith of the relator, and might be considered 
 by the magistrate as militating against him. The explanation of this 
 course offered by the relator, that it was to relieve the president from 
 solicitations from other political parties, might also be discredited. It 
 is difficult to imagine how the representatives of other parties would 
 have access to the company's books ; nor would the scheme of pay- 
 ment enable the officers of the company when solicited to say that the 
 company had made no contributions to other parties, because such an
 
 730 PEOPLE EX RELATIONE PERKINS V. MORSE. [CHAP. VIII. 
 
 answer would be as essentially a falsehood as if the money had been 
 paid by the company in the first instance. The concealment of the 
 payment as described would warrant the magistrate in finding that the 
 parties were conscious of wrongdoing in making it and feared exposure. 
 Tlie relator asserts that he was ignorant of the character of the entries 
 made in the company's books, and there is no proof to the contrary of 
 this statement. But he must have known that the cheque to pay him 
 was drawn, not to himself, but to Morgan & Company. On the other 
 hand, there is, doubtless, to be considered in the relator's favor the fact 
 that he made no pecuniar}' profit by the transaction, and that he after- 
 wards openly admitted his participation in it. All this, however, merely 
 raised a question of fact to be passed on by the magistrate, with whose 
 determination other courts cannot interfere in this proceeding. . . .^ 
 
 O'Brien and Edward T. Bartlett, JJ. , concur with Gray and His- 
 COCK, JJ. ; Chase, J., concurs with Cullen, Ch. J., and Werner, J. 
 
 Order affirmed. 
 
 1 Werner, J., delivered a dissenting opinion. — Ed.
 
 SECT YII. ] REX V. FRANCIS. 731 
 
 SECTION VII. 
 
 Aggravated Larceny. 
 (o) Robbery and Larckny from the Person. 
 
 REX V. FRANCIS. 
 King's Bench. 1735. 
 
 \_Reported 2 Strange, 1015.] 
 
 The defendants were indicted at tlie Assizes in Somersetshire, for 
 that they feloniously made an assault on Samuel Cox in the king's 
 highway, and put him in fear, and £9 in mone}' from the person of 
 Cox did take, steal, and carry away. Upon not guilty pleaded by all 
 the defendants, the jury find this special verdict : — 
 
 That Samuel Cox travelling on horseback on the king's highway to 
 Somerton Fair, on a place called King's Down Hill in the county of 
 Somerset, saw all the prisoners in company- together, one of whom was 
 then lying on the ground ; that Cox passed by them, and one of them 
 (but which the jury do not know) called to Cox, and desired him to 
 change half a crown, that they might give something to a poor Scotchman 
 then lying on the ground, who was one of the prisoners. Cox came 
 back, and putting his hand in his pocket to pull out his mone\' in order 
 to give them change as they desired, he pulled out four moidores and a 
 Portugal piece, value £3, 12 s., and having the pieces of gold in his 
 hand, John Francis, one of the prisoners, genth' struck Cox's hand, in 
 which he held the gold, by means whereof the gold fell on the ground ; 
 that thereupon Cox got off from his horse, and said to the prisoners 
 that he would not lose bis money so ; and the said Cox then and there 
 offering to take up the pieces of gold, which were then upon the ground, 
 and in Cox's presence ; the prisoners then and there swore that if he 
 touched the pieces of gold they would knock his brains out ; whereby 
 he was then and there put in bodily fear of his life, and then and 
 there desisted from taking up the pieces of gold. That the prisoners 
 then and there immediately took up the gold, and got on their horses, 
 and rode off with the gold : that Cox immediately thereupon pur- 
 sued them, and rode after them for about half a mile ; and then the 
 prisoners struck him and his horse, and swore that if he pursued them 
 any farther they would kill him ; by reason of which menace he was 
 afraid to continue his pursuit an}' farther ; but whether upon the whole 
 matter the prisoners are guilty of the felony and robbery charged on 
 them the jury doubt, and pray the advice of the court. M si, &c.^ 
 
 1 Upon a second argument it was determined that the special verdict did not state 
 ■with sufficient certainty whether the taking waainthepresenceof the prosecutor. — Ed.
 
 732 REGINA V. SELWAY. [CHAP. VIII. 
 
 This special verdict and the prisoners were removed into the King's 
 Bench, where it was twice argned at the bar. And upon the first argu- 
 ment the only question was, wliether a taking in the presence be in 
 point of law a taking from the person, and it was unanimously deter- 
 miaed that it was.^ 
 
 REGINA V. SELWAY. 
 Central Criminal Court. 1859. 
 
 [Reported 8 Cox C. C. 235.] 
 
 The prisoners were indicted for robbery and stealing from the per- 
 son. ^ The evidence showed that the prosecutor, who was paralyzed, 
 received, while sitting on a sofa, in a room at the back of his shop, a 
 violent blow on the head from one of the prisoners, whilst the other 
 went to a cupboard in the same room, and stole therefrom a cash box, 
 with which he made off. 
 
 Orridge, for the prisoners, submitted that on this evidence there 
 was no proof of a stealing from the person. The cash box at the time 
 it was stolen was at some distance from the place where the prosecutor 
 was sitting, and could not be said, therefore, to be about liis person. 
 
 Mobiitson, for the prosecution, contended that it was quite suffi- 
 cient for the purposes of the indictment to show that the cash box was 
 under the protection of the prosecutor ; it need not be in his bodily 
 possession. He was near enough to it to protect it, at least by raising 
 an alarm. It was laid down in 1 Hale P. C. 533, " If a thief put a man 
 in fear, and then in his presence drive away his cattle, it is a robbery. 
 So, if a man being assaulted b}' a robber throw his purse into a bush, 
 or flying from a robber let fall his hat, and the robber in his presence 
 take up the purse or hat and carry it away, this would be robbeiy." 
 
 The Common Sergeant, having consulted Mr. Justice Crowder and 
 Mr. Baron Channell, held tliat although the cash box was not taken 
 from the prosecutor's person, 3'et it being in the room in which he was 
 sitting, he being aware of that fact, it was virtually under the iiro- 
 tection of his person. He should under the circumstances leave this 
 question to the jury : Was the cash box under the protection of the 
 prosecutor's person at the time when it was stolen? 
 
 The jury found that it was. Guilty ? 
 
 » Ace. U. S. V. Jones, 3 Wash. C. C. 209, 216. See Clements v. State, 84 Ga. 
 660; State v. Calhoun, 72 la. 432. — Ed. 
 
 2 <• Whosoever sliall rob any person, or shall steal any chattel, money, or valuable 
 security from the person of another, shall be guilty of felony." 24 & 25 Vict. c. 96, 9 
 40, re-enacting 7 Wm. IV. and 1 Vict. c. 87, s. 5. — Ed. 
 
 ' See Com. v. Dimond, 3 Gushing, 235. — Ed.
 
 SECT. VII.] COMMONWEALTH V. HAKTxNETT. 733 
 
 SECTION VII. {continued.) 
 (b) Lakceny from a Building. 
 
 COMMONWEALTH v. HARTNETT. 
 
 Supreme Judicial Court of Massachusetts. 1855. 
 
 [Reported 3 Gray, 4 50. J 
 
 Indictment on St. 1851, c. 156, § 4, for larceny in a building ol 
 Timothy- Ilartnett. At the trial in the municipal court, it appeared 
 that the said Timothy was the husband of the defendant ; and the 
 defen dant conte nded that she could therefore be convicted of simple 
 larceny only. But Hoar, J., ruled that the evidence was sufficient to 
 sustain the charge of larceny in a building. And to this ruling the 
 defendant, being found guilt}', alleged exceptions. 
 
 J A. AndreiD, for the defendant. 
 
 J. H. Clifford (Attovney General), for the Commonwealth. 
 
 Metcalf, J. /The defendant is convicted of larceny in a building 
 owned by her hTTST3and ; and as the indictment does not aver that it 
 was committed in the night time, it must be taken to have been com* 
 mi tied in the daytime. ' St. 1843, c. 1, § 2. The question is whether 
 the defendant is liable to the punishment prescribed by St. 1851, c. 156, 
 § 4, for larceny " in an}- building," or only to the punishment elsewhere 
 prescribed for simple larceny. 
 
 Larceny in the daytime, in a dwelling-house and in certain otliet 
 buildings, not broken into, was first subjected, in Massachusetts, to 
 greater punishment than if not committed therein, by St. 1804, c. 143, 
 § 6 ; to wit, solitary imprisonment of the offender, in the state prison, 
 not exceeding six mouths, and confinement there afterwards to hard 
 labor, not exceeding five years. By St. 1830, c. 72, § 3, courts were 
 authorized to sentence such offender to confinement in the county jail, 
 not exceeding five years, or to the payment of a fine, according to the 
 nature and aggravation of the offence. By the Rev, Sts. c. 126, § 14, 
 it was thus enacted : " Every person who shall steal, in the daytime, in 
 any dwelling-house, oflflce, bank, shop or warehouse, ship or vessel, 
 shall be punished by imprisonment in the state prison, not more than 
 five years, or by fine not exceeding three hundred dollars, and im- 
 prisonment in the country jail, not more than two years." By St. 1851, 
 c. 156, § 4, " every person who shall commit the offence of larceny, by 
 stealing in any building, shall be punished by imprisonment in the state 
 prison not more than five years, or by fine not exceeding five hundred 
 dollars, or imprisonment in the house of correction or county jail, not 
 exceeding three years." For simple larceny, that is, for theft not 
 aggravated by being from the person, nor by being committed in a 
 dwelling-house or other building, ship, or vessel, a lighter punishment
 
 734 COMMONWEALTH V. HARTNETT. [CHAP. VIII. 
 
 is prescribed b}' the Rev. Sts. c. 126, § 17, and c. 143, § 5. And 
 we are of opinion that the defendant is liable only to that lighter 
 punishment. 
 
 We do not suppose that any P^nglish statutes for the punishment of 
 larcenj' were ever held to be in force in Massachusetts. 7 Dane Ab. 
 168. Yet the provisions of some of them, and the provisions of acts of 
 Parliament for the punishment of other offences, have been enacted bj' 
 our legislature, in every stage of our history-. And in such cases (as 
 well as in cases where English statutes respecting civil concerns have 
 been enacted here), it has always been held that the construction previ- 
 ousl}' given to the same terms, by the English courts, is the construction 
 to be given to them b}' our courts. It is a common learning, that the 
 adjudged construction of the terms of a statute is enacted, as well as 
 the terms themselves, when an act, which has been passed b}' the legis- 
 lature of one state or country, is afterwards passed by the legislature 
 of another. So when the same legislature, in a later statute, use the 
 terms of an earlier one which has received a judicial construction, 
 that construction is to be given to the later statute. And this 
 is manifestly right. For if it were intended to exclude an}' known 
 construction of a previous statute, the legal presumption is, that its 
 terms would be so changed as to effect that intention. 6 Dane Ab. 
 613 ; Kirkpatrick v. Gibson's Ex'or-s, 2 Brock. 388 ; Pennock v. 
 Dialogue, 2 Pet. 18 ; Adams v. Field, 21 Verm. 266 ; Whitcomb v. 
 Rood, 20 Verm. 52; Rutland v. Mendon, 1 Pick. 156; Myrick v. 
 Hasey, 27 Maine, 17. There are many instances in which our legis- 
 lature have made punishable, as offences, acts which were first made so 
 by English statutes. Among others are our statutes concerning the 
 fraudulent obtaining of mone^' or goods by false pretences. In all such 
 cases, the construction given by the English courts is deemed to be the 
 true one, when the statutes are alike. And we have alreadj- stated, 
 that the act of stealing in certain buildings was first made an aggravated 
 larceny, and subjected to a greater punishment than before, by St. 
 1804, c. 143. Yet by the English St. 12 Anne, c. 7 (passed in 1713, 
 and now repealed), it was enacted that "all and every person or persons 
 that shall feloniously steal any monej-, goods or chattels, wares or 
 merchandises, of the value of forty shillings or more, being in any dwell- 
 ing-house, or outhouse thereunto belonging, although such house or 
 outhouse be not actually broken by such oflTender, and although the 
 owner of such goods, or any other person or persons be or be not in 
 such house or outhouse, being thereof convicted, shall be absolutely 
 debarred of and from the benefit of clerg}'." And b}' the English St. 24 
 G. II. c. 45, a like provision was made in cases of conviction of the 
 offence of feloniously stealing goods, wares, or merchandise, of the 
 value of forty shillings, in any ship, barge, lighter, boat, or other vessel, 
 upon any navigable river, or in any port of entry or discharge. But 
 it was early decided that the first of these statutes did not extend to a 
 stealing b}' one in his own house, nor to a stealing b}' a wife in her
 
 SECT. VII.] COMMONWEALTH V. SMITH. 735 
 
 husband's house, which is the same as her own. iThg^ ^trtention of the 
 statute was declared to be, to protect the owner's propert}' in his own 
 house from tlie depredation of otliers, or tlie property of others lodged 
 in his house ; thereby giving protection against all but the owner hiui- 
 st'lf. It has also been decided that the property stolen must be such as 
 is usually- under the protection of the house, deposited there for safe 
 custody, and not things immediately under the eye or personal care of 
 some one who happens to be in the house. 2 EastF. C 044-646 ; The 
 King V. Gould, 1 Leach (3d ed.), 257 ; The King v. Thompson & Mac- 
 daniel, 1 Leach, 379 ; The King v. Campbell, 2 Leach, 642. See also 
 Rex V. Taylor, Russ. & Ry. 418 ; Rex v. Hamilton, 8 C. & P. 49 ; 
 Rex V. Carroll, 1 Mood. C. C. 89. And it has also been held that the 
 St. 24 G. n. c. 45, does not extend to stealing by the owner and 
 master of a vessel. Rex v. Madox, Russ. & Ry. 92. 
 
 We are of opinion that the purpose and intent of St. 1804, c. 143, § 6, 
 and of the Rev. Sts. c. 126, § 14, were the same as the purpose and 
 hitent of St. 12 Anne, c. 7, and that they must have the same con- 
 struction which was given to that before these were enacted. Indeed, 
 the attorney general frankly admits this, and that he cannot ask for 
 sentence against the defendant, as for an aggravated larceny, unless it 
 is required or warranted bj- St. 1851, c. 156, § 4. "We think that 
 statute has not altered the law in this matter ; that it has onh' made 
 larceu}' "in an}- building," an aggravated offence, as former statutes 
 made it when committed in certain enumerated buildings ; and that it 
 has not subjected to the punishment therein prescribed any larceny 
 which, if committed in either of those buildings, would not have been 
 liable to such punishment. The statute was passed in consequence of 
 the decision, in Commonwealth v. White, 6 Cush. 181, that the 
 passenger room of a railroad station was not an "office," within the 
 meaning of the Rev. Sts. c. 126, § 14. 
 
 Defendant to be sentenced for simple larceny.^ 
 
 COMMONWEALTH v. SMITH. 
 
 Supreme Judicial Court of Massachusetts, 1873. 
 
 [Reported 1 1 1 Massachusetts, 429.] 
 
 Indictment alleging that the defendant, on April 14, 1872, at Brain- 
 tree, certain bank notes " of the propert}', goods, and moneys of James 
 Gilbride, in a certain building there situate, to wit, the dwelling-house 
 of one Patrick McGuire, and then and there in the possession of the 
 
 1 Ace. Eex V. Gould, Leach (4th ed.), 257. Otherwise, in England, under Stat. 7 
 & 8 G. IV. ch. 29, § 12 ; Reg. v. Bowden, 2 Moo. C. C 285. — Ed.
 
 736 COMMONWEALTH V. SMITH, [CHAP. VIII. 
 
 said James Gilbride, being found, feloniously did steal, take, and carry 
 away." 
 
 At the trial in the Superior Court in Norfolk, before Putnam, J., the 
 Commonwealth introduced evidence tending to show that the defendant 
 and James Gilbride lodged together in the same room of McGuire's 
 house ; that Gilbride went to the room where the defendant was already' 
 in bed, put the money in his trunk, locked the trunk, put theke}- of it in 
 his pocket, undressed, put his clothes on a chair, and went to bed ; that 
 the defendant got up in the night, took the key from the pocket, opened 
 the trunk, took out the money, and returned the kej' to the pocket. 
 Gilbride testified that he was awakened in the night, and saw Smith 
 with a lighted match at one of the trunks in the room, but did not know 
 it was his own trunk, and thought nothing more of it, until he missed 
 the money. 
 
 The defendant asked the judge to rule that upon this evidence the 
 jury could not find the defendant guilty- of larceny in a building, but 
 only of simple larceny. The judge declined so to rule, and left it to 
 the jury under instructions which authorized them to find the defendant 
 guilty of larceny in a building. The jury returned a verdict of guilty. 
 
 The defendant then moved in arrest of judgment on the ground that 
 the indictment did not aver that the larcen}' charged was committed in 
 any building, but the judge overruled the motion. 
 
 The defendant alleged exceptions. 
 
 W. E. Jev:ell^ for the defendant. 
 
 W. G. Colhurn^ Assistant Attorney General ( C. R. Train^ Attor- 
 ney General, with him), for the Commonwealth. 
 
 Gray, J. The indictment duly charges larcen\' in a building. The 
 allegation that the defendant stole property in the dwelling-house 
 described necessarily includes a statement that the act of stealing 
 was done in _the building. And the whole charge was supported by 
 the proof. In o rder to constitute larceny in a dwelling-house or other 
 building, the property stolen must indeed be under the protection of 
 the house, and not under the aye or personal care of some one who 
 happens to be in the house. The King v. Owen, 2 Leach (4th ed.), 572 ; 
 Commonwealth v. Hartnett, 3 Gray, 450, 452. " But money of a lodger 
 in his trunk, as well as the key of the trunk in a pocket of his clothes, 
 is clearly, while he is in bed, undressed, and asleep, not under his own 
 protection, but under the protection of the house. Rex v. Taylor, Russ. 
 & Ry. 418 ; Rex v. Hamilton, 8 C. & P. 49. The defendant was there- 
 fore rightly convicted of larceny- in a building. 
 
 Exceptions overruled.' 
 
 1 Ace, Rex V. Taylor, Russ. & Ry. 418. — Ed.
 
 SECT. VII,] COMMONWEALTH V. LESTER. 737 
 
 COMMONWEALTH v. LESTER. 
 Supreme Judicial Court of Massachusetts, 1880. 
 
 [Reported 129 Massachusetts, 101] 
 
 Ames, J.^ In an indictment founded upon tlie Gen. Sts. c. 161, § 15, 
 for larceny in a building, it is not enuugli to prove that the property 
 stolen was in a building at the time of the theft, and that the defend- 
 ant was the thief. It is necessary to show also that the property was 
 under the protectionl3f the building, placed there for safe keeping, and 
 Tlot under the eye or personal care of some one in the building. The 
 watches in this case were a part of the owner's stock in trade, usually 
 kept b}' him in the building. But his testimony, which was the only 
 evidence to the point, is to the effect that he was in charge of the prop- 
 erty, when the defendant came in and asked to look at some watches, 
 and that he handed the watches to the defendant ; that he was not 
 sure whether the defendant held the watches in his hand, or whether 
 they were lying on the show-case ; and that they were stolen while 
 he turned partially round to place something upon the shelf behind 
 him. If they were upon the show-case when stolen, it would be at 
 least doubtful whether they must not, under the circumstances, be con- 
 sidered as rather in the possession of the owner than under the pro- 
 tection of the building. If by the act of the owner they were in the 
 hands of the defendant, the}' certainly derived no protection from the 
 building. As the evidence left it wholly uncertain whether the}' were 
 on the show-case or in the defendant's own hands, it did not warrant a 
 conviction of larceny in a building ; and the jury should have been so 
 instructed. Rex v. Campbell, 2 Leach (4th ed.) 564 ; Rex v. Castle- 
 dine, 2 East P. C. 645 ; Rex v. Watson, 2 East P. C. 680 ; s. c. 2 
 Leach, 640 ; Rex v. Hamilton, 8 Car. & P. 49, 50, note ; Common- 
 wealth V. Smith, 111 Mass. 429. 
 
 Exceptions sustained^ 
 
 1 The opinion only is given ; it sufficiently states the case. 
 
 ■2 Ace. Rex V. Campbell, Leach (4th ed.). 642. Contra, Simmons v. State, 73 Ga. 
 609. See Com. v. Nott, 135 Mass. 269. — Ed.
 
 738 REX V. HEADGE. [CHAP. IX. 
 
 CHAPTER IX. 
 EMBEZZLEMENT. 
 
 REX V. HEADGE. 
 
 Crown Case Reserved. 1809. 
 
 [Reported Russell ^ Ryan, 160.] 
 
 The prisoner was tried and convicted before Mr. Justice Bayley at 
 the Old Bailey Sessions, September, 1809, on the statute 39 G. III. c. 
 85, for embezzling three shillings, which he received for and on account 
 of his musters, James Clarke and John Giles. 
 
 It appeared from the evidence that the prosecutors desired a neigh- 
 bor, one Francis Moxon, to go to their shop and purchase some articles 
 in order that they might discover whether the prisoner put the money 
 which he received for the goods sold into the till; the prosecutors sup- 
 plied Moxon with three shillings of their own money for this purpose, 
 which money they marked. Moxon went to the shop, bought the arti- 
 cles, and paid the prisoner the three shillings. The prisoner embezzled 
 this money. 
 
 It was urged on behalf of the prisoner that the prosecutors had con- 
 structively the possession of this money up to the time of the embezzle- 
 ment and that the}- had parted with nothing but the mere custody. The 
 prisoner it was contended might have been indicted for larceny at com- 
 mon law, but that the statute did not apply to cases where the money 
 before its delivery to the servant had been in the masters' possession 
 and might leo-allv be considered the masters' at the time of such deliv- 
 ery, as Moxon in this case was the masters' agent and his possession 
 theirs. 
 
 The learned judge before whom this case was tried thought it de- 
 served consideration, and reserved the point for the opinion of the 
 judges. 
 
 In Michaelmas term, 1809, the judges met and held the conviction 
 right, upon the authority of Bull's case, in which the judges upon simi- 
 lar facts held a common-law indictment could not be supported. It 
 seemed to be the opinion of the judges that the statute did not apply to 
 cases which are larceny at common law.
 
 CHAP. IX. J REGINA V. CULLUM, 739 
 
 REGINA V. CULLUM. 
 Crown Case Reseuved. 1873. K 
 
 [Reported Law Reports, 2 Crown Cases Reserved, 28.] 
 
 Case stated by the Chairman of the West Kent Sessions. 
 
 The prisoner was indicted as servant to George Smeed for stealing 
 £2, the propert}' of his master. 
 
 The prisoner was employed by Mr. Smeed of Sittingbourne, Kent, as 
 captain of one of Mr. Smeed's barges. 
 
 Tlie prisoner's dut}' was to take the barge with the cargo to London, 
 and to receive back such return cargo and from such persons as his 
 master should direct. The prisoner had no authorit}' to select a return 
 cargo or take any other cargoes but those appointed for him. The 
 prisoner was entitled b}- way of remuneration for his services to half 
 the earnings of the barge after deducting half his saiHng expenses. 
 Mr. Smeed paid the other half of such expenses. The prisoner's whole 
 time was in Mr. Smeed's service. It was the duty of the prisoner to 
 account to Mr. Smeed's manager on his return home after every voy- 
 age. In October last, by direction of Mr. Smeed, the prisoner took a 
 load of bricks to London. In London he met Mr. Smeed and asked if 
 he should not on his return take a load of manure to Mr. Pye of Cax- 
 ton. Mr. Smeed expressl}' forbade his taking the manure to Mr. Pye, 
 and directed him to return with his barge empty to Burham, and thence 
 take a cargo of mud to another place, Murston. Going from London 
 to Murston he would pass Caxton. Notwithstanding this prohibition 
 the prisoner took a barge-load of manure from London down to Mr. 
 Pye at Caxton, and received from Mr. Pye's men £4 as the freight. It 
 was not proved that he professed to cairy the manure or to receive the 
 freight for his master. The servant who paid the £4 said that he paid 
 it to the prisoner for the carriage of the manure, but that he did not 
 know for whom. P^arh* in December the prisoner returned home to 
 Sittingbourne and proposed to give an account of his voyage to Mr. 
 Smeed's manager. The prisoner stated that he had taken the bricks to 
 London, and had returned empt}- to Burham, as directed by Mr. Smeed, 
 and that there he had loaded with mud for Murston. 
 
 In answer to the manager's inquiries the prisoner stated that he had 
 not brought back an}' manure in the barge from London, and he never 
 accounted for the £4 received from Mr. Pye for the freight for the 
 manure. 
 
 The jury found the prisoner guilty as servant to Mr. Smeed of em- 
 bezzling £2. 
 
 The question was whether, on the above facts, the prisoner could be 
 properly convicted of embezzlement. 24 & 25 Vict. c. 96, § 68, enacts 
 that " Whosoever, being a clerk or servant, or being employed for the
 
 740 REGINA. V. CULLUM. [CHAP. IX. 
 
 purpose or in the capacity of a clerk or servant, shall fraudulently em- 
 bezzle any chattel, money, or valuable security which shall be delivered 
 to or received or taken into possession by him for or in the name or on 
 the account of his master or employer, or any part thereof, shall be 
 deemed to have feloniously stolen the same ft'om his master or em plo^'er, 
 although such chattel, money, or security was not received into the pos- 
 session of such master or employer otherwise than by the actual pos- 
 session of his clerk, servant, or other person so employed. . . ." 
 No counsel appeared for the prisoner. 
 
 M T. /Smith (with him Moreton Smith) for the prosecution. The 
 prisoner received this freight either " for" or " on account of his mas- 
 ter or employer," and therefore is within the terms of 24 & 25 Vict. c. 
 96, § 68. The words " by virtue of such employment," which were in 
 the repealed statutes relating to the same offence, have been " advisedly 
 omitted in order to enhirge the enactment and get rid of the decisions 
 on the former enactments." Greaves' Crim. Law Consolidation Acts, 
 p. 117. 
 
 [BoviLL, C. J. An alteration caused by the decision of Rex v. Snow- 
 ley, 4 C. & P. 390, which was a case resembling the present one. 
 
 Blackburn, J, How can the money here be said to have been 
 received into the possession of the servant so as to become the propert}'^ 
 of the master?] 
 
 The prisoner was exclusively employed bj* the prosecutor. With his 
 master's barge he earned, and in the capacit}' of servant received, £4 
 as freight, which on receipt by liim at once became the property of his 
 master. Rex v. Hartley, Russ. & Ry. 139. 
 
 [Blackburn, J. But in this case the servant was disobeying ordei'S. 
 Suppose a private coachman used his master's carriage without leave, 
 and earned half-a-crown b}- driving a stranger, would the mone}- be re- 
 ceived for the master so as to become the property of the latter?] 
 
 Such coachman has no authority to receive any money for his mas- 
 ter ; the prisoner, however, was entitled to take freight. 
 
 [BoviLL, C. J. He was expressly forbidden to do so on this 
 occasion.] 
 
 Can it be said that he may be guilty of embezzlement if in obedience 
 of orders he receives money, and j-et not guilty of that crime if he is 
 acting contrary to his master's commands? See note to Regina v. 
 Harris, Dears. C. C. 344, in 2 Russell on Crimes, 4th ed., p. 4.53. 
 
 [Blackburn, J. In suggesting that case to be erroneous the editor 
 seems to assume that the decision proceeded on the words " by virtue 
 of his employment," whereas it did not. 
 
 Bramv«^ell, B. Suppose the captain of a barge let bis master's ves- 
 sel as a stand to the spectators of a boat-race and took payment from 
 them for the use of it?] 
 
 Such use would not be in the nature of his business. 
 [Blackburn, J. In the note to this section by Mr. Greaves he 
 remarks: " Mr. Davis (Davis' Criminal Statutes, p. 70), rightly says
 
 CHAP. IX.] KEGINA V. CULLUM. 741 
 
 that ' this omission avoids this technical distinction ; ' hut he adds, ' still 
 it must be the master's money which is received by the servant, and 
 not money wrongfully received by the servant by means of false pre- 
 tences.' This is plainly incorrect." But in my opinion Mr. Davis was 
 plainly con-ect and Mr. Greaves wrong. Regina v. Thorpe, Dears. & B. 
 C. C. 562.] 
 
 BoviLL, C. J. In the former act relating to this offence were the 
 words " by virtue of his employment." The phrase led to some diffi- 
 culty ; for example, such as arose in Regina v. Snowley, 4 C. & P. 390, 
 and Regina v. Harris, Dears. C. C. 3-14. Therefore in the present 
 statute those words are left out, and § 68 requires instead that in order 
 to constitute the crime of embezzlement by a clerk or servant the 
 " chattel, money, or valuable security . .V^ shall be delivered to or 
 received or taken into possessioft— bjz-^him, lor 6r in the name or on 
 account of his master or employer/M 
 
 Those words are essential to the definition of the crime of embezzle- 
 ment under that section. The prisoner here, contrary to his master's 
 orders, used the barge for his, the servant's, own purposes, and so 
 earned money which was paid to him, not for his master but for him- 
 self; and it is expressly stated that there was no proof that lie pro- 
 fessed to carr}' for the master, and that the hirer at the time of paying 
 the money did not know for whom he paid it. The facts before us 
 would seem more consistent with the notion that the prisoner was mis- 
 using his master's propert}' and so earning money for himself and not 
 for his master. Under those circumstances the money would not be 
 received " for" or "in the name of" or "on account of" his master 
 but for himself, in his own name, and for his own account. His act 
 therefore does not come within the terms of the statute, and the convic- 
 tion must be quashed. 
 
 Bramwell, B. I am of the same opinion. I think in these cases we 
 should look at the substance of the charge and not merel}' see whether 
 the case is brought within the bare words of the Act of Parliament. 
 Now the wrong committed b}^ the prisoner was not fraudulent or 
 wrongful with respect to money, but consisted in the improper use of 
 his master's chattel. The offence is, as I pointed out during argument, 
 onlj' that which a barge-owner's servant might be guilty of, if when 
 navigating the barge, he stopped it, allowed persons to stand upon it to 
 view a passing boat-race, charged them for so doing, and pocketed the 
 money they paid to him. There is no distinction between that case 
 and this save that the supposititious case is more evidently out of the 
 limits of the statute. 
 
 The use of this barge bj' the prisoner was a wrongful act yet not dis- 
 honest in the sense of stealing. But I will add that I do not think this 
 case even within the words of the statute. The servant undoubtedly 
 did not receive the mone}' " for" his master nor " on account of" his 
 master nor "in the name" of his master. Nevertheless I doubt ex- 
 tremely whether on some future day great difficulty may not arise as to
 
 742 EEGINA V. BARNES. [CHAP. IX. 
 
 the meaning of these expressions in § 68, for I doubt whether, although 
 the servant had used his master's name, he would have been within the 
 terms of the Act of Parliament. " In the name of" his master is a ver}- 
 curious expression. Suppose a person in service as a carter had also 
 a horse and cart of his own and employed them to do some or other 
 work, professing them to be his master's, and received hire for it " in 
 the name of" his master, would that be embezzlement? Could he be 
 rightl}- convicted under this section? I doubt it extremely. The words 
 " in the name of" his master, altliough inserted with a desire to obviate 
 dilficulties, seem to me likely hereafter to raise them.^ 
 
 REGINA V. BARNES. 
 Devizes Assizes. 1858. 
 
 [Reported S Cox C C. 129.] 
 
 Prisoner was indicted for that he being the servant of Joseph Hill 
 and others, did embezzle two sums of £68 lO.s., and £29 9s. 7d., their 
 property. 
 
 Edlin, for the prosecution. 
 
 Cole, for tlie prisoner. 
 
 It was proved that prisoner, who was a coal and timber merchant, fell 
 into difficulties, and made an assignment of all his goods, effects, and 
 book debts. After tlie execution of this assignment, he received the 
 two sums of money in question, which had been debts previously due 
 to him, and lie had not accounted for the receipt of those sums. After 
 the execution of the deed the prisoner had been employed by the 
 trustees, at a salary, to conduct the business for the benefit of the 
 trustees. 
 
 Cole submitted that the debts being only choses in action could not 
 be assigned in law, they could only be sued for and recovered in the 
 prisoner's name ; and in law he was the person entitled to receive 
 them ; in fact, he received his own monev. 
 
 Edlin contended that immediately on the receipt of the money by the 
 prisoner it became the property of the trustees, and then tlie prisoner 
 was guilty of embezzlement. 
 
 Cole, in reply. Embezzlement is the stopping of money in transitu 
 to the employer. If rightly received by the prisoner, the keeping of 
 it afterwards was not embezzlement. He could not be guilty of 
 larceny unless the money was ear marked, and if ear-marked, it was 
 the debt supposed to be assigned, but which had not passed in law, 
 only in equity. 
 
 1 Concurring opinions of Blacl<burn and Arrhibalrl, JJ., are omitted. See ace. Reg, 
 V. Harris, 6 Cox C. C. 363 ; Reg. v. Read, 3 Q. B. D. 131 ; Brady v. State, 21 Tex. 
 App. 659. See ex parte Hedley, 31 Cal. 108. —Ed.
 
 CHAP. IX.] COMMONWEALTH V. HAYS. 743 
 
 Byles, J., said, the difficulty was to make out that, in point of law, 
 the prisoner was a clerk, or servant, or actiag_in the capacity of a 
 servant within the meaning of the statute. I It was clear that these 
 debts were not assignable in law ; they were c hoses in action, and the 
 deed would only bind him in equity. The moment he received these 
 moneys, they wer.e_liis own moneys, — ^ he received what, in point of law, 
 was his own mone^. i How then, could he be guilty of embezzlement ; 
 or how could he be said to be clerk or servant to the trustees ? He 
 could not, in point of law, pass the property in the debts due to him 
 before the deed was executed. His assignees were only equitable 
 assignees ; the}- could onl}^ sue in his name. The deed could onl}- pass 
 that which he actually had in his possession at the time the deed was 
 executed. Under these circumstances the indictment could not be 
 sustained. 
 
 The prisoner was, therefore, acquitted. 
 
 COMMONWEALTH v. HAYS. 
 Supreme Judicial Court of Massachusetts. 1858. 
 
 [Reported 14 Gray, 62.] 
 
 Indictment on St. 1857, c. 233, which declares that "if any person, ■ 
 to whom any money, goods, or other property, which may be the sub- . 
 ject of larceny, shall have been delivered, shall embezzle, or fraudu- 
 lently convert to his own use, or shall secrete, with intent to embezzle 
 or fraudulently convert to his own use, such mone}', goods, or property, 
 or an}' part thereof, he shall be deemed, b}- so doing, to have committed 
 the crime of simple larceny." The indictment contained two counts, 
 one for embezzlement, and one for simple larceny. 
 
 At the trial in the Court of Common Pleas in Middlesex, at October 
 term, 1858, before Aiken, J., Amos Stone, called as a witness by the 
 Commonwealth, testified as follows: "I am treasurer of the Charles- 
 town Five Cent Savings Bank. On the 17th day of October, 1857, the 
 defendant came into the bank, and asked to draw his deposit, and 
 presented his deposit book. I took his book, balanced it, and handed 
 it back to him. It was for one hundred and thirty' dollars in one item. 
 I then counted out to him two hundred and thirty dollars, and said, 
 •• There are two hundred and thirt}' dollars.' The defendant took the 
 money to the end of the counter, and counted it, and then left the room. 
 Soon after the defendant had left, I discovered that I had paid him one 
 hundred dollars too much. After the close of bank hours I went in 
 search of the defendant, and told him that I had paid him one hundred 
 dollars too much, and asked him to adjust the matter. The defendant 
 asked me how I knew it. He asked me if I could read. I said ' Yes.'
 
 744 COMMONWEALTH V. HAYS. [CHAP. IX. 
 
 He then showed me his book, and said, ' What does that say?' I took 
 it, and read in it one hundred and thirty dollars. The defendant then 
 said, ' That is what I got.' He exhibited two fifties, two tens, and a 
 ten dollar gold piece, and said, ' That is what I got.' I then said to 
 him, ' Do you sa}' that is all and precisely what I gave you? ' He re- 
 plied, 'That is what I got.' I then said to him, ' I can prove that you 
 got two hundred and thirty dollars.' He replied, 'That is what I want; 
 if you can prove it, you will get it ; otherwise, you wont.' I intended 
 to pay the defendant the sum of two hundred and thirty dollars, and did 
 so pay him. I then supposed that the book called for two hundred and 
 thirty- dollars. Books are kept at the bank, containing an account with 
 depositors, wherein all sums deposited are credited to them, and all 
 sums paid out are charged to them." 
 
 The defendant asked the court to instruct the jury that the above 
 facts did not establish such a delivery or embezzlement as subjected the 
 defendant to a prosecution under the St. of 1857, c. 233, and did not 
 constitute the crime of larceny. 
 
 The court refused so to instruct the jury ; and instructed them " that 
 if the sum of two hundred and thirty dollars was so delivered to the 
 defendant, as testified, and one hundred dollars, parcel of the same, 
 was so delivered b}' mistake of the treasurer, as testified., and the de- 
 fendant knew that it was so delivered b\' mistake, and knew he was 
 not entitled to it, and afterwards the money so delivered by mistake 
 was demanded of him by the treasurer, and the defendant, having such 
 knowledge, did fraudulently, and with a felonious intent to deprive the 
 bank of the monc}-, convert the same to his own use, ho would be 
 liable under this indictment." The jury returned a verdict of guilty, 
 and the defendant alleged exceptions. 
 
 JV. /St. J. Green., for the defendant. 
 
 S. H. PhiU'qn (Attorney General), for the Commonwealth. 
 
 BiGELOW, J. The statute under which this indictment is found is 
 certainly expressed in very general terms, which leave room for doubt 
 as to its true construction. But interpreting its language according to 
 the subject matter to which it relates, and in the light of the existing 
 state of the law, which the statute was intended to alter and enlarge, 
 we think its true meaning can be readily ascertained. 
 
 The statutes relating to embezzlement, both in this country and in 
 England, had their origin in a design to supply a defect which was- 
 found to exist in the criminal law. By reason of nice and subtle dis- 
 tinctions, which the courts of law had recognized and sanctioned, it 
 was difficult to reach and punish the fraudulent taking and appropria- 
 tion of money and chattels by persons exercising certain trades and 
 occupations, by virtue of which they held a relation of confidence or 
 trust towards their employers or principals, and thereby became pos- 
 sessed of their property. In such cases the moral guilt was the same 
 as if the offender had been guilty of an actual felonious taking ; but in 
 many cases he could not be convicted of larceny, because the property
 
 CHAP. IX.] COMMONWEALTH V. HAYS. 745 
 
 •which had been fraudulently converted was lawfully in his possession 
 by virtue of his employment, and there was not that technical taking 
 or asportation which is essential to the proof of the crime of larceny. 
 The King v. Bazeley, 2 Leach (4th ed.), 835 ; 2 East P. C. 568. 
 
 The statutes relating to embezzlement were intended to embrace this 
 class of offences ; and it may be said generally that they do not apply 
 to cases where tb«- element of a breach of trust or confidence in the 
 fraudulent conversion of money or chattels is not shown to exist/ Tliis 
 is the distinguishing feature of the provisions in the Rev. Sts. c. 126, 
 §§ 27-30, creating and punishing the crime of embezzlement, which 
 careful!}' enumerate the classes of persons that may be subject to tlie 
 penalties therein provided. Those provisions have been strictly con- 
 strued, and the operation of the statute has been carefulh' confined to 
 persons having in their possession, by virtue of their occupation or 
 employment, the money or property of another, which has been fraud- 
 ulently converted in violation of a trust reposed in them. Common- 
 wealth V. Stearns, 2 Met. 343 ; Commonwealth v. Libbey, 11 Met. 64; 
 Commonwealth i'. Williams, 3 Gray, 461. In the last named case it 
 was held, that a person was not guilty of embezzlement, under Rev. 
 Sts. c. 126, § 30, who had converted to his own use money which had 
 been delivered to him by another for safe keeping. 
 
 The St. of 1857, c. 233, was probabh' enacted to supply the defect 
 which was shown to exist in the criminal law by this decision, and was 
 intended to embrace cases where propert}' had been designedly' delivered 
 to a person as a bailee or keeper, and had been fraudulently converted 
 by him. But in this class of cases there exists the element of a tj-ust 
 or confidence reposed in a person b^- reason of the delivery of property 
 to him, which he voluntarilj- takes for safe keeping, and which trust or 
 confidence he has violated b}- the wrongful conversion of the property. 
 Beyond this the statute was not intended to go. Where money paid or 
 property delivered through mistake has been misappropriated or con- 
 verted by the part}- receiving it, there is no breach of a trust or viola- 
 tion of a confidence intentionally reposed by one party and voluntarily 
 assumed by the other. The moral turpitude is therefore not so great 
 as in those cases usually' comprehended within the offence of embezzle- 
 ment, and we cannot think that the legislature intended to place them 
 on the same footing. We are therefore of opinion that the facts proved 
 in this case did not bring it within the statute, and that the defendant 
 was wrongly convicted. Exceptions sustained.^ 
 
 1 See Reg. v. Robson, 9 Cox C. C. 29. — Ed.
 
 746 COMMONWEALTH V. BERRY. [CHAP. IX 
 
 COMMONWEALTH v. BERRY. 
 Supreme Judicial Court of Massachusetts. 1868. 
 
 [Reported 99 Massachusetts, 428.] 
 
 Hoar, J,^ The bill of exceptions states that this indictment was 
 . found under Gen. Sts. c. 161, § 41. It seems to be a good indictment 
 
 under that section, or under § 35 of the same chapter. Commonwealth 
 V. Concannon, 5 Allen, 506 ; Commonwealth v. Williams, 3 Gray, 461. 
 But the more important question is, whether, upon the facts reported, 
 an indictment can be sustained for the crime of embezzlement. The 
 statutes creating that crime were all devised for the purpose of punish- 
 ing the fraudulent and felonious appropriation of property which had 
 been intrusted to the person, b\^ whom it was converted to his own use, 
 in such a manner that the possession of the owner was not violated, so 
 that he could not be convicted of larceii}' for appropriating it. Proof 
 of embezzlement will not sustain a charge of larceny. Commonwealth 
 V. Simpson, 9 Met. 138 ; Commonwealth v. King, 9 Cush. 284. In the 
 case last cited, it is said by Mr. Justice Dewey that " the offences are 
 by us considered so far distinct as to require them to be charged in such 
 terms as will indicate the precise offence intended to be charged." " If 
 the goods are not in the actual or constructive possession of the masfer," 
 at the time the}' are taken, the offence of the servant will be embezzle- 
 ment, and not larceny." We see no reason why the converse of the 
 proposition is not true, that, If the property is in the actual or construc- 
 tive posse^on of the master at the time it is taken, the offence will be 
 lai'ceny, and not embezzlement. And it has been so held in England. 
 Where the prisoner was the clerk of A., and received money from the 
 hands of another clerk of A. to pay for an advertisement, and kept 
 part of the money, falseh- representing that the advertisement had cost 
 more than it had ; it was held that this was larceny and not embezzle- 
 ment, because A. had had possession of the money by the hands of the 
 other clerk. Rex v. Murray, 1 Mood. 27G ; s. c. 5 C. & P. 145. The 
 distinction is between custody and possession. A servant who receives 
 from his master goods or money to use for a specific purpose has the 
 custody of them, but the possession remains in the master. 
 
 The St. 14 & 15 Vict. c. 100, § 13, provided that whenever, on the 
 trial of an indictment for embezzlement, it should be proved that the 
 taking amounted to larceny, there should not be an acquittal, but a 
 conviction might be had for larceny. We have no similar statute in 
 this Commonwealth. 
 
 In the present case, the defendant," who was employed as a servant, 
 was directed by one member of the firm who employed him to take a 
 sum of money from him to another member of the firm. He had the 
 
 1 The opinion onl3- is given, it sufficiently states the case
 
 CHAP. IX>] COMMONWEALTH V. FOSTER. 747 
 
 custody of the money, but not any legal or separate possession of it. 
 The possession remained in his master. His fraudulent and feloni- 
 oiis appropriation of it was therefore larceny, and not embezzlement. 
 Commonwealth v. O'Malley, 97 Mass. 584 ; Commonvvealtli v. Hays, 
 14 Gray, 62; People v. Call, 1 Denio, 120; United States r. Clew, 4 
 Wash. C. C. 702. 
 
 In People t\ Hennessey, 15 Wend. 147, cited for the Commonwealth, 
 the money embezzled by the defendant had never come into the posses- 
 sion of his master. And in People v. Dalton, 15 Wend. 581, the 
 possession of the defendant was that of a bailee. 
 
 Exceptions sustained} 
 
 COMMONWEALTH v. FOSTER. 
 Supreme Judicial Court of Massachusetts. 1871. 
 
 [Reported 107 Massachusetts, 221.] 
 
 Indictment for embezzlement, found at July term, 1870, of the 
 Superior Court in Suffolk. 
 
 At the trial, before Wilkinson, J., John Langley testified that about 
 May 13, 1870, being in need of money, he made two promissory notes 
 payable to his own order and indorsed by himself, payable in four and 
 six months respectively, for $1250 each, and delivered them to the de- 
 fendant upon the special agreement of the defendant to sell the notes 
 and deliver the proceeds to Nathan A. Langley, a brother of the wit- 
 ness, charging a commission for his services ; that at the same time, 
 and as a part of the transaction, the defendant gave to the witness, as 
 receipts, the defendant's own notes of the same tenor and date as those 
 delivered to him by the witness, which were deposited by the witness 
 with his brother, to be by him given up to the defendant when the lat- 
 ter should deliver the proceeds of the witness's notes in pursuance of 
 tlie agreement before stated ; and that he did not know whether the 
 defendant was a broker or not, and did not deal with him as such. 
 
 It further appeared that the defendant sold the notes of John Lang- 
 ley to one Wilson for $1000 in cash, and a mortgage on real estate 
 valued at $1000 ; and that he had not delivered any part of the pro- 
 ceeds to John Langley or his brother, but, when asked for them by 
 the former, replied that he had used them and was unable to deliver 
 them. It did not appear that John Langley or his brother had ten- 
 dered to the defendant the notes given by him. 
 
 Upon the close of the evidence for the Commonwealth, the defend- 
 ant demurred thereto, as insufficient to support a verdict of guilty ; but 
 the judge overruled the demurrer. The defendant then testified that 
 he was a real estate broker ; and that he negotiated the notes in the 
 
 1 Ace. Rex V. Sulleus, 1 Moo. C. C. 129; Reg. v. Masters, 3 Cox C. C. 178. — Ed.
 
 748 PEOPLE V. HURST. [CHAP. IX. 
 
 manner testified to by John Langley, and used the money, partly in 
 business as a provision dealer, in which he was also engaged at the 
 time, and partly in paying his debts. 
 
 The judge thereupon instructed the jury " that it was a question of 
 fact, for them to decide upon the evidence, whether John Langley 
 employed the defendant as a broker; that if the defendant was em- 
 ployed merely to sell the notes, receive Ihe proceeds and pay over the 
 "same specifically to the brother, without any authority to mix them 
 with his own funds, a fraudulent conversion of them would be em- 
 bezzlement ; but that if he was employed as a broker, to negotiate the 
 notes in the course of his business, with authority, derived from the 
 nature of that business or otherwise, to mix the proceeds as aforesaid, 
 his use of them would not be embezzlement." The jury returned a 
 verdict of guilty, and the defendant alleged exceptions. 
 
 C. B. Train, for the defendant. 
 
 C. Allen, Attorney General, for the Commonwealth. 
 
 By the Court. Under the instructions given them, the jury must 
 have found that the defeudaut was an agent within the statute, and 
 embezzled his employer's money. The notes given by him appear to 
 have been given to answer the purpose of receipts, and not for the 
 purpose of transferring to hiui any property in the notes receij^jl.by 
 liiui, or the money received by him on the sale of the notes. Com- 
 monwealth 0. IStearns, 2 Met. 313; Commonwealth v. Libbey, 11 
 Met. 64. Exceptions overruled.^ 
 
 PEOPLE V. HURST. 
 Supreme Court of Michigan. 1886. 
 
 [Reported 62 Michigan, 276.] 
 
 Campbell, C. J. Respondent was convicted of embezzling S275, 
 alleged to have been put in his hands by one Lena J. Smith as her 
 agent. Respondent was a lawyer, and also engaged more or less in 
 renting houses. Mrs. Smith formed his acquaintance while seeking to 
 rent a house. She got him to lend 8400 for her, which he did on mort- « 
 gage. She further said she had $1,100 more to lend. He said he had t 
 a place for $700, which he actually lent on first mortgage. He also 
 showed her a letter from a man who had a parcel of forty acres of 
 land to sell, and he wanted her to give him the money to buy it, as 
 he knew of a purchaser who would buy at an advance. She handed 
 him $400 to buy the land, and said he might have the profit. He told 
 her where the land was, but she could not remember, and did not tes- 
 
 1 See Mulford i'. People, 139 111. .586— Ed.
 
 CHAP. IX.] PEOPLE V. HURST. 749 
 
 tify upon that point. This was on March 31, 1882. The embezzle- 
 ment is cliarged as of that day. 
 
 About the middle of April she saw him at his house, intoxicated. 
 She asked him for her papers, and if he had invested the money, and 
 he shook his head, and said he had been " on a drinik." She asked 
 for her money, and he gave her $100, and a chattel mortgage which 
 he owned for %2b. She asked him if that was all he had, and he said 
 it was, and promised to pay the balance in a month or two, and asked 
 her to wait on him. She called on him frequently, and in the fall he 
 conveyed to her forty acres of land in Cheboygan County as security 
 until he could pay her. He said he was selling some land for a lady 
 in Springwells ; and, if he succeeded, his commissions would exceed 
 his debt to her, and he would pay her, and she could return the deed, 
 which she need not record, but he would pay for recording. She 
 agreed to wait on him, and hold the deed as security a little longer, 
 until he could sell the t^venty-five acres referred to. She subsequently 
 dunned him frequently, and, finding he had an interest in a patent 
 right, asked him to assign that to her as security, which he did. 
 
 There was some otlier testimony which was material, in favor of 
 defendant, on which his counsel made some points, which we do not 
 now think it necessary to decide. 
 
 lu our opinion, the testimony did not make out a case of embezzle- 
 ment. Before that offence can be made out, it must distinctly appear 
 tKat the respondent has acted with a felonious intent, and made an in- 
 tentionally wrong disposal, indicating a design to cheat and deceive 
 the owner. A mere failure to pay over is not enough if that intent is 
 ^ot plainly apparent. This was decided in People v. Galland, 55 Mich. 
 628. See also Reg. v. Norman, 1 C. & M. 501 ; Reg. v. Creed, 1 C. 
 & K. 63 ; Rex v. Hodgson, 3 C. & P. 422 ; 2 Russ. Cr. 182 ; 2 Bish. 
 Crim. Law, §§ 376, 377. 
 
 In this case there was nothing indicating concealment or a felonious 
 disposition. A candid admission was made at once on inquiry, and 
 partial payment was made and security given at different times, when 
 asked. The debt was admitted and recognized as a debt on both 
 sides. Whatever wrong may have been done, there was no embezzle- 
 ment proven. 
 
 The conviction must be quashed, and the court below advised to 
 discharge the prisoner. 
 
 The other justices concurred.^ 
 
 1 Ace. People v. Wadsworth, 63 Mich. 500. — Eu 
 
 /■ . 
 
 /
 
 750 EEGINA V. KILHAM. [CHAP. X. 
 
 CHAPTER X. 
 OBTAINING PROPERTY BY FALSE PRETENCES. 
 
 SECTION I. 
 
 The Question of Title. 
 
 REGINA V. KILHAM. 
 
 Crown Case Reserved. 1870. 
 
 [Reported Law Reports, 1 Croiim Cases Reserved, 261.] 
 
 Case stated by the Recorder of York, 
 [indictment under 24 & 25 Vict. c. 96, § 88, for obtaining goods by 
 lalse pretences. 
 
 Tlie prisoner was tried at the last Easter Quarter Sessions for York. 
 The prisoner, on the 19th of March last, called at the livery stables of 
 Messrs. Thackray, who let out horses for hire, and stated that he was 
 sent by a Mr. Gibson Hartley to order a horse to be ready the next 
 morning for the use of a son of Mr. Gibson Hartley, who was a cus- 
 tomer of the Messrs. Thackray. Accordingly, the next morning the 
 prisoner called for the horse, which was delivered to him by the hostler. 
 The prisoner was seen, in the course of the same day, driving the 
 horse, which he returned to Messrs. Thackray's stables in the even- 
 ing. The hire for tlie horse, amounting to 7.S., was never paid by the 
 prisoner. 
 
 The prisoner was found guilty. 
 
 The question was, whether the prisoner could properly be found 
 guilty of obtaining a cliattel by false pretences within the meaning of 
 24 & 25 Vict. c. 96, § 88. 
 
 The case of Regina i\ Boulton, 1 Den. C. C. 508, was relied on on 
 the part of the prosecution. 
 
 The case was argued before Bovill, C. J., Willes, Byles, and 
 Hannen, J.J., and Cleasby, B. 
 
 May 7. No counsel appeared for the prisoner. 
 
 Simpson, for the prosecution.* 
 
 1 The argument is omitted.
 
 SECT. I.J REGINA V. KILHAM. 751 
 
 BoviLL, C. J. "VVe are of opinion that the conviction in this case 
 cannot be supported. The Stat. 24 & 25 Vict. c. 90, § ^H, enacts 
 that, '' whosoever shall, by any false pretence, obtain from any 
 other person any chattel, money, or valuable security, with intent to 
 defraud, shall be guilty of misdemeanor." The word "obtain" in 
 this section does not mean obtain the loan of, but obtain the property 
 in, any chattel, etc. This is, to some extent, indicated by the pro- 
 viso, that if it be proved that the person indicted obtained the prop- 
 erty in such manner as to amount in law to larceny, he shall not, by 
 reason thereof, be entitled to be acquitted ; but it is made more clear 
 by referring to the earlier statute from which the language of § 88 is 
 adopted. 7 & 8 G. IV. c. 29, § 53, recites that " a failure of jus- 
 tice frequently arises from the subtle distinction between ' larceny 
 and fraud,'" and for remedy thereof enacts that "if any person 
 shall, by any false pretence, obtain," etc. The subtle distinction 
 which the statute was intended to remedy was this,': That if a person 
 by fraud induced another to part with the possession only of goods 
 and converted them to his own use, this was larcen}' ; while if he 
 induced another by fraud to part with the property in the goods as well 
 as the possession, this vvas not larceny. 
 
 But to constitute an obtaining by false pretences it is equally essen- 
 tial, as in larceny, that there shall be an intention to deprive the 
 owner wholly of his property, and this intention did not exist in the 
 case before us. In support of the conviction the case of Regiua v. 
 ^oulton was referred to. There the prisoner was indicted for obtain- 
 ing by false pretences a railway ticket with intent to defraud the com- 
 pany. It was held that the prisoner was rightly convicted, though 
 the ticket had to be given up at the end of the journey. The reasons 
 for this decision do not very clearly appear, but it may be distin- 
 guished from the present case in this respect, — that the prisoner, by 
 using the ticket for the purpose of travelling on the railway, entirely 
 converted it to his own use for the only purpose for which it was 
 capable of being applied. In this case the prisoner never intended to 
 deprive the prosecutor of the horse or the property in it, or to appro- 
 priate it to himself, but only intended to obtain the use of the horse 
 for a limited time. The conviction must therefore be quashed. 
 
 Conviction quashed.^ 
 
 1 See Reg. v. Watson, 7 Cox C. C. 364. —Ed.
 
 752 REX V. ADAMS. [CHAP. I. 
 
 REX r. ADAMS. 
 Crown Case Reserved. 1812. 
 
 [Reported Russell Sc Ryan, 225.] 
 
 The prisoner was tried before Mr. Justice Chambre, at the Lent 
 Assizes held at Taunton, in the year 1812, for a grand larceny in 
 stealing a hat, stated in one count to be the property of Robert Beer 
 and in another count to be the property of John Paul. 
 
 The substance of the evidence was, that the prisoner bought a hat 
 of Robert Beer, a hat-maker at Ilminster. That on the 18th of Janu- 
 ary he called for it, and was told it would be got ready for him in half 
 an hour, but he could not have it without paying for it. 
 
 While he remained with Beer, Beer showed him a hat which he had 
 
 made for one John Paul ; the prisoner said he lived next door to him, 
 
 and asked when Paul was to come for his hat, and was told he was to 
 
 come that afternoon in half an hour or an hour. He then went away, 
 
 .saying be would send his brother's wife for his own hat. 
 
 .Soon after he went he met a boy to whom he was not known. The 
 prisoner asked the boy if he was going to Ilminster, and being told 
 that he was going thither, he asked him if he knew Robert Beer there, 
 telling him that John Paul had sent him to Beer's for his hat, but 
 added that as he, the prisoner, owed Beer for a hat which he had not 
 money to pay for, he did not like to go himself, and therefore desired 
 the boy (promising him something for his trouble) to take the message 
 from Paul and bring Paul's hat to him the prisoner ; he also told him 
 that Paul himself, whom he described by his person and a peculiarity 
 of dress, might perhaps be at Beer's, and if he was the boy was not to 
 go in. 
 
 The prisoner accompanied him part of the way, and then the boy 
 proceeded to Beer's, where he delivered his message and received the 
 hat, and after carrying it part of the way for the prisoner by his 
 desire, the prisoner received it from him, saying he would take it him- 
 self to Paul. 
 
 The fraud was discovered on Paul's calling for his hat at Beer's, 
 about half an hour after the boy had left the place ; and the prisoner 
 was found with the hat in his possession and apprehended. 
 
 From these and other circumstances, the falsity of the prisoner's 
 representation and his fraudulent purpose were sufficiently established ; 
 but it was objected on the part of the prisoner that the offence was not 
 larceny, and that the indictment should have been upon the statute 
 for obtaining goods by false pretences. 
 
 The prisoner was convicted, but the learned judge forbore to pass 
 sentence, reserving the question for the opinion of the judges.
 
 SECT. II.] REGINA V. ROBINSON. 753 
 
 In Easter term, 25th of April, 1812, all the judges were present 
 (except Lord Elleuborough, Mansfield, C. J., and Lawrence, J.), when 
 they held that the conviction was wrong ; that it was not larceny, but 
 obtaining goods under a false pretence.^ 
 
 SECTION II. 
 
 Property. 
 
 REGINA V. ROBINSON. ' ' 
 
 Crown Case Reserved. 1859. 
 
 [Reported Bell C. C. 34.] 
 
 The following case was reserved by the Recorder of Liverpool. 
 
 The prosecutor, who resided at Hartlepool, was the owner of two 
 dogs, which he advertised for sale. The prisoner, Samuel Robinson, 
 having seen the advertisement, made application to the prosecutor to 
 have the dogs sent to him at Liverpool on trial, falsely pretending that 
 he was a person who kept a man-servant. By this pretence the prose- 
 cutor was induced to send the dogs to Liverpool, and the prisoner 
 there obtained possession of them with intent to defraud, and sold 
 them for his own benefit. The dogs were Pointers, useful for the 
 pursuit of game, and of the value of £5 each. 
 
 At the Liverpool Borough Sessions, holden in December, 1858, the 
 prisoner was indicted, convicted, and sentenced to seven years penal 
 servitude, under the statute 7 & 8 G. IV. c. 29, s. 53. 
 
 On behalf of the prisoner a question was reserved and is now sub- 
 mitted for the consideration of the justices of either bench and barons 
 of the Exeliequer, viz., whether the said dogs were chattels within the 
 meaning of the said section of the statute, and whether the prisoner 
 was rightly convicted. 
 
 The prisoner remains in Liverpool Borough Gaol under the sentence 
 passed at Sessions. 
 
 Gilbert Henderson, 
 
 Recorder of Liverpool. 
 
 This case was argued, on January 29, 1859, before Lord Campbell, 
 C. J., Martin B., Crowder, J., Willes, J., and Watson, B. 
 Brett appeared for the Crown, and Littler for the prisoner." 
 
 1 Ace. Heg. V. Butcher, 8 Cox C. C. 77; People v. Johnson, 12 Johns. 292. And 
 see Com. v. Jeffries, 7 All. 548. See the judgment of Cleasby, B., in Reg. v. Middle- 
 ton, L. R. 2 C. C. 38, ante. As to the title to property obtained by false pretences, see 
 Lindsay v. Cundy, 1 Q. B. D. 348, 2 Q. B. D. 96, 3 App. Cas. 459; Bentley y.Vilmont, 
 12 App. Cas. 47i. — Ed. 
 
 2 Arguments of counsel are omitted.
 
 754 PEOPLE V. THOMAS. [CHAP. X. 
 
 LoRV> Campbell, C. J. y It is admitted that dog-stealing is not 
 larceny at common law, and a specific punishment of a milder charac- 
 ter has been enacted by the later statute, which makes the offence 
 a misdemeanor. That being so, it would be monstrous to say t 
 obtaining a dog by false pretences comes within the statute 7 & 8 
 IV. c. 29, s. 53, by which the offender is liable to seven years pe 
 servitude. My brother Coleridge used to say that no indictment 
 would lie under that section unless, if the facts justified it, the pris- 
 oner could be indicted for larceny, and that is now my opinion. 
 
 Martin, B. I think this conviction cannot be sustained. The 
 question is one entirely of the construction of the statute. 
 
 AViLLES, J. P'rom the Year Books downwards, including the case 
 of Swans, 7 Rep. 15 ^, dogs have always been held not to be the sub- 
 ject of larceny at common law. 
 
 The other learned judges concurred. 
 
 Conviction quashed.^ 
 
 ^ 
 
 PEOPLE V. THOMAS. 
 Supreme Court of New York. 1842. 
 
 [Reported 3 Hill, 169.] 
 
 , Certiorari to the Oneida General Sessions, where Thomas was con- 
 victed of obtaining money by false pretences, of one Jone_s_J' The case 
 turned upon tlie sufficiency of the indictment, which charged substan- 
 tially tlie following facts : Jones, having executed his negotiable note 
 to Thomas for $28.28, dated the 19th of February, 1838, and payable 
 one day after date, the latter, in March afterward, called for payment, 
 falsely pretending to Jones that the note had either been lost or 
 burned up ; by which false pretences Thomas unlawfully, etc., obtained 
 from Jones the sum of $28.28, with intent to cheat and defraud Jones ; 
 whereas in truth, etc., the note had not been lost or burned up, all 
 which the said Thomas, when he made the false pretence and obtained 
 the money, well knew, etc. 
 
 Evidence was given, at the trial, of the above facts ; and also, that 
 in March, 1840, Tliomas negotiated the note, for value, to one Anson 
 Shove, without apprizing the latter that it had been paid. The court 
 below instructed the jury that the proof was sufficient to convict ; to 
 which the defendant's counsel excepted. A verdict was rendered, 
 finding the defendant guilty. 
 
 C. Tracy, for the defendant. 
 
 T. Jenkins (district attorney), contra. 
 
 Per Curiam. Non constat from the indictment, that Jones sus- 
 tained any damage by the false representation ; nor that there was aa 
 
 1 Ace. State V. Barrows, 11 Ire. 477. — Ed.
 
 SECT. II.J STATE V. BLA.CK. 755 
 
 intent on the part of Thomas, at the time of the representation, to 
 work any damage. The note was clue ; and payment made. This 
 was the only consequence — a thing which Jones was bound to do. 
 A false representation, by which a man may be cheated into his duty, 
 is not Avithin the statute, it was said in argument that the subsequent 
 negotiation of the note by Thomas obviated the ditliculties adverted 
 to. The note being over due when the latter fact took piace^^ is 
 difficult to see judicially, that Jones would be injured by it. AVhether 
 he would or would not, is merely speculative, depending on his pre- 
 caution in providing himself with proper evidence. It is enough, 
 however, to say that the indictment does not charge the subsequent 
 act of negotiation as entering into the defendant's design when he 
 made the representation ; nor is the act itself even mentioned. 
 
 New trial ordered? 
 
 STATE V. BLACK. 
 Supreme Court of Wisconsin. 1890. 
 
 [Reported 75 Wisconsui, 490.] 
 
 Cassoday, J. 2 Sec. 4423, R. S., punishes the obtaining of property 
 or a signature under the circumstances therein mentioned. The ques- 
 tion here presented relates entirely to the obtaining of property. So 
 much of that section as pertains to that question reads : " Any person 
 who shall designedly^ by any fcdse pretense, or by any privy or false 
 token, and tvith intent to^ defraud, obtain from any other person any 
 money, goods, wares, merchandise, or other property, . . . shall be 
 punished," etc. To sustain a conviction under this section four things 
 must concur. It sufficiently appears from the record that three of 
 those things co-existed in the case at bar, — that is to say it sufficiently 
 appears that the defendant (1) "designedly," (2) by means of the 
 false pretense mentioned, (3) " and with intent to defraud," obtained 
 the board and lodging mentioned. The only question, therefore » 
 requiring consideration here is whether the obtaining of such board 
 and lodging was, in legal effect,~"the obtaining of "money, goods, 
 wares, merchandise, or other property,'' within the meaning of the 
 section. 
 
 From the very wording of the statute it is manifest that no complete 
 offense can be committed under it until the "money, goods, wares, 
 merchandise, or other property," is actually obtained by the offender. 
 This being so, it is equally obvious that if the statute applies to the 
 obtaining of board and lodging, then each meal of board obtained 
 constitutes a separate offense ; and the same would be true of each 
 
 ,/ 
 
 1 Ace. In re Cameron, 44 Kas. 64 ; Com. v. McDuffy, 12G Mass. 467. — Ed. 
 * The opinion only is given ; it sufficiently states the case.
 
 756 STATE V. BLACK. fCHAP. X. 
 
 night's lodging. If the section applies to board and lodging, then, 
 for the same reason, it would apply to almost any service or use. 
 Anotlier serious difficulty with such application in the case at bar is 
 the absence from the record of any certain and definite description of 
 the property actually obtained. Many of the authorities hold that in 
 the information or indictment in such cases, " the property should be 
 described with as much accuracy and particularity as in indictments 
 for larceny." State l\ Kube, 20 Wis. 225 ; s. c. 91 Am. Dec. 395. 
 Where the description of the property is uncertain, the defect is fatal. 
 Ibid. We are to remember that it is a criminal statute we are con- 
 struing. It should not be so construed as to multiply crimes, unless 
 required by the context. The word "property" is, in many cases, 
 construed to include " things in action and evidences of debt." 8ubd. 
 3, 4, sec. 4972, R. S. But the words " other property," in the statute 
 quoted, must, under the familiar rule, noscitar a sociis, be limited to 
 sucia tangible classes of property as are therein previously enumerated ; 
 that is to say, " money, goods, wares, merchandise, and other prop- 
 erty " of that description. This rule has frequently been applied by 
 this court, especially to penal statutes. Jensen v. State, 60 Wis. 
 582, and cases there cited. See, also, Gibson v. Gibson, 43 Wis. 33 ; 
 Estate of Kirkendall, 43 Wis. 179 ; Kelley v. Madison, 43 Wis. 645. 
 
 The principle governing the case at bar is somewhat similar to that 
 involved in People v. Haynes, 14 Wend. 546 ; s. c. 28 Am. Dec. 530. 
 In that case merchandise was purchased, and placed by the seller in a 
 box, marked with the buyer's name and address, and delivered to the 
 carrier named by the purchaser, to be delivered at his residence ; but 
 the seller, before delivering the shipper's receipt and invoice, having 
 learned that the purchaser was embarrassed, asked him in regard 
 thereto, whereupon the buyer made false and fraudulent represen- 
 tations as to his condition, and, in consequence thereof, the seller 
 delivered to the buyer the shipper's receipt and invoice, and did not 
 stop the goods in transitu ; and it was held that the buyer was not 
 criminally lial^le for obtaining the goods by false pretenses, since the 
 goods were in law obtained when they were delivered to the carrier, 
 which was before the false pretenses were made. 
 
 The construction of the statute indicated has additional force from 
 the fact that the same section punishes the obtaining by false pretenses 
 of a signature to a written instrument, the false making whereof would 
 be punishable as forgery. Sec. 4423, R. S. This clearly covers some 
 " things in action and evidences of debt," and by necessary implica- 
 tion excludes others, as, for instance, a mere credit, as here. __We_ 
 must hold that the words "or other property" do not include the 
 vnere obtaining of board and lodging under the circumstances stated. 
 
 The result is that the first question propounded is answered in the 
 negative. This renders it unnecessary to answer the second question 
 
 By the Court. Ordered accordingly} 
 
 1 Ace. Reg. V. Gardner, 7 Cox C. C 136. — Ed.
 
 SECT. III.] REX V. GOODHALL. 757 
 
 SECTION III. 
 
 The Pretence. 
 
 REX V. GOODHALL. 
 Crown Case Reserved. 1821. 
 
 [Reported Russell ^- Ryan, 461.] 
 
 The prisoner was tried before Mr. Baron G arrow, at the Stafford 
 summer Assizes, in the year 1821, on an indictment, charging that he, 
 being an ill-designing person, and a common cheat, and intending to 
 cheat and defraud one Thomas Perks, of his goods, wares, and mer- 
 chandizes, on the 17th of August, 1821, at the parish of Wolverhamp- 
 ton ; unlawfully, knowingly, and designedly, did falsely pretend that 
 if he, the said Thomas Perks, would sell to him, the prisoner, the car- ' 
 cases of three sheep and two legs of veal, and send the same to him 
 at Blonwick, he, the said prisoner, would pay for the same on delivery, 
 and send the money back by the servant of the said Thomas Perks ; 
 by which said false pretences, he, the said prisoner, did obtain from 
 the said Thomas Perks two hundred and twenty pounds weight of 
 mutton, value £4, and thirty pounds weight of veal, value 10s., his 
 property, with intent to cheat him of the same. Whereas, in truth 
 and in fact, the said prisoner did not, at the time of buying the said 
 carcases and legs of veal, intend to pay for the same on delivery. 
 And whereas, in truth and in fact, the said prisoner did not pay for 
 the same on delivery. And whereas, in truth and in fact, the said 
 prisoner did not send the money for the same back by the servant of 
 him the said Thomas Perks, against the form of the statute, &c. 
 
 It appeared in evidence, that the prosecutor, Thomas Perks, was a 
 butcher at Wolverhampton; and that, on the 17th of August, 1821, 
 the prisoner came to his shop to purchase tin-ee sheep and two legs of 
 veal ; on being told by the prosecutor that he would not trust him, he / 
 
 promised the prosecutor, if he would send the sheep and veal in good 
 time on the following morning, he would remit the money back by the 
 bearer. 
 
 The meat was accordingly sent on the 18tli of August, by the prose- 
 cutor, and delivered to the prisoner by the prosecutor's servant, who 
 asked him for the money ; and said, if he did not give it him, he must 
 take the meat back again. The prisoner replied, "Aye, sure!" and 
 wrote a note ; and told the prosecutor's servant to take it to his mas- 
 ter, and it would satisfy him. The note (of which the following is a 
 copy) was delivered to the prosecutor by his servant : — 
 
 " Mr. Perks, Sir, I have a bill of Walsall bank, which is a very 
 good one, if you will send me the change, or I '11 see you on Wednesday 
 certain." " Your's, M. G.' 
 
 1 
 
 /
 
 758 EEX V. WAKELING. [CHAP. X. 
 
 The jury found the prisoner guilty ; and said they were of opinion, 
 that at the time the prisoner applied to Perks, he knew Perks would 
 not part with the meat witliout the money ; and that he promised to 
 send back the money to obtain the goods. The jury also found, that 
 at the time he applied for the meat, and promised to send back the 
 money, he did not intend to return the money ; but by that means to 
 obtain the meat, and cheat the prosecutor. 
 
 The learned judge respited the judgment, making an order that the 
 prisoner might be delivered, on finding bail, to appear at the then next 
 Assizes. 
 
 In Michaelmas term, 1821, the judges met and considered this case. 
 They held the conviction wrong ; being of opinion, that was not a pre- 
 tence within the meaning of the statute. It was merely a promise for 
 future conduct, and common prudence and caution would have pre- 
 vented any injury arising from the breach of it.^ 
 
 REX V. WAKELING. 
 Crown Case Reserved. 1823. 
 
 [Reported Russell ^- Ryan, 504.] 
 
 The prisoner was convicted before Mr. Justice Bayley, at the gaol 
 delivery for the county of I^ssex, in January, 1823, for obtaining a 
 pair of siioes from Thomas Poole, the overseer of the poor of the 
 parish of Great Wheltham, from which parish the prisoner received 
 parochial relief, by falsely pretending that he could not go to work 
 because he had no shoes, when he had really a sufficient pair of shoes. 
 
 It appeared in evidence that the prisoner and his family received 
 i-elief from the parish ; that Poole, the overseer, bid the prisoner go to 
 work to help to maintain his family ; that the prisoner said he could 
 not because he had no slioes ; that Poole, the overseer, thereupon 
 supplied him with a pair of the value of ten shillings, and that the 
 prisoner had, in fact, at the time, two pair of new shoes, which he had 
 previously received from tlie parish. 
 
 The learned judge doubted whether tliis was a case within the 
 statute, and thought it right to lay it before the judges for their con- 
 sideration. 
 
 In Hilary term, 1823, this case was considered by the judges, who 
 held that it was not within the act, and that the conviction was 
 wrong ; the statement made by the prisoner being rather a false 
 excuse for not working than a false pretence to obtain goods.'' 
 
 1 Ace. Reg. V. Lee, 9 Cox C. C. 304; State v. Colly, 39 La. Ann. 841 ; State v. 
 De Lay, 93 Mo. 98. See Reg. v. Jones, 6 Cox C. C. 467 ; State v. Sarony, 95 MoC 
 349. — Ed. 
 
 2 Ace. Reg. V. Stone, 1 F. & F. 311. —Ed.
 
 SECT. III.] KEGINA V. MILLS. 759 
 
 REX V. BARNARD. 
 Oxford Assizes. 1837. 
 
 [Reported 7 Carrington ^~ Payne, 784.] 
 
 False pretences. The indictment charged that the prisoner falsely 
 pretended that he was an under-graduate of the University of Oxford, 
 and a commoner of Magdalen College, by means of which he obtained 
 a pair of boot-straps from John Samuel Vincent. 
 
 It appeared that Mr. Vincent was a boot-maker, carrying on business 
 in High Street, Oxford ; and that the prisoner came there, wearing a 
 commoner's cap and gown, and ordered boots, which were not supplied 
 him, and straps, which were sent to him. He stated he belonged to 
 Magdalen College. 
 
 It was proved by one of the butlers of Magdalen College that the 
 prisoner did not belong to that college, and that there are no common- 
 ers at Magdalen College. 
 
 BoLLAXD, B. (in summing up). If nothing had passed in words, I 
 should have laid down that the fact of the prisoner's appearing in the 
 cap and gown would have been pregnant evidence from which a jury 
 should infer that he pretended he was a member of the university, and 
 if so, would have been a sufficient false pretence to satisfy the statute. 
 It clearly is so by analogy to the cases in which offering in payment 
 the notes of a bank which has failed, knowing them to be so, has beeu 
 held to be a false pretence without any words being used. 
 
 Verdict, Ouilty.^ 
 
 ^ 
 
 REGINA v. MILLS. ^ 
 
 Crown Case Reserved. 1857. 
 
 [Reported 7 Cox C. C. 263.] 
 
 At the General Quarter Sessions of the Peace holden for the county 
 of Cambridge, on the 9th January, 1857, William Mills was tried and 
 convicted upon the following indictment for obtaining money under 
 false pretences. 
 
 The jurors for our Lady the Queen upon their oath present, that 
 William Mills, on the 14th day of November, 1856, did falsely 
 pretend to one Samuel Free that tlie said William Mills had cut 
 
 1 Ace. Rex V. Douglass, 7 C. & P. 785 n. ; Reg. v. Huuter, 10 Cox C. C. 642 ; Reg. 
 V. Bull, 13 Cox C. C. 608; Reg. v. Sampson, 52 L. T. 772; Reg. v. Randell, 16 Cox 
 C. C. 33.5 .— Ed.
 
 760 REGINA V. JVyLLS. [CHAP. X. 
 
 sixty-three fans of chaff for him the said Samuel Free, by which said 
 false pretence the said AYilliam Mills then unlawfully did obtain 
 from the said Samuel Free certain money of him the said Samuel 
 Free, with intent to defraud. Whereas, in truth and in fact, the 
 said William Mills had not cut sixty-three fans of chaff, as the 
 said William Mills did then so falsely pretend to the said Samuel 
 Free, but a much smaller quantity, to wit, forty-five fans of chaff. 
 And the said William Mills, at the time he so falsely pretended as 
 aforesaid, well knew the said pretence to be false, against the form of 
 the statute, &c. It appeared from the evidence that the prisoner was 
 employed to cut chaff for the prosecutor, and was to be paid twopence 
 per fan for as much as he cut. He made a demand for 10.v. 6d., and 
 stated he liad cut sixty-three fans, but the prosecutor and another wit- 
 ness had seen the prisoner remove eighteen fans of cut chaff from an 
 adjoining chaff-house, and add them to the heap which he pretended 
 he had cut, thus making the sixty-three fans for which he charged. 
 Upon the representation that he had cut sixty-three fans of chaff, and 
 notwithstanding his knowledge of the prisoner having added the eigh- 
 teen fans, the prosecutor paid him the 10s. 6d., being 3s. more than 
 the prisoner was entitled to for the work actually performed. It was 
 objected on behalf of the prisoner, first, that this was simply an over- 
 charge, as in the case of R. v. Oates, 6 Cox Crim. Cas. 540 ; and sec- 
 ondly, that as the prosecutor at the time he parted with his moue}^ knew 
 the facts, the prisoner could not be said to have obtained the money 
 by the false pretence. Judgment was postponed, and the prisoner 
 was discharged upon recognizances to appear at the next Quarter 
 Sessions. The opinion of the Court of Criminal Appeal is requested 
 whether the prisoner was rightly convicted of misdemeanor under the 
 foregoing indictment. 
 
 No counsel was instructed for the prisoner. 
 
 Orridge, for the Crown. Although the prosecutor knew that the 
 representation was false, and permitted the prisoner to complete the 
 oft'ence by receiving the money, that does not render the offence less 
 in him. In larceny the same doctrine is established, R. v. Eggington, 
 2 B. & P. 508. [CoCKBURN, C. J. There the prosecutor remains 
 passive. Willes, J. Invito domino is held to mean without leave.] 
 In R. V. Adey, 7 C. & P. 140, it was said to be no answer that the 
 prosecutor had laid a plan to entrap the prisoner into the commission 
 of the offence. 
 
 CocKBURN, C. J. The question in these cases is, whether the false 
 representation is the immediate motive operating on the mind of the 
 prosecutor, and inducing him to part with his money. It cannot be 
 said that that was the case here, because he paid the money although 
 he knew the representation to be false. Unless the money be obtained 
 by the false pretence, it is an attempt only. 
 
 Coleridge, J. In R. v. Adey the prosecutor did part with his 
 money in consequence of the false pretence.
 
 SECT. III.] REGINA V. BUYAN. ' 761 
 
 Bramwell, B. I do not think he could recover back the money in 
 a civil action. 
 
 WiLLES, J. Because it was paid voluntarily witli a knowledge of 
 
 all the circumstances. Conviction quashed.^ 
 
 REGINA V. BRYAN. 
 Crown Case Reserved. 1857. 
 
 [Reported 7 Cox C. C. 312.] 
 
 The following case was reserved by the Recorder of London at the 
 Central Criminal Court : — 
 
 It was partly argued before five of the learned judges on a former 
 day, but on account of the importance of the question raised in this as 
 well as in Reg. v. Sherwood, 7 Cox C. C. 270, they were both ordered 
 to be reargued before all the judges. 
 
 CASE. 
 
 At the session of jail delivery holden for the jurisdiction of the 
 Central Criminal Court on the second day of February, 1857, John 
 Bryan was tried before me for obtaining money by false pretences. 
 There were several false pretences charged in the different counts of 
 the indictment, to which, as he was not found guilty of them by the 
 jury, it is not necessary to refer. But the following pretences were, 
 among others, charged : — 
 
 That certain spoons produced by the prisoner were of the best 
 quality ; that they were equal to Elkington's A (meaning spoons and 
 forks made by Messrs. Elkington, and stamped by them with the let- 
 ter A) ; that the foundation was of the best material ; and that they 
 had as much silver upon them as Elkington's A. The prosecutors 
 were pawnbrokers, and the false pretences were made use of by the 
 prisoner for the purpose of procuring advances of money on the spoons 
 in question, offered by the prisoner by way of pledge, and he thereby 
 obtained the moneys mentioned in the indictment by way of such ad- 
 vances. The goods were of inferior quality to that represented by the 
 prisoner, and the prosecutors said that had they known the real quality 
 they would not have advanced money upon the goods at any price. 
 They moreover admitted that it was the declaration of the prisoner as 
 to the quality of the goods, and nothing else, which induced them to 
 make the said advances. The money advanced exceeded the value of 
 the spoons. The jury found the prisoner guilty of fraudulently repre- 
 senting that the goods had as much silver on them as Elkington's A, 
 and that the foundations were of the best material, knowing that to 
 
 i Ace. Reff. V. .Tones, 15 Cox C. C. 475. See Reg. v. Hensler, 1 1 Cox C. C. 570. — Eq
 
 762 REGINA V. BRYAN. [CHAP. X. 
 
 be untrue, and that in consequence of that he obtained the moneys 
 meutioned in the indictment. The prisoner's counsel claimed to have 
 the verdict entered as a verdict of "■ not guilty," which was resisted 
 by the counsel for the prosecution, and entertaining doubts upon the 
 question, I directed a verdict of guilty to be entered, in order that 
 the judgment of the Court of Criminal Appeal might be taken in the 
 matter, and the foregoing is the case on which that judgment is 
 requested. Kussell Gurnev. 
 
 S. C. Robinson, for the prisoner, submitted that these were not false 
 pretences within the statute. That the rule to be deduced from all 
 the cases was this, that where the thing obtained was in specie that 
 which it was represented to be, the statute applied ; but where the 
 falsehood was merely as to the quality of the thing, where it became a 
 mere question of better or worse, such pretence was .not indictable. 
 Here the goods were in specie what they were represented to be ; they 
 were plated goods, but they were inferior in quality to the representa- 
 tion. If it were otherwise, and that the puffing or vaunting an article 
 •that was offered for sale was a criminal offence, every trader in the 
 commercial world would be committing a crime twenty times in the 
 course of each day. In R. v. Roebuck, 7 Cox Crim. Cas. 126, most 
 of the learned judges in delivering their judgment stated that but for 
 the case of R. r. Abbott, 1 Den. C. C. 173, they should have hesitated 
 in holding the conviction to be pi'oper, but that they felt bound by 
 that authority. If then it could be shown that the present case, if 
 the conviction were to be sustained, would go further than those above 
 mentioned, the court would not confirm it. Every decision might be 
 reconciled with the principle contended for. In R. /•. Roebuck, the 
 chain pawned for silver was not silver at all. So with regard to the 
 thimble in R. v. Ball, C. & M. 249. In R. v. Dundas, 6 Cox Crim. Cas. 
 380, the article sold was stated to be Everett's blacking ; it was bought 
 on the faith of its being so, and it turned out to be a spurious com- 
 pound. There it was not a mere representation of quality, but of a 
 specific thing known as P^verett's blacking. 
 
 Lord Campbell. Was not R. v. Abbott decided on a pretence with 
 regard to the quality of a cheese ? 
 
 Robinson. No. If the representation alleged in the indictment 
 had been that the cheese was of the same quality as the taster, that 
 would have rendered the case analogous to this. But it was not so. 
 The representation there was that the taster formed part and parcel 
 of the cheese to be sold, and it was in truth of a totally different char- 
 acter, inserted into the bulk for the purposes of fraud. That was 
 a statement of a specific fact quite independent of the quality. 
 The cheese might have been of even better quality than the taster, 
 and yet the falsehood of the pretence would equally exist. If the 
 misrepresentation here had been that the spoons were of Elking- 
 *^on's manufacture, and had formed part of Elkington's stock, then
 
 SECT. III.] EEGINA V. BRYAN. 763 
 
 the case would be identical with R. v. Abbott ; but there is a wide 
 distinction between the statements that they are Elkington's and that 
 they are as good as Elkington's. 
 
 Coleridge, J. If the seller is to be indictable for overpraising his 
 goods, then the buyei' would be indictable also for unfairly depreciat- 
 ing them, and thus obtaining them below their value. 
 
 Lord Campbell. That would certainly seem to be so. Even the 
 act of depreciating would be indictable, because it would be an attempt 
 to obtain them by a false pretence as to their quality. 
 
 Robinson. In the administration of the criminal law, it is of the 
 highest importance to define as accurately as may be what crime is, 
 and not to leave too much to the interpretation of juries. Otherwise, 
 in such a case as this, every man who was dissatisfied with a bargain 
 he had made would have it in his power to indict a ti-adesman who 
 sold him goods, on the plea that every representation made in the 
 course of the bargain was not true to the letter. A cutler who war- 
 ranted a knife to be as good as Rodger's, a tailor who stated a coat 
 to be of the best Saxony wool, a brewer who represented his beer to 
 be treble X, would be constantly amenable to the criminal law, and a 
 jury would have to decide upon their fate. A line must be drawn 
 somewhere, and to hold that a pretence to be within the statute must 
 be with reference to some clear specific fact, the truth or falsehood of 
 which may be demonstrably shown, the assertion and the fact being 
 each the contradictory of the other, is consistent both with conveni- 
 ence and authority, whilst it would be highly dangerous to hold that 
 statements which might be mere matters of opinion or speculation 
 were the subject-matters of a criminal charge. 
 
 Lord Campbell. You say it is lawful to lie in respect of quality. 
 
 Robinson. However immoral, that it is not a crime. At the outset 
 it must be admitted that this was a wilful lie. The case states it, and 
 the jury have so found it. It must also be admitted that in conse- 
 quence of the lie the money was obtained. It is only on such admis- 
 sions that the point can ever arise. The question is, is such a lie as 
 this a false pretence witliin the statute ? 
 
 Lord Campbell. But it is part of the allegation that there is as 
 much silver in the spoons as in Elkington's A. Is not that the asser- 
 tion of a fact '' 
 
 Robitiso/i. It is no more in reality than a representation of the 
 quality. It is the amount of silver in these goods that gives them 
 their value, and saying of them that they have more or less silver is 
 equivalent to saying that they are of better or worse quality. 
 
 Pollock, C. B. Suppose a seller of cheese to state that it came 
 from a particular dairy in Cheshire, when in fact it came from 
 America. 
 
 Robinson. That might probably be a false pretence, because the 
 buyer would not get the precise thing he bargained for. He might
 
 764 EEGINA V. BRYAN. [CHAP. X. 
 
 want a Cheshire cheese and not an American one, quite irrespective of 
 the quality. 
 
 Bramwell, B. I see nothing in the statute that recognizes a dis- 
 tinction between species and quality. 
 
 Robinson. The statute must be taken in connection with the many 
 cases that have been decided upon it, and which have given it a par- 
 ticular interpretation. 
 
 Bramwell, B. If I buy a spurious autograph of the Duke of AYel- 
 lington, or a spurious picture attributed to Raphael, I get a thing of 
 the same species as that bargained for. 
 
 Rohinson. If the autograph or the picture was represented to be 
 genuine when it was known to be spurious, that would probably be a 
 false pretence ; but if it was said that the waiting or the painting was 
 in the duke's or the painter's best style, and it was known to be other- 
 wise, it would not be so. There are cases which tend to show that 
 the doctrine of caveat emptor might be applicable here, or that false 
 representations as to specific facts in the course of a bargain and sale 
 are not within the statute, but still much doubt has of late been thrown 
 upon them, and it is not thought necessary to rely upon them here. 
 
 Francis (with him Metcalfe), for the prosecution. The false pre- 
 tences relied upon are as to the quantity of silver in the spoons being 
 equal to P^lkiugton's A, and the foundations being of the best material. 
 These are facts easily ascertainable, and which, in truth, the jury 
 have expressed their judgment upon. They are not mere statements 
 that the spoons are as good or as valuable as Elkington's. It is some- 
 thing more than a mere representation with regard to quality ; for it 
 must be taken, after the finding of the jury, that the amount of silver 
 on Elkington's A spoons was a well known fixed quantity. In the 
 case of II. r. Sherwood, just decided, it was held that a misrepre- 
 sentation with regard to quantity was a good false pretence within the 
 statute, and there is here just as strong a representation as to quantity 
 as there was there. The spoons, no doubt, had a small quantity of 
 silver upon them, but it was so trifling that the money advanced ex- 
 ceeded their full value, and it is found that had the prosecutors known 
 the real value they would not have advanced any money upon them 
 whatever. But there is no case laying down the principle contended 
 for on the other side, that a misrepresentation with regard to quality 
 is not within the statute ; on the contrary, in R. v. Kenrick, 5 Q. B. 
 49, one of the pretences was, that a horse was quiet to ride and drive, 
 which was false within the seller's knowledge, and the court sustained 
 the conviction. The words of the statute are clear and precise, that 
 goods obtained by any false pretence constitutes the crime ; and the 
 jury have here found everything that the act renders material. It w^as 
 probably intended to prevent precisely such frauds as these ; and the 
 argument that this is a mere vaunting or puffing off of goods that a 
 tradesman is anxious to sell is answered by this, that the jury have
 
 SECT. III.] REGINA V. BRYAN. 765 
 
 foimd tlip.t the representations were made fraudulently and with intent 
 to cheat the prosecutor. Where there is such an intent, and it is acted 
 upon successfully, there can be no inconvenience in holding it to be 
 punishable as a crime ; and a jury of tradesmen would not be likely to 
 convict a man who had merely exaggerated the value of his property 
 for the purpose of getting a better price for it. That is often done 
 innocently, or at least without any fraudulent intent ; but here such 
 limits are far overstepped. R. v. Roebucic virtually decides this case, 
 for the pretences are substantially the same. It is true that there the 
 chain which was represented to be silver was not silver at all ; but 
 here the representation is equally false, for although the spoons were 
 coated with silver, it was in so small a quantity as to render them almost 
 valueless. So in R. r. Abbott, whatever might be the pretence alleged 
 in the indictment, in substance the fraud consisted in selling a very 
 inferior article for one of superior quality. 
 
 Bobinsori, in reply. Whatever the representations may be, they 
 have reference to quality, and not to species ; and this, at all events, 
 distiuijuishes tlie case from R. u. Roebuck, and all the other cases that 
 have been decided upon this point. As to R. v. Kenrick the decision 
 did not turn upon the pretence mentioned, namely, that the horses 
 were quiet to ride and drive. There were other pretences in that case 
 that would be clearly within the rule that the pretences had been made 
 with respect to speciific facts, and it was upon these that the court 
 acted. In R. v. Sherwood there was a pretence that there were eigh- 
 teen tons of coal to be delivered, when in truth there were only four- 
 teen. There was therefore an assertion that there were four tons of 
 coal in the wagon which did not exist at all. Here the number of 
 spoons delivered was correctly represented, but each individual spoon 
 was of an inferior description. In fact, the case states that it was the 
 declaration of the prisoner with regard to the quality of t.be goods, 
 and nothing else, which induced the prosecutors to part with their 
 mone}'. 
 
 On the conclusion of the argument, the learned judges retired to 
 consider the case, and on their return they delivered the following 
 judgments seriatim: — 
 
 Lord Cajipbell, C. J. I am of opinion that this conviction cannot 
 be supported, as it seems to me to proceed upon a mere representation, 
 "cliuiiig tlie barg:iiuiug for the purchase of a commodity, of the quality 
 of that commodity. , In the last case which we disposed of (R. v. Sher- 
 wood), after the purchase had been completed there was a distinct 
 averment which was known to be false, respecting the quantity of the 
 goods delivered, and in respect of that misrepresentation a larger sum 
 of money was received than ought to have been received, the amount 
 of which could be easily calculated ; and therefore I thought, and I think 
 now, that that was clearly a case within the Act of Parliament. But 
 here, if you look at what is stated upon the face of the case, it resolves
 
 766 KEGINA V. BRYAN. [CHAP. X. 
 
 itself into a mere misrepresentation of the quality of the article that was 
 sold, bearing in mind that the article was of the species that it was rep- 
 resented to be to the purchaser, namely, plated spoons, and that the 
 purchaser received them. Now, it seems to me, it never could have 
 been the intention of the legislature to make it an indictable offence 
 for the seller to exaggerate the quality of that which he was selling, 
 any more than it would be an indictable offence for the purchaser, dur- 
 ing the bargain, to depreciate the quality of the goods, and to say that 
 they were not equal to that which they really were. It seems to me 
 that this is au extension of the criminal law which is most alarming, 
 for not only would sellers be liable to be indicted for an extravagant 
 representation of the value of goods, but purchasers would be liable 
 to be indicted if they improperly depreciated the quality of the goods, 
 and induced the sellers by that depreciation to sell the goods at 
 an under price, and below the real value of the goods, which would 
 have been paid for them had it not been for that representation. Now, 
 as yet, I find no case in which it has been held that this misrepre- 
 sentation, at the time of sale, of the quality of the goods, has been 
 held to be an indictable offence. In Reg. v. Roebuck the article de- 
 livered was not of the species bargained foi', for there it was for a 
 silver chain, and the chain that was sold was not of silver, but was of 
 some base metal, and was of no value. But here the spoons were 
 spoons of the species that was bargained for, although the quality was 
 inferior. It seems to me, therefore, that this is not a case within the 
 Act of Parliament, and that the conviction cannot be supported.^ 
 
 Pollock, C. B. There may be considerable difliculty in laying down 
 any general rule which shall be applicable to each particular case, and 
 although I think that the statute was not meant to apply to the ordi- 
 nary commercial dealings between buyer and seller, yet I am not pre- 
 pared to lay down this doctrine in an abstract form, because I am 
 clearly of opinion that there might be many cases of buying and sell- 
 ing to which the statute would apply. I think if a tradesman or a 
 merchant were to concoct an article of merchandize expressly for the 
 purpose of deceit, and were to sell it as and for something very differ- 
 ent even in quality from what it was, there I think the statute would 
 ^PPly* iSo if ^ mart were opened, or a shop in a public street, with a 
 view of defrauding the public, and puffing off" articles calculated to 
 catch the eye which really possessed no value, there I think the statute 
 would apply ; but I think it does not apply to the ordinary commercial 
 dealings between man and man, and certainly, as has been observed 
 by the Lord Chief Justice, if it applies to the seller, it equally applies 
 to the purchaser. It is not very likely that many cases of that sort 
 would arise. It would be very inconvenient to lay down a principle 
 that would prevent a man from endeavoring to get the article cheap. 
 
 1 Concnrrin,2: opinions of Cockburn, C. J., Coleridge, Cresswell, Erle, Cromp- 
 TON, and Crowder, JJ., Watson and Channell, B.B., are omitted.
 
 SECT. III.] BEGIN A V. BRYAN. > 67 
 
 which he was bargaining for, and that if he was endeavoring to get it 
 under the value he niiglit be indicted for so doing. And tliere is this to 
 be observed, that if the successfully obtaining your object, either in get- 
 ting goods or money, is an indictable otfence, any attempt or step towards 
 it is an indictable offence as a misdemeanor, because any attempt or 
 any progress made towards the completion of the offence would be the 
 subject of an indictment, and then it would follow from that, that a 
 man could not go into a broker's shop and cheapen an article but he 
 would subject himself to an indictment for misdemeanor in endeavor- 
 ing to get the article under false pretences. Fgr.tliese reasons 1 think 
 it may Jje fairly laiji dowiijjthat_any exaggeration or depreciation in 
 the ordinary course of dealings between buyer and seller during the 
 progress of a. bargain is not the subject of a criminal prosecution. I 
 think this case falls within that proposition, and therefore this con- 
 viction cannot be supported. 
 
 "WiLLES, J.' I am of opinion at variance with those which have 
 been generall}^ expressed, but such as my opinion is I am bound to 
 pronounce it, and I do so with the greater confidence, because it was 
 the settled opinion of the late Chief Justice Jervis, than whom no man 
 who ever lived was more competent to form a correct opinion upon 
 the subject. I think that the conviction was right and that it ought 
 to be affirmed. It appears to me, in looking through the cases, that a 
 great number of the observations that have been thrown out with regard 
 to the construction of the statute would not have been made if the words 
 of the statute had been more strictly looked at ; and that even some of 
 the judgments would not have been pronounced if those who pronounced 
 them had not permitted themselves to consider whether it would or 
 would not be convenient to trade to adopt one interpretation or an- 
 other. I think the words of the act should be implicitly followed, and 
 the legislature should be obeyed according to the terms in which it has 
 expressed its will in the 53d section of the 7 & 8 G. IV. c. 29. I am 
 looking to the words of that section, and I am unable to bring myself 
 to think that its framers were dealing with anything in the nature of 
 a distinction between the case of goods fraudulently obtained by con- 
 tract and goods so obtained without any contract. The section com- 
 mences with the recital, " That whereas a failure of justice frequently 
 arises from the subtle distinction between larceny and fraud ; " now 
 this recital ought not on a proper construction, and according to those 
 authorities by which we are bound, to have the effect of restraining 
 the operation of the enacting clause. The enacting part of the sec- 
 tion is, " if any person shall by any false pretence obtain from any 
 other person any chattel, money, or valuable security, with intent to 
 cheat or defraud any person of the same, every such offender shall be 
 guilty of a misdemeanor." And it appears to me that the only proper 
 
 ^ Bramwell, B., also delivered an opinion supporting the conviction.
 
 768 REGINA V. BRYAN. [CHAP. X. 
 
 test to apply to any case is this, whetlier it w:is a false pretence by 
 which the property was obtained, and whether it was obtained with 
 the intention to cheat and defraud the person from whom it was ob- 
 tained. Now in this case it appears that there w^as a false pretence ; 
 there was a pretence that the goods had as much silver upon them as 
 Elkiugton's A ; there was also the pretence that the foundations were 
 of the best material. If I could bring myself to take the view which 
 my brother Erie has taken of the statement of the case, that these 
 were matters of opinion, and not matters of fact, which could be 
 ascertained by inspection or calculation, possibly I might arrive at 
 the same conclusion as he has done ; but it appears to me on the 
 face of the case that Elkington's A must have been a fixed quan- 
 tity, and that the proper material, tlie best material for the foun- 
 dation of such plated articles, must have been a well known quality 
 in the trade, because it appears that the prisoner made a statement 
 with respect to the quantity of silver and the quality of the founda- 
 tion with the intent to defraud. It appears that the person who 
 made the advance was thereby defrauded, — thereby induced to make 
 the advance ; the jury have found that the statements were known by 
 the prisoner to be untrue, and that in consequence of these statements 
 he obtained the money mentioned in the indictment. It appears to me 
 that, for all practical purposes, that ought to be taken to be a sufficient 
 fact coming within the region of assertion and calculation, and not a 
 mere speculative opinion, and that it should be considered a false pre- 
 tence. If the misrepresentation was a simple commendation of the 
 goods ; if it was a mere puffing of the articles which were offered in 
 pledge ; if it was entirely a case of one person dealing with another in 
 the way of business, who might expect to pay the price of the articles 
 which were offered for the purpose of pledge or sale, — I apprehend it 
 would have been easily disposed of by the jury who had to pass an 
 opinion upon the question, acting as persons of common sense and 
 knowledge of the world. It would be a question for them in such case 
 whether the matter was such ordinary puffing that a person ought not 
 to be taken in by it, or whether it was a misrepresentation of a specific 
 fact material to the contract, intended to defraud, and by which the 
 money in questionwas obtained. Well, then, there is the latter part 
 of the section, " with intent to cheat and defraud any person of the 
 same." It must be with the intention to cheat or defraud the person 
 of the same, and that intention here is found to have existed ; there- 
 fore I am unable to bring my mind to feel any anxiety to protect 
 pei'sons who make false pretences with intent to cheat and de- 
 fraud. The effect of establishing such a rule as is contended for 
 would, in my opinion, be rather to interfere with trade and to pre- 
 vent its being carried on in the way in which it ouglit to be carried 
 on. I am far from seeking to interfere with the rule as to simple 
 commendation or praise of the articles which are sold, on the one
 
 SECT, III.] REGINA V. GOSS. 769 
 
 baud, or to that which is called chaffering on the other ; those are 
 things persons may expect to meet with in tlie ordinary and usual 
 course of trade. But as to the fear of multiplying prosecutions, I am 
 afraid that we live in an age in which fraud is multiplied to a great 
 extent, and in the particular form which this case assumes. 1 agree 
 in what the late Chief Justice Jervis stated as most peculiarly- applica- 
 ble, namely, that as to such a commerce as requires to be protected by 
 this statute being limited in the mode suggested, trade ought to be 
 made honest and conform to the law, and not the law bend for the pur- 
 pose of allowing fraudulent commerce to go on. I cannot help think- 
 ing therefore, upon the fair construction of the o3d section of the 7 
 & 8 G. IV. c. 29, the prisoner in this case having fraudulently repre- 
 sented that there was a greater amount of silver in the articles 
 pledged than there really was, and that there was a superior founda- 
 tion of metal (that being untrue to his knowledge), for the purpose 
 of defrauding the prosecutors of their money, which he accordingly 
 obtained, he was indictable, and that the conviction should be 
 attirmed.^ 
 
 REGINA V. GOSS; REGINA v. RAGG. 
 
 Crown Cases Reserved. 1860. 
 
 [Reported 8 Cox C. C. 262.] 
 
 Regina V. Goss. 
 
 Case reserved for the opinion of this court by the Recorder of 
 Northampton. 
 
 The prisoner, Thomas Goss, was tried before me at the last Michael- 
 mas Sessions for the borough of Northampton, for obtaining mone}^ by 
 false pretences.'^ 
 
 It was proved at the trial that the prosecutor, Thomas Roddis, on 
 the 19th September last, was attending the cheese fair held within 
 the borough of Northampton, and that the prisoner was in the fair, 
 and sold to the prosecutor eight cheeses, weighing 1 cwt. 3 qrs. 1 lb. 
 for which the prosecutor paid the prisoner the sum of £3 19s. 6d., 
 being at the rate of i^d. per pound. On the prosecutor going into 
 the fair, the prisoner offered to sell him the eight cheeses, and bored 
 six of them with a cheese-scoop, and then produced and offered to 
 the prosecutor several pieces of cheese, which are called "tasters," 
 successively' at the end of the scoop for the prosecutor to taste, and 
 in order that he might taste them as being respectively samples and 
 
 1 Ace. Reg. V. Levine, 10 Cox C. C. 374. Contra, Reg. i;. Ardley, 12 Cox C. C. 23 
 See Reg. v. Evans, 9 Cox C. C. 238 ; Reg. v. Lawrence, 36 L. T. Rep. 404. — Ed. 
 
 2 The indictment is omitted.
 
 770 REGINA V. GOSS. [CHAP. X. 
 
 portions of the six cheeses which the prisoner had bored ; and accord- 
 ingl}' the prosecutor did taste them, and then offered the prisoner A^d. 
 per pound for the eight cheeses, which the prisoner accepted. 
 
 The tasters, however, had not in fact been extracted from the 
 cheeses offered for sale, for after the prisoner had bored the cheeses, 
 and before he handed the tasters to the prosecutor, he took from his 
 coat pocket pieces of cheese of better quality and description than 
 those taken from the cheeses which he had bored, and privih* and 
 fraudulently put these pieces of cheese at and into the top of the 
 scoop for the prosecutor to taste, and the cheese which the prosecutor 
 did taste, was not any portion of the six cheeses which the prisoner 
 bored. 
 
 The prosecutor, at the time he bought the eight cheeses, believed 
 that he had been tasting a portion of those cheeses, and in that belief 
 bouglit them, and paid the prisoner the £3 19s. 6(7. for them, which he 
 would not have done unless he had believed that the tasters had been 
 extracted from the cheeses which he so bought. The cheeses were 
 delivered to the prosecutor, and he retained possession of them up to 
 the trial. 
 
 The value of the eight cheeses would be about 3f?. per lb. 
 
 The prisoner's counsel at the trial objected that there was no evi- 
 dence to support the indictment, or of any facts which would consti- 
 tute a false pretence within the statute. 
 
 I left the case to the jury, and the prisoner was convicted ; but 
 having some doubt as to whether the case of Reg. v. Abbott 2 Cox 
 Crira. Cas. 430, had not been shaken by subsequent decisions (see 
 Reg. V. Brjan, 7 Cox Crim. Cas. 312), I reserved the case for the 
 opinion of the Court of Appeal. John H. Brewer. 
 
 No counsel was instructed to argue in behalf of the prosecution. 
 
 Mereicether (for the prisoner). This case was reserved in conse- 
 quence of the remarks of some of the judges upon the case of Reg. 
 V. Abbott, 2 Cox Crim. Cas. 430, which was decided upon the author- 
 ity of Reg. V. Kenrick, 5 Q. B. 49. The facts in the present case 
 are precisel}- the same as in Reg. v. Abbott ; and unless that case can 
 be impeached, this conviction must, no doubt, be ui)held. In Reg. v. 
 Roebuck, 7 Cox Crim. Cas. 126, Lord Campbell, C. J., said; "If 
 this were res integra, I should not agree with Reg. v. Abbott, because 
 I think tliat there the intention of the prisoner was to obtain a better 
 bargain, and not animo furandi ; but that having been decided by 
 ten judges, I do not wish on the present appeal to disturb it." So in 
 Reg. V. Eagleton, 6 Cox Crim. Cas. 559, the authority of Reg. i\ 
 Abbott and Reg. v. Kenrick was much disputed in the course of the 
 argument ; but the court said that it did not then become necessar}' 
 to consider those cases. In Reg. v. Bryan, 7 Cox Crim. Cas. 312, 
 the defendant, in order to obtain a loan on a quantity of plated spoons, 
 represented to a pawnbroker that the}' were of the best qualit}-, and
 
 SECT. Ill.j REGINA V. RAGG. 771 
 
 were equal to Elkingtou's A (meaning spoons and forks made by 
 Elkington, and stamped with the letter A) ; that the foundation was 
 of the best material, and that tlie}' had as much silver upon them as 
 Elkington's A. The jury found that these representations were wil- 
 fully false, and that by means of them the loan was obtained. Held 
 (Willes, J., and Bramwell, B., dissentientibus), that the conviction 
 was wrong, and that the representation being a mere exaggeration or 
 puffing of the qualit}' of the goods in the course of a bargain, it was 
 not a false pretence within the statute. In Reg. v. Sherwood, 7 Cox 
 Crira. Cas. 270, the prisoner, after he had agreed with the prosecutor 
 to sell and deliver a load of coals at u certain price per cwt., falsely 
 and fraudulentl}' pretended that the quantitj' which he had delivered 
 was 18 cwt , and that it had been weighed at the colliery, and the weight 
 put down by himself on a ticket which he produced, he knowing it to 
 be 14 cwt. onh', and thereby obtained an additional sum of money; 
 and this was held to amount to a false pretence within the statute. 
 In that case a difficult}' was felt b}' the court in drawing the line 
 between indictable and non-indictable false representations. 
 
 The CouKT said that they had no doubt about Reg. v. Abbott being 
 a decision that they would act upon, and sound in principle, but they 
 desired the case of Reg. v. Joseph Ragg (being on the same subject), 
 to be called on before giving judgment. 
 
 Regina v. Ragg. 
 
 Case reserved for the opinion of this court by the Chairman of the 
 Leicestershire Quarter Sessions. 
 
 Joseph Ragg was tried before me at the General Quarter Sessions 
 of the peace for the county of Leicester, held on the 3d January, 1860, 
 for obtaining mone}- under false pretences from Henr}' Harris. 
 
 The indictment stated the pretence to be, a false pretence as to the 
 character and weight of a quantity of coals, sold and delivered bj' the 
 prisoner to the prosecutor. 
 
 It appeared in evidence as follows : The prisoner was a coal 
 dealer. On the ■28th November he called at the house of the prose- 
 cutor in Loughborough, with a load of coals in a cart, and inquired 
 if he (the prosecutor) wanted to buy a load of " Forest " coal. The 
 prosecutor replied that the coals did not look like Forest coal, be- 
 cause the}' looked so dull. The prisoner replied, " I assure you they 
 are Forest coal, and the reason of their looking so dull is because 
 the}- have been standing in tlie rain all night ; there is 15 cwt. of them, 
 for I paid for 14 cwt. at the coal-pits, and the}' gave me 1 cwt. in." 
 On this the prosecutor bought the coal, and paid 7s. 6d. for the load. 
 The prisoner unloaded the cart, and packed the coals in the prosecu- 
 tor's coal-place. When the prosecutor saw the coals in the coal-place, 
 they appeared to be much too small a quantity to weigh 15 cwt., and he 
 had them weighed, when it was found that they weighed 8 cwt. only.
 
 772 REGINA V. RAGG. ' [cHAP. X. 
 
 The prisoner had at this time received his money and gone away, 
 but tlie prosecutor went after him, challenging him with the fraud, and 
 asking for redress. The prisoner, however, refused to make anj-, stat- 
 ing " that he did not make childish bargains, and that the prosecutor 
 could not do anything to him, because he had not sold the coal by 
 weight, but by the load." 
 
 The prosecutor stated that he had bought the coal on the representa- 
 tion of the prisoner that there were 15 cwt., and the size of the cart 
 and the appearance of the coal therein, warranted the belief that there 
 were 15 cwt. ; but it turned out that the coal was loaded in a particular 
 manner, technically known as '' tunnelling ; " that is, the coal (which is 
 in large lumps) is so built up in the cart, that one lump rests on the 
 edges of that below it, and large spaces are left between the lumps of 
 coal, and thus there is an appearance of a greater quantity of coal than 
 there actually is. 
 
 From further evidence, it appeared that the coal was not Forest 
 coal at all, and had not been bought at the pits, but was Rutland coal, 
 and bought that same morning at a wharf in the town of Loughborough ; 
 that the cart, when loaded at the wharf, had weighed 8 cwt. onl}-, and 
 although the prisoner stated that other coal had been added to it from 
 another cart-load purchased at the same time from the wharf, there was 
 no evidence of this produced at the trial. 
 
 It further appeared that on the same da}-, and a veiy short time 
 after the coal was sold to the prosecutor, the prisoner had offered the 
 same load to another person as containing 13 cwt., but on looking at 
 the cart it was evident that the coal was "tunnelled," and the pris- 
 oner was then and there challenged with the fact, and told that there 
 was not above 8 cwt. in the cart, or 10 cwt. at the most. 
 
 The prisoner was not defended by counsel, and the jury found him 
 
 guilty- 
 
 With respect to the false pretence as to the "character" of the 
 coal, it appeared to me, on inquiring of the witnesses, that there was 
 not much real difference in value between the Forest coal and the 
 Rutland coal, and that the preference of one over the other was 
 rather according to the idea of the customer, than the actual value 
 of the article ; and I should not have considered it a case of false 
 pretences under the statute hnd this been the only misrepresentation ; 
 but I considered that the evidence showed, not merely a false state- 
 ment as to the quantit}', but a preconceived intention to defraud, and 
 a mode of packing the coal, resorted to for the purpose of fraud, and 
 that therefore the jur}- properly found the prisoner guiltj'. 
 
 On referring, however, to the case of Reg. v. Sherwood, I found that 
 some of the learned judges who gave judgment therein had apparently 
 drawn a distinction between the case of a false representation made 
 during the bargaining, and that made after the sale was completed ; 
 and in the present case, "as the false pretence was made in the course 
 of the progress of a sale," I did not feel justified in sentencing the
 
 SECT. III.] KEGINA V. KAGG. 773 
 
 prisoner until the subject had come under the consideration of the 
 judges. I therefore posti^oned the sentence, and directed that the 
 prisoner might be Hberated on bail to appear and receive sentence 
 at the next Easter Sessions. 
 
 Hy. J. HosKiNS, Deputy Chairman. 
 
 No counsel were instructed either for the prosecutor or prisoner. 
 
 Erle, C.J. We are all of opinion that the conviction in each case 
 was right. With reference to the case of Joseph Ragg, there was a 
 false representation that the quantity of coals in the cart was 1.5 cwt., 
 whereas onlj' about 8 cwt. were delivered, and there was a pretence of 
 a delivery of 7 cwt , no part of which had been delivered. And al- 
 though the falsehood was onl}' as to part of the entire quantity to be 
 delivered, yet this falls within the class of cases of false representa- 
 tions as to the quantity' of goods delivered, the principle of which is 
 a false pretence of a matter of fact cognisable b}' the senses, which is 
 an indictable offence within the statute. With regard to the case of 
 Thomas Goss, there was also a false pretence of a matter cff fact 
 within the cognisance of the senses; for b}' a sample which he falsel}' 
 represented as a part of the very cheese to be sold, but which was part 
 of a cheese altogether different both in substance and value, he procured 
 the purchaser to buy the inferior cheese, and part with his money. That 
 was a false pretence as to the substance of the article for sale, whereby 
 the prisoner was enabled to pass off a counterfeit article as and for 
 the genuine substance. In Reg. v. Roebuck, 7 Cox Crim. Cas. 126, 
 it was held that falsely representing to a pawnbroker that a chain is 
 silver, the prisoner knowing it to be a base metal, is indictable. So 
 here the drawing from the prisoner's pocket, samples from another 
 cheese, and not the cheese intended for sale, which was a totall}- dif- 
 ferent substance, and falsely pretending to the purchaser that those 
 samples were part of the substance which he was to bu}', that is 
 equallv an indictable offence within the statute, and falls within the 
 class of cases to which belong Reg. v. Abbott, where the substance of 
 the purchase was a cheese of the identical character with the taster ; 
 and Reg. v. Dundas, 6 Cox Crim. Cas. 380, where the article sold 
 was falselj- pretended to be Everett's blacking, which was a known 
 article in the neighborhood, whereas in fact the article passed off was 
 a counterfeit. In the case of Reg. v. Bryan, the case of the plated 
 spoons represented as equal to Elkington's A, the judges who consti- 
 tuted the majority decided that case on the principle, that indefinite 
 praise on a matter of opinion, is not within the limit of indictable 
 offences. A great deal of dissatisfaction has been expressed with that 
 decision, as if it must operate as an encouragement to falsehood and 
 fraud, and so lead to a great deal of mischief; but it should be recol- 
 lected what an extreme calamity it is to a respectable man, to have to 
 stand his trial at a criminal bar as a cheat, upon an indictment at the 
 instance of a dissatisfied purchaser. It is eas^- for an imaginative
 
 774 REGINA V. JENNISON. fCHAP. X. 
 
 person to fall into an exaggeration of praise upon the sale of his 
 guods. And if such statements are indictable, a person who wishes 
 to get out of a bad bargain made by his own negligence, might have 
 recourse to an indictment, on the trial of which the vendor's state- 
 ment on oath would be excluded, instead of being obliged to bring an 
 action, where each party would be heard on equal terms. It is of 
 great public importance to endeavor to draw the line distinctly between 
 false representations which are indictable, and those which are not. 
 In the present case there was a false representation that an article was 
 a genuine substance, and the passing off a counterfeit substance, and 
 that was an indictable offence. My brother Willes, J., in Reg. v. 
 Bryan, threw a great deal of light on the law as to false pretences, 
 and though he differed from the majority of the judges in the decision, 
 he did not differ from the principle of that decision, but only upon the 
 application of that principle to the case. The majority of the judges 
 thought the representation there to be a matter of opinion only ; my 
 brother Willes thought it a representation of a matter of fact, as if the 
 representation had been, there is as much silver in the spoons as in 
 Elkington's A, and in his judgment it was the false representation of 
 a definite fact. We are therefore of opinion that this conviction must 
 be affirmed. 
 
 WiGHTMAN, J. I am of the same opinion. I would merely add, 
 with reference to the cheese cases and Elkington's case, one observa- 
 tion. If the prisoner had said that the cheeses were equal to the 
 tasters produced, that would have fallen within the Elkington's case ; 
 but he said to the prosecutor, " These tasters'aTe a part of the very 
 cheeses I propose to sell to you ; " and therefore it was a misrepre- 
 sentation of a definite fact. 
 
 The rest of the court concurring. 
 
 Convictions affirmed} 
 
 REGINA V. JENNISON. 
 \ Crown Case Reserved. 1862. 
 
 [Reported 9 Cox C. C. 158.] 
 
 Case reserved for the opinion of this court by Cockburn, C. J. 
 John Jennison was indicted and tried before me at the last Assizes 
 for the county of Nottingham for obtaining £8 from one Ann Hayek 
 by false pretences. 
 
 The prisoner, who had a wife living, had represented himself to the 
 prosecutrix, who was a single woman in service, as an unmarried man, 
 
 1 Arc. -Re^. r. Foster, 2 Q. B. D. 301. See State v. Stanley, 64 Me. 157 ; Jackson v. 
 People, 126 111. 139. — Ed.
 
 SECT, III.] REGINA V. JENNISON. 775 
 
 and preteudiug that he was about to marry her, induced her to hand 
 over to him a sum of £S out of lier wages received on leaving her ser- 
 vice, representing that he would go to Liverpool, and with the money 
 furnish a house for them to live in, and that having done so he would 
 ~return and marry her. Having obtained the money the prisoner went i 
 away and never returned. 
 
 The prosecutrix stated that she had been induced to part with her 
 money on the faith of the representation of the prisoner that he was a 
 single man, that he would furnish a house with the money, and would 
 then marry her. 
 
 There was no doubt that these representations were false, and that 
 morally the money had been obtained b}' false pretences. But it was 
 contended on the part of the prisoner that, as the prosecutrix had been 
 induced to part with the money by the joint operation of the three repre- 
 sentations made by the prisoner, that he was unmarried, that he would 
 furnish a house with the money, and that he would then marry her, 
 and as only the first of these pretences had reference to a present ex- 
 isting fact, while the others related to things to be done in future, the 
 indictment could not be maintained. 
 
 I reserved the point, and the prisoner having been convicted, have 
 now to request the decision of the court upon the question. 
 
 A. E. COCKBURN. 
 
 No counsel appeared to argue on either side. 
 
 Erle, C. J. We are of opinion that the conviction in this case was 
 proper. The indictment was for obtaining £8 from Ann Hayes by 
 false pretences, and it was found by the jury that the woman parted 
 with the money on the false representation by the prisoner that he was 
 a single man, and the promise that he would lay out the money in fur- 
 nishing a house for them to live in, and that he would then marry her. 
 It is perfectly clear that obtaining money by a false promise is not the 
 subject of an indictment ; but here there was the false pretence that 
 the prisoner was an unmarried man, which was an essential fact in 
 this case, and without which pretence the prisoner never would have 
 obtained the money from the woman. Now, one false fact, by means 
 of which the money is obtained, sufficiently sustains the indictment, 
 although it may be united with false promises which would not of 
 themselves do so. The conviction therefore was risht. 
 
 The other judges concurring, 
 
 Conviction affirmed.^ 
 
 1 Ace. Rex i\ Youn":, Leach (4th ed.), 505, 3 T. R. 98; Com. v. Moore, 80 Ky. 542 
 See Reg. v. Johnston, 2 Moo. C. C. 254. — Ed.
 
 776 COMMONWEALTH V. DREW. [lHAP. X. 
 
 COMMONWEALTH v. DREW. 
 
 Supreme Judicial Court of Massachusetts. 1837. 
 
 [Reported 19 Plckerbuj, 179.] 
 
 The defendant was tried before Morton, J., upon two indictments, 
 in each of whicli he was charged with having procured mone}- from 
 the Hancock Bank in Boston by false pretences, and with intent to 
 defraud the bank, upon two several occasions. ^ 
 
 The pretences alleged were : 1, that the defendant assumed the name \ 
 of Charles Adams ; 2, that he pretended that he wished to open an 
 honest and fair account with the Hancock Bank, and to deposit and 
 draw for mone}- in the usual manner and ordinar}' course of business ; 
 and 3, that he pretended that two checks, described in the indictment, , 
 were good, and that he had in deposit the amount for which they wer^/ 
 drawn. 
 
 It was proved, among other things, that the defendant began to 
 deposit money in the bank earl}- in December, 1835, and that he con- 
 tinued to deposit and draw, at various times and in various sums, until 
 the 27th of January, 1836, on which day, having only $10 deposited 
 to his credit, he drew a check for $100, which was paid at the bank. 
 
 On the 30th of January, 1836, a check for $350 was drawn by the 
 defendant and paid at the bank, he having made no deposit since the 
 payment of the check presented on the 27th of January. 
 
 The defendant deposited and drew his checks by the name of Charles 
 Adams, and there was another person named CharlQS Adams who de- 
 posited at the bank at the same time ; but it was not contended on the 
 part of the Commonwealth, that the checks were paid because of the 
 assumption by the defendant of the name of Charles Adams, nor that 
 any mistake was made as to which person of that name drew the 
 check. 
 
 Samuel B. Dyer, a witness on the part of the Commonwealth, testi- 
 fied that he was the paying and receiving teller of the bank ; that the 
 defendant first did business at the bank on the 12th of December, 1835 ; 
 that he asked to, have a large bill of the United States Bank exchanged 
 for small bills, which was done ; that before he left the bank he made a 
 deposit of a considerable sum, including the bills just before received 
 as above ; that being asked in what name he wished to deposit, he said, 
 in the name of Charles Adams ; that he saw the defendant several 
 times afterwards, when he presented his checks for payment; that the 
 defendant usually drew his checks in the bank, at the desk kept for 
 that purpose, and presented them himself, and that this was usually 
 done by him about 12 o'clock, the most busy time in the forenoon ; that 
 the witness had no recollection of the presentation or payment of either 
 of the two checks in question, which were overdrafts ; that he knew
 
 SECT. III.] COMMONWEALTH V. DREW. 777 
 
 they were paid out of bis drawer and b}' his money, because he foiiiul 
 the checks in liis drawer and missed sums of mone}' corresponding with 
 the amount of the cliecks ; that he beheved that the check of January 
 27th was not paid by himself, but by the bank messenger for him, who 
 took his place a few minutes at the counter, the messenger having told 
 him he had paid a check of Charles Adams ; that the witness paid 
 checks of tlie defendant unhesitatingly, because he had deposited for 
 some time, and the witness presumed his checks to be good from the 
 general character of his account, and having seen him conversing with 
 the president of the bank, the witness presumed he was acquainted 
 with the president ; that if the witness paid either of the two checks in 
 question, without inquiring at the desk of tlie book-keeper or looking 
 at the balance-sheet to ascertain whether the defendant had money to 
 that amount deposited, it was upon these grounds that he so paid. 
 
 It was in evidence, that the book-keeper's desk was a few feet from 
 the teller s counter ; that when the teller doubted whether a check should 
 be paid, he inquired of the book-keeper, or looked at the balance-sheet 
 kept bv the book-keeper, which was made up to the end of every day, 
 and lay upon the desk for the inspection of the teller or book-keeper at 
 all times. 
 
 It was testified b3' the teller, that the overdraft of the '27th of Jan- 
 nar}' was not reported for some days after it happened ; and the 
 balance-sheet showed that it did not appear upon that book until the 
 1st of February. 
 
 In order to show that the defendant overdrew with a fraudulent intent, 
 it was proved, amongst other things, that he overdi'ew, about the same 
 time, at the Bunker Hill Bank in Charlestown, and the Traders' Bank 
 in Boston. 
 
 The counsel for the defendant contended, that there was no evidence 
 of the procuring of money b}' any false pretence ; that the mere draw- 
 ing a check and presenting it at the counter of the bank to the teller 
 for payment, no words being spoken and no false appearance or token 
 presented or held out, although the drawer knew he had no funds 
 deposited there, was not a " false pretence " within the meaning of the 
 statute upon that subject ; and that such presentation of a check, with 
 intent to defraud the bank, and receiving the mone}' upon the check, 
 did not constitute the crime of obtaining money b}' false pretences, as 
 defined by the statute ; that it was no more than an appeal to the liooks 
 of the bank, kei)t by the proper officer, and an offer to receive what 
 should there be found due. But the judge overruled these objections, 
 and instructed the jury, that if they believed that the defendant became 
 a depositor at tlie bank under a pretence of doing business there in the 
 usual manner, but with the fraudulent design to obtain the money of, 
 and cheat the bank, and drew the checks and presented them at the 
 bank for payment, knowing that he had not funds deposited sufficient 
 to pa\' them, and that he did this intending to defraud the bank of the 
 sums so overdrawn, although no words were spoken and no other token
 
 778 COMMONWEALTH V, DREW. [CHAP. X. 
 
 exhibited, and if he actually got the money, he was guilt}' of the crime 
 of obtaining money by false pretences within the meaning of the statute. 
 Antl it was left to the juiy to decide upon all the evidence, whether the 
 false pretences and the averments contained in the indictment were 
 proved to their satisfaction or not. 
 
 The jury found a verdict against the defendant upon both indict- 
 ments. 
 
 The defendant moved for a new trial, because of the ruling and in- 
 structions of the judge, and because the verdict as to the presentation 
 of the checks by the defendants was not supported by the evidence. 
 
 II. H. Fuller supported the motion. As to the third false pretence, 
 he cited St. 1815, c. 136 ; 3 Chit. Crim. Law, 997 ; Allen's case, 3 City 
 Hall Recorder, 118; Stuyvesant's case, 4 City Hall Recorder, 156; 
 People V. Conger, 1 Wheeler's Crim. Cas. 448 ; People v. Dalton, 
 2 Wheeler's Crim. Cas. 178; Witchell's case, 2 East's P. C. 830; Story's 
 case, Russ. & Ryan, 81 ; Freeth's case, ib. 127. 
 
 Austin (Attornej'-General), and Parker (District-Attorne}'), for the 
 Commonwealth, cited Roscoe on Crim. Ev. (2d ed.) A\l et seq. ; 
 Lockett's case, 1 Leach, 110; Commonwealth v. Wilgus, 4 Pick. 177; 
 
 2 East's P. C. 828 ; Young v. The King, 3 T. R. 102 ; Rex v. Jackson, 
 
 3 Campb. 370. 
 
 Morton, J., delivered the opinion of the court. These indictments 
 are founded upon St. 1815, c. 136. The first section provides, " that 
 all persons who knowingly and designedl}', b}' false pretence or pre- 
 tences, shall obtain from an}' person or persons mone}', goods, wares, 
 merchandise or other things, with intent to cheat or defraud any person 
 or persons of the same, shall on conviction " be punished, &c., as 
 therein specified. This section, which is a cop}- of St. 30 Geo. II. c. 
 24, § 1, is revised and combined with some provisions in relation to 
 other similar offences, in the Revised Stat. c. 126, § 32. 
 
 To constitute the offence described in the statute and set forth in 
 these indictments, four things must concur and four distinct averments 
 must be proved. 
 
 1. There must be an intent to defraud ; 
 
 2. There must be an actual fraud committed ; 
 
 3. False pretences must be used for the purpose of perpetrating the 
 fraud ; and, 
 
 4. The fraud must be accomplished by means of the false pretences 
 made use of for the purpose, viz., they must be the cause which induced 
 the owner to part with his [)roperty. 
 
 It is very obvious that three of the four ingredients of the crime exist 
 in the present case. The fraudulent intent, the actual perpetration of 
 the fraud, and the fact that some of the pretences used were the means 
 by which it was accomplished, are established by the verdict of the 
 jury. And although the prisoner's counsel has objected to the sufficiency 
 of the evidence, yet we see no reason to question the correctness of their 
 decision. It only remains for us to inquire, whether the artifices and
 
 SECT. III.] COMMONWEALTH V. DREW. 779 
 
 decei)tions practised by the defendant, and by means of which he 
 obtained the money, are the false pretences contemplated by the 
 statute. 
 
 The pretences described in the indictments and alleged and shown to 
 be false, are, 
 
 1. That the defendant assumed the name of Charles Adams ; 
 
 2. That he pretended that he wished to open an honest and fair ac- 
 count with the Hancock Bank, and to deposit and draw for money in 
 the usual manner and ordinary course of business ; 
 
 3. Tliat he pretended that the checks were good, and that he had in 
 deposit the amount for which they were drawn. 
 
 Tiie first is clearly a false pretence within the meaning of the statute ; 
 and had the money been obtained by means of the assumption of this 
 fictitious name, there could be no doubt of the legal guilt of the 
 defendant. The eminent law3'er who filled the office of mayor of New 
 York, when the adjudication referred to by the defendant's counsel was 
 made, says the false pretences must be the sole inducement which 
 caused the owner to part with his propert3'. People t'. Conger, 1 
 Wheeler's Crira. Cas. 448 ; People v. Dalton, 2 ib. 161. This point is 
 doubtless stated too strongly ; and it would be more correct to say, 
 that the false pretences, either with or without the cooperation of other 
 causes, had a decisive influence upon the mind of the owner, so that 
 without their weight he would not have parted with his propert3^ 
 People V. Haynes, 11 Wendell, 557. But in this case the assumed 
 name, so far from being the sole or decisive inducement, is cleai'ly 
 shown to have had no influence whatever. The bank officers did not 
 confound the defendant with Charles Adams, and it does not appear 
 that the defendant knew that there was an}' other person by that name. 
 He never claimed any credit on account of his name, and the coincidence 
 might have been accidental. At any rate, it had no influence upon the 
 credit of either, nor any efl^ect upon their accounts or the payment of 
 their checks. 
 
 2. The opening and keeping an account with the Hancock Bank 
 might have been, and doubtless was, a part of a cunning stratagem, b}' 
 which the defendant intended to practise a fraud upon that bank. But 
 the business was done and the account kept in the usual manner. The 
 defendant made his deposits and drew his checks like other customers 
 of the bank. He made no representation of the course he intended to 
 pursue, and gave no assurance of integrity and fair dealing ; and we 
 can see nothing in the course of this business constituting it a false 
 pretence, which would not involve the account of any depositor who 
 might overdraw in the same categor}-. 
 
 3. The pretence, if an}' such there were, that the check was good, or 
 that the defendant had funds in the bank for which he had a right to draw, 
 was false. He had no such funds. Did the defendant make any such 
 pretence? He made no statement or declaration to the officers of the 
 bank. He merely drew and presented his checks, and they were paid
 
 7S0 COMMONWEALTH V. DREW. TcHAr. X, 
 
 This was done in the usual manner. If, then, he made an}' pretence, it 
 must result from the acts themselves. 
 
 What is a false pretence, within the meaning of the statute ? It ma}' 
 be defined to be a representation of some fact or circumstance, calcu- 
 lated to mislead, which is not true. To give it a criminal character 
 there must be a scienter and a fraudulent intent. Although the lan- 
 guage of the statute is ver}' broad, and in a loose and general sense 
 would extend to ever}' misrepresentation, however absurd or irrational, 
 or however easily detected, yet we think the true principles of con- 
 struction render some restriction indispensable to its proper application 
 to the principles of criminal law and to the advantageous execution of 
 the statute. We do not mean to sa}' that it is limited to cases against 
 which ordinary skill and diligence cannot guard, for one of its principal 
 objects is to protect the weak and credulous from the wiles and strata- 
 gems of the artful and cunning ; but there must be some limit, and it 
 would seem to be unreasonable to extend it to those who, having the 
 means in their own hands, neglect to protect themselves. It may be 
 difficult to draw a precise line of discrimination applicable to every 
 possible contingenc}', and we think it safer to leave it to be fixed in 
 each case as it may occur. 2 East's P. C. 828 ; Young v. The King, 3 
 T. R. 98. 
 
 It is not the polic}' of the law to punish criminal!}' mere private 
 wrongs ; and the statute may not regard naked lies as false pretences. 
 It requires some artifice, some deceptive contrivance, which will be 
 likely to mislead a person or throw him off his guard. He may be 
 weak and confiding, and his very imbecility and credulity should receive 
 all practical protection. But it would be inexpedient and unwise to 
 regard every private fraud as a legal crime. It would be better for 
 society to leave them to civil remedies. Roscoe on Crim. Ev. (2d ed.) 
 419 ; Goodhall's case, Russ. & Ryan, 461. 
 
 The pretence must relate to past events. Any representation or 
 assui'ance in relation to a future transaction may be a promise or cove- 
 nant or warranty, l)ut cannot amount to a statutory false pretence. 
 They afford an opportunity for inquiring into their truth, and there is a 
 remedy for their breach, but it is not by a criminal prosecution. Stuyve- 
 sant's case, 4 City Hall Recorder, 156 ; Roscoe on Crim. Ev. (2d ed.) 
 422 ; Rex v. Codrington, 1 Car. & Payne, 661. The only case, Young 
 V. The King, 3 T. R. 98, which has been supposed to conflict with this 
 doctrine, clearly supports it. The false pretence alleged was, that a 
 bet had been made upon a race which was to be run. The contingency 
 which was to decide the bet was future^ but the making of the bet 
 was -past. The representation which turned out to be false was, not 
 that a race would be run, but that a bet had been made. The false 
 pretence, therefore, in this case, related to an event already completed 
 and certain, and not to one which was thereafter to happen and conse- 
 quently uncertain ; and the decision was perfectly consistent with the 
 doctrine and law here laid down.
 
 SECT. IlLJ COMMONWEALTH V. DREW. 781 
 
 A false pretence, being a misrepresentation, may be made in any of 
 the ways in which ideas may be communicated from one person to 
 anotlier. It is true tluit the eminent jurist before referred to in the 
 cases cited held that it could be made only by verbal communications, 
 either written or oral. If this be correct, no act or gestures, however 
 significant and impressive, could come within the statute ; and mutes, 
 though capable of conveying their ideas and intentions in tlie most clear 
 and forcible manner, could hardly be brought witiiin its prohibition. 
 Can it make any difference in law or conscience whether a false repre- 
 sentation be made by words or b}' the expressive motions of the dumb? 
 Each is a languasfe. Words are but the signs of ideas, and if the 
 ideas are conveyed, the channel of communication, or the garb in 
 which they are clotlied, is but of secondary importance. And we feel 
 bound to dissent from this part of these decisions. In this we are 
 supported by the English cases. Rex v. Stor}', Russ. & Ryan, 81 ; 
 Rex v. Freeth, ib. 127. 
 
 The representation is inferred from the act, and the pretence may be 
 made bj- implication as well as by verbal declaration. In the case at 
 bar the defendant presented his own checks on a bank with which he 
 had an account. What did this impl}-? Not necessarily that he had 
 funds there. Overdrafts are too frequent to be classed with false pre- 
 tences. A check, like an order on an individual, is a mere request to 
 pa}- ; and the most that can be inferred from passing it is, that it will 
 be paid when presented, or in other words that the drawer has in the 
 hands of the drawee either funds or credit. If the drawer passes a 
 check to a third person, the language of the act is, that it is good and 
 will be dulv honored ; and in such case, if he knew that he had 
 neither funds nor credit, it would probably be holden to be a false 
 pretence. 
 
 In the case of Stuyvesant, 4 City Hall Recorder, 156, it was decided 
 that the drawing and passing a check was not a false pretence. But in 
 Rex r. Jackson, 3 Campb. 370, it was ruled that the drawing and pass- 
 ing a check on a banker with whom the drawer had no account and 
 which he knew would not be paid, was a false pretence within the 
 statute. This doctrine appears to be approved by all the text writers, 
 and we are disposed to adopt it. Roscoe on Crim. Ev. (2d ed.) 419. 
 
 But to bring these cases within the statute, it must be shown that the 
 drawer and utterer knew that the check would not be paid, and in the 
 cases cited it appeai*ed that he had no account with the banker. In 
 these respects the case at bar is very distinguishable from the cases 
 cited. If the checks in question had been passed to a third pei'son, it 
 could not be said that the defendant knew that they would not be paid. 
 On the contrar}-, he had an open account with the bank, and although 
 he knew there was nothing due to him, yet he might suppose that they 
 would be paid ; and the fact that he presented them himself, shows 
 that he did not know that they would be refused. 
 
 The defendant presented the checks himself at the counter of the 

 
 782 COMMONWEALTH V. NORTON. [CHAP. X. 
 
 bank. They were mere requests to pay to him the amount named in 
 them, couched in the appropriate and only hxnguage known there, and 
 addressed to the person vvliose pecuHar province and duty it was to 
 know whether they ought to be paid or not. He complied with the 
 requests, and charged the sums paid to the defendant, and thus created 
 a contract between the parties. Upon this contract the bank must rely 
 for redress. 
 
 This case lacks the elements of the English decisions; and we 
 think it would be an unwise and dangerous construction of the statute 
 to extend it to transactions like this. The case may come pretty near 
 the line which divides private frauds from indictable offences ; and at 
 first we were in doubt on which side it would fall. But, upon a careful 
 examination, we are well satisfied that it cannot properly be brought 
 within the statute. Verdict set aside and new trial granted.^ 
 
 COMMONWEALTH v. NORTON. 
 
 Supreme Judicial Court of Massachusetts. 1865. 
 
 [Reported 11 Allen, 266.] 
 
 Indictment for obtaining money under false pretences. The first 
 count charged that the defendant falsely pretended to Charles Connell 
 that a few days before he, the defendant, was in Connell's place of 
 business and had two drinks, and gave to Connell five dollars, from 
 wdiich Connell was to take twenty cents, but that Connell did not re- 
 turn any change ; and Connell, believing said false representations, 
 and being deceived and induced thereby, paid to Norton four dollars 
 and eighty cents ; whereas in truth Norton had not given the five 
 dollars to Connell, and the various representations of Norton were all 
 false. 
 
 There were three other counts charging similar transactions with 
 other and different persons. 
 
 The defendant pleaded guilty to this indictment in the Superior Court, 
 and thereupon Lord, J., deeming the questions of law arising thereon, 
 as to whether the allegations of the indictment constituted an indictable 
 offence, so important and doubtful as to require the decision of this 
 court, reported the same, by the consent and desire of the defendant. 
 
 No counsel appeared for the defendant. 
 
 Reed, A. G., for the Commonwealth, cited Commonwealth v. Drew, 
 19 Pick. 182; The People v. Johnson, 12 .Johns. 293; Young -y. The 
 King, 3 T. R. 102 ; Rex v. Wheatly, 2 Burr. 1128. 
 
 Dewey, J. It seems to us that the present case is one which the 
 
 1 See Rex v. Parker, 7 C. cS; P. 825; People v. Wasservogle, 77 Cal. 173; Barton 
 r People. 135 111. 405. Compare Com. i-. Schwartz (Ky.) 18 S. W. 358. — Ed.
 
 SECT. III.] COMMONWEALTH V. WIIITCOMB. 783 
 
 court may properly consider as not embraced within the intention of 
 the franiers of the statute punishing the obtaining of goods by wilfully 
 false pretences. The case as presented by the indictment is the naked 
 case of a wilfully false allirmation, made to a party who had like 
 means of knowledge whether the allirmation was true or false as the 
 party who made it. The indictment alleges the false statements to 
 have been that the same person alleged to have been d(;frauded had 
 on a previous day named received of the defendant a certain bankbill 
 for the payment of certain " drinks" furnished to the defendant, and 
 had not given back any change. The case was one of a demand of 
 money as of right, growing out of what might have been an illegal sale 
 of liquors, and was yielded to by the seller, lie being personally connected 
 with all the alleged facts, and voluntarily submitting to the demand 
 thus made upon him. It was said by this court in Commonwealth c. 
 Drew, 19 Pick. 184, that " although the language of the statute (St. 
 1815, c. 136) is very broad, and in a loose and general sense would 
 extend to every misrepresentation, however absurd or irrational or 
 however easily detected ; yet we think the true principles of construc- 
 tion render some restriction indispensable to its proper application. 
 ... It may be difficult to draw a precise line of discrimination appli- 
 cable to every possible contingency, and we think it safer to leave it 
 to be fixed in each case as it may occur." 
 
 These remarks apply equally to Gen. Sts. c. 161, § 54, and in the 
 opinion of the court the facts alleged in this indictment do not present 
 a case which should be held to fall within the spirit and purpose of 
 the statute. "We are aware that some of the English judges have given 
 a more extended construction of their statute in cases that have there 
 arisen. Judgment arrested.^ 
 
 /^ 
 
 1 
 
 COMMONWEALTH v. WHITCOMB. 
 Supreme Judicial Court of Massachusetts. 1871. 
 
 [Reported 107 Massachusetts, 486.] \ 
 
 Chapman, C. J. By the Gen. Stats, c. 161, § 54, whoever " design- 
 edly, by a false pretence or by a privy or false token, and with intent 
 to defraud, obtains from another person any propert}'," &c., " shall be 
 punished," &c. The defendant falsely pretended to the Reverend Mr. 
 Peck, a Methodist clergyman, that he was himself a Methodist clergy- 
 man, and pastor of a Methodist church in Waterville, Kansas, and that 
 on the preceding Lord's day he had preached in the church of the Rev- 
 erend Charles Fowler, of Chicago ; that he was poor, penniless, and 
 
 1 Contra Reg. v. Woolley, 1 Den. C. C. 559 ; Reg. r. Jessop, 7 Cox C. C. 399. See 
 Reg i; Coulson, 1 Deu. 0. C. 'J'ji!. Compare Com. v. Lee, 149 Mass 181. — Ed.
 
 / 
 
 V 
 
 \ 
 
 7 84 COMMONWEALTH V. HAHKINS. [CHAP. X. 
 
 utterl}' destitute, and had that da}' been robbed of all his money ; and 
 he thereby obUiiiied of Mr. Peck six dollars as a charity. He after- 
 wards admitted that these representations were false. His only defence 
 Is, that the statute does not include cases where the money is parted 
 ivitli as a charitable donation. 
 
 But it is obvious that the case comes within the words of the statute. 
 It comes also within the reason of the statute. There is as much reason 
 for protecting persons who part with their money from motives of benev- 
 olence, as those who part with it from motives of self-interest. The 
 law favors charity as well as trade, and should protect the one as well 
 as the other from imposture by means of false pretences. Obtaining 
 money b^' means of letters begging for charity on false pretences is held 
 to be within the P^nglish statute (7 & 8 Geo. IV. c. 29, § 53), which is 
 quite similar to ours. Regina c. Jones, 1 Denison, 551 ; Regina v. 
 Hensler, 11 Cox Crim. Cas. 570. 
 
 A contrary doctrine has been held in New York. People v. Clough, 
 17 Wend. 351. The court admitted that the crime was of a dark moral 
 grade, and was within the words of tlie statute of New York, which was 
 copied from the English statute of 30 Geo. II. c. 24. They adopted 
 that construction chiefly' on the ground that the preamble to the statute 
 referred to trade and credit. But our statute, like the existine Eng-lish 
 statute, refers to no such matter, and is not restricted by any preamble. 
 
 Exceptions overruled. 
 
 COMMONWEALTH v. HARKINS. 
 s Supreme Judicial Court of Massachusetts. 1886. 
 
 [Reported 128 Massachusetts, 79.] 
 
 Colt, J.^ The defendant was indicted for obtaining money from the 
 city of Lynn by false pretences. He moved to quash the indictment on 
 the ground that it did not set forth an offence known to the law. 
 
 It is alleged in substance that the defendant falsely represented to 
 the cit}' of Lynn, through its agent, the city solicitor, that a street 
 which the city was bound to repair had been suffered to be out of repair, 
 and that the defendant, while travelling thereon with due care, was in- 
 jured by the defect ; that the defendant at the same time exhibited an 
 injuiy to his foot and ankle, and represented that it was caused b}' the 
 alleged defect. It is further alleged that the city and its solicitor were 
 deceived by these representations, and, being induced thereb}', agreed 
 to the entry of a judgment against the cit}' in a suit then pending in 
 favor of the defendant in this case ; and upon the entry thereof paid th» 
 amount of the same to him. It is not alleged that the suit was to 
 
 1 Tha opinions only are given ; they suflic'pntly state the case.
 
 SECT. III.] COMMONWEALTH V. IIARK'INS. 785 
 
 recover damages on account of the defendant's injury from the alleged 
 defect ; but we assume that this was so, for otlierwise there could be no 
 possible connection, immediate or remote, between the pretences 
 charged and the payment of the money in satisfaction of the judgment 
 lecovered. 
 
 In the opinion of a majorit}- of the court, this indictment is defective. 
 The facts stated do not constitute the otfence of obtaining money by 
 false pretences. The allegations are, that an agreement that judgment 
 should be rendered was obtained by the pretences used, and that the 
 money was paid by the city in satisfaction of that judgment. _lJ;is.not 
 alleged that, after the judgment was rendered, any false pretences were 
 used to obtain the money due upon it ; and, even with proper allega- 
 tions to that effect, it has been held that no indictment lies against one 
 lor obtaining by such means that which is justly due him. There is 
 no legal injury to the party who so pays what in law he is bound to 
 pay. Commonwealth r. McDuffj-, 126 Mass. 467; People v. Thomas, 
 3 Hill, IG'J ; Rex o. Williams, 7 Car. & P. 354. A judgment rendered 
 by a court of competent jurisdiction is conclusive evidence between the 
 parties to it that the amount of it is justl}' due to the judgment credi- 
 tor. Until the judgment obtained by the defendant was reversed, the 
 city was legally' bound to pay it, notwithstanding it may have then had 
 .knowledge of the original fraud b}' which it was obtained ; and with or 
 without such knowledge it cannot be said that the money paid upon it 
 was in a legal sense obtained by false pretences, which were used only 
 to procure the consent of the city that the judgment should be rendered. 
 
 The indictment alleges the fact of a judgment in favor of the defend- 
 ant, which if not conclusive as between the parties to this criminal pros- 
 ecution, is at all events conclusive between the parties to the transac- 
 tion. To hold that the statute which punishes criminalh' the obtaining 
 of propert}' b}' false pretences, extends to the case of a paj-ment made 
 b}' a judgment debtor in satisfaction of a judgment, when the evidence 
 onl}' shows that the false pretences were used to obtain a judgment, as 
 one step towards obtaining the mone}-, would praeticalh" make all civil 
 actions for the recovery- of damages liable in such cases to revision in 
 the criminal courts, and subject the judgment creditor to prosecution 
 criminally for collecting a valid judgment, whether the same was paid 
 in money or satisfied b}' a lev}' on property'. 
 
 SouLE, J. I am obliged to differ from the majority' of the court, and 
 am authorized to state that the Chief Justice and Mr. Justice Ames 
 concur with me. As the case involves questions of importance in the 
 administration of public justice, it has seemed to us proper to state our 
 views of them. In doing this, it is necessar}- to discuss several points 
 which are raised b}' the exceptions, but are not treated of in the opinion 
 of the court, because they have become immaterial to the decision which 
 has been reached b}' the majorit}-. 
 
 The indictment sets forth that the defendant, with intent to cheat and 
 defraud, made certain false representations and pretences, as to matters
 
 786 COMMONWEALTH V. HARKINS. [CHAP. X. 
 
 within his knowledge and relating to existing facts as well as to past 
 transactions, concerning which neither the cit}' of Lynn nor its agent 
 had the means of knowing the truth, and tliat, b}' means of these repre- 
 sentations and pretences, the cit}', believing them to be true, was 
 induced to and did part with its money to the defendant. It further 
 sets forth that the defendant received the money by means of the false 
 pretences, and with intent to cheat and defraud the city of Lynn, and 
 til at the several representations and pretences were not true. It there- 
 fore charges an offence. Commonwealth v. Hooper, 104 Mass. 549 ; 
 Commonwealth v. Parmenter, 121 Mass. 354. 
 
 The additional allegations as to the consent to the entry of judgment 
 and the satisfaction of the judgment are merel}' a narration of the 
 methods by which the parties proceeded in paying and receiving the 
 money, and are wholly unnecessary, but they do not charge another 
 offence, nor make the indictment bad for duplicity. The obtaining of 
 the money by false pretences is the gist of the offence, not the obtaining 
 of the judgment. 
 
 The fact that the judgment obtained by the defendant remains unre- 
 versed constitutes no objection to the indictment. It is true that,, as a 
 matter of public policy, an unreversed judgment is conclusive between 
 the parties and their privies, in accordance with the maxim, Interest 
 reipithlicce ut sit finis litium. And this principle goes so far that one 
 cannot sustain an action against another for obtaining a judgment against 
 him by means of conspiracy and fraud, if he had an opportunity to be 
 heard at the trial of the cause in which tlie judgment was obtained. 
 Castrique v. Behrens, 3 E. & E. 709 ; Huffer y. Allen, L. R. 2 Ex. 15. 
 
 But it is equally true that a judgment is conclusive only between the 
 parties and their privies, and that strangers are not bound nor affected 
 by it. To the indictment the Commonwealth is a party, but Avas a 
 stranger to the action between the city of Lynn and the defendant, in 
 which the judgment was recovered. That judgment is, therefore, no 
 evidence against the Commonwealth that the defendant was entitled to 
 recover anytliing of the city. It has no bearing on the case at bar, 
 except as being a part of the machinery employed in obtaining the 
 money wrongfully. Its existence is no bar to prevent the Common- 
 wealth from showing, in its prosecution of crime, that it and the money 
 were ol)tained by false pretences. To hold otherwise would be to pro- 
 vide a shield for the criminal in his own crime. There is notliing in 
 this view of the law, which conflicts with the decision in the recent case 
 of Commonwealth v. McDuffy, 126 Mass. 467. It was there held, that 
 one who obtains only what is due him by false pretences commits no 
 punishable offence. It was not held that tiie Commonwealth was 
 estopped to prove the truth, by a judgment to which it was not a party. 
 The general doctrine, that only parties and privies are concluded by a 
 judgment, is too familiar to require the citation of authorities in its 
 support. An application of it peculiarly pertinent to the case at bar 
 was made in The Duchess of Kingston's case, 20 Howell's St. Tr. 355.
 
 SECT. III.J COMMONWEALTH V. HARKINS. 787 
 
 The indictment is not defective on the ground of remoteness of the 
 false representations from the obtaining of the money. Ordinarily the 
 question of remoteness is one for the jury, and can be presented to 
 this court only on a report of the evidence after a refusal bj- the presid- 
 ing judge to rule that the evidence will not warrant a conviction. As 
 an objection to the indictment, it is in substance that the indictment 
 shows that the monej- was obtained ou a valid judgment, and therefore 
 cannot be held to have been obtained b^- the false pretences. But this 
 point is not tenable. The test is the direct connection between the pre- 
 tence and the payment of the mone}-. There was no purpose in either 
 part}- to the transaction that the matter should go to the extent of 
 entering up the judgment, and rest there ; the judgment was, in and of 
 itself, of no importance. It was only a means to an end, and it was, 
 for the jury to say whether the false pretences were an inducement for 
 the payment. 
 
 In the case of Regina v. Gardner, Dearsly & Bell, 40, and 7 Cox 
 C. 136, cited by the defendant, it was held that the false pretence was 
 exhausted by obtaining a contract for lodging, and did not extend to 
 the contract for board also, made after the defendant had been a lodger 
 with the prosecutor for more than a week. In Regina v. Bryan, 2 F. 
 &. F. 567, board and lodging had been obtained by means of false pre- 
 tences, and, sometime after tlie contract therefor, the prisoner borrowed 
 sixpence of the person with whom he had made the contract and was 
 lodging, and it was held that the money was not obtained by the false 
 pretence. 
 
 But in Regma y. Martin, L. R. 1 C. C. 56, it was held that the ques- 
 tion of remoteness was for the jury, and that a conviction was warranted 
 when the prisoner had ordered a van to be made, under the false pre- 
 tence that he acted for the Steam Laundry Company of Aston, which 
 he represented to be composed of leading men of Birmingham, and 
 before it was delivered to him countermanded the order, and afterward 
 agreed to receive it if certain alterations were made in it, which were 
 made, and it was subsequently delivered. In that case it is said that, 
 in order to justify a conviction, there must be a direct connection be- 
 tween the pretence and the delivery of the chattel, and that whether 
 there is such a connection or not is a question for the jury ; and, fur- 
 ther, that since the cases of Regina v. Abbott, 1 Denison, 273, and 
 Regina v. Burgon, Dearsly & Bell, 11, it is impossible to contend seri- 
 ously that the case is not within the statute, because the chattel is 
 obtained under a contract induced b}' the false pretence. 
 
 The false representations and pretences set forth in the indictment 
 are of such a character as to bring the transaction within the statute. 
 It is sometimes said that a naked lie is not within the statute ; and, as 
 applied to particular cases, this is true ; as when one falsely represents 
 to a saloon-keeper that, a few daj's before, he gave the keeper five 
 dollars out of which to take twenty cents in paj-ment for drinks, and
 
 788 COMMONWEALTH V. HARKINS. [cHAP. X. 
 
 that the keeper did not return any change ; Commonwealth v. Norton, 
 11 Allen, 266; or where one draws his check on a bank in which he 
 has no mone}-, and presents it at the bank for payment. Common- 
 wealth V. Drew, 19 Pick. 179. In those cases the lie is told to one who 
 has the same means with the liar of knowing what the fact is. In the 
 case last cited it was said that passing a check drawn on a banker with 
 whom the drawer has no account, and which he knew would not be 
 paid, would be within the statute ; and the English decisions are so. 
 The ditference between the two is merely that in one case the lie or false 
 pretence is made to one who is in a situation to know the facts, and in 
 the other to one who is not in such situation. The true rule seems to 
 be, that a case is within the statute if the alleged false pretence is an 
 intentionally false representation as to an existing Tact or past trans- 
 action, Uiade to one who has not the means of knowing the truth in the 
 premises, for the purpose of inducing him thereby to part with his 
 property. 
 
 This case comes up on exceptions to a refusal to quash the indictment, 
 and it is argued that there w-as no such relation of trust and confidence 
 between the defendant and the cit}' of Lj-im as would justifj- a belief in 
 the representations made, and la}' a foundation for an indictment under 
 the statute. But, as has already been said, there are sufficient allega- 
 tions to constitute a good indictment, and the question whether they 
 were proved or not is one of evidence, and not of pleading. Moreover, 
 it is not true, as matter of law, that one who is negotiating a settlement 
 of an alleged claim for damages cannot bring himself within the statute 
 by making false representations and obtaining money thoreb}'. In 
 Regina v. Copeland, Car. & M. 516, the prisoner, a married man, who 
 had obtained a promise of marriage from a single woman which she 
 refused to fulfil, threatened her with an action at law for breach of 
 her promise, and added that he could thereby take half her fortune 
 from her, and she, believing the statement and threat, paid him one 
 hundred pounds sterling. The prisoner was convicted, and tiie convic- 
 tion was sustained by Lord Denman and Mr. Justice Maule. 
 
 The question whether the false pretences were believed and induced 
 the payment is for tlie jur}'. To quash the indictment on the ground 
 that the circumstances of the transaction would not justify a conviction, 
 would be to quasli it for matters dehors the record. 
 
 That the wrong is a private one is no objection to the prosecution, 
 althougli it has been said in man_y cases that the statute is not intended 
 for the punishment of ever}- private wrong. In all the cases above 
 cited in which a conviction was sustained the wrong was a private one, 
 in the same sense as in the case at bar ; it is a public wrong in this, as 
 in those cases, in that it is within the statute which provides for pun- 
 ishment of the wrongdoer. The purpose of the statute was to extend 
 the punishment to cases which were not reached by the common law, 
 and its language is broad and comprehensive. Its operation ought not
 
 SECT. III.J HEGINA V. LARNER. 789 
 
 to be limited b}' phrases of indefinite meaning which fail to state any 
 principle of construction. 
 
 Exceptions sustained. 
 
 REGINA V. LARNER. 
 
 Central Criminal Court. 1880. 
 
 [Reported 14 Cox. C. C. 497.] 
 
 William Larner was charged under an indictment containing 
 counts for false pretences, forgery, and uttering. The first count set 
 forth the false pretences as follows: "That the said William Larner 
 was member of a certain club called and known as the Myddleton 
 Swimming and Athletic Club, and that a certain letter which he, the 
 said William Larner, had caused to be received by one Alfred Ernest 
 Endin, had then been written and sent by one Henry Green, the secre- 
 tary- of the said club, and that he, the said William Larner, as member 
 and competitor in certain club swimming races and matches by mem- 
 bers of the said club, had been allowed to start from the starting point 
 twent3'-five seconds before certain other competitors." 
 
 Purcell for the prosecution. 
 
 Keith Frith and Hundle Lievey for defendant. 
 
 On the 23rd day of August a swimming handicap took place at the 
 Surrey Count}' Baths. Entries were to be made previousl}- to Alfred 
 Endin, Esq., and competitors to be handicapped b}' qualified persons. 
 A competitor's ticket was issued by Mr. Endin to each accepted entry. 
 The length of the course was 100 3'ards, and there being a good many 
 entries, the race was swum in heats. 
 
 A programme was printed and circulated, containing, amongst other 
 matters, the names of the competitors and the arrangement of the 
 various heats, and on that programme appeared the name of W. Larner, 
 to whom a start of twenty seconds had been assigned. 
 
 Some days before the issuing of the programme, Mr. Endin received 
 the following letter : 
 
 Nelson Club, 90, Dean-street, Oxford-street. 
 August 19, 1880. 
 Sir, — I inclose entrance fee for another entr}' for your 100 j'ards 
 handicap. W. Larner (Middleton Swimming and Athletic Club) in 
 Club races receives twenty-five seconds from scratch. — I remain, sir, 
 
 Yours respectfully, 
 
 H. Green, Hon. Sec.
 
 790 REGINA V. LARN^ER. [CHAP. X. 
 
 Another letter of the same kind had been received by Mr. Endin, 
 entering one Binns for the same race. The letters were received in the 
 usual course through the Post Office. The two entries of Larner and 
 Binns were accepted, and the entrance fee of 2s. 6c?. each paid. Mr. 
 Endin stated that he knew nothing about Larner or his accomplish- 
 ments as a swimmer; that he received his entry in consequence of the 
 representations contained in the letter, and that the start of twenty 
 seconds was apportioned to him for the like reason. He further stated 
 that he handed Larner a competitor's ticket ; that Larner swam in 
 the competition, and after being second in his own heat, won the final 
 easil}'. It was believed that Larner could have won the race from 
 scratch. 
 
 For the prisoner it was objected that the false pretences were too 
 remote, that if he obtained anything thereb}-, it was the competitor's 
 ticket, and not the cup ; that the cup was obtained bj' his own bodily 
 activit}' ; and that the case fell within Reg. v. Gardner (1 Dears. & B. 
 C. C. p. 40 ; 7 Cox C. C. 136), in which case the prisoner had at first ob- 
 tained lodgings only by a false representation, and after he had occu- 
 pied the lodgings for a week he obtained board ; and it was held that 
 the false pretences were exhausted b}' the contract for lodging, the ob- 
 taining board not having apparently- been in contemplation when the 
 false pretence was made. 
 
 For the prosecution it was urged that the false pretence was a con- 
 tinuing one, that the winning of the cup was clearly in the contempla- 
 tion of the prisoner when he entered for the race, and that the judgment 
 of WiLT-ES, J., in Reg. v. Gardner, citing Reg. v. Abbott and Reg. 
 V. Burgess, was an authority the other way. They also cited Reg. v. 
 Martin (L. Rep. 1 Cr. Cas. Res. 56 ; 10 Cox C. C.*^383). 
 ^ Held, by the Common Serjeant, after conferring with Stephen, J.^, 
 in the Old Court, that the objection must prevail as the false pretences 
 were too remote. 
 
 The prisoner was afterwards tried for uttering the letter, knowing it 
 to be forged, and convicted. 
 
 
 \ \
 
 SECT. III.] REGINA V. BUTTON, 791 
 
 REGINA V. BUTTON. 
 Court for Crown Cases Reserved. 1900. 
 
 [Reported 1900, 2 Q. B. 597.] 
 
 Case stated by the recorder of Lincoln. 
 
 The prisoner was charged with attempting to obtain goods by false 
 pretences. 
 
 On August 26, 1899, there were athletic sports at Lincoln, for which 
 prizes were given. Among the contests were a 120 yards race and a 
 440 yards race, in respect of each of which a prize was given of the 
 value of ten guineas. 
 
 Among the names sent in for these two contests was the name of 
 " Sims, C, Thames Ironworks A. C," and two written forms of entry 
 were sent in to the secretary of the sports, containing (as appeared to 
 be usual) a statement as to the last four races in which Sims had run. 
 together with a statement that he had never won a race. These forms 
 were not sent by Sims, nor were the}" in his handwriting, and he knew 
 nothing of them. They were however signed in his proper name, and 
 with his true address, and contained a correct account of his last four 
 performances. The forms were proved to be not written b}' the 
 prisoner. 
 
 The performances of Sims were very moderate, and, as a fact, he 
 was only a moderate runner, and as a result the supposed Sims was 
 given b}' the handicapper of the sports a start of 11 yards in the 120 
 yards race and a start of 33 yards in the 440 ^-ards race. 
 
 Sims was ill at Erith when the races were run, and was not at Lin- 
 coln at all, and he was personated by the prisoner, who was a fine 
 performer and won both contests \evy easily. 
 
 The suspicion of the handicapper being aroused, he asked the 
 prisoner, after the 120 yards race, whether he was really Sims, whether 
 the performance given in the entr}- form was really his, and whether he 
 had never won a race. To these questions the prisoner answered that 
 he was Sims, that the performances were his own, and that he had 
 never won a race. All these statements were untrue, and in particular 
 he had won a race at Erith in his own name. The handicapper was 
 called as a witness, and swore that he would not have given the prisoner 
 such favorable starts if he had known his true name and performances. 
 
 These facts were all admitted, and no evidence was called to contra- 
 dict them. It was, however, suggested for the defence that the prisoner 
 might have done it for " a lark," or might have possibly done it in 
 order to keep himself in good training. In summing up the case to 
 the jur}', the recorder told them that if the prisoner did it for " a lark," 
 without an}' criminal intent, and without intending to get the prizes, 
 the}' ought to find him not guilty ; but that if he made the false repre- 
 sentations wilfully, intentionally, and fraudulently, with intent to
 
 792 REGINA V. BUTTON, [CHAP. X. 
 
 obtain the prizes, the}- ought to find him guilty of attempting to obtain 
 them by false pretences. 
 
 The jury found a verdict of guilt}'. 
 
 It was contended for the prisoner that, on the authority of Reg. v. 
 Larner, 14 Cox C. C. 497, the obtaining the prizes was too remote from 
 the false representation and that he ought to be acquitted. The 
 recorder overruled the objection, but agreed to state this case. A case 
 decided by Lord Lindley at Nottingham Assizes, Reg. v. Dickenson, 
 (1879) Roscoe's Criminal Evidence, 432, 433, 12th ed. ; 2 Russell on 
 Crimes, Book III., cap. xxxii., s. ii., p. 511, 6th ed. ; Times of July 
 26, 1879, appeared to be contrary to Reg. v. Larner, supra. 
 
 The questions of law for the opinion of the Court were : — 
 
 (1.) Whether the recorder had summed up the case correctly to the 
 jury. 
 
 (2.) Whether the attempt to obtain the prizes was too remote from 
 the pretence. 
 
 J. Percival Hughes, for the defendant. The conviction is bad. 
 There was no completed criminal offence, for, assuming that the de- 
 fendant did make the representations alleged for the purpose of obtain- 
 ing a longer start in the handicaps than he would have got if he had 
 entered in his own name and disclosed his previous performances 
 truthfuU}', still there is nothing to shew that he may not have done 
 what he did for amusement, or to keep himself in training, for it is not 
 shewn that he ever applied for the prizes, and even if in the first 
 instance he intended to get the prizes, which is not cleariv shewn, still 
 until he applied for them there was a locus poenitentiae, and he mi<yht 
 never have taken the prizes at all. 
 
 [Mathew, J. Those are questions of fact, and the verdict of the 
 jury negatives the suggestions on behalf of the defendant.] 
 
 The intention to obtain the prizes is too remote from the representa- 
 tions. What he really obtained was more favourable terms in handi- 
 caps. He came in first owing to his good running. Reg. v. Larner, 
 supra, is a strong authorit}' against the conviction. [He also referred 
 to Reg. V. Eagleton, (1855) 6 Cox C. C. 559; 24 L. J. (M.C.) 158; 
 Reg. ('. Gardner, (1856) 7 Cox C. C. 136 ; Dears. & B. C. C. 40.] 
 
 3Io7itague Shearman ( T. Hollis Walker with him), for the prosecu- 
 tion, was not called on. 
 
 Mathew, J. The conviction in this case must be upheld. The case 
 of Reg. V. Larner, supra, is relied upon as an authority for the defend- 
 ant. In that case question was one of fact, and the Common Serjeant 
 directed the jury according to his impression of the view of the law 
 taken by Stephen J., whom it appears from the report he had consulted ; 
 but that case is contrary to the ruling of Lord Lindley in a case tried 
 before him at the Nottingham Assizes, supra, and I am clearh- of 
 opinion that Lord Lindley was riglit. The questions to be decided in 
 the present case were pure questions of fact, namely, whether the 
 intention of the defendant, when he entered for the races, was to obtain
 
 SECT. III.] REGINA V. BUTTON. 793 
 
 the prizes, and whether he made the representations with that intention. 
 It appears from the case that he pretended to be a man who had never 
 won a foot-race, and he was handicapped on the faith of that state- 
 ment, as is shewn by the evidence given by the handicapper; but it 
 also appears from the case that his statement was false, for he had won 
 races. Tiien it was suggested that lie competed in the name of Sims, 
 as it is put in the case, " for a lark " ; but that question was for the 
 jury, and they have negatived the suggestion. It was also contended 
 that his coming in first in the races ^as owing to his own good run- 
 ning ; but it was also owing, in part at least, to the false pretences, for 
 by means of tiie false pretences he obtained a longer start than he 
 would have had if his true name and performances had been known. 
 It is also said that some other act had to be done in order to make the 
 offence complete, and that he could not rightly be convicted because it 
 was not shewn that he had applied for the prizes, and that the criminal 
 intention was exhausted. The argument is exceedingly subtle, but 
 unsound. In fact, he was found out before he had the opportunity of 
 applying for the prizes, as no doubt he otherwise would have done. 
 The pretences which the prisoner made were not too remote, and the 
 conviction was good. 
 
 »"^ 
 
 Lawrance, J., concurred. 
 
 Wright, J. I am of the same opinion. If nothing more had been 
 shewn than that the defendant had entered for the races in a false 
 name, the case would have been different. If he did not run or claim 
 the prize, it would be difficult to say tliat there was an actual attempt to 
 obtain it. But here in effect he did claim the prize. 
 
 Kennedy and Darling, JJ., concurred 
 
 Conviction affirmed. 
 
 Note on Intent to Defraud. — As to the requisite intent to defraud see Rex v. 
 Walieling, Russ. & Ry. 504, supra; Rex v. Naylor, L. R. 1 C. C. R. 4, 10 Cox C. C. 
 149 ; Com. v. Schwartz (Ky.), 18 S. W. 358. See also Penny v. Hanson, 16 Cox C. C. 
 173. This was a prosecution under 5 Geo. IV. ch. 83, s. 4, for "pretending or pro- 
 fessing to tell fortunes or using any subtle craft to deceive and impose on " the prose- 
 cutor. The defence was that no evidence had been presented of an intent to deceive. 
 The evidence showed that defendant offered to tell the prosecutor's fortune by means 
 of astrology. Denman, J., said : " This is an instance to which the doctrine res ipsa 
 loquitur applies. It is nonsense to suppose that in these days of advanced knowledge 
 the appellant really did believe he had the power to predict a man's future by know- 
 ing at what hour he was born, and the position of the stars at the particular moment 
 of his birth. No person who was not a lunatic could believe he possessed such power. 
 There was therefore no need on the part of the prosecution to negative his belief in 
 such power or capacity. The magistrate rightly drew an inference that the appellant 
 had an intent to deceive and impose on the prosecutor." — Ed.
 
 794 REGINA V. WADE. [CHAP. XI. 
 
 CHAPTER XI. 
 RECEIVING STOLEN PROPERTY. 
 
 SECTION I. 
 
 The Receiving. 
 
 REX V. RICHARDSON. 
 Old Bailey. 1834. 
 
 \RepoTted 6 Carringlon ^' Pai/ne, 335.] 
 
 Four of the prisoners were indicted for sacrilegiously breaking and 
 entering a chapel, called St. Philip's Chapel, in the parish of Clerken- 
 well, and stealing therein certain things. The other prisoner was 
 charged as receiver.^ 
 
 Taunton, J. (in summing up with respect to the receiver), said: 
 M^hether he made any bargain or not is a matter of no consequence. 
 If he received the property for the mere purpose of concealment with- 
 out deriving any profit at all he is just as much a receiver as if he had 
 purchased it. It is a receiving within the meaning of the statute. 
 "" Verdict, three of the prisoners guilty and two of them not guilty.^ 
 
 REGINA V. WADE. 
 Liverpool Assizes. 1844. 
 
 [Reported 1 Carr'mgton & Kirwan, 739.] 
 
 The prisoners "Wade and Kenyon were indicted for having broken 
 and entered the house of Thomas Worsley at Warrington, and having 
 stolen therefrom one watch, two handkerchiefs, and other articles his 
 property, the prisoner Leigh being indicted for receiving the watch and 
 the handkerchiefs, knowing them to have been stolen. 
 
 The prisoners Wade and Kenyon pleaded guilty. The prisoner Leigh 
 pleaded not guilty and was tried. 
 
 1 Part of the case not involving any question of receivang is omittei 
 
 2 Ace. Com. V. Bean, 117 Mass. 141.— Ed.
 
 SECT. I.] BEGINA V. MILLER. 795 
 
 It was proved by the servant of a pawnbroker that the wife of the 
 prisoner Leigh had pledged the stolen watch on a day subsequent to 
 the robbery, and James Jones, a constable of Warrington, also proved 
 that he had seen all the three prisoners together, they being in custody 
 together at Manchester, when Leigh said that he had left Kenyon's house 
 with Kenyon before the robbery, that he had afterwards gone to Dun- 
 ham (about eight miles from Manchester) and returned. Leigh was 
 then dischargecL Ikit the witness subsequently went to Manchestei 
 again, and caused him to be again apprehended ; and Leigh's wife then, 
 in the presence of Leigh, told this witness that she had taken the watch 
 and pawned it for 10s. She added that Leigh had also told her to take 
 two handkerchiefs, and that, as she was about to go with them, a police^ 
 man came, and she left them in a cellar next door to her husband's 
 house. Upon that information, the witness went to the cellar and 
 found the handkerchiefs. Afterwards, when Leigh was in custody in 
 the lockups with Wade, Leigh told the same witness that while he 
 (Leigh) was before with Wade in the same place. Wade had told him 
 (Leigh) that he had " planted" the watch and handkerchiefs under a 
 flag in the soot-cellar in his (Leigh's) house ; and that when he (Leigh) 
 was discharged, as before mentioned, he had gone and taken the things, 
 and had desired his wife to pledge the watch for as much as she could 
 get upon it. 
 
 The watch and handkerchiefs were identified as the property of the 
 prosecutor. 
 
 Pollock, C. B. I doubt whether, when the possession has been 
 transferred by an act of larceny, the possession can be considered to 
 remain in the owner. Were it so, then every receiver of stolen goods, 
 knowing them to be stolen, would be a thief ; and so on, in series from 
 one to another, all would be thieves. If this was an act done by the 
 ^prisoner (Leigh) in opposition to Wade, or against his will, then it 
 might be a question whether it were a receiving. But if Leigh took the 
 articles in consequence of information given by Wade, Wade telling 
 Leigh in order that the latter might use the information by taking the 
 goods, then it is a receiving. Verdict, guilty. 
 
 REGINA V. MILLER. 
 Crown Case Reserved, Ireland. 1854. 
 
 [Reported 6 Cox C. C. 353.] 
 
 Lefroy, C. J.,^ now delivered the judgment of the court. In this 
 case two questions have been reserved for our consideration. First, 
 whether there was sufficient evidence that Mary Miller had received 
 
 ^ The opinion only is given ; it suificiently states the case. 
 
 Un.. - 
 
 t-/
 
 796 EKGINA V. SMITH. [CHAP. XT. 
 
 the stolen property ; and, secondly, whether certain evidence regard- 
 ing the former dealings between the two prisoners, to the admissi- 
 bility of which no objection had been originally offered, had been 
 left to the jury with the proper view. The evidence in support of 
 the charge of receiving was this : the servant-maid of Mary Miller 
 was produced as a witness, and stated that her mistress kept a public- 
 house in the town of Fermoy. That Ellen Connors, the other prisoner, 
 entered the shop, and went behind the counter where she was ; that 
 her mistress called her into the sliop ; that Connors had then the pieces 
 of cotton in her hand, which Miller desired witness to take to the 
 pawn office and pawn, and that she did so accordingly ; that she 
 brought back the money which she then received, and gave it, in the 
 presence of her mistress, to Connors, who was then in the shop, but 
 that her mistress had never, with her own hand, received any part of 
 the money from her. The question was, whether this was a receiving 
 of stolen goods by the mistress? It appears to us that it was virtually 
 a receiving by Mary Miller, inasmuch as her servant, by her order and 
 direction, received the goods from the thief, took them to the pawn 
 office, and brought back tlie money to the thief. This, in our opinion, 
 was virtually as much a receiving of stolen goods as if her own hand, 
 and not that of her servant, had received them. No question can be 
 raised in this case involving the necessity of those subtle distinctions- 
 taken on former occasions, with respect to the continuance of the 
 possession of the goods in the thief, for the goods here were clearly 
 transferred to hands which were virtually those of INIary Miller her- 
 self. No question has been reserved relative to the sufficiency of the 
 evidence of guilty knowledge. We are of opinion that the evidence 
 was left to the jury by the assistant barrister in the way in v/hich it 
 ought to have been, and therefore that his decision on both points 
 ought to be affirmed.^ 
 
 REGINA V. SMITH. 
 
 Crown Case Reserved. 1855. 
 \ 
 
 [Rp.ported Dearsly C. C 494.J 
 
 The following case was reserved for the opinion of the Court of 
 Criminal Appeal by Mr. Edwin James, Q. C, Recorder of Brighton. 
 
 At the Quarter Sessions of the Peace for the borough of Brighton, 
 holden at the Town Hall in the said borough, before the Recorder of 
 tlie borough, on the 8th day of May, 1855, the prisoner, Thomas 
 Smith, was indicted for feloniously receiving a stolen watch, the prop- 
 erty of John Nelson, knowing the same to have been stolen. It was 
 
 2 Acr. Reg. V. Rogers, 37 L. J. M. C. 83.— Ed.
 
 SECT, l] REGINA V. SMITH. 797 
 
 proved that John Nelson, the prosecutor, l)etween eleven and twelve 
 o'clock on the night of the 12th of April iu this year, was in u public- 
 house called the *■' Globe " in Edward Street iu the said borough ; he was 
 in company with a prostitute named Charlotte Duncan, who lodged in 
 a room of a house No. 17 Thomas Street, Brighton, which belonged 
 to the prisoner, of whom she rented the room. 
 
 The prisoner and five or six other persons were present in the apart- 
 ment in the Globe Inn when the prosecutor and Charlotte Duncan 
 entered ; while the prosecutor was drinking in the " Globe," his watch, 
 being the watch named in the indictment, was taken from his persoq 
 by some one who forced open the ring which secured the watch to a 
 guard. 'V\\Q prosecutor heard the click of the ring and immediately 
 missed his watch, and taxed the prisoner as the thief. A policeman 
 was sent for and a partial search made, but the watch was not found. 
 The prisoner was present all that time, and also a man named Hollands 
 was present all the time. Soon after the loss of the watch the prose- 
 cutor and the girl Charlotte Duncan went together to Charlotte Dun- 
 can's room in Thomas Street. After they had been there together little 
 more than an hour the prisoner came into the room where they were, 
 and said to the prosecutor, " Was not you in the ' Globe,' and did not 
 you lose your watch?" The prosecutor said, "Yes." The prisoner 
 then said, "What would you give to have your watch back again?" 
 Prosecutor said, " I'd give a sovereign," Prisoner then said, " Well, 
 then, let the young woman come along with me, and I will get you 
 the watch back again." Charlotte Duncan and the prisoner then went 
 together to a house close by, in which the prisoner himself lived. 
 They went together into a room in which Hollands was. This was 
 nearly one o'clock. There was a table in the room ; on first going in 
 Charlotte Duncan saw^ there was no watch on the table, but a few 
 minutes afterwards she saw the watch there. The prisoner was close 
 to the table. She did not see it placed there, but she stated it must 
 have been placed there by Hollands, as, if the prisoner to whom she 
 was talking had placed it there, she must have observed it. The 
 prisoner told Charlotte Duncan to take the watch and go and get the 
 sovereign. She took it to the room in 17 Thomas Street, to the prose- 
 cutor, and in a few minutes the prisoner and Hollands came to that 
 room. Hollands asked for the reward. The prosecutor gave Hollands 
 half-a-crowni, and said he believed the watch was stolen, and told him 
 to be off. Hollands and the prisoner then left. The prisoner did not 
 then say an3^thing, nor did the witnesses see him receive any money. 
 Hollands absconded before the trial. The recorder told the jury that, 
 if they believed that when the prisoner went into the room 17 Thomas 
 Street and spoke to the prosecutor about the return of the watch, and 
 took the girl Duncan with him to the house where the watch was given 
 np, the prisoner knew that the watch was stolen ; and if the jury 
 believed that the watch was then in the custody of a person with the 
 cognizance of the prisoner, that person being one over whom the pris-
 
 798 REGINA V. SMITH. [CHAP. XI. 
 
 oner bad absolute control, so that the watch would be forthcoming if 
 the prisoner ordered it, there was ample evidence to justify them in 
 convicting the prisoner for feloniously receiving the watch. The jury 
 found the prisoner guilty, and, in answer to a question from the 
 recorder, stated that they believed that, though the watch was in 
 Hollands' hands or pocket, it was in the prisoner's absolute control. 
 
 Sentence was passed on the prisoner, but was respited until the 
 opinion of the court could be taken. 
 
 The question for the opinion of the court is, if the conviction of the 
 prisoner is proper. 
 
 This case was argued on the 2d day of June, 1855, before Lord 
 Campbell, C. J., Alderson, B,, Erie, J., Piatt, B., and Crowder, J. 
 
 No counsel appeared for the Crown. 
 
 Creasy, for the prisoner.^ 
 
 Lord Campbell, C. J. I think that the conviction was right. In 
 the first place the direction of the learned recorder was unexception- 
 able. According to the decided cases as well as to the dicta of learned 
 judges, manual possession is unnecessary. If we were to hold a con- 
 trary doctrine, many receivers must escape with impunity. Then it 
 has been held in decided cases, including Regina v. Wiley, 4 Cox C. C. 
 412, that there may be a joint possession in the receiver and the thief j 
 that is the ratio decidendi on which the judgment in that case pro- 
 ceeds. Then, was not there ample evidence to justify the jury in 
 coming to the conclusion at which they arrived? I think there was. 
 They might, it is true, have drawn a different conclusion, and have 
 found that Smith was the thief ; and if they had drawn that conclu- 
 sion, he would have been entitled to an acquittal. Another inference 
 which they might have drawn, and which would also have resulted in 
 a verdict of not guilty, was, that Hollands being the thief, the watch 
 remained in his exclusive possession, and that the prisoner acted as 
 his agent in restoring the watch to the prosecutor ; but the jury have 
 come to a different conclusion, and I think they were justified in so 
 doing. We have instances in real life, and we find it represented in 
 novels and dramas drawn from real life, that persons are employed to 
 commit larcenies and so deal with the stolen goods that they may be 
 under the control of the employer. In this case Hollands may have 
 been so employed by the prisoner, and the watch may have been under 
 the prisoner's control, and if so, there was evidence of a possession 
 both by Hollands and the prisoner. 
 
 Alderson, B. There was abundant evidence from which the jury 
 might come to the conclusion at which they arrived, although there was 
 evidence the other way. 
 
 Erle, J. The doubt in these cases has arisen as to the meaning of 
 the word " receive," which has been supposed to mean manual posses- 
 sion by the receiver. In Regina u. Wiley, Patteson, J., says, that a 
 
 1 The argument is omitted.
 
 SECT. I.] REGINA V. WOODWARD. 799 
 
 manual possession, or even a touch, is not essential to a receiving, 
 but that there nuist be a control over the goods l)y the receiver. Here 
 the question of control was left to the jury, and they expressly found 
 Xliat though the watcli was in Hollands' hand or pocket, it was in the 
 prisoner's absolute control. 
 
 Tlatt, B. There was some evidence that the prisoner might have 
 been the thief, aud the prosecutor charged hiui with being the thief ; 
 but a search was made aud tlie watch was not found, and it was proved 
 that Hollands absconded before the trial ; from that and the other facts 
 of the case, the jury might well find that Hollands was the thief and 
 the prisoner the receiver. 
 
 Ckow])eu, J. I also tliink that both the direction and the convic- 
 tion were right. There was sufficient evidence that Hollands was the 
 thief. The question is then put to the jury, Was the watch under the 
 control of the prisoner? And they say it was. That finding is suffi- 
 cient to support their verdict, and the conviction was right. 
 
 Conviction affirmed. 
 
 REGINA V. WOODWARD. 
 Crown Case Reserved. 1862. 
 
 [Reported 9 Cox C. C. 95.1 
 
 / 
 
 Case reserved for the opiuion of the Court of Criminal Appeal. At 
 the Quarter Sessions of the peace for the county of Wilts, held at Marl- 
 borough, on the 16th daj- of October, 1861, before me, Sir John Wither 
 Awdry, Bart., and others my fellows, Benjamin Woodward, of Trow- 
 bridge, in tlie county of Wilts, dealer, was found guilty of receiving 
 stolen goods, knowing them to have been stolen, and was thereupon 
 sentenced to nine calendar months' imprisonment with hard labor, and 
 the prisoner now is undergoing his sentence. 
 
 The actual delivery of the stolen propert}' was made b}- the principal 
 felon to tiie prisoner's wife, in the absence of the prisoner, and she 
 then paid Qd. on account, but the amount to be paid was not then fixed. 
 Afterwards the prisoner and the principal met and agreed on the price, \ 
 ■and the prisoner paid the balance. -^ 
 
 Guilt}' knowledge was inferred from the general circumstances of the 
 case. 
 
 It was objected that the guilty knowledge must exist at the time of 
 receiving, and that when the wife received the goods the guilt}' knowl- 
 edge could not have come to the prisoner. 
 
 The court overruled this objection, and directed the jury that until 
 the subsequent meeting, when the act of the wife was adopted by the 
 prisoner and the price agreed upon, the receipt was not so complete as 
 to exclude the effect of the guilty knowledge.
 
 800 KEGINA. V. WOODWARD. [CHAP. XI. 
 
 If the court shall be of opinion that the circumstances before set forth 
 are sufficient to support a conviction against the prisoner for the felo- 
 nious receipt, the conviction is to stand confirmed ; but if the court 
 shall be of a contrary opinion, then the conviction is to be quashed. 
 
 J. W. AWDRY. 
 
 G. JSroderick, for the prisoner. This conviction, it is contended, 
 cannot be sustained. At the trial it was not said on the part of the 
 prosecution that the wife of the prisoner was lier husband's agent in 
 receiving the property, but that he subsequently adopted her act of re- 
 ceiving by paying the balance of the price agreed upon. But there was 
 no evidence of any guilty receipt by the wife, or of an}' subsequent act 
 of receiving b}' the prisoner. The guilty knowledge and act of receiv- 
 ing must be sinuiltaneous. In Reg. v. Dring and Wife, 1 Dears. & 
 Bell, 329 ; 7 Cox Crim. Cas. 382, where a husband and wife were jointly 
 indicted for receiving stolen goods, and the jur}- found both guilty, stat- 
 ing that the wife received them without the control or knowledge of and 
 apart from her husband, and that he afterwards adopted her receipt, it 
 was held that the conviction could not be sustained as against the hus- 
 band ; and in his judgment, Cockburn, C. J., observed that, " If we 
 are to take it that the jury meant to say, ' We find the prisoner guilt}' 
 if the court should be of opinion that upon the facts we are right,' then 
 we ought to be able to see that the prisoner took some active part in the 
 matter, that the wife first received the goods and then the husband from 
 her, both with a guilty knowledge." [Blackburn, J. Tlie verdict in 
 this case is, that he did receive them : there is no question raised as to 
 whether the verdict was justified. Erle, C. J. Receiving is a ver}- 
 complex term. There is the case where two persons stole fowls, and 
 took them for sale in a sack to another person, who knew them to have 
 been stolen. The sack was put in a stable and the door shut, while the 
 three stood aside haggling about what was to be paid for them. There 
 the judges differed as to whether there was a receiving by the third per- 
 son in whose stable the sack was put.] That was the case of Reg. v. 
 Wile}', 4 Cox Crim. Cas. 412. The actual receipt of the goods was by 
 the wife, and it is consistent with the evidence that the goods may 
 never have come into the prisoner's possession at all. (The case of 
 Reg. V. Button, 11 Q. B., 3 Cox Crim. Cas. 229, were also cited.) 
 
 Erle, C. J. The argument of the learned counsel for the prisoner 
 has failed to convince me that the conviction was wrong. It appears 
 that the thief brought to the premises of the prisoner the stolen goods 
 and left them, and that sixpence was paid on account of them In' 
 the prisoner's wife, but there was nothing in the nature of a com- 
 plete receipt of the goods until the thief found the husband and agreed 
 with him as to the amount, and was paid the balance. The receipt was 
 complete from the time when the thief and the husband agreed ; till 
 then the thief could have got the goods back again on payment of 
 the sixpence. I am of opinion, therefore, that the conviction should 
 be affirmed.
 
 SECT. II, j EEGINA V. POL AN. 801 
 
 Blackburn, J. The principal felon left tlie stolen property with the 
 wife as the husband's servant, but the court below, as 1 understand the 
 case, doubted whether the husband could be found guilty of feloniously 
 receiving, as he was absent at the time when the goods were delivered 
 to tlie wife, and could not then know that they were stolen. It is found 
 tliat, as soon as the husband heard of it, he adopted and ratified what 
 had lieen done, and that as soon as he adopted it he had a guilty 
 knowledge ; he therefore at that time received the goods knowing them 
 to have been stolen. 
 
 Keating, J. I am of the same opinion. The case finds that the 
 agreement as to the price was not complete till the thief and the hus- 
 band agreed. I think therefore that the receipt was not complete till 
 then, and that the conviction was right. If we were to hold that the 
 conviction was not right, the consequences would be ver}' serious. 
 
 Wilde, B. I read the case as showing that the wife received the 
 goods on the part of the prisoner her husband, and that act of her was 
 capable of being ratified on the part of the prisoner. If so, that makes 
 the first act of receiving by the wife his act. In the case of Reg. v. 
 Dring and Wife, the only statement was " that the husband adopted 
 his wife's receipt," and the court thought the word " adopted " capable 
 of meaning that the husband passively consented to what his wife had 
 done, and on that ground quashed the conviction. But here the prisoner 
 adopted his wife's receipt b}' settling and paying the amount agreed on 
 for the stolen goods. 
 
 Mellor, J., concurred. Conviction affirmed. 
 
 l/U 
 
 SECTION II. 
 
 Stolen Property. 
 
 EEGINA V. DOLAN. 
 
 Crown Case Reserved. 1855. 
 
 [Reported 6 Cox C. C. 449 ; Dears!;/ C. C. 4.36.] 
 
 The following case was stated by M. D. Hill, Esq., Q. C, Recorder 
 of Birmingham : — 
 
 At the Sessions held in Birmingham, on the 5th day of January, 
 1855, William Rogers was indicted for stealing, and Thomas Dolan 
 for receiving, certain brass castings, the goods of John Turner. 
 Rogers pleaded guilty, and Dolan was found guilt}'. 
 
 It was proved that the goods were found in the pockets of the pris- 
 oner Rogers by Turner, who then sent for a policeman, who took the 
 goods and wrapped them in a handkerchief, Turner, the prisoner 
 
 /
 
 802 EEOINA V. DOI.AN. [CHAP. XI. 
 
 Rogers, and the policeman going towards Dolan's shop. When they 
 came near it the policeman gave the prisoner Rogers the goods, and 
 the latter was then sent by Turner to sell them where he had sold 
 others ; and Rogers then went into Dolan's shop and sold them and 
 ^gave the money to Jolm Turner as the proceeds of the sale. Upon 
 \ these facts it was contended on the part of Dolan that Turner had 
 resumed the possession of the goods, and that Rogers sold them to 
 Dolan as the agent of Turner, and that consequently at the time they 
 were received by Dolan, they were not stolen goods within the mean- 
 ing of the statute. 
 
 1 told the jury, upon the authority of the case of Regina v. Lyons 
 and another, C. & M. 217, cited by the counsel for the prosecution, 
 that the prisoner was liable to be convicted of receiving, and the jury 
 found him guilty. 
 
 Upon this findiug I request the opinion of the Court of Appeal in 
 Criminal Cases on the validity of Dolan's conviction. 
 
 Dolan has been sent back to prison, and I respited judgment on the 
 conviction against him until the judgment of the court above shall have 
 been given. 
 
 O'Brien, for the prisoner. This conviction cannot be sustained. 
 The objection is, that when the goods reached the hands of Dolan 
 they were not stolen goods. They had been restored to the posses- 
 sion of the owner, and the sale to the prisoner was with the owner's 
 authority. 
 
 Lord Campbell, C. J. There seems to be great weight in that 
 objection but for the authority of the case cited. It can hardly be 
 supposed that if goods were stolen seven years ago, and had been in 
 the possession of the owner again for a considerable period, there could 
 be a felonious receipt of them without a fresh stealing. 
 
 O'Brien. That was the view taken by the learned recorder ; and 
 R. V. Lyons, C. &. M. 217, which was cited for the prosecution, does 
 not appear to have been a case much considered. Coleridge, J., in 
 that case, said, that for the purposes of the day, he should consider 
 the evidence as sufficient in point of law to sustain the indictment, but 
 would take a note of the objection. 
 
 Coleridge, J. I certainly do not think so to-day. 
 
 O'Brien. There is also a slight circumstance of distinction between 
 that case and the present. It does not appear in that case that the 
 stolen property was ever actually restored to the hand^s of the owner, 
 nor that he expressly directed the thief to take it to the prisoner. 
 (He was stopped.) 
 
 BeasJey, for the prosecution. R. v. Lyons is expressly in point, and 
 the learned judge who decided it does appear to have had his attention 
 recalled to the point after the conviction, and still, upon deliberation, 
 to have thought there was nothing in the objection. The facts are thus 
 stated in the marginal note: " A lad stole a brass weight from his 
 master, and after it had been taken from him in his master's presence
 
 SECT. II.] REGINA V. DOLAN. 803 
 
 it was restored to him again with his master's consent in order that he 
 niic-ht sell it to a man to whom he had been in the habit of selling sim- 
 ilar articles which he had stolen before. The lad did sell it to the 
 man ; and the man being indicted for receiving it of an evil-disposed 
 person, well knowing it to have been stolen, was convicted and sen- 
 tenced to be transported seven years." The report adds that after 
 the sentence, " the matter was subsequently called to his Lordship's 
 attention by the prisoner's counsel, yet no alteration was made in the 
 judgment of the court ; from which it is to be inferred that, upon con- 
 sideration, his Lordship did not think that in point of law the objection 
 ought to prevail."' The present is, however, a stronger case than 
 that ; because here in truth the master did not recover possession of 
 the stolen goods. They were in the hands of the police ; and what 
 the master did must be considered as done under the authority of the 
 police. 
 
 Lord Campbell, C. J. No ; the policeman was the master's agent. 
 
 Platt, B. And the sale was by direction of the master. 
 
 Beasley. The statute does not require that the receipt should be 
 directly from the thief. It only requires that the prisoner should 
 receive stolen goods, knowing them to have been stolen ; and that is 
 proved in this case. In many cases it has been held that where the 
 owner of property has become acquainted with a plan for robbing him, 
 his consent to the plan being carried out does not furnish a defence to 
 the robbers. R. o. E:ggington, 2 B. & P. 508. 
 
 Lord Campbell, C. J. But to constitute a felonious receiving, the 
 receiver must know that at that time the property bore the character 
 of stolen property. Can it be said that, at any distance of time, goods 
 which had once been stolen would continue to be stolen goods for the 
 purpose of an indictment for receiving, although in the mean time 
 they may have been in the owner's possession for years? 
 
 Cresswell, J. The answer to that in this case seems to be that 
 the policeman neither restored the property nor the possession to the 
 master; that the goods were in the custody of the law ; and that the 
 master's presence made no difference in that respect. 
 
 Beasley. That is the argument for the prosecution ; and it is man- 
 ifest that if the policeman had dissented from the plan of sending 
 Rogers to Dolan's shop, the master could not have insisted upon the 
 policeman giving up the property to him. 
 
 Lord Campbell, C. J. I feel strongly that this conviction is wrong. 
 I do not see how it can be supported, unless it could be laid down 
 that, if at any period in the history of a chattel once stolen, though 
 afterwards restored to the possession of the owner, it should be re- 
 ceived by any one with a knowledge that it had been stolen, an offence 
 would be committed within the statute. I think that that would not 
 be an offence within the statute any more than it would make the 
 receiver an accessory to the felony at common law. If the article is 
 restored to the owner of it, and he, having it in his possession, after-
 
 804 REGINA V. DOLAN. [CFIAP. XI, 
 
 wards bails it to another for a particular purpose of delivering it to a 
 third person, and that third person receives it from that bailee, I do 
 not see how it can, under these circumstances, be feloniously received 
 from that bailee. Then what are the facts here? [His Lordship 
 stated the facts as above.] Turner, the owner, therefore had, I think, 
 as much possession of the goods as if he had taken them into his own 
 hands, and with his own hands delivered them to another person for 
 a particular purpose, which was performed. He was, subsequent to 
 the theft, the bailor and the other person was the bailee of the goods. 
 Then they were carried to the prisoner by the authority of the owner ; 
 and I cannot think that under those circumstances there was a receiv- 
 ing within the statute. As to the case cited, I cannot help thinking 
 that the facts cannot be quite accurately stated, and that there was 
 something more in that case than appears in the report ; but if not, I 
 am bound to say that I do not agree in that decision. 
 
 Coleridge, J. I have no recollection of the case cited, and I have 
 no right, therefore, to say that it is not accurately reported ; but, 
 assuming it to be so, I am bound to say that I think I made a great 
 mistake there. What is the case? If for a moment the interference 
 of the policeman is put out of the question, the facts are, that the 
 goods which had been stolen were restored to the possession of the 
 real owner and were under his control, and having been so restored, 
 they were put again into the possession of Rogers for a specific pur- 
 pose, which he fulfilled. It seems then to me that when, the second 
 time, they reached the hands of Rogers, they had no longer the cliar- 
 aeter of stolen goods. Then, if that would be the case, supposing the 
 policeman to be out of the question, does the interference of the police- 
 man according to the facts here stated make any difference? I think 
 not. It is the master who finds the goods and sends for a policeman ; 
 and it is by the authority of the master that the policeman takes and 
 keeps the goods, and afterwards hands them back to Rogers. Indeed, 
 it seems to me that all that was done was done by Turner's authority ; 
 and that it must be considered that the property was under the control 
 of the real owner when he sent Rogers with them to the prisoner. In 
 this state of facts, the interference of the policeman seems to me of 
 no importance. 
 
 Cresswell, J. I do not dissent from the decision that this con- 
 viction is wrong ; but as we are called upon in this court to give the 
 reasons of our judgment, I must say that I cannot concur in all the 
 reasons which I have heard given in this case. If it had been neces- 
 sary to hold that a policeman, by taking the stolen goods from the 
 pocket of the tliief, restores the possession to the owner, I should dis- 
 sent. I think that we caimot put out of question the interference of 
 the policeman ; and that whilst the goods were in his hands they were 
 in the custody of the law ; and that the owner could not have de- 
 manded them from the policeman or maintained trover for them. But 
 as the case finds that the policeman gave them back to Rogers, and
 
 SECT. II.] REGINA V. SCHMIDT. 805 
 
 then the owner desired hun to go and sell them to Doian, I think that 
 Rogers was employed as an agent of the owner in selling them, and 
 that consequently Dolan did not feloniously receive stolen goods. 
 
 Platt, B. I am of the same opinion. The ease is, that the stolen 
 goods were found b}' the owner in the pocket of the thief. Tliey were 
 restored to his possession, and it does not appear to me very material 
 whether that was done by his own hands or by the instrumentality of 
 the policeman. Things being in that state, it seems to have come 
 into their heads that they might catch the receiver ; and it was sup- 
 posed that by putting the stolen property back into the custody of 
 Rogers, they could place all parties statu quo they were when the 
 l)roperty was found in the pocket of Rogers ; but I agree with the rest 
 of the court that the Act of Parliament does not apply to a case of this 
 kind ; for if it did, I see no reason why it should not equally apply to 
 restored goods stolen ten years ago. 
 
 Williams, J. The reason why I think the conviction wrong is, that 
 the receipt, to come within the statute, must be a receipt without the 
 aujthprity of the owner. Looking at the mere words of the indictment, 
 every averment is proved by this evidence ; but then the question is, 
 whether such a receipt was proved as is within the statute, namely, a 
 receipt without the owner's authority ; and here Rogers was employed 
 by the owner to sell to Dolan. Conviction quashed} 
 
 REGINA V. SCHMIDT. 
 
 r- 
 
 Crown Case Reserved. I860. 
 [Reported 10 Cox C. C. 172 ; Law Reports, 1 Crown Cases Reserved, 15.] 
 
 Case reserved for the opinion of this court by the deputy-chair- 
 man of the Quarter Sessions for the western division of the County of 
 Sussex. ^--- — 7 
 
 John Daniels, John Scott, John Townsend, and Henry White were / 
 indicted for having stolen a carpet-bag and divers other articles, the / 
 property of the London, Brighton, and South Coast Railway Com- j 
 pany ; and the prisoner, Fanny Schmidt, for having feloniously re- 
 ceived a portion of the same articles, well knowing the same to laave^ 
 -been stolen. 
 
 The evidence adduced before me as deputy-chairman of the Court 
 of Quarter Sessions at Chichester, for the western division of the 
 County of Sussex, on the 20th October, 1865, so far as relates to the 
 question I have to submit to the Court of Criminal Appeal, was as 
 follows : — 
 
 1 Ace. Reg. V. Hancock, 14 Cox C. C. 119; U. S. v. De Bare, 6 Bias. 358. — Ed.
 
 806 REGINA V. SCHMIDT. [CHAP. XI. 
 
 On the 29tli July, 1865, two passengers by the prosecutors' line of 
 railway left a quantity of luggage at the Arundel station, which luggage 
 was shortly afterwards stolen therefrom. 
 
 On the 30th July a bundle containing a portion of the stolen prop- 
 erty was taken to the Angmering station, on the same line of railway, 
 by the prisoner Townsend, and forwarded by him to the female pris- 
 oner, addressed " Mr. F. Schmidt, Waterloo Street, Hove, Brighton," 
 The bundle was transmitted to Brighton, in the usual course, on Sun- 
 day morning, the 30th. 
 
 Meanwhile the theft had been discovered, and shortly after the 
 bundle had reached the Brighton station, a policeman (Carpenter) 
 attached to the railway company, opened it, and having satisfied him- 
 self that it contained a portion of the property stolen from the Arundel 
 station, tied it up again, and directed a porter (Dunstall) in whose 
 charge it was, not to part with it without further orders. 
 
 About 8 p. M. of the same day (Sunday, 30th), the prisoner John 
 Scott went to the station at Brighton and asked the porter (Dunstall) 
 if he had got a parcel from the Angmering station in the name of 
 Schmidt, Waterloo Street. Dunstall replied "No." Scott then said, 
 " It is wrapped up in a silk handkerchief, and is directed wrong ; it 
 ought to have been dii-ected to 22 Cross Street, Waterloo Street." 
 Dunstall, in his evidence, added, " I knew the parcel was at the 
 station, but I did not say so because I had received particular orders 
 about it." 
 
 The four male prisoners were apprehended the same evening in 
 Brighton on the charge, for which they were tried before me and 
 convicted. 
 
 On Monday morning, the 31st July, the porter (Dunstall), by the 
 direction of the policeman (Carpenter) took the bundle to the house 
 No. 22 Cross Street, Waterloo Street, occupied as a lodging-house and 
 beer-house by the female prisoner and her husband (who was not at 
 home or did not appear), and asked if her name was Schmidt, on 
 ascertaining which he left the bundle with her and went away. Car- 
 penter and another policeman then went to the liouse, found the bundle 
 unopened, and took the prisoner to the town hall. 
 
 All the prisoners were found guilty, and I sentenced each of them to 
 six months' imprisonment with hard labor. They are now in Petworth 
 jail in pursuance of that sentence. 
 
 At the request of the counsel for the female prisoner I consented to 
 reserve for the opinion of this court the question, — 
 
 Whether the goods alleged to have been received by her had not, 
 under the circumstances stated, lost their character of stolen property, 
 so that she ought not to have been convicted of receiving them with 
 a guilty knowledge within the statute. Hasler Hollist. 
 
 Pearce (Willoughby with him), for the prisoner. The conviction is 
 wrong. To support a conviction for receiving stolen goods, it must
 
 SECT. II.] REGINA V. SCHMIDT. 807 
 
 appear that the receipt was witliout the owner's authority. In this 
 case, in consequence of the conduct of the railway company, the 
 property had lost its character of stolen property at the time it was 
 delivered at the receiver's house by the railway porter. The property 
 is laid in the indictment as the property of the railway company, and 
 Carpenter was not an ordinary policeman, but, as the case states, a 
 policeman attached to the railway company. He opens the bundle, 
 and finding therein some of the stolen property, he gives it to Dun- 
 stall, and orders it to be detained until farther orders, and in the 
 meantime the tliieves were arrested ; Carpenter then directs Dunstall 
 to take the bundle to the receiver's house, so that the receiver got the 
 stolen property from the railway company, who alone on this indict- 
 ment are to be regarded as the owners of the property. The railway 
 company, the owners, having got their property back, make what must 
 be considered a voluntary delivery of it to the receiver. The case is 
 similar to Regina v. Dolau, 6 Cox C. C. 4-19 ; 1 Dears. C. C. 436, 
 where, stolen goods being found in the pockets of the thief by the 
 owner, who sent for a policeman, and then, to trap the receiver, the 
 goods were given to the thief to take them to the receiver's, which he 
 did, and the receiver was afterwards arrested, it was held that the 
 receiver was not guilty of feloniously receiving stolen goods, inasmuch 
 as they were delivered to him under the authority of the owner. In 
 that case Regina v. Lyons, C. & M. 217, was expressly overruled. 
 Lord Campbell, C. J., said, in Regina v. Dolan, '' If an article once 
 stolen has been restored to the owner, and he having had it fully in his 
 possession, bails it for any particular purpose, how can any person 
 who receives the article from the bailee be said to be guilty of receiv- 
 ing stolen goods within the meaning of the Act of Parliament?" 
 
 Hurst, for the prosecution. Unless this case is distinguishable from 
 Regina v. Dolan, the conviction, it must be conceded, is wrong. But 
 the facts of this case are more like the view taken by Cresswell, J., in 
 Regina v. Dolan, "That while the goods were in the hands of the 
 policeman, they were in the custody of the law ; and the owner could 
 not have demanded them from the policeman, or maintained trover 
 for them." In that case the real owner intervened, and had manual 
 possession of the stolen goods ; here he does not. The goods be- 
 longed to the railway passenger, and the company are only bailees. 
 [Mellor, J. The policeman merely opened the bundle in the course 
 of its transit to see what was in it, and then sent it according to its 
 direction. It was in the hands of the policeman, not of the compan3\ 
 Erle, C. J. Suppose a laborer steals wheat, and he sends it by a boy 
 to his accomplice, and the policeman stops the boy, ascertains what he 
 has got, then tells him to go on, and follows and apprehends the ac- 
 complice, is not the accomplice guilty of feloniously receiving? Mel- 
 lor, J. Here the policeman does nothing to alter the destination of 
 the bundle. The element of the real owner dealing with the stolen 
 property is wanting in this case. Keating, J. Scott directs the ad-
 
 808 REGINA V. SCHMIDT. [CHAP. XI. 
 
 dress to be changed.] The bundle was sent by the thieves through the 
 railwaj- compan3' to the receivers ; the real owner had nothing to do 
 with this part of the transaction. [Lush, J. If the true owner had 
 sued the company for the property, the company could not have jus- 
 tified detaining or converting it.] If a policeman knows of stolen 
 goods being in the hands of an innocent agent, and does not take 
 possession for the owner, and the innocent agent, by the policeman's 
 directions, delivers them to a receiver, that does not prevent the 
 receiver being guilty of feloniously receiving. 
 
 Pearce, in reply. Before the bundle was sent out for delivery the 
 thieves were in custody, and having secured tliem, Carpenter then 
 gives orders for the bundle to be delivered to the receiver. Carpenter 
 was the servant of the railway company, who are the owners for the 
 purpose of this indictment, and the delivery therefore was by the 
 owners, 
 
 [Erle, C. J., and Mellor, J., were of opinion that the conviction 
 was right, but Martin, B., Keating, and Lush, J J., held the convic- 
 tion wrong. In consequence of the prisoner having suffered half the 
 term of im[)risonment from inability to get bail and the further 
 unavoidable dela}', the case was not sent to be argued before all the 
 judges.] 
 
 Martin, B. I think that this conviction was wrong on two grounds, 
 the one substantial, the other formal. I think that Mr. Pearce's argu- 
 ment, founded on the indictment, that the property is there laid to be 
 property of the railway compan}', is well founded ; and it seems to me 
 that Dolan's case applies to this. 
 
 Erle, C. J. I am of opinion that the conviction was right. The 
 question is whether, at the time this stolen propert}' was received by 
 the prisoner, it was the property of the London and Brighton Railway 
 Compan}' ; and if so whether, when the policeman Carpenter caused 
 the deliveiy to be stopped for the purpose of detecting the parties 
 Implicated, it thereb}' lost the character of stolen property. If it had 
 lost the character of stolen propert}' at the time it was received by the 
 prisoner, the receiving by her will not amount to felony. But in this 
 case I think that the railway company, when they took this bundle into 
 their possession, were acting as bailees of the thief, and were innocent 
 agents in forwarding it to the receiver, and that the things did not lose 
 their character of stolen property by what was done hy the policeman. 
 
 Keating, J. I agree with mv brother Martin that the conviction 
 was wrong. It seems conceded, on the authorit}' of Dolan's case, that if 
 the property had got back again for an}' time into the hands of the true 
 owner, the conviction would be wrong. It is said that, in this case, 
 the owners mentioned in the indictment, the railway company', were 
 not the real owners, whereas in Dolan's case the real owner intervened. 
 But I think there is no distinction in principle between this case and 
 that. The railwaj' company are alleged in the indictment to be the 
 owners of the property, and we sitting here can recognize no other
 
 SECT. II.] KEGINA V. SCHMIDT. 809 
 
 persons than them ; the}- are the owners from whom the propert}' was 
 stolen, and it got back to their possession before it was received by the 
 prisoner. I can see no real distinction between this case and Dolan's. 
 All the reasons given for the judgment in that case apply equally to 
 the case of the ownership in this case. The principle I take to be, 
 tliat when once the party having the riglit of control of the property 
 that is stolen gets that control, the transaction is at an end, and there 
 can be no felonious receipt afterwards. I think the test put b}' my 
 brother Lush in the course of the argument, as to the real owner suing 
 the railway company for the property after they had got the control of 
 it, is decisive of the matter. 
 
 Mellor, J. I agree entirel}- with my brother Erie, C. J., and tliink 
 the conviction was right. The indictment righth' alleges the property 
 to liave been in the railwa}' company at the time it was stolen ; the}' 
 bad the bailment of it from the true owner. Then it is stolen while in 
 their custod}*, and the next step is, the thieves afterwards send a por- 
 tion of it b}' the same railway company to be forwarded to the receiver 
 at Brighton ; so that the railway company get possession of this part 
 from the thieves under a new bailment. Then the policeman examines 
 the property and directs it not to be forwarded until further orders ; 
 but this v/as not done with the view of taking possession of it or altei*- 
 ing its transit, but mereh' to see whether it was the stolen property. 
 I agree with Dolan's case, but in the present case I think the stolen 
 propert}' had not got back to the true owner. 
 
 Lush, J. I agree with my brothers Martin, B., and Keating, J., 
 and think that the conviction was wrong. I think that the goods had 
 got back to the owner from whom they had been stolen. Had the rail- 
 way company innocently carried the goods to their destination and 
 delivered them to the prisoner, the felonious receipt would have been 
 complete ; but while the goods are in their possession, having been 
 previously stolen from them, the goods are inspected, and as soon as it 
 was discovered that they were the goods that had lieen stolen, the 
 railwaj' company did not intend to carry them on as the agents of the 
 bailor ; the forwarding them was a mere pretence for the purpose of 
 finding out who the receiver was. It was not competent to the railway 
 company to sa}', as between them and the original bailor, that they had 
 not got back the goods. They were bound to hold them for him. In 
 afterwards forwarding the goods to the prisoner, the company was 
 using the transit merely as the means of detecting the receiver. 
 
 Martin, B. I only wish to add that I meant to say that I think 
 the conviction wrong in substance in consequence of the interference of 
 the policeman with the propertv, and this independently of the form 
 of indictment. Co?iviction quashed} 
 
 1 Ace. Keg. V. Villensky, [1892] 2 Q. B. 597. — Ed.
 
 810 REGIXA V. CARR. [CHAP. XI. 
 
 REGINA y. CARR. 
 Central Criminal Court. 1877. 
 
 [Reported 15 Cox C. C. 131 n.] 
 
 John Carr was indicted for stealing 168 bonds of the Peruvian 
 Government, the property of Lionel Cohen and others ; second count 
 for feloniously receiving the same. 
 
 ^--There were other counts charging him as an accessary before and 
 after the fact. 
 
 The Solicitor Gentral and Poland were counsel for the prosecution, 
 and Besley and Grain for the defence. 
 
 The bonds in question, on the 2d June, 1877, were transmitted by 
 the prosecutors to a customer in Paris, They were traced safely as 
 far as Calais and were stolen from the train after leaving that 
 place. 
 
 On the 4th of September the prisoner was found dealing with them 
 in London, and the question arose as to the jurisdiction of this court 
 to try the case, the robbery having been committed in France. 
 
 The Solicitor General submitted that the prosecutors never having 
 parted with their propei'ty in the bonds, they were still under the pro- 
 tection of the law, and that the subsequent possession of the bonds 
 in this country was sufficiently recent to enable the jury to find a 
 verdict of larceny against a person who was dishonestly dealing with 
 them here. The decision in Rex v. Prowes, 1 Moody C. C. 349, was 
 certainly opposed to this view ; but no reasons were given for that 
 judgment, and a doubt as to the soundness of the decision was ex- 
 pressed by Parke, B., in Regiua v. Madge, 9 C. & P. 29. The case of 
 Regina v. Debrueill, 11 Cox C. C. 207, was referred to. As to the 
 counts charging the prisonei* with receiving, and also as an accessary, 
 the 24 & 25 Vict. c. 94 contemplated a case of this kind, where the 
 original offence was committed abroad. 
 
 Besley relied on the decision in Rex v. Prowes, ubisup., and Regina 
 V. Hogetoran, Cent. Crim. Court Sess. Paper, vol. 79, 268, and Regina 
 V. Nadal, 84 Cent. Crim. Court Sess. Paper, 295. 
 
 Denman, J. There can be no doubt that this was a larceny fully 
 completed in France. I do not at all say that it might not be a very 
 reasonable thing that any one afterwards dealing here with property 
 so stolen might make cogent evidence of having received them know- 
 ing them to have been stolen, just as much as if they had been stolen 
 in England ; but it appears to me that the point has been too solemnly 
 decided for me to give the go-by to those decisions. It has ])een 
 solemnly decided and acted upon so often that there is no jurisdiction 
 in England to try a case where the stealing has been committed abroad, 
 either against the principal or the accessory, that I have nothing to do 
 but to act upon those decisions and to direct an acquittal in this case.
 
 SECT. II.] STATE V. IVES. 811 
 
 I entertain no doubt that the case of Rex v. Prowes, ubi sup., is 
 directly iu point, and Regina v. Madge, ubi svjy., fortifies it to tlie 
 extent of recognizing and acting upon it. Debrueill's case also 
 decides tliat a conviction of receiving under similiar circumstances 
 could not be sustained. The prisoner must therefore be acquitted. 
 
 STATE V. IVES. ^ 
 
 Supreme Court of North Carolina. 1852. 
 
 [Reported 13 Iredell, 338.] 
 
 Appeal from the Superior Court of Law of Currituck County, at the 
 fall term, 1851, his honor Judge Settle presiding. 
 
 The defendant was indicted for receiving stolen goods, and was con- 
 victed upon the following counts iu the bill of indictment : — 
 
 5th count. And the jurors, etc., do further present, that the said 
 Josiah Ives, afterwards, to wit, on the 1st day of February, a. d. 
 1851, in the county aforesaid, with force and arms, one bale of cotton, 
 of the value of ten shillings, and one barrel of tar, of the value of six 
 shillings, of the goods and chattels of said Caleb T. Sawyer, before 
 then feloniously stolen, taken, and carried away, feloniously did re- 
 ceive and hire, he, the said Josiah Ives, then and there well knowing 
 the said goods and chattels to have been feloniously stolen, taken, and 
 carried away, contrary to the form of the statute in such cases made 
 and provided, and against the peace and dignity of the State. 
 
 6th count./ And the jurors, etc., do further present, that, at and in 
 the county aforesaid, on the 1st day of March, 1851, certain goods and 
 chattels, to wit, one bale of cotton, of the value of ten shillings, and 
 one barrel of tar, of the value of six shillings, of the goods and chattels 
 of Caleb T. Sawyer, feloniously were stolen, taken, and carried away, 
 by some person to the jurors unknown ; and that the said Josiah Ives, 
 afterwards, to wit, on the 2d day of March, 1851, in the county afore- 
 said, the said bale of cotton and the said barrel of tar feloniously did 
 have aiid receive, he, the said Josiah Ives, on the day and year last 
 aforesaid, in the county aforesaid, well knowing the said bale of 
 cotton and the said barrel of tar to have been theretofore feloniously 
 stolen, taken, and carried away, contrary to the form of the statute in 
 such case, made and provided, and against tho peace and dignity of 
 the State. 
 
 There was a motion in arrest of judgment, which was overruled. 
 Judgment against the defendant, from which he appealed to the 
 Supreme Court. 
 
 Pearson, J. The defendant was convicted upon the fifth and sixth 
 counts in the bill of indictment ; and the case is here upon a motion in
 
 812 I STATE V. IVES. [CHAP. XI. 
 
 arrest of judgment. The fifth count was abandoned by the Attorney 
 General, and the question is upon the sixth count. 
 
 A receiver of stolen goods is made an accessary by the statute of 
 Anne ; and it is provided, by another section of that statute, that, if 
 the principal felon escapes and is not amenable to the process of the 
 law, tlieu such accessory may be indicted, as for a misdemeanor. This 
 statute was so construed as to require, in the indictment for a misde- 
 meanor, an averijient that the principal felon was not amenable to the 
 process of the law. Foster, 373. Our statute, Rev. Stat. c. 34, §§ 53 
 and 54, is taken from the statute of Anne, and has received a similar 
 construction. Groff's case, 1 Mur. 270, and see the remarks of Hen- 
 derson, judge, in Good's case, 1 Hawks, 463. 
 
 The objection taken to the indictment, is the absence of an averment, 
 that the principal felon is not amenable to the process of the law ; and 
 it is insisted that, as the principal felon is alleged to be some^pei;son 
 to the jurors unknown, it could not be averred that he had " escaped 
 and eluded the process of the law," in the words used by our statute, 
 and it was uroed that the statute did not apply to a case of the kind. 
 
 The Attorney General in reply took tlie position, that the averment 
 that the principal felon was some person to the jurors unknown, neces- 
 sarily included and amounted to an averment, that he had escaped and 
 eluded the process of the law, so as not to be amenable to justice. 
 This would seem to be so ; but we give no definite opinion, because 
 there is another defect in the count, which is clearly fatal. 
 
 After averring that the cotton and tar had been stolen by some per- 
 son to the jurors unknown, the indictment proceeds: "Afterwards, 
 etc., the said Josiah Ives, the said bale of cotton and the said barrel 
 of tar feloniously did have and receive, well knowing the said bale of 
 cotton and barrel of tar to have been theretofore feloniously stolen," 
 etc. There is no averment from whom the defendant received the cot- 
 ton and tar. We cannot imply that he received them from the person 
 who stole tliem. It may be that he received them from some third 
 person ; and this question is presented : A. steals an article, B. 
 receives it, and C. receives it from B. Does the case fall within the 
 statute? We think not. The statute obviously contemplates a case 
 where goods are received from the person who stole them ; he is 
 termed the principal felon. In the case put above, A. is the principal 
 felon, B. is his accessory, but C. is a receiver from a receiver, — an 
 accessory of an accessory. In fact, it cannot be said whether A. or B. 
 is the principal felon in regard to him. 
 
 The statute does not provide for such a case. It makes the receiver 
 an accessory ; and in case the principal is not amenable to the process 
 of law, such accessory may be prosecuted as for a misdemeanor. 
 Consequently it is necessary to point out the principal, and the matter 
 is involved in the doctrine of " principal and accessory." This and 
 many other omissions are, in England, remedied by the statutes, W. 
 III. and G. II., by which " the act of receiving" is made a substantive
 
 SECT. III. I REGINA V. ADAMS. 813 
 
 felony, without reference to the person who stole or the person from 
 whom tlie goods are received. Under tliose statutes, tlie fifth count, 
 which the Attorney General has properly abandoned, would be good; 
 for the offence is to " receive and have " stolen goods. We have not 
 adopted those statutes. Of course the decisions and forms in the mod- 
 ern English books cannot aid us. Duncan's case, 6 Ired. 98, presents 
 another instance, to provide for which we have no statute. 
 
 Per Cukiam. Judgment below reversed, and judgment arrested.* 
 
 SECTION III. 
 
 ' G-uilty Knoivledge. 
 
 REGINA V. ADAMS. 
 Bristol Assizes. 1858. 
 
 [Reported 1 Foster tf F Mason, 86.] 
 
 Larceny and Receiving. ; The woman was charged with having 
 stolen, and the man (her husbrthd) with liaving received, eleven mining 
 tools. Tlie evidence was that the woman had picked them up from a 
 rubbish-heap, where they had been placed (not as rubbish), on the 
 premises of the prosecutor, and delivered them to the man, telling him 
 how she had obtained them, and that he had sold them as old ironT" j 
 
 Chowder, J. {to the jury), after stating to them the law as to-the 
 duty of a finder of property, as applicable to the charge against the 
 woman, and leaving the case as against her with them : Before you 
 can convict the man you must be satisfied that he knew that the goods 
 had been stolen. It may be that he did not know (upon the law as I 
 have laid it down, as to the duty of the finder of property to take 
 proper means to find the owners) that this was a theft. ^ If so, he 
 cannot be guilty of receiving with a guilty knowledge of the goods 
 being stolen. 
 
 JBoth guilty ; recommended to mercy ; fourteen days' impnso7iment. 
 
 1 See Eex v Messingham, 1 Moo. C. C. 2.57, Reg. v. Reardon, L. R. 1 C. C. R. .31. 
 — Ed. 
 
 ■^ That is, it is apprehended that the other prisoner had not taken proper means 
 to find the owner. — Rep.
 
 814 COMMONWEALTH V. LEONARD. [CHAP. XI. 
 
 REGINA V. WHITE. 
 
 Winchester Assizes. 1859. 
 [Reported 1 Foster i^- Finlason, 665.] 
 
 Receiving. The prisoner was charged . with receiving lead, the 
 property of the Queen, he well knowing it to have been stolen. 
 
 BuAMWELL, B. {to the jury). The knowledge charged in this indict- 
 ment need not be such knowledge as would be acquired if the prisoner 
 had actually seen the lead stolen ; it is sufficient if you think the cir- 
 cumstances were such, accompanying the transaction, as to mal^e the 
 prisoner believe that it had been stolen. Guilty. 
 
 COMMONWEALTH v. LEONARD. 
 Supreme Judicial Court of Massachusetts. 1886. 
 
 [Reported 140 Massachusetts, 473.] 
 
 Indictment in three counts. The first count alleged that on July 1, 
 1883, certain articles, the goods, chattels, and property of the Boston 
 and Lowell Railroad Corporation, were feloniously stolen, and that 
 the defendant afterward, on the same day, " the goods, chattels, and 
 property aforesaid, so as aforesaid feloniously stolen, taken, and 
 carried away, feloniously did receive and have, and did then and there 
 aid in the concealment of the same," he " well knowing the said goods, 
 chattels, and property to have been feloniously stolen, taken, and 
 carried away." 
 
 The second and third counts were similar in form, but the property 
 was in each differently described and at a different date, namely, on 
 August 1, 1883, and September 1, 1883, respectively.^ 
 
 The defendant asked the judge to instruct the jury as follows : 
 "1. If the jury are not satisfied beyond a reasonable doubt that the 
 accused knew that the goods were stolen he is entitled to an acquittal. 
 2. To justify a conviction it is not sufficient to show that the accused 
 had a general knowledge of the circumstances under which the goods 
 were stolen, unless the jury are also satisfied that he knew that the 
 circumstances were such as constituted larceny." 
 
 The judge refused to give these instructions, and upon the matters 
 embraced therein instructed the jury as follows : — 
 
 "He must know that the goods were stolen, but he does not need to 
 know the hour nor day they were stolen ; he must undoubtedly have 
 notice which would put him on his guard as knowledge that the goods 
 
 ^ Part of the case, not involving a question of guilty knowledge, is omitted.
 
 SECT. III. J COMMONWEALTH V. LEONARD. 815 
 
 were acquired and turned over to him by a person not taking them by 
 mistake, not by right, but taking them as thieves take them, that is, 
 for the purpose of defrauding the railroad and clieating them out of 
 their property." 
 
 The defendant's counsel here suggested " by larceny," and the 
 judge gave this further instruction : — 
 
 " By the taking and carrying away of property it is the fraudulent 
 taking away of the property of another for the purpose of converting 
 it to the takers use to deprive the owner of it. These goods must 
 have been taken that way and were stolen goods ; they must have 
 been taken by McCarthy as thieves take them, not by mistake or 
 accident, or by taking from those who had no right to give, but taking 
 when he knew that he had no right to take them." 
 
 The jury returned a verdict of guilty on the third count, and of not 
 guilty on the other counts, and the defendant alleged exceptions. 
 
 Field, J. The offence of receiving stolen property, knowing it 
 to have been stolen, must be considered as distinct from the offence of 
 receiving embezzled property knowing it to have been embezzled. Pub. 
 Sts. c. 203, §§ 48, 51, although embezzlement under our statutes has 
 been held to be a species of larceny. Commonwealth v. Pratt, 132 
 Mass. 2i6. The punishments of the two offences may be different, as 
 the offence of receiving embezzled goods ma}' be punished by a fine 
 without imprisonment. If the property had actually been stolen, a be- 
 lief on the part of the defendant that it had been stolen is tantamount 
 to knowledge. If the defendant knew all the facts and the facts con- 
 stituted larceny as distinguished from embezzlement, it would be no 
 defence that the defendant thought that the facts constituted embez- 
 zlement. If the defendant did not know the facts, but believed from 
 the circumstances that the property had been either embezzled or 
 stolen, and it had been actually stolen, it was competent for the jury to 
 find the defendant guilty of the offence charged. The second request 
 for instructions was therefore rightly refused. 
 
 The first request for instructions states the law with substantial cor- 
 rectness. It is contended that the instructions given on this point, 
 rightly construed, are the same in effect. We find it unnecessary to 
 decide whether the case called for a more careful'definition of larceny 
 as distinguished from embezzlement or from wilful trespass. 
 
 Exceptions sustained^ 
 
 1 See Reg. v. Rymes, 3 C. & K. 326. — Ed.
 
 816 BURGLARY. [CHAP. XII. 
 
 CHAPTER XII. 
 CRIMES AGAINST THE DWELLING-HOUSE. 
 
 SECTION I. 
 
 Burglary. 
 
 S'^ATTNPOrtD, Pleas of the Crown, 30 a. Burglars are those who feloni- 
 ousl_y in time of peace break houses, churches, walls, towers, or gates, 
 for which burglary they shall be hanged, though they took nothing away. 
 Uipatet tit. Coron. in Fitz. p. 264, p. 185, & p. 178. But yet they ought 
 to have felonious intent to rob or kill or do other felony. For if a man 
 be indicted quod domum I. S. felonice fregit ad ipsuni verberatidunif 
 that is onh' trespass, for by this his intent in the breaking is made 
 known. It is otherwise if it be domum fregit ad ipsum interficiendum. 
 &c. But if a man be indicted quod clausum I. 8. felonice fregit ad 
 ipstfin interficiendum^ that is not burglar}', per Hankford & Hill, M. 
 13 H. 4, f 7. The same is law if he break the house and do not enter 
 into it. Et nota that for anything contained in those books, burglary 
 may be done as well b}' day as b}' night, &c. But the law is not so 
 taken, for all the indictments for burglary are quod noctanter fregit, 
 &c. Vide Britton for burglars, fo. 17; for I do not remember that I 
 have read anything of it in Bracton^ save that he speaks in one place 
 in this way, scil. "■ Si quis homsoken^ quae dicitur invasio domus contra 
 pacem, in domo suo defender it & invasor occistis fuerit impersequutus, 
 & inultus remanebit, dum tamen ille qui invasus est, aliter se defenders 
 non potuit. Quia dicitur nan est dignus pace qui non vidt servare 
 earn," &c. 
 
 1 Hawk. P. C. ch. 17, Sects. 1, 2, 3, 11, 18, 21. Burglary is a 
 felony at the Common Law, in breaking and entering the mansion- 
 house of another, or (as some say) the walls or gates of a walled town 
 in the night, to the intent to commit some felony within the same^ 
 whether the felonious intent be executed or not. 
 
 There are some opinions, that burglary ma}- be committed at any 
 time after sun-set and before sun-rising ; Init it seems the much better
 
 SECT. I.] ANONYMOUS. 817 
 
 opinion that the word noctanter, which is precisely necessary in every 
 indictment for this offence, cannot be satisfied in a legal sense, if it 
 appear upon the evidence, that there was so much daylight at the time 
 that a man's countenance might be discerned thereby.^ 
 
 Notwithstanding some loose opinions to the contrary, there seems to 
 be no good cause to doubt but that both [an actual entry and breaking] 
 are required to complete this offence ; for the wovd'i f regit and intracit 
 l)eing both of them precisely necessary in the indictment, both must be 
 satisfied. And a fortiori therefore there can be no burglary where 
 there is neither of them ; as if on a bare assault upon a house, the 
 owner fling out his money. 
 
 Any the least entry either with the whole, or but with part of the 
 body, or with any instrument, or weapon, will satisfy' the word intravit 
 in an indictment of burglary ; as if one do but put his foot over a 
 threshold, or his hand or a hook or pistol within a window, or turn the 
 key of a door which is locked on the inside, or discharge a loaded gun 
 into a house, &c. 
 
 A house wherein a man dwells but for part of the year .... may be 
 called his dwelling-house ; and will sufficiently satisfy the words donius 
 mansionalis in the indictment, whether any person were actualh' 
 therein or not, at the time of the offence. 
 
 All out-buildings, as barns, stables, dairy-houses, &c., adjoining to 
 a house, are looked upon as part thereof, and consequently burglary 
 ma}' be committed in them. 
 
 ANONYMOUS. 
 
 Lent Assizes. 1554. 
 
 [Reported Dyer, 99o, pi. 58.] 
 
 One was indicted for that he burglariously broke open a church in 
 the night in order to destroy and ^_teal the goods of the parishioners 
 therein being, but took nothing away. /And Bromeley, J., held clearly 
 that this is burglary ; but he said that 'it ought to be broke and entered. 
 
 ' In Com. V. Chevalier, 7 Dane Abr. 134 (1794) the jury found that a brealrag 
 was not in the night which took place at eighteen minutes after two o'clock on the 
 morning of June 27th. 
 
 Mass. Pub. Stats, ch. 214, sect. 15. When an offence is alleged to have been com- 
 mitted in the night-time, the time called night-time shall be deemed to be the time 
 between one hour after the sun-setting on one day and one hour before sun-rising on 
 the next day.
 
 818 ^ ANONYMOUS. [CHAP. XII. 
 
 RESOLUTION. 
 All the Judges of England. 1584. 
 
 [Reported Anderson, 114.] 
 
 All the justices assembled at Serjeants' Inn agreed that if one break 
 the glass in a window in the dwelling-house of any one, and there with 
 hooks draw carpets out, and feloniously steal them, it is burglary if it 
 be done at night, though the man wlio does it do not enter or break the 
 house otherwise ; and this case was put for a purpose, in order that the 
 justices of Assize in the count}' of Warwick might know the law before 
 the Assizes, where this case was to come in question for an offence com- 
 mitted at Erdeburgh in said county-. At this time the following case 
 was also put by the said justices, that thieves in the night come to a 
 dwelling, and some one within comes and opens the door, and when it is 
 open, one of the thieves intending to kill the man shoots at him with a 
 gun, the bullet from jvhich misses the man and breaks the wall on the 
 other side of the house. J And it was agreed b^- all that this is no burg- 
 lary ; and this also was in order to know the law in this case, which 
 happened in the county of Derb}' where they were also justices. And 
 as bearing upon these cases an actual case was put, which was this, 
 scil. : In the night one who intended to kill another in a house broke a 
 hole in the wall of the dwelling, and perceiving where the person was, 
 shot at him through the hole with a gun and missed the person, which 
 was adjudged as burglary} so where one broke a hole in the wall and 
 seeing a man with a purse of money hanging from his girdle coming by 
 the hole, snatched at the purse and took it, this too was agreed to be 
 burglary ; which happened in Essex. And then it was remembered 
 that one went to the window of Mr. Cave's stud}' in the county of 
 Leicester, and perceiving a casket with money in it, drew it to tlie 
 window and took money out of it, and for this he was hanged in 
 the county of Leicester. For in all these cases of burglaiy there is a 
 breaking of the house to commit felony in the night ; which makes the 
 offence burglaiy. But in the preceding case of shooting with the gim 
 into the door and breaking the wall with the bullet, it is not a break- 
 ing of the house with intent to commit felony ; wherefore it is not 
 burglary. 
 
 ANONYMOUS. 
 Crown Case Reserved. 1594. 
 
 [Reported J/oore, 660, pi. 903.] 
 
 It was resolved by all the justices at Serjeants' Inn, that the 
 breaking of a dwelling-house at night with intent to rob or kill a man is
 
 SECT, l.j LE MOTT'S CASE. 819 
 
 burglary, though no one be in the house. And if one has two dwelling- 
 houses wlieie he Uves in turn, if a thief break at night the house from 
 vviiieh he is absent it is burgUir\', and all the old preeedents of indict- 
 ments for burglary are noctanfer et fdonice^ without allegation of any 
 person put in fear of death. And the reason of the old precedents 
 varying from those of modern times by mentioning that one was in fear 
 of death is because the Statute 23 II. 8 takes away clergy from a 
 burglar where any one is put in fear of death, but not otherwise. 
 
 REX V. FIDLING. 
 King's Bench. 1607. 
 
 \^Manus<:rtpty\ 
 
 One Fidling was indicted for burglary ; and the indictment was that 
 he the mansion house of Afelonie f regit, and him and all his family '- / ( 
 put in terror of their lives, with intention the said A de bonis et pecu- 
 niis spoUandis. Exception was taken to this indictment, because it 
 said ox\\y fregit and not intravit, according to the opinion of Bromeley 
 in 1 Mary, Dy. fo. 99, pi. 58. But per Curiam; The indictment is 
 good enough ; for if he breaks the house feloniously with intent iit 
 iiuj)ra it is burglary, although he does not enter. 
 
 It was also objected that intentione ad spollandum shall be taken 
 only as a trespass ; but per Curiam, felonj' ad spoliandmn shall be 
 taken to be a felony. 
 
 LE MOTT'S CASE. 
 
 About 1650. 
 
 [Reported Kelj/ng, 42.] 
 
 At the Sessions I inquired of Le Mott's Case, which was adjudged 
 in the time of tjia late troubles, and my Brother Wyld told me that the 
 case was this: That thieves came with intent to rob him, and finding ) 
 the door locked up? pretended they came to speak with him, and there- '^ 
 upon a maid-servant opened the door^ and they came in and robbed 
 him, and this l)eing in the night- time^-4)iis was adjudged burglary and 
 the persons hanged ; for their intention being to rob. and getting the 
 door open by a false pretence, this was in fraudem legis, and so they 
 were guilty of burglary though they did not actually break the house, 
 for this was in law an actual breaking, being obtained by fraud to have 
 
 1 This case, though never before printed, is cited in Vaillant's Dyer, 99 note. — Ed. 
 
 ^)
 
 i 
 
 820 REX V. LYONS. [CHAP. XII. 
 
 the door opened ; as if men pretend a warrant to a constable, and 
 bring him along with them, and under that pretence rob the house, if it 
 b-^ in the night this is burglary.^ 
 
 REX V. GRAY. 
 
 Old Bailey. 1722. 
 
 [Reported 1 Strange, 481.] 
 
 One of the servants in the house opened his ladj-'s chamber door 
 (which was fastened with a brass bolt) with design to commit a rape ; 
 and KixG, C. J., ruled it to be burglary, and the defendant was con- 
 victed and transported. 
 
 REX V. LYONS. 
 
 Crown Case Reserved. 1778. 
 [Reported Leach {4fh ed.), 185.] 
 
 At the Old Bailey in January Session, 1778, L3'on L^-ons and 
 Thomas Miller were tried before Mr. Serjeant Glynn, Recorder, for 
 burglariously breaking and entering the dwelling-house of Edward 
 Smith, with intention to commit a felon}'. 
 
 The jury found a general verdict guilty^ subject to the opinion of the 
 judges upon the following case : — 
 
 Mr. Smith had some time before purchased this house with an inten- 
 tion to reside in it, and had moved some of his effects to the value of 
 about ten pounds, into the house ; but at the time the offence was sup- 
 posed to have been committed, it was under the care of a carpenter, 
 for the purpose of being repaired; and Mr. Smith had not himself 
 entered into possession of an}' part of it, nor did an}' part of his 
 family, or any person whatever sleep therein. The prisoners broke and 
 entered this house in the night-time, with an intention to steal ; but 
 whether it can in construction of law be considered the dwelling-house 
 of Edward Smith they submitted, «fec. 
 
 This case was made upon the objection of Mr. Howarth^ the pris- 
 oner's Counsel ; and a copy of it was delivered to each of the judges 
 named in the margin.^ 
 
 1 Ace. Farr's Case, Kel. 43 ; Com. v. Lowrey, 158 Mass. 18, 32 N. E. 940; Johnston 
 V. Com., 85 Pa. 54. —Ed. 
 
 ^ Lord Mansfield, Dk Grey, C. J., Skinner. C. B., Blackstone, Ashhukst, 
 Nares. Gould, Willes, JJ., Perrtn. Hoth>»m. Evre. BB-
 
 SECT. I.] BEX V. DAVIES. 821 
 
 The Judges in Easter Term, 1778, were of opinion, That a house so 
 situated could not be considered as a dvvelling-house, it being com- 
 pletely uninhabited ; and therefore there could be no burglary. 
 
 The judgment against the prisoners was accordingly arrested. 
 
 JOHNSON'S CASE. 
 Crown Case Reserved. 1786. 
 
 {Reported 2 East P. C. 488.] / 
 
 Though if a thief enter a dwelling-house in the night-time through 
 the outer door being left open, or by an open window; yet if when 
 "^\\'ithin the house he turn the key of or unlatch a chamber-door with 
 intent to commit felony this is burglary : and so it was adjudged on a 
 special verdict at Newgate, 1672. The same was lately ruled in 
 Johnson's Case b}' all the judges ; where the prisoner entered at a") ^ 
 back door of the house of William Hughes at Newington in Surrey, • , 
 which had been left open b}- the family ; and afterwards broke open an 
 inner door, and stole goods out of the room ; and then unbolted the 
 street door on the inside and went out. 
 
 ) 
 
 REX V. DAVIES. 
 
 Crown Case Reserved. 1800. 
 
 \ 
 
 {Reported Leach (4th ed.), 876.] 
 
 At the Old Bailey in June Session, 1800, John Davies was indicted 
 before Mr. Baron Chambre, present Mr. Justice Grose and the 
 Recorder, for stealing a quantity of pans, kettles, candlesticks, 
 &e., above the value of 40s., the property of Thomas Pearce in his 
 dwelling-house. 
 
 The larceny was clearly proved, but it appeared that INIr. Pearce was 
 a brewer in considerable business living in Milbank Street, and owner 
 of the " Star and Garter" public house in Palace-yard, in which house 
 the larceny' was committed. The house was at this time shut up, and 
 in the day-time totally uninhabited ; hut Mr. Pearce's man was put to 
 sleep in it at night for the protection of the goods that were in the 
 house, until some other publican should take possession of it. It had 
 remained in this state about six weeks previous to the robbery, during 
 which time it had been let to a [)ublican who had not taken possession 
 of it. There were at this time in the house sixteen or seventeen beds, 
 and a variety of chairs, tables, and other articles of furniture, which
 
 822 COMMONWEALTH V. STEWARD. [CHAP. XII. 
 
 Mr. Pearce had purchased of the former tenant, with a view to accom- 
 modate the person to whom he might let it, but with no intention of 
 residing in tlie house himself, either personally or b\' means of any of 
 his servants. 
 
 The counsel for the prisoner submitted to the court that this house 
 could not be considered as the dwelling-house of Pearce, and that 
 therefore the prisoner ought to be acquitted of the capital part of the 
 offence, and cited the cases stated in the margin.^ The case, however, 
 was left with the jur}-, and they found the prisoner guilt}' of the whole 
 charge, but the point was saved for the consideration of the judges. 
 
 The Judges, in Trinity Term, 1800, were of opinion that as it 
 clearly appeared by the evidence that Mr. Pearce had no intention 
 whatever to reside in this house either bj- himself or his servants, it 
 could not in contemplation of law be considered as his dwelling-house, 
 and that not being such a dwelling-house wherein burglary might be 
 committed, the capital part of the charge under 12 Ann. c. 7, was 
 done awa3'. 
 
 The prisoner aecordingl}' received his Majesty's pardon on condition 
 of transportation. 
 
 COMMONWEALTH v. STEWARD. 
 Supreme Judicial Court of Massachusetts. 1789 
 
 [Reported 7 Dane's Ahr. 136.] 
 
 Steward was indicted for burglar}- in the house of John Fisk. The 
 court held that it is a burglarious breaking to open a door when latched 
 and shut, or to push up a window when shut down, though not 
 fastened ; these being in their shut position. But if a window be a 
 -jittre pushed up, or a door a little opened, &c., so that one passing by 
 may see the owner has not properl}' shut his house, it is not a burglari- 
 _ous breaking to enter, though a further pushing up of the window or 
 opening of the door be necessary for the person to enter ; but that it is 
 not customary for men, nor necessary always, to have all the glass of 
 their windows whole, or the joints of their doors, windows, &c., exact.^ 
 Attorney- General^ for the State. 
 Bradbury ^ for the defendant. 
 
 1 Harris's Case, Leach, 701 ; Thompson's Case, Leach, 771 ; Fuller's Case, Leach, 
 186 n. 
 a Ace. Rex v. March, 1 Moo. C. C. 178. See Rex v. Lewis, 2 C. & P. 628. — Ed. 
 
 4 / Ai ^7-
 
 SECT. I.] COMMONWEALTH V. STEPHENSON. 8ti3 
 
 COMMONWEALTH v. STEPHENSON. 
 Supreme Judicial Court of Massachusetts. 1829. 
 
 [Reported 8 Pickering, 354. J 
 
 Indictment for burglary. The evidence as to breaking was, that in 
 the evening of ]\Iay 22 tlie witness fastened the outer door of the dwell- 
 ing-house by turning a button down upon the latch, and that about day- 
 break in the morning he found the door open, and also that the network 
 of the buttery window had been cut away and torn down. The netting 
 was made of double twine, and was fastened by nailing it on each side, 
 and at the top and bottom of the window, for the purpose of letting m 
 the air and keeping out cats and other small animals. Within the net- 
 work there was a glass window, which had not been shut. Putnam, J., 
 instructed the jury that if the defendants broke, cut, or tore away the 
 net so fastened, it was in law a breaking of the dwelling-house. The 
 defendants, being found guilt}-, moved for a new trial because the fore- 
 going instruction was wrong. 
 
 Bates and G. J>liss, Junior, for the defendants. Entering by an 
 open window will not sustain an indictment for burglary: 2 Russ. 901 ; 
 
 1 Hawk. P. C. c. 38, §§ 4, 5 ; 4 Bl. Com. 226; Callon's Case, cited in 
 
 2 Russ. 903 ; and the circumstance that a netting was stretched across 
 the window in the present case is immaterial, as this netting was put 
 up only as a security against the entry of small animals. The window 
 was the natural protection against an entry bj' man. To constitute a 
 breaking, the thing broken must be a part of the house. 1 Hawk. P. C. 
 c. 38, §§ 4, 5 ; Fester, 108 ; 1 Hale, 552 ; 2 Stark. Ev. 320. This net- 
 ting was not even a fixture. Beck v. Rebow, 1 P. Wms. 94 ; Gale v. 
 AVard, 14 Mass. 35(3; Whiting v. Brastow, 4 Pick. 310; Com. v. 
 Trimmer, 1 Mass. 470.^ 
 
 Davis (Solicitor-General) cited 3 Chit. Crim. Law, 1098 ; 1 Hale, 
 552 ; East P. C. 487; 4 Bl. Com. 226. 
 
 Parker, C. J., delivered the opinion of the court. The question in 
 this case is, w-hether there was a breaking or not. The lifting a latch 
 and opening the door, though not bolted or locked ; the shovnig up a 
 window, though not fastened ; the getting down a chimne}', and vari- 
 ous other acts done to effect an entry, are held to be a breaking. The 
 offence consists in violating the common security of a dwelling-house 
 in the night-time, for the purpose of committing a felony. It makes no 
 difference whether the door is barred and bolted, or the window secured, 
 or not; it is enough that the house is secured in the ordinar}- way ; so 
 that by the carelessness of the owner in leaving the door or window 
 open, the party accused of burglary be not tempted to enter. Shutting 
 the window blinds and leaving the windows open for air is a common 
 
 1 Part of the argument is omitted. 
 
 I r 
 I
 
 824 MASON V. PEOPLE. [CHAP. XII. 
 
 mode of closing a house in the warm season ; if the blinds are forced, 
 it is a breaking. 
 
 The objection is, that the lattice-work of the dairy window was of 
 twine only. Suppose it were of wire or thin slats of wood, would there 
 be any difference? This network was nailed down on all sides ; it was 
 torn away by the defendants, and they entered the breach. This is 
 quite sufficient to constitute a burglarious breaking and entry. 
 
 Motion for a new trial omrruled. 
 
 \ 
 
 MASON V. PEOPLE. 
 Court of Appeals of New York. 1863. 
 
 [Reported 26 New York. 200.] 
 
 Error to the Supreme Court. The plaintiff in error was indicted in 
 \ the New York General Sessions. The first count charged him with 
 
 feloniousl}' and burglariousl}' breaking and entering, in the daytime, 
 the dwelling-house of Christopher Thomas, " with intent to commit 
 some crime therein," but not specifying what crime. The second count 
 charged a larcen}', in the dwelling-house before-mentioned, of a gold 
 ring, the property of Minna Thomas. The evidence was that Thomas 
 and his wife Minna occupied three rooms in what is known as a tene- 
 ment house, for which they paid rent monthlj'. Three other families 
 occupied different apartments of the same house, one of these families 
 having rooms on the same floor with Thomas. There was one common 
 door of entrance into the house, which opened from the street into the 
 first floor or story, through which all the tenants passed to their respec- 
 tive apartments. When the offence was committed the front door was 
 open, the prisoner breaking only the door of Mrs. Thomas' room, 
 which she had left locked. The prisoner's counsel asked the court 
 to charge that breaking an inner door in the daytime with intent to 
 steal is not a burglary. He maintained that the outer door of tlie 
 house was the outer door of every tenant living within ; that the crim- 
 inal breaking of that door would have been a burglary of the dwelling- 
 house of the tenant whose property the offender intended to steal ; and 
 that, as a consequence, the breaking of the inner door was not, because 
 a double burglar}' could not be committed b}' breaking first the street 
 door and then the inner. The court refused to charge as requested, 
 and the prisoner took an exception. He was convicted of burglary in 
 the third degree, and the judgment having been affirmed by the Supreme 
 Court in the first district, he appealed to this court. 
 
 S. H. Stewart, for the plaintiff in error. 
 
 A. Oakey Hall., for the People.
 
 SECT. I.J QUINN V. PEOPLE. 825 
 
 Emott, J.^ As to the objection taken at the trial that burglary could 
 not be committed by breaking and entering apartments in what is 
 known in cities as a tenement house, a building occupied separately by 
 several families, each having distinct apartments opening into a com- 
 mon hall, and thus communicating with the street, it has, in my judg- 
 ment, no foundation. Any and every settled habitation of a man and his 
 family is his house or his mansion, in respect to its burglarious entry. 
 It was so held before Lord Hale's time as to chambers in colleges and 
 inns of court, and even as to a chamber hired by A. in the house of B., 
 for lodging for a specitied time. Hale PI. Cor., I., p. 556. Serjeant 
 Hawkins (Cr. Law, vol. i. p. 163) gives the same rule as to tenement 
 or lodging houses, except that he seems to suppose that a difference 
 might arise when the owner of the house himself lived in it. But such 
 aiLeiception would only lie where the other inmates were lodgers with 
 ^the^ owner, and not proprietors of distinct tenements separately hired 
 and occupied for a longer or shorter time, with access either separately 
 orjohitly to the street. AVherever a building is severed by lease into 
 distinct habitations, each becomes the mansion or dwelling-house of 
 the lessee thereof, and is entitled to all the privileges of an individual 
 dwelling. The case of the People v. Bush, 3 Park, Cr. R. 556, was 
 precisel}' like the one at bar, and it was there held b}- three judges of 
 the Supreme Court, of whom the one pronouncing the opinion was a 
 learned and experienced criminal lawj'er, that a room or rooms in a 
 tenement house, rented to separate families with a door and entry com- 
 mon to all, constituted each the dwelling-house of the particular occu- 
 pant in the sense of the law. Such we understand to be the well-settled 
 rule. 
 
 The judgment of the Supreme Court affirming that of the Court of 
 Sessions was right, and must be affirmed in this court. 
 
 Judgment affirmed. 
 
 QUINN V. PEOPLE. ( t 
 
 j Court of Appeals of New York. 1878. 
 
 [Reported 71 New York, 5&l.] 
 
 FoLGER, J.^ The plaintiff in error was indicted of the crime of burg- 
 lary in the first degree, under the section of the Revised Statutes 
 defining that crime. 2 R. S. p. 668, § 10, subd. 1. The crime, as 
 there defined, consists in breaking into, and entering in the night-time, 
 in the manner there specified, the dwelling-house of another, in which 
 there is at the time some human being, with the intent to commit some 
 crime therein. The evidence given upon the trial showed clearly enough 
 
 ^ Part of the opinion is omitted.
 
 s\ 
 
 826 QUINN V. PEOPLE. [CHAP. XII. 
 
 the breaking and entering, and the criminal intent. The questions 
 mooted in this court are, whether it is legally proper, in an indictment 
 for burglary of a dwelling-house, to aver the ownership of the building 
 in a partnership, and wliether the proof showed that the room entered 
 was a dwelling-house witliin the intent of the statute. As to the first 
 question : The indictment averred the breaking and entering into the 
 dwelling-house of Frederick Kohnsen and John F. Lubkiu, being co- 
 partners in business under the firm-name and style of Kohnsen & 
 Lubkin. The authorities are numerous enough and clear, that the 
 ownership of the dwelling-house may be laid in the indictment to be in 
 the members of a copartnership, wlieu the facts of the case warrant it. 
 In Rex V. Athea, R. & M. C. C R. 329, the indictment averred the 
 stealing in the dwelling-house of Hailing and others. It appeared that 
 Hailing, Pierce & Stone carried on business on the premises in wliich 
 the oflfence was committed. Pierce lived in tbe house, which was the 
 joint propert}' of the firm. The other partners resided elsewhere. It 
 was held, upon a case reserved, that the dwelling-house was properly 
 laid as that of all the partners. See, also, Rex v. Stockton & 
 Edwards, 2 Taunt. 339 ; 2 Leach, 1015 ; s. c. sub nom. Rex v. Stock 
 et al., Russ. & Ry., 185 ; Rex v. Hawkins, Foster's Cr. Law, 38 ; Rex 
 V. Jenkins, Russ. & R}'. 244 ; Saxton's Case, 2 Harr. 533. 
 
 The facts of the case in hand are meagrel}' presented upon the error- 
 book, but we gather from it, and from the concessions made upon the 
 points and on the oral argument, that Kohnsen and Lubkin, the per- 
 sons named in the indictment, were copartners in trade ; and, as such, 
 held and occupied the buildings, into one room of which the burglarious 
 entrv was made ; that the lower or first stories of the buildings were 
 used for the purposes of their business, and opened into each other ; 
 that in the upper rooms one only of the partners and some other per- 
 sons lived, and were present on the night of the burglary. This state 
 of facts is in accord with those presented in the cases above cited. We 
 are of opinion that the first question presented must be resolved against 
 the plaintitlin error. The ownership of the buildings was properly laid 
 by the indictment in Kohnsen & Lubkin. The ownership reuiained with 
 them ; the actual possession of the portions of the buildings used for 
 business was in them, and the possession of part of tiie portion of llie 
 buildings used to live in was in them, by the actual possession and 
 occupation of that part by Kohnsen. They had not given such an 
 interest to other persons in the whole or in parts of the buildings as to 
 constitute an ownership in such other persons. 2 East, P. C. C. 15, 
 § 18, p. 502. The cases are somewhat in conflict upon this point, it 
 is true, and are not easily reconciled or distinguished ; see Rex v. 
 Margetts, et al, 2 Leach, 930 ; but it is plain that here the partners, as 
 such, had the ultimate control and right of possession of the whole 
 buildings, and the actual possession of the shop entered, and of the 
 sleeping-room above it, thus bringing the case within several decisions. 
 
 As to the second question : In addition to the facts already stated,
 
 SECT. I.J QUINN V. PEOPLE. 827 
 
 it is needed only to note that there was an internal communication 
 between the two stores, in the lower stories of the huiklings, but none 
 between them and the upper rooms, m which one of tlie partnei.s 
 and other persons lived. The room into which the plaintiff in error 
 broke was used for business purposes only, but it was within the same 
 four outer walls, and under the same roof as the other rooms of the 
 buildings. To pass from the rooms used for business purposes to the 
 rooms used for living in, it was necessary to go out of doors into a 
 yard fenced in, and from thence up stairs. The unlawful entering of 
 the plaintiff in error was into one of the lower rooms used for trade, 
 and into that onl}". The point made is, that as there was no internal 
 communication from that room to the rooms used for dwellings, and as 
 that room was not necessary for the dwelling-rooms, there was not a 
 breaking into a dwelling-house, and hence the act was not burglar}' in 
 the first degree as defined by the Revised Statutes as cited above. In 
 considering this point, 1 will first say that the definition of the crime of 
 burglary in the first degree, given by the Eevised Statutes, does not, 
 so far as this question is concerned, materiaih" differ from the defini- 
 tion of the crime of burglar\- as given at common law, to wit, " a 
 breaking and entering the mansion-house of another in the night, with 
 intent to commit some felony within the same." ... 2 Russ. on Cr. 
 p. 1, § * 785. It will, therefore, throw light upon this question to 
 ascertain what buildings or rooms were, at common law, held to be 
 dwelling-houses or a part thereof, so as to be the subject of burglary. 
 For, so far as the Revised Statutes as already cited are concerned, 
 what was a dwelling-house or a part thereof at common law, must also 
 be one under those statutes. Now, at common law, before the adop- 
 tion of the Revised Statutes, it had been held that it was not needful 
 that there should be an internal communication between the room or 
 building in which the owner dwelt, if the two rooms or buihlings were 
 in the same inclosure, and were built close to and adjoining each 
 other. Case of Gibson, Mutton & Wiggs, Leach's Cr. Cases, 320 (case 
 165), recognized in The People u. Parker, 4 Johns. 423. In the case 
 from Leach, there was a shop built close to a dwelling-house in which 
 the prosecutor resided. There was no internal communication between 
 them. No person slept in the shop. The only door to it was in the 
 court-yard before the house and shop, which yard was inclosed by a 
 brick wall, including them within it, with a gate in the wall serving 
 for ingress to them. The breaking and entering was into the shop. 
 Objection was taken that it could not be considered the dwelling-house 
 of the prosecutor, and the case was reserved for the consideration of 
 the twelve judges. The}' were all of the opinion that the shop was to 
 be considered a part of the dwelling-house, being within the same 
 building and the same roof, though there was only one door to the 
 shop, that from the outside, and that the prisoners had been duly con- 
 victed of burglary in a dwelling-house. The case in Johnson's Reports, 
 supra, is also significant, from the facts relied upon there to distin-
 
 828 QUINN V. PEOPLE. [CHAP, XII. 
 
 guish it from the case in Leach, supra. Those facts were that the shop 
 entered, in which no One slept, tliongh on the same lot with the dwell- 
 ing-house, was twenty feet from it, not inclosed b3' the same fence, nor 
 connected by a fence, and both open to a street. The court said that 
 they were not within the same curtilage, as there was no fence or yard 
 inclosing both so as to bring tliem within one inclosure, therefore, the 
 case was within that of The King v. Garland, 1 Leach Cr. Cas. 130 
 (or 171), case 77. It has been urged, in the consideration of the case 
 in hand, that though the common law did go farther than the cases 
 above cited, and did deem all out-houses, when the}' were within the 
 same inclosure as the dwelling-house, a part of it, yet that the}' must, 
 to be so held, be buildings or rooms tlie use of which subserved a 
 domestic purpose, and were thus essential or convenient for the enjoy- 
 ment of the dwelling-house as such. Gibson's case, supra, would 
 alone dispose of that. The building there entered was not only of 
 itself a shop for trade, but it was ni the use and occupation of a per- 
 son other than the owner of the dwelling-house. The books have many 
 cases to the same end. Rex r. Gibbons & Kew Russ. & Ry. 442, 
 the case of a shop. Robertson's case, 4 City Hall Rec. 63, also a 
 shop with no internal communication with the dwelling-house. Rex v. 
 Stock et al., Russ. & Ry. 185, a counting-room of bankers. Ex parte 
 Vincent, 26 Ala. 145, one room in a house used as a wareroom for 
 goods. Rex V. Witt, Ry. & M. 248, an office for business, below 
 lodging rooms. Indeed, the essence of the crime of burglary at com- 
 mon law is the midnight terror excited, and the liabilit}- created b}' it 
 of danger to human life, growing out of the attempt to defend property 
 from depredation. It is plain that both of these may arise, when the 
 place entered is in close contiguity with the place of the owner's repose, 
 though the former has no relation to the latter b}' reason of domestic 
 use or adaptation. Besides, the cases have disregarded the fact of 
 domestic use, necessity, or convenience, and have found the criterion in 
 the physical or legal severance of the two departments or buildings. 
 Rex V. Jenkins, Russ. & Ry. 244 ; Rex v. Westwood, id. 495 ; where 
 the separation of the buildings was by a narrow way, both of them 
 being used for the same family domestic purposes. It is not to be 
 denied that there are some cases which do put just the difference 
 above noted, as now urged for the plaintiff in error. State v. Lang 
 ford, 1 Dev. 253; State v. Jenkins, 5 Jones, 430; State v. Bryant 
 Ginns, 1 Nott & McCord, 583. Though, in the case last cited, it is 
 conceded that if a store is entered, which is a part of a dwelling-house, 
 by being lihder the same roof, the crime is committed ; and it must be 
 so, if it is the circumstance of midnight terror in breaking open— a. 
 dwelling-house, which is a chief ingredient of the crime of burglary ; 
 and it is for that reason that barns and other out-houses, if in proxim- 
 ity to the mansion-house, are deemed quasi dwelling-houses, and enti- 
 tled to the same protection. State v. Brooks, 4 Conn. 446-449. Coke 
 (3 Inst. 64) is cited to show that only those buildings or places, which
 
 SECT. I.] QUINN V. PEOl'LE. 829 
 
 in their nature and recognized use are intended for the domestic com- 
 fort and convenience of the owner, may be the subject of burglary at 
 common law ; but in the same book and at the same page the author 
 also says : " But a shop wherein any person doth converse " — that is, 
 be employed or engaged with ; Richardson's Die, in voce — " being a 
 parcell of a mansion-house, or not parcell, is taken for a mansion- 
 house.'* So Hale is cited (vol. 1, P. C. 558) ; and it is there said tliat, 
 " to this day it is holden no burglary to break open such a shop.'' But 
 what does he mean bj' that phrase ? That appears from the authority 
 which he cites (Hutton's Reps. 33) ; where it was held no burglar}- to 
 break and enter a shop, held by one as a tenant in the house of 
 another, in which the tenant worked b}' day, but neither he nor the 
 owner slept b}- night. And the reason given is the one above noticed 
 and often recognized by the cases, that by the leasing there was a 
 severance in law of the shop from the dwelling-house. But Hale also 
 (vol. 1, P. C, p. 557) cites as law the })assage from The Institutes 
 above quoted. Other citations from text books are made by the plain- 
 tiff in error ; they will be found to the same effect, and subject to the 
 same distinction as those from Coke and Hale. And see Rex v. Gib- 
 bons et al., supra ; Rex v. Richard Carroll, 1 Leach Cr. Cas. 272, case 
 115. That there must be a dwelling-house, to which the shop, room, 
 or other place entered belongs as a part, admits of no doubt. To this 
 effect, and no more, are the cases cited by the plaintiff in error, of 
 Rex V. Harris, 2 Leach, 701 ; Rex v. Davies. alias Silk, id. 876, and 
 the like. There were cases which went further than anything I have 
 asserted. They did not exact that the building entered should be close 
 to or adjoining the dwelling-house, but held the crime committed, if 
 the building entered was within the same fence or inclosure as the build- 
 ing slept in. And the dwelling-house in which burglary might be com- 
 mitted was held formerly to include out-houses, — such as warehouses, 
 barns, stables, cow-houses, dair3--houses, — though not under the same 
 roof or joining contiguous to the house, provided they were parcel 
 thereof. 1 Russ. on Cr.* 799, and authorities cited. Any out-house 
 within the curtilage, or same common fence with the dwelling-house 
 itself, was considered to be parcel of it, on the ground that the capital 
 house protected and privileged all its branches and appurtenants, if 
 within the curtilage or home-stall. State v. Twittj', 1 Hayw. (N. C.) 
 102 ; State v. Wilson, id. 242 ; see also State v. Ginns, 1 Nott & 
 McCord, 583, supra, where this is conceded to be the common law. 
 See note a to Garland's case, supra. 
 
 It seems clear, that at common law the shop which the plaintiff in 
 error broke into would have been held a part of a dwelling-house. 
 
 The judgment brought up for review should be affirmed. 
 
 It maj' ward off misapprehension if it is said, that if different stores 
 m a large building, some parts of which are used for sleeping apart- 
 ments, are rented to different persons for purposes of trade or com- 
 merce, or mechanical pursuit, or manufacturing, another rule comes va
 
 830 WALKER V. STATE. [CHAP. XII. 
 
 For illustration, let there be mentioned the Astor House in New York 
 city. The rule is, that a part of a dwelling-house may be so severed 
 from the rest of it, by being let to a tenant, as to be no longer a place 
 in which burglary in the first degree can be committed ; if there be no 
 internal communication, and the tenant does not sleep in it. Then it 
 is not parcel of the dwelling-house of the owner, for he has no occupa- 
 tion or possession of it ; nor is it a dwelling-house of the tenant, for he 
 does not lodge there. 1 Hale P. C. 557, 558 ; Kel. 83, 84 ; 4 Black. 
 Com. 225, 226 ; East P. C. c. 15, § 20, p. 507. 
 
 Allen, Miller, and Earl, JJ., concur ; Rapallo and Andrews, JJ., 
 dissent; Church, C. J., not voting. Judgment affirmed. 
 
 WALKER V. STATE. 
 Supreme Court of Alabama. 1879. 
 
 [Reported 63 Ala. 49.] 
 
 Brickell, C. J. The statute (Code of 1876, § 4343) provides, that 
 *' an}' person who, either in the night or day time, with intent to steal, 
 or to commit a felon}', breaks into and enters a dwelling-house, or any 
 building, structure, or inclosure within the curtilage of a dwelling- 
 house, though not forming a part thereof, or into any shop, store, 
 warehouse or other building, structure, or inclosure in which any goods, 
 merchandise or other valuable thing is kept for use, sale, or deposit, 
 provided such structure, other than a shop, store, warehouse, or build- 
 ing, is specially constructed or made to keep such goods, mei'chandise, 
 or other valuable thing, is guilty of burglar}'," etc. 
 
 The defendant was indicted for breaking into and entering " a corn- 
 crib of Noadiah Woodruff and Robert R. Peeples, a building in which 
 corn, a thing of value, was at the time kept for use, sale, or deposit, 
 with intent to steal,'' etc. He was convicted : and the case is now 
 presented on exceptions taken to instructions given, and the refusal of 
 instructions requested, as to what facts will constitute a breaking into- 
 and entry, material constituents of the offence charged in the indict- 
 ment. The facts on which the instructions were founded are : that in 
 the crib was a quantity of shelled corn, piled on the floor ; in April or 
 May, 1878, the crib had been broken into, and corn taken therefrom, 
 without the consent of the owners, who had the crib watched ; and 
 thereafter the defendant was caught under it, and on coming out, vol- 
 untarily confessed that about three weeks before he had taken a large 
 auger, and going under the crib, had bored a hole through the floor^ 
 from which the corn, being shelled, ran into a sack he held under it ; 
 that he then got about three pecks of corn, and with a cob closed the 
 hole. On these facts the City Court was of opinion, and so instructed
 
 SECT. I.] WALKEE V. STATE. 831 
 
 the jiirj', that there was such a breaking and cntr}' of the crib, as would 
 constitute the offence, and refused instructions requested asserting the 
 converse of the proposition. 
 
 The material changes the statute has wrought as to the offence of 
 buigiarv, as known and defined at common law, are as to the time and 
 place of its commission. An intent to steal or to commit a felony are 
 the words of the statute, while an intent to commit a felony- were the 
 words of the common law. Under our statutes, a felony is defined as 
 a public offence, punished by death, or by imprisonment in the peniten- 
 tiary ; while public offences otherwise punishable are misdemeanors. 
 The larceny of other than personal property particularly enumerated, 
 and under special circumstances, the property not exceeding the value 
 of $25, is petit larceny, and a mere misdemeanor. The intent to steal, 
 as an element of burglar}-, is therefore made the equivalent of an 
 tntent to commit a felon^', though the value of the thing intended to be 
 stolen may be less than $25, and its larcen}' a misdemeanor. 
 
 The statute employs the words, "breaks into and enters;" and 
 these are borrowed from the common-law definition of burglarj'. They 
 must be received with the signification, and understood in the sense 
 given them at common law. "There must, in general," says Black- 
 stone, " be an actual breaking, not a mere legal clcncsuni f regit b\' 
 leaping over invisible ideal boundaries, which may constitute a civil 
 trespass, but a substantial and forcible irruption." The degree of 
 force or violence which may be used is not of importance, — it may 
 be very slight. The lifting the latch of a door ; the picking of a lock, 
 or opening with a key ; the removal of a pane of glass, and indeed, the 
 displacement or unloosing of any fastening, which the owner has pro- 
 vided as a securit}' to the house, is a breaking — an actual breaking — 
 fvithin the meaning of the term as employed in the definition of burg- 
 lar}' at common law, and as it is employed in the statute. In Hughes' 
 case, 1 Leach, C. C, case 178, the prisoner had bored a hole with a 
 centre-bit through the panel of the house door, near to one of the bolts 
 by which it was fastened, and some pieces of the broken panel were 
 found withinside the threshold of the door, but it did not appear that 
 any instrument except the point of the centre-bit, or that an}- part of 
 the prisoner's body had been withinside the house, or that the aperture 
 made was lar^e enough to admit a man's hand. The court were of 
 opinion that there was a sufficient breaking, but not such an entry as 
 would constitute the offence. 
 
 The boring the hole through the floor of the crib was a sufficient 
 breaking, but with it there must have been an entry. Proof of a break- 
 ing, though it may be with an intent to steal or the intent to commit a 
 felony, is proof of one only of tlie facts making up the offence, and is as 
 insufficient as proof of an entry through an open door without break- 
 ing. If the hand or any part of the body is intruded within the house 
 the entry is complete. The entry may also be completed by the intru- 
 sion of a tool or instrument within the house, though no part of the
 
 832 WALKER V. STATE. [CHAP. XII. 
 
 bodj' be introduced. Thus, " if A. breaks the house of B. in the night- 
 time, with intent to steal goods, and breaks the window and puts in his 
 hand, or puts in a hook or other engine to reach out goods, or puts a 
 pistol in at the window, with an intent to kill, though his hand be not 
 within the window, this is burglary." 1 Hale, 555. When no part of 
 the bod}' is introduced, — when the only entry is of a tool or instrument 
 introduced by the force and agency of tiie part}- accused, the inquiry is 
 whether the tool or instrument was employed solely for the purpose of 
 breaking, and thereby effecting an entry, or whether it was employed 
 not only to break and enter, but also to aid in the consummation of the 
 criminal intent and its capacity to aid in such consummation. Until 
 there is a breaking and entr\' the offence is not consummated. The 
 offence rests largel}' in intention, and though there may be sufficient 
 evidence of an attempt to commit it, which of itself is a crime, the 
 attempt may be abandoned, — of it there may be repentance before the 
 consummation of the offence intended. The breaking may be at one 
 time and the entiy at another. The breaking may be complete, and 
 yet an entry never effected. From whatever cause an entry is not 
 effected, burglary has not been committed. When one instrument is 
 employed to break, and is without capacity to aid otherwise than by 
 opening a way of entry, and another instrument must be used, or the 
 instrument used in the breaking must be used in some other way or 
 manner to consummate the criminal intent, the intrusion of the instru- 
 ment is not of itself an entr}'. But when, as in this case, the in 
 strument is employed not only to break, but to effect the only entry 
 contemplated and necessary to the consummation of the criminal intent , 
 when it is intruded within the house, breaking it, effecting an entry, 
 enabling the person introducing it to consummate his intent, the offence 
 is complete. The instrument was employed not only for the purpose 
 of breaking the house, but to effect the larceny intended. When it was 
 intruded into the crib the burglar acquired dominion over the corn 
 intended to be stolen. Such dominion did not require any other act 
 on his part. When the auger w^as withdrawn from the aperture made 
 with it the corn ran into the sack he used in its asportation. There 
 was a breaking and entry, enabling him to effect his criminal intent 
 witiiout the use of any other means, and this satisfies the requirements 
 of the law. 
 
 Let the judgment be affirmed. 
 
 Judgment affirmed.
 
 SECT. 11.] HOLMES'S CASE. 833 
 
 / / 
 
 SECTION IL 
 
 Arson, 
 
 1 Hawk. P. C. ch. 18, sects. 1, 2. Arson is a felony at common 
 law, in maliciously and voluntarily burnuig the house of another by 
 liTgTit or by day. 
 
 Not only a mansion-house, and the principal parts thereof, but also 
 any other house, and the outbuildings, as barns and stables, adjoining 
 thereto, and also barns full of corn, whether they be adjoining to any 
 house or not, are so far secured by law, that the malicious burning 
 of them is arson, and it is said, that in an indictment they are well 
 expressed by the word dotmcs, without addhig mansionabs. 
 
 But it seems that at this day the burning of the frame of a house,* 
 or of a stack of corn, &c., is not accounted arson, because it cannot 
 come under the word domus, which seems at present to be thought 
 necessary in ever\' indictment of arson, ^et it is said that anciently the 
 burning a stack of corn was accounted arson. 
 
 ANONYMOUS. 
 
 Assizes. 1495. 
 
 [Reported Year Book, 11 H. VTI. 1.] 
 
 A MAN was indicted because he had feloniously at night burned a 
 barn, and because it adjoined the house, it was held felony at common 
 law, and the party was hanged. 
 
 HOLMES'S CASE. 
 King's Bench. 1634. 
 
 [Reported CroJce Car. 376.] 
 
 William Holmes was indicted in London, For that he, in April, 7 
 Car. I,, being possessed of an house in London, in Throgmorton street, 
 in such a ward, for six years, remainder to John S. for three years, the 
 reversion to the corporation of Haberdashers, in fee : he vi et armis, 
 3 April, 7 Car. I., the said house " felonice, voluntarie, et raalitiose, 
 igne combussit, ea intentione, ad eandem domum mansionalem, nee non 
 
 1 See Mulligan «. State. 25 Tex. App. 199. — Ed-
 
 834 HOLMES'S CASE. [CHAP. XII. 
 
 cUversas alias domos mansionales diversornm ligeovum, domini regis , 
 adtunc et idem situat. et existent, ad dictum domum mansionalem dieti 
 WiUiehiii Holmes contigue adjacent, adtunc et ibidem felonice, volunta- 
 rie, et malitiose totaliter comburendo et igne consumendo contra pacem." 
 
 Upon his being arraigned at Newgate, be was found guilty ; but 
 before judgment this indictment was removed by certiorari into this 
 court. It was argued at the bar by Grimston, that it was not felony ; 
 and now this Term at the bench. 
 
 And, by Richardson, Chief Justice, Jones, and Berkley, [JJ.], it was 
 held, that it was not felony to burn a house wiiereof he is in possession 
 by virtue of a lease for years ; for they said, that burning of houses 
 is not felony, unless that they are mcles aliencB : and therefore Britton, 
 p. 16, Bracton, p. 146, and The Book Assize, 27, Assize, pi. 44, men- 
 tion, that it is felony to burn the house of another; and 10 Edw. 4, 
 pi. 14; 3 Hen. 7, pi. 10; 10 Hen. 7, pi. 1, and Poulter's Case, 11 
 Co. 29, which say, that burning of houses generally is felony, are to 
 be intended de cedibas alienis, et non propriis : and although the 
 indictment be ''ea mtentione ad comburendum felonice, voluntarie, et 
 malitiose," the houses of divers others "■ contigue adjacentes," yet 
 intent only without fact is not felony. Also Berkley and Jones, Jus- 
 tices, held, that it cannot be said to be ci et aronis when it is in his 
 own possession. 
 
 Jones, Justice, also said, that he could not be well indicted of felony, 
 because none of their names are mentioned who were the owners of 
 the houses adjoining. But to that objection Berkley and Richardson, 
 [JJ.], agreed not. 
 
 But I argued, that the burning in the indictment mentioned is felony, 
 because it is capitale crinien, felleo animo perx>etratuvi^ which is the 
 definition of felony in Co. Lit. 391, a. Also by the rule in Bracton, 
 146. " quod incenduim nequiter, et ob inimicitias, factum capitali 
 paMia puniatur ; si vero sit incendium fortuito vel per negligentiam, 
 et non mala conscientia, non sic punietur ; sed versus eum criminaliter 
 aiiatur." And it cannot be said to be by ne2:ligence in another's house ; 
 wherefore it is to be intended in his own house. Also this burning is 
 found to be malitiose ; so it is raald conscientia et nequiter Jacttim. 
 Also this burning of his house in a street of the city adjoining to tiie 
 houses of others, is to the endangering of the city, and therefore ought 
 to be construed to be felony ; but so peradventure is not the burning 
 of his house in the fields. And whereas it was said, that the inten- 
 tion cannot make a felony, it was answered, that the intention here is 
 coupled with an act of burning, and with the intendment of an act 
 which is felony; as 5 Hen. 7, pi. 18; 7 Hen. 7, pi. 42; 13 Edw. 4, 
 pi. 9 ; where a man delivers goods to one, and afterwards he that 
 delivered them privately steals them, to the intent to charge him, it is 
 felony. And whereas it was objected, that being his own possession, 
 it cannot be said vi et armis ; I answered, that vi et armis is well 
 enough, where there is a malfeasance, as it is in an action upon the
 
 SECT. II.J ISAAC'S CASE. " 835 
 
 case, 9 Co. 50, b. Also even* iiuliclinciil is in et armis et contra 
 pacem, where an act is done against tlie commonwealtli : so it is 
 wliere a servant runs awav with goods committed to his trust above 
 forty shillings, although [)ro[)erly it cannot be said to be ci et arniis^ 
 because they were in his custody. Antl in this case tlie ill consequence 
 which might have fallen out by this act makes the offence the greater ; 
 and The Year Books in 10 Edw. 4, i)l. 14; 3 lien. 7, pi. 10; 11 Hen. 
 7, pi. 1 ; and Stanford, 36 ; 11 Co. 29 ; 4 Co 20, a, i)ut the case of 
 burning of houses generally, and not of the burning'of other men's 
 houses : and it is an equal mischief in a commonwealth to burn his 
 own in a city or vill as to burn the houses of others, for the danger 
 which may ensue. 
 
 But THE OTHER THREE JUSTICES rcsolvcd ut supva, that it was not 
 felony ; wherefore he was discharged thereof. 
 
 But because it was an exorbitant offence, and found, the\' ordered, 
 that he should be fined £500 to the king, and imprisoned during the 
 king's pleasure, and should stand upon the pilloiT, with a paper upon 
 his head signifying the offence, at Westminster and at Cheapside, 
 upon the market-da}-, and in the place where he committed the offence, 
 and should be bound with good sureties to his good behavior during 
 life.i 
 
 ISAAC'S CASE. ^' 
 
 Spring Assizes. 1799. 
 
 ^^,„^ [Reported 2 East P. C \03\.] 
 
 John Isaac was indicted for a misdemeanor in having unlawfully, 
 wilfulh', and maliciously set on fire and burnt a certain house of 
 Thomas Isaac, being in the occupation of the said John Isaac : which "T*s 
 house the indictment alleged was contiguous and adjoining to certain 
 dwelling-houses of divers liege subjects, &c. ; b}' means whereof the 
 same were in great danger of being set on fire and burnt. There was 
 a second count which differed only in charging that the house set on 
 fire was the prisoner's own house. 
 
 The counsel for the prosecution opened that the charge to be proved 
 against the defendant, though laid as a misdemeanor, was, that he wil- 
 full}' set on fire his own house in order to defraud the Phoenix fire- 
 insurance ofnce ; and that in fact his own and several other person's 
 houses adjoining were burnt down. Upon which Buller, J.i said, that ii 
 othei- persons' houses were in fact burnt, although the delwiclant might —. 
 only have set fire to his own, yet under these circumstances the prisoner V 
 was guilty, if at all, of felony ; the misdemeanor being merged ; and he 
 could not be convicted on this indictment ; and therefore directed ao 
 acquittal. ** 
 
 * See s. c. reported W. Jones, 351. — Ed. 
 
 2 See Probert's Case, 2 East P. C. 1030. — Ed.
 
 (/: 
 
 836 COMMONWEALTH V. TUCKER. fCHAP. XII. 
 
 COMMONWEALTH u. TUCKER. 
 Supreme Judicial Coukt of Massachusetts. 1872. 
 
 [Reported 110 Mass., 403] 
 
 Indictment alleging that the defendant set fire to the barn of Wil- 
 liam H. Codding, and by the kindling of said fire and the burning of 
 said barn, the dwelling-house of Codding was " burned and consumed." 
 At the trial in the Superior Court, before Brigham, C, J., tlie evidence 
 tended to show that the barn was burned entirely ; tliat the shingles on 
 the roof of the dwelling-house took tire and were burned in two places ; 
 and that persons were on the roof keeping it wet with water ; but nn to r- 
 how much the shingles were burned there was a conflict of testimony. 
 
 The defendant asked the judge to instruct the jury "that the}- must 
 be satisfied that some portion of the dwelling-house had been actually 
 on fire b}' reason of the burning of the barn, and had been burned and 
 consumed thereby ; and that the substance and fibre of the wood of 
 such portion so on fire was actually destroyed." But the judge refused 
 so to instruct the jury, and instructed them " that they must be satis- 
 fied that some portion of the dwelling-house had been actually on fire 
 by reason of the burning of the barn, and had been burned thereby, so 
 that the substance of the wood of such portion so on fire was actually 
 burned." The jury returned a verdict of guilty, and the defendant 
 alleged exceptions. 
 
 /S. H. Toionsefid, for the defendant, cited Commonwealth v. Betton, 
 5 Cush. 427; Commonwealth v. Van Schaack, 16 Mass. 105. 
 
 C. jR. Tratn^ Attorney General, for the Commonwealth. The indict- 
 ment is upon the Gen. Sts. c. 161, § 1, which provide that '' whoever 
 wilfully and maliciously burns the dwelling-house of another," or "wil- 
 fully and maliciously sets fire to any building, b}- the burning whereof 
 such dwelling-house is burnt," shall be punished. The instructions 
 ■were correct. Commonwealth v. Van Schaack, 16 Mass. 105 ; Com- 
 monwealth y. Betton, 5 Cush. 427; Regina v. Parker, 9 C. & P. 45 ; 
 Regina v. Russell, C. & Marsh. 541 ; 2 East P. C. 1020; 1 Hale P. 
 C. 568; Roscoe Crim. Ev. (8th ed.) 281. 
 
 Wells, J. The instructions given to the jury were correct, and in 
 accordance with the authorities ; as well those cited for the defendant 
 as those for the Commonwealth. They required the jury to find that 
 some portion of the dwelling-house had been actually on fire and burned. 
 To have required them to find something more, by use of the terms 
 " consumed" and "destroyed," as prayed for, would have been to go 
 beyond the provisions of the statutes, and to leave the jury with no 
 precise definition of that which was necessary to constitute the offence. 
 
 Exceptions overruled.
 
 CHAP. XIII. j REGINA V. CLOSS. 837 
 
 CHAPTER XIII. 
 FORGERY. 
 
 f 
 
 REGINA V. CLOSS. 
 Court for Crown Cases Reserved. 1857. 
 
 [Reported Dears. ^ B. C. C. 460.] 
 
 The following case was reserved and stated at the Central Criminal 
 Court. 
 
 The prisoner was tried for the forger}' of a copy of a painting, on 
 which he painted the signature " John Linnell." ^ 
 
 "^t was objected by the prisoner's counsel, in arrest of judgment, 
 that these counts disclosed no indictable offence, and the judgment was 
 respited until the next sessions, that the opinion of this Court might 
 be taken whether or not the second and third counts, or either of them, 
 sufficiently showed an offence indictable at common law. The prisoner 
 remains in custody. 
 
 This case was argued, on the 21st November, 1857, before Cockbukn, 
 C. J., Erle, J., Williams, J., Crompton, J. and Channell, B. 
 
 Metcalfe appeared for the Crown, and Mcliityre for the prisoner. 
 
 Mclnti/re, for the prisorer. 
 
 The second and third counts are bad in arrest of judgment. The 
 second count charges in substance a cheat at common law, and that 
 cheat is not properly laid. An indictment for a cheat at common law 
 should so set out the facts as to make it appear on the record that the 
 cheat charged would affect, not a private individual, but the public 
 generally (2 Russ. on Crimes, 280). The obtaining mone}' by means 
 of a mere assertion, or b}' the use of a false private token, is not an 
 indictable offence at common law (2 East P. C. 820). In this count 
 the allegation is that a false token of a private character was used. 
 
 The third count is for forgeiy of the name of John Linnell on a 
 picture. Forgery is defined to be the fraudulent making or alteration 
 of a writing, to the prejudice of another's right (2 Russ. on Crimes, 
 318). In the case of a written instrument, the forgery of the signature 
 is reall}' the forgery of the whole instrument, and is always so laid in 
 the indictment. Unless, therefore, an indictment would lie for the 
 forger}' of a picture, this count cannot be supported. The averments 
 in this count amount to no more than this, in substance, — that the 
 prisoner falsely pretended that the picture was Linnell's. To falsely 
 pretend that a gun was made b}' Manton would be no offence at com- 
 
 1 This short statement is substituted for the copy of the indictment. — E©.
 
 838 REGINA V. CLOSS. [CHAP. XIII. 
 
 mon law ; and no case has gone the length of holding that to stamp 
 the name of Manton on a gun would be forgery. 
 
 Crompton, J. — That would be forgery of a trade mark, and not of 
 a name. 
 
 CocKBURN, C. J. — Stamping a name on a gun would not be a writ- 
 ing ; it would be the imitation of a mark, not of a signature. 
 
 McTntyre. The name put by a painter in the corner of a picture 
 is not his signature. It is onl}' a mark to show that the picture was 
 painted by him. An}' arbitrar}' sign or figure might be used for the 
 same purpose instead of the name ; it is a part of the painting, and 
 every faithful copy would contain it. The averments mean that the 
 whole picture was made to represent the whole of the original ; and the 
 averment of the imitation of the signature is no more than an aver- 
 ment of the imitation of a tree or a house in the original. There is no 
 allegation that the picture was passed off as the original, or the signa- 
 ture as the genuine signatui-e ; neither is there an}' averment that the 
 name was painted for the purpose of inducing the belief that the picture 
 was the original. 
 
 31etcalfe, for the Crown. It is not necessary to show that the cheat 
 alleged in a count for cheating at common law is one which affects the 
 public generally. If to a bare lie^'ou add a false token, it is indictable, 
 and it is a mistake to suppose that the public must be affected. 
 
 Erle, J. — The prisoner did not get the money for the name but for 
 the picture. 
 
 Mc-tcalfe. He obtained it by the whole transaction. In AYorrel's 
 case, Trem. P. C. 106, deceitfully counterfeiting a general seal or mark 
 of the trade on cloth of a certain description and quality, was held to 
 be an indictable cheat. This case and Farmer's case, Trem. P. C. 109. 
 show that the fraud need not be of a strictly pul)lic nature, and that 
 anv device calculated to defraud an ordinarily cautious person is indict- 
 able. In this case the picture was in fact a device calculated to deceive 
 the public. 
 
 The third count for forgery is good. In Regina v. Sharman, Dears. 
 C. C. "285, it was decided that it is an offence at common law to utter 
 a forged instrument, the forgery of which is an offence at common law, 
 and that the effecting the fraud is immaterial. This decision over- 
 ruled the decision in Regina v. Boult, 2 Car. & Kir. 604. 
 
 A false certificate in writing is the subject of an indictment at com- 
 mon law ; Regina v. Toshack, 1 Den. C. C. 492. 
 
 I therefore contend that where, as here, the name of the artist is 
 painted on the picture, it is in the nature of a certificate, and the fact 
 that the signature is on canvas, instead of being on a separate piece 
 of paper, does not render the offence less indictable. 
 
 Williams, J. — But it is consistent with all the allegations that the 
 prisoner may have sold tlie picture without calling attention to the 
 signature. 
 
 Metcalfe. The forging the name on a picture is in fact a forger}' of 
 the picture.
 
 CHAP. XIII.] EEGIN.V V. CLOSS. 839 
 
 CocKBURN, C. J. — If 3'ou go be3-oncl writing, where are you to stop? 
 Can sculpture be the subject of forger}'? 
 Mclnti/7'e repUed. 
 
 Cur. adv. vult. 
 The judgment of the Court was delivered, on 30th November, 1857, 
 
 by 
 
 CocKBURN, C. J. — The defendant was indicted on a charge, set out 
 in three counts of the indictment, that lie had sold to one Fitzpatrick 
 a picture as and for an original picture painted by Mr. Linnell, when 
 in point of fact it was only a cop\- of a picture which j\Ir. Linnell had 
 painted ; and that he passed it off by means of having the name " J. 
 Linnell " painted in the corner of the picture, in imitation of the origi- I 
 nal one, on which the name was painted by the painter. Upon the ) 
 first count, for obtaining mone}' by false pretences, the defendant was 
 acquitted ; the second was for a cheat at common law ; and the third 
 was for a cheat at common law by means of a forger}'. As to the third 
 count we are all of the opinion that there was no forgery. A forger}' 
 must be of some document or writing ; and this was merely in the 
 nature of a mark put upon the painting with a view of identifying it, 
 and was no more than if the painter put any other arbitrary mark as a 
 recognition of the picture being his. As to the second count, we have 
 carefully examined the authorities, and the result is that we think if a 
 person, in the course of his trade openly and publicly carried on, were 
 to put a false mark or token upon an article, so as to pass it off as a 
 genuine one, when in fact it was only a spurious one, and the article 
 was sold and money obtained by means of that false mark or token, 
 that would be a cheat at common law. As, for instance, in the case 
 put by way of example during the argument, if a man sold a gun with 
 the mark of a particular manufacturer upon it, so as to make it appear 
 like the genuine production of the manufacturer, that would be a false 
 mark or token, and the party would be guilty of a cheat, and therefore 
 liable to punishment if the indictment were fairlv framed so as to 
 meet the case ; and therefore, upon the second count of this indictment, 
 the prisoner would have been liable to have been convicted if that 
 count had been properly framed ; but we think that count is faulty in 
 this respect, that, although it sets out the false token, it does not suffi- 
 ciently show that it was by means of such false token the defendant 
 was enabled to pass off the picture and obtain the money. The convic- 
 tion, therefore, cannot be sustained. 
 
 Crompton, J. — The modern authorities have somewhat qualified the 
 older ones, but I do not wish to pledge myself to the view taken as to 
 the nature of the false token, which would amount to a cheat at com- 
 mon law. I would be inclined to adopt the view taken by the rest of 
 the Court, but do not pledge myself to it. I concur in the judgment 
 that this conviction cannot be sustained upon the grounds stated by 
 the Chief Justice. 
 
 *' Conviction quashed
 
 840 REGINA V. RITSON. [CHAP. XIII. 
 
 REGINA y. RITSON. 
 Court for Crown Cases Reserved. 1869. 
 k [Reported L. R. 1 C. C. 200.] 
 
 Case stated by Hayes, J. : — 
 
 The prisoners were indicted at the last Manchester assizes under 
 24 & 25 Vict. c. 98, § 20, for forging a deed with intent to defraud 
 J. Gardner. 
 
 W. Ritson was the father of S. Ritson. He had been entitled to 
 certain land which had been conveyed to him in fee, and he had bor- 
 rowed of the prosecutor, J. Gardner, on the security of this land, more 
 than 730^., for which he had given on the 10th of January, 1868, an 
 equitable mortgage by written agreement and deposit of title deeds. 
 
 On the 5th of Ma}', 1868, W. Ritson executed a deed of assignment 
 /^ under "the Bankruptcy Act, 1861, conveying all his real and personal 
 estate to a trustee for the benefit of creditors ; and on the 7th of May, 
 1868, by deed between the trustee and W. Ritson and the prosecutor, 
 reciting, amongst other things, the deed of assignment and the mort- 
 gage, and that the money due on the mortgage was in excess of the 
 value of the land, the trustee and W. Ritson conveyed the land and 
 all the estate, claim, etc., of the trustees and W. Ritson therein, to the 
 prosecutor, his heirs and assigns, for ever. After the execution of this 
 \ conveyance the prosecutor entered into possession of the land. Subse- 
 1 quently S. Ritson claimed title to the land, and commenced an action 
 of trespass against the prosecutor. The prosecutor then saw the attor- 
 ney for S. Ritson, who produced the deed charged as a forged deed, 
 and the prosecutor commenced this prosecution against W. and S» 
 Ritson. 
 
 This deed was dated the 12th of March, 1868, the date being before 
 W. Ritson's deed of assignment and the conveyance to the prosecutor, 
 and purported to be made between W. Ritson of the one part and S. 
 Ritson of the other part. It recited the original conveyance in fee to 
 W. Ritson, and that W. Ritson had agreed with S. Ritson for a lease 
 to him of part of the land at a yearly rent, and then professed to demise 
 to 8. Ritson a large part of the frontage and most valuable part of the 
 land conveyed to the prosecutor, as mentioned above, for the term of 
 999 years from the 25th of March then instant. The deed contained 
 no notice of any title, legal or equitable, of the prosecutor, and con- 
 tained the usual covenants between a lessor and lessee. It was exe- 
 cuted by both W. and S. Ritson. 
 
 The case then stated evidence which shewed that the deed had in 
 fact been executed after the assignment to W. Ritson's creditors and 
 after the conveyance to the prosecutor, and that the deed had been^ 
 Xraudulently antedated by W. and S. Ritson for the purpose of over- 
 , reaching the conveyance to the prosecutor.
 
 CHAP. XIII.] REGINA V. RITSON. 841 
 
 The counsel for the prisoners contended that the deed could not be a 
 forger}', as it was reall}' executed by the parties between whom it pur- 
 ported to be made. The learned judge told the jury that if the alleged 
 lease was executed after the conveyance to the prosecutor, and ante- 
 dated with the purpose of defrauding him, it would be a forger}-. The 
 jury found both the prisoners guilt}'. 
 
 The question was whether the prisoners were properly convicted of 
 forgery under the circumstances. 
 
 The case was argued before Kelly, C. B., Martin, B., Blackburn, 
 Lush, and Brett, JJ. 
 
 Torr, for the prisoners. The deed in this case was not forged, be- 
 cause it was really made between and executed by W. and S. Ritson, 
 the persons by whom it purported to be executed, and between whom 
 it purported to have been made. The date of the deed was false, but 
 a false statement in a deed will not render the deed a forgery. If tliis 
 deed were held to be a forgery, then any instrument containing a false 
 statement made fraudulently would be forged. 
 
 [Blackburn, J. This is not merely a deed containing a false state- 
 ment, but it is a false deed.] 
 
 There is no modern case to shew that a deed like this is a forgery. 
 To constitute a forgery, there must be either, first, a false name, or, 
 secondly, an alteration of another's deed, or, thirdly, an alteration of 
 one's own deed. There is no modern authority to include any other 
 kind of forgery. Salway v. Wale, Moore, 655, appears an authority 
 against the prisoners, but that was a decision upon 5 Eliz. c. 14, which 
 is not worded in the same way as 24 & 25 Vict. c. 98, § 20. The defi- 
 nitions of the text-writers, which may seem to include a case like the 
 present, are not in themselves authorities. The decisions on which the 
 definitions purport to be based, and not the definitions themselves, are 
 the authorities which must be looked at. 
 
 Addison, for the prosecution. The deed in this case is a forgery, 
 because it is a false deed fraudulently made. Although there is no 
 recent case where similar facts have been held to constitute a forgery, 
 yet such a state of facts comes within the definitions of forgery given 
 by the text-books. Russell, vol. ii, p. 709, 4th ed. ; Hawkins, P. C. 
 bk. i, cap. 20, p. 263, 8th ed. ; 3 Inst. 169 ; Bacon's Abr., tit. Forgery, 
 A. ; Comyn's Dig., tit. Forgery, A. 1. Salway v. Wale, Moore, 655, 
 is also an authority for the conviction. The essence of forgery is the 
 false making of an instrument. Rex v. Parkes, 2 Leach, at p. 785. 
 
 Kelly, C. B. During the argument I certainly entertained doubts 
 on this question, because most, or indeed all, the authorities cited are 
 comparatively ancient. They are all before the statute (24 & 25 Vict. 
 c. 98, § 20), on which this indictment is framed, and before 11 Geo. 
 4 & 1 Wra. 4, c. 66, the statute which was in force when most of the 
 modern text-books on criminal law were written. When, however, we 
 look to all these authorities, and to the text-writers of the highest rep-
 
 842 REGINA V. RITSON. [cHAP. XIII. 
 
 utation, such as Comyns (Dig., tit. Forgery, A. I.), Bacon (Abr., tit. 
 Forgery, A.), and Coke (3 Inst. 169), we find there is no conflict of 
 authority. Sir M. Foster (Foster's Crown Cases, 116), Russell on 
 Crimes (vol. ii, p. 709, 4th ed.), and other writers, also all agree. The 
 definition of forgery is not, as has been suggested in argument, that 
 every instrument containing false statements fraudulently made is a 
 forgery ; but, adopting the correction of my Brother Blackburn, that 
 eyery instrument which fraudulently purports to be that which it is not 
 is a forgery, whether the falseness of tlie instrument consists in the 
 fact that it is made in a false name, or that the pretended date, when 
 "iTiat is a material portion of the deed, is not the date at which the deed 
 was in fact executed. I adopt this definition. It is impossible to dis- 
 tinguish this case in principle from those in which deeds made in a false 
 name are held to be forgeries. 
 
 There is no definition of forgery in 24 & 25 Vict. c. 98, but the 
 offence has been defined b}' very learned authors, and we think this 
 case falls within their definitions. Under these circumstances the con- 
 viction must be affirmed. 
 
 Martin, B. I am of the same opinion. Mr. Torr was, no doubt, 
 right in saying that this is not a fan)iliar case. That, however, need 
 not affect the principle to be applied in deciding it. All the authorities 
 are to the same effect. What is laid down on the subject by Comyns 
 (Dig., tit. Forgery, A. I.), Russell on Crimes (vol. ii, p. 709, 4th ed.), 
 Sir M. Foster (Foster's Crown Cases, 116), and in Tomlin's Law Dic- 
 tionary (Forgerv), is good sense. All the authorities, both the ancient 
 and modern, agree. There is no reason why the principle of these 
 authorities should not apply to the present case, except that the facts 
 here are somewhat unusual. 
 
 BLACKBUR^^ J. I am of the same opinion. By 24 & 25 Vict. c. 98, 
 § 20, it is a felony to " forge" any deed with intent to defraud. The 
 material word in this section is "forge." There is no definition of 
 "forge" in the statute, and we must therefore inquire wliat is the 
 meaning of the word. The definition in Comyns (Dig., tit. Forger}', 
 A. I.) is "forgery is where a man fraudulenth' writes or publishes a 
 false deed or writing to the prejudice of the right of another," — not 
 making an instrument containing that which is false, which, I agree 
 with Mr. Torr, would not be forgery, but making an instrument which 
 purports to be that which it is not. Bacon's Abr., (tit. Forgery, A.), 
 wliich, it is well known, was comiiiled from the MS. of Chief Baron 
 Gilbert, exulains forgerj' thus : " The notion of forgery doth not so 
 much consist in the counterfeiting of a man's hand and seal, . . . but 
 in the endeavoring to give an appearance of truth to a mere deceit and 
 falsity, and eitlier to impose that upon the world as the solemn act of 
 another which he is in no way privy to, or at least to make a man's owd
 
 CHAP. XIII.] REGINA V. KITSON. 843 
 
 act appear to have been done at a time when it was not done, and by 
 force of such a falsity to give it an operntioii which in truth and justice 
 it ought not to have." The material words, as api)licable to the facts 
 of the present case, are, "■ to make a man's own act appear to have 
 been done at a tune when it was not done." Wlieii im instrmnent pro- 
 fesses to be executed at a date different from that at which it really 
 was executed, and the false date is material to the operation of the 
 deed, if the false date is inserted knowingly and with a fraudulent 
 intent, it is a forgery at common law. 
 
 Ordinaril}' the date of a deed is not material, but it is here shown by 
 extrinsic evidence that the date of the deed was material. Unless the 
 deed had been executed before the 5th of Ma}-, it could not have con- 
 veyed an}' estate in tlie land in question. The date was of the essence 
 of the deed, and as a false date was inserted with a fraudulent intent, 
 the deed was a false deed, within the definition in Bacon's Abridgment. 
 This is a sufficient authority. 
 
 If, however, there were no authority, I think that the principle I have 
 mentioned is right and expedient. Besides this, however, Coke (3 Inst. 
 169), speaking of forgery before the statute of Elizabeth (5 Eliz. c. 14), 
 states that the principle of forgery does apply to a case like this, and 
 that to make a deed pur|)orting to bear a false date may be a forgery. 
 To the same effect is Sir M. Foster in Lewis's Case, Foster's Crown 
 Cases, 116, where all the judges in consultation assumed that ante- 
 dating a deed might be forgery. 
 
 All the text-books agree, and there is no single authority against the 
 definition I have stated. Mr. Torr, however, says that the definition 
 is old. I think that this gives it all the greater weight. 
 
 Lush, J. I also think that the conviction should be affirmed. If 
 the parties to this deed had inserted the true date in the first instance 
 and had subsequently altered it, there is no question that it would have 
 been a forgery. The ofl!"ence would then have fallen within the letter of 
 24 & 25 Vict. c. 98, § 20, which says, " Whoever with intent to defraud 
 shall forge or alter . . . any deed," etc., sliall be guilty of felony. It 
 would be absurd to hold that an alteration might constitute a forgery, 
 but that an original false making would not. We could not yield to 
 such a distinction unless we were obliged. I am satisfied that "forge" 
 in § 20 of 24 & 25 Vict. c. 98, should be undei'stood in the sense in 
 which that word is used in the authorities, new and old, on the subject. 
 To make a deed appear to be that which it is not, if done with a fraud- 
 ulent intent to deceive, is a forgery, whether the falsehood consist in 
 the name or in any other matter. 
 
 Brett, J., concurred. Conviction affirmed.
 
 1 
 
 'J 
 
 844 ' COM MOx\ WEALTH V. RAY. [CHAP. XIII. 
 
 COMMONWEALTH v. RAY. 
 Supreme Judicial Court of Massachusetts. 1855. 
 
 [Reported 3 Gray, 441 .] 
 
 Forgery. The indictment alleged that the defendant, on the 13ll» 
 of Jul}', 1854, at Boston, " did falsely make, forge, and counterfeit a 
 certain writing in the form and similitude of a railroad ticket or pass, 
 of the tenor following ; 
 
 New York Central Railroad. 
 
 Albany to Buffalo. 
 
 Good this day only, unless indorsed by the conductor, 
 
 D. L. Fremyre. 
 Said counterfeit writing purporting to be a ticket or pass issued by the 
 New York Central Railroad Company, whereby said corporation prora- 
 . ise and assure to the owner and holder thereof a passage in their cars 
 over their railroad, extending from Albany to Buffalo in the State of 
 New York ; said ticket being signed by D. L. Fremyre, on their behalf, 
 he being their ticket clerk, or ticket agent ; ^ . . . and that the said 
 Miner L. Ray did then and there falseh' make, forge, and counterfeit 
 \ one of said tickets, with intent to defraud, against the peace of the 
 Commonwealth." 
 
 v.. 
 
 At the trial in the Municipal Court the jury returned a verdict of 
 guilty, and the defendant alleged exceptions. 
 
 Dewey, J. The instrument here set forth as the subject of the alleged 
 forgery is not one included in the enumeration in the Rev. Sts. c. 127, 
 § 1. It is not, therefore, a statute offence. But man}- writings, not 
 enumerated in the statutes, are yet the subjects of forgery at common 
 law. The definition of forgery at common law is quite sufficient to 
 embrace the present case. Take that in 4 Bl. Com. 247, "the fraud- 
 ulent making or alteration of a writing to the prejudice of another man's 
 riglit," or that of 2 East P. C. 861 (which is supported by Bac. Ab, 
 Forgery, B, and followed in 2 Russell on Crimes, 358), that " the 
 counterfeiting of any writing, with a fraudulent intent, whereby another 
 may be prejudiced, is forgery at common law; " or that of Mr. Justice 
 Buller, " the making a false instrument with intent to deceive." Rex 
 V. Coogan, 2 East P. C. 949. In 3 Greenl. Ev. § 103, it is said that 
 forgery "may be committed of any writing which, if genuine, would 
 operate as the foundation of another man's liabilit3%" See also Regina 
 V. Boult, 2 Car. & K. 604. 
 
 It is said that this instrument does not import a contract or promise 
 of any kind. We think otherwise, and that, although it is wanting in 
 details of language fully stating the nature and extent of such contract, 
 it has written language sufficiently indicative of a promise or obligation 
 
 1 Part of the statement of facts, the arguments, and part of the opinion are 
 omitted. — Ed.
 
 CHAr. XIII.] COMMONWEALTH V. RAY, 845 
 
 to render it an instrument of value, b}- the false and fraudulent making 
 of which the rights of others would be prejudiced. This false instru- 
 ment would, if genuine, have created a liability on the part of the New 
 York Central Railroad Compan>' to carry the holder thereof from Alban}' 
 to Buffalo, and would, therefore, have been a contract of value in the 
 hands of a third person. 
 
 It is then objected that the crime of forger}' cannot be committed by 
 counterfeiting an instrument wholly printed or engraved, and on which 
 there is no written signature personallj* made by those to be bound. 
 The question is whether the writing, the counterfeiting of which is 
 forgery, may not be wholh" made by means of printing or engraving, or 
 must be written by the pen by the party who executes the contract. 
 In the opinion of the court, such an instrument may be the subject of 
 forgery when the entire contract, including the signature of the party, 
 has been printed or engraved. The cases of forger}', generally, are 
 cases of forged handwriting. The course of business, and the neces- 
 sities of greater facilities for despatch, have introduced to some extent 
 the practice of having contracts and other instruments whoU}" printed 
 or engraved, even including the name of the party to be bound. 
 
 The effect to be given to the words " writing " and " written " was 
 much considered b}- this court in the case of Henshaw v. Foster, 9 Pick. 
 312. It arose in anotlier form, and was not a question of forger}'. 
 But in the learned opinion of the late Chief Justice Parker, this ques- 
 tion, as to what was embraced in these terms, seems to be fully settled, 
 and it was there held that the words "writing" or " written " included 
 the case of instruments printed or engraved, as well as those traced by 
 the pen. 
 
 It has never been considered any objection to contracts required by 
 the statute of frauds to be in writing that they were printed. It is 
 true that in those cases, usually, the signature at the bottom is in man- 
 uscript, and the printed articles of contract leave the name to be thus 
 filled up. In such cases, the signature by the pen is necessary to the 
 execution of the contract. And this is the more expedient mode, as it 
 furnishes the greater facility for ascertaining its genuineness. But if 
 an individual or a corporation do in fact elect to put into circulation 
 contracts or bonds in which the names of the contracting parties are 
 printed or lithographed as a substitute for being written with the pen, 
 and so intended, the signatures are to all intents and purposes the 
 same as if written. It may he more difficult to establish the fact of 
 their signature ; but if shown, the effect is the same. Such being the 
 effect of such form of executing like contracts, it would seem to follow 
 that any counterfeit of it, in the similitude of it, would be making a 
 false writing, purporting to be that of another, with the intent to 
 defraud.^ . . . 
 
 1 The learned judge held that the indictment was defective. — Ed.
 
 846 COMMONWEALTH V. B VTDWIN. [ClIAP. XIII. 
 
 COMMONWEALTH v. BALDWIN. 
 
 Supreme Judicial Court of Massachusetts. 1858. 
 
 [Reported 11 Gray, 197. "j 
 
 Thomas, J. This is an indictment for ttie forgeiy of a promissory' 
 note. The indictment alleges that the defendant at Worcester in this 
 county "feloniously did falsely make, forge, and counterfeit a certain 
 false, forged, and counterfeit promissorynote, which false, forged, and 
 counterfeit promissoiy note is of the following tenor, that is to say : 
 
 ' S457.88. Worcester, Aug. 21, 1856. Four months after date we 
 promise to pay to the order of Russell Phelps four hundred fifty seven 
 dollars jYo, payable at Exchange Bank, Boston, value received. 
 
 Schouler, Baldwin &, Co.' 
 with intent thereby then and there to injure and defraud said Russell 
 Phelps." 
 
 The circumstances under which the note was given are thus stated 
 in the bill of exceptions : Russell Phelps testified that the note was 
 executed and delivered l)y the defendant to him at the Bay State 
 House in Worcester, on the 21st of August, 1856, for a note of equal 
 amount, which he held, signed by the defendant in his individual 
 name, and which was overdue ; and that in reply to the inquiry who 
 were the members of the firm of Schouler, Baldwin & Co., the defend- 
 ant said, " Henr}^ W. Baldwin, and William Schouler of Columbus." 
 He further said that no person was represented bv the words " & Co." 
 It appeared in evidence that the note signed Schouler, Baldwin & Co. 
 was never negotiated by Russell Phelps. The government offered 
 evidence which tended to prove either tliat there never had been any 
 partnership between vSchouler and Baldwin, the defendant; or, if there 
 ever had been a partnership, that it was dissolved in the month of 
 Julv, 1856. 
 
 The question raised at the trial and discussed here is whether the 
 execution and delivery of the note, under the facts stated, and with 
 intent to defraud, was a forgeiy. 
 
 It would be difficult perhaps b}- a single definition of the crime 
 of forgery to include all possible cases. Forgeiy, speaking in general 
 terms, is the false making or material alteration of or addition to a 
 written instrument for the purpose of deceit and fraud. It maj' be the 
 making of a false writing purporting to be that of another. It may be 
 the alteration in some material particular of a genuine instrument by 
 a change of its words or figures. It may be the addition of some 
 material provision to an instrument otherwise genuine. It ma}* be the 
 appending of a genuine signature of another to an instrument for 
 which it was not intended. The false writing, alleged to have been 
 made, ma}' purport to be the instrument of a person or firm existing, 
 or of a fictitious person or firm. It ma}- be even in the name of the
 
 CHAP. XIII.] COMMON WKALTII V. BALDWIN. 847 
 
 prisoner, if it purports to be, and is desired to be received as the 
 instrument of a third person having the sanoe name. 
 
 As a general rule, however, to constitute forgery, the writing falsely 
 made must purport to be the writing of another party than tlie person 
 makino- it. The mere false statement or implication of a fact, not hav- 
 ing reference to the person by whom the instrument is executed, will 
 not constitute the crime. 
 
 An exception is stated to this last rule by Coke, in the Third Insti- 
 tute, 169, where A. made a feoffment to B. of certain land, and after- 
 wards made a feoffment to C. of the same land with an antedate 
 before the feoffment to B. This was certainly making a false instru- 
 ment in one's own name ; making one's own act to appear to have 
 been done at a time when it was not in fact done. "We fail to under- 
 stand on what principle this case can rest. If the instrument had been 
 executed in the presence of the feoffee and antedated in his presence, 
 it clearly could not have been deemed forger}'. Beyond this, as the 
 feoffment took effect, not by the charter of feoffment, but by tlie 
 livery of seisin — the entry of the feoffor upon the land with the charter 
 and the delivery of the twig or clod in the name of the seisin of all the 
 land contained in the deed — it is not easy to see how the date could 
 be material. 
 
 The case of Mead v. Young, 4 T. R. 28, is cited as another excep- 
 tion to the rule. A bill of exchange payable to A. came into the 
 hands of a person not the payee but having the same name with A. 
 This person indorsed it. In an action by the indorsee against the 
 acceptor, the question arose whether it was competent for the defend- 
 ant to show that the person indorsing the same was not the real payee. 
 It was held competent, on the ground that the indorsement was a 
 forgery, and that no title to the note could be derived through a 
 forgery. In this case of Mead v. Young, the party assumed to use the 
 name and power of the payee. The indorsement purported to be used 
 was intended to be taken as that of another person, the real payee. 
 
 The writing alleged to be forged in the case at bar was the hand- \ 
 writing of the defendant, known to be such and intended to be received \ 
 as such. It binds the defendant. Its falsity consists in the implica- / 
 tion that he was a partner of Schouler and authorized to bind him h-^J 
 his act. This, though a fraud, is not, we think, a forgery. 
 
 Suppose the defendant had said in terms, " I have authority to sign 
 Schouler's name," and then had signed it in the presence of the 
 promisee. He would have obtained the discharge of the former note 
 by a false pretence, a pretence that he had authority to bind Schouler. 
 "It is not ," says Sergeant Hawkins, "the bare writing of an instru- 
 ment in another's name without his privity, but the giving it a false 
 appearance of having been executed hy him, which makes a man 
 guilty of forgery." 1 Hawk. c. 70, § 5. 
 
 If the defendant had written upon the note, "William Schouler by 
 bis agent Henry W. Baldwin," tlie act plainly would not have been
 
 /l 
 
 848 COLVIN V. STATE. [CHA.P. XIII. 
 
 forgery. The party taking the note knows it is not the personal act 
 of Schouler. He does not rely upon his signature. He is not deceived 
 b}' the semblance of his signature. He relies solely upon the averred 
 agencv and authoritv of the defendant to bind Schouler. So, in the 
 case before us, the note was executed in the presence of the promisee. 
 He knew it was not Schouler's signature. He relied upon the defend- 
 ant's statement of his authority to bind him as partner in the firm of 
 Schouler, Baldwin & Co. Or if the partnership had in fact before 
 existed but was then dissolved, the effect of the defendant's act was 
 a false representation of its continued existence. 
 
 In the case of Regina v. White, 1 Denison, 208, the prisoner in- 
 dorsed a bill of exchange, "per procuration, Thomas Toralinson, 
 Emanuel White." He had no authority to make the indorsement, 
 but the twelve judges held unanimously that the act was no forgery. 
 
 The nisi prius case of Regina v. Rogers, 8 Car. & F. 629, has some 
 resemblance to the case before us. The indictment was for uttering 
 a forged acceptance of a bill of exchange. It was sold and delivered 
 by the defendant as the acceptance of Nicholson & Co. Some evidence 
 was offered that it was accepted by one T. Nicholson in the name of 
 a fictitious firm. The instructions to the jury were perhaps broad 
 enough to include the case at bar, but the jury having found that 
 the acceptance was not written by T. Nicholson, the case went no 
 fu'-ther. The instructions at nisi prius have no force as precedent, and 
 in principle are plainly beyond the line of the settled cases. 
 
 The result is that the exceptions must be sustained and a new trial 
 ordered in the common pleas. It will be observed however that the 
 grounds on which the exceptions are sustained seem necessarily to dis- 
 pose of the cause. Exceptions sustained. 
 
 COLVIN V. STATE. 
 
 Supreme Court of Indiana. 1858. 
 
 {Reported 11 Ind. 361.] 
 
 Perkins, J. Indictment for forgery. The oflfence charged consisted 
 in the uttering, as true, a false and forged deed to a piece of land. 
 
 The facts may be shortly stated. John Randolph Brewster and 
 Archibald R. Colvin were boarding, with their wives, at the house of 
 Jacob Lesman, Fort Wayne, Indiana. They were destitute of money 
 to pay their board, and their credit was about expiring. For the pur- 
 pose of "making a raise," says the witness, they agreed to execute 
 deeds for an exchange of land. They obtained a map, selected certain 
 sections of land in Iowa and Texas, and agreed that Colvin should 
 make a deed to Brewster for those in Texas, and Brewster to Colvin 
 for those in Iowa. They accordingly went before a public oflScer, and
 
 CHAP. XIII.] COLVIN V. STATE. 849 
 
 got him to draw up and take acknowledgment of the deeds, talking at 
 the time of the execution about the amount to be paid in cash by one to 
 the other as the difference in the value of the lands, etc. Brewster 
 executed his deed to Colvin in the name of James Brewster, a name he 
 had assumed, for a short time, at Fort Wayne ; but Colvin knew that 
 his true name was John Randolpli Brewster. 
 
 This deed, so executed to him by Brewster, Colvin took to Lesman, 
 uttered it as a geimine deed, and placed it with him on deposit as an 
 equitable mortgage of the land, in security for his board-bill. 
 
 The question is whether the act constituted the crime of forgery, 
 under the following statute : 
 
 " Every person who shall falselj- make, or assist to make, deface, 
 destroy, alter, forge, or counterfeit," etc., " any record, deed, will, 
 codicil, bond," etc.; "or any person who shall utter, or publish as 
 true, an}- such instrument, knowing the same," etc., ''with intent 
 to defraud," etc., "shall be deemed guiltv of forgery." 2 R. S. 
 p. 412, § 30. 
 
 The deed was deposited for boarding already' had, not to secure the 
 price of future boarding ; nor did the depositor board, or, at the time 
 of the deposit, intend to board longer with Lesraan, as the latter well 
 knew. 
 
 The. indictment contains but a single count, charges the uttering of 
 the deed to Lesman, and specially avers the intent, in so doing, to have 
 been to defraud him. 
 
 "We think the case is not made out. No fraud appears to have been 
 perpetrated upon Lesman. The debt already existing was not cancelled, 
 but remained due, and the right to enforce pa3"ment of it left unim 
 'paired. No new credit from Lesman was obtained upon the deed. He 
 was in no worse situation after takina: the deed than before. 
 -Had Colvin been indicted for the forgery, with intent generall}' tft 
 defraud, such an indictment might, probably, have been sustained^ 
 against him. See Wilkinson c. The State, 10 Ind. R. 372.
 
 850 LASCELLES V. STATE. [CHAP. XIII. 
 
 COMMONWEALTH v. HENRY. 
 
 Supreme Judicial Court of Massachusetts. 1875. 
 
 ^Reported 118 Mass. 460.] 
 
 Devens, J.^ The last sentence of the instruction given b}' the judge, 
 in response to the request of the defendant, " that if the defendant 
 signed the name of J. C. Hill to said note without the authority of said 
 Hill, and passed it as the note of J. C. Hill, expecting to be able to 
 meet it when due, it would be a forgery," would undoubtedh', if it 
 stood alone, be a defective statement of the law. But it is not to be 
 separated from the sentence which precedes it, which distinctly states 
 that there must be an intent to defraud, and, as thus connected, the 
 obvious meaning of the instruction, and so it must have been under- 
 stood by the jury, was that if the defendant signed the note under the 
 circumstances supposedriTitending thereb}- to defraud, this would be a 
 forgery, even if he expected to be able to meet the note when due. 
 "The subject to which the request of the defendant was apparently in- 
 tended to call the attention of the presiding judge, was the effect of his 
 possession of the means and of his intention to take up the note when 
 due, and in relation to this the statement of the law was correct. The 
 intention of one who utters a forged note to take it up at maturity, and 
 the possession of means which will enable him to do so, do not rebut 
 the inference of intent to defraud, which is necessarily drawn from 
 knowinglv uttering it for value to one who believes it to be genuine, 
 nor deprive the transaction of its criminal character. Commonwealth 
 V. Tenuey, 97 Mass. 50. 
 
 Excerptions overruled. 
 
 LASCELLES v. STATE. 
 Supreme Court of Georgia. 1892. 
 
 [Reported 90 Ga. 347.] 
 
 The indictment charged that Sidne}' Lascelles did falsely and fraud- 
 ulentl}- draw, make and forge a certain bill of exchange (setting it out) 
 in the fictitious name of Walter S. Beresford, when his real and true 
 name was Sidney Lascelles, with intent then and there to defraud 
 Hamilton & Company, a mercantile house, etc. The bill of exchange 
 purported to be a check for two hundred pounds on a London bank in 
 favor of Hamilton & Co., signed " Walter S. Beresford." ^ 
 
 1 Only so much of the opinion as discusses the intent to defraud is given. — Ed 
 '^ Only so much of the case as discusses the question of the signing by defendant of 
 a name previously assumed by him is given. — Ed.
 
 CHAP. XIII. j LASCELLES V. STATE. 851 
 
 Lumpkin, J. . . . Several grounds of the motion for a new trial are 
 based upon the failure and refusal of the court to charj^e, in effect, that 
 if the name signed by the accused, although not his own, was one which 
 he had been accustomed to employ and under wiiich he had done busi- 
 ness, the jur\' could not convict him. It was insisted that, in order to 
 constitute forgery, the name must have been assumed for the sole 
 purpose of defrauding the persons alleged to have been defrauded. 
 We think it immaterial for what purpose the name was originally 
 assumed and used, if it is shown that in the instance in question it was 
 used to defraud. It was a fictitious name, within the meaning of the 
 statute (Code, § 4453), if tlie accused gave it a fictitious character 
 which was calculated and intended to deceive b}^ imparting an apparent 
 value to the writing which might not otherwise attach to it in the minds 
 of the persons with whom the accused was dealing. Where one has 
 been accustomed to use a certain assumed name, it is not to be implied 
 merely from his signing such name to a bill of exchange or other writ- 
 ing that the purpose is to defraud ; it is not forgery unless there is 
 something else besides the mere signing to sliow that the fictitious 
 character of the name is in that instance an instrument of fraud. In 
 tlie case of Dunn, 1 Leach C. C. 57, and Reg. v. Martin, 49 L. R., 
 C. C, 244, cited for the plaintiff in error, there was no sucli showing 
 made. In the present case, however, the accused, at the time of sign- 
 ing the writing, gave a fictitious character to the name, upon the faith 
 of which he induced the parties with whom he was dealing to give 
 value for the writing. According to his representations to them, it 
 was the name of the son of Lord Beresford, an English nobleman of 
 great wealth, who was about to deposit in bank $25,000 in the name of 
 this son. Wlien Mr. Hamilton hesitated about paying the money, the 
 accused said: "Our name can command an}' amount of mone}' in 
 England." He not onlj- used an assumed name, but, in connection 
 with_th_e signing of the writing in question, gave a fictitious character 
 to the name, and impei'sonated that character in order to obtain money 
 upon the writing, which lie might not have gotten if he had simply rep- 
 resented himself to be Walter S. Beresford, or had stopped with the 
 representations he had made as to his own wealth, without making 
 these additional representations as to his relationship and standing. 
 The parties with whom he was dealing paid over their money to the 
 supposed son of Lord Beresford, upon the faith of a writing executed 
 by the accused in that character, when, as it afterwards turned out, the 
 name used was not his own name, and Lord Beresford had no son of 
 the name used. There being no such son, it was not a case of person- 
 ating another, as contemplated by section 4596 of the code. It was 
 the personating of a fictitious person, and this is of the essence of the 
 offence described in the section upon which the first count of this 
 indictment was based. Code, § 4453. 
 
 ^
 
 852 THE poulterer's case. [chap. XIV. 
 
 CHAPTER XIV. 
 
 CRIMINAL CONSPIRACY. 
 
 SECTION I. 
 
 Under Ancient Statutes. 
 
 33 Edw. I. Stat. 2 ; [Ordinance of Conspirators.] Conspirators be 
 tliey that do confeder or bind tliemselves by oath, covenant, or other 
 alliance, that every of them shall aid and bear the other falsel}- and 
 maliciousl}' to indict, or cause to indict, or falsel}' to move or maintain 
 pleas ; and also such as cause children within age to appeal men of 
 felon}-, whereb}' they are imprisoned and sore grieved ; and such as 
 retain men in the country with liveries or fees for to maintain their 
 malicious enterprises and to drown the truth ; and this extendeth as 
 well to the takers, as to the givers. And stewards and bailiffs of great 
 lords, which by their seigniory, office, or power, undertake to bear or 
 maintain quarrels, pleas, or debates that concern other parties than 
 such as touch the estate of their lords or themselves. This ordinance 
 and final definition of conspirators was made and accorded by the King 
 and his Council in his Parliament the thirty-third 3'ear of his reign. 
 
 THE POULTERER'S CASE. 
 Star Chamber. 1611. 
 
 [Reported 9 Coke 5.5 h.] 
 
 Mich. 8 Jac. Regis, the case between Stone, plaintiff, and Ralph 
 Waters, Henry Bate, J. Woodbridge, and many other poulterers ol 
 London, defendants, for a combination, confederac}', and agreement 
 betwixt them falsly and maliciously to charge the plaintiff (who had 
 married the widow of a poulterer in Gracechurch Street) with the 
 robbery of the said Ralph Waters,, supposed to be committed in the 
 county of Essex, and to procure him to be indicted, arraigned, 
 adjudged, and hanged, and in execution of this false conspiracy, they 
 procured divers warrants of justices of peace, by force whereof Stone
 
 SECT. I.J THE poulterer's CASE. 853 
 
 was apprehended, examined, and bound to appear at the assizes in 
 Essex ; at which assizes the defendants did appear and preferred a 
 bill of indictment of robbery against the said i)laintiff; and tlie justices 
 of assize hearing the evidence to the grand jur^^ openly in court, tliey 
 perceived great malice in the defendants in the prosecution of the 
 cause ; and upon the whole matter it appeared, that the plaintiff the 
 whole day that Waters was robbed, was in London, so that it was 
 impossible that he conmiitted the robbery, and thereupon the grand 
 inquest found ignoramus. And it was moved and stronglj- uiged by 
 the defendants' counsel, that admitting this combination, confederac}^ 
 and agreement between them to indict the plaintiff to be false, and 
 malicious, that 3'et no action hes for it in this court or elsewhere, for 
 divers reasons. 1. Because no writ of conspiracy for the party grieved, 
 or indictment or other suit for the King hes, but where the party 
 grieved is indicted, and legitirno modo acquietatus, as the books are 
 F. N. B. 114 b ; 6 E. 3, 41 a ; 24 E. 3, 34 b ; 43 E. 3, Conspiracy 11; 
 27 Ass. p. 59 ; 19 II. 6, 28 ; 21 H. 6, 26 ; 9 E. 4, 12, &c. 2. Every one 
 who knows himself guilty may, to cover their offences, and to terrify 
 or discourage, those who would prosecute the cause against them, sur- 
 mise a confederacy, combination, or agreement betwixt them, and by 
 such means notorious offenders will escape unpunished, or at the least, 
 justice will be in danger of being perverted, and great offences smoth- 
 ered, and therefore, they said, that there was no precedent or warrant 
 in law to maintain such a bill as this is. But upon good consideration, 
 it was resolved that the bill was maintainable ; and in this case divers 
 points were resolved.^ 
 
 3. It is to be observed that there was means by the common law 
 before indictment to protect the innocent against false accusations, and 
 to deliver him out of prison. . . . And it is true that a writ of con- 
 spiracy lies not, unless the party is indicted, and legitirno modo acquie- 
 tatus., for so are the words of the writ ; but that a false conspiracy 
 betwixt divers persons shall be punished, although nothing be put in 
 execution, is full and manifest in our books ; and therefore in 27 Ass. 
 p. 44, in the articles of the charge of inquiry by the inquest in the 
 King's Bench, there is a nota., that two were indicted of confederacx', 
 each of them to maintain the other, whether their matter be true, or 
 false, and notwithstanding that nothing was supposed to be put in exe- 
 cution, the parties were forced to answer to it, because the thing is 
 forbidden by the law, which are the very words of the book ; which 
 proves that such false confederac}- is forbidden by the law, although it 
 was not put in use or executed. So there in the next article in the 
 same book, inquiry shall be of conspirators and confederates, who 
 agree amongst themselves, &c. falsly to indict, or acquit, &c. the man- 
 ner of agreement betwixt whom, which proves also, that confederacy 
 to indict or acquit, although nothing is executed, is punishable b}' law : 
 and there is another article concerning conspiracy betwixt merchants, 
 
 1 The first two points, not relating to the Law of Conspiracy, are omitted.
 
 854 THE poulterer's case. [chap. XIV. 
 
 and in these cases the conspu'acy or confederacy is punisha])le, 
 althougli the conspiracy or confederac}' be not executed ; and it is held 
 in 19 K. 2, Brief 926, a man sliall have a writ of conspiracy, although 
 the}- do nothing but conspire together, and he snail recover damages, 
 and they may be also indicted thereof. Also the usual commission of 
 oyer and terminer gives power to the commissioners to inquire, &c. de 
 omnibtis coadunationibus^ confivderationibiis^ etfalsis alligantiis ; and 
 coadunatio is a uniting of themselves together, confcederatio is a com- 
 bination amongst them, 2i.i\(\. fcdsa alligtadia is a false binding each to 
 the other, by bond or promise, to execute some unlawful act: in these 
 cases before the unlawful act executed the law punishes the coaduna- 
 tion, confederacy, or false alliance, to the end to prevent the unlawful 
 act, quia quando aliquid prolilbetur^ prohibetur et id i^er quod perven- 
 itur ad illud : et affectus lyunitur licet non seqimtur effectus ; and in 
 these cases the common law is a law of mere}-, for it prevents the 
 malignant from doins mischief, and the innocent from suffering it. 
 Hil. 37 H. 8, in the Star Chamber a priest was stigmatized with F. and 
 A. in his forehead, and set upon the pillory' in Cheapside, with a 
 written paper, /"oj-yaZse accusation. M. 3 & 4 Ph. &l Ma., one also for 
 the like cause /"wt7 stigm.atic^is with F. & A. in the check, with such 
 superscription as is aforesaid. " Vide Proverb' 1. Si te lactaverhit 
 peccatores et dixerird, veni nobiscnm id insidiemur sanguini, abscon- 
 dcomis tetidiculas contra insontem frustra, Sec. omnem pretiosam sub- 
 stantiam reperiemus et implebimus domus nostras spoliis, &c. Fill 
 mi., ne ambules cutn eis, &c. jjedes enim eorum ad malum currunt., et 
 festinant %d ejfundantsanguiKem.'''' And afterward upon the hearing of 
 the case, and upon pregnant proofs, the defendants were sentenced 
 for the said false confederac}' by fine and imprisonment. Nota, reader, 
 these confederacies, punishable by law, before they are executed, ought 
 to have four incidents : 1. It ought to be declared by some manner of 
 prosecution, as in this case it was, either b}' making of bonds, or 
 promises one to the other ; 2. It ought to be malicious, as for unjust 
 revenge, &c. 3. It ought to be false against an innocent: 4. It ought 
 to be out of court voluntarilv. 
 
 i
 
 SECT. II,] REX V. EDWARDS. 855 
 
 SECTION II. 
 
 Conspiracy/ in Greneral. . 
 
 REX V. EDWARDS. 
 King's Bench. 1724. 
 
 [Reported 8 Modern, 320.] 
 
 The defendants were indicted, for that they, per conspirationem 
 inter eos habitani, gave the husband mone}- to marry a poor helpless 
 woman, who was an inhabitant in the parish of B. and incapable of 
 marriage, on purpose to gain a settlement for her in the parish of A. 
 where the man was settled. 
 
 It was moved to quash this indictment, because it is no crime to 
 marr}' a woman and give her a portion ; and the justices are not proper 
 judges what woman is capable of a husband, neither have they any 
 jurisdiction in conspiracies. 
 
 It was insisted on the other side, that there is a crime set forth in 
 this indictment, which is a conspiracy to charge a parish, &c. and a 
 conspiracy to do a lawful act, if it be for a bad end, is a good founda- 
 tion for an indictment. An indictment for a conspiracy to charge a 
 man to be the father of a bastard-child, was held good, Temberley v. 
 Child, 1. Sid. 68. s. c. 1 Lev. 62; Rex v. Armstrong, 1 Vent. 304, 
 though fornication is a spiritual offence ; because the Court of King's 
 Bench has cognizance of ever}' unlawful act b}' which damages may 
 ensue. So an information for a conspiracy to impoverish the farmers 
 of the excise, was held good. 
 
 To wliieh it was answered, that those were conspiracies to do unlaw- 
 ful acts ; but it was a good act to provide a husband for this woman. 
 
 The Court. The quashing indictments is a discrotionarj' power of 
 the court, but in this case the defendant has not showed anything to 
 induce the court to quash the indictment ; and if the matter be doubt- 
 ful, the defendant must plead or demur ; but indictments for conspira- 
 cies are never quashed. -^^A_bflxa. conspiracy to do a lawful act to an 
 unlawful end, is a crime, though no act be done in consequence 
 thereof. Reg. r. Best, 2 Ld. Ray. 1167; s. c. 6 Mod. 185; but if the 
 fault in the indictment be plain and apparent, it is quashed for that 
 reason, and the party shall not be put to the trouble to plead or demur. 
 Suppose there is a conspirac}' to let lands of ten pounds a year value 
 to a poor man, in order to get him a settlement, or to make a certificate 
 man a parish-officer, or a conspiracy to send a woman big of a bastard- 
 child into another parish to be delivered there, and so to charge that 
 parish with the child ; certainly these are crimes indictable. But in 
 this indictment it is not set forth, that the woman was likely to be
 
 856 REX V. TURNER. [CHAP. XIV. 
 
 chargeable to the parish. As to the objection, that the sessions liave 
 no jurisdiction in conspiracy, the contrary is true ; they have no juris- 
 diction in perjury at common law, but by the statute they have ; and 
 they have no jurisdiction to indict for forger}', but certainly the}' have 
 jurisdiction de conspirationibus, Rex v. Rispal, 3 Burr. 1320 ; and such a 
 person as this defendant is was punished by indictment at common law.^ 
 But in the Trinity Term following judgment was given for the 
 defendant, because it was not averred in the indictment, that the 
 woman was last legally settled in the parish of B., but only that she 
 was an inhabitant there. 
 
 / 
 
 REX V. TURNER. 
 
 King's Bench. 1811. 
 
 ^ [Reported 13 East, 228.] 
 
 This was an indictment for a conspiracy, which stated that the 
 defendants unlawfully and wickedly devising and intending to injure, 
 oppress, and aggrieve T. Goodlake, of Letcombe Regis in the county 
 of Berks, Esquire, on the 24th of November, 50th Geo. 3, with force 
 and arms, at East Challow in the county aforesaid, unlawfully and 
 wickedly did conspire, combine, confederate, and agree together, and 
 with divers other persons unknown, to go into a certain preserve for 
 hares at Letcombe Regis aforesaid, in the county aforesaid, belonging 
 to the said T. G., without the leave and against the will and consent 
 ■Df the said T. G., to snare, take, kill, destroy, and carry away the 
 hares in the said preserve then being, and to procure divers bludgeons 
 and other offensive weapons, and to go to the said preserve armed 
 therewith for the purpose of opposing any persons who should 
 endeavor to apprehend or obstruct or prevent them in and from carry- 
 ing into execution their unlawful and wicked purposes aforesaid ; and 
 'Jiat the said defendants, in pursuance of and according to the conspir- 
 acy, combination, confederacy, and agreement aforesaid, so as afore- 
 said before had, afterwards, to wit, on the said day, &c., about the 
 hour of 12 in the night of the same day, with force and arms, at East 
 Challow aforesaid, in the county aforesaid, unlawfully and wickedly 
 did procure divers large bludgeons, and other offensive weapons, and 
 did go to the said preserve of the said T. G. armed therewith, for the 
 purpose of opposing any persons who should endeavor to apprehend, 
 obstruct, or prevent them in and from carrying into execution their 
 unlawful and wicked purposes aforesaid. And the said defendants, 
 
 ^ It is said, s. c. 1 Sess. Cases, 336, that the court left the defendants to demur or 
 plead to it, as they should think fit; and s. c. 1 Stra. 707, that on a demurrer to this 
 indictment, judgment was given for the defendant, because it is not an offence 
 indictable.
 
 SECT. II.] REX V. TUKNER. 857 
 
 being so armed as aforesaid, in further execution of tlieir unlawful and 
 wicked purposes aforesaid, then and there did set divers, to wit, 100 
 snares, for the purpose and with the intent to take, kill, destroy, and 
 carry away the hares in the said preserve then being ; in contempt of 
 the king and his laws, to the evil example of others, to the great 
 damage of the said T. G., and against the peace, etc. 
 
 After a verdict of guilty, it was moved in the last term, by Jeruis, to 
 arrest the judgment for the insufficiency of the charge, which was only 
 that of an agreement to commit a mere trespass upon propert3', ^^^^ "^^ 
 set snares for hares, and was not uu indictable offence, but at most 
 only an injury of a private nature, prohibited sub modo, under a pen- 
 alty. And 2 Hawk. P. C. c. 25, s. 4, was referred to. Another 
 objection was taken, that the place where the offence was committed 
 was not alleged with sufficient certainty and precision. 
 
 Gleecl now opposed the rule, and endeavored to sustain the indict- 
 ment upon the authority of 2 Hawk. P. C. c. 72, s. 2, where it is said 
 that all confederacies whatsoever wrongfully to prejudice a third per- 
 son are highly criminal at common law ; as where several confederate 
 to maintain one another in any matter whether it be true or false. The 
 cases also show that it is equally an offence to combine to do a lawful 
 act by unlawful means, or to an unlawful end, as to do an act in itself 
 unlawful ; as in the instance of workmen conspiring together to raise 
 their wages. The King v. The Journeymen Tailors of Cambridge, 8 
 Mod. 11, or parish officers conspiring to marr\' a helpless pauper into 
 another parish, to settle her there and rid themselves of her mainte- 
 nance, The King v. Edwards and Others, 8 Mod. 320. And in all 
 cases of unlawful conspiracy, the mere unlawful agreement to do the 
 act, though it be not afterwards executed, constitutes the offence ; 
 according to Rex v. Armstrong and Others, 1 Ventr. 304. and Rex r. 
 Rispal, 3 Burr. 1320, and 1 W. Black. 368. In this latter case the 
 indictment for conspiring to charge a man with a false fact, and 
 exacting mone}' from him under pretence of stifling the charge, was 
 sustained ; though the fact imputed, which was merely that of taking 
 hair out of a bag belonging to the defendant Rispal, did not import in 
 itself to be any offence. [Lord Ellenborough, C. J. All the cases in 
 conspirac}^ proceed upon the ground that the object of the combination 
 is to be effected by some falsity ; insomuch that in Tailor and Tow- 
 lin's case in Godb. 444, it was held necessary in conspiracy to allege 
 the matter to ho. false et malitiose. B3' the old law indeed the offence 
 was considered to consist in imposing by combination a false crime 
 upon a person. But are you prepared to show that two unqualified 
 persons going out together b}- agreement to sport is a public offence ?] 
 Modern cases have carried the offence further than some of the old 
 authorities, such as The King v. Eccles and Others, where the defend- 
 ants were convicted upon a charge of conspiring together by i?idirect 
 means (not stating what those means were) to prevent a person from 
 carrying on his trade. And in The King v. Spragge and Others, 2
 
 858 REX V. PYWELL. [CHAP. Xi 7. 
 
 Burr. 993, which charged the defendants with a conspiracy to indict 
 and prosecute \V. G. for a crime Hable by law to be capitally pun- 
 ished, and that in pursuance of such conspiracy they did afterwards 
 indict him ; one of the objections was, that the charge was onlv of a 
 conspiracy to indict, not of a conspiracy to indict falsely ; but it was 
 overruled. 
 
 Lord Ellenborough, C. J. That was a conspiracy to indict another 
 of a ca[)ital crime ; which no doubt is an offence. And the case of 
 The King v. Eccles and Others was considered as a conspiracy in 
 restraint of trade, and so far a conspiracy to do an unlawful act affect- 
 ing the public. But T should be sorry that the cases in conspiracy 
 against individuals, which have gone far enough, should be pushed still 
 farther : I should be sorry to have it doubted whether persons agree- 
 ing to go and sport upon another's ground, in other words, to commit 
 a civil trespass, should be thereby in peril of an indictment for an 
 offence which would subject them to infamous punishment. 
 
 Per Curiam. Bule absolute.'* 
 
 REX V. PYWELL. 
 
 Westminster Sittings. 1816. 
 
 [Reported I Starkie, 402.] 
 
 This was an indictment agahist the defendants for a conspiracy to 
 cheat and defraud General Maclean, by selling him an unsound horse. 
 
 It appeared that the defendant Pywell had advertised the sale of 
 horses, undertaking to warrant their soundness. Upon an a[)i)lication 
 b}' General Maclean at Pywell's stables, Budger}', another of the de- 
 fendants, stated to him that he had lived with the owner of a horse 
 which was shown to him, and that he knew the horse to be perfectly 
 sound, and as the agent of Pywell, he warranted him to be sound. 
 General Maclean purchased the horse, and took the following receipt : 
 
 " Received of Maclean, Esq.. the sum of fifty guineas, for a geld- 
 ing warranted sound, to be returned if not approved of within a week." 
 
 1" After the most careful and elaborate consideration of the cases, I am satisfied 
 that Rex ?'. Turner is not law." liORo Campbell, C. J., in Reg. v. Rowlands, 5 Cox 
 436, 490. "The King v. Turner, 13 East, 231, to say the least of it, is an odd case. 
 Confederates armed with clubs to beat down opposition, entered a man's preserve in 
 the niglit to take and carry away his hares; and Lord Ellenborough called this 'an 
 agreement to go and sport on another's ground,' in other words, ' to commit a civil 
 trespass' ! It would be a curious thing to know what he would have called an agree- 
 ment to steal a man's pigs or to rob his henroost. In its mildest aspect, the entry into 
 the preserve with bludgeons was a riot, which, it appears by a note in the second vol- 
 ume of Mr. Chitty's Criminal Law, page 506, may be a subject of conspiracy." 
 Gibson. C. J., in Mifflin v. Com., 5 W. & S. 461. 463. — Ed.
 
 SECT. II.] KEGLNA V. WAUBUKTON. 859 
 
 It was discovered, very soon after the sale, that the animal was 
 nearly worthless. The prosecutors were proceeding to give evidence 
 of the steps taken to return the gelding, when — 
 
 Lord Ellenborougii intimated tliat tlie case did not assume the 
 shape of a conspiracy ; tlie evidence would not warrant any i)roceediug 
 beyond that of an action on tlie warranty, for the breach of a civil con« 
 tract. If this (lie saiil) were to be considered to be an indictablti 
 offence, then instead oi' all the actions which had been brought on war- 
 ranties, the defendants ought to have been indicted as cheats. And 
 that no indictment in a case like this could be maintained, without 
 evidence of concert between the parties to etfectuate a fraud. 
 
 The defendants were accordingly acquitted. 
 
 The Attorney- General and Andrews for the prosecution. 
 
 Nolan and Spankie for the defendants. 
 
 REGINA V. WARBURTON. 
 Crown Case Reserved. 1870. 
 
 [Reported L. R. 1 C. C. R. 274.] 
 
 Case stated by Brett, J. : — 
 
 Indictment, amongst other counts, that the prisoner had unlawfully 
 conspired with one Joseph Warburton and one W. H. Pepys, by divers 
 subtle means and devices, to cheat and defraud the prosecutor, 8. C. 
 Lister. 
 
 At the trial at the summer assizes, in 1870, for the West Riding of 
 Yorkshire, at Leeds, it was found that the prisoner and Lister were 
 In 1864 in partnership, and cari'ied on a part of the partnership busi- 
 ness at Urbigaii, in Saxony, by there selling patent machines ; that the 
 prisoner had given notice according to the terms of the i)artiiership 
 agreement for a dissoUition of the partnership between himself and Lis- 
 ter; and that upon such dissolution an account was to be taken accord- 
 ing to the partnership agreement of the partnership property, and that 
 according to it such property would be divided on such dissolution in 
 certain proportions between the prisoner and Lister after payment of 
 partnership liabilities ; and that the prisoner, in order to cheat Lister, 
 had agreed with his brother, Joseph Warbnrton, who managed the 
 partnership business at Urbigau, and with Pepys, who resided at Co- 
 logne, to make it appear by documents, purporting to have passed 
 between Pepys and Joseph Warburton, and b}- entries in the partner- 
 ship books or accounts, made under the superintendence of Joseph 
 Warburton, that Pepys was a creditor of the firm for moneys advanced ; 
 and that, by reason of such documents and entries, certain partnership 
 property was to be withdrawn and to bo handed to Pepys or otherwise
 
 860 EEGINA V. WARBURTON. [CHAP. XIV. 
 
 abstracted or kept back so as to be divided between the prisoner and 
 Joseph Warburton and Pepys, to the exchision of Lister from any inter- 
 est or advantage in or from or in respect of it. 
 
 The jur}-, upon this evidence, found the prisoner guilt}' of the con- 
 spiracy charged, and rightly so found if in point of law such an agree- 
 ment made by a partner with such an intent to defraud his partner of 
 partnership property and to exclude him entirel}' from an}' interest in 
 or advantage from it on such an occasion, that is to say, on the taking 
 of an account for the purpose of dividing the partnership pi'operty on a 
 dissolution of the partnership, by means of false entries in the partner- 
 ship books, and false documents purporting to have passed with a sup- 
 posed creditor of the firm, is a conspiracy for which a prisoner can be 
 criminally convicted. 
 
 The offence, if it were one, was fully completed before the passing 
 of 31 & 32 Vict. c. 116, by which a partner can be criminally convicted 
 for feloniously stealing partnership property. 
 
 The question for the opinion of the court was whether the verdict 
 could be sustained so as to support a conviction for conspiracy in point 
 of law. 
 
 Waddy (JWhitaher with him) for the prisoner. To constitute a con- 
 spiracy there must be an agreement to do an illegal act or to do a legal 
 act by illegal means. See Russell on Crimes, 4th ed. vol. iii. p. 116. 
 Here the acts agreed upon, although doubtless immoral, are not illegal. 
 If the agreement had been carried out, the prisoner could not have 
 been sued at law by Lister, nor could he have been indicted for doing 
 the agreed acts. Lindley on Partnership, 2d ed. vol. ii. p. 856. It is 
 not an indictable offence for one partner to obtain some of the partner- 
 ship money from the other partners by means of a fraudulent misstate- 
 ment of existing facts. Reg. r. Evans, Leigh & Cave, 252 ; 32 L. J. 
 (M. C.) 88. The acts contemplated by the agreement were, therefore, 
 neither actionable nor criminal. 
 
 [CocKBUKN, C J. Even assuming that no action or indictment would 
 lie for such acts, the acts are wrongful nevertheless, and there is a 
 remedy, viz., by proceedings in equity.] 
 
 An act which merely gives a right to proceed in equity is not an 
 illegal act within tiie meaning of tiie definitions of conspiracy. 
 
 Maule^ Q. C. (Nathati with him), for the prosecution was not called 
 upon. 
 
 CocKBURN, C. J. It has been doubted sometimes whether the law of 
 England does not go too far in treating as conspiracies agreements to 
 do acts which, if done, would not be criminal offences. This ques- 
 tion does not, however, arise here, as no one would wish to restrict the 
 law so that it should not include a case like the present. It is sufficient 
 to constitute a conspiracy if two or more persons combine by fraud and 
 false pretences to injure another. See Russell on Crimes, 4th ed. 
 vol. iii. p. 116. It is not necessary in order to constitute a conspiracy 
 that the acts agreed to be done should be acts which if done would be
 
 SECT, n.] COMMONWEALTH V. PRIUS. 861 
 
 criminal. It is enough if the acts agreed to be done, although not 
 criminal, are wrongful, i. e., amount to a civil wrong. Here there was 
 undoubtedl}' an agreement with reference to the division of the partner- 
 ship propertv or of tlie partnership profits. It is equally clear tliat tlie 
 agreement was to commit a civil wrong, because the agreement was to 
 deprive the prisoner's partner by fraud and false pretences of his just 
 share of the property or profits of the partnership. A ci\il wrong was 
 therefore intended to Lister. The facts of this case thus fall within 
 the rule that when two fraudulently combine, the agreement may be 
 criminal, although if the agreement were carried out no crime would be 
 committed, but a civil wrong only would be inflicted on a third party. 
 In this case the object of the agreement was, perhaps, not criminal. 
 It is not necessary to decide whether or not it was criminal ; it was, 
 however, a conspirac}', as the object was to commit a civil wrong by 
 fraud and false pretences, and I think that the conviction should be 
 affirmed. 
 
 Channell and Cleasby, BB., Keating and Buett, JJ., concurred. 
 
 , Co7iviction affirmed. 
 
 COMMONWEALTH v. PRIUS. 
 Supreme Judicial Court of Massachusetts. 1857. 
 
 [Reported 9 Gray, 127.] 
 
 The second count of this indictment alleged that the defendants, on 
 the 1st of March, 1856, owning a stock of goods in Lowell as partners, 
 and having insurance thereon against fire by certain insurance com- 
 panies named in the indictment, amounting in all to the sum of SlO,000, 
 " did then and there corruptly, wickedly, and unlawfully confederate, 
 agree, combine, and conspire together, to insure and cause to be in- 
 sured on said stock" certain other suras, amounting to $10,000 more, 
 in other companies named, " by then and there falsely pretending that 
 said stock so by said firm kept and used in their said business was then 
 and there of a much greater value than twenty thousand dollars ; and 
 as a part of said unlawful agreement" the defendants " did then and 
 there corruptly, wickedly, and unlawfully confederate, agree, combine, 
 and conspire together to obtain from all said insurance companies aa 
 and for a loss to a large amount, to wit, twenty thousand dollars, by 
 means of false pretences of a loss thereafterward to happen, with de- 
 sign, under pretence of a loss, to cheat and defraud all said insurance 
 companies and each one of them of their moneys by means of said 
 false pretences ; against the peace of said Commonwealth, and contrarj 
 to the form of the statute in such case made and provided." 
 
 The defendants, being convicted in the Court of Common Pleas on 
 this count, moved in arrest of judgment, that no oflJence was alleged
 
 862 SMITH V. PEOPLE. [CHAP. XIV. 
 
 therein. Sanger, J., overruled the motion, and the defendants alleged 
 exceptions. 
 
 7'. Wentworth & P. Haggerty, for the defendants. 
 
 J. H. Clifford (Attorney-General), for the Commonwealth. 
 
 BiGELOAV, J. The second count in the indictment, on which alone 
 the defendants were found guilty, is fatall}- defective. It was not a 
 crime in the defendants to procure an over-insurance on their stock in 
 trade. It was at most only a civil wrong. The charge of a conspiracy 
 to do so does not therefore amount to a criminal offence. It was not a 
 combination to effect an unlawful purpose, and no unlawful means by 
 which the purpose was to be effected are set out in the indictment. 
 
 The residue of the count is too uncertain and indefinite to support a 
 conviction. It amounts to nothing more than an allegation of a con- 
 spiracy to cheat and defraud the insurance companies, which is clearly 
 insufficient. Commonwealth v. Shedd, 7 Cush. 514. The means by 
 which this purpose was to be effected are not stated with such precision 
 and certaint}' as to show that they were unlawful. The false pretences 
 by which money was to be o.btained from the insurance companies are 
 not set out; and the charge of a conspiracy '•'to obtain mone}' by 
 means of false pretences of a loss thereafterward to happen," is alto- 
 gether too general and vague a statement to come within the rules of 
 criminal pleading.^ Judgment arrested 
 
 SMITH V. PEOPLE. 
 Supreme Court of Illinois. 1860. 
 
 [Reported 25 Illinois, 17.] 
 
 This indictment, filed at the April Term, a. d. 1860, of the Re- 
 corder's Court, of the cit}' of Chicago, contains two counts for 
 conspiracy. 
 
 The first count charges, that Charles H. Schwab, John B. Smith, and 
 Mar}' C. Allen, on the first day of March, a. d. 1860, at Chicago, did. 
 between themselves, unlawfully conspire, combine, confederate, and 
 agree together, wickedl}', knowingly, and designedly, to procure, by false 
 pretences, false representations, and other fraudulent means, one Lizzie 
 M. Engles to have illicit carnal connection with a man, to wit, with 
 the said Charles H. Schwab, one of the defendants aforesaid. 
 
 The second count charges, that the defendants did, then and there, 
 (on the same da}') unlawfully between themselves, combine, confederate, 
 and agree together wickedly, knowingly, and designedl}', to cause and 
 procure, by false pretences, false representations, and other fraudulent 
 means, one Lizzie M. Engles, then and there a minor female child, of 
 
 1 But see Com. v. Fuller, 1.32 Mass. 563. — Ed.
 
 SECT. II.] SMITH V. PEOPLE. 863 
 
 the age of sixteen, to have illicit carnal connection with a man, to wit, 
 with the aforessaid Charles H. Schwab. 
 
 To this indictment the plaintitTs in error pleaded not guilt}', in proper 
 person.^ 
 
 The jury returned witli a verdict of guilty as to all of the defendants. 
 And the defendants Smith and Schwab moved in arrest of judgment, 
 which motion was overruled. The Recorder then proceeded to sentence 
 defendants Smith and Schwab each to the City Bridewell, for the term 
 of six months, or to pay a fine of $100, and one-third costs of prosecu- 
 tion, and the defendant Allen to be imprisoned in the City Bridewell 
 three months. 
 
 The errors assigned were that : There is no indictable offence set 
 forth in the indictment. The court erred in refusing to arrest the 
 judgment.- 
 
 Caton, C. J. To attempt to define the limit or extent of the law of 
 conspiracy, as deducible from the English decisions, would be a difficult 
 if not an impracticable task, and we shall not attempt it at the present 
 time. We may safely assume that it is indictable to conspire to do an 
 unlawful act by any means, and also that it is indictable to conspire to 
 do an}' act b}' unlawful means. In the former case it is not necessary 
 to set out the means used, while in the latter it is, as they must be 
 sliown to be unlawful. But the great uncertaint}', if we may be allowed 
 the expression, is as to what constitutes an unlawful end, to conspire 
 to accomplish which is indictable without regard to the means to be 
 used in its accomplishment. And again, what means are unlawful to 
 accomplish a purpose not in itself unlawful. As this indictment falls 
 under the first class, we shall confine ourselves to that. If the term 
 unlawful means criminal, or an offence against the criminal law, and as 
 such punishable, then the objection taken to this indictment is good, 
 for seduction b} our law is not indictable and punishable as a crime. 
 But by the common law governing conspiracies the term is not so 
 limited, and numerous cases are to be found where convictions have 
 been sustained for conspiracy to do unlawful acts, although those acts 
 are not punishable as crimes. Nor yet would it be quite safe to say 
 that the term unlawful as here used includes every act which violates 
 the legal rights of another, giving that other a right of action for a civil 
 remed}'. And we are not now prepared to say where the line can be 
 safely drawn. It is sufficient for the present case, to say tliat conspira- 
 cies to accomplish purposes which are not by law punishable as crimes, 
 but which are unlawful as violative of the rights of individuals, and for 
 which the civil law will afford a remedy to the injured part}', and will 
 at the same time and by the same process punish the offender for the 
 wrong and outrage done to societ}', b}' giving exemplar}' damages, 
 beyond the damages actually proved, have in numerous instances been 
 sustained as common law offences. The law does not punish criminally 
 
 1 The evidence and requests to charge are omitted. 
 ■^ The other assignments of error are omitted.
 
 864 SMITH V. PEOPLE. [CHAP. XIV. 
 
 every unlawful act, although it may be a grievous offence to societ}-. 
 And in determining what sort of conspiracies ma}- or may not be 
 entered into without committing an offence punishable by the common 
 law, regard must be had to the influence which the act, if done, would 
 actually have upon society, without confining the inquiry to the question 
 whether the act might itself subject the offender to criminal punishment. 
 And most prominent among the acts branded as unlawful, although not 
 punishable as crimes, is the very act, to accomplish which this con- 
 spiracy- is charged to have been entered into. It is more destructive 
 of the happiness of individuals and of the well-being of societ}-, than 
 vcr\' many others which are punishable as crimes, and the law has ever 
 favored its punishment b}- exemplar}- damages to the parent, guardian 
 or master of the victim of seduction, although he is often regarded as 
 the injured party by the merest technicalit}-. To sa}- that it is innocent, 
 or not a crime, for parties to band and conspire together to accomplish 
 the destruction, by seduction, of any 3'oung girl in the communit}-, un- 
 less it can be shown that the means to be used are unlawful, and then 
 hold that such unlawful means must of themselves be criminal and pun- 
 ishable as such, would be giving a legal sanction and encouragement to 
 such conspiracies. Under such decisions the courts, instead of being 
 the guardians of the peace and happiness and well-being of society, 
 would lend their sanction to its worst enemies. If there be any act 
 which should be regarded as unlawful in the sense of the law of con- 
 spiracy, but which is not punishable as a crime, it is this very act, and 
 so it has been and ever should be regarded by the courts. We do not 
 hesitate to hold that a conspiracy to accomplish such an object as this, 
 whether the means to be used be unlawful or criminal or not, is a crime 
 at the common law, and that it is the duty of the courts to protect 
 society against such conspiracies by their punishment. If the laws of 
 the land will not afford such protection, then individuals will protect 
 themselves b}- violence, for it is not in human nature to let such 
 offences go unpunished in some way. Counsel sa}-, in argument, that 
 if we sustain this conviction no man in communit}- can repose in secu- 
 rity. We answer, no man who will enter into a conspiracy to accom- 
 plish so nefarious a purpose as this, should be allowed to repose in 
 securit}- ; and if parties who thus offend are allowed to do so, then 
 innocent and useful members of societ}- cannot. We hold that it was 
 not necessary to show that the means to be used by the conspirators 
 were unlawful or criminal. 
 
 The objection that this being but a common law offence, is not pun- 
 ishable in this State, where we have a criminal code defining most 
 criminal offences and prescribing their punishment, is answered b}- the 
 case of Johnson v. The People, 22 111. 314. It is there shown, that 
 our criminal code prescribes punishment for offences not enumerated, 
 which can mean nothing but common law offences, showing conclusively 
 that it was not the intention of the legislature to repeal that portion of 
 the common law b}' implication.
 
 SEOT. III.] CONSPIIIACY AND OTHER OFFENCES AGAINST TRADE. 865 
 
 We do not deem it necessaiy to review the instructions in detail. 
 We have examined them and the questions made upon them, and find 
 no error committed by the court in the instructions; nor do we think 
 that the verdict was uusustained by the proof. The judgment is 
 affirmed. Judgment ajfirrned. 
 
 SECTION III. 
 
 Conspiracy and other Offences against Trade. 
 
 Ordinance for bakers, &c., e. 10.^ Be it commanded on the behalf of 
 our Lord the King, that no forestaller be suffered to dwell in an}- town, 
 which is an open oppressor of poor people, and of all the commonalty, 
 and an enemy of the whole shire and country, which for greediness of 
 his private gain doth prevent others in bu3'ing grain, fish, herring or 
 any other thing to be sold coming by land or water, oppressing the 
 poor and deceiving the rich, which carrieth away such things, intend- 
 ing to sell them more dear ; the which come to merchants stranger that 
 bring merchandise ofl'ering them to buy, and informing them that their 
 goods might be dearer sold than they intended to sell, and an whole 
 town or a country is deceived by such craft and subtlety. He that is 
 convict thereof the first time shall be amerced, and shall lose the thins; 
 so bought, and that according to the custom and ordinance of the town ; 
 he that is convict the second time shall have Judgment of the pillory; 
 at the third time he shall be imprisoned and make fine ; the fourth time 
 he shall abjure the town. And this judgment shall be given upon all 
 manner of forestallers, and likewise upon them that have given them 
 counsel, help, or favor. 
 
 1 Published during the thirteenth century ; the exact date is uncertain. — Ed.
 
 866 ARTICLES OF INQUEST. [CHAP. XIV. 
 
 ARTICLES OF INQUEST. 
 All the Justices. 1352. 
 [Reported Lib. Assis. 138, pi. 44.] 
 
 These are the articles which are to be inquired of by the Inquest of 
 Office in the King's Bench, summoned to inquire of homicides, thieves, 
 burners of houses, ravishers of women, and of all manner of felons and 
 of felonies, and their receivers, procurers, and maintainers, as well in 
 the time of the King's father, as in the time of the King wlio now is, of 
 escapes of thieves, &c. . . . 
 
 Likewise of those who bind others by their robes or fees to conceal 
 the truth, and to maintain their evil emprises, &c. And note, that 
 two were indicted for confederacy, each of them to maintain the other, 
 whether their cause were true or false ; and notwithstanding nothing 
 was alleged to be put in motion, the parties were held to answer, 
 because this thing is forbidden by the law, &c. 
 
 Likewise of conspirators, and confederates, who bind themselves 
 together by oath, covenant, or some other alliance, that each of them 
 will aid and sustain the otlier's emprise, be it false or true ; and who 
 falsely have persons indicted or acquitted, or falsely bring or maintain 
 pleas, b}' means of alliance, &c. . . . 
 
 Likewise of forestallers of victual, and of purveyors of victual with- 
 out being duly appraised by the vill, or those who take them without 
 making a bargain with the persons from whom they take them, accord- 
 ing to the statute in such case provided. . . . Likewise of merchants 
 who by covin and alliance among themselves from year to year put a 
 certain price on wool which is for sale in the country, so that none of 
 them will buy or overbid another in buying wool beyond the certain price 
 which they themselves have ordained : to the great impoverishment of 
 the people, &c. . . . 
 
 Likewise of all manner of oppressions and grievances done to the 
 people of our Lord the King.
 
 SECT. III.] THE lombaed's case. 86'i 
 
 THE LOMBARD'S CASE. 
 
 London Assizes. 1368. 
 {Reported Lib. Assts. 276, pi. 38.] 
 
 A Lombard was indicted in London for concealing the customs of 
 our Lord tiie King, and for divers other things ; and presentment was 
 also made against him, that he had procured and promoted the enhanc- 
 ing of the price of mercliandize. And judgment for him was prayed 
 because this was not forestalling, nor could it sound in forestalling ; 
 and since it did not appear from the presentment that any wrong was 
 actuall}- done, he should not be held to answer. And non allocatur ; 
 for Knivet said, that certain persons (whom he named) came into the 
 neigliborhood of Coteswold, and in deceit of the people said that no 
 wool could cross the sea in the next year, there were so many wars in 
 those parts ; by which they depressed the price of wool. And they 
 were brought before the King's Council, and could not deny it ; where- 
 fore the}" were put to fine and ransom before the King. 
 
 And so in this case. Wherefore he pleaded not guilt}', «&c. 
 
 Coke, 3rd Institute, 196. It was upon conference and mature delibera- 
 tion resolved b}' all the justices, that any merchant, subject or stranger, 
 bringing victuals or merchandize into this realme, may sell them in 
 grosse ; but that vendee cannot sell them againe in grosse, for then he 
 is an ingrosser according to the nature of the word, for that he buy 
 ingrosse and sell ingrosse, and may be indicted thereof at the common 
 law, as for an offence that is malmn in se. 2. That no merchant or 
 other ma}' buy within the realme any victuall or other merchandize in 
 grosse, and sell the same in grosse againe, for then he is an ingrosser, 
 and punishable ^lt supi^a ; for by this means the prices of victuals and 
 other merchandize shall be inhaunced, to the grievance of the subject ; 
 for the more hands the}' passe through, the dearer they grow, for every 
 one thirsteth after gaine, vitiosutn sitiunt lucrum. And if these things 
 were lawfull, a riche man might ingrosse into his hands all a commodity 
 and sell the same at what price he will. And every practice or device 
 by act, conspiracy, words or newes, to inhaunce the price of victuals oi 
 other merchandize, was punishable by law ; and they relied much upon 
 the statute aforesaid, nullus forstallaritcs, &c., which see before in 
 this chapter : and that the name of an ingrosser in the reigne of 
 H. 3 and E. 1 was not known, but comprehended within this word 
 [forstaUarius'\ lucrum sitiens vitlosum ; and ingrossing is a branch of 
 forestalling. And for that forstallarius was patiperum depressor.^ et 
 totius comm,unitatis et patriae 2yi<'^licus inimicus, he was punishable 
 by the common law. 
 
 7 & 8 Vict. c. 24, sects. 1, 4. Be it enacted, &c. . . . that after the 
 passing of this Act the several offences of badgering, engrossing. for<^
 
 868 THE LOMBARD'S CASE. [CHAP, XIV. 
 
 stalling, and regrating be utterly taken away and abolished, and that 
 no information, indictment, suit, or prosecution shall lie either at com- 
 mon law or b}- virtue of any statute, or be commenced or prosecuted 
 against any person for or by reason of any of the said offences or 
 supposed offences.^ 
 
 Provided always, and be it enacted, that nothing in this Act con- 
 tained shall be construed to apph' to the offence of knowingh' and 
 fraudulently spreading or conspiring to spread any false rumor, with 
 intent to enhance or deer}' the price of any goods or merchandize, or to 
 the offence of preventing or endeavoring to prevent b}- force or threats 
 any goods, wares, or merchandize being brought to an}- fair or market, 
 but that every such offence may be inquired of, tried, and punished as 
 if this Act had not been made. 
 
 23 Ed. 3, c. 1, 2. [Statute of Laborers.] Ever}' man and woman 
 of our realm of England, of what condition he be, free or bond, able in 
 bod}', and within the age of threescore years, not living in merchandize, 
 nor exercising any craft, nor having of his own whereof he ma}' live, 
 nor proper land, about whose tillage he may himself occupy, and not 
 serving any other, if he in convenient service (his estate considered) be 
 required to serve, he shall be bounden to serve him which so shall him 
 require. And take only the wages, livery, meed, or salary, which were 
 accustomed to be given in the places where he oweth to serve, the xx 
 year of our reigne of England, or five or six other common years next 
 before. . . . 
 
 Item, if any reaper, mower, or other workman or servant, of what 
 estate or condition that he be, retained in any man's service, do depart 
 from the said service without reasonable cause or licence, before the 
 terra agreed, he shall have pain of imprisonment. And that none under 
 the same pain presume to receive or retain any such in his service,^ 
 
 5 Eliz. c 4, sects. 5, 6. And be it further enacted, that no person 
 which shall retain any servant shall put away his or her said servant, 
 and that no person retained according to this statute shall depart from 
 his master, mistress or dame, before the end of his or her term, upon 
 the pain hereafter mentioned, unless it be for some reasonable and 
 sufficient cause or matter to be allowed before two justices of peace, or 
 one at the least, within the said county. 
 
 And that no such master, mistress or dame shall put away any such 
 servant at the end of his term, or that any such servant shall depart 
 from his said master, mistress or dame at the end of his term, without 
 one quarter's warning given before the end of his said term, either by 
 the said master, mistress or dame, or servant, the one to the other, 
 upon the pain hereafter ensuing.^ 
 
 1 See Sect. 2 of this Act for a list of the statutes dealing with these subjects — Ed 
 
 2 This statute and later statutes to the same effect were modified by 5 Eliz. 
 c. 4. — Ed. 
 
 « Repealed 38 & 39 Vict. c. 86. sect. 17. —Ed.
 
 SECT. III.] KEX V. JOURNEYMAN-TAILORS OF CAMBRIDGE. 869 
 
 REX V. JOURNEYMAN-TAILORS OF CAMBRIDGE. 
 
 King's Bench. 1721. 
 
 [Reported 8 Modem. 10] 
 
 One Wise, and several other journeyman-tailors, of or in the town of 
 Cambridge, were indicted for a conspiracy amongst themselves to raise 
 their wages, and were found guiltj-. 
 
 It was moved in arrest of judgment u[)on several errors in the record. 
 
 Thirdly.^ No crime appears upon tlie face of this indictment, for it 
 only charges tliem with a conspiracy- and refusal to work at so much 
 per diem, whereas they are not obliged to work at all by the day but by 
 the year, b}' 5 Eliz. c. 4. 
 
 It was answered, tliat the refusal to work was not the crime, but the 
 ■conspirac}' to raise the wages. 
 
 The Couut. Tlie indictment, it is true, sets forth that the defend- 
 ants refused to work under the wages wliich they demanded ; but al- 
 though these might be more than is directed l\y the statute, yet it is not 
 for the refusing to work but for conspiring that they are indicted, and 
 a conspiracy of any kind is illegal although the matter about which 
 they conspired might have been lawful for them, or any of them, to do, 
 if they had not conspired to do it, as appears in the case of The Tub- 
 women V. The Brewers of London. 
 
 Fifthly. This indictment ought to conclude contra formam sfMuti ; 
 for b}' the late statute 7 Geo. I. c. 13, journeymen-tailors are prohib- 
 ited to enter into any contract or agreement for advancing their wages, 
 &c. And the statute of 2 & 3 Edw. VI. c. 15, makes such persons 
 criminal. 
 
 It was answered that the omission in not concluding this indictment 
 contra forn^am statuti is not material, because it is for a conspiracv., 
 which is an offence at common law. It is true, the indictment sets 
 forth that the defendants refused to work under such rates, which were 
 more than enjoined by the statute, for that is only two shillings a 
 day ; but yet these words will not bring the offence, for which the 
 defendants are indicted, to be within that statute, because it is not the 
 denial to work except for more wages than is allowed by the statute, 
 but it is for a conspirac}' to raise their wages, for which these defend- 
 ants are indicted. It is true it does not appear by the record that the 
 wages demanded were excessive, but that is not material, because it 
 may be given in evidence. 
 
 The Court. This indictment need not conclude contra formam 
 statuti, because it is for a conspiracy, which is an offence at common 
 law. 
 
 So the judgment was confirmed by the whole court quod capiantur. 
 
 * The first, second, ami fourth obiections are oniitted.
 
 870 COMMONWEALTH V. HUNT. [CHAP. XIV. 
 
 COaiMONWEALTH v. HUNT. 
 
 Supreme Judicial Couut ok Massachusetts. 1842, 
 
 [Repurled A Metcalf, 111.] 
 
 Shaw, C. J. The counsel for the defendants contended, and re- 
 quested the court to instruct the jur\-, that the indictment did not set 
 forth an}' agreement to do a criminal act, or to do any lawful act by 
 anv specified criminal means, and that the agreements tlierein set forth 
 did not constitute a conspiracy indictable b}- any law of this Common- 
 wealth. But the judge refused so to do, and instructed the juiy, that 
 the indictment did, in his opinion, describe a confederacj* among the 
 defendants to do an unlawful act, and to effect the same by unlawful 
 means ; that the society, organized and associated for the purposes 
 described in the indictment, was an unlawful conspirac}', against the 
 laws of this Commonwealth ; and that if the juiT believed, from the 
 evidence in the case, that the defendants, or any of them, had engaged 
 in sucii a confederacy, they were bound to find such of them guilty. 
 
 We are here carefully to distinguish between the confederacy set 
 forth in the indictment, and the confederac}- or association contained in 
 the constitution of the Boston Journeymen Bootmakers' Society, as 
 stated in the little printed book, which was admitted as evidence on the 
 trial. Because, though it was thus admitted as evidence, it would not 
 warrant a eonvi(;tion for anything not stated in the indictment. It 
 was proof, as far as it went, to support the averments in the indictment. 
 If it contained any criminal matter not set forth in the indictment, it is 
 of no avail. The question then presents itself in the same form as on 
 a motion in arrest of judgment. 
 
 The first count set forth, that the defendants, with divers others 
 unknown, on the day and at the place named, being workmen and jour- 
 ueynien. in the art and occupation of bootmakers, unlawfully, ix-rni- 
 •ciously and deceitfully designing and intending to continue, keep up, 
 form, and unite themselves, into an unlawful club, society, and combina- 
 tion, and make unlawful l)y-laws, rules, and orders, among themselves, 
 :and thereby govern themselves and other workmen, in the said art, and 
 unlawfully and unjustly to extort great sums of money by means 
 thereof, did unlawfully assemble and meet together, and being so 
 assembled, did unjustly and corruptly conspire, combine, confederate, 
 and agree together, that none of them should thereafter, and that none 
 t)f them would, work for any master or person whatsoever, in the said 
 art, mystery, and occupation, who should employ any workman or jour- 
 neyman, or otlier person, in the said art, who w^as not a member of 
 said club, society, or combination, after notice given him to discharge 
 such workmen, from the employ of such master ; to the great damage 
 and oppression, etc. 
 
 1 Part ouly of the opiuiou is givea.
 
 SECT. III.J COMMONWEALTH V. HUNT. 871 
 
 Now it is to be considered, that the preamble and introcUictoi y mat- 
 ter in the indictment — such as unhvvvfiilly and deceitfully designing and 
 intending unjustly to extort great sums, etc. — is mei-e recital, and not 
 traversable, and therefore cannot aid an imperfect averment of the 
 facts constituting the description of the offence. The same may be 
 said of the concluding matter, whicli follows the averment, as to the 
 great damage and oppression not only of their said masters, employing 
 them in said art and occupation, but also of divers other workmen in 
 the same art, mystery, and occupation, to the evil example, &c. If the 
 facts averred constitute the crime, these are properly stated as the legal 
 inferences to be drawn from them. If they do not constitute the charge 
 of such an offence, they cannot be aided by these alleged consequences. 
 
 Stripped then of these introductory recitals and alleged injurious 
 consequences, and of the qualifying epithets attached to the facts, the 
 averment is this ; that the defendants and others formed themselves 
 into a society, and agreed not to work for any person, wlio should 
 employ any journeyman or other person, not a member of such society, 
 after notice given him to discharge such workman. 
 
 The manifest intent of the association is, to induce all those engaged 
 in the same occupation to become members of it. Such a purpose is 
 not unlawful. It would give them a power which might be exerted for 
 useful and honorable purposes, or for dangerous and pernicious ones. 
 If the latter were the real and actual object, and susceptible of proof, 
 it should have been specially charged. Such an association might be 
 used to afford each other assistance in times of poverty, sickness, and 
 distress ; or to raise their intellectual, moral, and social condition ; or to 
 make improvement in their art ; or tor other proper purposes. Or the 
 association might be designed for purposes of oppression and injustice. 
 But in order to charge all those, who become members of an association, 
 with the guilt of a criminal conspiracy, it must be averred and proved 
 that the actual, if not the avowed object of the association, was crim- 
 inal. An association may be formed, the declared objects of which are 
 innocent and laudable, and yet they may have secret articles, or an 
 agreement communicated onl}- to the members, by wliich the}- are 
 banded together for purposes injurious to the peace of society or the 
 rights of its members. Such would undoubtedly be a criminal conspir- 
 acy, on proof of the fact, how^ever meritorious and praiseworthy the 
 declared ol)jects might be. The law is not to be hoodwinked by color- 
 able pretences. It looks at truth and reality, through whatever disguise 
 it may assume. But to make such an association, ostensibh* innocent, 
 the subject of prosecution as a criminal conspiracy, the secret agree- 
 ment which makes it so is to be averred and proved as the gist of the 
 offence. But when an association is formed for purposes actually inno- 
 cent, and afterwards its powers are abused, by those who have the con- 
 trol and management of it, to purposes of oppression and injustice, it 
 will be criminal in those who thus misuse it, or give consent thereto, 
 but not in the other members of the association. In this case, no such
 
 872 COMMONWEALTH V. HUNT. [CHAP. XIV. 
 
 secret agreement, varj'ing the objects of the association from those 
 avowed, is set forth in this count of the indictment. 
 
 Nor can we perceive that the objects of this association, whatever 
 the}' ma}' have been, were to be attained b}' criminal means. The 
 means which tliey proposed to emplo}', as averred in this count, and 
 which, as we are now to presume, were establislied by the proof, were, 
 that the}' would not work for a person, wlio, after due notice, should 
 employ a journeyman not a member of their society. Supposing the 
 object of the association to be laudable and lawful, or at least not 
 unlawful, are these means criminal? The case supposes that these 
 persons are not bound by contract, but free to work for whom they 
 please, or not to work, if they so prefer. In this state of things, we 
 cannot perceive, that it is criminal for men to agree together to exer- 
 cise their own acknowledged rights, in such a manner as best to sub- 
 serve their own interests. One way to test this is, to consider the 
 effect of such an agreement, where the object of the association is 
 acknowledged on all hands to be a laudable one. Suppose a class of 
 workmen, impressed with the manifold evils of intemperance, should 
 agree with each other not to work in a shop in which ardent spirit was 
 furnished, or not to work in a shop with any one who used it, or not to 
 work for an employer, who should, after notice, employ a journeyman 
 who habitually used it. The consequences might be the same. A 
 workman, who should still persist in the use of ardent spirit, would find 
 it more difficult to get employment ; a master employing such an one 
 might, at times, experience inconvenience in his work, in losing the 
 services of a skilful but intemperate workman. Still, it seems to us, 
 that as the object would be lawful, and the means not unlawful, such 
 an agreement could not be pronounced a criminal conspiracy. 
 
 From this count in the indictment, we do not understand that the 
 agreement was, that the defendants would refuse to work for an em- 
 ployer, to whom they were bound by contract for a certain time, in 
 violation of that contract ; nor that they would insist that an employer 
 should discharge a workman engaged by contract for a certain time, in 
 violation of such contract. It is perfectly consistent with everything 
 stated in this count, that the effect of the agreement was, that when 
 they were free to act, they would not engage with an emplo}er or con- 
 tinue in his employment, if such employer when free to act should 
 enchase with a workman, or continue a workman in his emplovment not 
 a member of the association. If a large number of men engaged for a 
 certain time should combine together to violate their contract and quit 
 their employment together it would present a very different question. 
 Suppose a farmer employing a large number of men, engaged for the 
 year at fa'r monthly wages, and suppose that just at the moment that his 
 crops were ready to harvest, they should all combine to quit his service 
 unless he would advance their wages at a time when other laborers 
 could not be obtained. It would surely be a conspiracy to do an 
 unlawful act, though of such a character that if done by an individuai
 
 SECT. III.] COMMONWEALTH V. HUNT. 873 
 
 it would lay the foundation of a civil action only and not of a criminal 
 prosecution. It would be a case very different from that stated in thia 
 count. 
 
 The second count, omitting the recital of unlawful intent and evil 
 disposition, and omitting the direct averment of an unlawful club ot 
 society, alleges that the defendants with others unknown did assemble, 
 conspire, confederate, and agree together, not to work for any master 
 or person who should employ any workman not being a member of a 
 certain club, society, or combination, called the Boston Journeymen 
 Bootmakers' Society, or who should break any of their by-laws, unless 
 such workmen should pay to said club, such sum as should be agreed 
 upon as a penalty for the breach of such unlawful rules, etc. ; and that 
 by means of said conspiracy the}' did compel one Isaac B. Wait, a mas- 
 ter cordwainer, to turn out of his employ one Jeremiah Ilorne, a jour- 
 neyman boot-maker, etc. in evil example, &c. So far as the averment 
 of a conspiracy is concerned all the remarks made in reference to the 
 first count are equally applicable to this. It is simply an averment 
 of an agreement amongst themselves not to work for a i)erson who 
 should employ an}' person not a member of a certain association. It 
 sets forth no illegal or criminal purpose to be accomplished, nor any 
 illegal or criminal means to be adopted for the accomplishment of any 
 purpose. It was an agreement as to the manner in which they would 
 exercise an acknowledged ]-ight to contract with others for their labor. 
 It does not aver a conspiracy or even an intention to raise their wages ; 
 and it appears by tlie bill of exceptions that the case was not put upon 
 the footing of a conspiracy to raise their wages. Such an agreement 
 as set forth in this count would be perfectly justifiable under the recent 
 English statute by which this subject is regulated. St. 6 Geo. IV. 
 c. 129. See Roscoe Crim. Ev. (2d Amer. ed.) 368, 369. 
 
 As to the latter part of this count which avers that by means of said 
 conspiracy the defendants did compel one Wait to turn out of his 
 employ one Jeremiah Home, we remark, in the first place, that as the 
 acts done in pursuance of a conspiracy, as we have before seen, are 
 stated by way of aggravation, and not as a substantive charge ; if no 
 criminal or unlawful conspiracy is stated, it cannot be aided and made 
 good by mere matter of aggravation. If the principal charge falls the 
 aggravation falls with it. State v. Rickey, 4 Halst. 293. 
 
 But further, if this is to be considered as a substantive charge it 
 would depend altogether upon the force of the word " compel," which 
 may be used in the sense of coercion, or duress, by force or fraud. It 
 would therefore depend upon the context and the connection with other 
 words, to determine the sense in which it was used in the indictment. 
 If, for instance, the indictment had averred a conspiracy by the defend- 
 ants to compel Wait to turn Home out of his employment, and to 
 accomplish that object by the use of force or fraud, it would have been 
 a very different case ; especially if it might be fairly construed, as per- 
 haps in that case it might have been, that Wait was under obligation
 
 874 COMMONWEALTH V. HUNT. [CHAP. XIV. 
 
 b}' contract for an unexpired term of time to employ and pay Home. 
 As before remarked, it would have been a conspirac}' to do an unlaw- 
 ful, though not a criminal act, to induce "Wait to violate his engage- 
 ment to the actual injury of llorne. To mark the difference between 
 the case of a journeyman or a servant and master mutually bound b}' 
 contract, and the same parties when free to engage anew, I should have 
 before cited the case of the Boston Glass Co. v. Binne}-, 4 Pick. 425. 
 In that case it was held actionable to entice another person's hired ser- 
 vant to quit his euiployaient during the time for which he was engaged ; 
 but not actionable to treat with such hired servant, whilst actually hired 
 and employed by another, to leave his service and engage in the emplo\ - 
 ment of the person making the proposal, when the term for which he is 
 engaged shall expire. It acknowledges the established principle that 
 every free man, whether skilled laborer, mechanic, farmer, or domestic 
 servant, may work or not work, or work or refuse to work with any 
 company or individual, at his own option, except so far as he is bound 
 by contract. But whatever might be the force of the word " compel." 
 unexplained by its connection, it is disarmed and rendered harmless by 
 the precise statement of the means by which such compulsion was to 
 be effected. It was the agreement not to work for him by which they 
 compelled Wait to decline employing Home longer. On both of these 
 grounds we are of opinion that the statement made in this second count 
 that the unlawful agreement was carried into execution makes no 
 essential difference between this and the first count. 
 
 The third count, reciting a wicked and unlawful intent to impoverish 
 one Jeremiah Home and hinder him from following his trade as a boot- 
 maker, charges the defendants, with others unknown, with an unlawful 
 conspiracy, by wrongful and indirect means, to impoverish said Home, 
 and to deprive and hinder him from his said art and trade and getting 
 his support thereby, and that in pursuance of said unlawful combina- 
 tion, the}' did unlawfullj- and indirectl}- hinder and prevent, &c. and 
 greatl}- impoverish him. 
 
 If the fact of depriving Jeremiah Home of the profits of his business 
 by whatever means it might be done would be unlawful and criminal, a 
 combination to compass that object would be an unlawful conspirac}', 
 and it would be unnecessarv to state the means. Such seems to have 
 been the view of the court in The King v. Eceles, 3 Doug. 337, thougli 
 the case is so briefly reported that the reasons on which it rests are not 
 ver}' obvious. The case seems to have gone on the ground that the 
 means were matter of evidence and not of averment, and that after 
 verdict it was to be presumed that the means contemplated and used 
 were such as to render the combination unlawful and constitute a 
 conspiracy. 
 
 Suppose a baker in a small village had the exclusive custom of his 
 neighborhood, and was making large profits by the sale of his bread. 
 Supposing a number of those neighbors, believing the price of his bread 
 too high, should propose to him to reduce his prices, or if he did not
 
 SECT. III.] COMMONWEALTH V. HUNT. ^75 
 
 that they would introduce another baker, and on his refusal such other 
 baker should under their encouragement set up a rival cstablisliiuent, 
 and sell his bread at lower prices, tlie effect woidd be to diininisli the 
 profit of the former baker and to the same extent to impoverish liim. 
 And it might be said and proved that the purpose of tlie associates was 
 to diminish his profits and thus impoverish him, though the ultimate 
 and laudable object of the combination was to reduce tlie cost of bread 
 to themselves and their neiglibors. The same thing ma}- be said of all 
 competition in every branch of trade and industry, and yet it is through 
 that competition that the best interests of trade and industry are pro- 
 moted. It is scarcely necessary' to allude to the familiar instances of 
 opposition lines of conveyance, rival hotels, and the thousand other 
 instances where each strives to gain custom to himself by ingenious 
 improvements, by increased industry, and by all the means by which 
 lie may lessen the price of commodities, and thereby diminish the 
 profits of others. 
 
 We think, therefore, that associations may be entered into, the 
 object of which is to adopt measures that ma}' have a tendency to 
 impoverish another, that is, to diminish his gains and profits, and yet 
 so far from being criminal or unlawful, the object may be highly meri- 
 torious and public spirited. The legality of such an association will 
 therefore depend upon the means to be used for its accomplislmient. 
 If it is to be carried into effect by fair or honorable and lawful means, 
 it is, to say the least, innocent ; if by falsehood or force, it may be 
 stamped with the character of conspiracy. It follows as a necessary 
 consequence that if criminal and indictable it is so by reason of the 
 criminal means intended to be employed for its accomplishment ; and 
 as a further legal consequence, that as the criminality will depend on 
 the means those means must be stated in the indictment. If the same 
 rule were to prevail in criminal which holds in civil proceedings, that 
 a case defectively stated mav be aided by a verdict, then a court miwht 
 presume after verdict that the indictment was supported by proof of 
 criminal or unlawful means to effect the object. But it is an estab- 
 lished rule in criminal cases that the indictment must state a complete 
 indictable offence, and cannot be aided b}' the proof offered at the trial. 
 
 The fourth count avers a conspiracy to impoverish Jeremiah Home 
 without stating any means ; and the fifth alleges a conspiracy to impov- 
 erish employers b}' preventing and hindering them from employing 
 persons not members of the Bootmakers' Society, and these require no 
 remarks which have not been alread}^ made in reference to the other 
 counts. 
 
 One case was cited which was supposed to be much in point, and 
 which is certainly deserving of great respect. The People v. Fisher, 
 14 Wend. 1. But it is obvious that this decision was founded on the 
 construction of the revised statutes of New York by which this, matter 
 of conspiracy is now regulated. It was a conspirac}' b}' journeymen to 
 raise their wages, and it was decided to be a violation of the statutes
 
 876 COMMONWEALTH V. HUNT. [CHAP. XIV. 
 
 making it criminal to commit any act injurious to trade or commerce. 
 It has, therefore, an indirect application only to the present case. 
 
 A caution on this subject suggested by the commissioners for revis- 
 ing the statutes of New York is entitled to great consideration. They 
 are alluding to the question whether the law of conspiracy should be 
 so extended as to embrace every case where two or more unite in some 
 fraudulent measure to injure an individual by means not in themselves 
 criminal. "The great difficulty," say they, "in enlarging the defini- 
 tion of this offence consists in the inevitable result of depriving the 
 courts of equity of the most effectual means of detecting fraud bv com- 
 pelling a discovery on oath. It is a sound principle of our institutions 
 that no man shall be compelled to accuse himself of any crime, which 
 ouoht not to be violated in anv case. Yet such must be the result or 
 the ordinary jurisdiction of courts of equity must be destroyed by 
 declaring an}' private fraud when committed by two, or any concert to 
 commit it criminal." 9 Cow. 625. In New Jersey in a case which was- 
 much considered, it was held that an indictment will not lie for a con- 
 spiracy to commit a civil injury. State ?;. Rickey, 4 Halst. 293. And 
 such seemed to be the opinion of Lord EUenborough in The King v. 
 Turner, 13 East, 231, in which he considered that the case of The 
 King V. Eccles, 3 Doug. 337, though in form an indictment for a conspir- 
 acy to prevent an individual from carrying on his trade, yet in sub- 
 stance was an indictment for a conspiracy in restraint of trade affecting 
 the public. 
 
 It appears by the bill of exceptions that it was contended on the part 
 of the defendants that this indictraant did not set forth any agreement 
 to do a criminal act, or to do any lawful act by criminal means, and that 
 the agreement therein set forth did not constitute a conspiracy indict- 
 able by the law of this state, and that the court was requested so to 
 instruct the jury. This the court declined doing, but instructed the 
 jury that the indictment did describe a confederacy among the defend- 
 ants to do an unlawful act, and to effect the same by unlawful means ; 
 that the society, organized and associated for the purposes described 
 in the indictment, was an unlawful conspiracy against the laws of this 
 state, and that if the jury believed from the evidence that the defend- 
 ants or any of them had engaged in such confederacy they were bound 
 to find such of them guilty. 
 
 In this opinion of the learned judge this court for the reasons stated 
 cannot concur. Whatever illegal purpose can be found in the constitu- 
 tion of the Bootmakers' Society, it not being clearly set forth in the 
 indictment, cannot be relied u[)on to support this conviction. So if any 
 facts were disclosed at the trial, which if properly averred would have 
 given a different character to the indictment, they do not appear iu the 
 bill of exceptions, nor could they after verdict aid the indictment. But 
 looking solely at the indictmen*, disregarding the qualifying epithets, 
 recitals, and immaterial allegations, and confining ourselves to facts so 
 averred as to be capable of being traversed and put in issue, we cannot
 
 SECT. III.] STATE V. DONALDSON. 877 
 
 perceive that it charges a criminal conspirac}' punishable by law. The 
 exceptions must, therefore, be sustained, and the judgment arrested. 
 
 Several other exceptions were taken and have been argued ; but this 
 decision on the main question has rendered it unnecessary to consider 
 them. 
 
 STATE V. DONALDSON. 
 Supreme Court of New Jersey. 1867. 
 
 [Reported 32 N. J. Law, 151.] 
 
 This was a motion to quash an indictment charging a conspiracy, 
 which had been brought into this court b}' certiorari. 
 
 Tlie substantial facts constituting the alleged crime were these, viz., 
 that the defendants, and divers other evil disposed persons, etc., being 
 journeymen woikmen employed by Richmond Ward, John C. Little, 
 and others, who then and there were engaged together in the manu- 
 facture of patent leather, and as curriers, maliciously, to control, in- 
 jure, terrify, and impoverish their said emploj'ers, and force and compel 
 them to dismiss from their said employment certain persons, to wit, 
 Charles Beggan and William Pendergrast, then and there retained by 
 their said employers as journeymen and workmen for them, and to 
 injure said Charles and William, and without having any lawful cause 
 of objection to said Charles and William, unlawfully did conspire, com- 
 bine, confederate, and agree together to quit, leave, and turn out from 
 their said emplo3'ment, until and unless the said last-mentioned jour- 
 neymen and workmen should be dismissed by their said employers. 
 The indictment then further charged, that in pursuance of such con- 
 spiracy, they gave notice of their agreement to their said emplo3'ers, 
 and required them to discharge the said Charles and William, which 
 being refused, they quitted their said employment, and remained away 
 until their demand was complied with. 
 
 The motion was argued before the Chief Justice, and Justices 
 Bedle and Dalkimple. 
 
 For the motion > T. JV. Mc Carter. 
 
 For the state, C. Parker. 
 
 The opinion of the court was delivered by 
 
 Beasley, C. J. There is, perhaps, no crime, an exact definition of 
 which it is more difficult to give than the offence of conspiracy. That 
 a combination of persons to effect an end, itself of an indictable nature, 
 will constitute this crime, is clear ; nor is there an}- more doubt that, 
 though the purpose the confederacy is designed to accomplish be not 
 criminal, yet if the means adopted be of an indictable character, this 
 offence is likewise committed. Thus far the limits are clearl}' defined, 
 and embrace, without exception, all cases which fall within them. But
 
 878 STATE V. DONALDSON. [CHAP. XIV. 
 
 when we proceed one step beyond the Hnes thus marked out, the cases 
 which have been adjudged to be conspiracies appear to stand apart by 
 themselves, and are devoid of tliat analogy to each other which would 
 render them susceptible of cUxssification. It is certain, however, tliat 
 there are a number of cases, in which neither the purpose intended to 
 be accomplished nor the means designed to be used were criminal, 
 which have been regarded to be indictable conspiracies. And yet it is 
 obvious that, in the nature of things, it cannot be ever}- colhision 
 between two or more persons to do an unlawful act, or an indifferenr 
 act b}' unlawful means, which will constitute an offence of a public 
 nature ; for if this were so, a large portion of the transactions which. 
 in the ordinary course of litigation between party and party, comes 
 before the courts, would assume a criminal aspect, in which the state 
 would have an interest. Indeed. 1 think it maj' be said that there ai'c, 
 comparativeh', but few cases of combinations in whijh indictabilit,y 
 does not attach, either to the end in view, or to the instrumentalities 
 devised, which are punishable bv a public prosecution. It is true, that 
 running to an extreme, in the case of The State i\ Ricke}-, 4 Halst. 
 293, Mr. Justice Ford insisted that, up to his day, there was but a 
 single case extant — that of Rex v. Cope et al., 1 Strange, 144, which 
 hekl that an indictment for a conspiracy would lie for a combination of 
 two or more to commit a private injury which was not a public wrong : 
 and he further insisted that the case referred to was erroneously 
 decided : but Mr. Justice Ryerson did not, as is evident from the 
 grounds upon which he rests his judgment, concur in that view ; and 
 the course of reasoning adopted by Mr. Justice Ford is now very gene- 
 rally admitted to be fallacious. In the case of The State v. Norton, 
 3 Zab. 44, the view of the law expressed by Mr. Justice Ford is disap- 
 proved of, and Chief Justice Green, in stating his conclusion, afcer an 
 examination of the subject, remarks, "The great weight of authority, 
 the adjudged cases, no less than the most approved elementar,- writers, 
 sustain the position, that a conspiracy to defraud individuals or a cor- 
 poration of their property, may, in itself, constitute avi indictable 
 offence, though the act done, or proposed to be done in pursuance of 
 the conspiracy, be not, in itself, indictable." 
 
 The rule of law thus enunciated appears to me to be the correct one. 
 There are a number of cases which cannot be sustained upon any other 
 doctrine. To this class belongs the decision that it was a conspiracy 
 to induce a young female, by false representations, to leave the protec- 
 tion of the house of her parent, in order to facilitate her prostitution. 
 Rex V. Lord Grey, 3 Hargrave's State Trials, 519 ; Rex v. Sir 
 Francis Deleval and others, 3 Burr. 1434. So a conspiracy to im- 
 poverish a tailor, and prevent him, by indirect means, from carrying on 
 his trade, The King v. Eccles, 3 Dougl. 337. So a conspiracy to 
 marry paupers, with a view to charge one parish and exonerate another, 
 Rex V. Tarrent, 4 Burr. 21 00 ; or to charge a man with being the 
 father of a bastard. Rex v. Armstrong, 1 Vent. 304 ; Rex v. Kimberty,
 
 SECT. III.] STATE V. DONALDSON. 879 
 
 1 Lev. 62 ; Rex v. Timberly, Sid. 68 ; or a combination to impoverish 
 a class of persons, Rex. c. Sterling, 1 Lev. 125 ; s. c. Sid. 174. 
 These are all cases, it will he noticed, in which the act which formed 
 the foundation of the indicLiuent would not, in law, have constituted a 
 crime, if such act had been done by an individual, the combination 
 being alone the qualit}' of the transactions which made them respec- 
 tively indictable. 
 
 I conclude, then, tliat there is no uncertainty in this legal topic to 
 this extent, in addition to the principles before adverted to, that cases 
 may occur in which the purpose designed to be accomplished becomes 
 punitive, as a public offence, solel\- from the fact of the existence of a 
 confederacy to effect such purpose. It is certainly- not to be denied, 
 however, that great practical difficulty is experienced whenever any 
 attempt is made to lay down any general rules by which to dis(;riminate 
 that class of combinations which becomes thus punishable, from those 
 which are to be regarded in their results as mere civil injuries, remedi- 
 able b}' private suit. It may be safely said, nevertheless, that a com- 
 bination will be an indictable conspiracy, whenever the end proposed, 
 or the means to be employed are of an highly criminal character ; or 
 where they are such as indicate great malice in the confederates ; or 
 where deceit is to be used, the object in view being unlawful ; or where 
 the confederacy, having no lawful aim, tends simply to the oppression 
 of individuals. A careful analysis of the cases which have been hereto- 
 fore adjudged, will reveal the presence of one or more of the qualities 
 here enumerated ; to this extent, therefore, they ma}' be relied on as 
 safe criteria whereby to test new emergencies as they may be presented 
 for adjudication. 
 
 In view, then, of these general deductions, and guided by the deci- 
 sions above cited, let us turn our attention to the particular indictment 
 now before us. 
 
 The substantial cffence charged is, that the defendants combined to 
 compel their employer to discharge certain of their fellow-workmen, the 
 means adopted to enforce this concession being an announced determi- 
 nation to quit their employment in a body and by a simultaneous act. 
 On the argument before this court, counsel in behalf of the state 
 endeavored to sustain the indictability of this charge, on the plea that 
 the thing thus agreed to be done was an injury to trade, and conse- 
 quently came within the express language of the statute on the subject 
 of conspiracy. Nix. Dig. 187, § 01. But I cannot concur in this 
 view. An act, to fall within this provision, must be one which, with 
 directness, inflicts an injur}- on trade, as, for example, a combination 
 to depress any branch of trade by false nnnors. But, in the case 
 before us, the act charged, if it could be said to injure trade at all, did 
 so not proximately, but remotely. It is true that, at a far remove, an 
 injury to an individual manufacturer may affect trade injuriously ; but, 
 in the same sense, so it is true, will an injury inflicted on a consumer 
 <;f manufactured articles. But it is not this undesigned and incidental
 
 880 STATE V. DONALDSON. [CHAP. XIV. 
 
 damage which is embraced within the statutory denunciation. On this 
 account, I think the indictment does not present an affair which can be 
 comprehended by the clause of the act which, in this respect, was relied 
 on. But as it has already been decided b}- this court that the statute 
 in question has not superseded the common law, with regard to the 
 crime of conspiracy, The State v. Norton, 3 Zab. 40, the question still 
 remains to be resolved, whether the facts charged on this record do not 
 constitute such crime upon general principles. 
 
 It appears to me that it is not to be denied, that the alleged aim of 
 this combination was unlawful ; the effort was to dictate to this em- 
 plo^'er whom he should discharge from his employ. This was an 
 unwarrantable interference with the conduct of his business, and it 
 seems impossible that such acts should not be, in their usual effects, 
 higiily injurious. How far is this mode of dictation to be held lawful? 
 If the manufacturer can be compelled in tins way to discharge two or 
 more hands, he can, by similar means, be coerced to retain such work- 
 men as the conspirators ma}' choose to designate. So his customers 
 may be proscribed, and his business in other respects controlled. I 
 cannot regard such a course of conduct as lawful. It is no answer to 
 the above considerations to sa}-, that the employer is not compelled to 
 submit to the demand of his employees ; that the penalty of refusal is 
 simply that they will leave his service. There is this coercion : the 
 men agree to leave simultaneously, in large numbers and by precon- 
 certed action. We cannot close our eyes to the fact, that the threat of 
 workmen to quit the manufacturer, under these circumstances, is equi- 
 valent to a threat, tliat unless he yield to their unjustifiable demand, 
 they will derange his business, and thus cast a heavy loss upon him. 
 The workmen who make this threat understand it in this sense, and so 
 does their employer. In such a condition of affairs, it is idle to suggest 
 that the manufacturer is free to reject the terms which the confederates 
 offer. In the natuial position of things, each man acting as an indi- 
 vidual, there would l)e no coercion : if a single employee should demand 
 the discharge of a co-employee, the employer would retain his freedom, 
 for he could entertain or repel the requisition without embarrassment 
 to his concerns ; but in the presence of a coalition of his employees, it 
 would be but a waste of time to pause to prove that, in most cases, he 
 must submit, under pain of often the most ruinous losses, to the condi- 
 tions imposed on his necessities. It is difficult to believe that a right 
 exists in law, which we can scarcely conceive can produce, in any pos- 
 ture of affairs, other than injurious results. It is simply the right of 
 workmen, by concert of action, and by taking advantage of their posi- 
 tion, to control the business of another. I am unwilling to hold that a 
 right which cannot in any event be advantageous to the employee, and 
 which must be always hurtful t6 the employer, exists in law. In my 
 opinion, this indictment sufficiently shows that the force of the con- 
 federates was brought to bear upon their employer for the purpose of 
 oppression and mischief, and that this amounts to a conspiracy.
 
 SECT. III.] STATE V. DONALDSON. 881 
 
 I also think this result is sustained by till the judicial opinion which 
 has heretofore been expressed on this point. In substance, the indict- 
 ment in this case is similar to that in Rex v. Ferguson and Edge, 2 
 Stark. 489. Nor were the circumstances unlike ; for in the reported 
 case, the defendants were charged at common law with combining to 
 quit and turn out from their employment, in order to prevent tlieir 
 employer from taking apprentices ; and although the case, after trial 
 and conviction, was mooted in the King's Bench on i)oints of evidence, 
 no doubt was suggested as to the indictable nature of the offence, and 
 the defendants were accordingly fined and imprisoned. So in Rex v. 
 Rickerdyke, 1 M. & Rob. 179, the same doctrine was maintained. The 
 indictment charged, that the defendant, with others, conspired to pre- 
 vent certain hands from working in the colliery ; and the evidence 
 showed that the body of the men met and agreed upon a letter addressed 
 to their employer, to the effect that all the workmen would strike in 
 fourteen days unless the obnoxious men were discharged from the col- 
 Uery ; and Patterson, Justice, held that these workmen had no right to 
 meet and combine for the purpose of dictating to the master whom he 
 should employ, and that this compulsion was clearly illegal. These two 
 cases, it will be observed, sustain with entire aptness the opinion above 
 expressed, and I have not found any of an opposite tendency. As to 
 the case of The Commonwealth v. Hunt, 4 Met. Ill, it is clearly dis- 
 tinguishable, and I concur entirely, as well with the principles embodied 
 in the opinion which was read in the case, as in the result which was 
 attained. The foundation of the indictment in that case was the forma- 
 tion of a club by journeymen boot-makers, one of the regulations of 
 which was, that no person belonging to it should work for any master 
 workmen who should employ any journeyman or other workman who 
 should not be a member of such club. Such a combination does not 
 appear to possess any feature of illegalit}', for the law will not intend, 
 without proof, that it was formed for the accomplishment of any illegal 
 end. " Such an association," says Chief Justice Shav% in his opinion, 
 " might be used to afford each other assistance in times of poverty, 
 sickness, and distress ; or to raise their intellectual, moral, or social 
 condition ; or to make improvements in their art ; or for other pur- 
 poses." The force of this association was not concentrated with a view 
 to be exerted to oppress any individual, and it was consequently 
 entirely unlike the case of men who take advantage of their position, 
 to use the power, by a concert of action, which such position gives 
 them, to compel their emi)loyer to a certain line of conduct. The 
 object of the club was to establish a general rule for the regulation of 
 its members ; but the object of the combination, in the case now before 
 this court, was to occasion a particular result which was mischievous, 
 and by means which were oppressive. The two cases are not parallel, 
 and must be governed by entirely different considerations. 
 
 The motion to quash should not prevail-^ 
 
 1 See State v. Glidden, 55 Conn. 46. -Ed.
 
 882 CKUMP V. COMMONWEALTH. [CHAP. XIV. 
 
 CRUMP V. COMMONWEALTH. 
 
 Supreme Court of Appeals of Virginia. 1888. 
 
 [Reported 84 V^a. 927.] 
 
 Fauntleroy, J.^ The next error assigned is the action of the court 
 in giving the instruction asked for by the Commonwealth, as follows : 
 " If the jur}' believe, from the evidence, that the defendant Crump 
 entered into an agreement with one or more of the defendants, whereby 
 they undertook to coerce the firm of Baughman Brothers to discharge 
 from their employment, against the will of the said firm, certain per- 
 sons then in their employment, and to take into their employment cer- 
 tain other persons that the said Baughman Brothers did not wish to 
 take into their employment, then they are instructed that said agree- 
 ment was unlawful ; and if they believe further, from the evidence, 
 that in pursuance and to carry out said agreement, he, the defendant, 
 threatened any of the customers of the said Baughman Brothers, they 
 (the said persons making said agreement) would injure the business of 
 such customers, by intimidating their customers and making them afraid 
 to continue their patronage of the customers of the said Baughman 
 Brothers, then they must find the defendant guilty." The instruction 
 plainly and correctly expounds the law against unlawful combination 
 and guilty conspiracy to interfere with, molest, break up, and ruin the 
 legitimate, licensed business of peaceable, useful, industrious, and 
 honest citizens, and to accomplish this end by the threat and intimida- 
 tion of doing " all in the power" of the conspirators to '' break up 
 and destroy the business " of all the existing or future customers of 
 Baughman Brothers, who should thereafter buy "anything from the 
 said firm of Baughman Brothers, or employ them, the said Baughman 
 Brothers, in their said business as printers." And the instruction, so 
 far from being a mere declaration of abstract law, is a direct and 
 proper application of the law to the case put in the indictment and 
 made by the evidence. It is next to impracticable to extend this opinion 
 l)v reciting the evidence in detail, further than we shall do when we 
 come to consider the error assigned upon the admissibility and suflS- 
 ciency of the evidence in the record to justify the verdict. 
 
 The instructions which were asked for by the defendant and refused 
 by the court were properly refused, as they did not correctly expound 
 the law, and were unwarranted by the evidence. And, more than the 
 defect of having no predication in the evidence, they utterly and adroitly 
 ignore the facts proved of the evil intent of the defendant and his con- 
 federates to do a wanton, causeless injury and ruin, to compel and 
 coerce Baughman Brothers to give up the control and conduct of theit 
 
 1 Part only of the opinion is given.
 
 SECT. Ill,] CRUMP V. COMMONWEALTH. SHli 
 
 own loug-establislied, useful, ami independeDt business to the absolute 
 dictation and control of a combination of the defendant and others 
 styling themselves " Richmond Typographical Union, No. 90;" and to 
 do this bj' the obtrusion, terrorism, excommunication, and obloquy of 
 the '^boycott" against Baughnuui Brothers and all their customers in 
 Richmond, Lynchburg, and througliout Virginia and North Carolina, 
 ad inji/titinn, till they force the conquest and submission of all resist- 
 ance to their demands anil self-constituted management. — a reiijn of 
 terror, which, if not checlved and punished in the beginning by the law, 
 will speedily and inevitabh' run into violence, anarch}, and molj tyranny. 
 We come now to the main question involved in this appeal, wliether 
 the evidence set forth in tliis record presents a conspiracy at connnon 
 law. The determination of tliis question is, indeed. t!»e ol)jt'ct sought, 
 as we not only infer from the paltry fine of five doUars imposed by 
 the verdict, but b\- the intimation in argument bv tlie able and accom- 
 plished counsel for the defendant. 
 
 Is •• boycotting," as resorted to and practised by the conspirators in 
 this case, allowable under the laws of Virginia? 
 
 For a legal definition or explanation of tlie meaning and practical 
 effect of the cabalistic word, as well as for a pertinent exposition of 
 the law applicable to the facts of this case, we refer to the admiral)le 
 opinion of Jadge Wellford of the Circuit Court of the city of Rich- 
 mond, in the case of Baughman Brothers v. Askew, Va. L J., Apiil, 
 No. 196, and also to the decision of the Supreme Court of Connecticut 
 in the case of State v. Glidden, 55 Conn. 76. In that case the court 
 says: ''We may gather some idea of its [boycotting] real mean- 
 ing, however, by a reference to the circumstances in which the 
 word originated. Those circumstances are thus narrated by Mr. 
 Justin McCartliy, an Irish gentleman of learning and ability, who 
 will be recognized as good authority : ' Captain Boycott was an English- 
 man, an agent of Lord Erne, and a farmer of Lough Mask, in the 
 wild and beautiful district of Connemara. In his capacit}' as agent he 
 had served notice upon Lord Erne's tenants, and the tenantry sud- 
 denly retaliated, etc. His life appeared to be in danger ; he had tc 
 claim police protection. ... To prevent civil war, the authorities had 
 to send a force of soldiers and police to Lough Mask, and Captain 
 Boycott's harvest was brought in and his potatoes dug by the armed 
 Ulster laborers, guarded always by the little army.' " The court pro- 
 ceeded to say : " If this is a correct picture, the thing we call a boycott 
 originall}' signified violence, if not murder. . . . But even here, if it 
 means, as some high in the confidence of the trades union assert, absO' 
 lute ruin to the business of the person bo3'cotted, unless he yields, 
 then it is criminal." The essential idea of boj'cotting, whether in Ire- 
 land or the United States, is a confederation, generally secret, of many 
 persons whose intent is to injure another b}- preventing any and all per- 
 sons from doing business with him, through fear of incurring the dis- 
 pleasure, persecution, and vengeance of the consuirators.
 
 884 CRUMP V. COMMONWEALTH. [CHAP. XIV. 
 
 In the case of State v. Donaldson, 32 N. J. L. 151, Chief Justice 
 Beasley, in delivering the opinion of the court, said : " It appears 
 to me that it is not to be denied that the alleged aim of this com- 
 bination was unlawful ; the effort was to dictate to this employer 
 whom he should discharge from his employ. This was an unwar- 
 rantable interference with the conduct of his business, etc. If the 
 manufacturer can be compelled in this way to discharge two or more 
 hands, he can, by similar means, be coerced to retain such workmen as 
 the conspirators may choose to designate. So his customers may be 
 proscribed, and his business, in other respects, controlled. I cannot 
 regard such a course of conduct as lawful." 
 
 Chief Justice Shaw, in the case of Commonwealth r. Hunt, 4 Met. 
 Ill, said: "The law is not to be hoodwinked by colorable pre- 
 tences ; it looks at truth and reality through whatever disguises it 
 may assume, h is said that neither threats nor intimidations were 
 used ; but no man can fail to see that there may be threats, and there 
 may be intimidations, and there may be molesting, and there may 
 be obstructing (which the jury are quite satisfied have taken place, 
 f>-om all the evidence in the case), without there being any express 
 words used by which a man should show any violent threats towards 
 another, or any express intimidation. . . . An intention to create alarm 
 m the mind of a manufactui'er, and so to force his assent to an altera- 
 tion in the mode of carrying on his business, is a violation of law : " 
 Regina v. Rowlands, 5 Cox, C. C. 436, 462, 463 ; Doolittle v. Schan- 
 bacher, 20 Cent. L. J. 229. 
 
 Upon the trial of boycotters in New York, Judge Barrett said: 
 " The men who walk up and down in front of a man's shop may be 
 guilty of intimidation, though they never raise a finger or utter a word. 
 Their attitude may, nevertheless, be that of menace. They may intim- 
 idate by their numbers, their pleadings, their methods, their circulars, 
 and their devices." 
 
 It matters little what are the means adopted by combinations formed 
 to intimidate employers, or to coerce other journeymen, if the design 
 or the effect of them is to interfere with the rights or to control the 
 free action of others. No one has a right to be hedged in and pro- 
 tected from competition in business ; but he has a right to be free from 
 wanton, malicious, and insolent interference, disturbance, or annoy- 
 ance. Every man has the right to work for whom he pleases, and for 
 any price he can obtain ; and he has the right to deal with and asso- 
 ciate with whom he chooses ; or to let severely alone, arbitrarily and 
 contemptuously, if he will, anybody and everybody upon earth. But 
 this freedom of uncontrolled and unchallenged self-will does not give 
 or imply a right, either by himself or in combination with others, to 
 disturb, injure, or obstruct another, either directly or indirectly, in his 
 lawful business or occupation, or in his peace and security of life. 
 Every attempt l)y force, threat, or intimidation to deter or control an 
 employer in the determination of whom he will employ, or what wages
 
 SECT. III.] CRUMP V. COMMONWEALTH. 885 
 
 he will pay, is an act of wrong and oppression ; and any and every 
 combination for such a purpose is an unlawful conspiracy. The law 
 will protect the victim, and punish the movers of any such combina- 
 tion. In law, the offence is the combination for the purpose, and no 
 overt act is necessary to constitute it : State v. Wilson, 30 Conn. 507 ; 
 State V. Donaldson, supra ; Walker v. Cronin, 107 Mass. 5Gi ; Carew 
 V. Rutherford, 106 Mass. 10, 15 ; Master Stevedores' Association v. 
 Walsh, 2 Daly, 12; Walsby y. Auley, 3 L. T., n. s.,6G6 ; Regina v. 
 Duffleld, 5 Cox, C. C. 432 ; Parker v. Griswold, 17 Conn. 302; Spring- 
 head Spinning Co. v. Riley, L. R. 6 Eq. 551 , Gilbert v. Mickle, 4 
 Sand. Ch. 357. 
 
 A wanton, unprovoked interference b}' a combination of many with 
 the business of another, for the purpose of constraining that other to 
 discharge faithful and long-tried servants, or to employ whom he does 
 not wish or will to employ (an interference intended to produce, and 
 likely to produce, annoyance and loss to that business) will be restrained 
 and punished by the criminal law as oppressive to the individual, inju- 
 rious to the prosperity of the community, and subversive of the peace 
 and good order of society. 
 
 The recent case of State i\ Glidden, already referred to, decided by 
 the Supreme Court of Connecticut, is both in principle and features 
 identical with the case under review. The Carrington Publishing Com- 
 pany had in their employ a number of printers known as '' non-union 
 men," or "rats." The Typographical Union, the Knights of Labor, 
 the Trades' Council, the Cigar-makers' Union, and other affiliated secret 
 organizations, waited upon the compan}' and demanded that their office 
 be made a "■ union office" within twenty-four hours. Upon the refusal 
 of the company to make their office a "union office," a boycott was 
 instituted against them, which, though not openly published as in this 
 case, was fully proved. The court in its opinion said : "If the defend- 
 ants have the right which they claim, then all business enterprises are 
 alike subject to their dictation. No one is safe in eno-aarino' in busi- 
 ness, for no one knows whether his business affairs are to be directed 
 by intelligence or ignorance, — whether law and justice will protect the 
 business, or brute force, regardless of law, will control it ; for it must 
 be remembered that the exercise of the power, if conceded, will by no 
 means be confined to the matter of employing help. Upon the same 
 principle, and for the same reasons, the right to determine what busi- 
 ness others shall engage in, when and where it shall be carried on, etc., 
 will be demanded, and must be conceded. The principle, if it once 
 obtains a foothold, is aggressive, and is not easil}^ checked. It thrives 
 on what it feeds on, and is insatiate in its demands. More requires 
 more. If a large bodj- of irresponsible men demand and receive power 
 outside of law, over and above law, it is not to be expected that they 
 will be satisfied with a moderate and reasonable use of it. All history 
 proves that abuses and excesses are inevitable. The exercise of irre- 
 sponsible power by men, like the taste of human blood by tigers, creates
 
 886 CRUMP V. COMMONWEALTH. [CHAP. XIV. 
 
 an unappeasable appetite for more. . . . Confidence is tlie corner-stone 
 of all business, — confidence that the government, through its courts, 
 will be able to protect their rights; but if their rights [of business 
 men] are such onlj* as a secret, irresponsible organization is willing to 
 give, where is that confidence which is essential to the prosperity of the 
 countr}'? . . . The end would be anarchy, pure and simple, and the 
 subversion, not only of all business, but also of law and the govern- 
 ment itself. They [defendants] had a right to request the Carrington 
 Publishing Company to discharge its workmen and employ themselves, 
 and to use all proper argument in support of their request, but they 
 had no right to say, ' You shall do this, or we will ruin 30ur business/ 
 Much less had the\' a right to ruin its business. The fact that it is 
 designed as a means to an end, and that end in itself considered is a 
 lawful one, does not divest the transaction of its criminality." 
 
 The defendant la3S great stress upon the case of Commonwealth 
 V. Hunt, 4 Met. Ill, as authority to sustain the legality of boj'cot- 
 ting ; but there is an obvious distinction between that case and that 
 of this defendant. That was a club or combination of journeymen 
 boot-makers simply to better their own condition, and it had no aim 
 or means of aggression upon the business or rights of others ; they 
 simply had regulations for themselves, and did not combine or operate 
 for a result mischievous, meddlesome, and oppressive towards others. 
 But, even in that case, the court, after supposing the case of a com- 
 bination for the ultimate and laudable object of reducing, by mere 
 competition, the price of bread to themselves and their neighbors, said : 
 " The legality of such an association will, therefore, depend upon the 
 means to be used for its accomplishment. If it is to be carried into 
 effect by fair and honorable means, it is, to say the least, innocent ; it 
 by falsehood or force, it ma}' be stamped with the character of con- 
 spirac}'." Force may be operated either physically or mechanically ; oi 
 it may be coercion by fear, threat, or intimation of loss, injury, obloquy 
 or suflTering. 
 
 The evidence in this case shows that while Baughman Brothers wen 
 engaged in their lawful business as stationers and printers, the plaintitt 
 in error and the other members of the Richmond Typographical Union, 
 No. 90, conspired to compel Baughman Brothers to make their office a 
 " union office," and to compel them not to employ any printer who did 
 not belong to the said union ; that upon the refusal of Baughman 
 Brothers to make their office (or business) a " union office," the plain- 
 tiff in error and others composing the said Richmond Typographical 
 Union, No. 90, conspired and determined to boycott the said firm of 
 Baughman Brothers, as they had threatened to do, and sent circulars to a 
 great many of the customers of the said firm informing them that they 
 had, '• with the aid of the Knights of Labor and all the trades organiza- 
 tions in this city [Richmond], boycotted the establishment of Messrs. 
 Baughman Brothers," and formally notifying the said customers that the 
 names of all persons who should persist in trading, patronizing, or dealing
 
 SECT. III.] CRUMP V COMMONWEALTH. 887 
 
 with Baughman Brothers, after being notified of the boycott, would be 
 published weekly in the I.abor Herald as a " black-list," who, in 
 their turn, would be boycotted until the}- agreed to withdraw tlieir 
 patronage from Baughman Brothers ; and, accordingly-, the employees 
 of Baughman Brothers were mercilessly hounded b\- publication 
 after publication, for months, in the Labor Herald (which was the 
 boasted engine of the boycotting conspirators), whereby it was at- 
 tempted to excite public feeling against them, and prevent them from 
 obtaining: even board and shelter ; and the names of the customers and 
 patrons of the said firm were published in the said sheet under the stand- 
 ing head of "• black-list." 
 
 The length of this opinion will preclude the mention of even a titlie 
 of these incendiary publications week after week for months ; but not 
 only Baughman Brothers and their employees and their customers, but 
 the hotels, boarding-houses, public schools, railroads, and steamboats 
 conducting the business travel and transportation of the city were listed 
 and published under the obloquvand denunciation of the " black-list." 
 One or two specimens will suffice : " Boycott Baughman Brothers and 
 all who patronize them." " Watch out for Baughman Brothers' ' rats,' 
 and find out where they board. It is dangerous for honest rneu to 
 board in the same house witii these creatures. They are so mean that 
 the air becomes contaminated in which the}'' breathe." '• Boycott 
 Baughman Brothers every dav in the week." "Boycott Baughman 
 Brothers, because the}' are enemies of honest labor." " Boycott 
 Baughman Brothers' customers wherever you find them." " The Lynch- 
 burg boys will begin to play their hand on Messrs. Baughman's 
 boycotted goods in a short time. The battle will not be fought in 
 Richmond onl}', but in all Virginia and North Carolina will be raised 
 the cr}', ' Away with the goods of this tyrannical firm.' " " Let our 
 friends remember it is the patronage of the Chesapeake and Ohio, 
 Richmond, Fredericksburg, and Potomac, Richmond and Danville, and 
 Richmond and Alleghany railroads that is keeping Baughman Brothers 
 up." " We are sony to see the Exchange Hotel on the black-list. 
 There will be two thousand strangers in this cit}- in October, none of 
 whom will patronize a hotel or boarding-house whose name appears on 
 that list." "The bo3-cott on Baughman Brothei's is working so good 
 that a man cannot bu}' a single bristol-board from the ' rat' firm with- 
 out having his name put upon the black-list." " The old ' rat' e-^tab- 
 Itshment is about to cave in. Let it fall with a crash that will be a 
 warning to all enemies of labor in the future." 
 
 It was proved that the conspirators declared their set purpose and 
 persistent eflTort to "crush" Baughman Brothers; that the minions of 
 the bo3'cott committee dogged the firm in all their transactions, fol- 
 lowed their delivery wagon, secured the names of their patrons, and 
 used every means short of actual physical force to compel them to 
 cease dealing with Baughman Brothers, thereb}' causing them to lose 
 from one hundred and fifty to two hundred customers, and ten thousand
 
 888 MORRIS RUN COAL CO. V. BARCLAY COAL CO. [CHAP. XIV. 
 
 dollars of net profit. The acts alleged and proved in this case are 
 unlawful, and incompatible with the prosperity, peace, and civilization 
 of the countr3- ; and if thej' can be perpetrated with impunit}- by com- 
 binations of irresponsible cabals or cliques, there will be the end of 
 government, and of society itself. Freedom, individual and associated, 
 is the boon and the boasted policy and peculium of our country ; but it 
 is liberty regulated by law ; and the motto of the law is Sic utere tuo 
 ut aUeaum non Icedas. 
 
 The plaintiff in error was properly convicted ; and the judgment of 
 the hustings court complained of is affirmed. 
 
 MORRIS RUN COAL COMPANY v. BARCLAY COAL 
 
 COMPANY. 
 
 Supreme Court of Pennsylvania. 187L 
 
 [Reported 68 Pa. 173.] 
 
 Agnew, J.^ The effects produced on the public interests lead to the 
 consideration of another feature of great weight in determining the 
 illegality of the contract, to wit : the combination resorted to by these 
 five companies. Singly eacli might have suspended deliveries and sales 
 of coal to suit its own interests, and miglit have raised tlie price, even 
 though this might have been detrimental to the public interest. There 
 is a certain freedom which must be allowed to every one in the manage- 
 ment of his own affairs. When competition is left free, individual 
 error or folly will generally find a correction in the conduct of others. 
 But here is a combination of all the companies operating in the Bloss- 
 burg and Barclay mining regions, and controlling their entire produc- 
 tions. They have combined together to govern the supply and the 
 price of coal in all the markets from the Hudson to the Mississippi 
 rivers, and from Pennsylvania to the lakes. This combination has a 
 power in its confederated form which no individual action can confer. 
 The public interest must succumb to it, for it has left no competition 
 free to correct its baleful influence. When the supply of coal is sus- 
 pended, the demand for it becomes importunate, and prices must rise. 
 Or if the suppl}' goes forwards the price fixed by the confederates must 
 accompany it. The domestic hearth, the furnaces of the iron-master, 
 and the fires of the manufacturer, all feel the restraint, while many de- 
 pendent hands are paralyzed, and hunpy mouths are stinted. The 
 influence of a lack of supph' or a rise in the price of an article of such 
 prime necessity, cannot be measured. It permeates the entire mass of 
 community, and leaves few of its members untouched by its withering 
 
 ^ Only an extract from the opinion is given.
 
 SECT. III.] MORRIS RUN COAL CO. V. BARCLAY COAL CO. 889 
 
 blight. Such a combination is more than a contract, it is an offence. 
 " I take it," said Gibson, J., *'a combination is criminal whenever the 
 act to be done has a necessary tendency to prejudice the public or to 
 oppress individuals, b}' unjustly subjecting them to the power of the 
 confederates, and giving eifect to the purpose of the latter, whether of 
 extortion or of niiscliief." Commonwealth v. Carlisle, Brightly's Rep. 
 40. In all such combinations where the purpose is injurious or unlaw- 
 ful, the gist of the offence is the conspiracy. Men can often do by the 
 combination of man}-, what severalh' no one could accomplish, and 
 even what when done by one would be innocent. It was lield, in Tlie 
 Commonwealth r. Eberle, 3 S. & R. 9, that it was an indictable con- 
 spirac}' for a portion of a German Lutheran congregation to combine 
 and agree together to prevent another portion of the congregation, by 
 force of arms, from using the English language in the worship of God 
 among the congregation. So a confederacy to assist a female infant i:o 
 escape from her father's control with a view to marry her against his will, 
 is indictable as a conspirac}' at common law, while it would have been no 
 criminal offence if one alone had induced her to elope with and many 
 him. Mifflin v. Commonwealth, 5 W. & S. 461. One man or man}' may 
 hiss an actor ; but if the}' conspire to do it they may be punished. 
 Per Gibson, C. J., Hood v. Palm, 8 Barr, 238 ; 2 Russel on Crimes, 556. 
 And an action for a conspiracy to defame will be supported though the 
 words be not actionable, if spoken by one. Hood v. Palm, supra. 
 "Defamation by the outcry of numbers," says Gibson, C J., "is as 
 resistless as defamation by the written act of an individual." And 
 says Coulter, J., " The concentrated energy of several combined wills, 
 operating simultaneously and by concert upon one individual, is dan- 
 gerous even to the cautious and circumspect, but when brouglit to bear 
 upon the unwary and unsuspecting, it is fatal." Twitchell v. Common- 
 wealth, 9 Barr, 211. There is a potency in numbers when combined, 
 which the law cannot overlook, where injury is the consequence. If 
 the conspiracy be to commit a crime or an unlawful act, it is easy to 
 determine its indictable character. It is more difficult when the act to 
 be done or purpose to be accomplished is innocent in itself. Then the 
 offence takes its hue from the motives, the means, or the consequences. 
 If the motives of the confederates be to oppress, the means they use' 
 unlawful, or the consequences to others injurious, their confederation 
 will become a conspiracy. Instances are given in The Commonwealth 
 V. Carlisle, Bright. R. 40. Among those mentioned as criminal is a 
 combination of employers to depress the wages of journeymen below 
 what they would be, if there were no resort to artificial means ; and a 
 combination of the bakers of a town to hold up the article of bread, and 
 by means of the scarcity thus produced to extort an exorbitant price 
 for it. The latter instance is precisely parallel with the present case. 
 It is the effect of the act upon the public wliich gives that case and this 
 its evil aspect as the result of confederation ; for any baker might 
 choose to hold up his own bread, or coal operator his coal, rather than
 
 890 MORRIS RUN COAL CO. V. BARCLAY COAL CO. [CHAP. XIV. 
 
 to sell at ruling prices ; but when he destroys competition by a combi- 
 nation with oJicrs, the public can buy of no one. 
 
 In Rex V. De Berenger, 3 M. & S. 67, it was held to be a con 
 spiracy to combine to raise the public funds on a particular day by false 
 rumors. The purpose itself, said Lord Ellenborough, is mischievous 
 — it strikes at the price of a valuable commodity in the market, and 
 if it gives it a fictitious price by means of false rumors, it is a fraud 
 levelled against the public, for it is against all such as may possibly 
 have anything to do with the funds on that particular day. Every 
 "corner," in the language of the da}-, whether it be to affect the 
 price of articles of commerce, such as breadsluffs, or the price of vend- 
 ible stocks, when accomplished by confederation to raise or depress 
 the price and operate on the markets, is a conspiracy. The ruin often 
 spread abroad by these heartless conspiracies is indescribable, fre- 
 quently filling the land with starvation, povert}', and woe. Every 
 association is criminal whose object is to raise or depress, the price 
 of labor beyond what it would bring if it were left without artifi- 
 cial aid or stimulus. Rex v. Byerdike, 1 M. & S. 179. In the case of 
 such associations the illegality consists most frequently in the means 
 employed to carry out the object. To fix a standard of prices among 
 men in the same employment, as a fee bill, is not in itself criminal, but 
 ma}' become so when the parties resort to coercion, restraint, or penal- 
 ties upon the employed or employers, or what is worse to force of 
 arms. If the means be unlawful the combination is indictable. Com- 
 monwealth V. Hunt, 4 Met. 111. A conspiracy of journeymen of any 
 trade or handicraft to i-aise the wages by entering into combination to 
 coerce journeymen and master-workmen employed in the same branch 
 of industry to conform to rules adopted by such combination for the 
 purpose of regulating the price of labor, and carrying such rules into 
 effect by overt acts, is indictable as a misdemeanor. 3 AVhart. C. L., 
 citing The People v. Fisher, 14 Wend. 9. Without multiplying ex- 
 amples, these are suflficient to illustrate the true aspect of the case 
 before us, and to show that a combination such as these companies 
 entered into to control the supply and price of the Blossburg and Bar- 
 clay' region-s is illegal, and the contract therefore void.^ 
 
 1 "Owners of goods have a right to expect at an auction that there will be au open 
 competition from the public ; and if a knot of men go to an auction upon an agree- 
 ment among themselves of the kind that has been described, they are guilty of an 
 indictable offence, and may be tried for a conspiracy." Gurney, B., in Levi v. Levi, 
 9 C. & P. 239. — Ed.
 
 SECT. 1. 1 THE INDICTMENT. 891 
 
 CHAPTER Xy. 
 THE INDICTMENT. 
 
 S^'' /;/, 
 
 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 ; cepit, in an indictment of larceny ; 7nai/- 
 hemiavit, in an indictment of maim ; felonice, in an indictment of any 
 felonj' whatever; bicrglariter, or hurgulariter^ or else burgalariter, in 
 an indictment of burglary ; proditorie, in an indictment of treason ; 
 contra ligeant'iae suae debitum, in an indictment of treason against the 
 king's person. 
 
 2 Hawkins, Pleas of the Crown, ch. 25, Sect. 62. Where one mate- 
 rial 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 
 proceedings, which if suffered, would soon introduce barbarism and 
 confusion. 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 be- 
 cause it is repugnant and inconsistent that it should be so sold at the 
 same time when it was sold by weight.^ 
 
 1 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 than 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 ambiguous, it is sufficiently marked by the context, or other means, in what 
 sense they are 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, 
 and many heinous and crying offences escape by these unseemly niceties, to the re- 
 proach of the law, to the shame of tlie government, and to the encouragement of vil- 
 lany and the dishonor of God." — Lord Ellenborough, C. J., in Rex v. Stevens. 5 East, 
 244, 259.
 
 892 STATE V. BROWN. [CHAP. XV. 
 
 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 
 ought 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 
 February, 1817, and continually thereafter up to the time of taking 
 this inquisition at Camden aforesaid, was, and yet is, a common 
 Sabbath-tx'eaker and prophaner of the Lord's day, commonl}' called 
 Sunday ; and that the said John Brown, on the day aforesaid, being 
 Lord's day, 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
 
 SECT. I.] DAMON'S CASE. 893 
 
 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 indict ment charges that the defendant is a common Sabbath- 
 Jbreaker and prophaner of the Lord's day. If it had stopped here, it 
 
 would certainh' have been insufficient, as it would not show how, or in 
 
 what_mauner, he was a common Sabbath- breaker and prophaner of the 
 Lord's day. The 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 of 
 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 by 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 jury. For 
 aught 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 part 
 of the indictment, taking the whole together, the defendant well might 
 have done all charged against him, and yet 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 he 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, 
 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.^ 
 
 Parris, 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 
 
 1 Part of the case not relating to question of pleading is omitted.
 
 894 DAMON'S CASE. [CHAP. XV. 
 
 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 by 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 sovereignty, 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, especially 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 consequently 
 must have been against the peace of that sovereignty 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 perjury. 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- 
 tion and sentence, Lookup brought a writ of error returnable in Parlia- 
 ment, 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.
 
 / 
 
 / 
 
 I 
 
 SECT. I.J COMMONWEALTH V. TRAY. 895 
 
 commonwp:altii 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, 
 
 § 1. 
 
 " The jurors, &c., present that Edward Pray of Braintree, in the 
 County of Norfolk, trader, on the thirtieth day of September, in the 
 year of our Lord one thousand eight hundred and thirty, and on divers 
 other days between that day and the twentieth day of December next / j 
 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 between the days aforesaid, commonly and habitually sell 
 to divers persons to the jurors unknoion, wine, beer, ale, cider, brandy, 
 7'rim, and other strong liqxiors by retail, in less quantities than tiventy- 
 eight gallons, and that delivered and carried aioay all at one timey 
 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 they do not em- 
 brace the offence for which this defendant is indicted. 2 Hale's P. C. 
 182; Hawk. bk. 2, c. 25, § 59. The second allegation in the indict- 
 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 surplusage. 
 Eex u Holt, 2 Leach, 676 ; s. c. 5 T. R. 446; 3 Stark. Ev. 1529 ; Co^m. 
 Dig. Pleader, E 12 ; Co. Lit. 303 b; Gould's PL 155, c. 3, § 172. 
 
 Austin, Attorney-General, for the Commonwealth, said that the clause 
 in the indictment printed in Italics might 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. 
 
 Morton, J., delivered the opinion of the court. This case comes 
 before us on general demurrer; and the only subject for our considera- 
 
 i '5\ I
 
 896 COMMONWEALTH V. PEA.Y. [CHAP. XV. 
 
 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 dul}' 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, yet 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 venue, 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 Wej'mouth 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 PL 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 
 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 
 will not injure it. Utile per inutile non 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 
 general charge, as that a man is a common thief, common forestaller, 
 or common champertor, &c., is clearly insufficient. Hawk. bk. 2, c. 25, 
 §29. 
 
 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
 
 SECT. I.] COMMONWEALTH V. PRAY. 897 
 
 apply. Wherever the crime consists of a series of acts, they need not 
 be 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 j)erson 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- 
 tute 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 
 Prec. 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, yet 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 duty they are liable, not only to indictment, 
 but, if any individual injury occurs by 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 highway. But a general allegation, that a 
 certain highway is out of repair, ruinous, and unsafe, has always been 
 deemed sufficient. Hawk. bk. 2, c. 25, § 68 ; Davis's Prec. of Indict- 
 ments, 195 ; Rider v. Smith, 3 T. R. 766. 
 
 The object of the rule requiring the charge to be particularly, cer- 
 tainly, and technically set forth, is threefold. First, to apprise the 
 defendant of the precise nature of the charge made against him. Sec- 
 ondly, 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 
 offence. 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 against him. When it is alleged that at a certain time he 
 did presume to be and was a common innholder and common seller of
 
 898 COMMONWEALTH V. HERSEY. [CHAP. XV. 
 
 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 sufficient 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 many other 
 cases, be 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 necessary to its support; 
 and therefore that the demurrer must be overruled. 
 
 A 
 
 COMMONWEALTH v. HERSEY. 
 .,«.H Supreme Judicial Court of Massachusetts. 1861. 
 
 [Reported 2 Allen, 173.] 
 BiGELOw, C. J. The. motion. in arrest of judgment in the present 
 
 case is founded on the omission to aver that the defendant, in admin- 
 ■\^ '. ."\"Tstering poison to the deceased, did it with an intent to Kill and mur- 
 der. No direct authority or adjudication has been cited by the counsel 
 for the prisoner in support of the position that such an averment is 
 necessary or essential to the validity of the indictment. They do, how- 
 ever, rely on forms or precedents, which are found in text books of ap- 
 proved 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.) 123-138; Archb. Crim. PI. (5th Amer. 
 ed.) 432; 2 Cox, C. C. Appendix, III; Davis's Precedents, 182-186. 
 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 allega- 
 tion 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, § 116; 3 Chit. Crim. Law, 773, 779; The
 
 SECT. I.] COMMONWEALTH V. HERSEY. 89<> 
 
 King V. Clark, 1 Brod. & Bing. 473 ; Eegina v. Alison, 8 C. & P. 
 418. So far therefore as the question now raised depends on author- 
 ity, it may fairly be said to be an open one. It would be giving too 
 much force to mere precedents of forms, which often contain unneces- 
 sary and superfluous 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 by cautious pleaders. 
 
 We are then to determine tlie question as one depending on the gen- 
 eral rules of criminal pleading applicable to the description of similar 
 offences. 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 necessary to aver the guilty intent as a substantive part of the crime 
 in giving a technical description of it in the indictment. On the con- 
 trary, as the law presumes that ever}^ man intends the natural and neces- 
 sary 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 neces- 
 sarily, includes the intent. Thus, in charging the crime of burglary, it 
 is not necessary to aver that the breaking and entering a house was 
 done with an intent to steal. It is sufficient to charge the breaking 
 and entering and an actual theft by the defendant. The reason is, 
 that the fact of stealing is the strongest possible evidence of the in- 
 tent, 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 necessary to allege that they were inflicted with an 
 intent to kill or murder. The law infers the intent from proof that the 
 acts were committed, and that death ensued. The averment, therefore, 
 of the criminal act comprehends the evil or wicked intention with which 
 it was committed. The true distinction seems to be this : when b y the 
 common law or by the provision of a statute a particular intention is es- 
 sential to an offence, or a criminal act is attempted but not accomplished, 
 and the evil intent only can be punished, it is necessary to allege the 
 intent with distinctness and precision, and to support the allegation by 
 _proQf. On the other hand, if the offence does not rest merely in ten- 
 dency, 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 r. Merrill, 14 Gray, 415 ; To illustrate the applica- 
 tion of the rule, take the case of an indictment for an assault with an at- 
 tempt to commit a rape. The act not being consummated, the gist of
 
 900 COMMONWEALTH V. HERSEY. [cHAP. XV. 
 
 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 defendant had carnal knowledge of 
 a woman by force and against her will. The averment of the act in- 
 cludes the intent, and proof of the commission 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 neces- 
 sary to allege and prove the act. The application of this principle to 
 the case at bar is decisive of the question raised by the present motion. 
 There is nothing in the nature of the crime of murder by poison to 
 distinguish it from homicide by other unlawful means or instruments so 
 as to render it necessary that it should be set out with fuller averments 
 concerning the intention with which the criminal act was committed. 
 If a person administers to another that which he knows to be a deadly 
 poison, and death ensues therefrom, 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 guilty intention to 
 take life. 
 
 It was urged by the counsel for the prisoner, as an argument in sup- 
 port of the insufficiency of the indictment, that every fact stated in the 
 indictment might have been done by the defendant, and yet he might 
 have committed no offence ; that is, that a person might administer to 
 another that which he knew to be a deadly poison, from which death en- 
 sued, 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 poisonous nature, 
 in the honest belief that it would cure or mitigate disease, but which 
 from unforeseen and unexpected causes actually causes death. And 
 the same is true of many other cases of homicide produced by other 
 means than poison. Take the case of a murder alleged to have been 
 committed by stabs or cuts with a knife. Such wounds may be in- 
 flicted innocently and for a lawful purpose. A sui-geon in performing 
 a delicate and difficult operation, by a slight deflection of the knife 
 which the most cautious skill could not prevent, might inflict a wound 
 which destroys life. But it has never been deemed necessary, because 
 certain acts which cause death may be done without any wicked or 
 criminal intent, to aver in indictments for homicide, that the person 
 charged acted with an intent to take life. The corrupt and wicked pur- 
 pose with which a homicidal act is done is sufficiently expressed by the 
 averment that it was committed wilfully and with malice aforethought ; 
 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.
 
 SECT. I.] HIRN V. STATE. 901 
 
 HIRN V. STATE. 
 
 Supreme Couut 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 
 in regard to which the authorities are not clear and somewhat conflict- 
 ing. 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 pharmaceu- 
 tical purposes." 
 
 The rule laid down by 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 
 Iel the indictment ; but where the statute contains provisos and excep- 
 tions in distinct clauses, it is not necessary to allege that the defen- 
 dant does not come with the exceptions, nor to negative the provisos. 
 1 Chitty's Crira. 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 descrip- 
 tion of the offence, and a subsequent exemption from the penalty 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 propriety, be separated by a point; yet very fre- 
 quently the language creating and describing the oflTence and fixing the 
 penalty, includes several distinct clauses and sometimes a whole section. 
 
 ^ Part of the case not relating to the question of pleading is omitted.
 
 ?6( 
 
 902 COMMONWEALTH V. PERIilGO. [CHAP. XV, 
 
 It is requisite that every 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 
 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 the statutory descrip- 
 tion of the offence, the negative averment is unnecessary. 
 
 In the case before the court, the matter of the proviso in the first 
 section of the act of 1851, points directly to the 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 the 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. 
 
 Thurman, 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 op Appeals of Kentucky. 1860. 
 
 [Reported 3 Metcalfe, 5.] 
 
 Judge Duval 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, played as aforesaid, money 07' 
 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 certainty as to apprise the defendant of the nature of_the 
 accusation upon which he is to be tried, and t o constitute a^ ba r 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 premises elsewhere in the
 
 SECT. I.] UNITED STATES V. CRUIKSHANK. 903 
 
 county ; or whether it was for suffering a game upon which money was 
 won or lost, or upon which property was won or lost, the defendant 
 could not learn from anything contained in the indictment, and could 
 not, therefore, be presumed to have been able to make any available or 
 effectual preparation for defence against so vague and uncertain an 
 accusation. Nor would a conviction for suffering a game for money to 
 be played in his hotise have constituted a bar to a subsequent indict- 
 ment for suffering 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 different modes and means by which the offence was committed, and 
 that under the 125th 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 Jirst 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 their respective free exercise and enjoyment 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 Jifth avers an intent to hinder and prevent the same persons 
 "in the exercise and enjoyment of the rights, privileges, immunities, 
 and protection granted and secured to them respectively 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-
 
 904 UNITED STATES V. CRUIKSHANK. [CHAP. XV. 
 
 SOUS "in their several aud respective free exercise and enjoyment of 
 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 
 \^ them respectively as citizens of tlie United States, aud 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 
 I thereof ; " and in the eighth aud sixteenth, to hinder and prevent them 
 " 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 punishmentof 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 necessary certainty, to apprise 
 the accused of the crime with which he stands charged ; " and in United 
 States V. Cook, 17 Wall. 174, that " every ingredientof which the offence 
 is composed must be accurately and clearly alleged." It is an ele- 
 mentary principle of criminal pleading that where the definition of an 
 offence, whether it be at common law or by statute, " includes generic 
 terms, it is not suflacient that the indictment shall charge the offence in 
 "Ihe^ 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 so much of the case as relates to the fifth and eighth counts is printed here.
 
 SECT. I.] UNITED STATES V. CRUIKSHANK. 905 
 
 such 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 against a further prosecution for the same cause; and, second, to 
 inform the court of the facts alleged, so that it may decide whether they 
 are sullieient in law to support a conviction, if one should be had. For 
 this, 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 certain t}' 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 necessai'y 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 
 conspire 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 conspiracy 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 may decide whether he should present his defence by mo- 
 tion to quash, demurrer, or plea; and the court, that it may determine 
 whether the facts will sustain the indictment. So hei'e, 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- 
 pear 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
 
 906 . COMMONWEALTH V. HARRINGTON. [CHAP. XV. 
 
 certainty and precision required by the established rules of criminal 
 pleading. It follows that they are not good and sufficient in law. 
 The}' are so defective that no judgment of conviction should be pro- 
 nounced upon them. 
 
 The order of the Circuit Court arresting the judgment upon the 
 
 verdict is, therefore, affii-med ; and the cmise remanded^ loith 
 
 instructions to discharge the defendants. 
 
 COMMONWEALTH v. HAERINGTON. 
 
 Supreme Jduicial 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 in 
 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 crime 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 V. Commonwealth, 2 Gray, 505 ; Commonwealth v. Holley, 
 3 Gray, 458; Garvey v. Commonwealth, 8 Gray, 382. It follows that 
 the offence which is punishable with the higher penalty is not fully and 
 substantiallj' described to the defendant, if the complaint fails to set 
 forth the former convictions which are essential features of it. That 
 clause of the statute, therefore, which provides that it shall not be 
 necessary, in complaints under it, to allege such previous convictions.
 
 SECT. I.] STATE V. MACE. . 907 
 
 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. 
 
 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 
 sufficiently 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 E.. S. 1871, c. 122, § 5. 
 
 Walton, J. The defendant is charged with having committed the 
 crime of perjury "by falsely 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 in- 
 telligent 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 
 lawj'er 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 
 show that the oath was one which the law authorized or required, or it 
 will be defective and clearly insufficient, 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 perjury has been 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.
 
 908 STATE V. MACE. [CHAP. XV. 
 
 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. Surely, 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. 
 Undoubtedly 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 partic- 
 ular, and the extent to which it may 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 exami- 
 nation. To avoid this inconvenience, the legislature, in I860, 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 by 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 
 to some writing in relation to which an oath is authorized or required 
 by law ; and the sufficiency 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 (State v. 
 Learned, 47 Maine, 426), we are forced to the conclusion that it is not 
 sufficient ; that the legislature, in its laudable desire to prune away the 
 great prolixity of the forms required by the common law, cut too deep, 
 and did not leave enough to meet the requirements of the constitution 
 of the State. Exceptions sustained. Judgment arrested.
 
 SECT. I.] STATE V. CAMPBELL. 909 
 
 / 
 
 STATE V. Mccarty. — ^ 
 
 Supreme Court of Rhode Island. 1891. 
 
 [Reported 17 R. I. 370.] 
 
 Per Curiam. The defendant was indicted in tlie Court of Common 
 Pleas at its December term, 1890, for breaking and entering, in tlie 
 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 proof 
 submitted. The Court overruled the motion to quash, and upon motion 
 of the attorney-general, and against th^ 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 
 rulino-s 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 o-ranted. The amendment to the indictment being in a matter 
 of substance, could only properly have been made in the presence of 
 and with the concurrence of the grand jury (1 Bish. Crim. Proc. §§ 707- 
 711 ; Exjyarte 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. 
 
 Petition granted. 
 
 STATE u. CAMPBELL. 
 Supreme Court of Missouri. 1907. 
 
 [Reported 210 Mo. 202.] 
 
 Fox, P. J.^ The final complaint in which the sufficiency of this 
 indictment is challenged, that is, that it fails to comply with the con- 
 stitutional requirement in its conclusion, is by far the most serious 
 proposition disclosed by the record before us in this cause. Article 6, . 
 section 38, of the Constitution of this State provides that "all writs ) 
 anj4.)rocess shall run and all prosecutions shall be conducted in the 
 name of the ' State of Missouri ; ' all writs shall be attested by the 
 clejk of the court from which they shall be issued : and all indictments 
 shall conclude, ' against the peace and dignity of , the State.' " 
 
 It will be observed that the conclusion to the iiidictment now under 
 
 1 Onlv so much of the case as discusses the question of form of indictment is 
 given. — Ed.
 
 910 STATE V. CAMPBELL. [CHAP. XV. 
 
 consideration is " against the peace and dignity of State." The com- 
 plaint of learned counsel for appellant is directed against this conclu- 
 sion on the ground that the word "the" is omitted immediately preceding 
 the word "State." 
 
 At the very threshold of the consideration of the proposition now 
 under discussion there is no dispute that there must be substantial 
 compliance with the provisions of the Constitution respecting the con- 
 clusion that all indictments shall conclude "against the peace and 
 dignity of the State." It has been expressly ruled by this court that 
 no formal charge of crime is sufficient without the averment of the 
 conclusion to an indictment as contemplated by the Constitution. 
 [State V. Stacy, 103 Mo. 11 ; State v. Lopez, 19 Mo. 254; State v. 
 Pemberton, 30 Mo. 376.] This constitutional requirement that all 
 indictments shall conclude "against the peace and dignity of the 
 State," in effect is a requirement that all indictments shall point out 
 in their conclusion that the offence as described in the main body of 
 the indictment is " against the peace and dignity of the State" which 
 entertains and exercises jurisdiction of the offence charged. 
 
 A number of states have a similar constitutional requirement to ours 
 as to the conclusion of indictments or informations, and it is significant 
 that the appellate courts of the various states having a like constitu- 
 tional provision have uniformly held, where such constitutional pro- 
 vision has been in judgment before them, that it was essential to the 
 validity of an indictment or information that the constitutional require- 
 ment be substantially complied with. An examination of the authori- 
 ties indicates some difference in the degree of exactness required in 
 following the constitutional language in the various states, but they 
 are all practically uniform that there must be a substantial compliance 
 with such constitutional requirement. 
 
 In State v. Hays, 78 Mo. 600, the conclusion of the indictment em- 
 braced all the words required by the Constitution, but also embraced 
 the additional words " of Missouri." The conclusion in that case was, 
 " against the peace and dignity of the State of Missouri." The objec- 
 tion urged to'that conclusion was, not that the conclusion did not em- 
 brace the words prescribed by the Constitution, but that the addition 
 of the words "of Missouri" invalidated the indictment. This objec- 
 tion was held by this court without merit, and this court said that " the 
 added words are but what the constitutional language implies, and 
 the addition in no wise enlarged, varied or changed the phrase or the 
 sense." In other words, it was in effect that the phrase embraced in 
 the conclusion required by the Constitution, "The State," in fact 
 meant the State of Missouri. 
 
 To the same effect is State v. Schloss, 93 Mo. 361. The conclusion 
 to the indictment in that case embraced the words required by the 
 Constitution, but also added "contrary to the form of the statute." 
 It was held and properly so that this contention was untenable for the 
 reason that the mere additional words would not invalidate the indict-
 
 SECT. I.] STATE V. CAMPBELL. 911 
 
 ment when the conclusiou embraced the language designated by the 
 Constitution. 
 
 In one of the leading cases, State v. Kean, 10 N. H. 347, the lan- 
 guage used in the conclusion was " against the peace and dignity of 
 our said State," instead of "the State" as required by the Constitu- 
 tion. It was held by the court in that case that the use of the language 
 was not such a departure from the language required by the Constitu- 
 tion as to vitiate the indictment. It will be observed in that case, as 
 well as in the Hays and Schloss Missouri cases, that while the language 
 used in the conclusion was not identical with that prescribed by the 
 Constitution, yet the language used did fully conform to the require- 
 ments of the Constitution by clearly indicating the State which was 
 offended by the violation of the law which was charged in the body of 
 the indictments. 
 
 So, in the case of Zarresseller v. People, 17 111. 101. In that case 
 the indictment concluded " against the peace and dignity of the People 
 of the State of Illinois." The twenty-fifth section of the fifth article 
 of the Constitution of that State provides that all prosecutions shall be 
 carried on "in the name and by the authority of the people of the 
 State of Illinois," and conclude "against the peace and dignity of the 
 same." It was very properly ruled in that case that the conclusiou was 
 the same in substance as required by the Constitution and within the 
 spirit and meaning of the requisition. 
 
 In Anderson v. State, 5 Ark. 444, the indictment concluded " against 
 the peace and dignity of the people of the State of Arkansas." The 
 Constitution of that State required that the conclusion should be 
 "against the peace and dignity of the State of Arkansas." It was 
 correctly held that this slight deviation from the form prescribed in the 
 Constitution would not invalidate the indictment. 
 
 To the same effect is State v. Robinson, 27 S. C. 615, where the lan- 
 guage in the conclusion of the indictment was " the same State afore- 
 said," instead of "the State." It will be observed in that case that 
 all the constitutional words were present but the words "same" and 
 " aforesaid " were added. Clearly that case was properly decided 
 when it held that the addition of those words did not change the sense 
 or meaning of the clause. 
 
 To the same effect is State v. Pratt, 44 Tex. 93, in which the word 
 " Texas " was added, and it was held that that additional word to the 
 concluding language required by the Constitution should not invalidate 
 the indictment. 
 
 In State v. Waters, 1 Mo. App. 7, as heretofore suggested, that 
 court, speaking through Judge Lewis, clearly pointed out the purpose 
 and meaning of the terms designated by the Constitution, " against the 
 peace and dignity of the State," that is, that it was to indicate 
 the power or authority against which the facts charged constituted an 
 offence. In other words, that while the exact language prescribed by 
 the Constitution need not be used, yet such terms must be used as will
 
 912 STATE V. CAMPBELL. [CHAP. XV. 
 
 indicate the State against which the facts charged constitute an offence. 
 It is announced in that case that " the general doctrine is that if the in- 
 tent of the Constitution be substantially responded to in this part of 
 the indictment, a literal transcript of the formula is not essential. It 
 is further held that if the formula be present, other words, not per- 
 verting the meaning, will be treated as surplusage." In that case the 
 same objection was urged against the indictment as was insisted upon 
 in State v. Schloss, sujjra, that there was added to the conclusion pre- 
 scribed by the Constitution " and contrary to the form of the statute 
 in such cases made and provided by the vState." It is manifest that 
 the concluding words prescribed by the Constitution were embraced in 
 the conclusion to the indictment in that case, therefore it was very 
 properly held that the conclusion was sufficient. 
 
 Mr. Bishop, in his work. New Criminal Procedure (4 Ed.), vol. 1, 
 sec. 651, after stating the ruling of some of the courts upon the propo- 
 sition now under consideration, reached this conclusion. He says : 
 "Derivable from all, and from the analogies of the law, would ^eem 
 to be that unimportant words omitted fi-om the constitutional form of 
 the conclusion, or changed therein, will not necessarily vitiate it; but 
 whatever alters thejjubstance,^ ^^^^ ^^ what seems unimportant, will 
 render it void." 
 
 In Lemons r. State, 4 "W. Va. 755, the conclusion of the indictment 
 was " against the peace and dignity of the State of W. Virginia." 
 The Constitution of that State provided, at the time the indictment in 
 the case was returned, that all indictments should conclude " against 
 the peace and dignity of the State of West Virginia." It was held 
 in that case that the abbreviation for the term " West " with the letter 
 " W" before Virginia was not a compliance with the provisions of the 
 Constitution and the indictment was held insufficient. This case is 
 cited with approval by Mr. Bishop in his Criminal Procedure, and is 
 also cited in State v. Waters, supra, and Judge Lewis in that case in 
 no way disapproves of the West Virginia case. He simply concluded 
 his review of the Lemons case by stating that "this was no case of 
 surplusage; it was the rejection of a name given by the Constitution 
 and the adoption of a different one." Subsequent to the announcement 
 of the conclusion reached by the Supreme Court of Appeals of West 
 Virginia in the Lemons case, heretofore cited, the Constitution was 
 changed respecting the concluding terms of all indictments, and instead 
 of requiring the conclusion "against the peace and dignity of the 
 State of West Virginia," the same conclusion was required as in this 
 State, that is, " against the peace and dignity of the State," and in State 
 V. Allen, 8 W. Va. 680, the conclusion to the indictment conformed to 
 the requirements of the former Constitution and concluded in the terms 
 " against the peace and dignity of the State of West Virginia," instead 
 of concluding " against the peace and dignity of the State," as required 
 by the Constitution then in force. That case, in hai-mony with the 
 rule announced by this court, correctly held that the terms of the con-
 
 SECT. I.] STATE V. CAMPBELL, 913 
 
 elusion as prescribed by the Constitution being embraced in the lan- 
 guage used, the mere addition of the State of West Virginia would not 
 vitiate the indictment. The Lemons case was referred to approvingly, 
 but distinguished from the Allen case. 
 
 It may be said as to the case of Lemons v. State, supra, that from 
 the language used by the learned judge rendering the opinion, it is sus- 
 ceptible of being interpreted as not being in perfect harmony with many 
 other of the appellate courts, by reason of its requiring a too strict and 
 literal compliance with the terms used in the Constitution ; however, 
 by the subsequent case of State v. Allen, supra, it is clearly indicated 
 that the Virginia court is in harmony with the uniform rulings of nearly 
 all the appellate courts. 
 
 The Constitution of "Wisconsin contains a similar provision to the 
 Constitution of this State and provides that all indictments shall con- 
 clude "against the peace and dignity of the State." In Williams v. 
 State, 27 Wis. 402, the indictment in judgment before the court con- 
 cluded " against the peace of the State of Wisconsin." In discussing 
 the terms of the conclusion of the indictment in that case, Lyon, J., 
 speaking for the Supreme Court of Wisconsin, thus treats the proposi- 
 tion. He said : "Art. VII., sec. 17, of the Constitution provides, that 
 'all indictments shall conclude against the peace and dignity of the 
 State.' This mandate is imperative, and an indictment which does not 
 "sQ-Conclude is necessarily bad. The courts have no authority to dis- 
 pense with that which the Constitution requires. The Constitutions of 
 Virginia, Texas and Missouri contain the same provision, and it has 
 been held by the Supreme Court of the two latter States, and by the 
 Court of Appeals of the former, that the conclusion required by the 
 Constitution is indispensable to the validity of the indictment," citing 
 Com. V. Carney, 4 Gratt. 546 ; State v. Durst, 7 Tex. 74 ; State v. 
 Lopez, 19 Mo. 254. 
 
 This brings us to the consideration of the two Texas cases in which 
 the identical proposition involved in this case was in judgment before 
 the Texas Court of Appeals in the cases of Wallace Thompson v. State, 
 15 Tex. App. 39, and in R. Thompson v. State, reported in the same 
 volume by the same court, page 168. Section 12 of article 5 of the 
 Constitution of Texas, at the time of the announcement of the decision 
 in those two cases, made the same requirement as to the conclusion of 
 all prosecutions, that is, that they should conclude " against the peace 
 and dignity of the State." In those cases the definite article " the " 
 which should immediately precede the word " State," was omitted, and 
 it was expressly ruled by that court that in the omission of the word 
 " the," as above indicated, there was a failure to comply with the re- 
 quirement of the Constitution ; that the conclusion in all prosecutions 
 should be " against the peace and dignity of the State." It is not inap- 
 propriate to say that the Texas Court of Appeals above cited has long 
 been recognized by both the bench and bar as one of high standing, and 
 while the propositions involved in those two cases are not discussed at
 
 914 STATE V. CAMPBELL. [CHAP. XV. 
 
 any length, yet from the recognized ability of the eminent lawyers con- 
 stituting that court, the conclusion reached doubtless was not without 
 due and proper consideration. This is indicated in the latter case of 
 R. Thompson v. State, above referred to. In that case the court had 
 reached the conclusion that the judgment of the trial court was right 
 and had entered its order affirming the judgment, but the same fatal 
 defect in the conclusion of the information by the omission of the defi- 
 nite article "the" immediately preceding "State" having been over- 
 looked, a motion for rehearing was granted and the judgment of the 
 trial court reversed. It is obvious that the same proposition being 
 presented in both cases and one in which the judgment of the trial court 
 had been affirmed, that the court fully recognized the importance of the 
 proposition, and while the expression of their conclusions was brief, 
 the consideration of the question was full and thorough. 
 
 Emphasizing the correctness of the conclusion reached in the two 
 cases last cited by the Texas Court of Appeals, the learned author, 
 Mr. Bishop, in support of the rule heretofore announced, that the omis- 
 sion of unimportant words from the constitutional form of the conclu- 
 sion would not necessarily vitiate an indictment or information, but 
 whatever alters the substance, even in what seems unimportant, will 
 render it void, directs the bench and bar to consult the cases of Thomp- 
 son V. State, 15 Tex. App. on pages 39 and 168. . 
 
 In 10 Am. and Eng. Ency. Law (1 Ed.), 514, we also find in the 
 text that where the Constitution of the State requires that all prosecu- 
 tions shall conclude "against the peace and dignity of the State," the 
 omission of the word "the" before " State," in an information, is fatal 
 to it, citing in support of the text the cases heretofore indicated in the 
 15th Tex. App. at pages 39 and 168. 
 
 We have thus pointed out the views of the numerous appellate courts 
 applicable to this question, and we are now simply confronted with the 
 proposition as to whether or not, measured by the authorities as hereto- 
 fore indicated, the conclusion to the indictment in the case at bar suffi- 
 ciently conforms to the requirements of the Constitution of this State. 
 In responding to this proposition we deem it sufficient to say that, after 
 a careful and thorough consideration of all the authorities applicable to 
 the subject now under discussion, we see no escape from holding that 
 the conclusion to the indictment in this cause fails to comply with the 
 imperative mandate of the Constitution of this State. As heretofore 
 pointed out, the authorities are all in harmony that the conclusion to 
 the indictment must substantially conform to the requirements of the 
 Constitution, and in all cases where this proposition has been in judg- 
 ment before the appellate courts, where the language used was not 
 identical with the terms prescribed by the Constitution, it is significant 
 that the courts have uniformly pointed out that the terms used were 
 equivalent and in effect and substance embraced the conclusion required 
 by the Constitution, and, as said by the court of appeals in State v. 
 Waters, stqjra, the conclusion prescribed by the Constitution is for the
 
 
 SECT. I.] STATE V. CAMl'itELL. 915 
 
 purpose of indicating the power or authority against which the facts 
 charged constitute an offence. This being true, it is plainly manifest 
 that, the definite article "the" which sliould immediately precede the 
 word " State " being omitted, the conclusion to the indictment in the 
 case at bar falls far short of indicating the power or authority against 
 which the facts charged in the body of the indictment constitute an 
 offence. 
 
 While it may be conceded that the word " the " is a small one and in 
 many instances of little importance, however, if we are to longer rec- 
 ognize rules in the proper interpretation of language, then we see no 
 escape from the conclusion that the definite article " the " preceding 
 the word " State " is absolutely essential in order to designate the par- 
 ticular State against which the offence is charged to have been com- 
 mitted. It is clear that the omission of this word not only changes the 
 sense but the very substance of the clause, and, as was said by Mr. 
 Bishop in the discussion of the proposition of the conclusion prescribed 
 by the Constitution, "Whatever alters the substance, even in what 
 seems unimportant, will render it void." While it may be said that 
 the definite article " the " in many instances is an unimportant phrase, 
 yet as applicable to the conclusion prescribed by the Constitution of 
 this State, it is full of force and vitality. As was said by the learned 
 counsel in their brief in State v. Skillman, 209 Mo. 408, decided at the 
 present term of this court, ' ' the article ' the ' directs what particular 
 thing or things we are to take or assume as spoken of. It determines 
 what particular thing is meant ; that is, what particular thing we are to 
 assume to be meant. It is used before nouns with a specifying or par- 
 ticularizing effect." In the use of the definite article " the " immedi- 
 ately preceding " State " in the conclusion prescribed by the Constitution 
 we have pointed out the State whose peace and dignity has been 
 offended, and by the omission of such definite article we have a con- 
 clusion that does not designate the power or authority against which 
 the offence is committed. "The State," in the conclusion prescribed 
 by the Constitution of this State, means the State of Missouri, and 
 this in substance was what was decided in the Hays case, 78 Mo. 600, 
 heretofore cited. 
 
 If this conclusion embraced language similar to that pointed out in 
 the cases to which we have heretofore referred, such as ' ' against the 
 peace and dignity of our said State," or "against the peace and dignity 
 of State of Missouri," it might be very properly ruled that such lan- 
 guage was at least equivalent to the language prescribed by the Consti- 
 tution, for the reason that it indicated the power and authority against 
 which the offence as charged in the body of the indictment constitutes 
 an offence. 
 
 This case falls far short of conforming to or meeting the requirements 
 of the rule announced by Judge Lewis in State v. Waters, supra. It 
 was there said : "If the intent of the Constitution be responded to in 
 this part of the indictment, a literal transcript of the formula is not
 
 916 STATE V. CAMPBELL. [CHAI'. XY. 
 
 essential." But in that same case it -will be observed that the learned 
 judge said that the purpose and meaning of the conclusion was to indi- 
 cate the power or authority against which the facts charged constitute 
 an offence. Therefore it is obvious that the intent of the Constitution 
 has not been substantially responded to for the reasons heretofore sug- 
 gested ; that in the omission of the definite article "the" preceding 
 " State " there is an absolute failure to indicate the power or authority 
 against which the offence is charged to have been committed. 
 
 It is not a satisfactory solution of this proposition to say we know 
 what was intended or meant by the conclusion in the case at bar, or 
 that it was a mere matter of form. The proposition confronting us is 
 not what the pleader meant to say, but what did he say, and do the 
 terms used in concluding the indictment in this case substantially con- 
 form to the requirements prescribed by the Constitution? Constitu- 
 tional requirements are not ordinarily to be regarded as mere matters 
 of form. As was said in Cox v. State, 8 Tex. 1. c. 306 : " However 
 much we may feel disposed to consider a matter prescribed by the 
 Constitution ill-advised or useless — however much we may be inclined 
 to doubt the propriety of inserting into the organic, fundamental law 
 of the State requisites of forms with regard to procedure and practice 
 in the courts, — the answer is, the people themselves, the source of all 
 power and authority in a republican government, have spoken it ; and 
 with regard to their ipse dixit, when contained in the Constitution, which 
 is but the expression of their sovereign will, the courts can only bow 
 in humble obedience, and say, 'ita est scripta.'' If plain and unambig- 
 uous, no ordinary rules of construction are applicable to these expres- 
 sions ; their inherent, binding authority is superior to all ordinary 
 rules." 
 
 Mr. Justice Emott in People v. Lawrence, 36 Barb. 1. c. 186, in dis- 
 cussing a constitutional question, used this language : " It will be 
 found, upon full consideration, to be difficult to treat any constitutional 
 provision as merely directory and not imperative." This language was 
 fully approved by Judge Cooley. [Cooley's Const. Lim. (3 Ed.) 82.] 
 
 In Rice v. State, 3 Heisk. 1. e. 220, it was clearly as well as forcibly 
 announced that an ' ' indictment that does not conclude ' against the 
 peace and dignity of the State ' is a nullity. It is a positive injunc- 
 tion of the Constitution itself that such shall be the conclusion of every 
 indictment. It is, therefore, a matter that cannot be affected by legis- 
 lation, and a defect that cannot be ignored by the courts. An indict- 
 ment without these words is not an accusation of crime, and not an 
 indictment in the sense of the Constitution. No conviction upon such 
 an indictment could be permitted to stand, and a prisoner cannot waive 
 his rights in this respect, as it is the imperative mandate of the Consti- 
 tution that all crimes shall be prosecuted by presentment or indictment, 
 and that all indictments shall conclude ' against the peace and dignity 
 of the State.* The conclusion ' against the peace and dignity of the 
 State' cannot be dispensed with." [1 Green's Cr. Rep. 266.] The
 
 SECT. I.] SERRA V. MORTIGA. 917 
 
 same doctrine is emphatically declared in Thompson v. Commonwealth, 
 20 Gratt. 724, and Carney's Case, 4 Gratt. 546. 
 
 In Nichols v. State, 35 Wis. 308, the court, treating the subject of 
 the conclusion prescribed by the Constitution, said: "This fornuila is 
 a mere rhetorical flourish, adding nothing to the substance of the indict- 
 ment, and it is difficult to see why the mandate for its use was inserted 
 in the Constitution. Yet it is there, and must be obeyed. We enforced 
 obedience to it in Williams v. State, 27 Wis. 402. Of course, the ac- 
 cused cannot be possibly prejudiced or in any manner misled by the 
 omission of the formula from an indictment, and the use of it is held 
 necessary for the sole reason that the Constitution ordains that it shall 
 be used." 
 
 In our opinion the conclusion prescribed by the Constitution of this 
 State is not only one of form, but as well one of substance: "sub- 
 stance, because the Constitution requires it ; " and, as was said by Mr. 
 Bishop in the announcement of the rule, "whatever alters the substance, 
 even in what seems unimportant, will render it void." Our conclusion 
 upon this proposition is that the indictment in this cause fails to sub- 
 stantially comply in its conclusion with the terms prescribed by the 
 Constitution, and therefore should be held invalid.^ 
 
 SERRA V. MORTIGA. 
 Supreme Court of the United States. 1907. 
 
 [Reported 204 U. S. 470.] 
 
 White, J. Articles 433 and 434, found in chapter 1 of title IX of 
 the Penal Code of the Philippine Islands, define and punish the crime 
 of adultery. The articles referred to are in the margin. - 
 
 It is conceded at bar that, under the Philippine law, the offence of 
 adultery, as defined by the articles in question, is classed as a private 
 offence, and must be prosecuted, not on information by the public 
 prosecutor, but by complaint on behalf of an injured party. In the 
 
 1 " The bill of rights for the Philippines giving the accused the right to demand the 
 nature and cause of the accusation against him does not fasten forever upon those 
 islands tlie inability of the seventeenth century common law to understand or accept a 
 ])leading that did not exclude every misinterpretation capable of occurring to intelli- 
 gence fired with a desire to pervert." Holmes, J., in Paraiso v. U. S., 207 U. S. 368, 
 372. 
 
 2 Art. 433. Adultery should be punished with the penalty of prisidn correccional 
 in its medium and maximum degrees. 
 
 Adultery is committed by a married woman who lies with a man not her husband 
 and by him who lies with her knowing that she is married, although the marriage be 
 afterwards declared void. 
 
 Art. 434. No penalty shall be imposed for the crime of adultery except upon the 
 complaint of the aggrieved husband. 
 
 The latter can enter a complaint against both guilty parties, if alive, and never, if 
 he has consented to th'i adultery or pardoned either of the culprits.
 
 918 SEERA V. MORTIGA. [cHAP. XV. 
 
 Court of First Instance of Albay, Eighth Judicial District, Philippine 
 Islands, Adriano Mortiga, the defendant in error, as the husband of 
 Maria Obleno, filed a complaint charging her with adultery committed 
 with Vicente Serra, the other plaintiff in error, who was also charged. 
 The complaint is in the margin.^ 
 
 The defendants were arraigned, pleaded not guilty, were tried by 
 the court without a jury and were convicted. The court stated its 
 reasons in a written opinion, analyzing the testimony and pointing out 
 that all the essential ingredients of the crime of adultery, as defined 
 by the articles of the penal code already referred to, were shown to 
 have been committed. The accused were sentenced to pay one-half 
 of the costs and to imprisonment for two years, four months and one 
 day. The record does not disclose that any objection was taken to the 
 sufficiency of the complaint before the trial. Indeed, it does not ap- 
 pear that by objection in any form, directly or indirectly, was any 
 question raised in the trial court concerning the sufficiency of the com- 
 plaint. An appeal was taken to the Supreme Court of the Philippine 
 Islands. In that court error was assigned on the ground, first, that 
 " the complaint is null and void because it lacks the essential requisite 
 provided by law;" and second and third, because it did not appear 
 from the proof that guilt had been established beyond a reasonable 
 doubt. The conviction was affirmed. The assignment of error, which 
 was based on the contention that the conviction was erroneous because 
 the complaint did not sufficiently state the essential ingredients of the 
 
 1 The United States of America, 
 
 Philippine Islands, Eighth Judicial District : 
 
 In tlie Court of First Instance of Albay. 
 
 The United States and Macario Mercades, in Behalf of Adriano Mortiga, 
 
 V. 
 
 Vicente Serra and Maria Obleno. 
 
 The undersigned, a practicing attorney, in behalf of Adriano Mortiga, the husband 
 of Maria Obleno, accuses Vinceute Serra and the said Maria Obleno of the crime of 
 adultery, committed as follows : 
 
 That on or about the year 1899, and up to the present time, the accused, being both 
 married, maliciously, criminally and illegally lived as husband and wife, and continued 
 living together up to the present time, openly and notoriously, from which illegal 
 cohabitation two children are the issue, named Elias and Jose Isabelo, without the 
 consent of the prosecuting witness, and contrary to the statute in such cases made and 
 provided. 
 
 (Signed) Macario Mercades, 
 
 Attorney at Law. 
 (Signed) Adriano Mortiga. 
 
 Albay, February 24, 1904. 
 Sworn and subscribed to before me this 24th day of February, 1904. 
 
 (Signed) F. Samson, Clerk, 
 Witnesses: Adriano Mortiga. 
 Bernardo Mortiga. 
 EuLALio Mortiga. 
 Placido Solano. 
 Casimira Marias.
 
 SECT. I.] SERRA V. MORTIGA. 919 
 
 offence charged, was thus disposed of by the court in its opinion : 
 " The objections to the complaint, based upon an insullicient statement 
 of the facts constituting the offence, cannot be considered here, because 
 they were not presented in the court below. United States v. Sarabia, 
 3 Off. Gaz. No. 29." 
 
 The assignments, based on the insufficiency of the proof to show 
 guilt beyond a reasonable doubt, were disposed of by an analysis of 
 the evidence which the court deemed led to the conclusion that all the 
 statutory elements of the crime were proven beyond a reasonable 
 doubt. An application for a rehearing, styled an exception, was made, 
 in which it was insisted that it was the duty of the court to consider 
 the assignment based on the insufficiency of the complaint, since not 
 to do so would be a denial of due process of law. The rehearing was 
 refused, and the sentence imposed below was increased to three years, 
 six months and twenty-nine days, on the ground that this was the 
 minimum punishment provided for the offence. 
 
 The errors assigned on this writ of error and the propositions urged 
 at bar to support them are confined to the assertion that the refusal of 
 the court below to consider the assignment of error concerning the 
 insufficiency of the complaint amounted, to a conviction of the accused 
 without informing them of the nature and character of the offence with 
 which they were charged, and was besides equivalent to a conviction 
 without due process of law. It is settled that by virtue of the bill of 
 rights enacted by Congress for the Philippine Islands, 32 Stat. 691, 
 692, that guarantees equivalent to the due process and equal protection 
 of the law clause of the Fourteenth Amendment, the twice in jeopardy 
 clause of the Fifth Amendment, and the substantial guarantees of the 
 Sixth Amendment, exclusive of the right to trial by jury, were ex- 
 tended to the Philippine Islands. It is further settled that the guar- 
 antees which Congress has extended to the Philippine Islands are to 
 be interpreted as meaning what the like provisions meant at the time 
 when Congress made them applicable to the Philippine Islands. Kep. 
 ner v. United States, 195 U. S. 100. 
 
 For the purpose, therefore, of passing on the errors assigned we 
 must test the correctness of the action of the court below by substan- 
 tially the same criteria which we would apply to a case arising in the 
 United States and controlled by the bill of rights expressed in the 
 amendments to the Constitution of the United States. ^Turning to the 
 text of the articles of the Philippine penal code upon which the prose- 
 cution was based, it will be seen that an essential ingredient of the 
 crime of adultery, as therein defined, is knowledge on the part of the 
 man charged of the fact that the woman with whom the adultery was 
 _committed was a married woman. Turning to the complaint upon 
 which the prosecution was begun, it will be at once seen that it was 
 deficient, because it did not specify the place where the crime was 
 committed, nor does it expressly state that Vicente Serra, the accused 
 man, knew that Maria Obleno, the woman accused, was at the time of
 
 920 SERRA V. MORTIGA. [CHAP. XV. 
 
 the guilty cohabitation a married woman. It results that there were 
 deficiencies in the complaint which, if raised in any form in the trial 
 court before judgment, would have required the trial court to hold that 
 the complaint was inadequate. But the question for decision is not 
 whether the complaint, which was thus deficient, could have been sus- 
 tained, in view of the Constitutional guarantees, if a challenge as to its 
 sufficiency had been presented in any form to the trial court before 
 final judgment, but whether, when no such challenge was made in the 
 trial court before judgment, a denial of the guarantees of the statutory 
 bill of rights arose from the action of the appellate court in refusing 
 to...entertain an objection to the sufficiency of the complaint because no 
 such ground was urged in the trial court. Thus reducing the case to 
 the real issue enables us to put out of view a number of decisions of 
 this court referred to in the margin,^ as well as many decided cases of 
 state courts referred to in the brief of counsel, because they are irrele- 
 vant, since all the former and, if not all, certainly all of the latter, 
 concern the soundness of objections made in the trial court, by the ac- 
 cused, to the sufficiency of indictments or informations. 
 
 In Ex 2Kirte Parks, 93 U. S. 18, the case was this: The petitioner 
 Parks applied to this court for a writ of habeas corpus. He had been 
 convicted and sentenced for the crime of forgery in a District Court of 
 the United States. The ground relied upon for release was that the 
 indictment stated no offence. The writ was discharged. Speaking 
 through Mr. Justice Bradley, it was said : 
 
 "But the question whether it was not a crime within the statute was 
 one which the District Court was competent to decide. It was before 
 the court and within its jurisdiction, 
 
 " Whether an act charged in an indictment is or is not a crime by 
 the law which the court administers [in this case the statute law of the 
 United States], is a question which has to be met at almost every stage 
 of criminal proceedings ; on motions to quash the indictment, on de- 
 murrers, on motions to arrest judgment, etc. The court may err, but 
 it has jurisdiction of the question. If it errs, there is no remedy, after 
 final judgment, unless a writ of error lies to some superior court, and 
 no such writ lies in this case." 
 
 In United States v. Ball, 163 U. S. 662, an attempt was made to 
 prosecute for the second time one Millard H. Ball, who had been ac- 
 quitted upon a defective indictment, which had been held bad upon the 
 proceedings in error prosecuted by others, who had been convicted and 
 who had been jointly prosecuted with Ball. Reversing the court below, 
 the plea of autrefois acquit., relied on by Ball, was held good. It was 
 pointed out that the acquittal of Ball upon the defective indictment 
 was not void, and, therefore, the acquittal on such an indictment was 
 
 1 United States v. Cook, 17 "Wall. 168, 174; United States v. Carll, 105 U. S. 611 ; 
 Dunbar v. United States, 156 U. S. 185; Cochran & Sayres v. United States, 157 
 U. S. 286; Markham v. United States, 160 U. S. 319.
 
 SECT. II.] STATEMENT OF THE CRIME. 921 
 
 a bar. This case was approvingly cited in Kepner v. United States, 
 195 U. S. 100, 129. It being then settled that the conviction on a de- 
 fective indictment is not void, but presents a mere question of error to 
 be reviewed according to law, the proposition to be decided is this: 
 Did the court below err in holding that it would not consider whether 
 the trial court erred because it had not decided the complaint to be 
 bad, when no question concerning its sufficiency was either directly or 
 mclTrectly made in that court ? Thus to understand the proposition is 
 to refute it. For it cannot be that the court below was wrong in re- 
 fusing to consider whether the trial court erred in a matter which that 
 court was not called upon to consider and did not decide. Undoubt- 
 edly, if a judgment of acquittal had resulted it would have barred a 
 further prosecution, despite the defective indictment. Kepner v. United 
 States, supra. 
 
 But it is said the peculiar powers of the Supreme Court in the Phil- 
 ippine Islands take this case out of the general rule, since in that court 
 on appeal a trial de novo is had even in a criminal case. But as pointed 
 out in the Kepner case, whilst that court on appeal has power to re- 
 examine the law and facts, it does so on the record and does not retry 
 in the fullest sense. Indeed, when the power of the court below to 
 review the facts is considered that power, instead of sustaining, refutes 
 the proposition relied on. Thus the proposition is that the court should 
 have reversed the conviction because of the contention as to the in- 
 sufficiency of the complaint, when no such question had been raised 
 before final judgment in the trial court, and when, as a necessary con- 
 sequence of the facts found by the court, the testimony offered at the 
 trial without objection or question in any form established every essen- 
 tial ingredient of the crime. In other words, the contention is that 
 reversal should have been ordered for an error not committed and 
 when the existence of injury was impossible to be conceived, in view 
 of the opinion which the court formed on the facts in the exercise of 
 the authority vested in it on that subject. Affirmed. 
 
 Mr. Justice Harlan dissents. 
 
 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- 
 ously broken prison, without shewing the cause of his imprisonment, 
 (fee. , by which it may appear that it was of such a nature that the break- 
 ing might amount to felony, is insufficient. . . . Also it seems that
 
 922 REX V. LEDOINHAM. [CHAP. XV. 
 
 an iudictment of perjury, 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 offences, particularly and 
 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 defend- 
 ant 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 Rolle'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, action sur le 
 stati/t, 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 sur le statute 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 h)^ is 
 a common misfeasor is not good, because it is too general. 22 Ass. 73. 
 So an indictment that he is communis pads Domini Regis perturhator, 
 ac diversas lites & discordias tatn inter vicinos suos quam inter diversos 
 ligeos & subditos domini Regis apud W. in comitatu predicto injuste 
 excitavit moverit <& procuravit, in magnum dispendium & perturba- 
 tionem vicinorum suorum predictorum & aliorum subditorum domini 
 Regis in comitatu predicto is not good, because too general. M. 6 Car. 
 B. E.. 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, in 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 
 coinmunis 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-
 
 SECT. II.] COMMONWEALTH V. NEWBURY BRIDGE. 923 
 
 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. lOG, 7 
 he shall be punished by grievous amercements ; and where the statute 
 takes care for due punishment, that method must be observed. 
 
 Secondly, As to the matter itself, they 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. 
 
 Thirdly, As to the communis oppressor et perturbator pacis^ they 
 are so general, that no indictment will lie upon them ; as in Cornwall's 
 case, Jones, 302, which indeed goeth to both the last points. 
 
 TwisDEN, J. Communis oppressor, &c., is not good: such general 
 words will never make good an indictment, save only in that known 
 case of a barrator; for '•'■communis barrectator" 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 knavery. 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. NEWBURY BRIDGE. 
 Supreme Judicial Court op 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 
 by the name of The Proprietors of the Newbury port Bridge, and that 
 by 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 January, 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 
 any pier at the said draw, by means whereof all vessels and river craft, 
 having masts higher than will readily pass under the said draw, are ob- 
 structed, hindered, and altogether prevented from passing said bridge, 
 to the common nuisance," &c. 
 
 At the trial, liefore 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 they 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.
 
 t 
 
 924 COMMONWEALTH V. BEAN. [CHAP. XV. 
 
 The defendants also moved in arrest of judgment, because it is not 
 alleged in the indictment that any bridge had been built. 
 
 Per Cdriam. The answer to the first objection is that the defend- 
 ants 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 may 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 op Massachusetts. 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, «fec." 
 
 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. 
 ~^etcalf, 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 
 is part of a building. And it is argued by him, that the words used in 
 the indictment, being the same as those in the statute, must be held to 
 Aave the same meaning. But this does not necessarily follow. The 
 ineaning of words in a statute may be, and not unfrequently 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 thecourt
 
 SECT. II.] STATE V. EUSSELL. 925 
 
 jn^ ascertaining the offence with which the defendant is charged, cannot 
 look beyond tlie words of the indictment itself. If those words do not 
 sufficiently 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 r. 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 e^idenced 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 v. 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 
 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. Whar- 
 ton's Crim. Plead. & Prac. § 155; Commonwealth v. Davis, 11 Pick. 
 432 ; Commonwealth v. Pray, 13 Pick. 359 ; Commonwealth v. Wood, 
 4 Gray, 11. ^xceptmis overruled. 
 
 ^ 
 
 7 

 
 926 REX V. . [CHAP. XV. 
 
 SECTION III. 
 
 Particular Allegations. 
 
 (a) Name. 
 
 REX V. . 
 
 Old Bailey. 1822. 
 
 [Reported Russ. ^ 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 his name 
 before the magistrate, and the prosecutors, not being able to discover 
 his name, indicted him as a man whose name was unknown to the 
 jurors. When called to the bar, the indictment was read to him, and he 
 then refused to plead, and was remanded. At the following 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 reply ; 
 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 guilty; and being told that 
 he must plead by some name, he refused to give in any name. The 
 learned Recorder was of opinion that his plea could not be received 
 without a name, and the prisoner was again remanded for want of a 
 plea. At the following sessions he was again called on to plead, and 
 again pleaded not guilty; but refused to put in that plea by any name. 
 He was again told that the court could not receive his plea unless he 
 would plead by some name; and, as he persevered in his refusal, he 
 was again remanded. 
 
 As this case appeared to be without precedent, and might materially 
 affect the administration of justice, the learned Recorder requested the 
 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 ; 
 ^condly, 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.
 
 SECT. III.] EEGINA V. WILSON. 927 
 
 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. 
 
 PoLLOCKj C. B., held the misnomer 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 
 of money, which said warrant and order for payment of money is as 
 follows ; that is to say, — 
 
 "No. Liverpool, Decembers, 1847. 
 
 " To the cashiers of the Liverpool Borough Bank: 
 
 " Pay or bearer two hundred and fifty pounds. 
 
 "£250 0,s-. 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 
 McNicole and Co., and the signature to the cheque proved, John Mc- 
 Nicoll, 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 
 
 1 Part of the case, not involving the question of misnomer, is omitted.
 
 928 COMMONWEALTH V. PERKINS. [CHAP. XV. 
 
 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. B. Brett, for the prisoner. — Upon the point of variance the law 
 is clear ; and the only question is, whether the court can say that the 
 two names are so identical in sound that no person could be misled. 
 
 Conviction affirmed. 
 
 REGINA V. DAVIS. 
 Crown Case Reserved. 1851. 
 
 {Reported 5 Cox C. C. 237.] 
 
 This case was reserved by 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 sonantia, but requested the opinion of the judges 
 upon the correctness of that ruling. When this case came on to be 
 heard, on the 8th February, before Jervis, C. J., Alderson, B., Williams, 
 J., Piatt, B., and Martin, B., the court intimated that it was a question 
 for the jury, and directed the case to be sent back, in order that it 
 might be stated whether the question had been left to the jury. The 
 case was now returned, with a statement that the question of variance 
 was not left to the jury. 
 
 Lord Campbell, 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
 
 SECT. III.] STATE V. LIBBY. 929 
 
 is no part of the name. This is true, but another objection to the in- 
 dictment is, that the defendant is called Thomas instead of Thomas 
 Hopkins. In 5 D. & E. 195, a person was sued by the Christian name 
 James Richard instead of Richard James, and it was held a misnomer 
 on account of the transposition. The indictment must give the defend- 
 ant his right Christian name. Defendant discharged. 
 
 STATE V. LIBBY. 
 
 Supreme Judicial Court of Maine. 1907. 
 
 [Reported 103 Me. 147.] 
 
 Spear, J. Numbers 264-265-266-279 and 280, all against the above 
 named respondent, come from the Superior Court for Kennebec County, 
 September term, 1905, on exceptions. 
 
 These are all indictments found against C. H. Libby for a violation 
 of the law against the sale of intoxicating liquors. The respondent 
 seasonably filed a plea in abatement in proper form and averred that 
 his name was Cyrille H. Libby and not C. H. Libby, as in the indict- 
 ment alleged. The State by the County Attorney filed a replication 
 that " The said Cyrille H. Libby who appears to said indictment, is the 
 same person against whom said indictment was presented, and is, and 
 at the time of finding said indictment was, called and known as well by 
 the name of C. H. Libby, as by the name of Cyrille H. Libby ; and this 
 he prays may be inquired of by the country." To this replication the 
 defendant demurred and the County Attorney for the State joined the 
 demurrer. The demurrer was overruled and the replication adjudged 
 good. The demurrer admitted all the facts stated in the replication. 
 The only question therefore presented by the exceptions is, if a person 
 is as well known by the initials C. H. as by the name Cyrille IL, can 
 he be properly indicted in the name of the initials? 
 
 In Robbins v. Swift, 86 Maine, 197, it was held : " Letters of the 
 alphabet, consonants as well as vowels, maybe names sufficient to dis- 
 tinguish different persons of the same surname." If, therefore, the 
 letters of the alphabet or initials may be used to distinguish different 
 persons of the same surname, and the respondent admits that he is as 
 well known by the lettjprs of the alphabet or the initials as by his full 
 Christian name, we can discover no logical reason why the indictment 
 is not sufficient. Certainty is the object aimed at in requiring the inser- 
 tion of correct names in an indictment, and we know of no way in which 
 greater certainty could be attained than by the admissions of the re- 
 spondent, himself, as disclosed by the pleadings in this case. 
 
 Exceptions overruled.
 
 930 REX V. NAPPEK. [chap. XV. 
 
 i 
 
 SECTION III. {continued), 
 (b) Time and Place. 
 
 , SIR HENRY VANE'S CASE. 
 
 Kikg's Bench. 1663. 
 
 [Repo7-ted 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 kingly government of this nation; 
 and the overt acts which were laid were, that he with divers otlier 
 Unknown persons did meet and consult of the means to destroy the 
 king and government ; and did take upon him the government of the 
 forces of this nation by 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 very 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 
 king's coming in. It was resolved that the day laid in the indictment 
 is not material, and the jury are not bound to find him guilty that day, - 
 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. PI. 
 Coron, 230. And accordingly in this case the jury found Sir H. Vane 
 guilty of the treason in the indictment the 30th of January, 1 Car. 2, 
 which was from the very 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 Bayley, at 
 the Summer Assizes for Lancaster in the year 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. 
 
 The indictment stated that the prisoner, on the 6th August, 5 Geo. 
 4, at Liverpool, in the county aforesaid, one coat, value forty shillings, 
 
 ^ Part of the case, not involving the allegation of time, is omitted.
 
 SECT. III.] STATE V. SEXTON. 931 
 
 &c. , of the goods and chattels of Daniel Jackson^ in the dwelling- 
 house of William TJiomas, 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 William Thomas, 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 sutliciently that the house was 
 situate at Liverpool, and that the conviction was therefore proper. 
 
 STATE V. SEXTON. ^ '> 
 
 Supreme Court of North Carolina. 1^24. 
 
 \. 
 
 [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 after 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 guilty, 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 day and year, but 
 it is unnecessary to prove, in any case, the precise day 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 aflSrmed. 
 
 f 
 
 / 
 
 (/ ' P
 
 ^ 
 
 932 - COMMONWEALTH V. TOLLIVER. [CHAP. XV. 
 
 1- 
 
 STATE V. SMITH. 
 Delaware. 185-. 
 [Reported 5 Harr. 490.] 
 
 The defendant was indicted and convicted for disturbing a religious 
 Society of Methodists in Mispillion 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 cer- 
 tainly inform the defendant lohat meeting he was charged with disturb- 
 ing. (Muss. Or. 837, 7i.) 
 
 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 of 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, not- 
 withstanding the defendant's objection that this was a variance. The 
 defendant, 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 
 precisely 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 county. All that is neces- 
 sary to be shown is that the offence was committed at any place within 
 the county. 2 Hawk. c. 25, § 84 ; 2 Russell on Crimes (7th Amer. 
 ed.) 799 ; 1 Archb. Crim. PI. (5th Amer. ed.) 99. It was no objection 
 therefore to the competency of the evidence offered, that it tended to 
 prove an assault committed in Chelsea, while the indictment alleged the
 
 SECT. III.] COMMONWEALTH V. TRAVERSE. 933 
 
 same to have been committed at Boston, both places being within the 
 count}' 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. 1865. 
 
 [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- 
 trust attorney oflTered no evidence of sales on the 3d of April, 1865, 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 guilty, and alleged exceptions. 
 
 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, and 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 
 aTcertain day named, and on divers days and times between that day 
 and^ome 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 sufficiently 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 
 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. Elwell, 1 Gray, 462 ; Commonwealth 
 V. Gardner, 7 Gray, 494 ; Commonwealth v. Sullivan, 5 Allen, 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
 
 934 STATE V. BEATON. [CHAP. XV. 
 
 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 
 currency, the property of B. H. Denson. The indictment was quashed 
 on his motion, and the district attorney appealed on behalf of the 
 State. 
 
 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 by the statute of 
 limitations. The other is indispensable, that the court may know 
 whether it has jurisdiction of the cause. For these defects it was 
 rightfully quashed. The judgment is affirmed. Affirmed. 
 
 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 
 demurrer 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. 
 
 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
 
 SECT. III.] STATE V. DODGE. 935 
 
 andjiear^on which the supposed ofifence was committed. In this par- 
 ticular, the complaint iu 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, aud 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 ; State v. 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 day, as well as the month 
 and year on which the supposed offence was committed." State v. 
 Beaton, 79 Maine, 314. 
 
 An act, prohibited by statute on certain particular days only, 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 day 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. Turnbull, 78 Maine, 392. 
 
 The statute prohibits the maintaining of closed weirs in certain inland 
 waters on Saturdays and Sundays between April 1st and July 15th. 
 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 
 regajded 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 they 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 Sunday 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. 
 
 Exceptions sustained. 
 
 1 The opinion only is given ; it sufficiently states the case.
 
 936 EEGINA V. MANSFIELD. [CHAP. XV, 
 
 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 re- 
 moved by certiorari, and came on to be tried at Nisi Prius. There were 
 two other indictments against the same prisoner, the one for stealing 
 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. ^ 
 
 Upon the close of the case for the prosecution, Ludloiv, Serjt., for 
 the prisoner, submitted that the tin was misdescribed. 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 Rex v. Stott, 2 Ea. P. C. 752, it would seem that it was erro- 
 neous to charge the prisoner with stealing so many pounds' weight of 
 iron, where it appeared that the articles stolen were actually manufac- 
 tured. 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. 
 
 TaJfourd, 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 manufactured ; it 
 is in the course of manufacture, not manufactured. Although 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 party could not plead autrefois acquit, it is 
 the same question : for if the description is sufficient here, it would be 
 sufficient if autrefois acqxdt were pleaded. It is idem per idem. 
 
 1 Part of the case, not relating to the question df pleading, is omitted. 
 
 </-
 
 SECT. III.] STATE V. NOBLE. 937 
 
 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. Secondly, 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 easy 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 many 
 pounds of wool, because it has ceased to be wool, and nobody could 
 understand that yoa were speaking of cloth. It would be wrong to say 
 so many ounces of gold, if a man stole so many 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. 
 
 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 w^*-^^ « 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 by 
 him, with the intention fraudulently and wilfully to convert it to his 
 own use, and that the same log was the property of said Brown, Mc-
 
 938 HASKINS V. THE PEOPLE. [CHAP. XV. 
 
 Intire, and Welch, then they would find Noble guilty on the first count. 
 Noble excepted to this instruction.^ 
 
 Weston, C. J. It may 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. & Aid. 360, Abbott, C. J., says, " There is one exception how- 
 ever to this rule, which is, where the allegation contains matter of de- 
 scription. Then if the proof given be different 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 offence of larceny, 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 description. It would not be easy to 
 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 convicted of taking an oak or a 
 birch log. The offence would be the same ; but the charge to which 
 the party was 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 by 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 different one from that 
 charged in the indictment; and the defendant could be legally called 
 upon to answer only for taking the log there described. In our judg- 
 ment, therefore, the jury were erroneously instructed that the marks 
 might be rejected as surplusage ; and the exceptions are accordingly 
 sustained. 
 
 HASKINS V. THE PEOPLE. 
 CoL'RT OF Appeals of New York. 1857. 
 
 {Reported 1 6 N. Y. 344.] 
 
 Writ of error to review a judgment of the Supreme Court, aflfirm- 
 ing, on error to that court, a judgment of the Oyer and Terminer of 
 Onondaga County. 
 
 The prisoner was indicted, with four other persons, for grand larceny, 
 
 1 Arguments of counsel are omitted.
 
 SECT. III.] HASKINS V. THE PEOPLE. 939 
 
 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 
 ba~nFnotes, of the Stonlngton Bank, current money of the State of New 
 Ytjrri, 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 plaintiff 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, rejnote from the apartment in which 
 he slept, was forced open during the night of the 27th of October, 1855, 
 and the contents, about $fiOO in money and some papers, were taken 
 away. Shaw swore that there were among the money at least two fifty- 
 dollar 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. The witness described the different kinds 
 of money as well as he was able.^ 
 
 Denio, C. J. The indictment was suflScient. 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 Deuio, 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 would frequently, and perhaps generally, happen 
 that the 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. 
 
 1 Part of the case, not relatiug to the question of pleading, is omitted.
 
 040 COMMONWEALTH V. STONE. [CHAP. XV. 
 
 COMMONWEALTH v. STONE. 
 Supreme Judicial Court of Massachusetts. 1890. 
 
 [Reported 152 Mass. 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- 
 fied in the Probate Court her residence was in Brookline in the State 
 of New Hampshire, and has been there since. The judge declined to 
 rule, as requested by the defendant, that " there is a variance between 
 the evidence and the allegations of the indictment in this, that the 
 indictment alleges perjury by Laura A. Fairbanks of Worcester, in the 
 county of Worcester in the Commonwealth of Massachusetts, and 
 the evidence tends to prove perjury only by Laura A. Fairbanks, of 
 Brookline, New Hampshire." 
 
 The jury returned a verdict of guilty; and the defendant alleged 
 exceptions. 
 
 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 Supe- 
 rior Court, it was admitted, was the same person who had testified in 
 the Probate Court where the perjury 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 Worcester" 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 necessarily mentioned in an 
 indictment 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 by the one name as well as the 
 other, as the correct description of such person is necessary to identify 
 the offence. Commonwealth v. Shearman, 11 Cush. 546; Common- 
 wealths. Pope, 12 Cush. 272; Commonwealth v. McAvoy, 16 Gray, 
 235. Where a person or thing necessary to be mentioned in an indict- 
 ment is described with unnecessary particularity, the circumstances of
 
 SECT. IV.] CASTKO V. THE QUEEN. 941 
 
 the description are to be proved, as they are made essential to its iden- 
 tity. 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 iu the proof of its color is fatal. 1 Greenl. Ev. § 65 ; 
 3 Stark. Ev. (4th Am. ed.) 1530 ;. Commonwealth v. Wellington,? 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 charged 
 with suborning was essential to this identity. While it was not neces- 
 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. Walters 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, § 16, 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, also, 
 which prescribe or rather modify the common law form of the indi(5t- 
 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 
 testimony has been alleged to be suborned than that which has hereto- 
 fore been permitted. Exceptions 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. 4.90.
 
 942 CASTRO V. THE QUEEN. [CHAP. XV. 
 
 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 May, 
 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 
 a witness for himself and was duly sworn, and gave answers in several 
 matters (which were particularly set forth), and that the appellant on 
 his oath falsely answered in these matters, and so committed the offence 
 of perjury against the peace of our lady the Queen, her crown and 
 dignity. 
 
 The second count charged that, on the 7th of April, 1868, a suit had 
 been instituted in Chancery, in which the appellant was the plaintiff, 
 and the Hon. Teresa Tichborne, 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, 1868, 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, &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, in 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, &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, Her 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.
 
 SECT. IV.] CASTRO V. THE QUEEN. 943 
 
 Lord Blackburn.^ My Lords, notwithstanding the very 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 totally 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. Many 
 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 bur- 
 glaries, 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 bira 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, "amf therefore felony and misdemeanor could not be tried 
 together ; but any number of felonies and any number of misdemeanors 
 might.2 The contrary was asserted by the learned counsel, but, though 
 
 1 The 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 be no conviction for a misdemeanor upon an indictment for 
 a felony, even where the allegations of the indictment include such misdemeanor. The 
 reason for 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 ah, 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 be joined in the same 
 indictment, still the rule in this and most of the States is otherwise. It is always and
 
 944 CASTRO V. THE QUEEN. [CHAP. XV. 
 
 repeatedly challenged to do so, he did not cite any authority in support 
 of his contention. There was no legal objection to doing this; it was 
 frequently 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 him of several things was supposed to tend to 
 increase the probability of his being found guilty, as it amounted to 
 giving evidence of bad character against him. Whenever it would be 
 unfair to a man to bring him to trial for several things at once, an appli- 
 cation might be made to the discretion of the presiding judge to say, 
 " Try me only for one offence, or, try me only for two offences ; if one 
 was the real thing let me be tried for one and one only," and wherever 
 it was right that that should be done the judge would permit it. For 
 these mixed motives it was well established by a long series of decisions 
 (I confess I doubt whether they were right at first, but certainly they 
 have been both well established now and sanctioned by statute — that 
 is quite clear) that where the several charges were of the nature of 
 felony, the joining of two felonies in one count was so, necessarily, I 
 may say, unfair to the prisoner that the judge ought, upon an applica- 
 tion being made to him, to put the prosecutor to his election and send 
 them to two trials. Jjuifivex was decided, even in felony, that, if that 
 application for the election was not made, the joining of several fel- 
 onies, that is to say, the taking several felonies which had been found 
 together, and trying those several felonies before one petty jury, was 
 wrong in point of law ; on the contrary, it was repeatedly held that it 
 was right enough, although, if the proper application had been made at 
 the proper time, in a case of felony, the party prosecuting would have 
 been put to his election or made to take one felony only, and not both 
 at the same time. But in cases of misdemeanor it was by no means a 
 matter of course that that should be done. I think that if the judge, 
 upon an application made to him, had been satisfied that to try the man 
 for several misdemeanors together would work injustice to the prisoner, 
 he had a perfect right to say, " I will not work this injustice by trying 
 them together, let us diminish them in number and try a reasonable 
 number and no more." I do not know whether that was ever done 
 in a case of misdemeanor, but I feel very little doubt that it may have 
 been. 
 
 I think that in such a case as the American case, Tweed v. Lis- 
 comb, 15 Sickel's New York Ap. Cas. 559, which was cited, where a 
 man was called upon to answer before one jury at one time for two 
 
 everywhere permissible for the pleader to set forth the offence he seeks to prosecute, 
 in all the various ways necessary to meet the possible phases of evidence that may 
 appear at the trial. If the counts cover the same transaction, though involving 
 offences of different grades, the court has it in its power to preserve all rights of 
 defence intact.' See also Sterick v. Commonwealth, 78 Pa. St. 460; Hunter v. Com- 
 monwealth, 79 id. 503 ; Hutchinson v. Commonwealth, 82 id. 472 ; Hawker v. The 
 People, 75 N. Y. 487; Crosby v. Commonwealth, 11 Mete. 575; State v. Hood, 51 Me. 
 363; Commonwealth v. McLaughlin, 12 Cush. 612; State v. Lincoln, 49 N. H. 464." 
 Baker, J., in Herman v. The People, 131 111. 594, 598. — Ed.
 
 SECT, IV.] CASTRO V. THE QUEEN. 945 
 
 hundred offences, the man might not unreasonably have said, " That 
 is too much to put a man upon his trial for ; select five or six, try me 
 on those, let the rest stand over." I do not see that that would be at 
 all an unreasonable application. And in the present case, if an appli- 
 cation had been made to the Court of Queen's Bench to put the party to 
 his election, and if it had been said " I cannot be fairly tried for one 
 offence of perjury committed in Middlesex, if at the same time I am to 
 _be tried for another perjury committed in London, therefore there must 
 _J)e two separate trials;" if such an application had been made the 
 judges of the Queen's Bench would doubtless have said, "We will listen 
 tq_ the arguments that may be urged in its favor. What they could 
 possibly have been I do not know, but no such application was made. 
 The prisoner was tried upon the two counts before one petty jury. They 
 were taken both together, and then the result was that he was found 
 guilty upon both. 
 
 Something was attempted to be argued upon the wording here, namely, 
 that he was found " guilty of the premises " in both counts, to the effect 
 that that did not mean the premises charged in each of the counts, but 
 meant only (if I understand the argument rightly) such premises as 
 were charged not only in the one but also in the other. In the first 
 place, that is not the meaning of the words; and, secondly, it would 
 be utterly absurd, because the one count related to things which happened 
 in Middlesex, and the other related entirely to things which happened 
 in London three years before ; therefore there could be nothing identi- 
 cal in the two. 
 
 But he was found guilty, and then came the question what was to be 
 the sentence. It is clear that if the court had pleased to grant an ap- 
 plication these two counts might have been tried, the one in London 
 before a London jury, and the other in Middlesex before a Middlesex 
 jury; but for the act relating to the Central Criminal Court, which 
 gives that court jurisdiction over both Loudon and Middlesex, they 
 must have been so tried. But even now they might have been so tried, 
 and if they had been so tried, and if each jury had found a verdict of 
 guilty on the counts brought before it separately, Rex v. Wilkes, 4 Burr. 
 2527; 19 How. St. Tr. 1075 ; 4 Bro. P. C. 360, would have been abso- 
 lutely in point as to the sentence. There would not have been a pretext 
 for saying there was the least difference. 
 
 But then it is put in the argument in this way, that when they are 
 both tried before one jury, and when the prosecutor has not been put 
 to his election, but the trial for both offences has taken place together, 
 the consequence must be that the prisoner is not to be punished in the 
 same way as he would have been if he had been tried for each before 
 two separate judges, and he is therefore entitled to get off with less 
 punishment. Why? I am sure I cannot conceive, nor can I see that 
 any authority has been cited for that, at any rate in the English law, 
 nor does it proceed on any reason. In regard to the American case, 
 The People ex rel. Tweed v. Liscomb, 15 Sickel's New York Ap. Cas.
 
 946 CASTRO V. THE QUEEN. [CHAP. XV. 
 
 559, which was cited, it might be enough to say that I observe that 
 the American case proceeds upon the express gi'ound that the court 
 was acting upon New York decisions, subsequent to the Declaration 
 of Independence, and upon New York statutes, and not upon English 
 rules or English law. I dare say that decision may be right accord- 
 ing to those New York decisions and statutes, but the decision does 
 not apply here. They say that according to their view of the New York 
 statutes and the New York decisions, where there is but one trial before 
 one jury, it must be for one offence, and for one offence only, and upon 
 that they all rest. They, logically enough, say, if that is granted where 
 there are sentences passed for more than one offence, all but one must 
 be ultra vires ; accordingly they held that the power of passing a sen- 
 tence was exhausted hy the first sentence. I leave it to the American 
 judges to say whether that was right or not according to American law. 
 I do not pretend to express an opinion on that, but I am quite clear 
 that it is not English law. I think the English decisions are all the 
 other way, and the reason of the case is, to my mind, quite clearly the 
 other way. 
 
 Now I will mention but one or two cases which prove it. I will not 
 quote them at length. The first is Young v. The King, 3 T. R. 98, 
 where the law is laid down in the way I have stated, that it is not a 
 matter of right and law that they shall not be tried together, but only 
 a matter of election. Then comes Rex v. Jones, 2 Camp. 131, where 
 Lord Ellenborough both laid down the law as I have stated it, and 
 acted upon it. Then Rex v. Kingston, 8 East, 41, where Lord Ellen- 
 borough again repeats the doctrine ; and lastly, Rex v. Robinson, 1 
 Moo. C. C. 413, which has been already cited, where it was said that 
 the doctrine of Rex v. Wilkes, 4 Burr. 2527 ; 19 How. St. Tr. 1075 ; 
 4 Bro. P. C. 360, ought to have been applied to a case where there were 
 two misdemeanors in separate counts tried together before one jury. 
 My Lords, taking all those cases together, I myself can feel no doubt 
 at all that, by the English law, and going by that alone, there is not a 
 pretence for this writ of error. 
 
 Judgment apjiealed from affirmed, and appeal dismissed.^ 
 
 1 " I have examined with some care the cases in the courts of this State and o£ 
 England to which we have been referred, or which have come under my observation, 
 and I find no authority for hokling tliat the common law, as it existed in England iu 
 April, 1 775, or as it exists and is administered in this State at this time, permits cumu- 
 lative sentences to be imposed upon conviction for several distinct misdemeanors, 
 charged iu different counts in a single indictment, in the aggregate exceeding the 
 punishment prescribed by law as the extreme limit of punishment for a single mis- 
 demeanor. I do not regret this. A proper administration of the criminal law, as 
 well in the public interest as for the protection of tliose accused of crime, requires a 
 different rule. The power of the court was exhausted by one sentence to imprison- 
 ment for one year, and the payment of a fine of $250 ; or if several judgments can be 
 pronounced by a sentence, the same in the aggregate, distributing such punishment 
 and apportioning it. to the convictions upon the several counts, according to the de- 
 merits of the offences charged in each ; each and every of the judgments and sentences, 
 in excess of that limit, was coram nonjudice. A judgment in the form and to the
 
 SECT. IV.] COMMONWEALTH V. TUCK. 947 
 
 COMMONWEALTH v. TUCK. 
 Supreme Judicial Court of Massachusetts. 1838. 
 
 [Reported 20 Pick. 356.] 
 
 Morton, J.,^ delivered the opinion of the court. Several objections 
 have been made against the indictment and urged with ingenuity 
 and force. Although they may be inconsistent with each other, yet 
 their inconsistency is no fatal infirmity, and if either of them is well 
 founded and incurable, it must prevail. Some of them deserve serious 
 consideration. 
 
 The first objection is duplicity. It is argued that the indictment in 
 one count charges two distinct substantive offences, shop-breaking and 
 larceny. This objection assumes that both crimes are well charged. 
 Two questions arise upon this point: is the indictment double? and 
 if so, is the objection seasonably taken ? 
 
 The general rule, unquestionably, is that two or more crimes cannot 
 be. joined in the same count of an indictment. Archb. Crim. PI. 25. 
 This rule, which is not only convenient in practice, but essential to the 
 rights of the accused and important to the due administration of crimi- 
 nal law, should not be disregarded. But it has exceptions. Where 
 two crimes are of the same nature and necessarily so connected that 
 they niati^jajid when both are committed must constitute but one legal 
 offence, they should be included in one charge. Familiar examples of 
 these are, assault and battery, and burglary. An indictment for the 
 latter is similar to the one before us. 1 Stark. Crim. PI. (2d ed.) 39. 
 An assault and battery is really but one crime. The latter includes the 
 former. A person may be convicted of the former and acquitted of the 
 latter, but not I'ice versa. They must therefore be charged as one 
 offence. Bui. N. P. 15. So in burglary, where the indictment charges 
 a breaking and entry with an intent to steal and an actual stealing 
 (which is the common form), the jury may acquit of the burglary and 
 convict of the larceny, but cannot convict of the burglary and larceny 
 as two distinct offences. The latter is merged in the former, and they 
 constitute but one offence. Rex v. Withal, 1 Leach, 102, 
 
 It is difficult to distinguish the case at bar from burglary. An in- 
 
 extent allowed by law once pronounced, the power of the court hecame functus officio 
 in respect to that prosecution and the indictment, except to see that the judgment was 
 executed. There was uo longer any record of verdict upon which the court could act- 
 The jurisdiction over the person of the condemned was exhausted, and as if no prose" 
 cution had ever been instituted against him. The purposes of the prosecution and of 
 the indictment had been accomplished if the punishment for the offence is fixed by 
 Statute, a judgment in excess of the statutory limit is void for the excess, as we have 
 seen by adjudged cases." — Allen, J., in People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 
 590. 
 
 1 The opinion alone is given, and part of it, not relating to the question of pleading, 
 ..s omitted
 
 \ 
 
 948 COMMONWEALTH V. FITCHBURn RAILROAD. [CHAP. XV. 
 
 flictmeut setting forth that the defendant broke and entered the shop 
 with intent to steal, would be good. Can the addition of the fact that 
 he did steal, which is the best evidence of his intention, vitiate the in- 
 dictment? We cannot perceive that it does. It is true the main 
 charge might be established without proof of the larceny, and the lar- 
 ceny might be established without proof of the breaking and entry; 
 but wherein does this differ from burglary? The principles governing 
 both seem to be the same. 
 
 But even if duplicity existed in this indictment, it may well be 
 doubted whether the objection does not come too late. In civil actions 
 duplicity is cured by general demurrer or by pleading over. Archb. 
 PI. and Ev. 96. And in criminal cases it is extremely doubtful whether 
 it can be taken advantage of in arrest or error. Archb. Crim. PL 21. 
 See Commonwealth v. Eaton, 15 Pick. 273. Indeed, we think the 
 better opinion is, that it cannot. 
 
 It is true that the statute of jeofails does not extend to criminal 
 prosecutions. A defective indictment cannot be cured by verdict. If 
 the crime be not correctly described, no judgment can be rendered 
 either upon verdict or plea of guilty. 2 Hale's P. C. 193 ; Common- 
 wealth V. Morse, 2 Mass. R. 130; Commonwealth v. Hearsey, 1 Mass. 
 
 R. 137. 
 
 But the objection now under consideration is totally different. It is 
 not that the offence is defectively set forth, but that more than one 
 offence is sufficiently set forth in the same indictment. The only argu- 
 ment which lies against the latter is, that it subjects the defendant to 
 inconvenience and danger by requiring him to prepare himself to meet 
 several charges at the same time. The appropriate remedy would be a 
 motion to the court to quash the indictment, or to confine the prose- 
 cutor to some one of the charges. Archb. Crim. PL 3. 
 
 COMMONWEALTH v. FITCHBURG RAILROAD. 
 
 Supreme Judicial Court op Massachusetts. 1876. 
 
 [Reported 120 Mass. 372.] 
 
 Lord, J.^ The indictment in this case contained five counts, and as 
 appears by the bill of exceptions, all for the same offence although it 
 is not alleged, as sometimes it is, that the various counts are different 
 modes of charging the same offence. It has long been the practice in 
 this Commonwealth to charge several misdemeanors in different counts 
 of the same indictment, and to enter verdicts and judgments upon the 
 several counts, in the same manner and with the same effect as if a 
 separate indictment had been returned upon each charge. It has also 
 
 1 The opinion alone is given, and part of it, not relating to the question of pleading, 
 is omitted.
 
 SECT. IV.] COMMONWEALTH V. FITCHBURG RAILROAD. 94^ 
 
 been long established that the same offence may be charged, as com- 
 mitted by different means or in different modes, in various distinct 
 counts of an indictment, and that a general verdict of guilty upon such 
 indictment and judgment thereon is a conviction of but a single offence, 
 and is deemed to be upon that count of the indictment to which the 
 evidence is applicable. 
 
 The first count charges generally a killing of the person named 
 therein within the city of Somerville, by reason of the gross negligence j <~j 
 of the servants of the defendant in the management of a locomotive 
 engine then in charge of said servants. 
 
 The second count charges the killing to have been by collision at the 
 crossing at grade of a highway in Somerville, by reason of the same \ 
 
 negligence. \ ! 
 
 The third count charges that the death was caused, either by the j i 
 
 defendant's own neglect or the neglect of its servants, by collision at ' 
 the crossing at grade of a town way in Somerville, and that it was by / ^ 
 
 reason of neglect of the servants and agents in charge to ring the bell / / 
 
 or sound the whistle upon approaching said crossing as required by 
 law. 
 
 It is not necessary to refer to the other counts, as there was a verdict 
 of not guilty upon them. 
 
 The jury returned a verdict of guilty upon each of the first three 
 counts. The court are all of opinion that this must be deemed to havQ^-^- 
 been a mistrial. But one offence was charged, and the jury should 
 have been instructed to return a general verdict of guilty or not guilty 
 upon the whole indictment as for a single offence, which would have 
 been in conformity with the long and well established practice in this 
 Commonwealth ; or they should have been instructed to return a verdict 
 of guilty upon the count proved, if either was proved, and not guilty 
 ^U£on all the others. As the record now stands, the defendant corpora- 
 tion was charged with five distinct misdemeanors, of three of which it 
 was found guilty, and of two of which it was found not guilty. The 
 bill of exceptions, however, shows that but one offence was committed, 
 and it is suggested that a nolle prosequi may be entered as to two of 
 the counts, and judgment upon the other. It is obvious that inasmuch 
 as the several counts may be supported by different evidence, and as 
 they are, at least to some extent, inconsistent with each other, it is im- 
 possible to determine which was proved, it being certain that all could 
 not have been. The verdict must therefore be set aside.
 
 950 CLAASEN V. UNITED STATES. [CHAP. XV. 
 
 CLAASEN V. UNITED STATES. 
 Supreme Court of the United States. 1891. 
 
 [Reported 142 U. S. 140.] 
 
 Gray, J.^ There can be uo doubt of the sufficiency of the first count 
 on which the defendant was convicted. It avers that the defendant was 
 president of a national banking association ; that by virtue of his office 
 he received and took into his possession certain bonds (fully described), 
 the property of the association ; and that, with intent to injure and de- 
 fraud the association, he embezzled the bonds and converted them to 
 his own use. On principle and precedent, no further averment was 
 requisite to a complete and sufficient description of the crime charged. 
 United States v. Britton, 107 U. S. 655, 669; The King v. Johnson, 
 3 M. & S. 539, 549 ; Starkie Crim. PL (2d ed.) 454 ; 3 Chitty Crim. 
 Law, 981 ; 2 Bishop Crim. Pro. §§ 315, 322. 
 
 This count and the verdict of guilty returned upon it being sufficient 
 to support the judgment and sentence, the question of the sufficiency of 
 the other counts need not be considered. 
 
 In criminal cases the general rule, as stated by Lord Mansfield before 
 the Declaration of Independence, is " that if there is any one count to 
 support the verdict, it shall stand good, notwithstanding all the rest are 
 bad ." Peake v. Oldham, Cowper, 275, 276 ; Rex v. Benfield, 2 Bur. 
 9807985. See also Grant v. Astle, 2 Doug. 722, 730. And it is set- 
 tled law in this court, and in this country generally, that in any crimi- 
 nal case a general verdict and judgment on an indictment or information 
 containing several counts cannot be reversed on error, if any one of the 
 counts is good and warrants the judgment, because, in the absence of 
 anything in the record to show the contrary, the presumption of law is 
 that the court awarded sentence on the good count only. Locke v.' 
 United States, 7 Cranch, 339, 344 ; Clifton v. United States, 4 How. 
 242, 250; Snyder w. United States, 112 U. S. 216; Bond v. Dustin, 
 112 U. S. 604, 609 ; 1 Bishop Crim. Pro. § 1015; Wharton Crim. PL 
 & Pract. § 771. 
 
 The opposing decision of the House of Lords, in 1844, in the well 
 known case of 0"Conuell /'. The Queen, was carried, as appears by the 
 report in 11 CI. & Fin. 155, by the votes of Lord Denman, Lord Cot- 
 teuham and Lord Campbell against the votes of Lord Lyndhurst and 
 Lord Brougham, as well as against the opinions of a large majority of 
 the judges consulted, and the universal understanding and practice of 
 the courts and the profession in England before that decision. It has 
 seldom, if ever, been followed in the United States. 
 
 In Commonwealth v. Boston & Maine Railroad, 133 Mass. 383, 392, 
 
 1 The opinion only is given; it states the case. Part of the opinion, not relating to 
 the question of pleading, is omitted.
 
 SECT, v.] NEW YORK CODE OF CRIMINAL PROCEDURE. 951 
 
 and in Wood v. State, 59 N. Y. 117, 122, relied on by the. plaintiff in 
 error, the general rule was not impugned, and judgment upon a general 
 verdict was reversed because of erroneous instructions, duly excepted 
 to by the defendant at the trial, expressly authorizing the jury to con- 
 vict upon an insufficient count. 
 
 In the case now before us, the record does not show that any instruc- 
 tions at the trial were excepted to, and the jury did not return a general 
 verdict against the defendant on all the counts, but found him guilty of 
 the offences charged in each of the five counts now in question. This 
 being the case, and the sentence being to imprisonment for not less 
 than five j-ears nor more than ten, which was the only sentence author- 
 ized for a single offence under the statute on which the defendant was 
 indicted, there is no reason why that sentence should not be applied to 
 any one of the counts which was good. 
 
 3 ^ 'I Xi 
 
 SECTION V. 
 
 Statutory SimjJli/ications of Criminal Pleading. 
 
 NEW YORK CODE OF CRIMINAL PROCEDURE. 
 
 § 284. The indictment is sufHcient, 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 jury 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 wh3re . . . 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 the 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 certainty, as to enable the court to pronounce judgment, 
 upon a conviction, according to the right of the case. 
 
 § 293. Upon the trial of an indictment, when a variance between 
 the allegation therein and the proof, in respect to time, or in the name 
 or description of any place, person, or thing, shall appear, the court 
 may, in its judgment, if the defendant cannot be thereby prejudiced 
 in his defence on the merits, direct the indictment to be amended, ac-
 
 952 MASSACHUSETTS CRIMINAL PLEADING ACT OF 1899. [CHAP. XV, 
 
 cording 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 may deem 
 reasonable. 
 
 MASSACHUSETTS CRIMINAL PLEADING ACT OF 1899. 
 
 [Mass. Revised Laws, chap. 218.] 
 
 Sec. 18. The circumstances of the act may be stated according to 
 their legal effect, without a full description thereof. 
 
 Sec. 19. If the name of an accused person is unknown to the grand 
 jury, he may be described by a fictitious name or by any other prac- 
 ticable description, with an allegation that his real name is unknown. 
 An indictment of the defendant by a fictitious or erroneous name shall 
 not be ground for abatement ; but if at any subsequent stage of the 
 proceedings his true name is discovered, it shall be entered on the 
 record and may be used in the subsequent proceedings, with a ref- 
 erence to the fact that he was indicted by the name mentioned in the 
 indictment. 
 
 Sec. 20. The time and place of the commission of the crime need 
 not be alleged unless it is an essential element of the crime. The alle- 
 gation of time in the caption shall, unless otherwise stated, be consid- 
 ered as an allegation that the act was committed before the finding of 
 the indictment, after it became a crime, and within the period of lim- 
 itations. The name of the county and court in the caption shall, un- 
 less otherwise stated, be considered as an allegation that the act was 
 committed within the territorial jurisdiction of the court. All allega- 
 tions of the indictment shall, unless otherwise stated, be considered to 
 refer to the same time and place. 
 
 Sec. 21. The means by which a crime is committed need not be al- 
 leged in the indictment unless they are an essential element of the 
 crime. 
 
 Sec. 22. If an allegation relative to a written instrument which con- 
 sists wholly or in part of writing, print or figures is necessary, it may 
 describe such an instrument by any name or designation by which it is 
 usually known, or by the purport thereof, without setting out a copy or 
 facsimile of the whole or of any part thereof; and no variance between 
 such recital or description and the instrument produced at the trial 
 shall be material, if the identity of the instrument is evident and the 
 purport thereof is sufficiently described to prevent prejudice to the 
 defendant. 
 
 Sec. 23. If an allegation relative to any bullion, money, notes, bank 
 notes, checks, drafts, bills of exchange, obligations or other securities 
 for money of any country, state, county, city, town, bank, corpo- 
 ration, partnership or person is necessary, it may describe it as money, 
 without specifying any particulars thereof; and such descriptive alle-
 
 SECT. V.J MASSACHUSETTS CRIMINAL PLEADING ACT OF 1899. 953 
 
 gation shall be sustained by proof of any amount of bullion, money, 
 notes or other securities for money as aforesaid, although the partic- 
 ular nature thereof shall not be proved. 
 
 Sec. 24. The value or price of property need not be stated, unless it 
 is an essential element of the crime. If the nature, degree or punish- 
 ment of a crime depends upon the fact that the property exceeds or 
 does not exceed a certain value, it may be described, as the case may 
 be, of more than that value, or of not more than that value. 
 
 Sec. 25. If an indictment for a crime which involves the commission 
 or attempted commission of an injury to property describes the prop- 
 erty with sufficient certainty in other respects to identify the act, it 
 need not allege the name of the owner. 
 
 Sec. 27. In an indictment for the larceny of an animal, or for any 
 other crime in respect thereof, it may be described by the name by 
 •which it is commonly known, without stating its age or sex or whether 
 it is alive or dead. 
 
 Sec. 29. An allegation that the defendant committed the act charged 
 shall be a sufficient allegation that he was responsible therefor. 
 
 Sec. 30. If an intent to injure or defraud is an essential element of 
 a crime, an intent to injure or defraud may be alleged generally, with- 
 out naming the person, corporation or government intended to be in- 
 jured or defrauded. Proof of an intent to injure or defraud any person 
 or body corporate shall be competent to support the allegation. 
 
 Sec. 31. Different means or different intents by or with which a 
 crime may be committed may be alleged in the same count in the 
 alternative. 
 
 Sec. 33. Presumptions and conclusions of law, matters of which 
 judicial notice is taken and allegations which are not required to be 
 proved need not be alleged. An indictment shall not be considered 
 defective or insufficient because it omits to allege that the crime was 
 committed, or the act was done, "traitorously," '' feloniously," " bur- 
 glariously," "wilfully," "maliciously," "negligently," "unlawfully," 
 or otherwise similarly to describe the crime, unless such description is 
 an element of the crime charged, or because it omits to allege that the 
 crime was committed or done with " force and arms," or " against the 
 peace," or against the form of the statute or statutes, or against a by- 
 law, ordinance, order, rule or regulation of any public authority, nor 
 because it omits to state or misstates the title, occupation, estate or 
 degree of the defendant or of any other person named in the indict- 
 ment, or of the name of the county, city, town or place of his resi- 
 dence, unless such omission or misstatement tends to the prejudice of 
 the defendant. An indictment shall not be considered defective or in- 
 sufficient by reason of describing a fine or forfeiture as enuring to the 
 use of the commonwealth instead of to the use of the county, city or 
 town, nor by reason of any misstatement as to the appropriation of 
 any fine or forfeiture, nor by reason of its failure to allege or recite a 
 special statute or a by-law or ordinance of a city or town or order of
 
 954 MASSACHUSETTS CRIMINAL PLEADING ACT OF 1899. [CHAP. XV. 
 
 the mayor and aldermen or selectmen or rules or regulations of any 
 public board of officers. 
 
 Sec. 34. An indictment shall not be quashed or be considered defec- 
 tive or insufficient if it is sufficient to enable the defendant to under- 
 stand the charge and to prepare his defence ; nor shall it be considered 
 defective or insufficient for lack of any description or information 
 which might be obtained by requiring a bill of particulars as provided 
 in section thirty-nine. 
 
 Sec. 35. A defendant shall not be acquitted on the ground of vari- 
 ance between the allegations and proof if the essential elements of the 
 crime are correctly stated, unless he is thereby prejudiced in his defence. 
 He shall not be acquitted by reason of immaterial misnomer of a 
 third party, by reason of an immaterial mistake in the description of 
 property or the ownership thereof, by reason of failure to prove un- 
 necessary allegations in tiie description of the crime or by reason of 
 any other immaterial mistake in the indictment. 
 
 Sec. 37. An excuse, exception or proviso which is not stated in the 
 enacting clause of a statute creating a crime or which is stated only by 
 reference to other provisions of the statute need not be negatived in 
 the indictment unless it is necessary for a complete definition of the 
 crime. If any statute shall prescribe a form of indictment in which 
 an excuse, exception or proviso is not negatived, it shall be taken that 
 it is not necessary to a complete definition of the crime that they should 
 be negatived. If a statute which creates a crime permits an act, which 
 is therein declared to be criminal, to be performed without criminality 
 under stated conditions, such conditions need not be negatived. 
 
 Sec. 38. The words used in an indictment may, except as otherwise 
 provided in this section, be construed according to their usual accepta- 
 tion in common language ; but if certain words and phrases are defined 
 by law, they shall be used according to their legal meaning. 
 
 The following words, when used in an indictment, shall be sufficient 
 to convey the meaning herein attached to them, — 
 
 Adultery. — The sexual intercourse by a married man with a woman 
 not his wife, by an unmarried man with a married woman, by a married 
 woman with a man not her husband. 
 
 Affray. — The fighting together of two or more persons in a public 
 place to the terror of the persons lawfully there. 
 
 Fahe Pretences. — The false repi-esentations made by word or act 
 which are of such a character, or which are made under such circum- 
 stances and in such a way, with the intention of influencing the action 
 of another, as to be punishable. 
 
 Forgery. — The false making, altering, forging or counterfeiting of 
 any instrument described in section one of chapter two hundred and 
 nine, or any instrument which, if genuine, would be a foundation for 
 or release of liability of the apparent maker. 
 
 Fornication. — The sexual intercourse between a man and an un- 
 married woman.
 
 SECT, v.] PEOPLE V. OLMSTEAD. 955 
 
 Murder. — The killing of a human being with malice aforethought. 
 
 Rape. — The unlawful forcible carnal knowledge by a man of a 
 woman against her will or without her consent; or the carnal knowledge 
 by a man of a female child under the statutory age of consent. 
 
 Rohhery. — The taking and carrying away of personal property of 
 another from his person and against his will^ by force and violence, or 
 by assault and putting in fear, with intent to steal. 
 
 Stealing. — Larceny. — The criminal taking, obtaining or converting 
 of personal property, with intent to defraud or deprive the owner 
 permanently of the use of it ; including all forms of larceny, criminal 
 embezzlement and obtaining by criminal false pretences. 
 
 Sec. 39. The court may, upon the arraignment of the defendant, or 
 at any later stage of the proceedings, order the prosecution to file a 
 statement of such particulars as may be necessary to give the defend- 
 ant and the court reasonable knowledge of the nature and grounds of 
 the crime charged, and if it has final jurisdiction of the crime, shall so 
 order at the request of the defendant if the charge would not be othei'- 
 wise fully, plainly, substantially and formally set out. If there is a 
 material variance between the evidence and the bill of particulars, the 
 court may order the bill of particulars to be amended, and may postpone 
 the trial, which may be before the same or another jury, as the court 
 may order. If, in order to prepare for his defence, the defendant 
 desires information as to the time and place of the alleged crime or as 
 to the means by which it is alleged to have been committed, or more 
 specific information as to the exact nature of the property described 
 as money or, if indicted for larceny, as to the crime which he is 
 alleged to have committed, he may apply for a bill of particulars as 
 aforesaid. 
 
 Sec. 40. In an indictment for criminal dealing with personal property 
 with intent to steal, an allegation that the defendant stole said property 
 shall be suflBcient; and such indictment may be supported by proof 
 that the defendant committed larceny of the property or embezzled it, 
 or obtained it by false pretences. 
 
 PEOPLE V. OLMSTEAD. 
 Supreme Court of Michigan. 1874. 
 
 {Reported 30 Mich. 431.] 
 
 Caiwpbell, J.^ The respondent was informed against for manslaughter 
 in killing one Mary Bowers, whom it is averred he did " feloniously, 
 wilfully and wickedly kill and slay, contrary to the statute in such 
 case made and provided," etc. The information does not name the 
 offence, nor the manner or means of its commission. 
 
 1 Only so much of the opinion as deals with tlie validity of the indictment is 
 given. -^ Ed.
 
 956 PEOPLE V. OLMSTEAD. [CHAP. XV. 
 
 Upon the trial the prosecution, in opening, stated that the prisoner 
 was charged under § 7542 of the Compiled Laws, which is as follows . 
 
 " Every person who shall administer to any woman pregnant with a 
 quick child any medicine, drug, or substance whatever, or shall use or 
 employ any instrument or other means, with intent thereby to destroy 
 such child, unless the same shall have been necessary to preserve the 
 life of such mother, or shall have been advised by two physicians to be 
 necessary for such purpose, shall, in case the death of such child or of 
 such mother be thereby produced, be deemed guilty of manslaughter." 
 
 The preceding section makes the malicious killing of an unborn 
 quick child manslaughter, if done by an injury to the mother which 
 would have constituted her murder if she had died. 
 
 The succeeding section makes all unnecessary attempts to produce 
 the miscarriage of a pregnant woman, whatever may be the result, 
 punishable as a misdemeanor. 
 
 The distinction, therefore, is clearly taken, as depending on the in- 
 tent to destroy a living unborn child, and supplies a defect at the com- 
 mon law, whereby such attempts were not felonious, and in some cases, 
 at least, may not have been punishable at all. 
 
 The elements of the crime, as applied to the case before us, are 
 found in the death of the mother, produced by acts intended to destroy 
 a quick child ; that term being used in the statute as an unborn child 
 liable to be killed by violence. The ambiguity which, according to 
 Mr. Bishop, seems to exist in some statutes, as to the foetal condition, 
 is not found in our statutes, which cover the whole ground by different 
 provisions. Comp. L., §§ 7541, 7542, 7543; Bishop on Statutory 
 Crimes, §§ 742-750, and cases. . . . 
 
 Objection was made that the information was not properly framed 
 to support the conviction. 
 
 The information is very brief, and consists of the single statement 
 that respondent, on a day and year and at a place named, " one Mary A. 
 Bowers feloniously, wilfully and wickedly did kill and slay, contrary 
 to the statute in such case made and provided, and against the peace 
 and dignity of the state of Michigan." 
 
 It is not claimed by any one that this would have been a good in- 
 dictment at common law, not only for formal defects, but also for not 
 indicating in any way the means or manner of causing death. But it 
 is justified under our statute, which dispenses with allegations of these, 
 and declares it sufficient "to charge that the defendant did kill and 
 slay the deceased." (7. X., § 7916. 
 
 Respondent claims that the constitutional right " to be informed of 
 the nature of the accusation " involves some information concerning 
 the case he is called on to meet, which is not given by such a general 
 charge as is here made. And courts are certainly bound to see to it 
 that no such right is destroyed or evaded, while they are equally bound 
 to carry out all legislative provisions tending to simplify practice, so 
 far as they do not destroy rights.
 
 SECT, v.] PEOPLE V. OLMSTEAD. 957 
 
 The discussions on this subject sometimes lose sight of the principle 
 that the rules requiring information to be given of the nature of the ac- 
 cusation are made on the theory that an innocent man may be indicted, 
 as well as a guilty one, and tliat an innocent man will not be able to 
 prepare for trial without knowing what he is to meet on trial. And tlie 
 law not only presumes innocence, but it would be gross injustice unless 
 it framed rules to protect the innocent. 
 
 The evils to be removed by the various acts concerning indictments 
 consisted in redundant verbiage, and iu minute charges which were not 
 required to be proven as alleged. It was mainly, no doubt, to remove 
 the necessity of averring what need not be proved as alleged, and 
 therefore gave no information to the prisoner, that the forms were 
 simplified. And these difficulties were chiefly confined to common-law 
 offences. Statutory offences were always required to be set out with 
 all the statutory elements. Koster v. People, 8 Mich. R. 431. The 
 statute designed to simplify indictments for statutory crimes, which is 
 in force in this state, and is a part of the same act before quoted, 
 reaches that result by declaring that an indictment describing an offence 
 in the words of the statute creating it, shall be maintained after verdict. 
 C. L., § 79 J8. But both of these sections must be read in the light 
 of the rest of the same statute, which plainly confines the omission of 
 descriptive averments to cases where it will do no prejudice. And so 
 it was held, in Enders v. People, 20 Mich. R. 233, that nothing could 
 be omitted by virtue of this statute, which was essential to the de- 
 scription of an offence. 
 
 Manslaughter at common law very generally consisted of acts of 
 violence, of such a nature that indictments for murder and man- 
 slaughter were interchangeable, by the omission or retention of the 
 allegation of malice, and of the technical names of the offences. In a 
 vast majority of cases a very simple allegation would be enough for 
 the protection of the prisoner. 
 
 But where the offence of manslaughter was involuntary homicide, 
 and involved no assault, but arose out of some negligence or fault 
 from which death was a consequential result, and sometimes not a 
 speedy one, the ordinary forms were deficient, and the indictment had 
 to be framed upon the peculiar facts, and could convey no adequate 
 information without this. See 2 Bishop's Cr. Proced., § 538. 
 
 The offence for which the respondent in this case was put on trial, 
 originated in the statute defining it, and could not have come within 
 any of the descriptions of manslaughter at common law. An innocent 
 person, charged under the information, could form no idea whatever 
 from it of the case likely to be set up against him. He might, perhaps, 
 be fairly assumed bound to prepare himself to meet a charge of man- 
 slaughter by direct violence or assault. But which one was meant, out 
 of the multitudinous forms of indirect and consequential homicide that 
 might occur after a delay of any time not exceeding a year, from an 
 orisinal wrong or neglect, and of which he might or might not have
 
 958 COMMONWEALTH V. KELLEY. [CHAP. XV, 
 
 been informed, he could not readily conjecture. Nothing could inform 
 him of this statutory charge, except allegations conforming to the 
 statute. These, we think, he was entitled to have spread out upon 
 the accusation. Without them he was liable to be surprised at the 
 trial, and could not be expected to prepare for it. 
 
 We are not prepared to hold this information bad upon its face, for 
 we are disposed to think, and it was practically admitted on the argu- 
 ment, that it may api)ly to the ordinary homicides by assault. It was 
 not, therefore, until the evidence came in, that it was made certain the 
 case was different. The question of surtieiency does not arise directly 
 upon the record, but on the bill of exceptions, and the error was iu 
 permitting a conviction on it. 
 
 Tiie other questions are closely connected with this, and need not be 
 considered further. 
 
 It must be certified to the court below that the verdict should be set 
 aside, and that no further proceedings on this charge should be had 
 under this information as it stands. 
 
 The other Justices concurred. 
 
 COMMONWEALTH v. KELLEY. 
 Supreme Judicial Court op Massachusetts. 1903. 
 
 [Reported 184 Mass. 320.] 
 
 Hammond, J.^ It is further argued by the defendant that, even if 
 the evidence did show that he committed a crime, it was embezzlement 
 and not larceny, that these two offences are different in law, and that 
 since the count upon which he was convicted alleges larceny it is not 
 supported by proof of embezzlement. It appears that at the trial the 
 defendant urged this distinction, and requested the judge to rule that 
 the evidence did not show him guilty of larceny, and to direct a verdict 
 of acquittal. This the judge refused to do. He further requested the 
 judge to rule that the statute which provides that " whoever embezzles, 
 or fraudulently converts to his own use, money, . . . shall be deemed 
 guilty of simple larceny," (Pub. Sts. c. 203, § 37,) does not merge 
 the two offences or make the embezzlement larceny. The judge re- 
 fused to make this ruling, "not because it was not true as a bare 
 proposition of law but because it was not called for upon the facts 
 disclosed." 
 
 The count evidently was drawn under R. L. c. 218, § 38, and it 
 complies with the form set forth at the end of that chapter, under the 
 title "larceny ;" and the question is whether it covers the crime of 
 embezzlement. The provisions of this chapter so far as material to this 
 
 1 Only so much of the opinion as discusses the sufficiency of the indictment is 
 given. — Ed.
 
 SECT, v.] COMMONWEALTH V. KELLEY. 959 
 
 question first appear in St. 1899, c. 409, which was passed in accord- 
 ance with the report and recommendation of the commissioners (see 
 Senate Doc. No. 234 of that year) appointed under c. 85 of the lie- 
 solves of 1897, " to investigate and report upon a plan for the simpli- 
 fication of criminal pleadings, and to prepare a schedule of forms of 
 pleadings to be used in criminal cases." Prior to that statute, although 
 one guilty of embezzlement was, in the language of the statutes, 
 "deemed ... to have committed the crime of simple larceny," or in 
 the later forms, " deemed guilty of simple larceny," still it was held 
 that that kind of larceny was of a peculiar and distinctive charac- 
 ter and that the indictment must contain, in addition to all the requisites 
 of an indictment for larceny at common law, allegations setting forth 
 the fiduciary relation, or the capacity in which the defendant acted. 
 Accordingly it has been held that proof of embezzlement will not 
 sustain an indictment charging merely a larceny, and that proof of 
 larceny will not sustain a charge of embezzlement. Commonwealth 
 V. Simpson, 9 Met. 138; Commonwealth v. King, 9 Cush. 284; Cojn- 
 monwealth r. Berry, 99 Mass. 428. Somewhat akin to these two 
 crimes in many respects is that of obtaining money or goods by false 
 pretences ; and an indictment for this offence differs from that of lar- 
 ceny or embezzlement. It was felt by the commissioners that " the 
 over-reSned and illogical distinctions " between these three crimes 
 "have led to scandalous abuses of justice by acquittals," and, "to 
 obviate the possibility of miscarriage of justice on this account," they 
 proposed " a single form of indictment for the three crimes, containing 
 simply an allegation that defendant ' stole' certain goods." See 1899, 
 Senate Doc. No. 234, pp. 16, 17. The St. of 1899, following the rec- 
 ommendation of the commissioners, contains a simple form for larceny, 
 but no separate form for embezzlement or for obtaining money or 
 goods by false pretences. In § 12, under the head of "Meaning of 
 "Words," it is provided that "the following words when used in an 
 indictment shall be sufficient to convey the meaning herein attached to 
 them;" and among others are these: "Stealing. — Larceny. — The 
 criminal taking, obtaining, or converting of personal property with 
 intent to defraud or deprive the owner permanently of the use of it; 
 including all forms of larceny, criminal embezzlement, and obtaining 
 by criminal false pretences." The count in question was drawn up 
 under the provisions of this statute as subsequently enacted in R. L. 
 c. 218, § 38. Under this last statute the word "steal" in an indict- 
 ment becomes a term of art and includes the criminal taking or con- 
 version in either of the three ways above named, and hence the 
 indictment is sustained, so far as respects the criminal nature of the 
 taking or conversion, by proof of any kind of larceny, embezzlement 
 or criminal taking by means of false pretences. If it be objected that 
 this construction makes the indictment so indefinite that the accused is 
 not sufficiently informed of the nature of the charge which he is called 
 upon to meet, the answer is that it is provided in the same statute
 
 960 COMMONWEALTH V. KELLEY. [CHAP. XV. 
 
 (§ 39) that " the court may, upon the arraignment of the defendant, or 
 at any later stage of the proceedings, order the prosecution to file a 
 statement of such particulars as may be necessary to give the defend- 
 ant and the court reasonable knowledge of the nature and grounds of 
 the " accusation, and, if requested by the accused, shall so order iu 
 all cases in which the court has final jurisdiction, where the accusation 
 would not be otherwise fully, plainly, substantially and formally set 
 out "If there is a material variance between the evidence and the 
 bill of particulars, the court may order the bill of particulars to be 
 amended, and may postpone the trial, which may be before the same 
 or another jury, as the court may order. If, iu order to prepare for his 
 defence, the defendant desires information as to the time and place of 
 the alleged crime or as to the means by which it is alleged to have been 
 committed, or more specific information as to the exact nature of the 
 property described as money, or, if indicted tor larceny, as to the crime 
 which he is alleged to have committed, he may apply for a bill of par- 
 ticulars as aforesaid." This is a sufficient protection to the accused. 
 Indeed it is manifest that since under the former practice the right to 
 a bill of particulars was a matter that lay within the discretion of the 
 court and therefore could not be claimed as of right, (Commonwealth v. 
 Wood, 4 Gray, 11.) this statute, which rrrakes the right to such a bill 
 absolute, places the accused in a better position than he was before. 
 Of course the bill of particulars cannot enlarge the scope of the indict- 
 ment. It cannot specify a charge not covered by the indictment. Its 
 only purpose is to specify more particularly the acts constituting the 
 offence. 
 
 In view of these considerations we are of opinion thafc the count 
 in question must be regarded as including within its "four corners" 
 any criminal act of taking or conversion of money the property of the 
 estate therein named, to the amount of $1,000, committed by the de- 
 fendant within the jurisdiction of the court, and within the statute of 
 limitations, whether the offence be larceny, embezzlement, or obtaining 
 by criminal false pretences ; and consequently that it covered the crime 
 of embezzlement as described in Pub. Sts. c. 203, § 46, of which under 
 instructions not objected to, except as above stated, the jury convicted 
 the defendant. 
 
 It is further urged by the defendant that, inasmuch as the offence of 
 which he was convicted was committed prior to the statute, it is as to 
 that ofience an ex post facto law, and for that reason unconstitutional 
 as applied to his case. But this position is untenable. The statute 
 neither creates a new crime nor in any way changes one existing at the 
 time it took effect ; nor does it increase or iu any way affect the pun- 
 ishment for any crime. It does not establish any new presumptiou of 
 fact or of law against the accused, nor in any other way alter any 
 rule of evidence or the nature of the evidence required to convict. 
 The defendant was tried for the same crime, under the same pre- 
 sumptions as to his guilt or innocence and under the same rules of
 
 SECT, v.] STATE V. BKOWN. Of,] 
 
 evidence as he would have been tried before the statute. It relates 
 purely to the matter of technical pleading as to the words to be used 
 in setting forth a criminal act, and even in this respect is favorable to 
 the accused in that the right to a bill of particulars, which theretofore 
 was within the discretion of the court, has become absolute. In no 
 respect is the situation of the accused changed to his disadvantage. 
 No citation of authorities is needed to show that the statute as thus 
 interpreted is not an ex post facto law within the meaning of either the 
 Federal or State constitutions. The defendant was not prejudiced by 
 the action of the court at the trial in dealing with his requests.^ 
 
 STATE V. BROWN. 
 Supreme Court of Wisconsin. 1910. 
 
 [Reported 143 Wis. 405.] 
 
 An indictment was returned by a grand jury impanelled in Marinette 
 county, wherein it was attempted to charge the defendant, in the first 
 count, with obtaining money by false pretences from Marinette county. 
 The defendant demurred ; and to review an order sustaining such de- 
 murrer and a judgment discharging the defendant, the state prosecutes 
 a writ of error to this court." 
 
 Barnes, J. This case comes before us by virtue of sec. 4724 a, 
 Stats. (Laws of 1909, ch. 224), on a writ of error sued out to review 
 the decision of the lower court in sustainiug a demurrer to an indict- 
 ment. It is the first cause brought to this court at the instance of the 
 state to review a judgment in a criminal action since the above statute 
 was enacted. 
 
 The defendant contends that the indictment is faulty in the follow- 
 ing particulars: (1) In not averring that defendant obtained the money 
 referred to in the various counts in the indictment.^ 
 
 1. Sec. 4423, Stats. (1898), provides that "Any person who shall 
 designedly, by any false pretences . . . and with intent to defraud, 
 obtain from any other person any money," shall be punished as therein 
 provided. 
 
 " The gravamen of the crime is the obtaining of the property de- 
 scribed. . . . This statute, like other criminal statutes, must receive 
 strict construction." Bates v. State, 124 Wis. 612, 615, 103 N. W. 251, 
 and cases cited. 
 
 It is contended by the defendant that the allegation of the indict- 
 ment, "By which false pretences the said Thomas W. Brown did then 
 
 1 See Com. v. King, 202 Mass. 379. — Ed. 
 
 2 This statement is substituted for that of the Reporter. — Ed. 
 
 8 Only so much of the opinion as deals with this objection to the indictment is 
 given. — Ed.
 
 962 STATE V. BKOWN. [CHAP. XV. 
 
 and there unlawfully and feloniously induce the said Marinette county 
 to pay the said Thomas W. Brown the said sum of eighteen dollars and 
 eighty cents of its money, good and lawful money of the United States, 
 the said Marinette county then and there relying upon the said repre- 
 sentations so made " does not charge that the defendant Brown ob- 
 tained the money, or even that the county parted with it. It is urged 
 that the word " induce" may well mean to persuade, to convince, or to 
 tempt, and that defendant might tempt, persuade, or convnice the 
 county that it should pay the money in question, but that until he 
 actually received it no crime was committed under the section of our 
 statutes referred to. The following authorities are cited as sustaining 
 the defendant's position: Comm. v. Lannan, 1 Allen, 590; State v. 
 Phelan, 159 .Mo. 122, 60 S. W. 71; Connor v. State, 29 Fla. 455, 30 
 Am. St. Rep. 126; State v. Lewis, 26 Kan. 123; Kennedy v. State, 
 34 Ohio St. 310. The point decided in each of the authorities cited is 
 closely analogous to the one raised in the case before us, and the trial 
 court with considerable reluctance concluded to follow the decided 
 cases. No case decided under a similar statute has been called to our 
 attention where an indictment such as the one before us has been held 
 good. 
 
 Precedents from foreign jurisdictions on matters of pleading and 
 practice in criminal cases are often illusory and misleading. Some 
 courts have adopted extremely strict and often highly technical rules 
 for the construction of indictments and informations. Others have 
 followed more liberal and more reasonable rules. In many of the 
 states the rigor of rules formerly laid down has been mitigated by 
 statute law. On a question such as the one before us the judgments 
 of other tribunals may aid, but they cannot conti'ol or conclude this 
 court. 
 
 The indictment in this case states that the defendant " did . . . 
 induce said Marinette county to pay " him the sum of $18.80. Taking 
 this language in its usual acceptation, it means that Marinette county 
 paid over to the defendant, and that the defendant received and ob- 
 tained from it, the sum stated, and it would, we think, be so construed 
 by ninety nine out of every hundred persons reading it. The learned 
 counsel for the defendant frankly admitted on the argument that such 
 was the impression it created on his mind when he first read it, and 
 that he arrived at the conclusion that a different meaning might be at- 
 tributed to it only after his industry had been rewarded by finding the 
 cases cited. 
 
 If it be conceded that the language used might be susceptible of the 
 meaning contended for by defendant, it does not follow that the in- 
 dictment is bad, assuming that the language used would in its ordinary 
 and usual acceptation be understood to mean that the defendant in 
 fact obtained tlie money. 
 
 It has never been held in this state that certainty to a certain intent 
 in particular was required in criminal pleading, although such certainty
 
 SECT. V.J STATE V. BROWN. 963 
 
 is, or at least formerly was, required in many jurisdictions. 1 Bouv. 
 Law Diet. (Rawle's Rev.) 300, and cases cited. In State ?'. Downer, 
 21 Wis. 274, it was held that " certainty in charging the offence to a 
 common intent is all that is required by the rules of pleading in regard 
 to indictments." Such certainty is attained " by a form of statement 
 in which words are used in their ordinary meaning, though by argu- 
 ment or inference they may be made to bear a different one." 1 Bouv. 
 Law Diet. (Rawle's Rev.) 299. 
 
 The letter as well as the spirit of our statute law is utterly antagonis- 
 tic to the idea of applying exceedingly strict and technical rules to thfe 
 construction of indictments or informations. This is particularly true 
 where, as here, the defendant is not deprived of any substantial right 
 by adopting a more liberal rule of construction and one more consonant 
 with /eason and better calculated to promote the ends of justice. 
 
 Sec. 4658, Stats, (1898), provides that an information shall be suffi- 
 cient if it can be understood therefrom that the offence charged is set 
 forth with such degree of certainty that the court may pronounce judg- 
 ment upon a conviction according to the right of the case. Sec. 4659 
 provides that no indictment or information shall be deemed invalid by 
 reason of any defect or imperfection in matters of form which shall no\i 
 tend to the prejudice of the defendant. Sec. 4669 provides that worda 
 used in the statutes to define a public offence need not be strictly pur- 
 sued in charging an offence under such statutes, but other words con- 
 veying the same meaning may be used. Sec. 4706 provides that no 
 indictment or information in a criminal case shall be abated, quashed, 
 or reversed for any error or mistake, where the person and the cast! 
 may be rightly understood by the court, and the court may on motiou 
 order an amendment curing such defect. 
 
 Sec. 2829, Stats. (1898), provides that the court shall in every stag*; 
 of an action disregard any error or defect in the pleadings or proceed 
 ings which does not affect the substantial rights of the adverse part} , 
 This statute has been held to apply to criminal as well as to civil cases, 
 Odette V. State, 90 Wis. 258, 262, G2 N. W. 1054; Cornell v. State, 
 104 Wis. 527, 80 N. W. 745; Vogel v. State, 138 Wis. 315, 329, lli^ 
 N. W. 190. Sec. 2829, Stats. (1898), has to some extent been ampli- 
 fied by sec. 3072 m, Stats. (Laws of 1909, ch. 192). 
 
 Believing as we do that the language used in the indictment would 
 in its ordinary acceptation be understood to charge the defendant with 
 having received or obtained the money, and bearing in mind that it is 
 not necessary to use the exact language of a statute in pleading, and 
 being further convinced that the defect complained of does not tend to 
 prejudice the defendant, we feel no hesitancy in saying that the de- 
 murrer should not have been sustained on the ground upon which it 
 was held good. The indictment states an offence under the Downer 
 Case, cited supra. To hold the pleading bad would be to ignore that 
 decision as well as the statutes cited. The statutes referred to should 
 be so construed as to effectuate the purpose which the legislature had
 
 964 STATE V. BROWN. [CHAP. XV. 
 
 in mind in passing them. State ex rel. McKay ?'. Curtis, 180 Wis. 
 357, 110 N. W. 189. 
 
 The rights of a defendant in a criminal case should be jealously and 
 scrupulously guarded and protected by the courts. But this does not 
 mean that a person accused of crime should be turned loose on mere 
 technicalities which in no way involve the merits of the case. Such 
 maladministration of our criminal law should not be encouraged or tol- 
 erated. If the defendant in this case did not obtain the moneys 
 charged in the various counts in the indictment, he has a perfect de- 
 fence to each and every count therein contained and is not deprived of 
 any right to avail himself of such defence.
 
 SECT, l] vaux's case. 965 
 
 CHAPTER XVI. 
 FORMER CONVICTION OR ACQUITTAL. 
 
 SECTION I. 
 
 Double Jeopardy. 
 
 VAUX'S CASE. 
 Queen's Bench. 1592. 
 
 [Reported 4 Coke, 44 a.] 
 
 WrLLiAM Vaux, at the sessions of peace for the county of Northum- 
 berland, held 27 Julii, annoS'Z Eliz. before the justices of peace of the 
 same county, was indicted of voluntarily poisoning of Nicholas Ridley, 
 which indictment was removed into the King's Bench ; and in discharge 
 thereof the said Vaux pleaded that at another time, sc. 12 Augxisti, 
 anno 30 Eliz., at Newcastle upon Tyne, in the county of Northumber- 
 land, before the Justices of Assise of the same county the said Vaux 
 was indicted : quod cum NicK Ridley nuper de W. in com' prced' 
 Armig' jam de/unctiis, per multos annos ante ohitum suum nuptus 
 fuisset cuidam Margaretce uxori ejxcs, et nullum exitum habuit, prced' 
 WilV Vaux nuper de K. in com'' C. generos' subdol^, caute, et diabolice 
 intendens mortem, venenationem, et destructionem ipsius Nicolai, et 
 Deum prce OGuUs non habens, 20 Decembris, anno 28 Eliz. apud W. 
 proedicf felonic^, voluntarie, et ex malitia sua precogitata, persuade- 
 hot eundem NiclioV recipere et bihere quendam potum mlxtum cum 
 quodam reneno vocaf cantharides, affirmans et verificans eidem NicK 
 quocV prmd^ potus sic mixtus cum prced' veneno vocaf caiitlC non fuit 
 intoxicatus {Anglice poisoned) sed quod per reception' inde proid' 
 Nich' exit' de corpore dictce Margaretce tunc uxoris suce procuraret, 
 et Jiaberet ratioyie cujus quidem persuasionis et instigatioyiis prced' 
 Nich' postea, scil. 16 Januarii anno supradicto apud T. in com' N. 
 prced' nesciens j^rcedictum p)Otum cum veneno in forma prmdict' fore 
 mixt', sed fidem adhibens prcedicf persuasioni dicti WilUelmi recepit 
 et bibit, per quod prcedictus Nicholaus immediate post receptionem 
 veneni proedicti per tres horas immediate seqiient' langxiebat, et postea 
 prced' 16 Jan. anno supradict' ex venenatione et intoxicat' prced' apud 
 T. prced' obiit: et sic prced' Will' Vaux felonicd et ex malitia sua 
 prcecogitata prcefaf Nich' voluntarie et felonice modo et forma prczd^ 
 intoxicavit, iriterfecit, et niurdravit, contra pacem, &c. Upon which 
 indictment the said Vaux was arraigned before the same Justices, and 
 pleaded not guilty ; and the jurors gave a special verdict, and found.
 
 966 VAUX'S CASE. [chap. XVI. 
 
 quod prrrd' NJcJi' Ridley venetiatus fuit Anglice poisoned, per recep- 
 tionem prmV cantharides, et quod prced' Will' Faux nan fuit pro-sens 
 tempore quo prccd' Nick' Ridley recepit prced' canth' sed utrum, &c. 
 And thereupon judgment was given by the said justices of assise in this 
 manner : sujoer quo visis, et per cur' hie intellectis omnibus et singulis 
 pnnnissis^ pro eo quod videtur cur' hie super iota materia per vere- 
 dictum prod' in forma pnccP compert', quod prccd' venenaiio per re- 
 ception' canth' et prccd' ptrocuratio prrcd' Will' ad procurand' pra;d' 
 Nich' ad accipiend' pra^d' canth' modo et forma j^rout per verdict' 
 prccd' compert' fuit non fuit felonia et murdrum voluntar\- ideo con- 
 siderat' est quod prccd' WiW Vaux, de felonia et murdro 2yrced' indicta- 
 mento prccd' superius specif cat' necnon de dicta felonica venenatione 
 pro'd' Nich' Ridley in eodem indictamento nominati eidem Will' im- 
 posif eat sine die : and as to the felony and murder he pleaded not 
 guilty. 
 
 And, first, it was resolved per totam curiam that the said indict- 
 ment upon which Vaux was so arraigned was insufficient ; and princi- 
 pally because it is not expressly alleged in the indictment that the said 
 Ridley received and drank the said poison, for the indictment is prccd' 
 Nich' nesciens prccd' potum cum veneno fore intoxicatum, sed fidem 
 adhibens diet' ^:)ers?<as/owi dicti W. recepit et Mbit, per cpiod, &c. So 
 that it doth not appear what thing he drank, for these words (venenum 
 prced') are wanting ; and the subsequent words, scilicet per quod prccdicf 
 N. immediate post receptionem veneni prccdicf &c., which words imply 
 receipt of poison, are not sufficient to maintain the indictment, for the 
 matter of the indictment ought to be full, express, and certain, and shall 
 not be maintained by argument or implication, because the indictment 
 is found by the oath of laymen. 2. It was agreed j3er curiam that 
 Vaux was a principal murderer, although he was not present at the 
 time of the receipt of the poison, for otherwise he would be guilty of 
 such horrible offence, and yet should be unpunished, which would be 
 inconvenient and mischievous : for every felon is either principal or 
 accessory, and if there is no principal there can be no accessory, quia 
 accessorium sequitur principcdem ; and if any had procured Vaux to 
 do it, he had been accessory before ; cpuocl nota a special case, where 
 the principal and accessory also shall both be absent at the time of the 
 felony committed. 3. It was resolved by the Lord Wray, Sir Thomas 
 Gawdy, Clench, and Fenner, Justices, that the reason of auterfoits 
 acquit was because where the maxim of common law is that the life of 
 a man shall not be twice put in jeopardy for one and the same offence, 
 and that is the reason and cause that aiiterfoits acquitted or convicted 
 of the same offence is a good plea; yet it is intendable of a lawful 
 acquittal or conviction, for if the conviction or acquittal is not lawful, 
 his life was never in jeopardy ; and because the indictment in this case 
 was insufficient, for this reason he was not legitimo modo acquietatus, 
 and that is well proved, because upon such acquittal he shall not have 
 an action of conspiracy, as it is agreed in 9 E. 4. 12 a. b. vide 20 E. 4, 6.
 
 SECT. I.] KEGINA V. DEANE. 967 
 
 And in such case in appeal, notwithstanding such insufficient indict- 
 ment, the abettor shall be enquired of as it is there also held : and 
 although the judgment is given that he shall be acquitted of the felony, 
 yet this acquittal shall not help him, because he was not legitimo modo 
 acquietatus ; and when the law saith that auterfoits acquitted is a good 
 plea, it shall be intended wheu he is lawfully acquitted ; and that agrees 
 with the old book in 29 E. 3, Corone 444, where it is agreed if the pro- 
 cess upon indictment or appeal is not sufficient, yet if the party appears 
 (by which all imperfections of the process are saved) and is acquitted, 
 he shall be discharged ; and if the appeal or indictment is insufficient 
 (as our case is) there it is otherwise : but if one, upon an insufficient 
 indictment of felony, has judgment, quod sus})end' per coll\ and so at- 
 tainted, which is the judgment and end which the law has appointed 
 for the felony, there he cannot be again indicted and arraigned until 
 this judgment is reversed by error ; but when the offender is discharged 
 upon an insufficient indictment, there the law has not had its end ; nor 
 was the life of the party, in the judgment of the law, ever in jeopardy ; 
 and the wisdom of the law abhors that great offences should go un- 
 punished, which was grounded without question upon these ancient 
 maxims of law and state ; maleficAa non debent remanere hnpitnita, et 
 impunitas continuum affectum tribuit delinquendi, et minalur inno- 
 centes qui parcit nocentibus : so if a man be convicted either by verdict 
 or confession upon an insufficient indictment, and no judgment there- 
 upon given, he may be again indicted and arraigned, because his life 
 was never in jeopardy, and the law wants its end ; and afterwards, 
 upon a new indictment, the said Vaux was tried and found guilty, and 
 had his judgment and was hanged. 
 
 EEGINA V. DEANE. 
 
 Liverpool Winter Assizes. 1851. 
 [Reported 5 Cox C. C. 501.] 
 
 The prisoner was indicted for forging the acceptance to a bill of ex- 
 change for £154 16s. dd. 
 
 The jury had been sworn and charged to inquire into the guilt of the 
 prisoner. 
 
 Simon, for the prosecutor, had opened the case, when 
 
 Monk, 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 
 
 Erle, J., discharged the jury from giving a verdict, observing that, 
 with the consent of both parties, there was power to do so ; and such 
 consent being then given, the trial was accordingly postponed to the 
 following day. His lordship added that Mr. Baron Parke held the 
 game opinion.
 
 968 COMMONWKALTH V. GREEN. [CHAP. XVI. 
 
 COMMONWEALTH v. ALDERMAN. 
 
 Supreme Jul>icial Court op Massachusetts. 1808. 
 [Reported 4 Mass. 477.] 
 
 The defendant being arraigned on an indictment for an assault and 
 battery, and being enquired of by the clerk whether he was guilty or 
 not guilty, 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 bi-each of the peace before a magistrate, on the confession or in- 
 formation 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 the 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 bj^ the attorney and solicitor-general that by law 
 a new trial cannot be granted of a capital felony ; and it appears by 
 the English text-books, and by several decisions cited in support of the 
 position, that in cases of felony, a new trial is not usually allow^ed by 
 the courts of that country. But whatever reasons may exist in that 
 
 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. — Ed.
 
 SECT. I.] COMMONWEALTH V. GREEN. 969 
 
 country for this practice, we are unable to discern any sufficient 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 
 consistent with the humane principles of the common law, in relation to 
 those whose lives have been once put in jeopardy. But the same hu- 
 mane principles would appear to require that after a conviction, a pris- 
 oner should be indulged with another opportunity to save his life, if 
 anything had occurred upon the trial which rendered doubtful the jus- 
 tice or legality of his conviction. Nemo bis debet vexari pro una et 
 eadem causa is a maxim of justice, as well as of humanity ; and was 
 established for the protection of the subject against the oppressions of 
 government. But it does not seem a legitimate consequence of this 
 maxim that one who has been illegally convicted should be prevented 
 from having a second inquiry into his offence ; that he may be ac- 
 quitted, if the law ami the evidence will justify an acquittal. 
 
 It is true that, in England, the utmost caution is used on capital 
 trials in favor of life ; and if an irregularity materially affecting the 
 trial occurs to the injury of the accused, the court usually represents 
 such matter to the crown, and a pardon is generally granted. But it is 
 the right of every subject of that country, and of every citizen of this, 
 to have a fair and legal trial before his peers, the jury ; and it is hardly 
 consistent with that right, that it should be left to the will or discretion 
 of the judge whether a representation of an actual 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 
 asain 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 be safe 
 in the hands of such highly responsible public agents. The right of 
 the subject to be tried by his peers, according to the forms, as well as 
 principles, of law, is the only certain security that " at all times and 
 under all circumstances " that protection which the constitution extends 
 to all will be effectually enjoyed. 
 
 Nor is it for the public safety and interest that new trials should be 
 refused in such cases. For it must be obvious that in most cases of 
 irregularity which would be a good cause for another trial if in the 
 power of the court to grant it, a pardon, upon the representation of the
 
 970 COMMONWEALTH V. LOUD. [CHAP. XVI. 
 
 court, would be thought to follow of course ; and thus, in many cases, 
 public justice might be prevented on account of defect in form, or some 
 irregularity not affecting the merits of tlie 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 felony, 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 
 ■Kith feloniously stealing, &c., certain lumber. After the testimony 
 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 purpose, a record of certain pro- 
 ceedings before a justice of the peace in and for this county. On 
 inspecting that record, it appeared that L. H. Loud, in January, 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 probable 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 
 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.
 
 SECT. I.] COMMONWEALTH V. I.OUD. 971 
 
 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. 
 
 Pdtnam, 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 pi'oceedings 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 
 larceny of which the defendant was convicted was of the same prop- 
 erty 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 
 merely 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 was guilty, although upon 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 
 offence. Yaux's case, 4 Co. 45 ; 2 Hale P. C. 251 ; 2 Hawk. c. 36, § 10, 
 €t 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 t^hould be set aside, and the defendant should go thereof dis- 
 charged, without day.
 
 ^72 UNITED STATES V. BALL. [CHAP. XVI. 
 
 UNITED STATES v. BALL. 
 
 Supreme Court of the United States. 1896. 
 
 [Reported 163 U. S. 662.] 
 
 Gray, J.^ At October term, 1889, of the Circuit Court of the 
 United States for the Eastern District of Texas, the grand jury re- 
 turned an indictment against Millard Fillmore Ball, John C. Ball and 
 Robert E. Boutwell, for the murder of William T. Box, alleging that 
 the defendants, being white men and not Indians, on June 26, 1889, in 
 Pickens county, in the Chickasaw Nation, in the Indian Territory, did 
 unlawfully and feloniously, and with their malice aforethought, and 
 with a deadly weapon, to wit, a gun, held in their hands, and loaded 
 and charged with gunpowder and leaden balls, make an assault upon 
 the body of William T. Box, and " did shoot off and discharge the con- 
 tents of said gun in and upon the body of said William T. Box, in- 
 flicting thereon ten mortal wounds, of which mortal wounds the said 
 William T. Box did languish, and languishing did die." 
 
 Upon that indictment, the three defendants were arraigned, and 
 pleaded not guilty, and were tried together upon the issues so joined. 
 The trial began on Wednesday, October 30, 1889, and proceeded from 
 day to day until Saturday', November 2, when the jury retired to con- 
 sider of their verdict, and no vei'dict having been returned at the usual 
 hour of adjournment, the court was kept open to receive the verdict. 
 On Sunday, November 3, 1889, the jury returned a verdict as follows : 
 '' We, the jury, find the defendants J. C. Ball and R. E. Boutwell 
 guilty, as charged in this indictment ; and we find M. Fillmore Ball 
 not guilty." The court, on the same day, made the following order : 
 " It is therefore considered by the court that the defendants J. C. Ball 
 and R. £. Boutwell are guilty, as charged in the indictment herein, 
 and as found by the jury ; and it is ordered that they be remanded to 
 the custody of the marshal, and be by him committed to the county 
 jail of Lamar county, to await the judgment and sentence of the court. 
 It is further ordered that the defendant M. F. Ball be discharged and 
 go hence without day." 
 
 Afterwards, at the same term, John C. Ball and Robert E. Bout- 
 well were adjudged guilty and sentenced to death, and sued out a writ 
 of error from this court ; and in the assignment of errors filed by them 
 in the Circuit Court, (as appears by the record transmitted to this 
 court in that case,) specified among other things, " because no legal 
 indictment was returned into court against respondents," in that the 
 indictment on which they were tried " nowhere alleges when and where 
 said William T. Box died;" and "for the errors stated and apparent 
 
 1 Only so much of the opinion as discusses the question of former jeopardy is given. 
 — Ed.
 
 SECT. 1.] UNITED STATES V. BALL. 973 
 
 upon the record therein, respondents pray that the judgment be re- 
 versed, and the cause remanded for a new trial," And the brief then 
 iiled in their behalf concluded by submitting that the judgment ought 
 to be reversed, and the indictment dismissed. 
 
 Upon that writ of error, this court, at October term, 1890, held that 
 that indictment, although sufficiently charging an assault, yet, by rea- 
 son of failing to aver either the time or the place of the death of Box, 
 was fatally defective, and would not support a sentence for murder ; 
 and therefore reversed the judgments against John C. Ball and Robert 
 E. Boutwell, and remanded the case with directions to quash the in- 
 dictment, and to take such further proceedings in relation to them as 
 to justice might appertain. Ball v. United States, 140 U. S. 118, 136. 
 
 At April term, 1891, of the Circuit Court, that indictment was dis- 
 missed; and the grand jury returned against all three defendants a 
 new indictment, (being the one now before the court, ) like the former 
 one, except that, after charging the assault, with malice aforethought, 
 and with a loaded gun, upon Box on June 26, 1889, in Pickens county 
 in the Indian Territory, it went on to charge that the three defendants 
 " did then and there shoot off and discharge the contents of said gun 
 at, in and upon the body of said William T. Box, inflicting thereon a 
 mortal wound, of which mortal wound the said William T. Box did 
 languish, and languishing did then and there instantly die, and did 
 then and there die within a year and a day after the infliction of the 
 said mortal wound as aforesaid." 
 
 To this indictment the defendant Millard F. Ball filed a plea of 
 former jeopardy and former acquittal, relying upon the trial, the ver- 
 dict of acquittal, and the order of the court for his discharge, upon the 
 former indictment ; a certified copy of the record of the proceedings 
 upon which was annexed to and made part of his plea. 
 
 The defendants John C. Ball and Boutwell filed a plea of former 
 jeopardy, by reason of their trial and conviction upon the former in- 
 dictment, and of the dismissal of that indictment. 
 
 Both those pleas were overruled by the court, and the three defend- 
 ants then severally pleaded not guilty. 
 
 At the trial, it appeared that William T. Box was killed on June 26, 
 1889 ; the defendants offered in evidence the record of the proceedings 
 upon the former indictment ; and it was admitted by all parties that 
 the offence charged in the former indictment and that charged in the 
 present indictment was one and the same transaction and offence, to 
 wit, the killing of Box by the three defendants ; that the defendants in 
 the two indictments were the same persons ; and that no writ of error 
 was ever sued out upon the judgment or order entered upon the former 
 indictment as to Millard F. Ball. 
 
 The Circuit Court, among other instructions, instructed the jury to 
 find against both pleas of former jeopardy, because this court had de- 
 cided that the former indictment was insufficient as an indictment for 
 murder. The jury returned a verdict of guilty of murder against all
 
 974 UNITED STATES V. BALL. [CHAP. XVL 
 
 three defendants ; each of them was adjudged guilty accordingly, and 
 sentenced to death ; and thereupon they sued out this writ of error. 
 
 The first matter to be considered is the effect of the acquittal of 
 Millard F. Ball by the jury upon tiie trial of the former indictment. 
 
 In p]ngland, an acquittal upon an indictment so defective that, if it 
 had been objected to at the trial, or by motion in arrest of judgment, or 
 by writ of error, it would not have supported any conviction or sentence, 
 has generally been considered as insufficient to support a plea of former 
 acquittal. 2 Hale P. C. 248, 394 ; 2 Hawk. P. C. c. 35, § 8; 1 Stark. 
 Crim. PI. (2d ed.) 320; 1 Chit. Crim. Law, 458; Archb. Crim. PI. & 
 Ev. (19th ed.) 143 ; 1 Russell on Crimes (6th ed.), 48. And the gen- 
 eral tendency of opinion in this country has been to the same effect. 
 3 Greenl. Ev. § 35 ; 1 Bishop's Crim. Law, § 1021, and cases there 
 cited. 
 
 The foundation of that doctrine is Vaux's case, 4 Rep. 44, in which 
 William Vaux, being duly indicted for the murder of Nicholas Ridley 
 by persuading him to drink a poisoned potion, pleaded a former ac- 
 quittal, the record of which set forth a similar indictment alleging that 
 Ridley, not knowing that the potion was poisoned, but confiding in the 
 persuasion of Vaux, took and drank (without saying " took and drank 
 said potion ") ; a plea of not guilty ; a special verdict, finding that 
 Ridley was killed by taking the poison, and that Vaux was not present 
 when he took it ; and a judgment rendered thereon that the poisoning 
 of Ridley and persuading him to take the poison, as found by the ver- 
 dict, was not murder, and that the defendant go without day — eat sine 
 die. Upon a hearing on the plea of autrefois acquit, the Court of 
 Queen's Bench was of opinion that Vaux was a principal, although not 
 present when Ridley took the poison ; but that the indictment was in- 
 sufficient, for not expressly alleging that Ridley drank the poison ; and 
 that " because the indictment in this case was insufficient, for this rea- 
 son he was not legitimo modo acquietatus," " nor was the life of the 
 party, in the judgment of the law, ever in jeopardy." 
 
 Yet the decision in Vaux's case was treated, both by Lord Coke and 
 by Lord Hale, as maintainable only upon the ground that the judgment 
 upon the first indictment was quod eat sine die, which might be given 
 as well for the insufficiency of the indictment, as for the defendant's 
 not being guilty of the offence ; and Lord Hale was clearly of opinion 
 that a judgment qiiod eat inde quietus could not go to the insufficiency 
 of the indictment, but must go to the matter of the verdict, and would be 
 a perpetual discharge. 3 Inst. 214 ; 2 Hale P. C. 394, 395. And Mr. 
 Starkie has observed : " The doctrine expounded in this case does not 
 appear to consist with the general principle on which the plea of autre- 
 fois acquit is said to depend, since an acquittal upon a special verdict 
 would leave the defendant exposed to a second prosecution, whenever 
 a formal flaw could be detected in the first indictment at any subse- 
 quent period." 1 Stark. Crim. PI. 320, note. 
 
 In the leading American case of People v. Barrett, 1 Johns. 66,
 
 SECT. I.] UNITED STATES V. BALL. 975 
 
 while a majority of the court, consisting of Chief Justice Kent and 
 Justices Thompson and Spencer, followed the p:nglish authorities. Jus- 
 tices Livingston and Tompkins strongly dissented, and their reasons 
 were fully stated by INIr. Justice Livingston, who, after distinguishing 
 cases in which upon the first trial there had been no general verdict of 
 acquittal by the jury, but only a special verdict, upon which the court 
 had discharged the defendant, as well as cases in which the defendant 
 himself had suggested the imperfection in the first indictment, and 
 thereupon obtained judgment in his favor, said: " Tliese defendants 
 have availed themselves of no such imperfection, if any there were, 
 nor has any judgment to that effect been pronounced. This case, in 
 short, presents the novel and unheard of spectacle, of a public officer, 
 whose business it was to frame a correct bill, openly alleging his own 
 inaccuracy or neglect, as a reason for a second trial, when it is not 
 pretended that the merits were not fairly in issue on the first. That a 
 party shall be deprived of the benefit of an acquittal by a jury, on a 
 suggestion of this kind, coming too from the officer who drew the in- 
 dictment, seems not to comport with that universal and humane prin- 
 ciple of criminal law, ' that no man shall be brought into danger more 
 than once for the same offence.' It is very like permitting a party to 
 take advantage of his own wrong. If this practice be tolerated, when 
 are trials of the accused to end? If a conviction take place, whether 
 an indictment be good, or otherwise, it is ten to one that judgment 
 passes ; for, if he read the bill, it is not probable he will have penetra- 
 tion enough to discern its defects. His counsel, if any be assigned to 
 him, will be content with hearing the substance of the charge withouV 
 looking farther ; and the court will hardly, of its own accord, think it 
 a duty to examine the indictment to detect errors in it. Many hun- 
 dreds, perhaps, are now in the state prison on erroneous indictments, 
 who, however, have been fairly tried on the merits. But reverse the 
 case, and suppose an acquittal to take place, the prosecutor, if he be 
 dissatisfied and bent on conviction, has nothing to do but to tell the 
 court that his own indictment was good for nothing ; that it has no 
 venue, or is deficient in other particulars, and that, therefore, he has a 
 right to a second chance of convicting the prisoner, and so on, toties 
 quoties." 1 Johns. 74. 
 
 In Commonwealth v. Purchase, 2 Pick. 521, 526, Chief Justice 
 Parker, speaking of the doctrine which allows a man to be tried again 
 after being acquitted on an indictment substantially bad, said that 
 " ingenuity has suggested that he never was in jeopardy, because it is 
 to be presumed that the court will discover the defect in time to pre- 
 vent judgment ; " but that this " is bottomed upon an assumed infalli- 
 bility of the courts, which is not admitted in any other case." 
 
 In the Revised Statutes of Massachusetts of 1836, c. 123, §§ 4, 5, 
 provisions were inserted, which, as the commissioners who reported 
 them said, were " intended to define and determine, as far as may be, 
 the cases in which a former acquittal shall, or shall not, be a bar to a
 
 976 UNITED STATES V. BALL. [CilAP. XVL 
 
 subsequent prosecution for the same offence ; " and were as follows : 
 ' ' No person shall be held to answer on a second indictment, for any 
 offence of which he has been acquitted by the jury upon the facts and 
 merits, on a former trial ; but such acquittal may be pleaded by him in 
 bar of any subsequent prosecution for the same offence, notwithstand- 
 ing any defect in the form or in the substance of the indictment on 
 which he was acquitted. If any person, who is indicted for an offence, 
 shall on his trial be acquitted upon the ground of a variance between 
 the indictment and the proof, or upon any exception to the form or to 
 the substance of the indictment, he may be arraigned again on a new 
 indictment, and may be tried and convicted for the same offence, not- 
 withstanding such former acquittal." Similar statutes have been passed 
 in other States. 1 Lead. Crim. Cas. (2d ed.) 532. 
 
 The American decisions in which the English doctrine has been fol- 
 lowed have been based upon the English authorities, with nothing added 
 by way of reasoning. 
 
 After the full consideration which the importance of the question 
 demands, that doctrine appears to us to be unsatisfactory in the 
 grounds on which it proceeds, as well as unjust in its operation 
 upon those accused of crime ; and the question being now for the 
 first time presented to this court, we are unable to resist the con- 
 clusion that a general verdict of acquittal upon the issue of not 
 guilty to an indictment undertaking to charge murder, and not ob- 
 jected to before the verdict as insufficient in that respect, is a bar to a 
 second indictment for the same killing. 
 
 The Constitution of the United States, in the Fifth Amendment, de- 
 clares, " nor shall any person be subject to be twice put in jeopardy of 
 life or limb." The prohibition is not against being twice punished, but 
 against being twice put in jeopardy; and the accused, whether convicted 
 or acquitted, is equally put in jeopardy at the first trial. An acquittal 
 before a court having no jurisdiction is, of course, like all the proceed- 
 ings in the case, absolutely void, and therefore no bar to subsequent 
 indictment and trial in a court which has jurisdiction of the offence. 
 Commonwealth v. Peters, 12 Met. 387 ; 2 Hawk. P. C. c. 35, § 3 ; 
 1 Bishop's Crim. Law, § 1028. But although the indictment was fatally 
 defective, yet, if the court had jurisdiction of the cause and of the 
 party, its judgment is not void, but only voidable by writ of error ; 
 and, until so avoided, cannot be collaterally impeached. If the judg- 
 ment is upon a verdict of guilty, and unreversed, it stands good, and 
 warrants the punishment of the defendant accordingly, and he could 
 not be discharged by a writ of habeas corpus. Ex jm^'te Parks, 93 
 U. S. 18. If the judgment is upon an acquittal, the defendant, indeed, 
 will not seek to have it reversed ; and the government cannot. United 
 States u Sanges, 144 U. S. 310. But the fact that the judgment of a 
 court having jurisdiction of the case is practically final affords no 
 reason for allowing its validity and conclusiveness to be impugned in 
 another case.
 
 •SECT. I.] UNITED STATES V. BALL. 977 
 
 The former indictment set forth a charge of murder, although lacking 
 the requisite fulness and precision. The verdict of the jury, after a 
 trial upon the issue of guilty or not guilty, acquitted Millard F. Ball of 
 the whole charge, of murder, as M'ell as of any less offence included 
 therein. Rev. Stat., § 1035. That he was thereupon discharged by 
 the Circuit Court by reason of his acquittal by the jury, and not 
 by reason of any insufficiency in the indictment, is clearly shown by 
 the fact that the court, by the same order which discharged him, com- 
 mitted the other defendants, found guilty by the same verdict, to 
 custody to await sentence, and afterwards adjudged them guilty and 
 sentenced them to death upon that indictment. Millard F. Ball's 
 acquittal by the verdict of the jury could not be deprived of its legiti- 
 mate effect by the subsequent reversal by this court of the judgment 
 against the other defendants upon the writ of error sued out by them 
 only. 
 
 It is true that the verdict finding John C. Ball and Robert E. Bout- 
 well guilty as charged in the indictment, and fiuding Millard F. Ball 
 not guilty, was returned on Sunday ; as well as that the order there- 
 upon made by the court, by which it was considered that the first two 
 defendants were guilty as charged in the indictment and found by the 
 jury, and be remanded to custod}^ to await the judgment and sentence 
 of the court, and that Millard F. Ball be discharged and go without 
 day, was made on the same day. That order, indeed, as already ad- 
 judged by this court, could not have effect as a judgment against the 
 two defendants who had been convicted, because no judgmeut can 
 lawfully be entered on Sunday. Ball v. United States, 140 U. S. 118, 
 131; 3 Bl. Com. 277. But when a case is committed to the jury on 
 Saturday, their verdict may be received and the jury discharged on 
 Sunday. This has been generally put upon the ground that the recep- 
 tion of the verdict and discharge of the jury is but a ministerial act, 
 involving no judicial discretion ; or that it is an act of necessity ; and 
 it certainly tends to promote the observance of the day more than 
 would keeping the jury together until Monday. Hoghtaling v. Osborn, 
 15 Johns. 119; Van Riper i;. Van Riper, 1 Southard (4 N. J. Law), 
 156 ; Huidekoper v. Cotton, 3 Watts, 56 ; Baxter v. People, 3 Oilman, 
 368, 385 ; Hiller v. English, 4 Strob. 486 ; Cory r. Silcox, 5 Indiana, 
 370 ; Webber v. Merrill, 34 N. H. 202 ; Reid v. State, 53 Alabama, 
 402; Meece v. Commonwealth, 78 Kentucky, 586, 588 ; State v. Ford, 
 37 La. Ann. 443, 466. 
 
 As to the defendant who had been acquitted by the verdict duly re- 
 turned and received, the court could take no other action than to order 
 his discharge. The verdict of acquittal was final, and could not be 
 reviewed, on error or otherwise, without putting him twice in jeopardy, 
 and thereby violating the Constitution. However it may be in Eng- 
 land, in this country a verdict of acquittal, although not followed by 
 any judgment, is a bar to a subsequent prosecution for the same of- 
 fence. United States v. Sanges, 144 U. S. 310; Commonwealth v.
 
 978 BRENNAN V. THE PEOPLE, [CHAP. XVI. 
 
 Tuck, 20 Pick. 356, 365 ; West v. State, 2 Zabriskie (22 N. J. Law), 
 212, 231 ; 1 Lead. Crim. Cas. 532. 
 
 For these reasons, the verdict of acquittal was conclusive in favor 
 of Millard F. Ball ; and as to him the judgment must be reversed, and 
 judgment rendered for him upon his plea of former acquittal. 
 
 It therefore becomes unnecessary to consider any of the other ques- 
 tions raised at the trial which affect Millard F. Ball only ; and we pro- 
 ceed to consider those affecting the other defendants, John C. Ball and 
 Robert E. Boutwell. 
 
 Their plea of former conviction cannot be sustained, because upon a 
 writ of error sued out by themselves the judgment and sentence against 
 them were reversed, and the indictment ordered to be dismissed. How 
 far, if they had taken no steps to set aside the proceedings in the 
 former case, the verdict and sentence therein could have been held to 
 bar a new indictment against them need not be considered, because it 
 is quite clear that a defendant, who procures a judgment against him 
 upon an indictment to be set aside, may be tried anew upon the same 
 indictment, or upon another indictment, for the same offence of which 
 he had been convicted. Hopt v. Utah, 104 U. S. 631 ; 110 U. S. 574;. 
 114 U. S. 488; 120 U. S. 430; Regina '*'. Drury, 3 Cox Crim. Cas. 
 544; S. C. 3 Car. & Kirw. 193; Commonwealth v. Gould, 12 Gray, 
 171. The court therefore rightly overi-uled their plea of former jeop- 
 ardy ; and cannot have prejudiced them by afterwards permitting them 
 to put in evidence the former conviction, and instructing the jury that 
 the plea was bad. 
 
 BRENNAN v. THE PEOPLE. 
 Supreme Court of Illinois. 1854. 
 
 [Reported 15 Illinois, 511.] 
 
 Treat, C. J.^ An indictment for the murder of Albert Story was 
 found against Kern Brennan, James Tewey, Michael Tewey, 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 
 
 1 Only so much of the case as involves the question of double jeopardy is giveu.
 
 SECT. I.] BRENNAN V. THE PEOPLE. 979 
 
 prisoners guilty of murder, and sentence of death was passed upon 
 them. 
 
 Was tlie 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, the jury may 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 
 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 upon 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 in peril upon a charge, on which 
 he had 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 naturally 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 Ryan could be again tried. 
 This view of the question is sustained by 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-
 
 980 TKONO V. UNITED STATES. [CHAP. XVI. 
 
 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 upon the second trial. The court remarked : " It is 
 not necessary to determine how far a party 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 neces- 
 sities. As he had been acquitted upon two counts, he could have no 
 motive to ask for another trial, except upon the one on which he was 
 found 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 improperly revived the pro- 
 ceedings upon those counts upon which he was acquitted. But although 
 they were improperly 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, 
 6 Humph. 410 ; Morris v. The State, 8 S. & M. 762 ; and Hunt v. The 
 State, 25 Miss. 378. 
 
 In the opinion of the court, Ryan 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. 
 
 TRONO V. UNITED STATES. 
 Supreme Court of the United States. 1905. 
 
 [Reported 199 U. S. 521.] 
 
 The plaintiffs in error were proceeded against in the court of first 
 instance of the province of Bulacan, Philippine Islands, upon a com- 
 plaint accusing them of causing the death of Benito Perez "• with great 
 cruelty and evident premeditation ... by means of blows given with 
 the butts of guns, they cooperating one with the other." In other
 
 SECT. I.] TRONO V. UNITED STATES. 981 
 
 words, the accused were complained of as guilty of murder in the first 
 degree. 
 
 They were tried in the court above mentioned and were acquitted of 
 the crime of murder and convicted of the crime of assault, which is in- 
 cluded iu the crime of murder charged in the complaint, and they were 
 therefore sentenced by the court to suffer a penalty of six months' im- 
 prisonment and to pay a certain sum to the heirs of Perez, with sub- 
 sidiary imprisoumeut in case of insolvency. 
 
 All three of the accused appealed to the Supreme Court of the Phil- 
 ippiue Islands from the judgment and sentence of the trial, court. The 
 Supreme Court, having heard the case, reversed the judgment of the 
 court of first instance and convicted the accused of the crime of homi- 
 cide (in substance, murder in the second degree), which is included in 
 and is a lower degree of the crime charged in the complaint, but is a 
 hisfher degree of crime than that of which the accused were convicted 
 in the court below. Two of them (Angeles and Trono) were sentenced 
 to fourteen years, eight months and one day, and Natividad to impris- 
 onment for eight years and one day, and all three to the payment of 
 an indemnity to the heirs of the deceased. 
 
 The accused have brought the case here by writ of error to the Su- 
 preme Court of the Philippine Islands, for the purpose of reviewing 
 the judgment of that court. 
 
 Peckham, J. The plaintiffs in error seek a reversal of the judgment 
 in their case on the ground that tlie Supreme Court of the Philippine 
 Islands had no power to reverse the judgment of the court of first in- 
 stance, and then find them guilty of a higher crime than that of which 
 they had been convicted iu that court, and of which higher crime that 
 court had acquitted them, and they contend that such conviction by 
 the Supreme Court of the Islands was a violation of the act of Con- 
 gress, passed July 1, 1902, 32 Stat. 691, a portion of the fifth section 
 of that act providing that " no person for the same offence shall be 
 twice put iu jeopardy of punishment." 
 
 This language is to be found in connection with other language in 
 the same act, providing for the rights of a person accused of crime in 
 the Philippine Islands. The whole language is substantially taken 
 from the Bill of Rights set forth in the Amendments to the Constitu- 
 tion of the United States, omitting the provisions in regard to the 
 right of trial by jury and the right of the people to bear arms, and con- 
 taining the prohibition of the Thirteenth Amendment, and also pro- 
 hibiting the passage of bills of attainder and ex poi^t facto laws. 
 
 The important question to be determined is, whether this action of 
 the Supreme Court of the Islands did violate the act of Congress, by 
 placing the accused twice in jeopardy. 
 
 The meaning of the phrase, as used in the above-mentioned act of 
 Congress, was before this court in Kepner v. United States, decided in 
 May, 1904, 195 U. S. 100, where will be found a very full discussion of 
 the subject. The plaintiff in error in that case had been acquitted of the
 
 982 TRONO V. UNITED STATES. [CHAP. XVI. 
 
 crime charged against him in the court of first instance, but the Gov- 
 ernment, not being satisfied with the decision, appealed to the Supreme 
 Court, and that court reversed the judgment of acquittal and found 
 Kepner guilty of the crime of which the court of first instance had ac- 
 quitted him, and sentenced him to a term of imprisonment, and sus- 
 pended him from any public office or public trust, and deprived him 
 of the right of suffrage. This court, upon writ of error, held that, in 
 reversing upon the appeal of the Government, the judgme^it of the 
 court of first instance, and itself convicting the accused and pronounc- 
 ino- judgment against him, the Supreme Court of the Islands violated 
 the provision in question, and its judgment was therefore reversed and 
 the prisoner discharged. It was also held that the Government had no 
 power to obtain a review of a judgment or decision of the trial court 
 acquitting an accused party, and that the phrase in question was to 
 be construed as the same phrase would be construed in the instru- 
 ment from which it was originally taken, viz., the Constitution of 
 the United States, and that the settled and well-known meaning of the 
 lano-uase, as used in the Constitution, must also be taken when the 
 same language is used in the act of Congress, and not as it might pos- 
 sibly be construed with reference to Spanish law or Spanish procedure. 
 
 The difference between that case and the one now before the court 
 is obvious. Here the accused, while acquitted of the greater offence 
 charged in the complaint, were convicted of a lesser offence included in 
 the main charge. They appealed from the judgment of the court of first 
 instance and the Government had no voice in the matter of the appeal, 
 it simply followed them to the court to which they appealed. We re- 
 gard that fact as material and controlling. The difference is vital 
 between an attempt by the Government to review the verdict or deci- 
 sion of acquittal in the court of first instance and the action of the ac- 
 cused person in himself appealing from the judgment and asking for 
 its reversal, even though that judgment, while convicting him of the 
 lower offence, acquits him of the higher one charged in the complaint. 
 
 We may regard the question as thus presented as the same as if it 
 arose in one of the Federal courts in this country, where, upon an in- 
 dictment for a greater offence, the jury had found the accused not 
 guilty of that offense, but guilty of a lower one which was included in 
 it, and upon an appeal from that judgment by the accused a new trial 
 had been granted by the appellate court, and the question was whether, 
 upon the new trial accorded, the accused could be again tried for the 
 greater offence set forth in the indictment, or must the trial be confined 
 to that offence of which the accused had previously been convicted, 
 and which conviction had, upon his own motion, been set aside and 
 reversed by the higher court. 
 
 This question has given rise to much diversity of opinion in the 
 various state courts. Many of them have held that the new trial must 
 be confined to the lesser offence of which the accused had been con- 
 victed on the first trial, while other courts have held precisely the con-
 
 SECT, I.j TRONO V. UNITED STATES. 983 
 
 trary, and that upon a new trial the whole case was open as if there 
 had been no former trial. Most, if not all, of these two classes of 
 cases have been cited by the respective counsel in this case and will be 
 found in their briefs herein. It would be unprofital)le to cite and refer 
 to each of them in detail here. They have been carefully examined. 
 
 Those cases which limit the new trial proceed upon the ground, as 
 stated in People v. Bowling, 84 N. Y. 478, 483, by Folger, Chief 
 Judge, as follows : 
 
 "The matter at the bottom is the constitutional provision that 'No 
 person shall be subject to be twice put in jeopardy for the same of- 
 fence' (Const, of N. Y., Art., 1, par. 6), and yet new trials are granted 
 in criminal cases on the motion of the accused, and if he gets a new 
 trial he is thus subject to be twice put in jeopardy. This is done on the 
 ground, that by asking for a correction of errors made on the first 
 trial, he does waive his constitutional protection, and does himself ask 
 for a new trial, though it brings him twice in jeopardy. But that 
 waiver, unless it be expressly of the benefit of the verdict of acquittal, 
 goes no further than the accused himself extends it. His application 
 for a correction of the verdict is not to be taken as more extensive 
 than his needs. He asks a correction of so much of the judgment as 
 convicted him of guilt. He is not to be supposed to ask correction or 
 reversal of so much of it as acquitted him of offence. He, therefore, 
 waives his privilege as to one, and keeps it as to the other. It is upon 
 this principle, that where, by a verdict of guilty on one count or for 
 one offence, and an acquittal on or for another, there has been a par- 
 tial conviction on an indictment, and on writ of error there has been a 
 reversal of the conviction, the acquittal still stands good, and is, as to 
 that count or offense, a bar. As to that, the plea of autrefois acquit can 
 be upheld, though the plea of autrefois concict cannot be upheld as to the 
 offence of which the verdict was guilty. The waiver is construed to 
 extend only to the precise thing concerning which the relief is 
 sought." 
 
 But in the subsequent case of People v. Palmer, 109 N. Y. 413, 419, 
 the effect of the statute of New York, known as sections 464 and 544 
 of the Code of Criminal Procedure, was under consideration. Those 
 sections enacted as follows : 
 
 " Sec. 464. The granting of a new trial places the parties in the 
 same position as if no trial had been had. ..." 
 
 " Sec. 544. When a new trial is ordered, it shall proceed in all re- 
 spects as if no trial had been had." 
 
 The statute was held valid, and that it did not violate the constitu- 
 tutional provision against subjecting a person to be twice put in jeop- 
 ardy for the same offence, as the jeopardy was incurred with the con- 
 sent of and as a privilege granted to the defendant upon his application. 
 
 And generally, it may be said that the cases holding that a new trial 
 is not limited in the manner spoken of proceed upon the ground that in 
 appealing from the judgment the accused necessarily appeals from the
 
 984 TRONO V. UNITED STATES. [CHAr. XVI. 
 
 whole thereof, as well that which acquits as that which condemns; 
 that the judgment is one entire thing, and that as he brings up the 
 whole record for review he thereby waives the benefit of the provision 
 in question, for the purpose of attempting to gain what he thinks is a 
 greater benefit, viz., a review and reversal by the higher court of the 
 judgment of conviction. Although the accused was, as is said, placed 
 in jeopardy upon the first trial, in regard not only to the offence of 
 which he was accused, but also in regard to the lesser grades of that 
 offence, yet by his own act and consent, by appealing to the higher 
 court to obtain a reversal of the judgment, he has thereby procured it 
 to be set aside, and when so set aside and reversed the judgment is 
 held as though it had never been. This was in substance decided in 
 United States /'. Harding et al, tried in the United States Circuit 
 Court in 1846, 26 Fed. Cas. 131, before Mr. Justice Grier, then a 
 member of this court, and this is the ground substantially upon which 
 the decisions of the other courts are placed. 
 
 In Kring r. Missouri, 107 U. S. 221, it was stated by Mr, Justice 
 Miller, who delivered the opinion of the court, that it was admitted 
 that by the law of Missouri, as it stood at the time of the homicide, the 
 prisoner having been convicted of murder in the second degree upon an 
 indictment charging him with murder in the first degree, if that convic- 
 tion was set aside he could not again be tried for murder in the first 
 desree. That law was in force at the date of the homicide for which 
 Kring was sentenced to death, but it was subsequently, and before 
 his retrial, changed so as to deprive him of the benefit to which he 
 would otherwise have been entitled, and this court held that that change 
 was, as to him, ex post facto and void. It was also said by the court that 
 there was " no question of the right of the State of Missouri, either by 
 her fundamental law or by an ordinary act of legislation, to abolish this 
 rule, and that it is a valid law as to all offences committed after its en- 
 actment. The question here is, Does it deprive the defendant of any 
 right of defence which the law gave him when the act was committed 
 so that as to that offence it is ex post facto?" This court answered 
 that question in the affirmative. 
 
 In our opinion the better doctrine is that which does not limit the 
 court or jury, upon a new trial, to a consideration of the question of 
 guilt of the lower offence of which the accused was convicted on the 
 first trial, but that the reversal of the judgment of conviction opens up 
 the whole controversy and acts upon the original judgment as if it had 
 never been. The accused by his own action has obtained a reversal of 
 the whole judgment, and we see no reason why he should not, upon a 
 new trial, Idc proceeded against as if no trial had previously taken place. 
 We do not agree to the view that the accused has the right to limit his 
 waiver as to jeopardy, when he appeals from a judgment against him. 
 As the judgment stands before he appeals, it is a complete bar to any 
 further prosecution for the offence set forth in the indictment, or of 
 any lesser degree thereof. No power can wrest from him the right to
 
 SECT. I.] TRONO V. UNITED STATES. 985 
 
 SO use that judgment, but if he chooses to appeal from it and to ask 
 for its reversal he thereby waives, if successful, his right to avail him- 
 self of the former acquittal of the greater offence, contained in the 
 judgment which he has himself procured to be reversed. 
 
 It is urged, however, that he has no power to waive such a right, 
 and the case of llopt y. Utah, 110 U. S. 574, is cited as authority for 
 that view. We do not so regard it. This court held in that case that 
 in the Territory of Utah the accused was bound, by provisions of the 
 Utah statute, to be present at all times during the trial, and that it 
 was not within the power of the accused or his counsel to dispense with 
 such statutory requirement. But on an appeal from a judgment of 
 this nature there must be a waiver to some extent on the part of the 
 accused when he appeals from such judgment. When the first trial is 
 entered upon he is then put in jeopardy within the meaning of the 
 phrase, and yet it has been held, as late as United States r. Ball, 163 
 U. S. 662, 671 (and nobody now doubts it), that if the judgment of 
 conviction be reversed on his own appeal, he cannot avail himself of 
 the once-in-jeopardy provision as a bar to a new trial of the offence of 
 which he was convicted. And this is generally put upon the ground 
 that by appeal he waives his right to the plea, and asks the court to 
 award him a new trial, although its effect will be, if granted, that he 
 will be again tried for the offense of which he has been once convicted. 
 This holding shows that there can be a waiver of the defence by reason 
 of the action of the accused. As there is, therefore, a waiver in any 
 event, and the question is as to its extent (that is, how far the accused 
 by his own action may be deemed to have waived his right), it seems 
 much more rational and in better accord with the proper administra- 
 tion of the criminal law to hold that, by appealing, the accused waives 
 the right to thereafter plead once in jeopardy, when he has obtained a 
 reversal of the judgment, even as to that part of it which acquitted 
 him of the higher while convicting him of the lower offence. When at 
 his own request he has obtained a new trial he must take the burden 
 with the benefit, and go back for a new trial of the whole case. It 
 does not appear to us to be a practice founded on solid reason to per- 
 mit such a limited waiver by an accused party, while himself asking 
 for a reversal of the judgment. 
 
 There is also the view to be taken that the constitutional provision 
 was really never intended to, and, properly construed, does not cover, 
 the case of a judgment under these circumstances, which has been 
 annulled by the court at the request of the accused, and there is, 
 therefore, no necessity of relying upon a waiver, because the correct 
 construction of the provision does not make it applicable. 
 
 A further question is made as to the power of the Supreme Court of 
 the Islands to reverse the judgment appealed from and itself convict 
 the accused on appeal. The Supreme Court, in so doing, acted within 
 its power of jurisdiction. It is a result of the ordinary procedure in 
 the courts of that country, proceeding under the act of Congress
 
 986 SIMMONS V. UNITED STATES, [cHAP. XVI. 
 
 already referred to. See statement of the procedure in the case here- 
 tofore cited, Kepner t\ United States, 195 U. S. 100. 
 
 The judgment of the Supreme Court of the Philippine Islands is 
 right, and it is Affirmed} 
 
 SIMMONS V. UNITED STATES. 
 
 Supreme 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 jur}^ 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 jury, 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 
 circumstances which would render it pi'oper to interfere. To be sure, 
 the power ought to be used with the greatest caution, under urgent 
 circumstances, and for very plain and obvious causes ; and, in capital 
 cases especially, courts should be extremely careful how they interfere 
 with any of the chances of life in favor of the prisoner. But, after all, 
 they have the right to order the discharge ; and the security which the 
 public 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 office." United States v, Perez, 9 
 Wheat. 579. 
 
 A recent decision of the Court of Queen's Bench, made upon a full 
 review of the English authorities, and affirmed in the Exchequer Cham- 
 ber, is to the same effect. Winsor v. The Queen, L. R. 1 Q. B. 289, 
 390 ; s. c. 6 B. & S. 143, and 7 B. & S. 490. 
 
 There can be no condition of things in which the necessity 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 
 
 1 Holmes, J., concurred in the result. Fuller, C. J., and Harlan, White, and 
 McKenna, JJ., dissented. — Ed. 
 ^ Part of the opinion only is given ; it states the case. — Ed.
 
 SECT. I.] VANDERCOMB'S CASE. 987 
 
 court that, either by reason of facts existing when the jurors were 
 sworn, but not then disclosed or known to the court, or by reason of 
 outside influences brought to bear on the jury pending the trial, the 
 jurors or any of them are subject to such bias or prejudice as not to 
 stand impartial between the government and the accused. As was well 
 said by 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 party. 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 the 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 th& 
 United States. 
 
 VANDERCOMB'S CASE. 
 
 Crown Case Reserved. 1796. 
 
 [Reported 2 Leach {4th ed.) 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 felony. The question raised by 
 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 wliich, and the time when, the burglary is charged to 
 have been committed are precisely the same both in the indictment for 
 the burglary and stealing the goods, on which the prisoners were ac- 
 
 1 The opinion only is given ; it sufficiently states the case. — Ed.
 
 988 vandercomb's case. [chap. xvi. 
 
 quitted, and in the Indictment for the burglary 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 only one act done, namely, 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 botlj 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 burglary 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- 
 nant to the rules of law to say that they are so far the same that an 
 acquittal 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 tliese cases to the present case : The first indictment was for bur- 
 glariously 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 tliey 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 opinion that the 
 plea 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. 
 
 1 His Lordship then examined the following authorities : Turner's case, Kelyng, 
 30 ; Jones and Bever's case, Kelyng, 52 ; 2 Hawk. P. C. c. S.*), sect. 3; Foster C. L. 
 361; Rex v. Pedley, 1 Leach (4th ed.), 242.
 
 SECT. I.] REGINA. V. CALVI. 981) 
 
 REX V. PLANT. 
 
 ChestFiR Assizes. 1836. 
 
 [Reported 1 C.Sf P. 575.] 
 
 Murder. — The prisoners were tried for the murder of Edward 
 Plant, a child of the female prisoner, by poisoning him. In some ol 
 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. 
 
 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. 481n.] 
 
 Antonio De Salvi was indicted for the wilful murder of Robert 
 Henderson Robertson. 
 
 A plea of autrefois acquit was pleaded, to which the Crown demurred.
 
 990 REGINA V. CALVI. [cHAP. XVI, 
 
 Pollock, C. B. — We are of opinion that this is not a good plea. 
 The prisoner is now indicted for murder, and murder maybe committed 
 without any 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, 
 yet if he does acts and uses means for the purpose of accomplishing 
 that limited object, and they are calculated to produce death and death 
 ensues, by the law of England that is murdei', 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 necessary 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. Try 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 
 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 
 is murder. Two authorities have been cited with reference to an 
 acquittal or a conviction in a police court : one of them was a case 
 before 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 Watson, 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
 
 SECT. I.] REGINA V. MORRIS. 9'Jl 
 
 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 w:is 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 onlj' be consummated by the death of the party. To the mind of 
 a lawj'er 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 showing an 
 intention to kill, might constitute murder, the prisoner ought now to be 
 tried for that offence, and that this might be the case was clearly shown 
 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 Eobert Henderson Robertson. The 
 jury found the prisoner guilty of manslaughter. 
 
 REGINA V. MORRIS. 
 Crown Case Reserved. 1867. 
 
 [Reported 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 
 resulting from the above-mentioned assaults. It was contended under 
 sect. 45 of the 24 & 25 Vict. c. 100, that the conviction for the assaults
 
 992 KEGINA V. MORRIS. [cHAP. XVI. 
 
 afforded a defence to the present indictment for manslaughter. See R. 
 V. Eh'ington, 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 
 they 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 conrt 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 
 undergone the imprisonment to which he was sentenced for it, was 
 thereby released from all further proceedings in respect thereof, though 
 unfortunately 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 party 
 aggrieved shall have obtained such certificate, or having been convicted, 
 shall have paid the whole amount adjudged to be paid, or shall have 
 suffered 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 Reg. v. Walker, 2 Moo. & Rob. 446, 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. v. 
 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. 
 [Martin, 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
 
 SECT. I.] REGINA V. MORRIS. 993 
 
 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 iinprisonineiit 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 insult, 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 be directly to violate the maxim or principle of the law 
 nemo debet bis vexari (here we might say ^Jicniri) pro eadem causd. 
 Cases may, indeed, be suggested in which there might be a failure of 
 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 Pai'liament 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 avtrefois 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 unintentionally killed 
 Robertson. The plea, therefore, of autrefois acquit was in that case 
 properly overruled. Here, however, the prisoner has been tried, con- 
 victedj 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.
 
 994 EEGINA V. MOERIS. [CHAP. XVI. 
 
 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. 
 cJOO, s. 42. He has undergone that punishment, and Timothy Lymer, 
 the man assaulted, has since died in consequence of that assault. 
 Now, this indictment is for the manslaughter of that man ; and the 
 question is, whether the suffering of the imprisonment for tiie 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 
 Stat. 24 & 25 Vict. c. 100, s. 45. It would be a very serious thing if 
 there were any distinction. The statute gives a release from all further 
 or other proceedings, civil or criminal; and if a different construction 
 were adopted, it would follow that if an action were brought under 
 Lord Campbell'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 con\nction for the assault 
 under the 24 & 25 Vict. c. 100, s. 45, affords no defence to the sulDse- 
 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 & 25 
 Vict. c. 100, s. 45, " for the same cause." It is to be observed that 
 that statute does not say for the same act, but " for the same cause."
 
 SECT. I.] COMMONWEALTH V. KOBY. 995 
 
 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." Tlie 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 previous conviction 
 for an assault, might escape the due punishment of his crime. 
 
 Keating, J., and Shee, J., concurred. Conviction affirmed. 
 
 COMMONWEALTH v. ROBY. 
 
 Supreme Judicial Court of Massachusetts. 1832. 
 
 [Reported 12 Pick. 496.] 
 
 The defendant was indicted for the murder of Maria Leonard. He 
 pleaded a special plea in bar, in which he alleged that he had previously 
 been convicted, sentenced and committed for a felonious assault upon 
 the said Leonard with intenl to murder her, which is the same offense.^ 
 
 Shaw, C. J. We are all of opinion, that the facts constituting the 
 felony and murder charged in the indictment now pending, would not 
 have been competent evidence to warrant a conviction of the offence 
 charged in the indictment in the Municipal Court. That offence was a 
 misdemeanor, to wit, an assault, charged to have been committed with 
 a felonious intent to murder. The offences are distinct in their nature, 
 of a distinct legal character, and in no case could a party on trial for 
 the one be convicted of the other. 
 
 The indictment for murder necessarily charges the fact of killing, as 
 the essential and most material fact, which gives its legal character to 
 the offence. If the party assaulted, after a felonious assault, dies 
 within the year and day, the same act, which till the death was an 
 assault and misdemeanor only, though aggravated, is by that event 
 shown to have been a mortal wound. The event, strictly speaking, 
 does not change the character of the act, but it relates back to the time 
 
 1 This statement of facts is substituted for that of the reporter. Part of the opin- 
 ion is omitted. — Ed.
 
 996 COMMONWEALTH V. ROBY. [CHAP. XVI. 
 
 of the assault, and the same act, which might be a felonious assault 
 only, had the party not died, is in truth shown by that event to have 
 been a mortal wound, and the crime, which would otherwise have been 
 an aggravated misdemeanor, is thus shown to be a capital felony. 
 The facts ai-e essentially different, and the legal character of the crime 
 essentially different. . . . 
 
 If on an indictment for a felony there cannot be a conviction for a 
 misdemeanor, it seems to be a necessary inference, that on an indict- 
 ment for a misdemeanor, if the evidence be such as to prove a felony 
 actually committed, the prisoner must be acquitted of the misdemeanor, 
 in order to being indicted for the felony. 
 
 This construction is strongly corroborated by considering the effect 
 of a pardon. 
 
 It was stated at the bar, in the course of the argument, that inas- 
 much as an assault is a necessary ingredient in the crime of murder, 
 a pardon of an assault would by necessary consequence operate as a 
 pardon of the murder. The argument is certainly countenanced by a 
 passage in Lord Hale. " If a man give another a mortal stroke, and 
 he dies thereof within a year and a day, but mesne between the stroke 
 and the death there comes a general pardon, whereby all misdemeanors 
 are pardoned, this doth pardon the felony consequentially, because the 
 act, that is the offence, is pardoned, though it be not a felony till the 
 party die ; " 1 Hale s P. C. 425 ; for which Cole's case is cited from 
 Plowden. If such would be the effect of a pardon, it would go far to 
 support the argument in favor of the plea in bar ; for it is difficult to 
 perceive any substantial distinction between a former acquittal or 
 former conviction and a pardon. Each effectually secures the party 
 charged from further prosecution. But we are satisfied, from the most 
 careful examination of the question, that such would not be the effect 
 of a pardon. This subject is fully considered in Foster's Crown Law, 
 an authority of the highest character in questions of this nature. 
 
 Case of Nicholas, Foster's Cr. L. 64. The prisoner was indicted for 
 petty treason. It was argued in his behalf, that he was entitled to the 
 benefit of the act of general pardon passed at the last session, which 
 took effect after the poison was administered, but before death ensued. 
 It was admitted that wilful murder and petty treason were excepted, 
 but it was insisted that until the death ensued, which was after the act 
 of pardon took effect, the offence could be considered in no other light 
 than a high misdemeanor, and the pardon operated upon it in that 
 light ; and consequently the homicide, which was but the consequence 
 of the offence pardoned, w^as likewise pardoned ; and the above passage 
 from Lord Hale was relied upon. To this it was answered by the 
 recorder, that Hale, in this passage, grounds himself singly on the 
 authority of Cole's case ; and then the recorder proceeds to show that 
 Cole's case, as reported, does not warrant the rule in the latitude con- 
 tended for. The case is examined at length. The doubt was, whether 
 the act could operate so as to pardon a felony which was not completed,
 
 SECT. I.] WEMYSS V. HOPKINS. 997 
 
 f 
 
 the death not having happened when the act went into operation. But 
 the effect of the decision of the court was, that the felony having had 
 its commencement, before the pardon took place, and that species of 
 felony, that is, manslaughter, being pardoned by the act, the prisoner 
 was entitled to the benefit of the pardon, though the felony was not 
 completed, by the death of the party, till after the act ; and the pardon 
 should operate in favor of the prisoner, in the same manner as it would 
 have done if the felony had been complete, and in no other manner. 
 And in tiie principal case (Nicholas's) it was therefore held, that the 
 pardon of misdemeanors, though at the time when the act took effect 
 the offence committed was a high misdemeanor only, did not so oi)erate 
 as to pardon the felony, and the prisoner was convicted and executed. 
 It proceeds manifestly on the ground, that though, at the time the 
 pardon took effect, the only offence with which the prisoner was charge- 
 able was the felonious assault, the death not having ensued, and if so, 
 was pardoned by force of the general act, by a subsequent event not 
 caused by any further agency of the prisoner, the crime was not changed 
 from trespass to felony, but was shown to have been a felony from the 
 time of the mortal wound given, and so not included in the pardon. 
 This renders it manifest that they are distinct offences, in fact and in 
 law ; the one pardoned being within the terms of the act, and the other 
 not so, being excepted. 
 
 WEMYSS r. HOPKINS. 
 Queen's Bench. 1875. 
 
 [Reported L. R. 10 Q. B. 378.] 
 
 Case stated by justices of Cardiganshire under 20 & 21 Vict. c. 43. 
 
 At the petty sessions at Aberystwith, on the 26th of June, 1872, a 
 complaint was preferred by the superintendent of police against the 
 appellant, under 5 & 6 Wm. 4, c. 50, s. 78, for that the appellant, 
 on the 15th 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, by striking a certain horse ridden 
 by the now respondent, cause certain hurt and damage to the now 
 respondent, passing on the highway, by 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
 
 998 WKMYSS V. HOPKINS. [CHAP. XVI. 
 
 that the appellant did, on the 15th of June, 1872, unlawfully and 
 wilfull}' 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 JiTne, 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.^ 
 
 Blackburn, 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 
 the same assault. The defence does not arise on a plea of autrefois 
 convict, but on the well-established rule at common law that where a 
 person has been convicted and punished for an offence by a court of 
 competent jurisdiction, transit in rem jiidicatam ; that is, the conviction 
 shall be a bar to all further proceedings for the same offence, and he 
 shall not be punished again for the same matter ; otherwise there might 
 be two different 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 the jurisdiction of the justices 
 is created by statute makes no difference. 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. Elrington, 1 B & S. 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- 
 
 1 Argument of counsel is omitted.
 
 SECT, I.] STATE V. INGLES, 
 
 999 
 
 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, 3 & 4 Wm, 4, 
 e. 50, s. 78, and fined, and he therefore cannot be afterwards convicted 
 again for the same act under the other statute. 
 
 Field, J. T 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} 
 
 STATE V. INGLES, 
 Superior Court of North Carolina. 1797. 
 
 [Reported 2 Haywood, 4.] 
 
 Indictment for a riot with others, and for beating and imprisoning 
 Edward D. Barry. The 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 by BaJcer 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 any of these offences the 
 court will enquire into the concomitant facts, and receive information 
 thereof, byway 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. 
 
 1 See Hankins v. People, 106 111. 628 ; cf. State v. Thornton, 37 Mo. 360.
 
 1000 STATE V. DAMON. [CHAP. XVI. 
 
 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 afifray, 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 for the same offence. The only question is whether the defendant 
 has been already legally convicted of the offence charged in the indict- 
 ment. Of this 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 Randall, 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 
 obtained 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 discharged. 
 
 1 The opinion only is given , it sufficiently states the case. — Ed. 
 
 2 The question here is : Cau a person, during the same evening, at a ball, commit 
 a separate assault and battery upon each of two individuals? The evidence tends to 
 show that, as matter of fact simply, it was doue in this case. But the appellant claims 
 that how many soever of assaults and batteries he may have committed during the 
 period of excitement at the ball, they all amounted in law to but one offence, and that 
 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. We 
 cannot concur in this view. We think appellant might be prosecuted for each sepa- 
 rate assault and battery. — Pekkins, J., in Greenwood v. State, 64 Ind. 250.
 
 SECT. I.] STATE V. LEWIS. 1001 
 
 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 jury ; the one for 
 burglary and larceny, the other for a robbery. The larceny in the one 
 bill, and the robbery in the other, were for tlie 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-general did not pray any judgment, nor was 
 any pronounced ; and, at the time of the prisoner's arraignment, no 
 motion was made by 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 nol. pros, to be entered on the indictment which had been 
 tried at the preceding term, but the court (Norwood, 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 
 refused by the court until the first indictment should be disposed of, 
 and on the refusal of the attorney-general to pray judgment on the first 
 indictment, the court quashed the indictment for robbery. On motion 
 of prisoner's counsel, his clergy was 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 stealing. 
 
 The other indictment is for a robbery ; a robbery is a larceny, but of 
 a more aggravated kind. The first is a simple larceny. 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 guilty on the 
 second indictment? It must certainly 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 larceny, 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
 
 1002 PEOPLE V. McGOWAN. fCHAP. XVI. 
 
 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 by 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 atrial on the second indictment for robbery. 
 I also think that the record of these proceedings, and the admissions of 
 the attorney -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 op Judicature of New York. 1837. 
 
 [Reported 17 Wertd. 386.] 
 
 Error from the Albany Oyer and Terminer. The defendant was 
 indicted at the Albany general sessions in June, 1837, for grand larceny, 
 in stealing one watch of the value of 1110, one watch of the value of 
 $65, one watch of the value of $45, one gold watch of the value of $110, 
 one gold watch of the value of $65, and one silver watch of the value of 
 $45, the property of one Alexander M'Harg. The prisoner pleaded 
 that at the Albany general sessions held in March, 1837, he was in- 
 dicted for robbery, 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 $110, 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 IllO, one silver watch of the value of $65, and 
 one other silver watch of the value of $45, 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 
 vei'dict 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
 
 SECT. I.] PEOPLE V. MCGOWAN. 1003 
 
 indictments were not the same, and consequently tlie acquittal on the 
 first indictment was no bar to a conviction on the second, and that it 
 was their duty to find the prisoner guilty. The jury found accordingly. 
 The prisoner having excepted to the charge of the judge, sued out a 
 writ of error. 
 
 By the Court, 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 offence 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 applied ; 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. jyrhna facie case is made 
 out for the prisoner. It then lies with the people to show, by evidence 
 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 by 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 larceny 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 lay 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 robbery, or a
 
 1004 COMMONWEALTH V. CLAIR. [CHAI". XVL 
 
 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 by contradictory proof, or by 
 setting up, on new proof, a really 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, always a bar. The parties should, however, be allowed 
 free scope for inquiry 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. 
 
 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. The principal facts 
 which appeared in both cases were, that Hodgdon delivered the ma- 
 terials 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. 
 
 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-
 
 SECT. I.] COMMONWEALTH V. CLAIR. 1005 
 
 tied that in order to support a plea of autrcfoif^ acquit the ofifences 
 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 the 
 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 have well supported the first. The King 
 V. Vandercomb, 2 Leach (4th ed.), 708 ; Commonwealth v. Rob}', 12 
 Pick. 496, 500; Commonwealth v. Wade, 17 Pick. 400. The last case 
 affords an apt illustration of the practical application of the rule. The 
 defendant 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 of 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, they 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 by 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 feloniously 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.)
 
 1006 COMMONWEALTH V. CLAIR. [CHAP. XVL 
 
 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 sutficient 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. 
 ^u^li -^//mittal is no bar to the present indictment. 
 
 Exceptions overruled.
 
 APPENDIX 
 
 The following definitions of the priucipiil crimes are taken cliiefly from Black- 
 stone's Coinineutaries, and from the codes and statutes of California, Indiana, New 
 York, and Ohio. It is believed that, so far as tlie common-law definitions of these 
 crimes have been changed in any jurisdiction by statute, the clianges will not 
 materially vary from those here given. 
 
 J reason. 
 
 Const. IT. S., art. 3, sec. 3. Treason against the United States shall consist only in 
 levying war against them, or in adhering to tlieir enemies, giving tliein aid and com- 
 fort. No person shall be convicted of treason unless on the testimony of two wit- 
 nesses to the same overt act, or on confession in open court. 
 
 For treason in England, see 4 Bl. Com. 74. 
 
 N. Y. Penal Code, sees. 37-40. Treason against the people of the state con- 
 sists in 
 
 1. Levying war against the people of the state, within this state ; or 
 
 2. A combination of two or more persons by force to usurp the government of the 
 state, or to overturn the same, shown by a forcible attempt, made within the state, 
 to accomplish that purpose ; or 
 
 3. Adhering to the enemies of the state, while separately engaged in war with a 
 foreign enemy, in a case prescribed in the constitution of the United States, or giving 
 to such enemies aid and comfort within the state or elsewhere. 
 
 Treason is punisliable b\' death. 
 
 To constitute levying war against the people of this state, an actual act of war 
 must be committed. To conspire to levy war is not enough. 
 
 Where persons rise in insurrection with intent to prevent in general, bv force and 
 intimidation, tlie execution of a statute of this state, or to force its repeal, they are 
 guilty of levying war. But an endeavor, although by numbers and force of arms, to 
 resist the execution of a law in a single instance, and for a private purpose, is not 
 levying war. 
 
 Cal. Pen. Code, sees. 37-38. Treason against this state consists only in levying war 
 against it, adhering to its enemies, or giving them aid and comfort, and can be com- 
 mitted only by persons owing allegiance to this state. The punishment of treason 
 shall be death. 
 
 Misprision of treason is the knowledge and concealment of treason, without other- 
 wise assenting to or partaking in the crime. It is punishable by imprisonment in 
 the state prison for a term not exceeding five years. 
 
 (This is the common form of definition. Ohio inserts the word " knowingly.") 
 
 Escape, Rescue, etc. 
 
 4 Bl. Cora. 129-131. An escape of a person arrested upon criminal process 
 by eluding the vigilance of his keepers before he is put in hold is also an offence 
 against public justice, and the party himself is punishable by fine or imprisonment ; 
 but the officer permitting such escape, either by negligence or connivance, is much 
 more culpable than the prisoner. 
 
 Breach of prison by the offender himself, when committed for any cause, was felony 
 at the common law ; or even conspiring to break it : but this severity is mitigated b> 
 
 1007
 
 1008 APPENDIX. 
 
 the statute 1 Edw. II., which enacts that no person shall have judgment of life or 
 member for breaking prison, unless committed for some capital offence. 
 
 Kescue is the forcibly and knowingly freeing another from an arrest or Imprisonment. 
 
 Barretry. 
 
 4 Bl. Com. 134. Common barretry is the offence of frequently exciting and stirring 
 up suits and quarrels between his majesty's subjects, either at law or otherways. 
 
 N. Y. Pen. Code, sec. 132. Common barratry is the practice of exciting groundless 
 judicial proceedings. 
 
 Maintenance. 
 
 4 Bl. Com. 134. Maintenance is . . . an oificious intermeddling in a suit that no 
 way belongs to one by maintaining or assisting either party with money or otherwise 
 to prosecute or defend it. ... A man may, however, maintain the suit of his near 
 kinsman, servant, or poor neighbour, out of charity and compassion, with impunity. 
 
 Cal. Pen. Code, sec. 161. Every attorney who, eitlier directly or indirectly, buys 
 or is interested in buying any evidence of debt or thing in action, with intent to bring 
 suit thereon, is guilty of a misdemeanor. 
 
 Champerty. 
 
 4 Bl. Com. 135. Champerty, campi-partitio, is ... a bargain with a plaintiff or 
 defendant campum purtire, to divide the land or other matter sned for between them 
 if they prevail at law ; whereupon the champerter is to carry on the party's suit at 
 his own expense. 
 
 (These crimes are obsolete in most states.) 
 
 Embracery. 
 
 4 Bl. Com. 140. Embracery is an attempt to influence a jury corruptly to one side 
 by promises, persuasions, entreaties, money, entertainments, and the like. 
 
 Extortion. 
 
 4 Bl. Com. 141. Extortion is an abuse of public justice, which consists in any officer's 
 unlawfully taking, by colour of his office, from any luan, any money or thing of value, 
 that is not due to him, or more than is due, or before it is due. 
 
 Pei'jury. 
 
 4 Bl. Com. 137. Perjury is . . . committed when a lawful oath is administered in 
 some judicial proceeding to a person who swears wilfully, absolutely and falsely in a 
 matter material to the issne or point in question. 
 
 Subornation of perjury is the offence of procuring another to take such a false oath 
 as constitutes perjury in the principal. 
 
 Cal. Pen. Code, 118. Every person who, having taken an oath that be will testify, 
 declare, depose, or certify truly before any competent tribunal, officer or person, in 
 any of the cases in which such an oath may by law be administered, willfully and con- 
 trary to such oath, states as true any material matter which he knows to be false, is 
 guilty of perjury. 
 
 Ind. Rev. Stat., sec. 2006. Whoever, having taken a lawful oath or affirmation in 
 any matter in which, by law, an oath or affirmation may be required, shall, upon such 
 oath or affirmation, swear or affirm willfully, corruptly, and falsely touching a matter 
 material to the point in question, shall be deemed guilty of perjury. . . . 
 
 Oh. Rev. Stat., sec. 6897. Whoever, either verbally or in writing, on oath lawfully
 
 APPENDIX. 
 
 1009 
 
 administered, willfully and corruptly states a falsehood, as to any material matter, in a 
 proceeding before any court, tribunal or officer created by law, or in any matter in rela- 
 tion to which an oath is authorized ijy law, is guilty of perjury, and shall be imprisoned 
 in the penitentiary not more than ten nor less than tiiree years. 
 
 N. Y. Pen. Code, sees. 96-99, 101. A person who swears or affirms that he will 
 truly testify, declare, depose, or certify, or tliat any testimony, declaration, deposition, 
 certificate, affidavit, or other writing by him subscribed, is true, in an action, or a 
 special proceeding, or upon any hearing, or inquiry, or on any occasion in which an 
 oath is re{[uirod l)v law, or is necessary for the prosecution or defense of a private right, 
 or for the ends of public justice, or may lawfully be administered, and who in such 
 action or proceeding, or on such hearing, imjuiry or other occasion, willfully and know- 
 ingly testifies, declares, deposes or certifies falsely, in any material matter, or states 
 in his testimony, declaration, deposition, affidavit, or certificate, any material matter 
 to be true whicli he knows to be false, is guilty of perjury. 
 
 It is no defense in a prosecution for perjury that an oath was administered or taken 
 iu an irregular manner. . . . 
 
 It is no defense to a prosecution for perjury that the defendant was not competent 
 to give tlie testimony, deposition, or certificate of which falsehood is alleged. It is 
 sufficient tliat he actually was permitted to give such testimony or make such deposi- 
 tion or certificate. 
 
 It is no defen.se to a prosecution for perjury that the defendant did not know the 
 materiality of the false statement made by him ; or that it did not in fact affect tlie 
 proceeding in and for which it was made. It is sufficient that it was material, and 
 niiglit have affected sucli proceeding. 
 
 An unqualified statement of that which one does not know to be true is equivalent 
 to a statement of that which he knows to be false. 
 
 Affray. 
 
 4 Bl. Com. 145. Affrays (from affraier, to terrify) are the fighting of two or more 
 persons in some public place, to the terror of his majesty's subjects : for, if the fight- 
 ing be in private, it is no affray but an assault. Affrays may be suppressed by any 
 private person present, wno is justifiable in endeavouring to part the combatants, 
 whatever consequence may ensue. But more especially the constable, or other similar 
 officer, however denominated, is bound to keep the peace ; and to that purpose may 
 break open doors to suppress an affray, or apprehend the affrayers ; and may either 
 carry them before a justice, or imprison tliem by his own authority for a convenient 
 space till the heat is over ; and may then perhaps also make them find sureties for 
 the peace. 
 
 Hiot, etc. 
 
 4 Bl. Com. 146. Riots, routs, and unlawful assemblies, must have three persons at 
 least to constitute them. An unlawful assembly is when three or more do assemble 
 themselves together to do an unlawful act, as to pull down enclosures, to destroy a 
 warren or the game therein ; and part without doing it, or making any motion 
 towards it. A rout is where tliree or more meet to do an unlawful act upon a common 
 quarrel, as forcibly breaking down fences upon a right claimed of common or of way ; 
 and make some advances towards it. A riot is wliere three or more actually do an 
 unlawful act of violence, either with or without a common cause or quarrel : as if 
 thev beat a man ; or hunt and kill game in another's park, chase, warren, or liberty ; 
 or do any other unlawful act with force and violence ; or even do a lawful act, as 
 removing a nuisance, in a violent and tumultuous manner. 
 
 Forcible Entry. 
 
 4 Bl. Com. 148. Forcible entry or detainer is committed by violently taking or 
 keeping possession of lands and tenements with menaces, force and arms, and without 
 the authority of law. (So Ind.)
 
 1010 APPENDIX. 
 
 Cal. Pen. Code, sec. 418. Every person using, or procuring, encouraging, or assiBt- 
 ing another to use, any force or violence in entering upon or detaining any lauds or 
 other possessions of another, except in the cases and in the manner allowed bv law, is 
 guilty of a misdemeanor. (So New York.) 
 
 Murder. 
 See ante, pp. 461, 471. 
 
 Manslaiighter, 
 
 See ante, p. 473. 
 
 See a division of this crime into degrees in New York, Pen. Code, sees. 189 to 201, 
 
 Mayhem. 
 See ante, p. 419. 
 
 Bape. 
 See ante, pp. 419, 455. 
 
 Robber}/. 
 
 See ante, pp. 419, 699. 
 See ante, pp. 420-434. 
 
 Assault and Battery. 
 
 Arson, 
 
 See ante, p. 797. 
 
 For degrees of arson, see N. Y. Pen. Code, sees. 486-488. 
 
 Burglary. 
 See aiife, p. 780. 
 For degrees of burglary, see N. Y. Pen. Code, sees. 496-498. 
 
 Larceny and Kindred Crimes. 
 
 See ante, pp. 488 ff., 706, 718, 758. 
 
 Cal. Pen. Code, sees. 484, 503, 532. Larceny is the felonious stealing, taking, 
 carrying, leading, or driving away the personal jjroperty of another. 
 
 Embezzlement is the fraudulent appropriation of property by a person to whom it 
 has been intrusted. 
 
 Every person who knowingly and designedly, by false or fraudulent representation 
 or pretenses, defrauds any other person of money or property, or who causes or pro- 
 cures others to report falsely of his wealth or mercantile character, and by thus 
 imposing upon any person obtains credit, and thereby fraudulently gets into possession 
 of money or property, is punishable, . . . 
 
 N. Y. Pen. Code, Sec. 528. A person who, with the intent to deprive or defraud 
 the true owner of his property, or of the use and benefit thereof, or to appropriate tlie 
 same to the use of the taker, or of iany other person, either, 
 
 1. Takes from the pos.session of the true owner, or of any other person ; or obtains 
 from such possession by color or aid of fraudulent or false representation or pretense, 
 or of any false token or writing ; or secretes, withholds, or appropriates to his own 
 nse, or that of any person other than the true owner, any money, personal property, 
 thing in action, evidence of debt or contract, or article of value of any kind ; or 
 
 2. Having in his possession, custody, or control, as a bailee, servant, attorney, 
 agent, clerk, trustee, or officer of any person, association, or corporation, or as a public 
 officer, or as a person authorized by agreement, or by competent authority, to hold or 
 take such possession, custody or control, any money, property, evidence of debt or
 
 APPENDIX. 1011 
 
 contract, article of value of any nature, or thing in action or possession, appropriates 
 the same to his own use, or that of any other person other than the true owner or 
 person entitled to the benefit thereof ; 
 
 Steals such property, and is guilty of larceny. 
 
 Mass. R. L. ch. 208*, Sect. 26. Whoever .steals, or, with intent to defraud, ohtaiiis 
 by a false pretence, or whoever unlawfully and, with intent to steal or embezzle, con- 
 verts or secretes with intent to convert, the money or personal chattel of another, 
 whether such money or personal chattel is or is not in his possession at the time of 
 such conversion or secreting, shall be guilty of larceny. 
 
 Malicious Mischief. 
 
 4 Bl. Com. 244. Malicious mischief, or damage, is the next species of injury to 
 private property, which tlie law considers as a public crime. This is such as is done, 
 not aiiimo furandi or with an intent of gaining by another's loss ; which is .some, 
 though a weak excuse: but either out of a spirit of wanton cruelty, or black and 
 diabolical revenge. In which it bears a near relation to the crime of arson ; for as 
 that affects the habitation, so this does the other property, of individuals. 
 
 Forgery. 
 
 4 Bl. Com. 247. Forgery or the crimen falsi is . . . the fraudulent making or 
 alteration of a writing to the prejudice of another man's right. 
 
 Oh. Kev. Stat. sec. 7091. Whoever falsely makes, alters, forges, counterfeits, prints 
 or photographs any (here are enumerated such instruments as may be forged) with 
 intent to defraud ; or utters or publishes as true and genuine any such false, altered, 
 forged, counterfeited, falsely printed or photographed matter, knowing the same to 
 be false, altered, forged, counterfeited, falsely printed or photographed, with intent to 
 defraud, is guilty of forgery. 
 
 (This is substantially the form of statute in most states. For degrees of forgery, 
 see N. Y. Pen. Code, sees. 509-519.) 
 
 Piracy. 
 
 4 Bl. Com. 72. The offence of piracy by common law consists in committing those 
 acts of robbery and depredation upon the high seas which, if committed upon laud, 
 would have amounted to felony there. 
 
 2 Bish. Crim. Law, sec. 1058. Piracy is any forcible depredation on the high sea? 
 perpetrated in general hostility to mankind for the gain or other private ends of 
 the doers.
 
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